Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of Decision: 4 May, 2016
+ CRL.REV.P. 601/2014
PREETI SHARMA ..... Petitioner
Through Mr.Krishan Kumar and Ms.
Vidushi, Advocates
versus
STATE ..... Respondent
Through Mr. Ashok. K. Garg, APP along
with Sub Inspector Ajay Singh,
Police Station Darya Ganj
+ CRL.REV.P. 656/2014
PREETI SHARMA ..... Petitioner
Through Mr.Krishan Kumar and Ms.
Vidushi, Advocates
versus
STATE NCT OF DELHI ..... Respondent
Through Mr. Ashok. K. Garg, APP along
with Sub Inspector Ajay Singh,
Police Station Darya Ganj
%
CORAM:
HON’BLE MS. JUSTICE SUNITA GUPTA
ORDER
: SUNITA GUPTA, J.
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1. Feeling aggrieved by the summoning order dated 8 July, 2014
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and consequential framing of charge dated 13 October, 2014 by
learned Additional Sessions Judge, Special Fast Track Court-II
Crl..Rev.Pet.601/14 Page 1 of 15
(Central), Tis Hazari Courts, Delhi in Sessions Case No.83/2013
arising out of FIR 248/09 u/s 376 IPC, present Revision Petitions No.
601/2014 and 656/2014 have been filed by the petitioner.
2. Facts germane to the filing of the present petition lie in a narrow
compass. FIR in the instant case was registered on the basis of the
statement of the prosecutrix wherein she alleged that her husband had
suffered heart attack, as such, she was in financial difficulty. She met
one Daya Nand Khatri at RML Hospital and apprised him about her
problems. He offered her a salary of Rs.5000/- besides transportation
charges. She started working with him and used to go with him.
About 5-7 days prior to the registration of FIR, she went to the office
of Oriflame, Connaught Place where she met Preeti and came to know
about her because Preeti was a prior acquaintance of Khatri uncle and
Khatri uncle told her not to talk to anyone without his permission. On
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26 November, 2009, she reached Rajiv Chowk Metro Station at
about 11:00 AM, however, Khatri uncle was not present there and told
her that he would reach after about 1-1½ hour and asked her to sit in
Palika. Meanwhile, Preeti came out of Oriflame office and took her
upstairs and started talking to another lady about making her a
member. After that she brought her outside the office. One person
namely, Naresh Dahiya came and started talking to Preeti. Preeti told
her that she will come within 10-15 minutes and asked her not to go
anywhere. She tried to talk to Preeti on telephone several times but the
call was on waiting for more than 10 minutes. Naresh Dahiya told her
that Preeti had gone from back door and asked her to accompany him.
Crl..Rev.Pet.601/14 Page 2 of 15
Naresh Dahiya took her in his car to Priya Guest House, Darya Ganj,
Delhi where he committed rape upon her. Thereafter, she came out of
the guest house in anger. She and Naresh Dahiya ate golgappa near
Sablok Clinic. She informed Preeti that because of her, wrong thing
had happened with her. Preeti came and informed the police.
Ambulance came and took her to JPN Hospital. She prayed for action
against Naresh Dahiya. During the course of her deposition before the
Court, she stated that she also want action to be taken against Preeti
and Daya Nand Khatri as they were hand in glove with accused
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Naresh Dahiya. Thereupon vide impugned order dated 8 July, 2014,
Preeti and Daya Nand Khatri were ordered to be summoned as
accused.
3. Learned counsel for the appellant has challenged the
summoning order on the ground that neither in her initial statement
made before the police which resulted in registration of FIR nor in her
subsequent statement u/s 161 Cr.P.C. or 164 Cr.P.C. recorded by the
Metropolitan Magistrate, the prosecutrix has leveled any allegations
against the petitioner. It was for the first time that in her examination-
in-chief before the Court, she merely stated that the petitioner was
hand in gloves with Naresh Dahiya and prayed for action against her.
4. Learned counsel for the petitioner submits that the
evidence/documents available on record do not constitute commission
of any offence much less prima facie evidence against the petitioner
which warrants summoning under Section 319 Cr.P.C. Counsel
Crl..Rev.Pet.601/14 Page 3 of 15
further submits that even the cross-examination of the prosecutrix was
not recorded, therefore, there was no occasion for invoking the powers
u/s 319 Cr.P.C. Reliance in this regard is placed on Mohd. Shafi vs.
Mohd. Rafiq, AIR 2007 SC 1899.
5. By placing reliance on Anil Singh and Anr. vs. State of Bihar,
Crl. Appeal No. 1082/2006; Hardeep Singh & Ors. vs. State of
Punjab and Ors, MANU/SC/0025/2014; Prabhdayal Singh vs. State
of Punjab & Ors., Crl.A.3848/2012; Jogendra Yadav and Anr. vs.
State of Bihar and Ors , MANU/SC0833/15, it was submitted that
standard of proof employed for summoning a person as accused u/s
319 Cr.P.C. is higher than the standard of proof employed for framing
a charge against an accused. A satisfaction is required to be arrived at
before passing a summoning order that the evidence adduced on
behalf of prosecution, if not rebutted, may lead to conviction of a
person sought to be added of the accused in the case. In the in instant
case, absolutely no ground has been given by the learned Sessions
Judge for summoning the petitioner who was in fact cited as a witness
by the prosecution, as such, the impugned order summoning the
petitioner and subsequent framing of charge are liable to be set aside.
6. Per contra, learned Additional Public Prosecutor for the State
submitted that the impugned order does not call for any interference,
as such, the revisions are liable to be dismissed.
Crl..Rev.Pet.601/14 Page 4 of 15
7. I have given my considerable thoughts to the respective
submissions of the learned counsel for the parties and have perused
the record.
8. Section 319 Cr.P.C. as it exists today, is quoted hereunder:
“319 Cr.P.C. -Power to proceed against other persons appearing to be
guilty of offence:-
(1) Where, in the course of any inquiry into , or trial of, an offence, it
appears from the evidence that any person not being the accused has
committed any offence for which such person could be tried together with
the accused, the Court may proceed against such person for the offence
which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or
summoned, as the circumstances of the case may require, for the purpose
aforesaid.
(3) Any person attending the Court, although not under arrest or upon a
summons, may be detained by such Court for the purpose of the inquiry
into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1),
then-
(a) the proceedings in respect of such person shall be commenced afresh,
and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such
person had been an accused person when the Court took cognizance of
the offence upon which the inquiry or trial was commenced.”
9. Section 319 Cr.P.C. springs out of the doctrine judex damnatur
cum nocens absolvitur (Judge is condemned when guilty is acquitted)
and this doctrine must be used as a beacon light while explaining the
ambit and the spirit underlying the enactment of Section 319 Cr.P.C. It
is the duty of the Court to do justice by punishing the real culprit.
Where the investigating agency for any reason does not array one of
Crl..Rev.Pet.601/14 Page 5 of 15
the real culprits as an accused, the court is not powerless in calling the
said accused to face trial. The question remains under what
circumstances and at what stage should the court exercise its power as
contemplated in Section 319 Cr.P.C.?
10. There were divergent views having been expressed by the
Supreme Court and several High Courts of the country on the scope
and extent of the powers of the courts under the criminal justice
system to arraign any person as an accused during the course of
inquiry or trial as contemplated under Section 319 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.‟).
Therefore, reference was made to the Constitution Bench in Hardeep
Singh (supra). The doubts as categorised in paragraphs 75 and 78 of
the reference order led to the framing of following two questions:-
“(1) When the power under sub-section (1) of Section 319 of the Code of
addition of accused can be exercised by a Court? Whether application
under Section 319 is not maintainable unless the cross-examination of the
witness is complete?
(2) What is the test and what are the guidelines of exercising power under
sub-section (1) of Section 319 of the Code?”
11. After referring to various earlier decisions rendered by the
Supreme Court as well as different High Courts, as regards the
question whether the word „evidence‟ in Section 319 Cr.P.C. means as
arising in Examination-in-Chief or also together with Cross-
Examination, it was held that once examination-in-chief is conducted,
the statement becomes part of the record. It is evidence as per law and
in the true sense, for at best, it may be rebuttable. An evidence being
Crl..Rev.Pet.601/14 Page 6 of 15
rebutted or controverted becomes a matter of consideration, relevance
and belief, which is the stage of judgment by the court. Yet it is
evidence and it is material on the basis whereof the court can come to
a prima facie opinion as to complicity of some other person who may
be connected with the offence. Therefore, even on the basis of
Examination-in-Chief, the Court or the Magistrate can proceed against
a person as long as the court is satisfied that the evidence appearing
against such person is such that it prima facie necessitates bringing
such person to face trial. In fact, Examination-in-Chief untested by
Cross Examination, undoubtedly in itself, is an evidence. While so
observing, the Court had taken into consideration the decision
rendered in Mohd. Shafi v. Mohd. Rafiq & Anr. , AIR 2007 SC 1899
on which reliance has been placed by the learned counsel for the
petitioner. Under the circumstances, the submission that only on the
basis of examination-in-chief the petitioner could not have been
summoned cannot be sustained.
12. While dealing with the degree of satisfaction required for
invoking the power under Section 319 Cr.P.C., it was observed as
under:-
“98. Power under Section 319 Cr.P.C. is a discretionary and an extra-
ordinary power. It is to be exercised sparingly and only in those cases
where the circumstances of the case so warrant. It is not to be exercised
because the Magistrate or the Sessions Judge is of the opinion that some
other person may also be guilty of committing that offence. Only where
strong and cogent evidence occurs against a person from the evidence led
before the court that such power should be exercised and not in a casual
and cavalier manner.
Crl..Rev.Pet.601/14 Page 7 of 15
99. Thus, we hold that though only a prima facie case is to be established
from the evidence led before the court not necessarily tested on the anvil
of Cross-Examination, it requires much stronger evidence than mere
probability of his complicity. The test that has to be applied is one which is
more than prima facie case as exercised at the time of framing of charge,
but short of satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence of such satisfaction,
the court should refrain from exercising power under Section 319 Cr.P.C.
In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the
evidence that any person not being the accused has committed any
offence’ is clear from the words “ for which such person could be tried
together with the accused. ” The words used are not ‘for which such
person could be convicted’. There is, therefore, no scope for the Court
acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the
accused.”
13. It was further observed that though u/s 319(4) (b) Cr.P.C., the
accused subsequently impleaded is to be treated as if he had been an
accused when the Court initially took cognizance of the offence, the
degree of satisfaction that will be required for summoning a person
under Section 319 Cr.P.C. would be the same as for framing a charge.
The difference in the degree of satisfaction for summoning the original
accused and a subsequent accused is on account of the fact that the
trial may have already commenced against the original accused and it
is in the course of such trial that materials are disclosed against the
newly summoned accused. Fresh summoning of an accused will result
in delay of the trial. Therefore the degree of satisfaction for
summoning the accused (original and subsequent) has to be different.
14. As regards the question whether power under Section 319
Cr.P.C. extend to persons not named in the FIR or named in the FIR
but not chargesheeted or who have been discharged, it was observed
Crl..Rev.Pet.601/14 Page 8 of 15
that a person not named in the FIR or a person though named in the
FIR but has not been chargesheeted or a person who has been
discharged can be summoned under Section 319 Cr.P.C. provided
from the evidence it appears that such person can be tried along with
the accused already facing trial. However, in so far as an accused who
has been discharged is concerned the requirement of Sections 300 and
398 Cr.P.C. has to be complied with before he can be summoned
afresh.
15. Again while dealing with the powers of the Court u/s 319
Cr.P.C., in A nil Singh (supra), it was observed that the jurisdiction of
the Court to issue processes against a person who has not been sent up
for trial is not disputed. Processes can also be issued against such
persons who although were named in the first information report but
were not sent up for trial upon investigation. The jurisdiction of the
Court undisputedly is limited. While it can exercise an extraordinary
power, it is required to be done cautiously. The Court while issuing
the processes should arrive at reasonable satisfaction that the
prosecution would be able to prove the charges against whom the
processes are sought to be issued. Reference was made to the
Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and Ors. ,
1983(1) SCC 1 where the law in this regard was laid down in
following terms:-
“But, we would hasten to add that this is really an extraordinary power
which is conferred on the court and should be used very sparingly and only
if compelling reasons exist for taking cognizance against the other person
against whom action has not been taken.
Crl..Rev.Pet.601/14 Page 9 of 15
16. Reliance was also placed on Michael Machado and Anr. v.
Central Bureau of Investigation and Anr. , 2000 Cri LJ 1706, where
the Court opined:
“11. The basic requirements for invoking the above section is that it
should appear to the court from the evidence collected during trial or in
the inquiry that some other person, who is not arraigned as an accused in
that case, has committed an offence for which that person could be tried
together with the accused already arraigned. It is not enough that the
court entertained some doubt, from the evidence, about the involvement
of another person in the offence. In other words, the court must have
reasonable satisfaction from the evidence already collected regarding two
aspects. First is that the other person has committed an offence. Second is
that for such offence that other person could as well be tried along with
the already arraigned accused.”
17. Yet again in Krishnappa v. State of Karnataka , 2004 Cri LJ
4185, Court observed:
“9. In Michael Machado v. Central Bureau of Investigation construing the
words "the court may proceed against such person" in Section 319 CrPC,
this Court held that the power is discretionary and should be exercised
only to achieve criminal justice and that the court should not turn against
another person whenever it comes across evidence connecting that other
person also with the offence. This Court further held that a judicial
exercise is called for, keeping a conspectus of the case, including the stage
at which the trial has already proceeded and the quantum of evidence
collected till then, and also the amount of time which the court had spent
for collecting such evidence. The court, while examining an application
under Section 319 CrPC, has also to bear in mind that there is no
compelling duty on the court to proceed against other persons. In a
nutshell, it means that for exercise of discretion under Section 319 CrPC,
all relevant factors, including the one noticed above, have to be kept in
view and an order is not required to be made mechanically merely on the
ground that some evidence had come on record implicating the person
sought to be added as an accused.”
Crl..Rev.Pet.601/14 Page 10 of 15
18. In Prabhdayal Singh (supra) , after referring to various
judgments, Punjab and Haryana High Court also took the view that
power u/s 319 Cr.P.C. should be used only when sufficient and cogent
reasons are there to satisfy the ingredients of the provisions. Mere
ipse dixit would not serve the purpose. Such an evidence must be
convincing one at least for the purpose of exercise of extraordinary
jurisdiction. A very high standard is required to invoke jurisdiction
under Section 319 Cr.P.C. and unless, a higher standard for the
purpose of forming an opinion to summon a person as an additional
accsued is laid down, the ingredients thereof viz a viz an extraordinary
case and also a case for sparingly exercise of jurisdiction would not be
satisfied. Otherwise also, summoning of an additional accused is a
serious matter.
19. Recently in Jogendra Yadav (supra), following Hardeep Singh
(supra), it was held that extraordinary power u/s 319 of the Code of
Criminal Procedure can be exercised only if very strong and cogent
evidence occurs against a person from the evidence led before the
Court.
20. Testing on the anvil of the aforesaid legal proposition, it is to be
seen whether there was strong and cogent evidence against the
petitioner for invoking the power u/s 319 Cr.P.C. In her initial
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complaint made by the prosecutrix on 26 November, 2009, she
leveled allegation of commission of rape by one Naresh Dahiya at
Priya Guest House, Daryaganj, Delhi. In this complaint, it was stated
Crl..Rev.Pet.601/14 Page 11 of 15
that the petitioner who was working with Oriflame Office, Cannaught
Place met her and told her that she was coming within 10-15 minutes
but she did not return, thereupon Naresh Dahiya told her that Preeti
has asked her to accompany him and thereupon she went with him
where she was subjected to rape. The prosecutrix informed the
petitioner on telephone about the commission of illegal act by Naresh
Dahiya whereupon the petitioner reached the spot and informed the
police. Ambulance came and took the prosecutrix to hospital.
21. On the same day, MLC of prosecutrix was conducted at LNJP
hospital, New Delhi. She was referred to gynecologist for further
evaluation and management. She was examined by the gynecologist.
As per the report of doctor, the patient was changing her statement
continuously. It was stated that the patient has come out of home to
meet her alleged aunt Mrs. Preeti working in Oriflame, Connaught
Place where she met with two male persons about 35 years of age who
took her first to the residence at Safdarjung Enclave where he gave her
cold drink to drink after which the patient started feeling dizziness and
she was taken to Daryaganj where she was sexually assaulted.
According to the patient, the names of the persons were Naresh
Dahiya and Chetan.
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22. On 27 November, 2009, the statement of the prosecutrix was
recorded u/s 161 Cr.P.C. wherein similar allegations were narrated as
in the FIR.
Crl..Rev.Pet.601/14 Page 12 of 15
23. On the same day, her statement u/s 164 Cr.P.C. was recorded by
learned Metropolitan Magistrate wherein she stated that the petitioner
had only told the prosecutrix to bring the file and not to talk to Naresh
Dahiya on the way. In this statement, the prosecutix wanted legal
action only against Naresh Dahiya.
24. Learned counsel for the petitioner referred to the statement u/s
161 Cr.P.C. of one Manjeet Singh @ Bablu to show that the
prosecutrix was involved in prostitution business. Reference was also
made to the order passed by the Court of Sessions while granting bail
to Naresh Dahiya wherein it was observed that the prosecutrix has
been taking different versions in her statement u/s 161 and 164 Cr.P.C.
regarding offence. It was also observed that in her statement dated
26.11.2009, the prosecutrix nowhere stated that she accompanied the
accused on any direction given by the petitioner to the effect that the
prosexutrix was to collect some file. Even if the prosecutrix was
asked by accused Naresh Dahiya to represent herself to be Rita and
wife of accused, there was opportunity for her to refused to do so and
not to enter into the guest house. Still she opted to enter into the guest
house. Even after commission of alleged heinous crime, the
prosecutrix had golgappa with the accused near Sablok Clinic instead
of raising any hue and cry. In the Medical Report, there was no injury
available on any part of the prosecutrix. Counsel further submits that
after completion of investigation, the police filed report u/s 173
Cr.P.C. The investigation revealed allegation against Naresh Dahiya
only. The petitioner was cited as prosecution witness and was placed
Crl..Rev.Pet.601/14 Page 13 of 15
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at Sl. No. 2. Prosecutrix was examined on 17 April, 2014 and 8
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July, 2014. In her deposition dated 17 April, 2014, she stated that
she was introduced to accused Naresh Dahiya by the petitioner,
however, when the accused was shown to her she stated that she was
not sure if he is the same man or not. She further deposed that it was
Khatri uncle who asked her to go with Naresh Dahiya and bring the
file. In her deposition, she further stated that Naresh threatened her
several times after registration of the case and because of this reason,
she shifted to NOIDA. At that time, she stated, “ I also want action to
be taken against Preeti and Daya Nand Khatri as they are hand in
gloves with accused Naresh ”. Merely on the basis of this statement of
the prosecurtix, the petitioner was ordered to be summoned.
However, as seen above, as observed by Hon‟ble Supreme Court in
Hardeep Singh (supra), power u/s 319 Cr.P.C. is a discretionary and
extraordinary power which is to be exercised sparingly and only in
those cases where the circumstances of the case so warrant. It is only
where strong and cogent evidence occurs against a person from the
evidence led before the Court that such power should be exercised and
not in casual and cavalier manner. Except for the fact that the
prosecutrix stated that she wanted action against Preeti and Daya Nand
Khatri as they were hand in gloves with accused Naresh, there was no
other clinching and cogent evidence against the petitioner which
warranted summoning the petitioner. In Section 319 Cr.P.C. the
purpose of providing “if it appears from the evidence that any person
not being the accused had committed any offence is clear from the
words “for which such person could be tried together with the
Crl..Rev.Pet.601/14 Page 14 of 15
accused”. The words used are not “for which such person could be
convicted”. Under the circumstances, there was no sufficient ground
for summoning the petitioner who was kept as a witness in the report
u/s 173 Cr.P.C.
25. That being so, the impugned orders cannot be sustained and
both the revision petitions are accordingly allowed and the impugned
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orders dated 8 July, 2014 and 13 October, 2014 are set aside.
(SUNITA GUPTA)
JUDGE
MAY 04, 2016
rs
Crl..Rev.Pet.601/14 Page 15 of 15