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2002 DIGILAW 1153 (PNJ)

Asha Rani v. State Of Punjab

2002-10-30

ASHUTOSH MOHUNTA

body2002
Judgment Ashutosh Mohunta, J. 1. This is a revision against the order passed by the Chief Judicial Magistrate, Bathinda dated 21.4.1999, vide which the learned Court summoned the petitioner for facing trial for the offence under Sections 363/366/376 of the Indian Penal Code along with other co-accused. 2. Briefly, the facts of the case are that on 15.7.1996 one Sonu daughter of Kaur Singh Jatt, resident of Gopal Nagar, Bathinda, aged about 15/16 years, made a statement to Malkit Singh, A.S.I. that she was raped by Sukhvir Singh @ Satbir Singh, Dharam Pal and Naresh Kumar. The allegations were also made against Asha Rani as she is alleged to have helped the aforesaid accused for committing rape upon the prosecutrix. During investigation, Asha Rani and Jai Bir were kept in column No. 2 and the challan was presented against rest of the accused. 3. After submitting the challan, all the three accused, vide Annexure P1, were declared proclaimed offenders as they were absconding. Thus, the learned Chief Judicial Magistrate, Bathinda ordered the recording of evidence under Section 299 of the Code of Criminal Procedure. At this stage, an application was filed by Assistant Public Prosecutor for summoning accused Jai Bir and Asha Rani. The learned Chief Judicial Magistrate, Bathinda recorded the evidence of prosecutrix Sonu as well as evidence of Investigating Officer, Dr. Sunit Chahal, Gynaecologist, Civil Hospital, Bathinda and Dr. Karam Singh and after recording their evidence summoned petitioner Asha Rani along with Jai Bir as accused for facing trial for the aforementioned offences. The present petition has been filed against the order of the Chief Judicial Magistrate, Bathinda dated 21.4.1999, vide which he had summoned the petitioner along with Jai Bir. 4. Learned counsel for the petitioner has contended that the Magistrate has no power to summon person as accused in a case which is triable by the Court of Sessions. Learned counsel contends that as the offence is under Sections 363/366/376 of the Indian Penal Code, therefore, it was only the Court of Sessions which could summon the petitioner and Jai Bir as accused under Section 319 of the Code of Criminal Procedure and not the Magistrate. Learned counsel contends that as the offence is under Sections 363/366/376 of the Indian Penal Code, therefore, it was only the Court of Sessions which could summon the petitioner and Jai Bir as accused under Section 319 of the Code of Criminal Procedure and not the Magistrate. In support of this contention, learned counsel for the petitioner has relied upon the decision of the Honble Apex Court in Kishori Singh and others v. State of Bihar and another, J.T. 2000(7) S.C. 564 : [2000(3) All India Criminal Law Reporter 383 (SC)], wherein it has been held that the Magistrate could not have issued process against the persons not charge-sheeted though named in FIR. 5. It is pertinent to mention that the aforesaid case was under Section 302 read with 34 and 324, 448 of the Indian Penal Code. 6. Learned counsel for the petitioner has also relied on the decision of Honble Apex Court in Ranjit Singh v. State of Punjab, 1999(3) All India Criminal Law Reporter 156, wherein it has been held that the material placed before the committal court cannot be treated as evidence collected during enquiry or trial. It has further been held that from the stage of committal till the Session Court reaches the stage indicated in Section 230 of the Code, that Court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused. The only other stage when the Court is empowered to add any other person to the array of the accused is after recording evidence during the trial by the Court of Sessions. 7. In the present case, the petitioner along with Jai Bir could be summoned only by the Court of Sessions and not by the committing Court. In this view of the matter, I quash the order dated 21.4.1999 passed by the Chief Judicial Magistrate, Bathinda. It is, however, clarified that the State is at liberty to move an application under Section 319 of the Code of Criminal Procedure before the Court of Sessions for summoning the petitioner along with Jai Bir as an accused in the case. The Chief Judicial Magistrate, Bathinda is directed to commit the case to the Court of Sessions expeditiously. 8. The revision stands disposed of accordingly.