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2013 DIGILAW 843 (RAJ)

Ramveer Singh v. State of Rajasthan

2013-04-30

AMITAVA ROY

body2013
JUDGMENT 1. - The revisional jurisdiction of this Court has been sought to be invoked to set at naught the order dated 10.2.2009 passed by the learned Additional District and Sessions Judge (Fast Track) No. 2, Dholpur in Sessions Case No. 59/2008 allowing the application under Section 319 of the Code of Criminal Procedure (for short, hereinafter referred to as 'the Code') of the respondent No. 2 herein, and consequently, requiring the petitioner to stand trial in the above case under Sections 363 & 366 IPC on being arrayed additionally as an accused therein. 2. I have heard Mr. Anurag Sharma, learned counsel for the petitioner and Mr. D.K. Garg, learned counsel for the respondent No. 2. 3. The respondent No. 2/complainant had lodged First Information Report with the jurisdictional police station to the effect that on 27.7.2007 at about 7:30 p.m., his daughter Ashwani alias Mamta had gone to the nearby field for easing herself. On her way back, she saw a jeep being parked under a sesame tree with one Ramesh Gurjar along-with three others. A black motorcycle was also parked near the jeep. In the FIR, it was alleged that these four persons then, caught hold of the victim and forcefully took her in the jeep and went off. As the victim raised alarm, the informant followed the party, where-after she was released. The victim on being asked by the informant, disclosed that the petitioner Ramveer Singh, who was a constable with the Mania Police Station had been harassing her for last two months, and that, had even offered his cell number to talk to him. The victim revealed further that Ramveer also intimidated her to the effect that if she did not talk to him, she would be forcefully abducted. 4. On the closure of the investigation, charge-sheet was submitted against Ramesh under Sections 363 & 366 IPC, and in course of the trial, the informant, the victim and others were examined. The records reveal that immediately after the FIR was lodged, the statement of the victim was not recorded under Section 164 of the Code, whereupon the respondent No. 2 filed an application before the jurisdictional magistrate. The application having been rejected, the order to that effect was assailed before this Court, which directed that her statement be recorded. The records reveal that immediately after the FIR was lodged, the statement of the victim was not recorded under Section 164 of the Code, whereupon the respondent No. 2 filed an application before the jurisdictional magistrate. The application having been rejected, the order to that effect was assailed before this Court, which directed that her statement be recorded. The victim, in course of her said statement, though recorded belatedly, implicated the petitioner to be one of the persons present on the date of the occurrence who forcefully apprehended and took her in the jeep. At the trial, she substantially reiterated this version on oath and further disclosed that she was eventually released following a phone call to the abductor by him (petitioner). 5. At this, the respondent No. 2 filed an application before the learned trial court under Section 319 of the Code to add the petitioner as an accused in the case and to make him stand trial. By order dated 21.7.2008, this application was rejected, whereupon he (respondent No. 2) approached this Court in S.B.Criminal Revision Petition No. 817/2008. By order dated 7.1.2009, this petition was allowed and the learned trial court was directed to rehear the matter and pass appropriate orders after considering the arguments of both sides. By the order impugned in the instant revision petition, the petitioner has been arrayed as an accused in the proceedings under Section 319 of the Code with a direction for issuance of summons to him. 6. Mr. Sharma, with reference, principally, to the analysis of the materials on record as well as testimony of the witnesses examined by the learned trial court, while rejecting the application under Section 319 of the Code, at the first instance, has urged that as the evidence forthcoming is, on the face of it, inadequate to establish the complicity of the petitioner in the offences under Sections 363 & 366 IPC, the impugned order, in absence of any additional proof of his involvement, is per se illegal and unsustainable in law, and thus, is liable to be interfered with. Contending that the improvement vis-a-vis the petitioner made by the victim in her statement under Section 164 of the Code, is a sheer product of her afterthought on being tutored by the respondent No. 2, learned counsel has insisted that the impugned order, if sustained, would result in travesty of justice. Contending that the improvement vis-a-vis the petitioner made by the victim in her statement under Section 164 of the Code, is a sheer product of her afterthought on being tutored by the respondent No. 2, learned counsel has insisted that the impugned order, if sustained, would result in travesty of justice. According to him, having regard to the letter and spirit of Section 319 of the Code, addition of any person as an accused in a pending proceeding is impermissible, unless on the basis of materials on record, there is a fair possibility of his conviction on the charges on which the trial is underway. He placed reliance on the decision of the Apex Court in Brindaban Das and Ors. v. State of West Bengal, (2009) 3 SCC 329 . He urged further that a bare perusal of the impugned order would disclose that the same had been passed without any application of mind, but essentially, as this Hon'ble Court had once interfered with the order of rejection of the application under Section 319 of the Code. 7. In reply, Mr. Garg, learned counsel for the respondent No. 2 has argued that not only in the facts and circumstances of the case, the delay in recording of the statement of the prosecutrix under Section 164 of the Code is not on her count and is traceable to the inaction stemming possibly from the fraternal slant of the investigating agency towards a departmental colleague, this plea is of no avail in the face of the direction of this Court to take the same on record. According to the learned counsel, a plain perusal of the said statement and the deposition of the victim girl at the trial, does establish the complicity of the petitioner in the offences involved, and thus, the impugned order being perfectly valid, does not merit interference. While distinguishing the judgment rendered in Brindaban Das & Ors. (supra) to be inapplicable to the facts in hand, Mr.Garg, has relied on the pronouncement of the Apex Court in Harbhajan Singh and Anr. v. State of Punjab & Anr., 2009 R.C.C. (SC) 819 . 8. The materials on record and the arguments advanced have been duly considered. 9. The trial is pending before the learned court below and the examination of all the prosecution witnesses is yet to be completed. v. State of Punjab & Anr., 2009 R.C.C. (SC) 819 . 8. The materials on record and the arguments advanced have been duly considered. 9. The trial is pending before the learned court below and the examination of all the prosecution witnesses is yet to be completed. From the statement of the prosecutrix recorded under Section 164 of the Code and her testimony at the trial as has been reproduced in the orders passed by the learned court below, it does not appear that the impugned order had been impelled by the factum of interference of this Court with the earlier order of rejection of the application under Section 319 of the Code. On the other hand, the order sought to be revised refers to, in substance, the evidence of the prosecution witnesses already brought on record. The plea of non-application of mind by the learned trial court in directing the addition of the petitioner as an accused in the proceedings before it, therefore, does not commend for acceptance. 10. Though in Brindaban Das & Ors.(supra) it had been enunciated that Section 319 of the Code contemplates a situation when the evidence adduced by the prosecution is sufficient for the purpose of convicting the persons on whom summon is contemplated to be issued, it has been underlined as well that the use of discretion, as contemplated in the statutory provision, has to be on the facts and circumstances of each case. Incidentally, in the reported case, except for a statement in the FIR that the complainant strongly believed that the offence of murder had been preplanned involving several conspirators, there was no direct evidence of complicity of the appellants therein. It is in that factual context, that their addition under Section 319 of the Code was interfered with. 11. In Harbhajan Singh & Anr.(supra), their Lordships while dwelling on the scope and ambit of Section 319 of the Code, propounded that absence of charge-sheet against certain persons per se is not a sufficient ground for a court at a later stage, upon consideration of evidence adduced by the prosecution, to decline to exercise jurisdiction thereunder. 12. As the trial is pending, this Court at this stage, does not wish to dilate further on the evidence on record. 12. As the trial is pending, this Court at this stage, does not wish to dilate further on the evidence on record. Suffice it to conclude that having regard to the backdrop of the impugned order and the recitals made therein, this Court is not persuaded to invoke its revisional jurisdiction to interfere therewith. It is made clear that neither the observations made herein nor the instant determination ought to be construed to be an expression of any view of this Court on the merits of the case and the learned trial court would decide the case being wholly uninfluenced thereby and strictly on the basis of the materials on record and in accordance with law. 13. The revision petition is dismissed.Revision dismissed. *******