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Uttarakhand High Court · body

2015 DIGILAW 124 (UTT)

Maya v. State of Uttarakhand

2015-03-09

U.C.DHYANI

body2015
Judgment (Oral) 1. By means of criminal revision, the revisionist seeks to set aside the impugned order dated 27.03.2014 passed by 1st Additional Sessions Judge, Roorkee, District Haridwar in S.T. no.280/2013, under Sections 363, 342, 376 (2)(i) of IPC and to allow the application under Section 319 Cr.P.C. filed by the revisionist. 2. First application under Section 319 Cr. P. C. was moved on behalf of the complainant before the 1st Addl. Session Judge, Roorkee. Such application was dismissed by the said court on 03.12.2013. It is the statement of learned counsel for the revisionist that the same was dismissed on the ground that the cross-examination of the witnesses has not been conducted so far. After the evidence of PW1 to PW4, when they were cross-examined, another application under Section 319 Cr.P.C. was filed by the complainant, which too was dismissed, vide order dated 22.07.2014. Aggrieved against the same, present criminal revision has been preferred by the revisionist. 3. The Court was taken through the evidence of PW1 Monty-victim, PW2 Maya Devi (complainant), PW3 Meenu (sister of the victim), PW4 Madan (father of the victim) and PW5 S.I. Pramod Kumar Negi. PW1 to PW4 have indicated the name of Smt. Jugnesh in the commission of alleged crime. They were cross-examined. It is for the trial court to evaluate their evidence and decide the case on its own merit. At present, this Court has to see as to whether a prima facie against Smt. Jugnesh (respondent no.2 herein) is made out or not in the light of recent decision of Hon'ble Apex Court in Hardeep Singh vs. State of Punjab & others, (2014) 3 SCC 92 . In the instant case, respondent no.2 was named in the FIR alongwith co-accused Deepu, who is currently facing trial for the offences punishable under Section 363, 342, 376(2)(i), 120-B IPC. Although, respondent no.2 was named in the FIR, no chargesheet was submitted against her after the investigation. The complainant had no other option, but to move an application under Section 319 Cr.PC. on the basis of statement of PW1 to PW4 (and also PW5) before the trial court. 4. Although, respondent no.2 was named in the FIR, no chargesheet was submitted against her after the investigation. The complainant had no other option, but to move an application under Section 319 Cr.PC. on the basis of statement of PW1 to PW4 (and also PW5) before the trial court. 4. Hon'ble Apex Court in Hardeep Singh's case (supra) while dealing with Section 319 Cr.P.C. has observed that 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 the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Cr.P.C. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject matter of trial. The only material that the court has before it at the inquiry stage is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to be tried. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to be tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of court enquiry and it is for this reason that the legislature has consciously used separate terms, namely, 'inquiry' and 'trial' in Section 319 Cr.P.C. The circumstances that lead to the inference being drawn up by the court for summoning a person under Section 319 Cr.P.C. arise out of the availability of the facts and material that come up before the court. The material should disclose complicity of the person in the commission of the offence which has to be the material that appears from the evidence during course of any inquiry into or trial of offence. The inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. The unveiling of facts other than the material collected during investigation before the Magistrate or court before trial actually commences, is part of the process of inquiry by the court. An inquiry can be conducted by the Magistrate or the court at any stage during the proceedings before the Court. This power is preserved with the court and has to be read and understood accordingly. The outcome of any such exercise should not be an impediment in the speedy trial of the case. Though, the facts so received in an inquiry by the Magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 Cr.P.C., it is information of complicity. Such material therefore, can be used even though not an evidence in stricto sensu, but information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers under Section 319 Cr.P.C. 5. Non-summoning of respondent no.2-Jugnesh, in the considered opinion of this Court, is per se bad in the eyes of law. Such material therefore, can be used even though not an evidence in stricto sensu, but information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers under Section 319 Cr.P.C. 5. Non-summoning of respondent no.2-Jugnesh, in the considered opinion of this Court, is per se bad in the eyes of law. The impugned order warrants interference, inasmuch as, the name of respondent no.2 was already there in the FIR and, moreover, PW1 to PW4 have already implicated her in the commission of alleged crime. The said witnesses have already been cross-examined before the trial court. This Court cannot act as a trial court and cannot decide as to whether the respondent no.2 has committed the said crime or not? The same is the domain of the trial court, but suffice will it be to say at this stage that there is a prima facie case for summoning the respondent no.2 in exercise of jurisdiction under Section 319 Cr.P.C. 6. The Criminal Revision is, therefore, allowed. The court below is requested to pass a suitable order for summoning the respondent no.2 in the light of the latest decision rendered by Hon'ble Apex Court in Hardeep Singh's case (supra) and the aforesaid discussion made by this Court in the body of the judgment. 7. At this stage, learned counsel for the respondent no.2 stated that Maya (complainant) is in the habit of moving such applications and, therefore, the court below be directed to decide the bail application of the respondent no.2 at an earliest possible, if her summoning order is passed. 8. Considering the facts of the case, the innocuous prayer made by learned counsel for the respondent no.2 is allowed. It is provided that if respondent no.2 is summoned and she surrenders before the court below, her bail application shall be decided as expeditiously as possible without unreasonable delay.