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2019 DIGILAW 2447 (PNJ)

Sandeep @ Sammu v. State of Haryana

2019-09-03

HARI PAL VERMA

body2019
Judgment Mr. Hari Pal Verma, J. (Oral):-Petitioner-Sandeep @ Sammu has filed the present revisionpetition impugning the order dated 07.04.2017 passed by the learnedAdditional Sessions Judge, Palwal, whereby on an application filed by theprosecution under Section 319 Cr.P.C., the petitioner has been summoned toface trial as an additional accused. 2. On 25.04.2017, while issuing notice of motion in the case, thisCourt passed the following order:- “Counsel for the petitioner inter alia contends that the trial Court has summoned the petitioner to face trial along with accused Surender against whom allegations with regard to sexual assault on the prosecutrix have been levelled but there is no such plea raised by the prosecution that the petitioner also committed sexual assault upon the prosecutrix as the only allegation against the petitioner is that he was also present at the spot. Another submission made by counsel is that the trial Court has summoned the petitioner as an additional accused by holding that complicity of the proposed accused is prima facie made out whereas in view of the judgment passed by the Constitution Bench of Hon’ble the Supreme Court of India in Hardeep Singh Vs. State of Punjab and others,: 2014(1) RCR (Criminal) 623 satisfaction to be recorded for summoning an additional accused is more than that of the prima facie case. In addition, it is argued that the trial Court has sought to secure presence of the petitioner through process of non-bailable warrants at the first instance without any summons being issued for his service or recording any satisfaction that the petitioner is absconding and is evading appearance in the Court. In this regard, reference has been made to judgment of Hon’ble the Supreme Court Vikas Vs. State of Rajasthan,  2013(4) RCR (Criminal) 948. Notice of motion for 19.07.2017. In the meantime, operation of the impugned order shall remain stayed.” 3. Counsel for the petitioner has argued that the present case wasregistered on the statement of the prosecutrix wherein she has made astatement that on 06.11.2016 at about 7.30 PM, she went to a shop forfetching shampoo and sugar, but while she was returning, three boys,namely, Surender son of Ami Chand, Sammu (the petitioner herein) andLala, gripped her in the street and dragged her to an abandoned house. Theco-accused Surender gagged her mouth with a piece of cloth and raped her.The co-accused i.e. the petitioner and Lala were present there. Theco-accused Surender gagged her mouth with a piece of cloth and raped her.The co-accused i.e. the petitioner and Lala were present there. However,when her cousin Harish came there, all the three accused ran away fromthere and she was brought back to her house. 4. Counsel for the petitioner has further argued that afterregistration of aforesaid FIR, the case was duly investigated and thepetitioner was found innocent. A bare perusal of the statement of theprosecutrix, so recorded, does reflect that no role has been attributed to thepetitioner as in what manner he has participated in the crime. The statementof the prosecutrix is completely vague. She has made allegation that all thethree accused gripped her and dragged her towards an abandoned house, butin what manner she was gripped by the accused, is totally missing.Moreover, the other accused Surender against whom there are allegation ofcommission of rape, is already facing trial. There is no such material beforethe prosecution so as to seek summoning of the petitioner. 5. Further, the statement of Harish, who is the cousin of theprosecutrix, recorded under Section 161 Cr.P.C. nowhere suggests that thepetitioner was ever present at the scene of alleged occurrence, though he hadstated that his sister (prosecutrix) had told him that Surender has committedrape upon her in an abandoned house. 6. Counsel for the complainant has argued that since the petitionerwas present at the scene of occurrence, his role has been explained by theprosecutrix and, therefore, the petitioner is required to face trial. It is onlyduring trial, it would be established as to whether the petitioner has playedrole in the crime or otherwise. 7. I have heard counsel for the parties. Section 319 of Cr.P.C. reads as under:- “319. 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. (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 subsection (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.” 8. Summoning of an accused is a serious offence. The Hon’bleSupreme Court in Pepsi Foods Limited and another Versus Special Judicial Magistrate and others-(1998) 5 Supreme Court Cases 749 hasheld as under:- “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 9. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 9. In Hardeep Singh Versus State of Punjab, (2014) 3 SCC 92 , ithas been held by the Apex Court that the degree of satisfaction for invokingSection 319 Cr.P.C. should be of more than a prima-facie case, as exercisedat the time of framing of charge, but short of satisfaction to an extent thatevidence, if not rebutted, may lead to conviction of the person sought to beadded as accused. 10. The very FIR which was registered on the statement of theprosecutrix nowhere suggests the role attributed to the petitioner. Thestatement of the prosecutrix is completely silent and rather vague as in whatmanner, either of the accused, gripped her and each of the accused draggedher to an abandoned house, though she has named the other accused,Surender, that he committed rape upon her. Even Harish (cousin brother ofthe prosecutrix) who statedly appeared at the scene of the occurrence, in hisstatement recorded under Section 161 Cr.P.C. has not supported the case ofthe petitioner remotely. 11. In view of above, this Court finds that the impugned order dated07.04.2017 cannot sustain in the eyes of law. 12. Accordingly, the present petition is allowed and the order dated07.04.2017 is hereby set aside.