* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 22nd May, 2013 Pronounced on: 29th May, 2013 + CRL.M.C. 481/2013 HIRA PRASAD MISHRA Petitioner Through: Mr. [ENTITY], Advocate with Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate & Mr. [ENTITY], Advocate versus STATE NCT OF DELHI Respondent Through: Mr. [ENTITY], Standing Counsel for the State with Mr. [ENTITY], Advocate, Ms. [ENTITY], Advocate & Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate for the Complainant. + CRL.M.C. 628/2013 KIRAN Petitioner Through: Mr. [ENTITY], Advocate with Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate & Mr. [ENTITY], Advocate versus STATE NCT OF DELHI & ANR. Respondent Through: Mr. [ENTITY], Standing Counsel for the State with Mr. [ENTITY], Advocate, Ms. [ENTITY], Advocate & Mr. [ENTITY], Advocate Crl.M.C. 481/2013, 628/2013, 521/2013 & 608/2013 Page 1 of 11 Mr. [ENTITY], Advocate for the Complainant. + CRL.M.C. 521/2013 MAHABAL MISHRA Petitioner Through: Mr. [ENTITY], Advocate with Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate & Mr. [ENTITY], Advocate versus STATE NCT OF DELHI Respondent Through: Mr. [ENTITY], Standing Counsel for the State with Mr. [ENTITY], Advocate, Ms. [ENTITY], Advocate & Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate for the Complainant. + CRL.M.C. 608/2013 URMILA MISHRA Petitioner Through: Mr. [ENTITY], Advocate with Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate & Mr. [ENTITY], Advocate versus STATE NCT OF DELHI & ANR. Respondent Through: Mr. [ENTITY], Standing Counsel for the State with Mr. [ENTITY], Advocate, Ms. [ENTITY], Advocate & Mr. [ENTITY], Advocate Crl.M.C. 481/2013, 628/2013, 521/2013 & 608/2013 Page 2 of 11 Mr. [ENTITY], Advocate for the Complainant. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT
[ENTITY], J.
1. These four Crl.M.C. lay challenge to the order dated 04.02.2013 passed by the learned Additional Sessions Judge (ASJ) whereby the Petitioners were ordered to be summoned for the offences punishable under Sections [SECTION] of [ACT]. Petitioners [ENTITY] and [ENTITY] were additionally also ordered to be summoned for the offence punishable under [SECTION] of [ACT].
2. On a complaint dated 08.11.2006 a case under [SECTION] [ACT] being FIR No.399/2006 dated 08.11.2006 was registered in Police Station (PS) Delhi Cantt. on a complaint made by [ENTITY] father of the prosecutrix. The sum and substance of the complaint made by earlier said [ENTITY] is that on 07.11.2006 at about 3:50 P.M. his daughter 'S' had left home on her scooty DL-9SP-2838 to take tuitions. She was accompanied by her friend [ENTITY]. She had not returned home. The Complainant raised suspicion against one [ENTITY] son of [ENTITY] (subsequently charge sheeted for the offence punishable under Sections [SECTION]. During the course of investigation the prosecutrix 'S' was recovered. The police proceeded to get her statement recorded under [SECTION] [ACT] As far as Petitioners are concerned, the prosecutrix told the learned Metropolitan Magistrate ('MM') that when she was brought back to Delhi she was kept in the house belonging to [ENTITY] and [ENTITY] situated at Mahavir Enclave. She was further kept in the main road office at Mahavir Enclave belonging to [ENTITY]. The prosecutrix stated to the learned 'MM' that Smt. [ENTITY] wife of [ENTITY] and her daughter (whose name the prosecutrix was not aware) came to meet her. They asked her to get married to [ENTITY]. The prosecutrix informed the learned 'MM' that the two (ladies) threatened the prosecutrix that nobody could reach there and if she did not agree, they will get the marriage performed forcibly.
3. A report under [SECTION] [ACT] was presented to the Court of learned 'MM' wherein accused [ENTITY] was kept in column no.4 and produced in custody whereas it was stated that there was not sufficient evidence against accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. They were, therefore, kept in column no.2.
4. From the order dated 12.04.2007 passed by the learned 'MM' it appears that summons were ordered to be issued against the other accused persons (kept in column no.2) also. By an order dated 26.07.2007, the learned 'MM' observed that further investigation was not being properly carried out by the IO. A supplementary chargesheet was filed and as is evident from the order dated 12.11.2008 passed by the learned ACMM accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were shown as the accused being prosecuted whereas the names of [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were kept in column no.2. The IO was called for clarification on the next date of hearing, that is, 15.12.2008 when the Complainant was present and the Complainant's request for summoning the earlier said four accused persons kept in column no.2 was declined. The learned ACMM vide his order dated 15.12.2008 held as under:-
" One supplementary chargesheet was filed by the IO against accused persons namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY] and name of four accused persons namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were kept in column No.2. As per chargesheet, accused [ENTITY], [ENTITY] and [ENTITY] were on bail while accused [ENTITY] was never arrested in this case. If contents of both the chargesheets and documents attached with the same are perused, it is evident that there is sufficient material available on record against four accused persons whose name is mentioned in column No.4 in the supplementary chargesheet. These accused are namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. As far as names of accused persons in column No.2 of the supplementary chargesheet are concerned, certainly there is reference at places regarding them but the material available on record is not sufficient to proceed further against them at this stage. They can very well be summoned if concrete and additional evidence is adduced against them during trial "
5. After the case was committed to the Court of Sessions, the complainant again moved an application for summoning of the four Petitioners herein. The learned ASJ referred to the judgment in [ENTITY] v. State of Punjab (1998) 7 SCC 149 and opined that the stage for summoning additional accused, if any, will be only as provided under [SECTION] [ACT] The application for summoning the four Petitioners was, therefore, dismissed.
6. The complainant filed [CASE NUMBER] praying for the setting aside of the order dated 15.12.2008 passed by the learned ACMM and the order dated 21.07.2010 passed by the learned ASJ. The [CASE NUMBER] came to be disposed of by the learned Single Judge of this Court. The learned Single Judge relied heavily on the report of the Supreme Court in [ENTITY] (supra) and referred to the judgment in [ENTITY] v. State of Bihar 1993 (2) SCC 16; [PRECEDENT]; [PRECEDENT] and [PRECEDENT] and the orders passed by the learned ASJ and the learned ACMM were set aside and the matter was remitted back to the Court of Session to examine the provision under which the accused persons kept in column no.2 in the supplementary chargesheet can be summoned and then to proceed as per law. Since the order dated 27.02.2012 is the bone of contention between the parties which lead to the passing of the impugned order dated 04.02.2013 by the learned ASJ, para 13 of the order dated 27.02.2012 passed by the learned Single Judge is extracted hereunder:-
"13. From my above discussion, I am of the view that miscarriage of justice has resulted and that calls for invoking jurisdiction of this court under [SECTION] [ACT]. In view of all this, the petition is allowed and the impugned orders of learned ASJ as also of ACMM are set aside. The matter is remitted back to the court of Sessions to examine as to the provisions under which the aforesaid accused persons kept in Column No. 2 in supplementary charge sheet can be summoned and then proceed further as per law. The parties may appear before the Sessions Court on 06th March, 2012 at 2.15 p.m."
7. The learned ASJ in his order dated 04.02.2013 dealt with the statements under [SECTION] and [SECTION] [ACT] made by the prosecutrix. Paras 7 to 10 of the impugned order are extracted hereunder:-
"7. It has been stated by the prosecutrix in her statement u/[SECTION] [ACT] that she had been kidnapped by accused [ENTITY] on 7.11.2006 with the assistance of his maternal uncle and some other persons, he took her to Bulandshahar. Accused [ENTITY] kept her there in the house of his maternal uncle and later on accused [ENTITY] and [ENTITY] also reached there at 2 am in the night. On 8.11.2006 she was brought to Patiala House Court, kept in a chamber and was made to write certain letters against her parents which they posted. Thereafter she was again being taken to Bulandshahar but on the way they decided against it and came back to Delhi. Night had set in by that time and they kept her in the house of [ENTITY], brother of [ENTITY]. She was confined there for about 3 to 4 days and thereafter she was kept in the office of [ENTITY] on the main road, Mahavir Enclave for the next three or four days. During that period, wife and daughter of [ENTITY] approached her and asked her to marry accused [ENTITY] or otherwise she would be forced to do so and nobody would come to that place to save her. She has stated that family of [ENTITY] fully supported the accused [ENTITY]. Thereafter they brought her to Court and did not permit her to go home despite her entreaties.
8. The statement of the prosecutrix u/[SECTION] [ACT] is also on similar lines.
9. Evidently, therefore, there are specific allegations against accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] that they provided support and assistance to the other accused in confining the prosecutrix in the office of [ENTITY] and in the office [ENTITY] with a view that she would succumbed to their pressure and get ready to marry accused [ENTITY]. There are also allegations of criminal intimidation against accused [ENTITY] and [ENTITY].
10. At the stage of determining whether or not to issue a summon to an accused, the court has to gain satisfaction from the material on record that a prima facie case is made out for proceeding against the accused and not whether there is sufficient ground for his conviction. The court is not even required to weigh the evidence meticulously at this stage as if it were the trial court. The question whether the accused might have a defence has to be left to be decided at the conclusion of the Trial Court. In other words, whether there is prima facie evidence, the process of issuance cannot be refused on the ground that the persons to be proceeded against might have a defence. "
8. It is urged by the learned counsel for the Petitioners that the learned Single Judge while relying on [ENTITY] (supra) set aside the order passed by the learned ASJ and remitted the matter back to the Court of Sessions to examine the supplementary chargesheet if the accused kept in column no.2 could be summoned and then proceed as per law. The learned counsel for the Petitioners urge that in view of the three Judge Bench decision in [ENTITY] what was expected of the learned ASJ was to make a reference to the High Court if he was of the view that there were sufficient grounds for proceeding against any of the accused kept in column no.2 and then the High Court (on the basis of reference) could have directed the Magistrate to take cognizance. It is urged that the learned ASJ acted illegally in straightaway summoning the Petitioners.
9. On the other hand, the learned counsel for the Respondent No.2 (the complainant) urges that the impugned order passed by the learned ASJ is clearly in terms of the directions issued by the order dated 27.02.2012 passed by the learned Single Judge in [CASE NUMBER]. The only remedy available to the Petitioners if they had any grievance against the order dated 27.02.2012 was to file an Appeal before the Supreme Court. It is urged that interference in the order dated 04.02.2013 passed by the learned ASJ would amount to review of the order dated 27.02.2012 passed by the learned Single Judge which is not permissible.
10. In view of the three Judge Bench decision of the Supreme Court in [ENTITY] which specifically overruled [ENTITY] it is no longer res integra that once the Sessions Court take cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of accused is after reaching the evidence collected under [SECTION] of the [ACT]
11. Although another three Judge Bench decision in Dharampal & Ors. v.
State of Haryana (2004) 13 SCC 9 echoed its doubt about the correctness of the decision in [ENTITY] and made a reference to the Larger Bench; the reference has not yet been answered and thus [ENTITY] continues to hold the field. In [ENTITY] after laying down that cognizance against an additional accused can be taken when some evidence is produced on record under [SECTION] [ACT], the Supreme Court observed that there can be exceptional cases where the Sessions Court could make a reference to the High Court and the High Court in its inherent powers could direct the committing Magistrate to rectify the committal order by issuing process to left out accused. Para 20 to 24 of the report in [ENTITY] are extracted hereunder:-
20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under [SECTION] of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.
21. But then one more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to a miscarriage of justice), is the Sessions Court completely powerless to deal with such a contingency? One such situation is cited by the learned Judges through an illustration narrated in [ENTITY] case [PRECEDENT] as follows: (SCC pp. 29-30, para 15) "Where two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challaned by the police, the Judge may find it difficult to charge B for the murder of X with the aid of [SECTION] [ACT].
If he cannot summon A, how does he frame the charge against B?"
22. Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of the accused due to some inadvertence or omission. Should the court wait until evidence is collected to get that person arraigned in the case?
23. Though such situations may arise only in extremely rare cases, the Sessions Court is not altogether powerless to deal with such situations to prevent a miscarriage of justice. It is then open to the Sessions Court to send a report to the High Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left-out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes.
24. For the foregoing reasons, we find it difficult to support the observations [ENTITY] case [PRECEDENT] that powers of the Sessions Court under [SECTION] of the Code to take cognizance of the offence would include the summoning of the person or persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record."
12. Thus, what was laid down by the learned Single Judge in his order dated 27.02.2012 was to proceed further as per law. In my considered opinion, if the learned ASJ was convinced that the case was such where a reference as stated in [ENTITY] was justified, he could make a reference so that the High Court could direct the committing Magistrate to take cognizance against the left out accused persons. I am not inclined to accept the contention raised on behalf of Respondent No.2 that interference with the order dated 04.02.2013 passed by the learned ASJ would amount to review of the order dated 27.02.2012 passed by the learned Single Judge.
13. In view of above discussion the order dated 04.02.2013 passed by the learned ASJ cannot be sustained; the same is accordingly set aside with the direction to the learned ASJ to proceed in accordance with law laid down in [ENTITY]. If learned ASJ finds that it is a case where a reference should be made against any or all the Petitioners, he shall be entitled to do so.
14. The Petitions are disposed of in above terms.
15. Pending Applications also stand disposed of.
([ENTITY]) JUDGE MAY 29, 2013 vk