CRIMINAL MISCELLANEOUS No.24009 OF 2007 ---------- In the matter of an application under section 482 of the Code of Criminal Procedure. --------- ARBIND THAKUR son of late Baleshwar Thakur, Resident of village-Baheri, P.S.-Baheri, Dist.-Darbhanga, presently posted as Sub.Divisional Police Officer, Jamalpur, Dist.-Munger. …… …….Petitioner Versus 1.STATE OF BIHAR 2.Kanti Devi wife of Sri Brahamanand Prasad Resident of village-Kasdeura Bangra, P.S.- Maharajganj, Dist.-Siwan ...... …….Opp.Parties -------- For the petitioner: Mr. Chitranjan Sinha, Sr.Advocate Mr.Satish Chandra Jha, Advocate For Opp. Party No.2: Mr.R.V.Singh and Mr.Alok Kumar Rahi, Advocates For the State: Mrs. Indu Bala Pandey, Addl.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar,J. The sole petitioner, who at the relevant time was Deputy Superintendent of Police, Maharajganj, has approached this court while invoking its inherent jurisdiction under section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 23.1.2006 passed by learned Additional Sessions Judge-VI, Siwan in Sessions Trial No.366 of 2002. By the said order learned Trial Judge has allowed the petition filed under section 319 of the Code of Criminal Procedure which was preferred by the Public Prosecutor for summoning the petitioner to face trial along with other accused persons. 2. Short fact of the case is that earlier a complaint was filed by the mother of the victim alleging therein that her daughter was kidnapped by the accused persons. The said 2 complaint was numbered as Complaint Case No. 835 of 1997 which was filed on 9.9.1997. The said complaint was subsequently referred to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure and as such first information report vide Maharajganj P.S.Case No. 96 of 1997 was registered on 24.9.1997 for the offences under Sections 366, 366(A) and 120(B)/34 of the Indian Penal Code against four named accused persons and some unknown persons. After registering first information report the police started investigation. Subsequently on 12.10.1997 the victim girl, who was minor herself appeared before Maharajganj Police station. On 13.10.1997 she was got medically examined and on the same day she was produced before the Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure (in short “Cr.P.C.”). In her statement under Section 164 Cr.P.C., the victim girl disclosed that two accused persons namely, Kashi Nath Singh and Nageshwar Singh had kidnapped her and kept her in their captive for about 1¼ months. During that period she was raped. Anyhow, she escaped from the clutches of the accused persons. She arrived at the police station and it appears that after recording her statement as per her request, the learned Magistrate directed the police to hand over the victim to her parents. She, thereafter, was kept in police station and on 14.10.1997 she was produced before the learned Magistrate and thereafter she was handed over to her parents. It further appears that during investigation, the statement of victim girl was recorded under Section 164 Cr.P.C. 3 on three occasions. In her second statement recorded under section 164 Cr.P.C., she disclosed the name of additional accused persons. However, she has not whispered anything against the petitioner. Subsequently on 25.11.1997, the statement of the victim girl under Section 164 Cr.P.C. was recorded on third occasion and thereafter the name of the petitioner as well as Officer-in-Charge of Maharajganj police station has surfaced in the case. It was alleged by the victim that she was unauthorisedly detained in the police station. She was threatened to make statement as per the wishes of the Officer-in-charge and during her stay at police station, the Officer-in-charge of Maharajganj Police station as well as the Deputy Superintendent of Police (the petitioner) raped her. It further appears that the investigation was kept pending for a long period and in the year 2002 chargesheet was submitted against one accused Prem Sagar Rai and the investigation against other accused persons was kept pending. After submission of the chargesheet, the case was committed to the court of sessions and during the trial mother, (the complainant/informant) was examined as P.W.1 and the victim was examined as P.W.2. After the witnesses were discharged, a petition was filed by the Public Prosecutor under Section 319 Cr.P.C. for summoning the petitioner as well as other accused persons to face trial. The learned trial judge after being satisfied that prima facie there was sufficient material to proceed against the other accused persons including the petitioner, allowed the petition of the learned Public Prosecutor and summoned the accused persons including the 4 petitioner. 3. Aggrieved with the order of summoning dated 23.1.2006, the petitioner has approached this Court by filing the present petition which was admitted on 22.10.2008. While admitting the case it was directed that further proceeding in the court below so far as the petitioner is concerned shall remain stayed. 4. At the time of hearing, Mr.Rana Vikram Singh, learned counsel has appeared on behalf of opposite party no.2, who is informant/complainant of the case. 5. Mr.Chitranjan Sinha, learned senior Advocate appearing on behalf of the petitioner while challenging the impugned order, has argued that during investigation itself, the victim had given three contradictory statements under Section 164 Cr.P.C. It has been submitted that in her first statement which was recorded under Section 164 Cr.P.C., she had given clear picture regarding commission of offence against two accused persons. It was submitted that during investigation the victim had given a confessional statement before the Investigating Officer and she had disclosed that even her father had committed sexual intercourse with her and thereafter the petitioner being the Deputy Superintendent of Police of the area directed for arresting the father of the victim and subsequently he was arrested. In second statement recorded under Section 164 Cr.P.C. the victim again did not disclose the complicity of the petitioner. However, after the arrest of the father of the victim, the victim changed her statement 5 and came out with a new case on allegation of committing rape by this petitioner as well as Officer-in-charge of Maharajganj Police station. It was further submitted that the learned trial judge while allowing the petition filed under Section 319 of the Code of Cr.P.C. has completely failed to appreciate that earlier on two occasions also the victim in her statement under Section 164 Cr.P.C. had not disclosed regarding complicity of the petitioner and in a mechanical manner, the trial judge has summoned the petitioner to face trial. Learned counsel for the petitioner has referred to a judgment of the Supreme Court reported in 2009 (16) SCC 785 (Hardeep Singh Vrs. State of Punjab and others). It was submitted that without completion of cross-examination the learned trial judge was not required to act upon the deposition of the victim and summon the petitioner. It was submitted that the power under Section 319 Cr.P.C. is to be exercised sparingly and not as a matter of course. It was further submitted that it is a peculiar case in which a petition under section 319 of the Cr.P.C. was filed for summoning other accused persons also but the learned trial Judge has only taken note of the allegation against the petitioner and the concerned officer incharge. The learned trial Judge has further noticed that investigation against other accused persons was still pending and, as such, it was not advisable for the learned Judge to proceed with the case against the petitioner and the concerned Officer Incharge without completion of entire investigation. Accordingly, it has been prayed to set aside the impugned order. 6 6. Mr.Rana Vikram Singh, learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioner. It was submitted by Mr.Singh that forcibly in the police station the officer-in-charge had taken thumb impression of the victim on certain paper on the plea that it was required for her medical examination. However, the police had prepared a so called confessional statement of the victim made before the police over which thumb impression of the victim was shown. It has been vehemently denied by learned counsel appearing for opposite party no.2 regarding her disclosure that she was raped by her father. Learned counsel for opposite party no.2 has referred to annexure-7 which is supervision note which was prepared by the Deputy Superintendent of Police. It was submitted that on earlier occasion also the victim had sent letter to Human Rights Commission which was noticed by the Deputy Superintendent of Police in his supervision note. It has been submitted that the Superintendent of Police has also taken note of unauthorized detention of the victim in the police station and directed for departmental action against concerned Officer-in- charge. Learned counsel has also submitted that the concerned Superintendent of Police had himself recorded statement of the victim in which she has categorically stated regarding involvement of this petitioner as well as the Officer-in-charge. On the aforesaid ground it has been submitted that the learned trial judge has rightly summoned the petitioner to face trial. 7. Mrs.Indu Bala Pandey, learned Additional Public 7 Prosecutor appearing on behalf of the State submits that the victim was a minor girl and on threat she was compelled to make first statement under Section 164 Cr.P.C. as per the dictate of the Officer-in- charge and as such it is a fit case in which this court may not interfere with the impugned order. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Annexure-8 is a copy of deposition of the victim which was recorded in Sessions Trial No.366 of 2002. On perusal of annexure-8 it is evident that the victim after her examination-in-chief was extensively cross- examined. It has come in her deposition that the petitioner was directly involved in committing rape with her while she was in police custody. After going through the materials available on record, the court is satisfied that by the impugned order the learned Magistrate has rightly summoned the petitioner which requires no interference by this court that too while exercising power under section 482 of the Cr. P.C. Time without number it has been held that power under section 482 of the Cr.P.C. is to be exercised sparingly and in rarest of rate cases. The petitioner has not made out an exceptional case for exercising inherent jurisdiction in his favour. 9. Accordingly, I do not find any merit in the present petition and the petition stands rejected. 10. In view of rejection of this petition, interim order of stay dated 22.10.2008 stands automatically vacated. 11. Since the matter remained pending before this 8 court for a long time and there was also an order of stay, it is desirable to direct the court below to proceed with the case expeditiously so that the case may come to its logical end without any further delay. Patna High Court The 15th November, 2010 Md.S./NAFR ( Rakesh Kumar, J.)