Criminal Revision No. 1173 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1173 of 2008 Date of decision:- 4.12.2008 Santro ...petitioner Versus State of Haryana and another ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Rakesh Gupta, Advocate, for the petitioner. Mr. Yashwinder Singh, AAG, Haryana for the State. Mr. Gorakh Nath, Advocate for respondent No.2 RANJIT SINGH J. Prosecutrix, Santro has filed this revision petition impugning order passed by Additional Sessions Judge-III, Jind. FIR No. 123 dated 19.9.2001 was lodged by the petitioner at police station Pillu Khera alleging that on 18.9.2001 at about 9.30 a.m. when she was present in her house, accused Tribuwan and Jagdishanad entered into her house and caught hold of the petitioner and started misbehaving with her. They allegedly removed salwar of the prosecutrix and tried to commit rape on her. She raised an alarm which attracted Ramesh and Satbir to the spot. On the basis of a statement made by the prosecutrix-petitioner FIR under Sections 354, 452, 376/511 IPC was registered. After investigation, the prosecution found that there was lack of evidence against Jagdishanad and challan was presented only against Tribhuwan under the said sections. Sessions Judge, Jind, however, found that no offence under Sections 376/511 IPC was made Criminal Revision No. 1173 of 2008 2 out and accordingly sent the case back for trial to Judicial Magistrate, Safidon. Petitioner appeared before the Court and gave her evidence and thereafter the prosecution moved an application under Section 319 Cr.P.C. to summon Jagdishanad. This application was allowed by the Magistrate on 16.11.2007. Jagdishanad challenged this order by way of revision and the Additional Sessions Judge-III, Jind has now set aside the order vide which the Jagdishanad was summoned. Prosecutrix has accordingly challenged the said order by filing the revision petition. Learned counsel for the petitioner has referred to the evidence given by the petitioner-prosecutrix, copy of which is placed on record as Annexure P-1. The relevant evidence so far as Jagdishanad is concerned reads as under: “In between Tribhuvan s/o Jagdish r/o Fatehpur and Baba Jagdishanand r/o Chuhar Majra forcibly entered my house and finding me alone, they bolted the door and both caught hold of me forcibly and tried to rape me. Jagdishnand caught hold of me from my arms and pushed me on the earth and Tribhuvan forcibly opened my salwar and tried to rape me. I tried to save myself and made a noise and on hearing my noise my brother- in-law Ramesh s/o Ratna and Satbir s/o Lakha r/o Morkhi came there. On seeing them Tribhuvan accused, who is present in the court, immediately put on his paint and succeed in running away. “ Learned counsel for the petitioner contends that the evidence as noted above satisfied the test and standard laid down by the Hon'ble Supreme Court for adding any additional accused. Mr. Gorakhnath, Criminal Revision No. 1173 of 2008 3 Advocate, however, very vehemently contends that the Court was justified in interfering with the order summoning Jagdishanad, as evidence of prosecutrix did not receive any support from her brother-in-law (husband's brother). He further says that one of the eyewitnesses name Satbir was given up. The Court has taken into consideration the evidence of witnesses who have not supported the case of prosecution to interfere in the impugned order summoning the respondent Jagdishanad . The Court has not attached the requisite importance to the evidence given by Smt. Santro Devi, petitioner which is reproduced above. The Court could be expected to take notice that for an offence of this nature the Supreme Court has gone to the extent of holding that the evidence of prosecutrix alone in such cases would be enough if it can be implicitly relied upon. There is no indication from the order which would create doubt on the version of the prosecutrix. The version of the prosecutrix more appropriately could not have been doubted as other witnesses have turned hostile. The Court was bound to see and appreciate if the evidence given by the prosecutrix-petitioner would satisfy the test as laid down by the Supreme Court or not. In support of his submission, learned counsel for the petitioner has drawn my attention to the case of Rajendra Singh Versus State of U.P. and anr. 2007 (3) RCR (Criminal) 1021. It has been held in this case that the court need not be satisfied that the accused has committed an offence and even if it appears that he has committed an offence, that would be sufficient to summon the person as an additional accused. It would be of advantage to notice to the observation of the Hon'ble Supreme Court in this regard, which are as under:- Criminal Revision No. 1173 of 2008 4 “15. Section 319 (1), which is relevant for our purpose reads: “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.” As I see it, the words are plain and the meaning clear. When in the course of the enquiry or trial, it appears to the court from the evidence that a person, not arrayed as an accused, appears to have committed any offence for which that person could be tried together with the accused, the court may proceed against that person. Surely, it must appear to the Court from the evidence that someone not arrayed as an accused, appears to have committed an offence. Be it noted, the Court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is 'may' and not 'shall'. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression 'appears' indicates an application of Criminal Revision No. 1173 of 2008 5 mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not. With great respect, I see no reason to describe the power as an extraordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the section only gives power to the court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. I see no reason to curtail this power of the court to do justice to the victim and to the society. It appears to me that it is left to the judicial discretion of the court, judicially trained, to decide to proceed or not to proceed against a person in terms of Section 319 of the Code.” As has been observed by the Supreme Court the legislature apparently has left discretion to the trial Court to summon or not to summon additional accused while exercising power under Section 319 Cr.P.C. This power, has observed by the Supreme Court, cannot be termed as extraordinary power which is to be exercised only under the compelling reasons or the circumstances. The Court is given a judicial discretion which is to be exercised by the judicially trained mind and accordingly it would basically be for a Court deciding such an application which has to take a decision on the basis of law and the evidence. Mr. Gorakh Nath, on the other hand has referred to the case of Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr., 2000 (2) RCR (Criminal) 75 to say that only suspicion is not sufficient and person can be joined as an additional accused if there is a reasonable Criminal Revision No. 1173 of 2008 6 prospect of convicting him of the offence charged. In fact number of judgment passed by the Hon'ble Supreme Court has been referred to in the case of Rajendra Singh (supra) ultimately to hold that exercise of power under Section 319 Cr.P.C. is to be left to the Court trying offence based on the evidence that comes before it. It is also observed that the Court must be satisfied about a condition precedent for the exercise of power under Section 319 of the Code, since what are available under Section 319 is basically to be exercised by the Court trying the case. It is better to leave the exercise on this discretion to the Court concerned by pointing out the relevant consideration which must weigh with the Court and taken into consideration while exercising such power. In Michael Machado's case (supra) the Hon'ble Supreme Court has laid down well noticed and frequently observed test about hope of prospect of conviction on the basis of evidence which has generally been followed by various Courts. The view is now fairly settled that this is not an extraordinary power and is meant to be exercised. The observation in this regard in the case of Municipal Corporation of Delhi versus Ram Kishan Rastogi and others 1983 (1) RCR Criminal 73 and in the case of Rajender Singh (supra) can be noticed with advantage. It is for the trial Court now to see whether the evidence given by the prosecutrix and as noticed would satisfy the test of 'hope of prospect of a conviction'. Upon that would depend whether the Court would exercise the power to summon respondent Jagdishanad as an additional accused. This exercise apparently has not been done by the Court while passing the impugned order. The order is thus set aside. The case would go back to the revisional Court to redo the exercise in the light of the law laid down by the Supreme Court as noticed above. Parties would be at Criminal Revision No. 1173 of 2008 7 liberty to make their submissions on the basis of fact as well as law and thereupon the Court would pass an order afresh. The present petition is accordingly disposed of. December 04, 2008 ( RANJIT SINGH ) rts JUDGE