Merely because Investigating Agency found accused to be innocent, cannot be ground to decline his summoning as additional accused u/s 319 CrPC: P&H HC

Read Order: Raj Hans and Another v. State of Haryana

Monika Rahar

Chandigarh, March 2, 2022: While dealing with a revision petition, the Punjab and Haryana High Court has held that merely because the Police agency declared an accused to be innocent after investigation, the Court is not barred from summoning such an accused under Section 319 Cr.P.C. The Court further held that the Court is to merely derive a prima facie satisfaction from the material collected and evidence led qua the complicity of a person sought to be summoned under Section 319 Cr.P.C. 

The Bench of Justice Manjari Nehru Kaul added that if the legal position was otherwise, it would have amounted to the powers of a Court under Section 319 Cr.PC being rendered redundant and the very purpose and object of Section 319 Cr.PC, in the circumstances, would stand defeated because the prime object behind Section 319 Cr.PC is to ensure that no person, who prima facie appears guilty escapes trial in relation to that crime.

The petitioners were challenging the order of the Addl. Sessions Judge, Charkhi Dadri vide which they were ordered to be summoned as an additional accused to face trial pursuant to an application filed under Section 319 Cr.PC in case an FIR registered under Sections 365, 376(2)(n), 376-D and 506 IPC and Section 3(2)(va) of SC/ST (Prevention of Atrocities) Act, 1989. 

The prosecution case, in a nutshell, was that the prosecutrix went missing in 2019 and as a result of the complaint made by her father, an FIR was registered under Section 346 IPC. Subsequently, in January 2021, the prosecutrix was recovered from Churu Railway Station, Rajasthan. She stated in her Section 164 Cr.PC. that when she came out of her house, Naveen (the main accused already sheeted and facing trial) along with three others forced her into a vehicle and gang-raped her under the influence of liquor. 

Thereafter, Naveen took her to Chandigarh, followed by Mathura, Pune (via someone else) and Delhi (on multiple occasions). Then, one day he, along with others (the present petitioners) took the prosecutrix to an isolated place; gang-raped her and abandoned her there. The prosecutrix then boarded a train to Churu and eventually her family members were informed by the Police. In the light of the statement so made by the prosecutrix, under Section 164 Cr.PC, the offences mentioned above were added in the FIR.

The petitioners’ counsel while referring to the FIR and the prosecutrix’s statement under Section 164 Cr.PC vehemently contended that Naveen was the main accused, who already was facing trial, and no role whatsoever was attributed to the petitioners in the disappearance of the prosecutrix. The Counsel submitted that a highly improbable story was brought forth by the prosecutrix just to harass and humiliate the petitioners as they were close relatives of accused Naveen. 

It was further submitted that even before the Legal Aid Counsellor, the prosecutrix only stated that Naveen accompanied by three other unknown boys committed rape upon her. The Counsel then added that strangely the prosecutrix improved upon her statement under Section 164 Cr.P.C. recorded of the same day, by naming the petitioners and alleging gang rape against them. It was also argued that the Police rightly found the petitioners innocent and that the trial court gravely erred in summoning the petitioners to face trial as an additional accused under Section 319 Cr.P.C. 

Regarding the argument of the petitioners’ counsel on the alleged improvement that the prosecutrix made in her statement recorded under Section 164 Cr.P.C., the Court opined that it lacked substance as the prosecutrix categorically levelled allegations of rape against accused Naveen and both the petitioners by stating that after she disembarked from the train at Satnali, she was received by all of them who then took her to an abandoned place, committed rape upon her and threw her into the bushes. Moreover, the Court opined that it was a matter to be appreciated by the Trial Court. 

Further, the court emphasized that a statement made under Section 164 Cr.PC stands at a much higher pedestal than what may have been stated by the prosecutrix before the Legal Aid Counsellor. Also, the Court opined that the statement of the prosecutrix stated to have been made before Legal Aid Counsellor can at best be kept at par with the statement of a witness recorded under Section 161 Cr.PC and can be used for the limited purpose of impeaching the credibility of the prosecutrix during her cross-examination.

Additionally, the Court was of the view that the term “Evidence” used in Section 319 Cr.PC contemplated evidence of witnesses given before the Court during the trial and thus, the statement made before the Legal Aid Counsellor would not fall within the ambit of the term “Evidence”. Moreover, the Court asserted that while stepping into the witness box as PW-1, the prosecutrix reiterated her allegations of gang rape against the accused including the petitioners in consonance with her statement recorded under Section 164 Cr.P.C.

Next, addressing the petitioners’ submission that the petitioners were innocent as their names under Column No. 2 during the investigation, the Court opined that this argument was devoid of any merit as merely because the investigating agency found the petitioners to be innocent could not be a ground to decline their summoning as an additional accused under Section 319 Cr.P.C. 

The Court thus was not inclined to invoke its revisional jurisdiction to set aside the impugned order as prima facie there existed sufficient material to show the complicity of the petitioners in the commission of the offences for which they were now summoned to face trial as additional accused under Section 319 Cr.P.C.

Thus, the Petition was dismissed.