* THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 05.03.2012
+ Crl.M.C. 1272/2011
KITABO ..... Petitioner
Through: Mr. Zafar Sidique, Advocate
Versus
STATE GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms. Fizani Husain, APP
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition assails order dated 27th November, 2010 of learned ASJ, Dwarka District Courts whereupon the application of the petitioner under section 319 Cr. P.C. for summoning the accused namely Deepu @ Deepmala, Vijay, Kamlesh, Nanhe, Tare and Santosh was dismissed.
2. On the complaint made by the complainant/PW-1 Smt. Kitabo, FIR No. 59/2003 was registered at P.S. Inderpuri against Nathu Ram Sarita Devi, Neeraj Kumar and Ajay under section 323/506/34 IPC. Though the names of the persons, sought to be impleaded, was mentioned in the complaint, but the police did not charge-sheet them. Crl. M.C.1272/2011 Page 1 of 4
3. The petitioner/complainant filed application under section 319 Cr. P.C. before the ASJ which came to be dismissed vide the impugned order. I have heard the learned counsel for the petitioner and learned APP and perused the records.
4. It may be noted that section 319 Cr. P.C. empowers a Court to proceed against any person not shown to be an accused, if it appears from the evidence that said person has also committed an offence for which he can be tried together with the other accused persons. The Section is of a wide amplitude leaving it to the discretion of the Court to add or not new accused persons during the trial. Undoubtedly, the discretion being judicious needs to be exercised with great caution, having regard to the facts of the case. Whenever there would exist sufficient material and compelling reasons, the Trial Court will not hesitate to exercise the discretion to add a person as an accused even if he was not shown/named by the police in the array of the accused persons.
5. In the present case, it would be seen that the names of the aforesaid four persons sought to be impleaded were known to the complainant even at the time of incident on 7th June, 2002 and the filing of the complaint before the Magistrate. She also knew that in the FIR, their names were Crl. M.C.1272/2011 Page 2 of 4 not included along with the other co-accused persons and so was in the charge sheet filed on 13th February 2005. The charges against the other four accused persons were framed by the Court on 4 th May, 2007. The statements of the petitioner/complainant and her Son Rocky (now deceased) were recorded on 7th September, 2007. From all these, it could be manifest that the petitioner was well aware about the alleged involvement of the aforesaid persons from the date of incident itself. The petitioner has chosen to remain silent and did not seek impleadment of the aforesaid persons till 25th November, 2010 when the application was filed under section 319 Cr.P.C. Having remained silent for about 8 years and not chosing to take any action for the impleadment of the aforesaid persons, it appears that the petitioner was not sure about her own case qua the aforesaid persons. No explanation has been given by the petitioner to justify the delay in filing such an application at the stage of nearing completion of trial. Now It is also informed that trials in both the cross FIRs, involving the petitioner and her family members and the accused persons have come to end in the Trial Court with all the parties being convicted and released on probation. The main case against the accused persons has come to end and the same having become final, no Crl. M.C.1272/2011 Page 3 of 4 meaningful purpose would be served in otherwise allowing re-trial of the said FIR impleading new accused persons.
6. For all these reasons, I do not find any illegality or impropriety in the impugned order of the learned ASJ. The petition has no merit and is hereby dismissed.
M.L. MEHTA (JUDGE) MARCH 05, 2012 awanish Crl. M.C.1272/2011 Page 4 of 4