Delhi High Court
Kitabo vs State Govt. Of Nct Of Delhi & Ors. on 5 March, 2012
Author: M. L. Mehta
* 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.
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
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
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
