Delhi High Court
Kasif & Anr vs State on 12 February, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th February, 2013
+ CRL. REV.P. 81/2013
KASIF & ANR ..... Petitioners
Through: Mr. I.A. Alvi with Mr. Anurag Jain,
Advocates
versus
STATE ..... Respondent
Through: Ms. Rajdipa Behura, APP.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. In this Revision Petition, the Revisionist impugns an order dated
06.02.2012 passed by the learned Additional Sessions Judge ("A.S.J.")
whereby his prayer for joint trial with co-accused Mozhar was declined.
2. An FIR No.187/2010 was registered against the Petitioners and one
juvenile, namely, Tohid for an offence punishable under Sections 365/34
and 376(2)(G) of the Indian Penal Code. The juvenile was arrested on
10.10.2010 and an inquiry was separately conducted by the Juvenile
Justice Board with which the present Petition is not concerned. Petitioner
No.1 was arrested on 07.05.2011. Petitioner No.2, however, could not be
arrested. He was declared a proclaimed offender. According to the
averments made in the petition, he was arrested only on 07.11.2012, that
is, after more than two years of the occurrence and 1½ years of the arrest
of Petitioner No.1. A supplementary charge sheet was filed against
Petitioner No.2 on 31.01.2013 and the case was committed to the Court
of Session. It was assigned to the Court of learned Additional Sessions
Judge ("A.S.J.") who was also hearing the Sessions Case against
Petitioner No.1.
3. Petitioners' grievance is that Section 223 of the Code of Criminal
Procedure mandates that the person accused of the same offence
committed in the course of the same transaction must be tried together.
The Petitioner No.2 was arrested almost two years of the incident.
Petitioner No.1 and 2 should be tried together for the same offence which
is alleged to have been committed by them in the course of the same
transaction.
4. The facts of the case are not in dispute. Admittedly, this case relates to
an incident which allegedly took place on 07.10.2010 wherein the
prosecutrix was kidnapped and raped by four boys in a maruti car on the
pretext of dropping her to the house of her brother at Kucha Pandit. It is
the case of the prosecution that the prosecutrix was taken to a room in
some hotel where all the four accused took turn to commit sexual
intercourse with her against her (the prosecutrix's) consent.
5. Juvenile Tohid was the first to be apprehended on 10.10.2010 followed
by Petitioner No.1 who was arrested after another seven months on
07.05.2011. The learned A.S.J. in the impugned order has recorded that
statement of the prosecutrix(PW1) was recorded on 16.01.2012. In view
of the request dated 10.04.2012, the prosecutrix was recalled and cross-
examined on 31.08.2012. Again on an Application under Section 311 of
the Code of Criminal Procedure, the prosecutrix was called for further
cross-examination to a limited extent to confront her with her previous
statement. The learned A.S.J. records that the case as against the
Petitioner No.1 is at the stage of final argument, whereas the case as
against Petitioner No.2 had just been committed to the Sessions Court.
Thus, she declined the request of the Petitioner No.2 for a joint trial with
the Petitioner No.1.
6. It is urged by the learned counsel for the Petitioners that the Petitioners
would be greatly prejudiced on account of separate trials. Reliance is
placed on an unreported order passed by the Supreme Court in Puneet
Suneja & Ors. v. State of NCT of Delhi, (in Special Leave to Appeal(Crl)
No.1523/2009) decided on 11.05.2009. The judgment cited is not
attracted to the facts of the present case. In Puneet Suneja, the Criminal
Appeals arising out of the same judgment were before the High Court.
Some of the Appeals were decided whereas the others were pending. In
the instant case, as stated above, the incident took place on 07.10.2010.
Petitioner No.2 was arrested only on 07.11.2012, that is, after more than
two years of the incident. Since the trial with regard to the Petitioner
No.1 is already over, it would not be in the interest of justice to have a
joint trial of both the Petitioners.
7. It may be mentioned that Section 223 of the Code is an exception to the
general rule that every accused should be separately tried for the offence
for which he has been charged. The Clauses (a) to (g) of Section 223 of
the Code are an exception to the general rule and empowers the Court to
charge certain categories of accused persons and try them together. Since
the case as against the Petitioner No.1 is at the final stage, I am not
inclined to entertain the Revision Petition.
8. The Revision Petition is dismissed in limine.
9. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 12, 2013
pst
