Delhi High Court
Urmila Mishra vs State Nct Of Delhi & Anr. on 29 May, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd May, 2013
Pronounced on: 29th May, 2013
+ CRL.M.C. 481/2013
HIRA PRASAD MISHRA ..... Petitioner
Through: Mr. Nishit Kush, Advocate with
Mr. Shyam S. Sharma, Advocate,
Mr. Sanjeev K. Baliyan, Advocate &
Mr. Rajesh Kaushik, Advocate
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Pawan Sharma, Standing Counsel for
the State with Mr. Sahil Mongia,
Advocate, Ms. Priyanka Kapoor,
Advocate & Mr. Mohd. Adnan, Advocate
Mr. Amit Khanna, Advocate for the
Complainant.
+ CRL.M.C. 628/2013
KIRAN ..... Petitioner
Through: Mr. Mohit Mathur, Advocate with
Mr. Shyam Sharma, Advocate,
Mr. Badar Mehmood, Advocate,
Mr. Pankaj Verma, Advocate,
Mr. Shishir Mathur, Advocate &
Mr. Taurif Akhter, Advocate
versus
STATE NCT OF DELHI & ANR. ..... Respondent
Through: Mr. Pawan Sharma, Standing Counsel for
the State with Mr. Sahil Mongia,
Advocate, Ms. Priyanka Kapoor,
Advocate & Mr. Mohd. Adnan, Advocate
Crl.M.C. 481/2013, 628/2013, 521/2013 & 608/2013 Page 1 of 11
Mr. Amit Khanna, Advocate for the
Complainant.
+ CRL.M.C. 521/2013
MAHABAL MISHRA ..... Petitioner
Through: Mr. Nishit Kush, Advocate with
Mr. Shyam S. Sharma, Advocate,
Mr. Sanjeev K. Baliyan, Advocate &
Mr. Rajesh Kaushik, Advocate
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Pawan Sharma, Standing Counsel for
the State with Mr. Sahil Mongia,
Advocate, Ms. Priyanka Kapoor,
Advocate & Mr. Mohd. Adnan, Advocate
Mr. Amit Khanna, Advocate for the
Complainant.
+ CRL.M.C. 608/2013
URMILA MISHRA ..... Petitioner
Through: Mr. Mohit Mathur, Advocate with
Mr. Shyam Sharma, Advocate,
Mr. Badar Mehmood, Advocate,
Mr. Pankaj Verma, Advocate,
Mr. Shishir Mathur, Advocate &
Mr. Taurif Akhter, Advocate
versus
STATE NCT OF DELHI & ANR. ..... Respondent
Through: Mr. Pawan Sharma, Standing Counsel for
the State with Mr. Sahil Mongia,
Advocate, Ms. Priyanka Kapoor,
Advocate & Mr. Mohd. Adnan, Advocate
Crl.M.C. 481/2013, 628/2013, 521/2013 & 608/2013 Page 2 of 11
Mr. Amit Khanna, Advocate for the
Complainant.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. These four Crl.M.C. lay challenge to the order dated 04.02.2013 passed
by the learned Additional Sessions Judge (ASJ) whereby the Petitioners
were ordered to be summoned for the offences punishable under Sections
346/366 read with Section 34 of IPC. Petitioners Urmila Misra and Kiran
were additionally also ordered to be summoned for the offence
punishable under Section 506/34 of IPC.
2. On a complaint dated 08.11.2006 a case under Section 363 IPC being FIR
No.399/2006 dated 08.11.2006 was registered in Police Station (PS)
Delhi Cantt. on a complaint made by Satish Kumar father of the
prosecutrix. The sum and substance of the complaint made by earlier
said Satish Kumar is that on 07.11.2006 at about 3:50 P.M. his daughter
'S' had left home on her scooty DL-9SP-2838 to take tuitions. She was
accompanied by her friend Rajni. She had not returned home. The
Complainant raised suspicion against one Pradeep Sehrawat son of
Surender Sehrawat (subsequently charge sheeted for the offence
punishable under Sections 363/366/368/376 IPC). During the course of
investigation the prosecutrix 'S' was recovered. The police proceeded to
get her statement recorded under Section 164 Cr.P.C. As far as
Petitioners are concerned, the prosecutrix told the learned Metropolitan
Magistrate ('MM') that when she was brought back to Delhi she was kept
in the house belonging to Mahabal Mishra and Heera Mishra situated at
Mahavir Enclave. She was further kept in the main road office at
Mahavir Enclave belonging to Mahabal Mishra. The prosecutrix stated to
the learned 'MM' that Smt. Urmila Mishra wife of Mahabal Mishra and
her daughter (whose name the prosecutrix was not aware) came to meet
her. They asked her to get married to Pradeep. The prosecutrix informed
the learned 'MM' that the two (ladies) threatened the prosecutrix that
nobody could reach there and if she did not agree, they will get the
marriage performed forcibly.
3. A report under Section 173 Cr.P.C. was presented to the Court of learned
'MM' wherein accused Pradeep was kept in column no.4 and produced in
custody whereas it was stated that there was not sufficient evidence
against accused Devender, Sunil, Surender and Sonu. They were,
therefore, kept in column no.2.
4. From the order dated 12.04.2007 passed by the learned 'MM' it appears
that summons were ordered to be issued against the other accused persons
(kept in column no.2) also. By an order dated 26.07.2007, the learned
'MM' observed that further investigation was not being properly carried
out by the IO. A supplementary chargesheet was filed and as is evident
from the order dated 12.11.2008 passed by the learned ACMM accused
Surender, Sunil, Satender @ Sonu Dagar and Devener Singh were shown
as the accused being prosecuted whereas the names of Kanshi Ram,
Mahabal Mishra, Urmila Mishra and Kiran were kept in column no.2.
The IO was called for clarification on the next date of hearing, that is,
15.12.2008 when the Complainant was present and the Complainant's
request for summoning the earlier said four accused persons kept in
column no.2 was declined. The learned ACMM vide his order dated
15.12.2008 held as under:-
".....One supplementary chargesheet was filed by the IO against
accused persons namely Surinder, Sunil, Satender @ Sonu Dagar
and Devender Singh and name of four accused persons namely
Kanshi Ram, Mahabal Mishra, Urmila Mishra and Kiran were
kept in column No.2. As per chargesheet, accused Sunil, Surinder
and Satender were on bail while accused Devender Singh was
never arrested in this case. If contents of both the chargesheets
and documents attached with the same are perused, it is evident
that there is sufficient material available on record against four
accused persons whose name is mentioned in column No.4 in the
supplementary chargesheet. These accused are namely Surinder,
Sunil, Satender @ Sonu Dagar and Devender Singh. As far as
names of accused persons in column No.2 of the supplementary
chargesheet are concerned, certainly there is reference at places
regarding them but the material available on record is not
sufficient to proceed further against them at this stage. They can
very well be summoned if concrete and additional evidence is
adduced against them during trial......."
5. After the case was committed to the Court of Sessions, the complainant
again moved an application for summoning of the four Petitioners herein.
The learned ASJ referred to the judgment in Ranjit Singh v. State of
Punjab (1998) 7 SCC 149 and opined that the stage for summoning
additional accused, if any, will be only as provided under Section 319
Cr.P.C. The application for summoning the four Petitioners was,
therefore, dismissed.
6. The complainant filed Crl.M.C. 2601/2010 praying for the setting aside
of the order dated 15.12.2008 passed by the learned ACMM and the order
dated 21.07.2010 passed by the learned ASJ. The Crl.M.C. 2601/2010
came to be disposed of by the learned Single Judge of this Court. The
learned Single Judge relied heavily on the report of the Supreme Court in
Ranjit Singh (supra) and referred to the judgment in Kishun Singh v. State
of Bihar 1993 (2) SCC 16; Nisar & Anr. v. State of U.P. JT 1995 (1) SC
135; Raj Kumar & Ors. v. State 1999 (1) JCC (Delhi) 144 and Anita
Dahiya v. State 74 (1998) Delhi Law Times 785 and the orders passed by
the learned ASJ and the learned ACMM were set aside and the matter
was remitted back to the Court of Session to examine the provision under
which the accused persons kept in column no.2 in the supplementary
chargesheet can be summoned and then to proceed as per law. Since the
order dated 27.02.2012 is the bone of contention between the parties
which lead to the passing of the impugned order dated 04.02.2013 by the
learned ASJ, para 13 of the order dated 27.02.2012 passed by the learned
Single Judge is extracted hereunder:-
"13. From my above discussion, I am of the view that miscarriage
of justice has resulted and that calls for invoking jurisdiction of
this court under Section 482 CrPC. In view of all this, the petition
is allowed and the impugned orders of learned ASJ as also of
ACMM are set aside. The matter is remitted back to the court of
Sessions to examine as to the provisions under which the aforesaid
accused persons kept in Column No. 2 in supplementary charge
sheet can be summoned and then proceed further as per law. The
parties may appear before the Sessions Court on 06th March, 2012
at 2.15 p.m."
7. The learned ASJ in his order dated 04.02.2013 dealt with the statements
under Sections 161 and 164 Cr.P.C. made by the prosecutrix. Paras 7 to
10 of the impugned order are extracted hereunder:-
"7. It has been stated by the prosecutrix in her statement u/s
161 Cr.P.C. that she had been kidnapped by accused Pradeep
Sehrawat on 7.11.2006 with the assistance of his maternal uncle
and some other persons, he took her to Bulandshahar. Accused
Pradeep kept her there in the house of his maternal uncle and later
on accused Sunil and Devender also reached there at 2 am in the
night. On 8.11.2006 she was brought to Patiala House Court, kept
in a chamber and was made to write certain letters against her
parents which they posted. Thereafter she was again being taken
to Bulandshahar but on the way they decided against it and came
back to Delhi. Night had set in by that time and they kept her in
the house of Heera Mishra, brother of Mahabal Mishra. She was
confined there for about 3 to 4 days and thereafter she was kept in
the office of Mahabal Mishra on the main road, Mahavir Enclave
for the next three or four days. During that period, wife and
daughter of Mahabal Mishra approached her and asked her to
marry accused Pradeep or otherwise she would be forced to do so
and nobody would come to that place to save her. She has stated
that family of Mahabal Mishra fully supported the accused
Pradeep. Thereafter they brought her to Court and did not permit
her to go home despite her entreaties.
8. The statement of the prosecutrix u/s 164 Cr.P.C is also on
similar lines.
9. Evidently, therefore, there are specific allegations against
accused Mahabal Mishra, Urmila Mishra, Kiran and Heera
Mishra that they provided support and assistance to the other
accused in confining the prosecutrix in the office of Heera Mishra
and in the office Mahabal Mishra with a view that she would
succumbed to their pressure and get ready to marry accused
Pradeep. There are also allegations of criminal intimidation
against accused Urmila Mishra and Kiran.
10. At the stage of determining whether or not to issue a summon
to an accused, the court has to gain satisfaction from the material
on record that a prima facie case is made out for proceeding
against the accused and not whether there is sufficient ground for
his conviction. The court is not even required to weigh the
evidence meticulously at this stage as if it were the trial court. The
question whether the accused might have a defence has to be left to
be decided at the conclusion of the Trial Court. In other words,
whether there is prima facie evidence, the process of issuance
cannot be refused on the ground that the persons to be proceeded
against might have a defence. ..."
8. It is urged by the learned counsel for the Petitioners that the learned
Single Judge while relying on Ranjit Singh (supra) set aside the order
passed by the learned ASJ and remitted the matter back to the Court of
Sessions to examine the supplementary chargesheet if the accused kept in
column no.2 could be summoned and then proceed as per law. The
learned counsel for the Petitioners urge that in view of the three Judge
Bench decision in Ranjit Singh what was expected of the learned ASJ was
to make a reference to the High Court if he was of the view that there
were sufficient grounds for proceeding against any of the accused kept in
column no.2 and then the High Court (on the basis of reference) could
have directed the Magistrate to take cognizance. It is urged that the
learned ASJ acted illegally in straightaway summoning the Petitioners.
9. On the other hand, the learned counsel for the Respondent No.2 (the
complainant) urges that the impugned order passed by the learned ASJ is
clearly in terms of the directions issued by the order dated 27.02.2012
passed by the learned Single Judge in Criminal M.C. 2601/2010. The
only remedy available to the Petitioners if they had any grievance against
the order dated 27.02.2012 was to file an Appeal before the Supreme
Court. It is urged that interference in the order dated 04.02.2013 passed
by the learned ASJ would amount to review of the order dated 27.02.2012
passed by the learned Single Judge which is not permissible.
10. In view of the three Judge Bench decision of the Supreme Court in Ranjit
Singh which specifically overruled Kushan Singh it is no longer res
integra that once the Sessions Court take cognizance of the offence
pursuant to the committal order the only other stage when the Court is
empowered to add any other person to the array of accused is after
reaching the evidence collected under Section 319 of the Cr.P.C.
11. Although another three Judge Bench decision in Dharampal & Ors. v.
State of Haryana (2004) 13 SCC 9 echoed its doubt about the correctness
of the decision in Ranjit Singh and made a reference to the Larger Bench;
the reference has not yet been answered and thus Ranjit Singh continues
to hold the field. In Ranjit Singh after laying down that cognizance
against an additional accused can be taken when some evidence is
produced on record under Section 319 Cr.P.C., the Supreme Court
observed that there can be exceptional cases where the Sessions Court
could make a reference to the High Court and the High Court in its
inherent powers could direct the committing Magistrate to rectify the
committal order by issuing process to left out accused. Para 20 to 24 of
the report in Ranjit Singh are extracted hereunder:-
20. Thus, once the Sessions Court takes cognizance of the offence
pursuant to the committal order, the only other stage when the
court is empowered to add any other person to the array of the
accused is after reaching evidence collection when powers under
Section 319 of the Code can be invoked. We are unable to find any
other power for the Sessions Court to permit addition of new
person or persons to the array of the accused. Of course it is not
necessary for the court to wait until the entire evidence is collected
for exercising the said powers.
21. But then one more question may survive. In a situation where
the Sessions Judge notices from the materials produced but before
any evidence is taken, that any other person should also have
necessarily been made an accused (without which the framing of
the charge would be defective or that it might lead to a
miscarriage of justice), is the Sessions Court completely powerless
to deal with such a contingency? One such situation is cited by the
learned Judges through an illustration narrated in Kishun Singh
case [(1993) 2 SCC 16 : 1993 SCC (Cri) 470] as follows: (SCC
pp. 29-30, para 15)
"Where two persons A and B attack and kill X and it is
found from the material placed before the Judge that the
fatal blow was given by A whereas the blow inflicted
by B had fallen on a non-vital part of the body of X. If A is
not challaned by the police, the Judge may find it difficult to
charge B for the murder of X with the aid of Section 34 IPC.
If he cannot summon A, how does he frame the charge
against B?"
22. Another instance can be this. All the materials produced by the
investigating agency would clearly show the positive involvement
of a person who was not shown in the array of the accused due to
some inadvertence or omission. Should the court wait until
evidence is collected to get that person arraigned in the case?
23. Though such situations may arise only in extremely rare cases,
the Sessions Court is not altogether powerless to deal with such
situations to prevent a miscarriage of justice. It is then open to the
Sessions Court to send a report to the High Court detailing the
situation so that the High Court can in its inherent powers or
revisional powers direct the committing Magistrate to rectify the
committal order by issuing process to such left-out accused. But
we hasten to add that the said procedure need be resorted to only
for rectifying or correcting such grave mistakes.
24. For the foregoing reasons, we find it difficult to support the
observations inKishun Singh case [(1993) 2 SCC 16 : 1993 SCC
(Cri) 470] that powers of the Sessions Court under Section 193 of
the Code to take cognizance of the offence would include the
summoning of the person or persons whose complicity in the
commission of the trial can prima facie be gathered from the
materials available on record."
12. Thus, what was laid down by the learned Single Judge in his order dated
27.02.2012 was to proceed further as per law. In my considered opinion,
if the learned ASJ was convinced that the case was such where a
reference as stated in Ranjit Singh was justified, he could make a
reference so that the High Court could direct the committing Magistrate
to take cognizance against the left out accused persons. I am not inclined
to accept the contention raised on behalf of Respondent No.2 that
interference with the order dated 04.02.2013 passed by the learned ASJ
would amount to review of the order dated 27.02.2012 passed by the
learned Single Judge.
13. In view of above discussion the order dated 04.02.2013 passed by the
learned ASJ cannot be sustained; the same is accordingly set aside with
the direction to the learned ASJ to proceed in accordance with law laid
down in Ranjit Singh. If learned ASJ finds that it is a case where a
reference should be made against any or all the Petitioners, he shall be
entitled to do so.
14. The Petitions are disposed of in above terms.
15. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
MAY 29, 2013
vk
