Jharkhand High Court

Ram Swaroop Singh vs The State Of Jharkhand on 31 January, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                                      1                   Cr.M.P. No. 4175 of 2018



                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 4175 of 2018
            1.   Ram Swaroop Singh
            2.   Mamta Devi                               ... Petitioners
                                       -Versus-
            1.   The State of Jharkhand
            2.   XYZ                                      ... Opposite Parties
                                            -----

            CORAM:       HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                              -----
            For the Petitioners       : Mr. Binod Kumar Dubey, Advocate
            For the State             : Mr. Prabhu Dayal Agarwal, Spl.P.P.
            For O.P. No.2             : None
                                              -----

07/31.01.2024     Notice upon opposite party no.2 has been effected, however, in spite

of adjournment on several dates, nobody has appeared on behalf of

opposite party no.2 and in view of that, this petition is being heard in

absence of opposite party no.2.

2. Heard Mr. Binod Kumar Dubey, learned counsel for the petitioners and

Mr. Prabhu Dayal Agarwal, learned counsel for the State.

3. This petition has been filed for quashing part of the order dated

11.09.2018 passed in POCSO Case No.14/2015 arising out of Mayurhand

P.S. Case No.12/2015, corresponding to G.R. No.271/2015, whereby, these

petitioners have been called upon to face the trial under Section 319 Cr.P.C.,

pending in the Court of the learned Additional Sessions Judge, 1 st at Chatra.

4. The complaint petition was filed by the victim addressed to the

learned Chief Judicial Magistrate, Chatra inter alia stating that her father

and mother are working in the field on daily wage for their livelihood and

since they are having goats in their house, so she use to go to jungle for

grazing of goats. In course of grazing of goats, the accused Rupesh Kumar

Singh committed rape with the complainant and she started screaming then

Rupesh Kumar Singh took out knife and threatened to kill her and told that

if she will raised hallah then he will kill her and do not tell this to anyone as

he is bachelor and he will marry her. The complainant came back and did

not tell to anyone. The the accused committed rape with the complainant

after 15 days while she went to jungle for grazing the goats. Then

complainant started weeping told the accused how she will face the

villagers then accused told that let Lagan come she will marry him and take

her to his house. Then complainant said that this is not her marriage age

then accused told that if your parents will protest then he will not allow her

parent to do work in the village. So she kept mum. It was further stated

that the accused raped the complainant in the jungle while she went with

the goats for grazing. When the complainant became pregnant, she

pressured the accused for marriage, then Rupesh Kumar Singh told that in

the month of Fagun he will marry her in Bhadrakali Temple and he

continued to have physical relationship with the complainant. The accused

gave false pretext of marriage to the complainant. Then finding no other

way out, the complainant informed this to her aunty. Then the entire family

went to the house of Rupesh Kumar Singh and told father of Rupesh Kumar

Singh that his son had raped her daughter by giving false pretext of

marriage and her daughter is carrying 5 months child, we are poor where

will we get my daughter married, then father of accused scolded them and

told to go away. It was also stated that mother of Rupesh Kumar Singh also

misbehaved with the complainant. Then they returned to their house finding

no other way out. On 19.02.2015, she wanted panchayati then the villagers

told that they are influential person who will conduct panchayati, then the

complainant came to Mayurhand Police Station along with her aunty and

told the entire matter to the police officer, then the officer told that no case

can be instituted as some festival is going on in Bhadrakali temple and all

the police personnel are engaged there and come afterward. On

20.02.2015, she went to police station then the police personnel returned

them after scolding them. So she had filed the complaint petition in the

Court. The complaint petition filed by the complainant was sent under

Section 156(3) Cr.P.C. before the concerned Police Station and the case was

instituted for investigation.

5. Mr. Binod Kumar Dubey, learned counsel for the petitioners submits

that the petitioners were named in the FIR and after due investigation, final

form was submitted against one of the accused, namely, Rupesh Kumar

Singh and final form was not submitted against these petitioners. He further

submits that the learned Court has been pleased to take cognizance against

Rupesh Kumar Singh vide order dated 21.05.2015. He submits that the trial

was concluded and the judgment was pronounced on 11.09.2018, whereby,

Rupesh Kumar Singh was convicted and on the same day, the petitioners

have been called to face the trial under Section 319 Cr.P.C. He further

submits that the case is arising under Section 376 of the Indian Penal Code

and Section 4 of the Protection of Child from Sexual Offences Act and

Section 3/4 of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act. He submits that the petitioners are father and mother of

Rupesh Kumar Singh. He also submits that in view of that, in absence of

any evidence, the learned Court has called upon the petitioners to face the

trial under Section 319 Cr.P.C. To buttress this argument, he relied upon the

judgment passed by the Full Bench of the Hon'ble Supreme Court in the

case of Hardeep Singh v. State of Punjab, reported in (2014) 3 SCC

92 and he refers paragraphs 105 and 106 of the said judgment, which

stipulate as under:

"105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."

6. Mr. Prabhu Dayal Agarwal, learned counsel for the State submits that

the learned Court has found some materials against the petitioners and in

view of that, the petitioners have been called upon to face the trial.

7. It is an admitted position that the petitioners were also named in the

FIR. The police has investigated the case, which was registered under

Section 376 of the Indian Penal Code and Section 4 of the Protection of

Child from Sexual Offences Act and Section 3/4 of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, however, the petitioners

have not been sent up for trial and the accused, namely, Rupesh Kumar

Singh has been sent up for trial. The trial was proceeded and the judgment

was dictated and on the same day, Rupesh Kumar Singh has been convicted

by the said order and these petitioners have also been called upon to face

trial under Section 319 Cr.P.C. Thus, it is crystal clear that if cogent reason

was there to proceed against these petitioners and evidences were already

on the record before the learned Court and the learned Court was

competent to call these petitioners prior to delivery of the judgment, which

was not happened. Further in the said order, what material is there to call

upon these petitioners to face the trial, is not disclosed.

8. In view of the judgment passed in Hardeep Singh (supra), it is well

settled that if more than prima facie case is made out and there are chance

of conviction of any of the person, then only that power can be exercised.

9. A reference may be made to the Full Bench judgment of the Hon'ble

Supreme Court in the case of Sukhpal Singh Khaira v. State of Punjab,

reported in (2023) 1 SCC 289, wherein, it has been held in paragraphs in

paragraphs 33 and 34 as under:

"33. In that view of the matter, if the court finds from the evidence recorded in the process of trial that any other person is involved, such power to summon the accused under Section 319CrPC can be exercised by passing an order to that effect before the sentence is imposed and the judgment is complete in all respects bringing the trial to a conclusion. While arriving at such conclusion what is also to be kept in view is the requirement of sub-section (4) to Section 319CrPC. From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. In a case where the learned Sessions Judge exercises the power under Section 319CrPC after recording the evidence of the witnesses or after pronouncing the judgment of conviction but before sentence being imposed, the very same evidence which is available on record cannot be used against the newly added accused in view of Section 273CrPC. As against the accused who has been summoned subsequently a fresh trial is to be held. However while considering the application under Section 319CrPC, if the decision by the learned Sessions Judge is to summon the additional accused before passing the judgment of conviction or

passing an order on sentence, the conclusion of the trial by pronouncing the judgment is required to be withheld and the application under Section 319CrPC is required to be disposed of and only then the conclusion of the judgment, either to convict the other accused who were before the Court and to sentence them can be proceeded with. This is so since the power under Section 319CrPC can be exercised only before the conclusion of the trial by passing the judgment of conviction and sentence.

34. Though Section 319CrPC provides that such person summoned as per sub-section (1) thereto could be jointly tried together with the other accused, keeping in view the power available to the court under Section 223CrPC to hold a joint trial, it would also be open to the learned Sessions Judge at the point of considering the application under Section 319CrPC and deciding to summon the additional accused, to also take a decision as to whether a joint trial is to be held after summoning such accused by deferring the judgment being passed against the tried accused. If a conclusion is reached that the fresh trial to be conducted against the newly added accused could be separately tried, in such event it would be open for the learned Sessions Judge to order so and proceed to pass the judgment and conclude the trial insofar as the accused against whom it had originally proceeded and thereafter proceed in the case of the newly added accused. However, what is important is that the decision to summon an additional accused either suo motu by the court or on an application under Section 319CrPC shall in all eventuality be considered and disposed of before the judgment of conviction and sentence is pronounced, as otherwise, the trial would get concluded and the court will get divested of the power under Section 319CrPC. Since a power is available to the court to decide as to whether a joint trial is required to be held or not, this Court was justified in holding the phrase, "could be tried together with the accused" as contained in Section 319(1)CrPC, to be directory as held in Shashikant Singh [Shashikant Singh v. Tarkeshwar Singh, (2002) 5 SCC 738 : 2002 SCC (Cri) 1203] which in our opinion is the correct view."

10. In view of the above, it appears that mechanically these petitioners

have been called upon to face the trial under Section 319 Cr.P.C. after

pronouncement of the judgment that too without disclosing what are more

than prima facie case against these petitioners.

11. In view of the above facts, reasons and analysis, so far as these

petitioners are concerned, part of the order dated 11.09.2018 passed in

POCSO Case No.14/2015 arising out of Mayurhand P.S. Case No.12/2015,

corresponding to G.R. No.271/2015, whereby, these petitioners have been

called upon to face the trial under Section 319 Cr.P.C., pending in the Court

of the learned Additional Sessions Judge, 1st at Chatra is set aside.

12. So far as conviction of Rupesh Kumar Singh is concerned, that part of

the order is kept intact and this Court has not interfered with that part of