Sneha vs State Of Kerala
2024 Latest Caselaw 16684 Ker

Kerala High Court

Sneha vs State Of Kerala on 12 June, 2024

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
                       CRL.MC NO. 5014 OF 2024
        CRIME NO.743/2017 OF KATTOOR POLICE STATION, THRISSUR
 AGAINST THE ORDER/JUDGMENT DATED 18.10.2023 IN SC NO.509 OF 2018
          OF FAST TRACK SPECIAL COURT, (POCSO) IRINJALAKUDA
PETITIONER/ACCUSED NO.2:

           SNEHA
           AGED 38 YEARS
           W/O. GOKULDAS, PUTHEZHATH HOUSE,
           EDATHIRUTHY DESOM, MATHILAKAM P.O,
           THRISSUR DISTRICT, PIN - 680685

           BY ADV T.U.SUJITH KUMAR



RESPONDENTS/STATE & DEFACTO COMPLAINANT:

    1      STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA,
           ERNAKULAM DISTRICT, PIN - 682031

    2      THE INSPECTOR OF POLICE
           IRINJALAKUDA POLICE STATION,
           IRINJALAKUDA P.O,
           THRISSUR DISTRICT,
           PIN - 680121

    3      XXXXX
           XXXXX
           XXXXX

           SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
12.06.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 5014 OF 2024
                                  2



                                                                 CR
                           ORDER

Dated this the 12th day of June, 2024

This Criminal Miscellaneous Case has been filed under

Section 482 of the Code of Criminal Procedure, (hereinafter

referred to as 'Cr.P.C' for short) and the prayers herein are

as under:

"(i) Set aside the Annexure-A5 order dated 18.10.2023 in Crl.M.P.No.772/2023 in S.C.No.509/2018 of the Court of the Special Judge, Fast Track Special Court, Irinjalakuda.

(ii) Pass such other order or direction, which are deemed fit and proper on the facts and circumstances of the case and in the interest of justice."

2. Heard the learned counsel for the petitioner and

the learned Public Prosecutor.

3. The learned counsel for the petitioner argued at

length to convince this Court that the trial court wrongly

implicated the petitioner as second accused without sufficient

materials, in a case where, at the time of initial investigation CRL.MC NO. 5014 OF 2024

and further investigation, the Police exonerated the 2 nd

accused in this crime though her name was initially stated in

the FIR. It is argued that the learned Special Judge, relying

on the evidence of PW1 and her version in the First

Information Statement, marked as Ext.P1, invoked the power

under Section 319 of Cr.P.C. According to the learned

counsel for the petitioner, the entire case generated on the

basis of the rivalry, arose out of a lesbian relationship

between the 2nd accused and the defacto complainant and

when the relationship was strained, the 1st accused and the

2nd accused got arrayed as accused in this crime. However,

on investigation, as already pointed out, the 2 nd accused was

not found involved in this crime. According to the learned

counsel for the petitioner, Annexure-A5 order is erroneous

and illegal, warranting interference.

4. Whereas the learned Public Prosecutor opposed

interference in Annexure-A5 order in Crl.M.P.No.772/2023 in

S.C.No.509/2018, whereby the trial court arrayed the CRL.MC NO. 5014 OF 2024

petitioner herein also as the 2nd accused, on the allegation

that she also committed offences punishable under Sections

120B, 377 and 506 read with Section 34 of IPC.

5. On perusal of the order impugned, in paragraph

No.4, the learned Special Judge stated as under:

"4. It is seen that Ext.P1 FI Statement the allegations against has been clearly stated by PW1. She was also reiterated the allegations in the deposition before the court."

The said observations, relying on the evidence of PW1, is the

basis on which the Special Judge had exercised his power

under Section 319 of Cr.P.C.

6. Now the question arises for consideration is, what

are the essentials to be satisfied by the court in order to

apply Section 319 of Cr.P.C. In this connection, extraction of

Section 319 of Cr.P.C is worthwhile and thus the same is

extracted hereunder:

"319. Power to proceed against other persons appearing to be guilty of offence.--

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has CRL.MC NO. 5014 OF 2024

committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under sub-section (1), then--

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced."

7. The scope and ambit of Section 319 of Cr.P.C

have been discussed and dealt with in detail in the

Constitution Bench decision of the Apex Court in Hardeep

Singh v. State of Punjab and Others, reported in 2014 (3)

SCC 92 and held as under:

CRL.MC NO. 5014 OF 2024

"12. S.319 Cr.PC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of S.319 Cr. PC.

13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial."

8. In Hardeep Singh's case (supra), the Apex Court

further held that at the stage of S.319, the Court only has to

see whether a prima facie case is made out although the

degree of satisfaction has to be much higher.

"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.PC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two - Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned.', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons."

CRL.MC NO. 5014 OF 2024

9. In Hardeep Singh's case (supra), in Paragraph

No.106, it stated as under:

"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 S.319 Cr.PC. In S.319 Cr.PC the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' it 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 S.319 Cr.PC to form any opinion as to the guilt of the accused."

10. This ratio was followed in a latest decision of the

Apex Court in Sandeep Kumar v. State of Haryana,

reported in 2023 KHC Online 6742 and held that at the

stage of summoning an accused, there has to be a prima

facie satisfaction of the Court.

CRL.MC NO. 5014 OF 2024

11. In another decision of the Apex Court in

Yashodhan Singh v. Sate of Uttar Pradesh, reported in

2023 KHC Online 6745, the Apex Court considered the

question as to whether an opportunity of being heard to be

provided to a person added as an accused to face trial under

Section 319 of Cr.P.C. and the Apex Court held that when a

person who is not discharged but is to be summoned as per

S.319 Cr.PC on the basis of satisfaction derived by the court

on the evidence on record, no inquiry or hearing is

contemplated. This would clearly indicate that principle of

natural justice and an opportunity of hearing a person

summoned under 319 Cr.PC are not at all contemplated.

Such a right of inquiry would accrue only to a person who is

already discharged in the very same proceeding prior to the

commencement of the trial. This is different from holding that

a person who has been summoned as per S.319 Cr.PC has

a right of being heard in accordance with the principles of

natural justice before being added as an accused to be tried CRL.MC NO. 5014 OF 2024

along with other accused. Merely because in certain

proceedings the persons summoned had been provided an

opportunity of being heard cannot be the same thing as

stating that it is a mandatory requirement or a precondition

that at the time of summoning a person under S.319 of the

Cr.PC, he should be given an opportunity of being heard.

That is not the mandate of law inasmuch as S.319 clearly

uses the expression "to proceed" which means to proceed

with the trial and not to jeopardise the trial at the instance of

the person(s) summoned by conducting a mini trial or a trial

within a trial thereby derailing the main trial of the case and

particularly against the accused who are already facing trial

and who may be in custody. A person who is summoned in

exercise of the power under S.319 Cr.PC cannot hijack the

trial so to say and deviate from its focus and take it to

tangent in order to bolster his own case in a bid to escape

trial. All that is contemplated when a person is summoned to

appear is to ascertain that he is the very person who was CRL.MC NO. 5014 OF 2024

summoned and if any summoned person fails to appear on

the given date. On the appearance of the summoned person,

no procedure of an inquiry or opportunity of being heard is

envisaged before been added as an accused to the list of

accused already facing trial unless such a summoned person

had already been discharged, in which event, an inquiry is

contemplated as discussed above. Thus, the contention that

a summoned person must be given an opportunity of being

heard before being added as an accused to face the trial is

clearly not contemplated under S.319 Cr.PC. It is also

observed by this Court in Hardeep Singh that such a

summoned person can assail a summoning order before a

superior Court and will also have the right of cross examining

the witnesses as well as can let in his defence evidence, if

any.

12. It was further held in Yashodhan Singh's case

(supra) that when a person is summoned as an accused

under Section 319 of Cr.P.C. based on the satisfaction of the CRL.MC NO. 5014 OF 2024

trial court on the evidence that has emerged during the

course of trial, so as to try the person summoned as an

accused along with other accused, the summoned accused

could not seek discharge since the discharge contemplated

under Section 227 of Cr.P.C. is a stage prior to the

commencement of trial and before framing of charge.

13. On reading Section 319 of Cr.P.C along with the

decisions discussed above, it is emphatically clear that on

prima facie satisfaction of the materials let in evidence, the

Court has the power to invoke Section 319 of Cr.P.C and to

add a person as an additional accused and in the absence of

such satisfaction, the court should refrain from exercising

power under Section 319 of Cr.P.C.

14. In the case at hand, the trial court, relied on Ext.P1

First Information Statement put in evidence and also the

evidence given by PW1 stating that on 23.12.2014 while

PW1 and Sneha were cleaning the house, Sneha asked A1

to bring food for them. After having food, PW1 drunk juice CRL.MC NO. 5014 OF 2024

and she became unconscious and then she was subjected to

rape by the first accused and Sneha recorded the video of

sexual assault and threatened her that she would circulate

the same. Further PW1 given evidence that later, Sneha

started blackmailing her and also sexually assaulted her.

15. Thus it appears that the trial court, on the basis of

the materials let in evidence, decided to invoke power under

Section 319 of Cr.P.C to add Sneha as additional 2 nd

accused in this case and the said order is perfectly justifiable.

In view of the matter, the order does not require any

interference.

Accordingly, this petition fails and is dismissed.

Sd/-

A. BADHARUDEEN JUDGE nkr CRL.MC NO. 5014 OF 2024

APPENDIX OF CRL.MC 5014 OF 2024

PETITIONER EXHIBITS

ANNEXURE A1 A TRUE COPY OF THE FIR & FIS DATED 02.09.2017 IN CRIME NO.743/2017 OF THE KATTOOR POLICE STATION, THRISSUR DISTRICT.

ANNEXURE A2 A TRUE COPY OF THE FINAL REPORT DATED 17.05.2018 IN CRIME NO.743/2017 OF THE KATTOOR POLICE STATION, THRISSUR DISTRICT

ANNEXURE A3 A TRUE COPY OF THE JUDGMENT DATED 03.10.2018 IN W.P.(C).NO.38405/2017 OF THIS HON'BLE COURT

ANNEXURE A4 A TRUE COPY OF THE FURTHER INVESTIGATION REPORT DATED 30.01.2019 IN CRIME NO.743/2017 OF THE KATTOOR POLICE STATION, THRISSUR DISTRICT

ANNEXURE A5 A TRUE COPY OF THE ORDER DATED 18.10.2023 IN CRL.M.P.NO.772/2023 IN SC.NO.509/2018 OF THE COURT OF THE SPECIAL JUDGE, FAST TRACK SPECIAL COURT, IRINJALAKUDA

ANNEXURE A6 A TRUE COPY OF THE DEPOSITION OF PW1 DATED 07.07.2023 IN S.C.NO.509/2018.

RESPONDENTS EXHIBITS : NIL