Dashrath Singh Chauhan vs The State Of Madhya Pradesh
2021 Latest Caselaw 7220 MP

                                          {1}


     IN THE HIGH COURT OF JUDICATURE FOR MADHYA
                  PRADESH : JABALPUR


Present :- Hon'ble Shri Justice Satyendra Kumar Singh

                        M.Cr.C. No. 49326/2021
                        Dashrath Singh Chauhan
                                 Versus
                   State of Madhya Pradesh & another
Shri Anil Khare, learned senior counsel assisted by Shri Abhinav
Shrivastava, learned counsel for the petitioner.
Ms. Vineeta Agrawal, learned Panel Lawyer for the respondent/State
__________________________________________________________


                               ORDER

( 10.11.2021)

This petition under Section 482 of Cr.P.C. has been filed for

quashing of the order dated 16/09/2021 passed by the Court of Special

Judge, POCSO Act, Mauganj, District Rewa in Special Case No.47/2020

whereby the application filed by the Special Public Prosecutor under

Section 319 of Cr.P.C. for impleading the petitioner as an accused for the

offences punishable under Section 109 of Indian Penal Code and Section

17 of POCSO Act has been allowed and it was directed that the petitioner

shall also be tried along with the accused Aakash Bangali.

2. The factual matrix of the case for just and proper adjudication of

this petition is that the complainant vide letter dated 02/10/2019 informed

Police Station, Naigarhi, Distt. Rewa (MP) that his minor daughter

prosecutrix aged about 17 years was missing since 01/10/2019. On {2}

receipt of the said information, missing report bearing registration

No.0065/2019 and subsequently FIR bearing Crime No.302/2019 for the

offence punishable under Section 363 of IPC was registered against the

unknown persons. During investigation, on 05/102/2019 at about 21.00

hours petitioner-Dashrath Singh Chauhan, Assistant Sub Inspector of

Police at the instance of accused-Aakash Bangali recovered the

prosecutrix from Panch Jyoti Shakti Teerth Aashram, Beohari. She was

taken from the said Aashram to Police Station, Naigarhi in the presence

of a lady Nirmala, member of Raksha Samitee of Police Station, Naigarhi

along with other Police officials and independent witnesses by Bolero car

(Taxi) driven by Anil Kumar Patel. Her statement under Section 161 of

Cr.P.C. were recorded on the same day wherein she stated that she went to

the Aashram on her own will. On 06/10/2019 at about 4.55 a.m. she

was handed over to her mother in the presence of her father and uncle.

Thereafter on 07/10/2019 she made a complaint to I.G., Police, that she

was kidnapped and raped by the accused-Aakash Bangali. Her statement

under Section 161 of Cr.P.C. were again recorded on 07/10/2019 wherein

she made some allegations against the petitioner also and stated that

when she was being brought from Aashram to the Police Station,

Naigarhi, Distt. Rewa and was in the custody of Police, accused

committed rape upon her in the vehicle.

3. After completion of investigation, charge sheet was filed against

the accused for the offences punishable under Sections 363, 366, 376 of {3}

IPC and also under Section 3 & 4 of POCSO Act, in which during trial

statement of prosecutrix and other prosecution witnesses were recorded.

After recording of the statement of the prosecutrix, Special Public

Prosecutor filed an application under Section 319 of Cr.P.C. for

impleading petitioner as an accused for the offences punishable under

Section 109 of Indian Penal Code and Section 17 of POCSO Act, which

was allowed vide order dated 16/09/2021 as mentioned in para-1 of the

order and bailable warrant has been issued to him.

4. Learned senior counsel for the petitioner submits that learned

Special Court erred in law as well as facts while allowing the application

preferred by the Special Public Prosecutor under Section 319 of Cr.P.C. to

proceed against the petitioner and to implead him as an accused in this

case. Prosecutrix, in her first statement recorded on 05/10/2019 under

Section 161 of Cr.P.C. at Police Station, Naigarhi by lady constable

Sushila whose video recording was also done in accordance with proviso

to Sub-section (3) of Section 161 of Cr.P.C., did not state anything

against the petitioner. Prosecutrix, on being tutored by her parents in

order to falsely implicate accused-Aakash Bangali in a rape case, made

allegations against the petitioner also, so as to circumvent the statement

given by her on 05/10/2019. There are various contradictions in the

statement of prosecutrix recorded under Sections 161 and 164 of Cr.P.C.

The driver of Bolero Car (Taxi) Anil Kumar Patel and lady Nirmala,

member of Raksha Samitee, who were admittedly went with the {4}

petitioner, have specifically stated that prosecutrix was with them from

the time when she was found in the Aashram. Anil Kumar Patel has

stated that he was present all the time near his Taxi while Nirmala has

stated that she did not leave the prosecutrix at all and was with her till the

time she was handed over to her mother.

5. Learned senior counsel for the petitioner further submits that it is

settled position of law that while invoking the powers under Section 319

of Cr.P.C., the decree of satisfaction should be more than a prima facie

case as exercised at the time of framing of charge but short of satisfaction

to an extent that evidence, if not rebutted, may lead to conviction of a

person sought to be added as an accused. Prosecutrix merely stated that

she tried to inform the petitioner about the incident but she was not

allowed to speak by him. Thus, in the above circumstances, no case is

made out under Section 109 of IPC and also under Section 17 of POCSO

Act against the petitioner. The trial is at its fag end and all the key

witnesses have already been examined by the prosecution, thus, at this

stage, the Special Public Prosecutor could not have filed an application

under Section 319 of Cr.P.C. as the same could have filed at the initial

stage of the trial. Learned senior counsel for the petitioner has placed

heavy reliance upon the judgments of Hon'ble Apex Court in the cases of

Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 &

Ramesh Chandra Srivastava, Criminal Appeal No.990/2021. Hence,

it is prayed that by allowing this petition, the impugned order dated {5}

16/09/2021 passed by learned Special Court, Mauganj, Distt. Rewa may

be set aside.

6. On the other hand, learned counsel for the respondent/State

supports the impugned order dated 16/09/2021 and submits that looking

to the act of the present petitioner, offences under Section 109 of IPC and

Section 17 of the POCSO Act are made out against the present petitioner

as being a Police Officer, he extended assistance to the accused in

committing heinous offence of rape upon the prosecutrix who was minor

at the time of incident. Hence, it is prayed that the petition may be

dismissed.

7. Having considered the rival submissions specially the law laid

down by Hon'ble Apex Court in the case of Hardeep Singh (supra) on

the point of degree of satisfaction for invoking the powers under Section

319 of Cr.P.C. Paras-105 and 106 of the said judgment read as follows:-

"105 Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.

{6}

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 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused."

8. In the present case, the petitioner has been impleaded as an accused

merely on the basis of the statement of prosecutrix (PW-1) recorded

during trial and also the statement recorded during investigation under

Sections 161 and 164 of Cr.P.C.. Prosecutrix (PW-1) has stated in her

statement that when she was being brought from the Aashram to Police

Station, Naigarhi, the petitioner stopped at his house and all the persons

went into his house for tea and she was alone in the vehicle i.e. Bolero

Car. During that period accused-Aakash Bangali along with one Patel {7}

came there and committed rape upon her in the said vehicle. She further

stated that when she tried to inform, the petitioner about the act of the

accused, the petitioner interrupted her and directed her to sit silent and

told everyone that she went to Aashram on her own will.

9. It is true that above assertion of the prosecutrix finds corroboration

of the statement recorded under Sections 161 and 164 of Cr.P.C., but it is

also true that she did not say anything against the petitioner in her first

statement recorded on 05/10/2019 under Section 161 of Cr.P.C. whose

video recording was also done. For the sake of arguments, if the entire

assertions made by the prosecutrix is accepted in toto, even then the same

cannot be said to be sufficient to lead conviction of the petitioner under

Section 109 of IPC or Section 17 of POCSO Act as perosecutrix (PW-1)

no where stated that the petitioner intentionally assisted or abetted the

accused for committing rape upon her. As argued by learned senior

counsel for the petitioner, it is settled position of law that while invoking

the power under Section 319 of Cr.P.C., the decree of satisfaction should

be more than a prima facie case as exercised at the time of framing of

charge. On the basis of allegations made by prosecutrix, it cannot be said

that any such type of case is made out against the petitioner, therefore,

considering the standard fixed by Hon'ble Apex Court for invoking the

powers under Section 319 of Cr.P.C. and also considering other facts and

circumstances of the case specifically the statement of driver of Bolero

Car (Taxi) Anil Kumar Patel, lady Nirmala, member of Raksha Samitee {8}

who were admittedly went with the petitioner and were present at the

time of incident, prima facie, complicity of the petitioner has not been

proved.

14. In view of aforesaid discussions, this petition is allowed. The

impugned order dated 16/09/2021 passed by Special Judge, POCSO Act,

Mauganj, Distt. Rewa is hereby quashed.

(Satyendra Kumar Singh) Judge

ts.

TULSA SINGH 2021.11.10 18:15:59 +05'30'