Sonia Kapoor vs State Of Haryana And Others
2025 Latest Caselaw 3406 P&H

Punjab-Haryana High Court

Sonia Kapoor vs State Of Haryana And Others on 19 March, 2025

                                      Neutral Citation No:=2025:PHHC:038489




      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

      130                               CRM-M M No.9780 of 2025 (O&M)
                                        Date of decision: 19.03.2025


SONIA KAPOOR                                                   .... Petitioner
                            Versus
STATE OF HARYANA AND ANOTHER                                   .... Respondents

CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Present :   Mr Vivek Goyal,, Advocate for the petitioner.
            Mr.

            Mr. Apoorv Garg, Sr. D.A.G., Haryana
                                         Haryana.
                 ****

MANISHA BATRA, BATRA J. (oral)

CRM-M-11313 11313-2025

Application is allowed subject to all just exceptions.

Annexures A-1 A and A-22 are taken on record.

Main case

1. Present petition has been filed under Section 528 of Bharatiya

Nagarik Suraksha Sanhita, 2023 (for short-'BNSS') short 'BNSS') seeking quashing of order

dated 14.03.2024 passed by learned Judicial Magistrate 1st Class,, Ambala in

case arising out of FIR No.859 dated 04.12.2020 04.12.2020, registered under Sections

323 and 506 of IPC, at Police Station Ambala City, District Ambala whereby,

an application filed by the petitioner under Section 319 of Cr.P.C. was

dismissed sed as well as the order dated 18.01.202 18.01.2025 passed by learned Additional

Sessions Judge, Ambala in revision petition No. CIS CIS-79 of 2024-CRR, CRR,

whereby, the prayer made by the petitioner for setting aside the order dated

14.03.2024 had also been dismissed.

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2. Brief facts relevant for the purpose of disposal of this petition are

that the aforementioned FIR was registered on the basis of a complaint lodged

by the present petitioner on the allegations allegation that on 15.10.2020, Hema Verma

who is her sister-in-law sister (already arraigned as accused and facing trial) along

with her son Swayam Verma, Verma had come to her house. Swayam Verma had

opened an assault upon her and sexually harassed her and then tried to remove

her clothing while accused Hema Verma caught hold of her hands. She tried to

rescue herself but they continued continued assaulting her. Her husband reached there

and intervened in the matter and got her released. She alleged that Swayam

Verma used to sexually harass her every third day day, on the instigation of his

mother. While alleging that the accused Hema Verma and Swayam Verma had

also extended threat to kill her, she prayed for taking action in the matter.

Investigation proceedings were initiated. The petitioner was medically

examined. Her statement under Section 164 of Cr.P.C. was recorded. Offences

under Sections 354 and 354B of IPC were deleted during the course of

investigation. Swayam Verma was found to be innocent and had not been

arrested and challaned. His name was kept in column No.2 of the challan

report. Hema Verma was arrested and then released on bail. Presently she is

facing trial for commission of offences punishable under Sections 323 and 506

of IPC.

3. The petitioner was examined before learned trial Court as PW PW-1..

After recording her sworn deposition,, she moved an application for

summoning the above-named ab Swayam Verma as additional accused. This

application was dismissed by the learned trial Magistrate vide order dated

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14.03.2024. The petitioner filed revision petition against the order dated

14.03.2024 which as discussed above, above had also been dism dismissed.

4. It is argued by learned counsel for the petitioner that the

impugned orders passed by learned trial Magistrate as well as the Revisional

Court are not sustainable in the eyes of law as while passing the same, learned

Courts below had ignored the fact that there was overwhelming evidence in the

form of testimony of the petitioner to show that the proposed accused had

sexually harassed her and had tried to outrage her modesty on the fateful day.

He had tried to remove her clothing and had sexually harassed her and this fact

was specifically deposed by her in her sworn deposition. Her statement was in

corroboration to the allegations as levelled leve led in the FIR as well as her statement

as recorded under Section 164 of Cr.P.C but while passing the impugned order

dated 14.03.2024, learned trial Magistrate did not take all these facts into

consideration. It is further argued that learned Revisional Court also did not

appreciate the evidence produced on record in a proper manner and gravely

erred in holding that that there was no sufficient eviden evidence on file to show that the

proposed accused was involved in commission of offence alleged against him.

It is, therefore, argued that the impugned orders are liable to be set aside aside,,

petition deserves to be accepted and the proposed accused i.e. respondent No.2

Swayam Verma is liable to be summoned as additional accused.

5. I have heard learned counsel for the petitioner aat considerable

length and have gone through the material place placed on record.

6. At the outset, it would be proper to refer to the provisions of

Section 319 of the Cr.P.C. which read as under:

under:-

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"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 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 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, 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 sub-section section (1), then-

then

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

(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. Having noted the abovementioned provision, it is amply clear that

the power bestowed on the Court is to the effect that in the course of an inquiry

into, or trial of an offence, based on the evidence tendered before the Court, if

it appears to the Court Court that such evidence points to any person other than the

accused who are being tried before the Court, to have committed any offence

and such accused has been excluded in the charge sheet or in the process of

trial till such time, could still be summoned and tried together with the

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accused, for the offence which appears to have been committed by such

persons summoned as additional accused.

8. The issue relating to the powers to be exercised under Section 319

of Cr.P.C. had arisen for detailed consideration consideration in Hardeep Singh v. State of

Punjab,, (2014) 3 SCC 92, wherein the scope, procedure and the stage at which

such power was to be exercised was considered and summarized. It was

that the power under Section 319 Cr.P.C. observed by Hon'ble Supreme Court that

is discretionary and an extraordinary power. It has to be exercised sparingly

and only in those cases where the circumstances of the case so warrants. It is

not to be exercised because the Magistrate or the Sessions Judge, is of the

opinion that some other person person may also be guilty of committing that offence.

Only where strong and cogent evidence occurs against a person from the

material placed before the Court that such power should be exercised and not

in a casual and cavalier manner. It was also observed th that at 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, cross examination, it requires much strong

evidence than mere probability of his complicity. The test that has to be

applied ed is one which is more than prima facie case as has been established 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 should refrain from exercising power under Section 319

of Cr.P.C.

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9. The legal position on the scope and ambit of powers of the Court

under Section 319 of Cr.P.C. has also been summarized by Hon'ble Apex

Court in the case cited as Manjeet Singh v. State oof Haryana and others,,

(2021) 18 Supreme Court Cases 321, wherein it was observed as under:

under:-

"(i)

(i) That while exercising the powers under section section319 CrPC and to summon the persons not charge-sheeted, charge sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished.

(ii) For the empowerment of the courts to ensure that the criminal administration of justice works properly.

(iii) The law has been properly codified and modified by the legislature under CrPC indicating as to how the cou courts rts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law.

(iv) To discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished.

(v) 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.

(vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it.

(vii) The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency.

(viii) Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial.

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(ix) The power under section 319(1) (1) CrPC can be exercised at any stage after the charge-sheet charge sheet is filed and before the pronouncement of judgment, except except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pretrial stage intended to put the process into motion.

(x) The court can exercise the power under section 319 CrPC only after the trial proceeds and commences with the recording of the evidence.

(xi) The word "evidence" in section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents.

(xii) It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under section 319 CrPC is to be exercised and not on the basis of material collected during the investigation.

(xiii) If the Magistrate/court is convinced even on the basis of evidence app appearing in examination-in-chief, chief, it can exercise the power under section 319 CrPC and can proceed against such other person(s).

(xiv) That the Magistrate/court is convinced even on the basis of evidence appearing in examination-in examination in-chief, powers under section 319 CrPC can be exercised.

(xv) That power under section 319 CrPC can be exercised even at the stage of completion of examination-in examination in-chief chief and the court need not to wait till the said evidence is tested on cross cross-examination.

(xvi) Even in a case where the the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet charge sheet has gone, in that case also, the Court is still not powerless powerless by virtue of section 319 CrPC and even those persons named in FIR but not implicated in the charge charge-sheet sheet can be summoned to face the trial, provided during the trial some evidence

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surfaces against the proposed accused (may be in the form of examination chief of the prosecution witnesses). examination-in-chief

(xvii) While exercising the powers under section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial."

10 On applying the above discussed proposition of law to the

peculiar facts and circumstances of the present case,, tt has been noticed that

there was delay of 01 month and 20 days in report reporting the matter to the Police

that has not been explained. Then, as per the allegations in the FIR, the

proposed accused had assaulted the petitioner, tease teased and tried to remove her

clothing in the presence of her husband, father father-in-law law and her son. But in her

sworn deposition, copy of which has been produced on record as Annexure A--

2, she is shown to have stated that firstly the accused Hema Verma had caught

hold of her hands and twisted them, then the proposed accused molested her

and pulled her breast and tore off her clothing. It is apparent from the above

that at the allegations as levelled level ed in the FIR are totally different from the

allegations as levelled level ed in the FIR by the petitioner in her sworn deposition. The

investigating agency had conducted thorough investigation in the matter and

had found Swayam Verma to be innocent and therefore, did not arrest and

challan him for commission of subject offence offences.. The sworn deposition of the

petitioner is not in consonance of the allegations as level levelled ed in the FIR nor they

can be stated to prima facie sufficient to show the involvement of the proposed

accused rather her version that the proposed accused had molested her and

tried to outrage her modesty and tore tor off her clothing in the presen presence of her

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husband, father-in-law father and her son appearss to be highly unnatural and

improbable.

11 Undoubtedly, the trial Court was competent to exercise its powers

under Section 319 of Cr.P.C. on the basis of the statement recorded by the

petitioner, however, from a perusal of her testimony, it is very much explicit

that she has given a version contradictory to the one as mentioned in the FIR.

The evidence vidence so led by her cannot be stated to be stronger and reliable

evidence. The investigating agency had thoroughly investigated the matter and

had found the proposed accused to be innocent. T The he well settled proposition of

law is that the evidence for the purpose of arriving at a finding that there was a

complicity to the proposed accused in the crime crime, must not be more than an

evidence which if goes go unrebutted would led to conviction but it must be more

than prima facie evidence recorded at the time of framing of charge.

Obviously, there is absence of such satisfaction in the evidence led by the

petitioner. As such, in my considered opinion, there was no scope for the trial

Court under Section Secti 319 Cr.P.C. to form any opinion as to guilt of the

proposed accused and in the absence of such satisfaction, it rightly refrained

itself from exercising powers under Sections 319 of Cr.P.C. as the satisfaction

desirable for summoning the proposed accuse accused under this provision was not

found on the record. The learned Revisional Court affirmed the observations as

made by learned trial Court by giving well-reasoned well reasoned findings. No irregularity

or illegality can be stated to have been committed by the Courts bel below ow while

passing the impugned orders. Accordingly, finding no reasonable ground to

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interfere, this Court is inclined to dismiss the petition petition. Hence, the same is

dismissed.

12 It is, however, clarified that observations made hereinabove shall

not be construed as an expression of opinion on merits of the case.

                                                  (MANISHA BATRA)
19.03.2025                                           JUDGE
Jyoti-IV
                    Whether speaking/reasoned:    Yes/No.
                    Whether reportable     :      Yes/No




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