1. The present application under Section 482 Cr.P.C. has been filed for quashing of the summoning order dated 12.3.2008 passed by learned Additional District and Sessions Judge/F.T.C. No.4, Aligarh summoning the applicant on application moved under Section 319 Cr.P.C. in S.T. No.833 of 2003, State Vs. Neetu Sharma and another, under Sections 323, 504, 506 IPC read with Section 3(1)X SC/ST Act.
2. On 24th April, 2008, notice was issued and further proceeding was stayed.
3. Heard learned counsel for the applicant, learned counsel for the opposite party no.2, learned AGA for the State and perused the record.
4. Learned counsel for the applicant submitted that according to prosecution case on 29.3.2003 victim Km. Laxmi aged about 12 years, who was sister of informant/complainant, Sanjay Kumar had gone to ease herself at about 8.00 P.M., near a pond, behind her house where Neetu Sharma committed rape with the assistance of co-accused Yasin Khan. Subsequently, when the family members were searching, informant found her near field of barley crops, and Neetu Sharma was caught red handed while committing offence. Victim was caught hold by Co-accused Yasin Khan. Thereafter, co-accused Neetu Sharma ran away towards the village and entered into house of one Lal Dev Sharma by whom the shelter was provided. He sent message to the family members of accused Neetu Sharma that he was chased by the complainant and other persons and taken shelter in his house. However, allegation was that applicants were armed with Katta, Ballam, Farsa and Lathi reached there, abused and assaulted with kick and fist to the informant and threatened them by using abusing language. During investigation there was no reliable material in support of allegation against the applicants hence no charge-sheet was submitted, as name of the applicants was expunged by the Investigating Officer. However, charge-sheet was filed against accused Neetu Sharma under Section 376 IPC and 3(2)V SC/ST Act by Investigating Officer at P.S. Pisawa,District Aligarh. The co-accused Yasin Khan and Lal Dev Sharma were also charge-sheeted under Section 323, 504, 506 read with Section 3(2)V SC/ST Act. After statement of victim Km. Laxmi as P.W.1 and statement of informant Sanjay Kumar as P.W. 2 an application was moved from the side of complainant under Section 319 Cr.P.C. for summoning the applicants to face trial along-with accused already charge-sheeted and facing trial. According to statement of Sanjay Kumar P.W. 2 the applicants were not present at the place of occurrence but they were called by co-accused Lal Dev Sharma throug his son.
5. As far as prosecutrix is concerned, subsequently, she stated that she also followed informant Sanjay Kumar and she also reached at the house of co-accused Lal Dev Sharma. In her cross examination presence of applicants were shown there. Learned counsel for the applicant further submitted that the impugned summoning order dated 12.3.2008 is illegal and without jurisdiction as the order was passed on application moved by the private party/complainant. Further no satisfaction was recorded that there was possibility of conviction on the basis of evidence of P.W. 1 and P.W. 2. He also submitted that evidence was not sufficient to arrive at, to the conclusion that there was any possibility of conviction of the applicants. He further submitted that there are two separate incidents, which have been clubbed together. The place of first incident is at agricultural field where there was allegation of rape against Neetu Sharma, who was assisted by co-accused Yasin Khan. Subsequent incident is at the place of residence of co-accused Lal Dev Sharma where there was allegation of abuse and assault by kick and fist to the complainant. No ingredient was made out under the SC/ST Act. Even from perusal of statement only there was vague allegation that abusive language was used, however, what word was spoken, has not been mentioned in the statement. Even if it is admitted that applicants reached at the residence of co-accused Lal Dev Sharma then that was only on information given by Lal Dev Sharma they reached there. They were neither present on spot at place of first incident nor there was any information regarding that incident. No injury was caused to any person and no injury report was placed and proved by the date when summoning order was passed. Hence even if applicants reached on the spot to save Neetu Sharma, who was surrounded by the informant and his supporter, then no offence is made out. The applicants were neither aware regarding the first incident nor anybody was assaulted, though, there is allegation that they were armed with deadly weapons. Hence in view of the evidence there was no even remote chances of conviction.
6. On his first point he has relied on the judgment of Apex Court of three Hon'ble judges Bench reported in 1999 S.C.C. (Crl.) 1277 Shiv Kumar Vs. Hukam Chand and another. He submitted that in the aforesaid judgment the Supreme Court has clearly held that Section 301 Cr.P.C. is applicable to all the courts of criminal jurisdiction. It was further held that prosecution in a sessions court cannot be conducted by anyone other than the Public Prosecutor.
7. In the aforesaid case private counsel was permitted to conduct the trial under supervision, guidance and control of the Public Prosecutor. The order of the trial court was challenged before the High Court and the High Court disposed off the revision and directed that the private counsel should act under the direction from the Public Prosecutor and may with the permission of the court submit written arguments after evidence was closed. There was further direction that public prosecutor in-charge of the case should conduct the prosecution. Against that special appeal was filed before the Apex Court, which was dismissed and approach of the High Court was approved by the Apex Court. He further submitted that in view of provision of Section 301 and Section 302 IPC private counsel may only assist the public prosecutor only on the permission of the public prosecutor and the court concerned he may assist the court but he cannot be permitted to conduct the trial independently. However, in the present case, the application was moved by the complainant under Section 319 Cr.P.C. and on that application while exercising power under Section 319 Cr.P.C. the applicants were summoned to face the trial. The court has no suo motu power to summon the applicants for trial on the application moved by the complainant hence summoning order is liable to be quashed.
8. Learned AGA for the State and learned counsel for the opposite party no.2 opposed the aforesaid prayer. Learned counsel for the complainant submitted that there is no bar under Section 319 Cr.P.C. for any private person to move application for summoning of the proposed accused. He further submitted that above noted case cited by the counsel for the applicant is not applicable in the present case, which was regarding the trial. In that case the private counsel was permitted to conduct the trial. In the present case, application was only for summoning of the applicant to face the trial in view of evidence adduced before the trial court since there was sufficient evidence to prosecute the applicants and there was chances of conviction on the basis of evidence i.e. statement of P.W. 1 and P.W.2. Learned counsel for the opposite party no.2 submitted that High Court while considering the application under Section 482 Cr.P.C. will not asses the evidence afresh to substitute its opinion with regard to the satisfaction of trial court. He further submitted that in the present case the satisfaction was recorded by the trial court that prima facie there was sufficient evidence available for taking cognizance against the applicants hence after satisfaction the applicants were summoned.
9. As far as the submission of learned counsel for the applicant that the application by complainant was not maintainable is concerned, there is no substance in the aforesaid argument. The judgment cited by the learned counsel for the applicant is under Section 301 and 302 IPC with regard to the trial in which the private counsel can assist to conduct the trial with permission of the public prosecutor but he cannot be permitted to conduct the trial independently. In the present case, the stage is only for summoning the applicants to face the trial in exercise of power under Section 319 Cr.P.C. There is no provision that the power under Section 319 Cr.P.C. can be exercised only on the application moved by the prosecution. The trial court has been empowered to summon the proposed accused, who was not charge-sheeted irrespective of the fact that he was named or not named in the FIR or in the statement under Section 161 Cr.P.C. While considering the application under Section 319 Cr.P.C. trial court can consider the application suo motu or on an application moved by either of the parties, from side of the prosecution or by the complainant or even on behalf of accused. There is no bar to exercise the power under Section 319 Cr.P.C. on the application moved by private party. This aspect was considered by the Hon'ble Supreme Court in the case of V. Saraba Reddy Vs. Puthur Rami Reddy reported in 2007(58) ACC 573.
"Power under section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in section 319 contemplates that evidence of witnesses given in Court."
10. Hence there is no force on the first argument of the learned counsel for the applicants that application moved on behalf of complainant was not maintainable and on that application order passed by the trial court was without jurisdiction. As discussed above, the power by the trial court can be exercise under Section 319 Cr.P.C. to summon such other persons, who were not charge-sheeted, to face the trial along-with accused already charge-sheeted, on the application moved by either of the parties.
11. Second argument was that no satisfaction has been recorded by the trial court that there was strong possibility of conviction. While recording the satisfaction the trial court is not required to record the satisfaction in so many words or by using a particular words with regard to the satisfaction that there was likelihood of conviction or good chances of conviction. There must be sufficient evidence before the court for satisfaction regarding likelihood of conviction.
12. The summoning order under Section 319 Cr.P.C. is different from the summoning after submission of charge-sheet or when final report is filed after considering the protest petition or on complaint and at that stage the criteria would be suspicion of involvement of the accused, disclosing prima facie commission of offence. At the stage of framing of charges also the criteria is only strong suspicion and disclosure of prima facie commission of offence on the basis of reliable material, available with the case diary or which is part of the complaint. However, under Section 319 Cr.P.C. it is extra-ordinary power and it is well established that the power has to be exercised sparingly and cautiously on the basis of fresh evidence adduced before the trial court. Those material, which are part of the case diary is not covered under the definition of evidence under Section 319 Cr.P.C. From the evidence produced before the trial court, if there is satisfaction regarding possibility/likelihood of conviction only then the power has to be exercised to summon such other persons, who were not charge-sheeted to face the trial. However while exercising the discretion by the trial court, it should not be arbitrary but it should be judicial discretion. In the present case trial court has mentioned in the order that prima facie evidence was available for taking cognizance.
13. As far as the evidence of PW-1 and PW-2 are concerned, considering both of the statements, it is clear that neither the applicants were present at the seen of first incident in which rape was committed by Neetu Sharma, who was assisted by co-accused Yasin Khan nor they were aware regarding the first incident, where there was allegation of commission of rape. If the statement is admitted even co-accused Lal Dev Sharma was also not present or aware regarding the first incident when main accused Neetu Sharma, against whom there was allegation of committing rape, took shelter in his house, who was chased and surrounded by the informant and other supporters. Considering his life in danger the information was given to the applicants, who reached on the spot and they were not aware regarding the first incident. When they reached they found that informant and other supporters had surrounded the house. They were present at the house of co-accused Lal Dev Sharma hence some altercation took place. If the applicants reached in self defence to save the life of Neetu Sharma then they have not committed any offence. There is no allegation that applicants assisted co-accused Neetu Sharma in commission of offence. There was allegation that they were armed with Katta, Ballam, Farsa and Lathi but any of the weapon was not used, which clearly shows that either there was no intention to assault the informant or no such incident took place. Either they were not armed with weapons or there was no intention to cause injury rather any grievous injury. As per prosecution case, they were armed with deadly weapons, however, they assaulted with kick and fist and abused by taking caste name. However, it is not clear what word was spoken. Hence no ingredient was made out for committing offence under the provisions of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act 1989. The injury report approved by the doctor, was also not available before the trial court, on the date when summoning order was passed under Section 319 Cr.P.C.
14. In the present case, the notice was issued on 24th April, 2008 and since then proceeding has been stayed against the applicants.
15. In view of the facts and circumstances, at this stage, there was no evidence on which basis it can be said that there was likelihood of conviction of the applicants.
16. Hence, in view of facts and circumstances, the impugned order dated 12.3.2008 passed by learned Additional District and Sessions Judge/F.T.C. No.4, Aligarh summoning the applicant on application moved under Section 319 Cr.P.C., in S.T. No.833 of 2003, State Vs. Neetu Sharma and another, under Sections 323, 504, 506 IPC read with Section 3(1)X SC/ST Act is hereby set aside.
17. However, trial court is free to summon such other persons in exercise of power under Section 319 Cr.P.C. at subsequent stage if any other evidence apart from the present statement of PW-1 and PW-2 is produced for the satisfaction regarding possibility of conviction.
18. Accordingly, the present application filed under Section 482 Cr.P.C. is allowed. Interim order, if any, is hereby discharged.
19. Cost on parties.
7.10.2010.
Pramod/-