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Baljinder Kaur & Ors vs State Of Punjab & Anr on 21 May, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRR-2291-2017
Date of decision: 21.05.2018

Baljinder Kaur and others
…Petitioners
Versus

State of Punjab and another
…Respondents

*****

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. P.S. Ahluwalia, Advocate,
for the petitioners.

Mr. A.S. Sandhu, Addl. A.G., Punjab.

****

JAISHREE THAKUR, J.

1. The petitioners herein seek to challenge order dated

01.03.2017, whereby they have been summoned to face trial as additional

accused on an application filed under section 319 Cr. P.C .

2. In brief, the facts are that FIR No. 182 dated 10.10.2015 came

to be registered at Police Station Samana under Sections 363 366A IPC at

the behest of Rani w/o of late Jagtar Singh. It was stated that she has four

children out of which two were sons and two daughters and all were

unmarried. Her husband had passed away about 8 years ago. Her stepbrother

Pali Ram aged 19 years came to reside with her for constructing her house

at her village and while residing with her made a physical relationship with

her young daughter Pooja. Pali Ram induced her young daughter Pooja to

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runaway, and with the help of relatives she was brought back. On the

intervening night of 7th /8th of October 2015. Pali Ram again induced Pooja

to leave by misleading her that he would marry her. It was stated in the FIR

that efforts were made to trace both Pali Ram and Pooja but the complainant

was unable to do so, which led to the registration of the FIR. After living in

Amritsar for a short period, Pali Ram then took rented accommodation at

Patiala where both of them resided. While at Patiala, she informed her

neighbor Binder Kaur wife of Jagtar Singh about her situation, who then

adopted her on 15.07.2016. It transpires that when her adoptive mother was

not at home, on 17.07.2016 her uncle Gurpal Singh accompanied by three

other persons forcibly put her in a white colour van and took her to a house

in village Raipur Mandlan and kept there for 2- 3 hours and thereafter took

her to Pacific Resort Factory Area, Patiala, where she was forcibly raped by

Gurpal Singh and the three other known as Bachittar Singh, Ramji Dass and

Jeet, threatened to kill her in case she disclosed the incident to anyone. She

was taken to the Police Station by Binder Kaur and her statement was

recorded on 20.07.2016. On the statement recorded, a case was registered

against accused Gurpal Singh, Bachittar Singh, Ramji Dass and Jeet under

Sections 363, 366, 376, 506, 120-B IPC. Thereafter, the prosecutrix was

sent to Nari Niketan and Binder Kaur appeared in Court and stated that Rani

Kaur ( the biological mother of Pooja and the complainant in the FIR ) had

given her up by way of an adoption deed dated 15.07.2016. On the basis of

the statement made and while relying upon statement of the prosecutrix

recorded under section 164 Cr.P.C on 20.07.2016, that Binder Kaur was her

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adoptive mother, custody was handed over to said Binder Kaur. Thereafter,

another statement was recorded under section 164 Cr.P.C on 26.08.2016 in

which an allegation was made that Binder Kaur is indulging in business of

prostitution from her home. On 27.08.2016, another statement was recorded

under section 161 Cr.P.C in which it was further elaborated that Binder

Kaur used to get ‘wrong thing’ done and that she is in the business of flesh

trade, while stating that she wanted to live with her mother, at village

Asman Nagar @ Nijamni Wala. After she came to reside with her mother,

another statement of the prosecutrix came to be recorded on 23.11.2016

under Section 161 Cr.P.C., wherein it was stated that she had filed two

applications bearing No. 3404/OP dated 09.10.2016, 7288/PESHI dated

03.11.2016, 258/E dated 09.11.2016, to the Senior Superintendent of Police,

Patiala on the asking of her mother and the applications were to be treated

as a statement in which it was mentioned that Ex. Sarpanch son of Sandhu

Singh, resident of Ranjit Nagar Seona, Balwinder Singh, Lakhwinder Singh

sons of Labh Singh and Jassi committed rape upon her against her wishes at

the house of Binder Kaur and Baljinder Kaur. It was stated that Binder Kaur

and Baljinder Kaur made her do immoral activities and made her life hell.

After framing of charges, statement of Pooja was recorded on 23.11.2016,

wherein she reiterated the fact that Binder Kaur was indulging in immoral

activities at her place and that she forced her to develop physical relations

with other persons namely Ex. Sarpanch son of Sandhu Ram, resident of

Ranjit Nagar Seona, Lakhwinder Singh and Balvinder Singh sons of Labh

Singh and Jassi who was residing in the house of Baljinder Kaur. She also

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identified her signatures on her statement while also identifying the

applications moved by her before SSP, Patiala. At this stage, the prosecution

sought an adjournment to move an application under Section 319 Cr.P.C for

summoning additional accused, namely, the petitioners herein. The said

application was allowed and aggrieved against the said order, the instant

petition has been filed.

3. Mr P.S. Ahluwalia, learned counsel appearing on behalf of the

petitioners herein, contends that the prosecutrix had not been named the

petitioners at the first instance nor were their names reflected in the FIR. It

is only when a supplementary statement was recorded on 23.11.2016 that

she introduced the names of the petitioners, with allegations of petitioner

No.1 conniving with Binder Kaur in running a flesh trade and accusing

petitioners No. 2, 3 and 4 of committing the offence of rape. It is argued that

the prosecutrix had initially named only Gurpal Singh and Binder Kaur,

while having her statement recorded under Sections 161 and 164 Cr.P.C.

and thereafter there has been an improvement in her statement recorded and

the petitioners have unnecessarily been roped in. Counsel for the petitioners

also places reliance on the judgement cited as Hardeep Singh vs. State of

Punjab and others, 2014(1) R.C.R. (Criminal) 623 to argue that without

any substantial evidence, summoning under Section 319 Cr.P.C. would be

wholly unsustainable. It is submitted that the test as laid down in Harpdeep

Singh’s case (supra) is that for the Courts to summon a person as an

additional accused, there has to be strong evidence available other than

mere probability.

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4. Per contra Mr. A.S. Sandhu, learned counsel appearing on

behalf of the Respondent State submits that in fact the prosecutrix had

suffered a statement in Court and in the application submitted to the

Superintendent of Police Patiala about the complicity of the petitioners in

the commission of the offence of rape and they had rightly been summoned.

5. Section 319 of the Criminal Procedure Code states that when a

trial is going on and the Court comes to know from the evidence which has

been put forth before the Court that some other person who is not appearing

before the Court as an accused person might have committed the offence,

the Court can summon such person before itself. The purpose of Section

319 Cr.P.C. is to do complete justice between the parties and to ensure that

persons, who ought to have been tried, do not escape. However, before

summoning such a person, the material available should disclose the

complicity of the person in commission of the offence which has to be the

material that appears from evidence during the course of any inquiry. The

Courts are required to apply the test as to whether evidence on record is

such, which would reasonably lead to conviction of the person sought to be

summoned.

6. The law is now well settled as regards summoning a person as

an additional accused under Section 319 Cr.P.C., which power has to be

exercised sparingly and with caution. Hardeep Singh v. State of Punjab,

(2014) 3 SCC 92 the Constitution Bench of the Supreme Court held:

“105. Power under Section 319 Cr.P.C is a

discretionary and an extraordinary power. It is to be exercised

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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 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.”

(emphasis supplied).

7. In the present case, an FIR was registered at the behest of

mother of the prosecutrix Pooja alleging that her minor daughter had been

enticed away by her stepbrother Pali Ram and on the basis of the statement

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offence under Sections 363 366-A IPC was made out against Gurpal @

Pali Ram. As it transpires, Pali Ram took rented accommodation at Patiala,

where she came in contact with Binder Kaur and narrated her story to her. It

appears that Binder Kaur thereafter adopted the prosecutrix. Thereafter, the

prosecutrix went to the Police Station along with Binder Kaur and recorded

her statement on 20.07.2016. The prosecutrix in her statement dated

20.7.2016 alleged that on 17.07.2016, when Binder Kaur was not at home,

Gurpal Singh @ Pali forcibly took her in a white car and took her to Village

Raipur Mandlan where they kept her for 2-3 hours and then they took her to

Pacific Resort, Factory Area, Patiala where, Pali Ram forcibly raped her.

Hence, the above mentioned FIR was registered. Statement of Pooja was

recorded under Section 164 Cr.P.C, wherein it came to be mentioned that

Binder Kaur is indulging in prostitution business from her home, and in a

supplementary statement dated 27.8.2016 she further elaborated that Binder

Kaur used to get ‘wrong things’ done from her. The prosecutrix also

submitted that she wanted to reside with her mother at Village Asman Nagar

@ Nijammi Wala. It is thereafter that she preferred applications bearing No.

3404/OP dated 09.10.2016, 7288/PESHI dated 3.11.2016, 258/E dated

09.11.2016, naming the petitioners herein as persons who committed rape

upon her against her wishes at the house of Binder Kaur and Baljinder Kaur.

8. After the framing of charges, statement of PW1 Pooja was

recorded on 09.02.2017, wherein she specifically named the petitioners

herein, apart from the names of the other accused. The argument as raised

by the counsel for the petitioners that their names were not reflected in the

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FIR or that prosecutrix had not named them in the first instance, is not

sustainable. The case in hand is not one that deals with provisions under

Section 406/498A IPC where it has been noticed that there is a growing

tendency to implicate all family members of the husband just to harass them.

It is true that the petitioners had not been named in the FIR, but the fact

cannot be lost sight of the fact that the mother who initially registered the

FIR against Pali Ram would not be aware of the subsequent events.

9. As far as the contention raised that the prosecutrix had not

named them in the two subsequent statements and had only named them at

the behest of her mother, too cannot be sustained. From the very outset

when the statement of the prosecutrix was recorded under Section 164

Cr.P.C on 26.08. 2016 at 9.39 p.m., she has maintained that Binder Kaur is

indulging in prostitution business and thereafter again reiterated the same in

her supplementary statement. After she left to reside with her mother, again

submitted an application to the SSP naming the petitioners herein. The

statement made on 27.08.2016, application filed before the Superintendent

of Police and statement in Court after charges are framed, are consistent in

naming the petitioners herein. The role of the petitioners could not have

been investigated at the time of registration of the FIR since they were not

named therein. It is only when the prosecutrix went back to reside with her

mother that other names followed. The complainant could not be aware of

any events that transpired subsequent to the prosecutrix being allured out of

her home.

10. The argument as raised that there is a thirteen month delay,

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which is a substantial delay in the statement forthcoming naming the

petitioners, is without merit. The FIR was registered at the behest of Rani

the mother of the prosecutrix in FIR No. 182 dated 10.10.2015. For the first

time, a statement of the prosecutrix was recorded on 20.07.2016. Thereafter,

she got recorded her supplementary statement on 26.08.2016 and asked to

go back to reside with her mother. Once she went back to her maternal

home, she submitted applications dated 09.10.2016, 03.11.2016 and

09.11.2016 to the Superintendent of Police and again suffered a statement

naming the petitioners herein. Therefore, it cannot be said that there is

undue delay.

11. The prosecutrix has been specific in her allegation and

consistent therein about Binder Kaur running a prostitution ring. She has

also been consistent in naming the petitioners which fact has been noticed

by the Additional Session Judge while allowing the application under

Section 319 Cr.P.C. Therefore, in the peculiar facts and circumstances of

the present case when there are allegations of rape, immoral trafficking

activities read with provisions of the POCSO Act, no ground is made out to

set aside the impugned order.

12. Dismissed.

21.05.2018 (JAISHREE THAKUR)
Satyawan JUDGE

Whether speaking/reasoned Yes.
Whether reportable No.

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