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Swati Kataria vs State Of Haryana And Ors on 2 August, 2018

CRR-789-2018 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRR-789-2018 (OM)
Date of Decision: 02.08.2018

Swati Kataria
….Petitioner
Versus

State of Haryana and others
….Respondents

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Petitioner in person.

****

ANITA CHAUDHRY, J

This is a revision assailing the order dated 06.02.2018 passed

by the Additional Sessions Judge, Panchkula dismissing the application

filed by the petitioner seeking to summon of mother of the main accused.

I have heard the petitioner in person at great length. The

petitioner was asked to place some documents which have been placed on

record.

On a complaint made by the victim the case was registered

against respondent No.2. The allegations made were that the victim became

friendly with Gurpreet Singh which later culminated into an affair and a

promise from Gurpreet Singh that he would marry her. The two of them

started meeting more often. The allegations were that the accused had

sexual relations with her on two occasions. The victim later on alleges that

she came to know that she had been cheated and the accused had no

intention to marry.

The police investigated the case and filed challan against

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Gurpreet Singh under Section 376 IPC. The complainant, after her statement

was recorded, moved an application under Section 319 Cr.P.C. naming

Manjeet Kaur and wanted her summoning. The trial Court noted that the

complainant came forward to make her statement after great reluctance and

number of adjournments and the evidence of the prosecution was closed in

April, 2017. Subsequently, an application under Section 311 Cr.P.C. was

filed and the complainant was recalled to complete her statements as earlier

she had failed to appear and her statement could not be completed despite

issuance of warrants. The trial Court dismissed the application and gave its

reasons in Para-7 which are as follows:-

“In the complaint Ex.PY, which is the
genesis of the present case FIR, it is nowhere mentioned
that aforesaid Manjeet Kaur had been instrumental in the
crime against the complainant, if any. What had prevented
her from such allegations in the aforesaid complaint, has
not been explained by the complainant at all. Further,
already observed, the allegations of the complainant in
nutshell are that the present accused-Gurpreet had
developed physical relations with her on the pretext of
solemnizing marriage with her. The complainant being a
law graduate is supposed to be well conversant with the
relevant provisions of law. Her stand cannot be stated to
be consistent throughout and as such, the law relied on her
behalf in case of “Arshida Vs. State of Haryana and
others” 2014(1) RCR (Criminal) 946 (PH)” is not
applicable to the facts and circumstances of this case. Had
she any honest intention, she would have appeared in the
court at the first instance and not kept on playing hide and
seek. Mere making of allegations against the accused does
not fulfill the requirement of higher standard set-up for the
purpose of invoking the jurisdiction under Section 319 of
the Code of Criminal Procedure by the trial Court. What is

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further required is that the material, which is brought
before the Court must be of such a nature as would satisfy
the Court that during the trial it has appeared from the
evidence that a person not being an accused has
committed any offence for which such person could be
tried together with the accused, who are also being tried.”

The trial Court noted that the complainant had not made any

allegations against Manjeet Kaur in the FIR. It would be useful to give the

details of the FIR and it reads as under:-

“1. That complainant is permanent resident of
House No.1110, Sector-9, Urban Estate, Karnal (HR). 2.
That complainant took admission at Panjab University,
Patiala for LLB 3 year course in 2011. 3. That
complainant use to reside at Panchkula from where she
use to travel to her University and in the year 2012
complainant met accuse and subsequently they became
good friend and lateron, friendship culminated into an
affair, on a understanding that accused marry the
complainant and both started seeing each other. That
thereafter accused made advance towards the
complainant and compelled her to make physical relations
with him but when she tried to reason out, accused use to
say that it is only a matter of few months and after some
time they will be marrying each other, sot complainant
should not resist him and to avoid any unpleasantness in
the relationship complaint used to succumb to his pressure
and made sexual relationship with him on two occasions.
That the last sexual act was made by the accused at his
residence in the month of May 2014 when the complainant
had gone to take her examination for contract act. That
the accused had even introduce his family to the family of
me complainant and as such family of complaint was very
much ready to get both of them married and even of roka
ceremony was fixed for 7/11/2014 but same was
repeatedly along with her mother had gone to pay a visit

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to the family of accused and complaint was shocked to
know that accused had been cheating the complainant and
he never intended to marry her as he was simultaneously
having affairs with other girls also. 8. That when
complainant came to know about the real intentions of the
accused she shocked him to tell his side of the story but
accused refused to give any explanation rather a false
complaint was moved by the mother of the complainant in
order to settle the matter with the complainant however it
were mentioned here that accused malafidely induced the
complainant to believe that he will marry her and under
misrepresentation accused raped the complainant and
developed physical relations with her whereas accused
from the very beginning had no intentions to marry her
rather he simply wanted to make physical relations with
her on the pretext marriage. 9. That now when
complainant has come to know about his act and conduct
she wants him to be punished so that he does not ruin life
of the other innocent girls. 10. Out first sexual relation
was made in Panchkula Sector-25, House No.76 on 4th
March 2014.”

I have perused the statement given by the petitioner to the

police and also the statement given by the prosecutrix in the Court. The

police had filed the challan only against Gurpreet Singh. During the

examination-in-chief, the complainant reiterated her statement with respect

to Gurpreet Singh but levelled allegations against the mother which did not

find place in the original complaint. The principles for summoning, the

additional accused have been dealt in ‘Hardeep Singh Vs. State of Punjab,

2014(3) SCC 92’ and the relevant paragraph reads as under:-

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“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 CrPC, 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 [(2014) 3 SCC 321] , 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.

xx xx xx

105. Power under Section 319 CrPC is a discretionary and an
extraordinary 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.

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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the
guilt of the accused.”

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The power to summon additional accused is found in Section

319 Cr.P.C. and the Court can proceed even against those persons who are

not arraigned as accused and it cannot be disputed. The Constitution Bench

explained the purpose behind the provisions and it also settled the

controversy on the issue whether the word ‘evidence’ used in Section 319

Cr.P.C. indicates the evidence collected during investigation or it was

limited to the evidence recorded during trial. It was held that it is that

material, after cognizance is taken by the Court, that is available to it while

making an inquiry into or trying an offence, which the court can utilise or

take into consideration for supporting reasons to summon any person on the

basis of evidence adduced before the Court. The word ‘evidence’ has to be

understood in its wider sense, both at the stage of trial and even at the stage

of inquiry. It means that the power to proceed against any person after

summoning him can be exercised on the basis of any such material as

brought forth before it. At the same time, the Court cautioned that the duty

and obligation of the Court becomes more onerous to invoke such powers

consciously on such material after evidence has been led during trial. The

Court also clarified that ‘evidence’ under Section 319 Cr.P.C. could even be

examination-in-chief and the Court is not required to wait till such evidence

is tested on cross-examination, as it is the satisfaction of the Court which

can be gathered from the reasons recorded by the Court in respect of

complicity of some other person(s) not facing trial in the offence.

Considering the principles laid down by the Apex Court above,

I find no infirmity in the order passed by the Court below. The trial Court

had examined the evidence collected by the police and the statement made

by the prosecutrix in the Court and found it to be at variance. There is no

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infirmity in the findings. The Power under Section 319 Cr.P.C. is an

extraordinary power and is not to be easily resorted to. Mere making of

allegations does not fulfill the requirement of the standard set down in

Hardeep Singh’s case (supra).

The petition is dismissed.

August 02, 2018 (ANITA CHAUDHRY)
ps-I JUDGE

Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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