On 1st November 2022, the Supreme Court in a Division Bench comprising of Justice Ajay Rastogi and Justice C.T. Ravikumar observed that “power u/s 319 CrPC is a Discretionary and Extraordinary which should be exercised sparingly where the circumstances of the case so warrant and the crucial test 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”. (Naveen Vs. State of Haryana & Others)
Facts of the Case:
The FIR No.156 dated 12th March, 2018 was registered for offence u/s 307, 364, 366, 376 r/w Section 34 IPC at Police Station City Bhiwani on the basis of the written complaint filed by Kamlesh alleging that her daughter aged 20 years was taking coaching of SSC from Evermount Coaching Centre and she disclosed that on 10th March, she went to the coaching centre, but did not return home. Later, she came to know that the victim girl was admitted in Sunflag Hospital, Rohtak. On reaching hospital, they were told that the victim was in ICU Ward and two boys, Arjun and Naveen had brought the her to hospital in unconscious state.
After registering FIR, and on receipt of the Ruqa regarding the death of the victim on 13th March, 2018, Section 302 IPC was added and consequent upon verification, allegations against Arjun were found to be true, whereas remaining culprits, i.e., Naveen and Mehar Singh were found innocent and, therefore, the above¬named persons were kept in column no.2 and subsequently, accused Arjun was arrested and after completion of investigation, the report under Section 173 Cr.PC was submitted before the Ld. Ilaqa Magistrate on 5th June, 2018 against the accused Arjun.
The instant appeal has been filed assailing correctness of order dated 6th January, 2022 passed by the High Court of Punjab and Haryana setting aside order passed by the Additional Sessions Judge, Bhiwani, Haryana, whereby the learned trial Judge rejected the application filed by the complainant under Section 319 CrPC to summon the appellant to face trial in Sessions Case No.59 of 2018.
Contentions of the Appellant:
The counsel for the appellant submitted that “complainant PW.10 has made deliberate improvements in her statement and is trying to involve the innocent persons. From the statement of PW.6 Mahipal, the Hotel Manager and PW.8 Deepchand, Waiter, it is clear that the deceased used to accompany the accused Arjun voluntarily to their hotel. Even from the deposition of PW.5 Deepak Kumar, Nodal Officer, Idea Cellular Company Limited, Panchkula, it could easily be established that on the date of occurrence, the CCTV footage of the hotel where the alleged fateful incident occurred, proves that the accused Arjun and deceased/ prosecutrix were not accompanied by any other person at the time of their visiting the hotel and as per case of the prosecution, the alleged occurrence had taken place in the hotel and not in the hospital where the accused had taken the deceased/prosecutrix and if the proposed accused persons had visited the hospital, in no manner,they become accomplices with the respondent/accused who was facing trial. ”
Contentions of the Respondents:
The counsel for the respondents submitted that “the complainant had named both these persons (Naveen and Mehar Singh) as accused in her initial version but the police did not challan them in collusion with them and as she now has deposed in the Court naming these persons as accused, hence, these two persons shall also be summoned to face trial along with the main accused Arjun. The complainant Kamlesh as PW.10 specifically deposed against the proposed accused Naveen and Mehar Singh as accomplices of accused Arjun because these two persons were also present in the hospital with the deceased and their presence is established from the CCTV footage of Sunflag Hospital, Rohtak and they should also be summoned to face trial with accused Arjun.”
Observations and Judgment of the Court:
The hon’ble court observed that “power u/s 319 CrPC is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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. Present t incident is based on circumstantial evidence.
As per the prosecution case, the alleged occurrence has taken place in the hotel and not in the hospital. The CCTV footage of the hotel where the alleged occurrence has taken place which came on record during the course of trial indicates that no other person had visited the hotel except Arjun who was made accused and faced trial. So far as Mehar Singh is concerned, it may be noticed that it was conceded before the High Court that the name of Mehar Singh does not figure anywhere during the investigation and there is no evidence against him to deny him from facing prosecution.
That apart, it was recorded by the High Court that the hotel staff and of the hospital staff showed presence of two boys and that corroborates the initial stand of the complainant that two boys were there at the time of occurrence but that appears to be factually incorrect. The evidence recorded during the course of prosecution, if remains unrebutted, will not be sufficient to lead the conviction so far as the present appellant is concerned.”
The appeal was allowed holding that the impugned order dated 06.01.2022 passed by the High Court is set aside.
Case: Naveen Vs. State of Haryana & Others
Citation: Criminal Appeal No(S). __ Of 2022 (Arising out of Special Leave Petition (Crl.) No.3746 of 2022)
Bench: Justice Ajay Rastogi and Justice C.T. Ravikumar
Date: November 01, 2022
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