Criminal Misc. No. M-15729 of 2010 v. State of Haryana

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Satish Chaudhary, Advocate, for the petitioners. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the summoning order dated 14.02.07, passed by the Additional Sessions Judge, Gurgaon, in view of the acquittal order dated 31.10.09, passed by Additional Sessions Judge (Fast Track Court), Nuh, in FIR No. 370, dated 21.10.04, under Sections 363, 366 and 376(2)(g) IPC, Police Station Punhana, District Mewat, and, all the subsequent proceedings, arising therefrom, has been filed by the petitioners.

2. The facts, in brief, are that, on 04.10.04, the prosecutrix, was kidnapped, by Tayyub, Sahun, Nizzar and Arshad, in a Maruti Criminal Misc. No. M-15729 of 2010 2 car, from the bridge of Rajpur. Thereafter, she was gang raped, by the aforesaid accused, in the hotel rooms of Agra and Mathura, for two days. Even, Nizzar, also showed a country-made pistol, to the prosecutrix, and threatened her that, in case, she protested against them, they would kill her. Thereafter, she was taken to village Doshrath, where Ise Khan and Nawab Khan, also joined the aforesaid persons. The prosecutrix, was again raped by the aforesaid accused, except Nawab Khan, in a room, belonging to Fazru, milk vendor. She was also asked to marry Tayyub, accused. Therefrom, she was further taken to village Dhulawat, where too, she was raped, in a room, belonging to Khurshid by Sahun and Tayyub, for two days. Thereafter, she was taken to the Court, at Ferozepur Jhirka, where, Nawab and Ise Khan, after obtaining her thumb-impressions forcibly and snatching her ornaments, dropped her, at about 8.00 PM, at the bridge of Rajpur. On 21.10.04, she reported the matter, to the Police, as a result whereof, her report, was lodged. On 16.12.04, her statement, under Section 164 Cr.P.C., was also got recorded, before a Judicial Magistrate. However, the Police, in collusion with the accused, did not challan them, except Tayyub, despite the fact, that she had specifically mentioned their names, in her statement.

3. During the course of trial, an application, under Section 319 Cr.P.C., was moved by the prosecution, for summoning Sahun, Nizzar, Arshad, Ise Khan, and, Nawab Khan, as additional accused, to face trial, and, as such, they were summoned, by the trial Court, vide the order impugned. Criminal Misc. No. M-15729 of 2010 3

4. Feeling aggrieved, the instant petition, has been filed, by Sahun, Arshad, and, Ise Khan, petitioners.

5. I have heard the Counsel for the petitioners, and, have gone through the documents, on record, carefully.

6. The Counsel for the petitioners, submitted that, the co- accused of the present petitioners, namely Tayyub, Nizzar and Nawab Khan, were tried, by the Additional Sessions Judge (Fast Track Court), Nuh, and acquitted, vide judgement dated

31.10.09. He further submitted that, the petitioners, were wrongly summoned, by the trial Court, vide order dated 14.02.07, as additional accused, for facing trial. He further submitted that, no useful purpose, shall be served, by forcing the petitioners, to face trial, especially when, their co-accused, who faced trial, for the aforesaid offences, have already been acquitted. He further submitted that, the order, summoning the petitioners, as additional accused, being illegal, be set aside.

7. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioners, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The trial Court, in its order dated 14.02.07, impugned, in this petition, in clear-cut terms, stated that, the prosecutrix, in her statement, as PW3, as also, in her statement, under Section 164 Cr.P.C., in clear-cut terms, stated that, Tayyub (non-applicant), Sahun, petitioner No 1, Nizzar (non-applicant), and, Arshad, petitioner No. 2, kidnapped her, in a Criminal Misc. No. M-15729 of 2010 4 Maruti car, and, gang raped her, in the hotel rooms of Agra and Mathura, during which period, Nizzar (non-applicant), also threatened her, at pistol point. It is further evident, from the impugned order, that the prosecutrix, also stated, that she was taken to village Doshrath, where, Ise Khan, petitioner No. 3, and, Nawab Khan (non-applicant), joined them, and, they also, in the room of Fazru, milk vendor, except Nawab Khan, raped her. From the statements, made by the prosecutrix, PW3, it was, thus, prima-facie established, that the petitioners, actively participated, in the commission of crime. The Court below, after due application of mind, to the facts and circumstances of the case, was, thus, right in holding, that it was a fit case, in which, the petitioners, should be summoned, as additional accused, to face trial. The order impugned, therefore, does not suffer from any illegality.

8. There is another aspect of the matter, that the petitioners, were summoned, vide order dated 14.02.07. They instead of submitting themselves, to the jurisdiction of the Court, remained absent throughout, and, perhaps were waiting for the decision of the trial, against their co-accused. They were, ultimately, declared proclaimed offenders. The persons, who were declared proclaimed offenders, and, evaded the Court, thereby making the mockery of the judicial system, do not need any indulgence. The co-accused of the present petitioners, were acquitted, by the trial Court, as they faced trial. The petitioners, are required, to submit themselves, to the jurisdiction of the trial Court, and face trial. If the prosecution Criminal Misc. No. M-15729 of 2010 5 witnesses, do not support the case of the prosecution, against the present petitioners, then the trial Court, will decide the matter according to law. The mere fact, that the co-accused of the present petitioners, were acquitted, after full dress trial, does not mean, that no useful purpose, shall be served, by asking the accused, to submit, to the jurisdiction of the trial Court, and, face trial, in accordance with the provisions of law. The submission of the Counsel for the petitioners, thus, being without merit, must fail, and the same stands rejected.

9. For the reasons recorded above, Criminal Misc. No. M-15729 of 2010, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

10. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.

26.05.2010 Amodh (SHAM SUNDER) JUDGE