Jaikam v. State of Haryana A nt & Anr.

Order

27.08.2024 Vs. (s) …..Petitioner(s) (s) …..Respondent(s) HON’BLE MS. JUSTICE NID NIDHI GUPTA Mr. Suresh Nain, Advocate Mr. Randhir Singh, Advocat for the petitioner. cate for Ms. Deep Shikha Chauhan, han, AAG Haryana. ta, J. Nidhi Gupta, J ***** Challenge in the present sent petition is to order dated

05.09.2019 wh 9 whereby learned Additional Sessio essions Judge, Nuh, has dismissed the applicatio cation of the petitioner/complain 19 lainant filed under Section 319 Cr.P.C. for sum r summoning respondent No.1 as a as an additional accused No.1 to face trial in c

in case FIR No.356 dated 04.10.20 0.2018 registered under Sections 341 and 506 506 IPC and Section 12 of the P he POCSO Act at Police Station Ferozepur Jhir Jhirka.

2. Learned counsel for th r the petitioner submits that Respondent N nt No.1 has been wrongly declared lared innocent in the final report given under Se er Section 173 Cr.P.C. As such, the p he petitioner had filed the present application un n under Section 319 Cr.P.C. in which hich he had deposed in clear and vehement ma manner the involvement of respo spondent No.1 in the occurrence SUNENA 2024.08.31 10:58 I attest to the accuracy and authenticity of this document 6 of offences. T s. Thereafter, on 27.08.2019, the the prosecutrix also as PW5 had deposed rega regarding the involvement of resp ce. respondent No.1 in the offence. Therefore, the the learned Additional Sessions J ns Judge has incorrectly declined the application ation of the petitioner vide the impu 19 impugned order dated 05.09.2019 as, the prosec osecutrix had also corroborated th d the involvement of respondent No.1 in the of e offence. It is submitted that in pa n passing the impugned order, the learned Sessio ssions Judge has ignored the speci pecific allegations and the gravity of nature of of offences committed by resp respondent No.1/accused. It is accordingly, p ly, prayed that the impugned order b der be set aside.

4. No other argument is made ade on behalf of the petitioner. I have heard learned cou counsel for the petitioner and perused the ca e case file in great detail.

5. At the very outset it m may be pointed out that the petitioner had had previously filed similar petitio 19 tition bearing No.CRR-3259-2019 titled as “Jaik “Jaikam Vs. State of Haryana & A & Another” challenging present impugned ord order dated 05.09.2019 passed b d by learned Additional Sessions Judge, Nuh, h, dismissing the application of the 19 the petitioner under Section 319 Cr.P.C. for sum summoning accused in FIR No.356 .356 dated 04.10.2018 registered under Section tions 341/506 IPC and POCSO Ac Act at Police Station Ferozepur Jhirka, District trict Nuh. However, the same has b n’ as been ‘dismissed as withdrawn’ by a Co-ordina rdinate Bench of this Court vide ord ch, order dated 20.01.2023. As such, present petitio tition is not maintainable. SUNENA 2024.08.31 10:58 I attest to the accuracy and authenticity of this document

6. Even otherwise, a perusa rusal of the record of the case 6 shows that on the basis of statement dat dated 28.09.2018 made by the petitioner/com /complainant, present FIR No.356 356 dated 04.10.2018 (Annexure P10), was regi registered with the allegations tha that on 02.08.2018 at 12 pm, his daughter had had gone to the fields where on the n the way Aslam and Abid tried to molest her wi r with bad intentions. When she r he raised alarm, they threatened her and ran aw n away. When the victim revealed t led these facts to the complainant then he went ent to the house of these two per persons to make a complaint but their family m ily members insulted him and assa On assaulted him by use of lathi. On

03.08.2018, th 8, the complainant visited the poli police station but no action was taken on his c his complaint. Meetings were held eld in the village on this incident and admittedl ttedly, a compromise was effected cted in the matter. However, the petitioner has has subsequently stated that his th is thumb impression was taken on the said comp ompromise. Upon investigation, cha challan was filed only against the co-accused As d Aslam; where-upon the petitione ioner filed the present application under Section tion 319 Cr.P.C.

7. Notwithstanding the abov bove, no satisfactory explanation has been give given as to why in respect of an 18, f an incident dated 02.08.2018, complaint was was filed only on 28.09.2018. Altho lthough it has been alleged by the petitioner tha that a complaint was previously f er, sly filed on 03.08.2018, however, the same is is not produced on record. The The complainant/petitioner has further admitt mitted in his cross-examination (An (Annexure P-2), that his wife had filed a case ag e against immediate relatives of th of the present accused. There are SUNENA 2024.08.31 10:58 I attest to the accuracy and authenticity of this document 6 also other disc discrepancies in the statements m ts made by the petitioner and the victim/PW5.

8. The relevant finding return turned by learned Sessions Judge in the impugn ugned order are as follows:- “15. Appreciating the evidence of the incident of 02.08.2018 at 1 namely Aslam and Aabid came o molest her and she was pulled ins and molested by these two name this incident took place for half a for help but no one came for her r the accused, except for molestat than that despite they staying wi jawar crops. She also covers in h revealed this incident to her fam to the house of Aslam where he some 12 members in the said ho he went to the house of Aabid wh assaulted the father which result his person. ce of PW5 victim she has a case of at 12.00 PM when two persons me on a motorcycle and tried to nside the standing crop of jawar named persons. It is her case that alf an hour and she called loudly her rescue. It is her case that both station did not do anything more g with her for half an hour in the in her deposition that when she family members, her father went re he was assaulted by lathis by id house of Aslam and from there id where 10 of his family members esulted him with three injuries on

16. Closely appreciating the word has no explanatory reasons in he the named persons did not go molestation against her when th hour time. There are no reasonin heard by any person in this area w a public place where other person their respective fields. The manne her father going and making com the two named persons and he about 22 persons and he receiv only, which again simply treated necessary unexplained facts of the word to word evidence that victim n her examination as PW5 as why t go beyond a certain limit of n they stood with her for half an oning as why her cry could not be rea when otherwise the location is ersons must have been working in anner in which the victim alleges g complaint in the two houses of d he assaulted by lathis etc. by eceiving injuries three in number ated by a local doctor, are other of the prosecution.

17. Otherwise, also incident is dat of the father reached the police s a delayed time, unexplained. This is dated 02.08.2018 and complaint lice station on 04.10.2018 which is This is the case of the prosecution SUNENA 2024.08.31 10:58 I attest to the accuracy and authenticity of this document itself that incident had come to t immediately after its occurrence. s, to the knowledge of the parents, nce.” 6

9. Moreover, the legal posit 19 osition in respect of Section 319 Cr.P.C. is very very clear. In this regard, reference nce may be made to judgment of the Hon’ble Su le Supreme Court in the case titled led as “Sarabjit Singh Vs. State of Punjab, (2009 009) 16 SCC 46: wherein it has been been held that:- implicate “21….An order under Section 319 o “21 not be passed only because the f witnesses seeks and cogent reasons are required to as to satisfy the ingredients of th would not serve the purpose. convincing one at least for the extraordinary jurisdiction. For the courts are required to apply s tests being whether evidence on reasonably lead to conviction o summoned.” 319 of the Code, therefore, should the first informant or one of the ate other person(s). Sufficient red to be assigned by the court so of the provisions. Mere ipse dixit se. Such an evidence must be the purpose of exercise of the the aforementioned purpose, the ly stringent tests; one of the on record is such which would n of the person sought to be

10. Again, in the landmark case case of “Hardeep Singh Vs. State of Punjab an and Others, (2014) 3 SCC 92” 92”, the aforesaid view has been reiterated by by the Hon’ble Supreme Court w wherein it has been held that power under S der Section 319 Cr.P.C. is a discretion er, etionary and extraordinary power, which has to s to be exercised sparingly and ca d cautiously only in those cases circumstances so war warrant. In regard, the following obse observations as contained in Paras 105 and 106 of Hardeep Singh’s case (s se (supra) are relevant and are repro eproduced hereinbelow:- “105. Power under Section 319 C an extra-ordinary power. It is to b in those cases where the circumst 19 Cr.P.C., is a discretionary and to be exercised sparingly and only nt. umstances of the case so warrant. SUNENA 2024.08.31 10:58 I attest to the accuracy and authenticity of this document 6 use the Magistrate or the Sessions It is not to be exercised because t Judge is of the opinion that som Ju some other person may also be offence. Only where strong and guilty of committing that offen st a person from the evidence led cogent evidence occurs against a ower should be exercised and not before the court that such power er. in a casual and cavalier manner.

106. Thus, we hold that though o established from evidence led be tested on the anvil of Cross-Ex stronger evidence than mere pro test that has to be applied is on facie case as exercised at the tim short of satisfaction to an ex goes unrebutted, would lead to such satisfaction, the court sho power under Section 319 Cr.P.C purpose of providing if 'it appear person not being the accused ha clear from the words "for which together with the accused." The w such person could be convicted'. for the Court acting under Secti opinion as to the guilt of the accus gh only a prima facie case is to be d before the court not necessarily Examination, it requires much probability of his complicity. The is one which is more than prima e time of framing of charge. but n extent that the evidence, to conviction. In the absence of should refrain from exercising r.P.C. In Section 319 Cr.P.C., the pears from the evidence that any ' is ed has committed any offence' is hich such person could be tried The words used are not 'for which ted'. There is, therefore, no scope Section 319 Cr.P.C., to form any accused.”

11. Learned counsel for the p he petitioner is unable to dispute or controvert ert the above-said facts and finding dings, or the legal position.

12. In view of the above, no gr o ground is made out to interfere in the impugn ugned order. Present petition accor ccordingly, stands dismissed.

13. Pending application(s) if an if any also stand(s) disposed of.

27.08.2024 Sunena (Nidhi Gupta) Judge Whether Whether her speaking/reasoned her reportable SUNENA 2024.08.31 10:58 I attest to the accuracy and authenticity of this document Yes/No Yes/No