RAZAK Vs. STATE OF HARYANA AND ORS.

JUDGEMENT

(1.) The present petition lays challenge to order dated 09.07.2013 passed by the Additional Sessions Judge, Special Court (Crime against Woman), Palwal whereby the application filed by the complainant through the Public Prosecutor for summoning Pehlu son of Raokhan, Amardin son of Abdul Majid, Alimuddin son of Noor Mohd. & Sehrun son of Bhopat residents of village Chilli, Police Station Hathin, District Palwal as additional accused under Sec. 319 of the Code of Criminal Procedure (for brevity 'Cr.P.C.') has been dismissed.

(2.) The brief backdrop of this case is that FIR No. 141 dated 29.05.2011, for an offence punishable under Ss. 363, 366/34 of the Indian Penal Code (in short 'IPC') in regard to kidnapping of daughter of complainant Rajjak by Anish son of Deenu and Sehju son of Bhopat was registered in Police Station Hathin, District Palwal. On recovery of alleged kidnapped girl, her statement under Sec. 161 Cr.PC. was recorded on 27.02.2012 and offence under Sec. 376(g) was added. One of the accused namely Jafru son of Deenu was tried for commission of offence punishable under Ss. 363, 366, 368 and 378 IPC and was acquitted of the offence, vide judgment dated 17.07.2012 passed by the Additional Sessions Judge, Palwal. Four accused namely Sehju, Usman, Anish and Hayyum were sent up for trial for the aforesaid offences and during pendency of trial, the instant application under Sec. 319 Cr.PC. was filed for summoning of additional accused (respondents No. 2 to 5). The learned Additional Sessions Judge, Special Court dismissed the application vide order impugned in the present petition. However, Sehju and others have been convicted by the said Court for the offence (s) charged against them and their appeal is pending.

(3.) Counsel for the petitioner would urge that the learned trial Court has committed a grave error by merely relying upon the statement of the prosecutrix recorded under Sec. 161 Cr.PC. and the acquittal of Jafru, one of the accused with whom the prosecutrix performed marriage and later delivered a child. It is further submitted that statement of the prosecutrix under Sec. 161 Cr.PC. was recorded on 27.02.2012 and she has clearly stated in her statement recorded during the trial that the police did not record correct facts in the statement on which her thumb impression was obtained. The learned trial Court has neither adverted to the statement of the prosecutrix recorded under Sec. 164 Cr.P.C. by the Sub Divisional Judicial Magistrate, Hathin on 28.02.2012 Ex. PA nor her statement recorded in the Court Annexure R -2/4 for the purpose of recording satisfaction as to whether there is sufficient material on record to summon the additional accused. The learned Court has neither examined the provisions of Sec. 319 Cr.P.C. correctly nor the order can stand judicial scrutiny in view of judgment of the Constitution Bench of Hon'ble the Supreme Court of India Hardeep Singh v/s. State of Punjab and others, : 2014(1) RCR (Criminal) 623. It is further submitted that either the additional accused may be summoned by this Court to face trial for the offence committed by them or the matter may be remitted to the trial Court for consideration afresh in the light of enunciation of law laid down in Hardeep Singh's case (supra).