Challenge to summoning order under Section 319 Cr.P.C. against petitioner who allegedly facilitated rape by her son. Court found consistent allegations in FIR and victim statement, dismissing petition and refusing to interfere with summoning.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
120 CRR-1723-2024(O&M)
Date of order: 09.09.2024
BXXXX
…..Petitioner(s)
Vs.
State of Haryana & Another
…..Respondent(s)
CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA
Present:Mr.Vikas Bishnoi, Advocate for the petitioner.
Mr. Surinder Kumar Dagar, DAG Haryana.
Nidhi Gupta, J.
Challenge in the presen t petition is to the order date d 07.08.2024 p assed by learned Additional Sessions Judge (Fast Track Specia l Court), Hisar, whereby upon an applica t ion filed by the responden t No.2/compl a inant under section 319 Cr. P .C., the petitioner has bee n summoned a s an additional accused to fac e trial in case FIR No.573 date d 27.09.2022 registered under Sections 34 2 , 363, 376(3), 366-A IPC an d Section 4 of P OCSO Act at Police Station Ad a mpur.
2. Learned counsel for the p etitioner inter alia submits tha t there is nothing whatsoever on record t o implicate the petitioner. Th e petitioner h a s no role to play in the presen t FIR. The allegations have been made again s t the son of the petitioner that he has committed rape upo n the minor v ictim. In fact, after investiga t ion in the report filed unde r Section 173 Cr.P.C. by the Investigating A g ency, the petitioner has been
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found innoc e nt. It is submitted that even in her statement made unde r Section 164 Cr.P.C., the victim has not levelled any allegations against th e petitioner. M oreover, the Hon’ble Supre m e Court in case of “Hardeep
Singh Vs. State of Punjab & Others” 2008 (4) RCR (Criminal) 947, has held that if the v e rsion as stated by the complainant in the FIR is the same a s that in the e vidence, then no ground is made out for summoning of th e proposed a c cused under Section 319 Cr. P .C. It is submitted that it ha s further bee n held that the power under Section 319 Cr.P.C. has to b e exercised ca u tiously.
3. Learned counsel for the p etitioner further contends tha t there is also delay in registration of the pr e sent FIR as the date of allege d incident is 26.09.2022 at 10 pm; whereas t he FIR has been registered o n 27.09.2022 a t 11 pm. It is submitted that t h ere is no explanation given fo r the said del a y. It is accordingly, prayed t h at the impugned order be se t aside and th e petitioner be removed from t h e array of accused.
4. Learned State Counsel acknowledges that although during inves t igation the petitioner was fou n d to be innocent, however, it i s now admitt e d that specific allegations h a ve been levelled against th e petitioner.
5. No other argument is ma d e on behalf of the parties.
6. I have heard learned cou n sel for the parties and peruse d the case file in great detail.
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7. Victim in the present case is 14 years of age; wherea s
the main accused (son of the present pet i tioner) is 31 years of age. FI R (Annexure P 1 ) in the present case was regis t ered on the basis of statemen t made by mo t her of the victim and the same reads as follows:-
“To, The Station House Off i cer, Police Station Adampur. Respected Sir, it is requested t h at myself Shiksha wife of Mike l Bishnoi is resident of Village C habarwal. Yesterday on date d 26.09.2022 my neighbour Bh a go wife of Ashok Kumar alia s Shekhar resident of Chabarwa l at about 10:00 P.M. came t o our house and asked my daugh t er Priya aged about 14 years t o accompany her to her house a nd asked to apply mehandi o n her hands. Then I asked my d a ughter Priya to accompany he r aunt Bhago and at around 11: 0 0 P.M. my daughter came bac k to home and was weeping. I as k ed my daughter that why she i s crying. After that my daughter t old me that my aunt Bhago go t me locked in the room and Vij a y was already there. Vijay ha s committed bad act with me w ithout my consent. Strict lega l action be taken against Bhago and her son Vijay. Sd/- Shiksha. Applicant Shiksha wife of M i kel caste Bishnoi resident o f Chabarwal. Mobile no. 989689 5 51.”
8. Initially the FIR was regi s tered under Sections 342, 363 ,
366-a, 376( D ) A IPC and Section 6 of POC S O Act. However, subsequentl y Sections 37 6 (D) A and Section 6 of POCSO Act were deleted and offence s under Sections 376(3) IPC and 4 POCSO Act w ere added.
9. Perusal of the above s a id FIR reveals that clear an d categoric all e gations have been made ther e in by the complainant agains t the petition e r to the effect that she had asked the victim to accompany he r
to her hous e on the pretext of applying me h andi on her hands. It has been
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clearly alleg e d that after taking the victim t o her house, the petitioner ha d locked the v ictim in the room along with h er son Vijay who was alread y present in t h e room whereafter, the said V ijay/son of the petitioner ha d committed b ad act with the daughter of the complainant.
10. Perusal of the stateme n t made by the victim unde r Section 164 Cr.P.C. dated 29.09.2022 (An n exure P4) shows that she ha s reiterated the above said allegations as foll o ws:-
“Ans:- On dated 26.09.2022 at about 10 in the night I was a t my home. Then Bhago Devi ca m e to our house and she me wit h her to her house for applying m ehandi. Then she made sit i n the room and Bhago Devi told me she will come after pourin g water to cattle. After that she w ent away by locking door fro m outside. Her son is already sta n ding by the side of almirah an d he had committed bad act wit h me forcibly. His name is Vijay. After that I came running to m y house and narrated the whol e incident to my mother. After t h at on the next day we went t o Police Station for lodging of c o mplaint. Now action be take n against them.”
11. The victim in her testi m ony dated 29.02.2024 as PW 2
(Annexure P 3 ) has again reiterated the above said allegations as follows:-
“…On 26.09.2022, at 10:00 P. M . my neighbourer Smt. Bhag o wife of Ashok came to our hou s e and asked me to accompan y her for the purpose of applying heena (Mahandi) on her hands. Thereafter, after asking from m y mother, I accompanied Smt. Bhago. She asked me to sit in the room and told me that sh e was going to provide water to cattle. While going, she close d the door of that room a nd bol t ed from outside. Vijay accuse d today present in the court was standing beside the almirah o f
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that room. He pushed me on a bed after holding my hand an d he put of my clothes worn by m e. Then I pushed him resultin g thereby he fell on the ground. W hen I tried to cry then Vijay pu t a pillow upon my mouth an d he committed rape upon m e f orcibly. Then accused laid do w n on the bed and I returned t o my home. I narrated the entire story to my mother. My mothe r took me to the police station. I made a statement Ex. Pl o n 28.09.2022 before legal aid c o unsel namely Rekha Mittal i n presence of my mother and my statement Ex. Pl was signed b y my mother at Point A.
On 29.09.2022, I gave stateme n t before Illaqa Magistrate…”
12. From the above facts, it is crystal clear that the victim has consist e ntly adhered to her initial a llegations and has not at al l deviated fr o m the same. Specific allegati o ns have been made that th e petitioner h a d facilitated the commission o f the said crime under Sectio n 376 IPC. As such, no ground is made out to i n terfere in the impugned order.
13. As regards the contention of the petitioner that there i s delay in registration of the FIR as the date of incident is 26.09.2022 at 1 0 pm whereas the FIR has been registered o n 27.09.2022 at 11 pm, I find n o merit in the s ame. When such a crime is co m mitted needless to say it take s some time f o r the child victim and the family to firstly come to terms wit h the said fact. Then it also takes courage on part of the minor child to com e forward for r egistration of the case and to f ace the public ignominy that i s unfortunately, still involved in such cases. I n view of these facts, I find tha t the negligibl e delay in registration of the FI R will not be fatal to the case o f
the prosecu t ion.
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14. As such, no ground is made out to interfere in th e
impugned o r der. Present petition accordingly stands dismissed.
as an expres s ion of opinion on the merits of the matter.
09.09.2024 Sunena
(Nidhi Gupta) Judge
Whether speaking/reasoned Yes/No Whether reportable Yes/No
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2 issues framed by the court
Whether summoning of additional accused under Section 319 Cr.P.C. is justified when allegations are consistent and not refuted by investigation?
Whether delay in FIR registration is fatal in cases involving minor child victims?
Colour shows how this judgement treated each authority
Hardeep Singh v. State of PunjabRelied on¶20
Hardeep Singh Vs. State of Punjab & Others” 2008 (4) RCR (Criminal) 947
6 provisions across 3 enactments
BXXXX
State of Haryana
Another
Nidhi Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
