Analysis: Mukul v. State Of Punjab (2018)

Procedural History:

Petitioners have appealed to the High court of Punjab and Haryana asking for the revision of the order passed by the Additional Sessions Judge, Patiala who allowed the application by the complainant under Section 319 Cr.P.C. for summoning the additional accused namely Mukul(petitioner 1), Sushank, Gurpartap(Petitioner 2) and Misha. This is from the appeal challenged in High court.

Judgement

Both the petitions are allowed. The order is set aside so far as the petitioners are concerned.

Summary of Facts

The deceased (referred to as the victim) who is the daughter of the complainant (Manjinder Singh). She was a school going 16-year-old girl residing in a PG in Patiala. On 25.12.2014 the victim called her mother Harinder Kaur and told her that; a boy(Lovish Thapar) had been threatening her on phone and was demanding that; she should maintain illicit relations with him, failing which he would post her nude photographs on the net. Lovish Thapar(Main accused) was asked not to contact the victim by her family. The victim was returning on her moped at 6:00 P.M.

On the fateful day but she did not reach her house nor attended any calls. Later the victim’s body was recovered from the Bhakhra Canal on 10.01.2014. Upon further investigation, the offence under Section 376 IPC has also add apart from the one under Section 306 IPC and 354-A IPC and Section 11 and 12 of the Protection of Children from Sexual Offences Act, 2012.

The victim used to go for her tuitions. SIT was constituted and the mobile phones of the victim, the main accused and other persons were gone into. Mukul (petitioner), one Sushank Mishra and some other students were all in the same tuition and friends. The SIT conclude and suggested that the friends should be cite as witnesses to make the case strong and exonerate the persons name by Manjinder Singh in the supplementary statement. Manjinder Singh in his supplementary statement given on 18.01.2014 subsequently added that Mukul, Gurpartap, Sushank in connivance with Misha had committed gang rape upon the victim and she had taken the extreme step and had ended her life.

The police after a thorough investigation filed the challan only against Lovish.

An application was moved by the complainant for summoning the additional accused namely Mukul, Sushank, Gurpartap and Misha. That application was allowed and therefore, the challenge here.

Issue

1. Was the trial court right in allowing the application of the complainant under Section 319 CrPc?
2. What is the degree of satisfaction require for invoking the power under Section 319 CrPc?

Holding

Section 319 Cr.P.C. is an extraordinary power, which has to be exercise sparingly and should be exercise only in those cases where the circumstances of the case so warrant.

Rationale

The trial court refer to the material i.e. the Whatsapp chat but mainly only consider the statement of the father and observ that a prima facie case exist to summon the proposed accused as it appeared to it to be at par with the case of accused Lovish who was already facing trial. The judge cited the case of Hardeep Singh Vs. State of Punjab and others (2014) 3 SCC 92 wherein the constitutional bench observed:

106. Thus, we hold that though only a prima facie case is to be establish from the evidence led before the court not necessarily test on the anvil of Cross:

Examination, it requires much stronger evidence than the mere probability of his complicity. The test that has to be apply is one which is more than prima facie case 10 of 13 Crl. Revision No. 570 of 2016 (O&M) 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 a conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.”

The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form an opinion as to the guilt of the accused.

Counsel for Petitioner

It was argued the petitioners were not named in the FIR and no role was attributed to them and the SIT had gone into the Whatsapp chat (available on file) and it can be seen that the friends were supporting the victim and nothing is alarming in the chats and there was no material collected by the police or placed as evidence by the complainant and the trial Court 5 of 13 Crl. Revision No. 570 of 2016 (O&M) had erred in summoning them

Counsel for Complainant

It is urge that the trial Court had rightly exercise its powers base on the deposition of the complainant. It was urged that the police were hand in glove with the accused who were residents and only two of the accused have challenged the order and the statement of the complainant is evidence to the effect that the petitioners have committed the offence and there is no illegality or perversity in the order of the Trial Court.

Personal Comments

With great power comes great responsibility and it stands true for this judgement too. The trial court acted casually while dealing with the evidence of the case. A fair and just decision is only when the relevant facts combine with the relevant law are determine to keep the practical reality in mind. What may appear true may not necessarily be true. And the judge/magistrate should take the onus and responsibility while dealing with the question of law. Primary evidence should be strong enough to form a base for an accusation.