Amarjit Singh vs State of Punjab

M.L. Singhal, J.

This is a petition under Section 482 Cr.P.C. filed by Amarjit Singh whereby he has prayed that the investigation of case FIR No. 63 dated 20.8.1996 registered under Sections 363, 366, 376, 342, 368 IPC at PS Balachaur relating to the commission of rape upon his daughter Radhika aged 12 years by Balkar Singh son of Gulzar Singh and Bhag Singh son of Kartar Singh, Sarpanch, Gram Panchayat Paniali Kalan be handed over to the CBI or some other independent agency or some senior police officer of IPS rank.

In the statement of Radhika, prosecutrix on the basis of which his FIR was registered, is imputed the commission of rape on her by Balkar Singh and Bhag singh, Grievance of Amarjit Singh who claims to be husband of Radhika''s mother, Santosh Kumari is that Radhika was raped by Balkar Singh and Bhag Singh, Sarpanch of gram panchayat Paniali Kalan and the case is not being investigated by the local police impartially and with a view to bring to book the perpetrators of the crime against Radhika and her parents.

In reply to this petition filed by the State of Punjab through Deputy Superintendent of Police Balachaur Jhilman Singh, it has been submitted that case FIR No. 63 dated 20.8.1996 under sections 363, 366, 376, 342, 368 IPC has been registered at PS Balachaur against Balkar Singh and another case FIR No. 65 dated 25.8.1996 under sections 363, 366, 376, 342, 368, 452, 364, 148, 149 IPC at PS Balachaur also stands registered against Balkar Singh and these cases are being investigated. Balkar Singh has been arrested and is in judicial custody at Hoshiarpur. Radhika has been restored to her natural father in pursuance to the order dated 27.9.1996 Annexure R4 passed by Sub Divisional Judicial Magistrate, Balachaur. It has further been stated that during investigation, it transpired that the respectables of village Jeowal, Paniali Kalan, Bachhuan and Bharthla assembled and handed over Radhika to Amarjit Singh for a week and also decided that after one week, the prosecutrix would be free to go whenever she desired to go and she be allowed to go there and the police are investigating this aspect of the matter also. Prosecutrix was produced before the Sub Divisional Magistrate, Balachuar who recorded her statement under Section 164 Cr.P.C. During investigation the statement of the prosecutrix recorded under section 164 Cr.P.C., by the Magistrate is also being taken into account. It has been further stated that the case is being investigated independently without any pressure or extraneous consideration.

I do not see any reason to entrust the investigation of the case to CBI or some senior police officer or IPS rank when the D.S.P. Balachaur Shri Jhilman Singh has candidly stated that the case is being investigated fairly and squarely and that guilty would be brought to book and the distinction between rich and poor would not be allowed to blur the investigation.

Investigation agency is only to collect evidence. After the collection of evidence, they are required to put in the challan if prima facie evidence appears disclosing the commission of offence against the accused. Investigation agency may not challan the accused if in their opinion no worthwhile evidence has appeared against the accused. Evidence collected by the investigating agency will be scrutinized by the Court. If only Balkar Singh is challaned, the prosecutrix/State can make an application to the Magistrate under Section 319 Cr.P.C. that prima facie evidence has appeared against persons other than Balkar Singh also and they should also be arraigned. After considering this application of the prosecutrix/State, the Magistrate shall pass a speaking order. Assuming that the Magistrate does not agree to commit persons other than Balkar Singh to the Court of Sessions, the prosecutrix is not rendered without a remedy. The prosecutrix can move the court of Session under Section 319 Cr.P.C. that such and such person may also be arraigned for trial before it and their complicity in the commission of the offence appears from the evidence on record. Section 319 Cr.P.C. reads as follows :

"319. Power to proceed against other persons appearing to be guilty of offence :

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such persons is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under sub section (1), then

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced."

If the Court of Session, does not agree with the prosecutrix, the prosecutrix can knock the door of this Court in revision or by invoking the powers of this Court under section 482 Cr.P.C. With these observations this Crl. Misc. petition filed under section 482 Cr.P.C. is disposed of. It is, however, directed that the case shall be investigated under the supervision of some Supdt. of Police to be deputed by the Senior Supdt. of Police, Hoshiarpur keeping in view that the victim of rape is stated to be a tender girl aged 1314 years.