Kasif and anr Vs. State

Kasif and anr vs State

Type Court Judgment Court Delhi Decided Feb 12, 2013

~4 min read

https://sooperkanoon.com/case/957571

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Citation: sooperkanoon.com/957571
Court: Delhi High Court
Judge: G.P. Mittal
Decided On: Feb 12, 2013
Subject: Education

Case Summary

AI-generated summary - not the official court judgment text.

Education

Key legal issue: Education

Parties & Advocates

Appellant / Petitioner

Kasif and anr

Advocate Mr. I.A. Alvi, Mr. Anurag Jain

Respondent

State

Advocate Ms. Rajdipa Behura

Excerpt

.....be tried together. the petitioner no.2 was arrested almost two years of the incident. petitioner no.1 and 2 should be tried together for the same offence which is alleged to have been committed by them in the course of the same transaction.4. the facts of the case are not in dispute. admittedly, this case relates to an incident which allegedly took place on 07.10.2010 wherein the prosecutrix was kidnapped and raped by four boys in a maruti car on the pretext of dropping her to the house of her brother at kucha pandit. it is the case of the prosecution that the prosecutrix was taken to a room in some hotel where all the four accused took turn to commit sexual intercourse with her against her (the prosecutrixs) consent.5. juvenile tohid was the first to be apprehended on 10.10.2010 followed by petitioner no.1 who was arrested after another seven months on 07.05.2011. the learned a.s.j.in the impugned order has recorded that statement of the prosecutrix(pw1) was recorded on 16.01.2012. in view of the request dated 10.04.2012, the prosecutrix was recalled and crossexamined on 31.08.2012. again on an application under section 311 of the code of criminal procedure, the prosecutrix was called for further cross-examination to a limited extent to confront her with her previous statement. the learned a.s.j.records that the case as against the petitioner no.1 is at the stage of final argument, whereas the case as against petitioner no.2 had just been committed to the sessions court. thus, she declined the request of the petitioner no.2 for a joint trial with the petitioner no.1.6. it is urged by the learned counsel for the petitioners that the petitioners would be greatly prejudiced on account of separate trials. reliance is placed on an unreported order passed by the supreme court in puneet suneja & ors. v. state of nct of delhi, (in special leave to appeal(crl) no.1523/2009) decided on 11.05.2009. the judgment cited is not attracted to the facts of the present case. in.....

Full Judgment

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:

12. h February, 2013 + CRL. REV.P. 81/2013 KASIF & ANR Through: ..... Petitioners Mr. I.A. Alvi with Mr. Anurag Jain, Advocates versus STATE Through: ..... Respondent Ms. Rajdipa Behura, APP. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT G. P. MITTAL, J.

(ORAL) 1. In this Revision Petition, the Revisionist impugns an order dated 06.02.2012 passed by the learned Additional Sessions Judge (A.S.J.) whereby his prayer for joint trial with co-accused Mozhar was declined.

2. An FIR No.187/2010 was registered against the Petitioners and one juvenile, namely, Tohid for an offence punishable under Sections 365/34 and 376(2)(G) of the Indian Penal Code. The juvenile was arrested on 10.10.2010 and an inquiry was separately conducted by the Juvenile Justice Board with which the present Petition is not concerned. Petitioner No.1 was arrested on 07.05.2011. Petitioner No.2, however, could not be arrested. He was declared a proclaimed offender. According to the averments made in the petition, he was arrested only on 07.11.2012, that is, after more than two years of the occurrence and 1 years of the arrest of Petitioner No.1. A supplementary charge sheet was filed against Petitioner No.2 on 31.01.2013 and the case was committed to the Court of Session. It was assigned to the Court of learned Additional Sessions Judge (A.S.J.) who was also hearing the Sessions Case against Petitioner No.1.

3. Petitioners grievance is that Section 223 of the Code of Criminal Procedure mandates that the person accused of the same offence committed in the course of the same transaction must be tried together. The Petitioner No.2 was arrested almost two years of the incident. Petitioner No.1 and 2 should be tried together for the same offence which is alleged to have been committed by them in the course of the same transaction.

4. The facts of the case are not in dispute. Admittedly, this case relates to an incident which allegedly took place on 07.10.2010 wherein the prosecutrix was kidnapped and raped by four boys in a maruti car on the pretext of dropping her to the house of her brother at Kucha Pandit. It is the case of the prosecution that the prosecutrix was taken to a room in some hotel where all the four accused took turn to commit sexual intercourse with her against her (the prosecutrixs) consent.

5. Juvenile Tohid was the first to be apprehended on 10.10.2010 followed by Petitioner No.1 who was arrested after another seven months on 07.05.2011. The learned A.S.J.

in the impugned order has recorded that statement of the prosecutrix(PW1) was recorded on 16.01.2012. In view of the request dated 10.04.2012, the prosecutrix was recalled and crossexamined on 31.08.2012. Again on an Application under Section 311 of the Code of Criminal Procedure, the prosecutrix was called for further cross-examination to a limited extent to confront her with her previous statement. The learned A.S.J.

records that the case as against the Petitioner No.1 is at the stage of final argument, whereas the case as against Petitioner No.2 had just been committed to the Sessions Court. Thus, she declined the request of the Petitioner No.2 for a joint trial with the Petitioner No.1.

6. It is urged by the learned counsel for the Petitioners that the Petitioners would be greatly prejudiced on account of separate trials. Reliance is placed on an unreported order passed by the Supreme Court in Puneet Suneja & Ors. v. State of NCT of Delhi, (in Special Leave to Appeal(Crl) No.1523/2009) decided on 11.05.2009. The judgment cited is not attracted to the facts of the present case. In Puneet Suneja, the Criminal Appeals arising out of the same judgment were before the High Court. Some of the Appeals were decided whereas the others were pending. In the instant case, as stated above, the incident took place on 07.10.2010. Petitioner No.2 was arrested only on 07.11.2012, that is, after more than two years of the incident. Since the trial with regard to the Petitioner No.1 is already over, it would not be in the interest of justice to have a joint trial of both the Petitioners.

7. It may be mentioned that Section 223 of the Code is an exception to the general rule that every accused should be separately tried for the offence for which he has been charged. The Clauses (a) to (g) of Section 223 of the Code are an exception to the general rule and empowers the Court to charge certain categories of accused persons and try them together. Since the case as against the Petitioner No.1 is at the final stage, I am not inclined to entertain the Revision Petition.

8. The Revision Petition is dismissed in limine.

9. Pending Applications stand disposed of. (G.P. MITTAL) JUDGE FEBRUARY 12 2013 pst

Same Court & Year Delhi · 2013 Same Parties Kasif and anr vs State Same Subject Education Same Judge G.P. Mittal