Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1750 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 166 OF 2007
HARDEEP SINGH … APPELLANT
VERSUS
STATE OF PUNJAB & ORS. … RESPONDENTS
WITH
CRIMINAL APPEAL NO. 1751 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 2051 OF 2007
MANJIT PAL SINGH … APPELLANT
VERSUS
STATE OF PUNJAB & ANR. … RESPONDENTS
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. Both the parties in the High Court
have filed present appeals against the judgment
and order passed by the High Court of Punjab &
2
Haryana, dated October 23, 2006 in Criminal
Revision Nos. 773 of 2006 and 1648 of 2006.
3. To appreciate the contentions raised
by the parties, it would be appropriate to
narrate few facts.
4. In the appeal arising out of Special
Leave Petition (Crl.) No. 166 of 2007, the case
of the prosecution is that an auction for
leasing the land was held by the Gram Panchayat
of village Indrapuri, Tehsil Samana, District
Patiala on April 21, 2004 for cultivation on
yearly basis ( Eksali ) for the year 2004-05. The
bid of the appellant was accepted and lease was
granted in his favour. The appellant was thus
in possession of the land.
5. According to the prosecution, on June
24, 2004, the appellant was ploughing the land.
The accused persons went there with deadly
weapons and caused injuries to the appellant as
well as other prosecution witnesses. First
Information Report (FIR) was lodged against the
accused at Police Station Sadar, Samana for
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commission of offences punishable under
Sections 307, 326, 336 and 427 read with
Sections 120B, 148 and 149 of the Indian Penal
Code, 1860 (IPC) as also for offences
punishable under Sections 25, 27, 54 and 59 of
the Arms Act, 1959. Accused were arrested.
Vijay Preet Singh (respondent No. 2) was one of
them.
6. It is the allegation of the appellant
that Vijay Preet Singh-respondent No.2 herein
is the son of Sukhvinder Singh, Chairman of
Panchayat Samiti, Samana. The said Sukhvinder
Singh interfered with the investigation. With a
view to get the name of his son Vijay Preet
Singh deleted by exercising influence on Police
Authorities, he made an application on June 26,
2004, i.e. within two days of the incident,
lodging of FIR and arrest of Vijay Preet Singh
to Senior Superintendent of Police (SSP),
Patiala, inter alia, stating therein that Vijay
Preet Singh was resident of village
Meayalkhurd, was studying in 10+2 class and at
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the time of occurrence he was not there but was
at his residence and was falsely implicated in
the case. He, therefore, asked the Senior
Superintendent of Police (SSP) to make an
inquiry either himself or through some senior
officer so that justice be done to Vijay Preet
Singh.
7. It also appears that Jagtar Singh-
respondent No.3 herein also made a similar
application on July 03, 2004 to Deputy
Inspector General (DIG), Patiala asserting that
in an incident dated June 24, 2004, his name
was not mentioned in the FIR, but he had been
falsely involved and he was likely to be
arrested. His name was given by some persons
due to grudge by the complainant side. There
was a cross-case also. He, therefore, prayed
that an inquiry may be conducted through an
independent officer and the applicant may not
be arrested till he is proved guilty.
8. It appears that an inquiry was
conducted by police and a report was submitted
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by Superintendent of Police (D), Patiala to
SSP, Patiala on July 12, 2004 wherein it was
stated that respondent Nos. 2 and 3 i.e. Vijay
Preet Singh and Jagtar Singh had not committed
any offence and they were falsely implicated. A
recommendation was, therefore, made not to
initiate proceedings against both of them. Both
the persons were, therefore, discharged.
9. During the course of trial, however,
depositions of witnesses were recorded. PW2
Hardeep Singh, in his deposition, stated that
Vijay Preet Singh as also Jagtar Singh,
respondents Nos. 2 and 3 were present at the
time of incident with weapons. So far as
respondent No.2-Vijay Preet Singh is concerned,
his name was mentioned in the FIR. He
participated in the incident and was having a
weapon with him ( gandasi ). He was also arrested
by the police from the place of offence.
Similarly, respondent No.3-Jagtar Singh was
present with soti. He also participated in the
incident by raising lalkaras. In furtherance of
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common object, all the accused assaulted the
complainant party and committed the offences
with which they were charged. It is on the
basis of the report submitted by Superintendent
of Police (D), Patiala to Senior Superintendent
of Police, Patiala that they were discharged.
An application was, therefore, made by the
Addl. Public Prosecutor under Section 319 of
the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’) to
include respondent Nos. 2 and 3 as accused and
to summon them for trial.
10. The Court of the Addl. Sessions Judge,
Patiala, however, by an order dated January 12,
2006 rejected the application observing that he
did not find sufficient grounds to proceed
against Vijay Preet Singh and Jagtar Singh.
11. Being aggrieved by the said order, the
appellant herein approached the High Court of
Punjab & Haryana by filing Criminal Revision
No. 773 of 2007. The High Court, however,
dismissed the Revision and confirmed the order
7
passed by the trial Court. The said order is
challenged in the present appeal.
12. In the appeal arising out of Special
Leave Petition (Crl.) No. 2051 of 2007, the
case of the appellant was that the accused
[complainant party in SLP (Crl.) No. 166 of
2007] had formed unlawful assembly and
committed offences punishable under Sections
307, 326, 336, 447, 427 read with Sections 148
and 149, Indian Penal Code (IPC) as also under
Sections 25, 27, 54 and 59 of the Arms Act,
1959. Cross FIR was, therefore, filed on the
same day i.e. on June 24, 2004.
13. According to the appellant, respondent
No.2-Kashmir Singh, son of S. Sucha Singh was
very much present but his name was not included
in the charge-sheet and as per the report
submitted by the Police Authorities, said
Kashmir Singh was innocent. During the course
of trial, however, PW5-Jagdeep Singh stated
that Kashmir Singh was also present and was one
of the members of unlawful assembly. An
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application was, therefore, made to the trial
Court (Addl. Sessions Judge) by the Addl.
Public Prosecutor under Section 319 of the Code
to include the name of Kashmir Singh as an
accused and to issue summons to him. The prayer
was, however, rejected by the trial Court which
was challenged by the appellant herein by
filing Criminal Revision No. 1648 of 2006, but
it was also dismissed by the High Court. The
said order is challenged by the appellant in
this Court.
14. Notice in SLP (Crl) No. 166 of 2007
was issued on January 22, 2007. In the other
matter, i.e. SLP (Crl) No. 205 of 2007, notice
was issued on April 02, 2007. Both the cases
were ordered to be heard together. The Registry
was directed to list the matter for final
hearing on a non-miscellaneous day and that is
how the matters have been placed before us.
15. We have heard learned counsel for the
parties.
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16. The learned counsel for the appellant
in the appeal arising out of SLP (Crl) No. 166
of 2007 submitted that the order passed by the
trial Court and confirmed by the High Court is
clearly erroneous and deserves to be set aside.
It was submitted that so far as Vijay Preet
Singh is concerned, he was very much present at
the time of incident with a weapon ( gandasi ),
his name was included in the First Information
Report (FIR) and he was also arrested by the
police from the place of offence since he
actually participated in the crime. The
Investigating Agency was, therefore, wholly
wrong in deleting his name and in reporting
that Vijay Preet Singh was not present at the
time of incident and he reached at the place of
offence after the incident was over. Such
report was made only with a view to oblige
Sukhvinder Singh, father of Vijay Preet Singh
who was Chairman of Panchayat Samiti, Samana.
Even otherwise, during the course of trial, the
prosecution evidence revealed that Vijay Preet
1
Singh was present at the time of incident. A
clear case for application of Section 319 of
the Code had been made out and the trial Court
was wrong in rejecting the application to join
Vijay Preet Singh as an accused and to issue
summons to him. Similar error was committed by
the High Court.
17. Likewise, the Investigating Agency
wrongly recommended deletion of name of Jagtar
Singh. From the examination of prosecution
witnesses, it was clear that Jagtar Singh was
also present at the time of incident with
weapon and he participated in the crime. An
application under Section 319 of the Code,
hence, ought to have been allowed.
18. It was submitted that even if name of
a particular person is not mentioned in the FIR
as an accused, he can, later on, be added as an
accused and a summons can be issued by a Court
in exercise of power under Section 319 of the
Code. It was, therefore, submitted that the
order passed by the trial Court and confirmed
1
by the High Court deserves to be set aside and
the appeal deserves to be allowed.
19. The learned counsel for respondent
Nos. 2 and 3, on the other hand, supported the
order passed by the trial Court and confirmed
by the High Court.
20. It was stated that an inquiry had been
conducted by the Investigating Agency and on
the basis of statements recorded during
investigation, it was proved that respondent
Nos.2-Vijay Preet Singh reached at the spot
after the incident was over and hence, he could
not be joined as accused though his name was
found in FIR and he was arrested by police and
accordingly report was made to delete his name.
21. So far as Jagtar Singh is concerned,
his name was not mentioned in the FIR. During
the investigation also, nobody stated that
Jagtar Singh participated in the incident and,
hence, his name was deleted.
22. According to the counsel, only at the
time of trial, with a view to falsely implicate
1
respondent Nos. 2 and 3, prosecution witnesses
had named them. The trial Court, therefore,
rightly rejected the prayer and the High Court
confirmed it. No case for interference by this
Court in exercise of discretionary jurisdiction
under Article 136 of the Constitution has been
made out and the appeal deserves to be
dismissed.
23. The learned counsel for the State also
supported the respondents and prayed for
dismissal of the appeal.
24. In the cross-appeal, learned counsel
for the appellant submitted that Kashmir Singh
was present and participated in the incident.
In the course of trial, the prosecution
witnesses expressly stated about the presence
and participation of respondent No.2-Kashmir
Singh and the action of non-issuance of summons
to respondent No.2-Kashmir Singh by the trial
Court and confirmed by the High Court is
erroneous and the appeal deserves to be
allowed.
1
25. The learned counsel for Kashmir Singh
supported the order and prayed for dismissal of
appeal. The counsel for the State also prayed
for dismissal of appeal.
26. Now, Section 319 of the Code empowers
a Court to proceed against any person if it
appears from the evidence that such person has
also committed an offence for which he can be
tried together with other accused. The said
section reads as under;
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
had 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 person 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 detailed by such Court
1
for the purpose of the inquiry 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
witnesses re-heard ;
(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.
(emphasis supplied)
27. Sometimes while hearing a case against
one or more accused, it appears to a Court from
the evidence that some person other than the
accused before it is also involved in that very
offence. It is only proper that a Court should
have power to summon such person by joining him
as an accused in the case.
28. The primary object underlying Section
319 is that the whole case against all the
accused should be tried and disposed of not
1
only expeditiously but also simultaneously.
Justice and convenience both require that
cognizance against the newly added accused
should be taken in the same case and in the
same manner as against the original accused.
The power must be conceded as incidental and
ancillary to the main power to take cognizance
as part of normal process in the administration
of criminal justice.
29. Before three decades, in Joginder
Singh & Anr. v. State of Punjab & Anr., (1979)
1 SCC 345, charge sheet was submitted against
certain accused. During trial, however,
evidence of some of the witnesses was recorded
who implicated the appellants. A Public
Prosecutor, therefore, moved an application to
summon them and to try them along with other
accused. The application was granted. The order
was challenged by the appellants.
30. This Court considered the relevant
provisions of the Code of Criminal Procedure,
1898 (old Code), Forty-first Report of the Law
1
Commission, the amendment made in the present
Code and held that the Court could add any
person, not accused before it, as accused and
direct him to be tried along with the other
accused for the offence or offences the added
accused appears to have committed.
31. In Municipal Corporation of Delhi v.
Ram Kishan Rohtagi & Ors., (1983) 1 SCC 1, the
Food Inspector, noticing adulteration in
‘Morton Toffees’, filed a complaint against the
Company, its Managing Director as well as
Directors under the Prevention of Food
Adulteration Act, 1954. The Managing Director
and Directors approached the High Court by
invoking Section 482 of the Code for quashing
of proceedings which was granted and the
proceedings against them were quashed. The
question before this Court was whether Section
319 of the Code could be invoked once criminal
proceedings against a person were quashed.
32. Replying the question in the
affirmative and quoting with approval
1
observations in Joginder Singh, this Court held
that if it appears to the Court that any person
not being the accused before it, but against
whom there appears, during trial, sufficient
evidence indicating his involvement in the
offence, he can be summoned.
33. The Court, however, was conscious of
the extraordinary nature of the power under
Section 319 of the Code and stated;
“(W)e would hasten to add that this is
really an extraordinary power which is
conferred on the Court and should be
used very sparingly and only if
compelling reasons exist for taking
cognizance against the other person
against whom action has not been
taken. More than this we would not
like to say anything further at this
stage. We leave the entire matter to
the discretion of the court concerned
so that it may act according to law ”.
(emphasis supplied)
34. In Shashikant Singh v. Tarkeshwar
Singh & Anr., (2002) 5 SCC 738, during the
pendency of trial of an accused, another person
was summoned by the trial Court under Section
319 of the Code. But by the time he could be
1
brought before the Court, the trial against the
accused was over. It was held by this Court
that the words “could be tried together with
the accused” in Section 319(1) were merely
directory and if the trial against the other
accused is over, such a person who was
subsequently added as an accused, could be
tried after the conclusion of the trial of the
main accused.
35. In Michael Machado & Anr. V. Central
Bureau of Investigation & Anr., (2000) 3 SCC
262, considering the basic requirements of
Section 319 of the Code, this Court said;
“The basic requirement for invoking
the above section is that it should
appear to the Court from the evidence
collected during trial or in the
inquiry that some other person, who is
not arraigned as an accused in that
case, had committed an offence for
which that person could be tried
together with the accused already
arraigned. It is not enough that the
Court entertained some doubt, from the
evidence, about the involvement of
another person in the offence. In
other words, the Court must have
reasonable satisfaction from the
evidence already collected regarding
two aspects. First is that the other
1
person has committed an offence.
Second is that for such offence that
other person could as well be tried
along with the already arraigned
accused”.
36. Highlighting the underlying object of
the provision, the Court proceeded to state;
“But even then, what is conferred on
the Court is only a discretion as
could be discerned from the words "the
Court may proceed against such
person". The discretionary power so
conferred should be exercised only to
achieve criminal justice. It is not
that the Court should turn against
another person whenever it comes
across evidence connecting that
another person also with the offence.
A judicial exercise is called for
keeping a conspectus of the case,
including the stage at which the trial
has proceeded already and the quantum
of evidence collected till then, and
also the amount of time which the
Court had spent for collecting such
evidence. It must be remembered that
there is no compelling duty in the
Court to proceed against other
persons”.
37. Observing that there was no reasonable
prospect of conviction of the persons sought to
be arraigned as accused, the Court held that no
2
order could be made under Section 319 of the
Code.
38. In Krishnappa v. State of Karnataka,
(2004) 7 SCC 792, applying Ram Kishan Rohtagi
and Michael Machado, the Court ruled that the
power to summon an accused is an extraordinary
power conferred on the Court and it should be
used very sparingly and only if compelling
reasons exist for taking cognizance against the
person other than the accused.
39. In Y. Saraba Reddy v. Puthur Rami
Reddy & Anr., (2007) 4 SCC 773 : (2007) 6 SCR
68, a three-Judge Bench of this Court to which
one of us was a party (D.K. Jain, J.), a
similar situation arose. In the FIR, names of
certain persons were mentioned. On an
application by those persons, the matter was
investigated by the Deputy Superintendent of
Police and the report was submitted that they
were not present at the time of incident. On
the basis of the report, their names were
deleted from the array of accused. The case was
2
then committed to the Court of Session. PW1, in
his examination involved the said persons and
an application under Section 319 of the Code
was filed for issuing summons to them. The
trial Court rejected the application primarily
on the ground that the plea of alibi was
investigated by the Deputy Superintendent of
Police and was found to be correct. The High
Court did not find infirmity in the order. The
action was challenged in this Court.
40. Allowing the appeal and setting aside
the order of the High Court, Dr. Pasayat, J.
said; “If the satisfaction of the Investigating
Officer or Supervising Officer is to be treated
as determinative, then the very purpose of
Section 319 of the Code would be frustrated.
Though it cannot always be the satisfaction of
the Investigating Officer which is to prevail,
yet in the instant case the High Court has not
found the evidence of PW-1 to be unworthy of
acceptance. Whatever be the worth of his
evidence for the purposes of Section 319 of the
2
Code it was required to be analysed. The
conclusion that the IO's satisfaction should
be given primacy is unsustainable”.
(emphasis supplied)
41. In Guriya & Ors. v. State of Bihar &
Anr., (2007) 8 SCC 224, appellants were not
arrayed as accused. On the basis of prosecution
evidence, however, an application under Section
319 of the Code was filed which was allowed by
the High Court and appellants were added as
accused. Appellants questioned the legality of
the order.
42. This Court allowed the appeal, set
aside the order of the High Court and dismissed
the application filed under Section 319 of the
Code observing that there was no material
against appellants, their names were not found
in FIR, no overt act had been attributed to
them and the protest petition filed by the
complainant against them had also been
dismissed.
2
43. Very recently, in Bholu Ram v. State
of Punjab & Anr., JT 2008 (9) SC 504, we were
called upon to consider such a situation.
Referring to earlier decisions, we held that
such a course is open to a Court and power
under Section 319 of the Code can be exercised
by the Court to issue summons to a person who
was not originally shown as an accused. Such an
order cannot be said to be illegal, unlawful or
otherwise objectionable.
44. It is, however, submitted on behalf of
the accused that in the instant case, an
application was made by the Public Prosecutor
before the cross-examination of PW2-Hardeep
Singh was over. It was strenuously contended
that for application of Section 319 of the Code
and exercise of power to proceed against person
other than the person shown as an accused,
there must be an evidence before the Court and
such satisfaction can be arrived at by the
Court only upon completion of cross-
examination.
2
45. In this connection, reference was made
to a two Judge Bench decision of this Court in
Mohd. Shafi v. Mohd. Rafiq & Anr., (2007) 4 SCR
1023. In Mohd. Shafi, an FIR was lodged against
the accused alleging the commission of an
offence punishable under Section 302, IPC. The
police submitted charge-sheet against K but not
against M (appellant). At the trial, PW1 was
examined and in his examination-in-chief, he
asserted that M also participated in the
incident. An application was filed for
summoning him under Section 319 of the Code
which was rejected by the trial Court but
allowed by the High Court. M approached this
Court.
46. Allowing the appeal and setting aside
the order passed by the High Court, this Court
observed that the order passed by the High
Court was not sustainable. It was held that
satisfaction under Section 319 of the Code
could be arrived at only after cross-
2
examination of the witness is over. The Court
stated;
“The Trial Judge, as noticed by us, in
terms of Section 319 of the Code of
Criminal Procedure was required to
arrive at his satisfaction. If he
thought that the matter should receive
his due consideration only after the
cross-examination of the witnesses is
over, no exception thereto could be
taken far less at the instance of a
witness and when the State was not
aggrieved by the same”.
(emphasis supplied)
47. The counsel submitted that admittedly
in the instant case, cross-examination of PW2-
Hardeep Singh was not over. In the course of
cross-examination by some of the accused
persons, the learned Additional Public
Prosecutor moved the Court under Section 319 of
the Code and further cross-examination was
deferred. It was, therefore, submitted that no
order under Section 319 could be made and the
application was liable to be dismissed.
2
48. The learned counsel for the
complainant, however, placed reliance on a two
Judge Bench decision in Rakesh & Anr. V. State
of Haryana, (2001) 6 SCC 248. An identical
issue was raised there. The father of the
prosecutrix lodged an FIR alleging commission
of offences under Sections 363, 366 and 376,
IPC by Rakesh and others. According to the
complainant, his daughter was taken by three
persons due to previous enmity with the object
of committing rape. The girl was then found
with P. After the investigation, charges were
framed only against P. At the trial, however,
certain witnesses were examined and on the
basis of their evidence, the Public Prosecutor
filed an application under Section 319 of the
Code for arraying persons other than P as
additional accused. The prayer was granted. The
order was confirmed by the High Court. The
appellants approached this Court. The question
before this Court was whether the statement of
a prosecution-witness without such witness
2
having been cross-examined, constituted
‘evidence’ within the meaning of Section 319 of
the Code.
49. Replying the question in the
affirmative, noticing conflicting views of
different High Courts and holding that the term
‘evidence’ used in sub-section (1) of Section
319 of the Code is comprehensive, the Court
stated;
“Once the Sessions Court records a
statement of the witness it would be
part of the evidence. It is true that
finally at the time of trial the
accused is to be given an opportunity
to cross-examine the witness to test
its truthfulness. But that stage would
not arise while exercising court's
power under Section 319 Cr.P.C. Once
the deposition is recorded, no doubt
there being no cross-examination, it
would be a prima facie material, which
would enable the sessions court to
decide whether powers under Section
319 should be exercised or not. Sub-
section (1) of Section 319 itself
provides that in the course of any
inquiry into, or trial of, an offence,
it appears from the evidence that any
persons 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
50. The Court added;
“Hence, it is difficult to accept the
contention of the learned counsel for
the appellants that the term
'evidence' as used in Section 319
Criminal Procedure Code would mean
evidence which is tested by cross
examination. The question of testing
the evidence by cross-examination
would arise only after addition of the
accused. There is no question of
cross-examining the witness prior to
adding such person as accused. Section
does not contemplate an additional
stage of first summoning the person
and giving him an opportunity of
cross-examining the witness who has
deposed against him and thereafter
deciding whether such person is to be
added as accused or not. Word
"evidence" occurring in sub-section is
used in comprehensive and broad sense
which would also include the material
collected by the investigating officer
and the material or evidence which
comes before the Court and from which
the Court can prima facie conclude
that person not arraigned before it is
involved in the commission of the
crime”.
51. Thus, once the Sessions Court records
a statement of a witness, it becomes a part of
evidence. It is true that finally at the time
of trial, the accused must be given an
2
opportunity to cross-examine the witness to
test truthfulness of such statement. But that
stage would come only after the person is added
as an accused. The Code in such situation has
afforded sufficient protection by enacting sub-
section (4).
52. When an examination-in-chief of a
witness is over, there being no cross-
examination, it would be merely prima facie
material. But it would enable the Sessions
Court to decide whether powers under Section
319 of the Code should be exercised or not.
Sub-section (1) of Section 319 itself provides
that 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.
53. In State of H.P. v. Surinder Mohan &
Ors. , (2000) 2 SCC 396, this Court negatived
3
the contention that before granting pardon
under Section 306 of the Code, accused should
be permitted to cross examine such person whose
evidence is recorded by the Magistrate. The
Court held that at the time of investigation or
inquiry into an offence, the accused cannot
claim any right under law to cross-examine the
witness. The right to cross-examine arises only
at the time of trial. During the course of
investigation by the police, the question of
cross-examination by the accused does not
arise. Under Section 200 of the Code, when the
Magistrate before taking cognizance of the
offence, that is, before issuing process holds
an inquiry, the accused has no locus standi or
right to be heard, and, therefore, there is no
question of cross-examination of the witness.
54. It is thus difficult to accept the
contention of the learned counsel for the
appellants that the term 'evidence' used in
sub-section (1) of Section 319 of the Code
3
would mean evidence which is tested by cross
examination. The question of testing the
evidence by cross-examination would arise only
after addition of the accused. There is no
question of cross-examining the witness prior
to adding such person as accused. Section does
not contemplate an additional stage of first
summoning the person and giving him an
opportunity of cross-examining the witness who
has deposed against him and thereafter deciding
whether such person should or should not be
added as accused. The word "evidence" occurring
in sub-section (1) of Section 319 is used in
comprehensive and broad sense which would also
include the material collected by the
investigating officer and the evidence which
comes before the Court and from which the Court
is satisfied that person not arraigned before
it is involved in the commission of the crime.
55. Rakesh thus ruled that an application
under Section 319 of the Code is maintainable
3
even without completion of cross-examination of
a witness. If the Court is satisfied on the
basis of examination-in-chief of a witness that
a person not shown to be an accused appears to
have committed an offence, it can exercise the
power under Section 319 of the Code.
56. According to Mohd. Shafi, however, no
such order can be passed by a Court under
Section 319 unless the cross-examination of the
witness is complete.
57. Both the cases i.e. Rakesh and Mohd.
Shafi were decided by a two Judge Bench.
Whereas Rakesh was decided in 2000, Mohd.
Shafi was decided in 2007. In Mohd. Shafi,
however, the attention of the Court was not
invited to Rakesh.
58. We may only observe that it is settled
law that at the stage of issuing summons or
process, a Court has to see whether there is
prima facie case against the person sought to
be summoned or against whom process is sought
to be issued. At that stage, there is no
3
question of giving an opportunity of hearing to
such person. The entire scheme of the Code is
that an accused does not come into picture at
all till process is issued. As held by this
Court in several cases including a leading
decision in Nagavva v. Veeranna, (1976) 3 SCC
736, the accused at pre-process stage has no
locus standi and is not entitled to be heard on
the question whether the process should be
issued against him or not. It may, therefore,
be said that till summons or process is issued
against the accused, he has no right of
audience and in that case, it cannot be said
that on being satisfied on the basis of
examination-in-chief, an application under
Section 319 of the Code is not maintainable.
59. There is yet another reason which is
also very relevant and material. When a person
who is not shown as an accused is sought to be
added on the basis of evidence in exercise of
power under Section 319 of the Code, he is not
before the Court. Other accused against whom
3
the trial has commenced are very much before
the Court and generally they are represented by
an advocate/advocates. In the evidence of a
witness, when role of other person i.e. other
than the accused is described by prosecution
witnesses, normally, accused who are already on
record are not affected. Grant or rejection of
application under Section 319 would generally
not alter their position. In our considered
opinion, therefore, holding that unless the
cross-examination of a witness by accused who
were already on record is over and complete, no
power under Section 319 of the Code can be
exercised, does not appear to be sound.
60. The matter can still be looked at from
another angle. The Code has taken care by
sufficiently protecting and safeguarding the
interest of such added accused. Sub-section (4)
of Section 319 expressly provides that where
the Court exercises power under sub-section (1)
and proceeds against a person not arrayed as an
3
accused, “the proceedings in respect of such
person shall be commenced afresh, and
witnesses re-heard”. Thus, after exercise of
power by the Court under Section 319(1), such
added accused would be placed in the same
position as other accused and will get all
rights an accused can get under the Code. The
proceedings against the added accused shall be
commenced afresh and witnesses will be reheard .
Their evidence, prior to addition of the
accused cannot be used against the accused who
was not there earlier. The question of
prejudice, hence, does not arise at all.
61. It was submitted on behalf of the
appellants that being a decision of two Judge
Bench, Rakesh was binding upon Mohd. Shafi and
the subsequent decision thus is per incurium.
The accused, on the other hand, submitted that
being latest in point of time, Mohd. Shafi
should be followed by this Court.
3
62. In our considered opinion, however, in
the light of conflicting decisions of co-
ordinate Benches, (both of two Hon’ble Judges),
it would be appropriate if we refer the matter
to a Bench of three Hon’ble Judges.
63. In the case on hand, in an appeal
arising out Special Leave Petition (Crl) No.
2051 of 2007 ( Manjit Pal Singh v. State of
Punjab & Anr. ), there was nothing against
respondent No.2-Kashmir Singh and the report
submitted by the Investigating Officer had been
accepted by the trial Court as well as by the
High Court and there is no infirmity therein.
64. Likewise, in an appeal arising out of
Special Leave Petition (Crl) No. 166 of 2007
( Hardeep Singh v. State of Punjab & Ors. ),
Jagtar Singh was not charge-sheeted. Both the
Courts considered the report of the
Investigating Officer and held that the action
of non-issuing of process against Jagtar Singh
could not be held illegal or unlawful. We are
of the view that the order cannot be termed
3
unlawful or unwarranted which requires
interference.
65. As far as Vijay Preet Singh is
concerned, the matter stands on a different
footing. His name finds place in the FIR. Not
only that he was present at the place of
offence with a weapon (gandasi) but was also
arrested by the police from the scene of
offence. His name was, however, excluded and
charge sheet was not submitted in pursuance of
an application made by his father. It was the
allegation of the complainant that the said
action was taken with a view to oblige
Sukhvinder Singh, father of Vijay Preet Singh
who was Chairman of Panchayat Samiti.
66. We are further of the view that the
final report submitted by the Superintendent of
Police (D), Patiala to Senior Superintendent of
Police, Patiala on July 12, 2004 under Section
173 of the Code is also not in consonance with
law.
3
67. The said section provides for
submission of final report by the Police
Officer on completion of investigation. Sub-
sections (1) and (2) of the said section are
relevant and read thus;
173. Report of police officer on
completion of investigation .- (1)
Every investigation under this Chapter
shall be completed without unnecessary
delay.
(2) (i) As soon as it is completed,
the officer in charge of the police
station shall forward to a Magistrate
empowered to take cognizance of the
offence on a police report, a report
in the form prescribed by the State
Government, stating –
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who
appear to be acquainted with the
circumstances of the case;
(d) whether any offence appears to
have been committed and, if so, by
whom;
(e) whether the accused has been
arrested;
(f) whether he has been released on
his bond and, if so, whether with or
without sureties;
3
(g) whether he has been forwarded in
custody under section 170.
(ii) The officer shall also
communicate, in such manner as may be
prescribed by the State Government,
the action taken by him, to the
person, if any, by whom the
information relating to the commission
of the offence was first given.
68. Sub-section (1) of Section 173 of the
Code lays down that every investigation must be
completed without unnecessary delay. Slackness
or inordinate delay on the part of the
investigating agency may result in the
disappearance of material evidence which might
otherwise be available and may prevent
effective detection of the crime. It may also
result into unnecessary detention of the
accused in custody.
69. Sub-section (2) enacts that as soon as
investigation is completed, the officer in
charge of the police station shall forward a
report to a Magistrate empowered to take
cognizance of the offence on a police report in
the form prescribed by the State Government,
4
stating (i) the names of the parties;
(ii) the nature of the information; (iii) the
names of the persons who appear to be
acquainted with the circumstances of the case;
(iv) whether any offence appears to have been
committed and, if so, by whom; (v) whether the
accused has been arrested; (vi) whether he has
been released on his bond and, if so, whether
with or without sureties; (vii) whether he has
been forwarded in custody under section 170. He
shall also communicate to the informant the
action taken by him.
70. The report contemplated by Section 173
should contain the information required by the
said provision. The Investigating Officer is
not expected to record findings of fact nor to
give clean chit by exercising power of a Court
or judicial authority. In the instant case,
however, the Superintendent of Police not only
refers to investigation made by him and the
statements recorded in the course of
investigation but records a ‘ finding ’ that the
4
statements were ‘ correct ’. Vijay Preet Singh
was not present at the place of offence when
the incident took place but reached after the
occurrence was over. Thereafter police had
arrested him. Likewise, Jagtar Singh was not
present at the spot at the time of occurrence.
71. The report stated;
“However, Vijay Preet Singh is totally
innocent because he came there after
finalizing of the occurrence. The
police had already been there after
reaching him and the fight stood
already finished. Moreover, Balbir
Singh Dhanoa and Hardeep Singh named
Jagtar Singh son of Suchha Singh
resident of Fatehmajri later on. This
fact is also totally wrong because the
son-in-law of Joginder Singh was
expired a few days earlier. He was
found to be at the ceremony of taking
the bones with other men and women.
Except this, this fact has also come
in the notice that Hardeep Singh has
stated in FIR that he was taken this
land on lease. He went there to
cultivate but prior to the occurrence
Davinder Singh party had already
cultivated his corn yield and jantars
in this land,w hich was already 2 feet
in height. If he wanted to cultivate
then he could cultivate this land
alone. What was the necessity to come
with these group of men. It is evident
therefrom that these all men armed
with their weapons came to get
possession of this land forcibly after
4
making a plan. The statement which was
given by Balbir Singh Dhanoa that he
had deposited his gun at Verma Gun
House, Model Town, Patiala on 2.6.04
has been deposited with connivance.
Because Inspector Rajesh Chijjar
snatched gun from Balbir Singh Dhanoa
with the help of his employees. Later
on Dhanoa party got the weapons
forcibly from the police due to a big
gathering of men. It is recommended to
take legal action against Verma Gun
House, Patiala”.
72. We may only state that the
Investigating Officer was required to submit
report in terms of Section 173 of the Code and
nothing more. He should not record a finding
nor he can give clean chit which is a function
and power of the Magistrate who will exercise
the said power as provided in the Code.
73 . Prima facie , in the light of factual
scenario, the submission on behalf of the
appellant is well-founded that name of Vijay
Preet Singh ought to have been included in the
charge sheet and the application under Section
319 of the Code deserves to be allowed. The
learned counsel for the accused, however,
4
referring to Mohd. Shafi, submitted that in the
said decision, this Court held that the
jurisdiction under Section 319 of the Code can
be exercised by the Court only if the Court is
satisfied that in all likelihood such person
would be convicted.
74. The Court in Mohd. Shafi, stated;
“From the decisions of this Court, as
noticed above, it is evident that
before a court exercises its
discretionary jurisdiction in terms of
Section 319 of the Code of Criminal
Procedure, it must arrive at the
satisfaction that there exists a
possibility that the accused so
summoned is in all likelihood would be
convicted . Such satisfaction can be
arrived at inter alia upon completion
of the cross-examination of the said
witness. For the said purpose, the
court concerned may also like to
consider other evidence”.
(emphasis supplied)
[see also Kailash v. State of
Rajasthan & Anr., JT 2008 (3) SC 279]
75. With respect, the above observations
do not appear to be in consonance with
statutory provisions or previous decisions of
this Court. We have reproduced Section 319 of
4
the Code in the earlier part of the judgment.
Bare reading of sub-section (1) leaves no room
of doubt what it requires. It states that for
addition of accused, it must appear to the
Court from the evidence that any person not
being the accused has committed any offence for
which such person should be tried along with
other accused.
76. In Joginder Singh, a three-Judge Bench
of this Court stated;
“A plain reading of Section 319(1),
which occurs in Chapter XXIV dealing
with general provisions as to
inquiries and trials, clearly shows
that it applies to all the Courts
including a Sessions Court and as such
a Sessions Court will have the power
to add any person, not being the
accused before it, but against whom
there appears during trial sufficient
evidence indicating his involvement in
the offence, as an accused and direct
him to be tried along with the other
accused…”
77. In Michael Mechdo, this Court held
that the Court must have reasonable
4
satisfaction from the evidence led that the
other person has committed an offence.
78. In Krishnappa, it was observed that
such power should be exercised if there are
compelling reasons and in Mohd. Shafi this
Court has held that such power can be exercised
only if the Court is satisfied that the accused
so summoned is in all likelihood would be
convicted. The test formulated in Mohd. Shafi
substantially curtails discretionary power of
the Court conferred by the Code under sub-
section (1) of Section 319. Even on this point,
therefore, the matter requires fresh
consideration.
79. We, therefore, refer the following two
questions for the consideration of a Bench of
three Hon’ble Judges;
(1) When the power under sub-section (1)
of Section 319 of the Code of addition
of accused can be exercised by a
Court? Whether application under
Section 319 is not maintainable unless
the cross-examination of the witness
is complete?
4
(2)
What is the test and what are the
guidelines of exercising power under
sub-section (1) of Section 319 of the
Code? Whether such power can be
exercised only if the Court is
satisfied that the accused summoned in
all likelihood would be convicted?
80. We direct the Registry to place the
matter before the Hon’ble the Chief Justice of
India for taking an appropriate action.
81. Ordered accordingly.
…………………………………………………J.
(C.K. THAKKER)
NEW DELHI, …………………………………………………J.
NOVEMBER 07, 2008. (D.K. JAIN)