Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2009
[Arising out of SLP (Crl.) No.6723 of 2005]
Ram Singh & Ors. ..…Appellants
Versus
Ram Niwas & Anr. ..…Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Scope and application of Section 319 of the Code of Criminal
Procedure, 1973 (for short, ‘the Code’) is in question in this appeal which
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arises out of a judgment and order dated 16 November 2005 passed by a
learned Single Judge of the High Court of Rajasthan whereby and
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whereunder the order dated 29 May 2003 passed by the learned Upper
District & Sessions Judge (Fast Track), Sikar, refusing to summon the
appellants herein as accused, was set aside.
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3. A First Information Report (FIR) was lodged by the 1 respondent
alleging that his wife was attacked by nine persons including the five
appellants herein. His mother was also assaulted. When his father rushed to
their rescue, he was also surrounded by them and was assaulted as a result
whereof, he expired. Upon investigation, a final form was submitted in
favour of the appellants. A charge-sheet was filed only against four persons,
viz., Kishori, Jagdish, Sarjit and Sheo.
4. Indisputably, a counter case had been filed.
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5. An application was filed on or about 01 April 1998 in terms of
Section 319 of the Code for summoning the appellants herein as accused.
Before the learned Upper Distt. & Sessions Judge, a large number of
witnesses were examined and cross-examined on behalf of the accused
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persons. By reason of an order dated 29 May 2003, the learned Upper
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Distt. & Sessions Judge rejected the said application filed by the 1
respondent herein opining that no case has been made out therefor. A
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criminal miscellaneous petition filed by the 1 respondent before the High
Court against the order of the learned Upper Distt. & Sessions Judge,
however, has been allowed by reason of the impugned judgment, stating:
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“The very ambit of section 319 Cr.P.C. is to
empower the trial court to take cognizance against
those persons who are alleged to have been
involved in an offence, but who have not been
arrayed as accused by the investigating agency
while filing the charge sheet. Section 319 Cr.P.C.
comes into effect once the evidence comes
trickling in during the course of trial against the
alleged offender. In case there is prima facie case
against the alleged offenders, the Court should take
cognizance against them. At the juncture of taking
cognizance, the court should not critically analyze
the evidence. For the purpose of taking
cognizance, the existence of a prima facie case is
sufficient. It is only at a later stage that the trial
court is called upon to appreciate the evidence in
proper perspective. Moreover, the duty of the
court is not only to protect the innocent, but also to
punish the guilty. In case the jurisdiction under
section 319 Cr.P.C. is not exercised properly by
the trial Court, chances are that those who are
alleged in the offence might go scot free. The
society cannot be exposed to the dangers created
by those who take law in their own hands.
Considering the fact that the large number of
witnesses have deposed against the respondents
No.2 to 6, a prima-facie case does not (sic) exist
against them for their involvement in the alleged
offence. Thus, in our opinion, the learned
Magistrate should have exercised the jurisdiction
vested in him under section 319 Cr.P.C.
We allow this petition and direct the learned
Addl. Sessions Judge to rehear the arguments of
the learned counsel for the petitioner and the
learned counsel for the State and pass the
necessary orders in accordance with section 319
Cr.P.C. within a period of two weeks from the date
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of the receipt of the certified copy of this order and
to expeditiously complete the trial as the trial has
been hanging fire since 1996.”
6. Dr. Sushil Balwada, learned counsel appearing on behalf of the
appellants would submit that the involvement of the appellants having not
been found by the learned Upper Sessions Judge, the High Court committed
a serious error in passing the impugned judgment.
7. Mr. Sushil Kumar Jain, the learned counsel appearing on behalf of the
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1 respondent, on the other hand, urged that although a final form was filed
in favour of the appellants, the same would not mean that the application for
summoning the accused was impermissible in law.
It was urged that the learned Upper Sessions Judge committed a
serious error insofar as he failed to take into consideration that existence of a
prima facie case alone would subserve the requirements of the said
provision. It was urged that at that stage, the learned Upper Sessions Judge
should not have entered into the arena of appreciation of evidence.
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In this regard, our attention has been drawn to the statements of
various witnesses examined on behalf of the prosecution prior to the passing
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of the order dated 29 May 2003.
8. Before the learned Upper Sessions Judge, the respondent no.1 herein
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was examined as P.W.2 on 23 February 1998. He alleged involvement of
the appellants herein in the incident. He had also attributed certain overt
acts on their part, inter alia , contending that they had assaulted his father
with the reverse side of an axe ( farsi ). One Ramesh Kumar, brother of the
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respondent no.1 was also examined as P.W. 7 on 22 January 2003.
Similarly, one Kanesh, son of respondent no.1, examined himself as P.W.8
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on 22 January 2003.
9. Mr. Naveen Kumar Singh, learned counsel appearing on behalf of the
State would submit that it was not permissible in law for the learned Upper
Sessions Judge to entertain an application under Section 319 of the Code
although they had not been charge-sheeted.
We do not agree.
10. Section 319 of the Code reads thus :
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“ 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 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 detained by such Court 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.”
11. An application under the aforementioned provision would be
maintainable not only during pendency of an inquiry but also in the course
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of a trial. In the event, it appears from the evidence that any person, not
being an accused, has committed any offence for which he could be tried
together with the accused, the court may proceed against him for the offence
which he appears to have committed. The provision of Section 319 of the
Code confers an extraordinary power upon a court to summon a person who,
at the relevant time, was not being tried as an accused, subject, of course, to
fulfillment of the condition that it appears to the court that he had committed
an offence. A finding to that effect must be premised on the evidence that
had been brought on record.
12. Indisputably, the court must satisfy itself about the existence of an
extraordinary situation enabling it to exercise an extraordinary jurisdiction.
It is true that the court is not denuded of its power to exercise the said
jurisdiction only because a person named as an accused in the FIR was not
charge-sheeted as a result whereof no cognizance has been taken against
him. What is necessary for the said purpose is that the person concerned
was not being tried as an accused before the Court at that stage.
13. This Court in the case of Kailash v. State of Rajasthan [2008(3)
SCALE 338], has held that a glance of the provision would suggest that
during the trial it has to appear from the evidence that a person not being an
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accused has committed any offence for which such person could be tried
together with the accused who are also being tried. This Court has laid
emphasis on the words, ‘it appears from the evidence’, ‘any person’, and
‘has committed any offence’. It was further held that the power under
Section 319 has to be essentially exercised only on the basis of the evidence
brought on record of the case. The discretionary jurisdiction could,
therefore, be exercised only after the legal evidence comes on record and
from that evidence it appears that the concerned person has committed an
offence.
14. In the case of Raj Kishore Prasad v. State of Bihar & Anr. [(1996) 4
SCC 495], this Court opined :
“14 . Learned counsel differ however on the other
question posed in Kishun Singh case [ Kishun
Singh v. State of Bihar (1993) 2 SCC 16]. It was
whether a Court of Session, to which a case is
committed for trial by a Magistrate, could, without
itself recording evidence, summon a person not
named in the police report presented under Section
173 of the Code of Criminal Procedure, 1973, to
stand trial along with those named therein; if not in
exercise of power conferred by Section 319 of the
Code, then under any other provision? The answer
given was in the affirmative, on the basis of
Section 193 of the Code, as it presently stands,
providing that once the case is committed to the
Court of Session by a Magistrate, the restriction
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placed on the power of the Court of Session to take
cognizance of an offence as a Court of Original
Jurisdiction gets lifted, thereby investing the Court
of Session unfettered jurisdiction to take
cognizance of the offence which would include the
summoning of the person or persons whose
complicity in the crime can prima facie be
gathered from the material available on the record .
It is on this reasoning that this Court sustained the
order of the Court of Session (though it ostensibly
was under Section 319 CrPC terming material of
investigation before it as ‘evidence’) summoning
the unnamed accused to stand trial with the named
accused. A stage has thus been discovered, before
the reaching of the stage for exercise of power
under Section 319 CrPC, on the supposition and
premise that it is pre-trial when the question of
charge was being examined. Such power of
summoning the new accused has been culled out
from the power exercisable by the Court of Session
under Sections 227 and 228 of the Code, enabling
it to discharge under Section 227 or charge under
Section 228 the accused persons before it and
while so to summon another accused involved in
the commission of the crime, prima facie
appearing from the material available on record of
the case. Thus at a stage posterior to the stage
envisaged under Section 319, the Court of Session
has been held empowered to summon an accused if
a prima facie case is made out from the material
available on the record.”
15. In the case of Rakesh & Anr. v. State of Haryana [(2001) 6 SCC 248],
it was held :
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“11. In support of his contention, learned Senior
Counsel Mr. Ranjit Kumar referred to the decision
of this Court in Joginder Singh v. State of Punjab
(1979) 1 SCC 345. In our view, this decision
nowhere lays down that before a person is added
as accused in a sessions trial case, he should be
permitted to cross-examine the witnesses whose
evidence is recorded. On the contrary, it lays
down that once the Sessions Court is seized of the
matter as a result of the committal order against
some accused the power under Section 319(1) can
come into play and the court can add any person,
not an accused before it, as an accused and direct
him to be tried along with other accused. The
Court has further observed that the very purpose of
enacting Section 319(1) clearly shows that even
persons who have been dropped by the police
during investigation but against whom evidence
showing their involvement in the offence comes
before the criminal court are included in the
expression ‘any person not being the accused’.”
16. We must, however, at this stage also place on record that this Court, in
the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.
[(1983) 1 SCC 1], opined that the power under the said provision must be
exercised very sparingly and not as a matter of course. In the case of
Joginder Singh & Anr. v. State of Punjab & Anr. [(1979) 1 SCC 345], this
Court even opined that such a power can be exercised even without there
being a committal order passed against a person. [see also Lok Ram v.
Nihal Singh & Anr. [(2006) 10 SCC 192]; Shashikant Singh v. Tarkeshwar
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Singh & Anr. [(2002) 5 SCC 738]; Michael Machado & Anr. v. Central
Bureau of Investigation & Anr. [(2000) 3 SCC 262]; Palanisamy Gounder &
Anr. v. State represented by Inspector of Police [(2005) 12 SCC 327];
Kailash Dwivedi v. State of M.P. & Anr. [(2005) 11 SCC 182] and Mohd.
Shafi v. Mohd. Rafiq & Anr. [2007(5) SCALE 611].
17. The High Court, in our opinion, however, has committed a serious
error in proceeding on the premise that mere existence of a prima facie case
would be sufficient to exercise the court’s jurisdiction under Section 319 of
the Code. We have noticed hereinbefore the importance of the word
‘appears’. What is, therefore, necessary for the court is to arrive at a
satisfaction that the evidence adduced on behalf of the prosecution, if
unrebutted, would lead to conviction of the persons sought to be added as
accused in the case.
18. The High Court furthermore committed a serious error insofar as it
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failed to take into consideration that when the order dated 29 May 2003
was passed, the learned Judge was in a position to consider the evidence
brought on record including the cross-examination of the prosecution
witnesses. The High Court did not arrive at any finding that a case has been
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made out for exercise of such an extraordinary jurisdiction which, in terms
of the judgments of this Court, is required to be exercised very sparingly.
19. For the reasons aforementioned, the impugned judgment is set aside.
The appeal is allowed.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Cyriac Joseph]
New Delhi;
May 13, 2009.