Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 998 OF 2009
[Arising out of SLP (Crl.) No. 5781 of 2006]
Sarabjit Singh & Anr. …Appellant
Versus
State of Punjab & Anr. …Respondents
WITH
CRIMINAL APPEAL NO. 999 OF 2009
[Arising out of SLP (Crl.) No. 19 of 2007]
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J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Interpretation and/ or application of the provisions of Section 319 of
the Code of Criminal Procedure, 1973 (for short “the Code”) is in question
in these appeals. They arise out of a judgment and order dated 12.10.2006
passed by a learned Single Judge of the Punjab and Haryana High Court in
Crl. Rev. No. 2073 of 2006 dismissing the revision petition filed by the
appellants herein from an order dated 28.09.2006 passed by the Additional
Sessions Judge, Gurdaspur whereby application of prosecution under
Section 319 of the Code was allowed and the appellants were summoned to
face trial for offences under Section 148/302 read with Section 149 of the
Indian Penal Code.
3. A First Information Report was lodged by Balwant Singh (PW-1)
alleging that while working on the fields at about 11.30 a.m. on 02.05.2005,
he found Rajwinder Singh alias Raju being surrounded by the accused. He
was attacked by them by their respective weapons in their hands, till they
became sure of his death. After the accused left the place of occurrence,
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PW-1 went near Raju and made him drink water. Sarabjit Singh and Saroop
Singh, appellants herein, while standing near the village, shouted that Raju
had not died whereupon Gurdip Singh, appellant in Criminal Appeal arising
out of SLP (Crl.) No.19 of 2007, Hira Singh and Bhagwant Masih again
came near him and caused further physical injuries to him. They thereafter
fled away.
4. Contention of the accused, however, in that case is that the deceased
Raju was a vagabond having numerous criminal cases registered against
him and a large number of proceedings were initiated. He was catched by a
mob of villagers being fed up with his activities. Allegations against the
appellants have been levelled because of political rivalry.
5. The investigating officer upon completion of the investigation filed a
chargesheet against ten persons and filed a final report against the
appellants herein. The accused persons were standing their trial.
6. Before the learned Sessions Judge, Balwant Singh (PW-1) was
examined. He repeated the allegations contained in the First Information
Report.
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7. Relying only on or on the basis of the said statements made by PW-1,
an application for summoning the appellants in terms of Section 319 of the
Code was filed.
8. On the basis of the said statements alone, the application filed by the
first informant under Section 319 of the Code was allowed, stating:
“7. In view of the specific attribution to Gurdip
Singh, Sarabjit Singh and Sarup Singh, it is prima
facie established that they were members of an
unlawful assembly having the common object to
kill Rajwinder Singh and they are liable to face the
trial u/s 148, 302 read with Section 149 I.P.C.
Hence, accused Gurdip Singh son of Sohan Singh,
Sarabjit Singh son of Nazir Singh and Sarup Singh
son of Mohan Singh, residents of village Kaile
Kalan be summoned through non-bailable warrant,
of arrest for 17.10.06 to face trial u/s 148, 302 read
with Section 149 I.P.C. alongwith the other
accused. Singh accused Gurpreet Singh alias Gopi
is already facing the trial, therefore, there is no
need to issue process against him. With this, the
application u/s 319 Cr. P.C. is disposed of
accordingly. Papers be attached with the trial
file.”
As indicated hereinbefore, appellants’ revision application
thereagainst before the High Court was dismissed.
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9. Mr. Jasbir Singh Malik, learned counsel appearing on behalf of the
appellants, would contend that the power of a court under Section 319 of the
Code being exceptional in nature, the courts below must be held to have
committed a manifest error in summoning the appellants for standing trial as
additional accused although they were found to be innocent during
investigation.
10. Mr. A.K. Mehta, learned counsel appearing on behalf of respondents,
on the other hand, supported the impugned judgment.
11. Section 319 of the Code 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 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.
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(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.”
12. The extent of the power of a Sessions Judge to summon persons other
than the accused to stand trial in a pending case came up for consideration
before this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi
[(1983) 1 SCC 1]. Therein, this Court while holding that the provision
confers a discretionary jurisdiction on the court added “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”.
13. Interpretation of the aforementioned provision, in the light of the said
decision, came up for consideration before various courts from time to time.
We may take note of some of them.
In Shashikant Singh v. Tarkeshwar Singh [(2002) 5 SCC 738], this
Court held:
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“9. The intention of the provision here is that
where in the course of any enquiry into, or trial of,
an offence, it appears to the court from the
evidence that any person not being the accused has
committed any offence, the court may proceed
against him for the offence which he appears to
have committed. At that stage, the court would
consider that such a person could be tried together
with the accused who is already before the court
facing the trial. The safeguard provided in respect
of such person is that, the proceedings right from
the beginning have mandatorily to be commenced
afresh and the witnesses reheard. In short, there
has to be a de novo trial against him. The
provision of de novo trial is mandatory. It vitally
affects the rights of a person so brought before the
court. It would not be sufficient to only tender the
witnesses for the cross-examination of such a
person. They have to be examined afresh. Fresh
examination-in-chief and not only their
presentation for the purpose of the cross-
examination of the newly added accused is the
mandate of Section 319(4). The words “could be
tried together with the accused” in Section 319(1),
appear to be only directory. “Could be” cannot
under these circumstances be held to be “must be”.
The provision cannot be interpreted to mean that
since the trial in respect of a person who was
before the court has concluded with the result that
the newly added person cannot be tried together
with the accused who was before the court when
order under Section 319(1) was passed, the order
would become ineffective and inoperative,
nullifying the opinion earlier formed by the court
on the basis of the evidence before it that the
newly added person appears to have committed the
offence resulting in an order for his being brought
before the court.”
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It was furthermore held:
“14. A Magistrate is empowered to take
cognizance of an offence in the manner provided
under Section 190 of the Code. Section 209
enjoins upon a Magistrate to commit the case to
the Court of Session when it appears to the
Magistrate that the offence is triable exclusively
by the Court of Session. Section 193 provides for
the power of the Court of Session to take
cognizance of any offence. It uses the expression
“cognizance of any offence” and not that of
“offender”. These three provisions read with
Section 319 make it clear that the words “could be
tried together with the accused” in Section 319 are
only for the purpose of finding out whether such a
person could be put on trial for the offence…”
In Rakesh v. State of Haryana [(2001) 6 SCC 248], this Court held:
“13. Hence, it is difficult to accept the contention
of the learned counsel for the appellants that the
term “evidence” as used in Section 319 of the
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. The 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
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thereafter deciding whether such person is to be
added as accused or not. The word “evidence”
occurring in sub-section (1) is used in a
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 the person not arraigned
before it is involved in the commission of the
crime.”
In Ranjit Singh v. State of Punjab [(1998) 7 SCC 149], this Court
opined:
“20. Thus, once the Sessions Court takes
cognizance of the offence pursuant to the
committal order, the only other stage when the
court is empowered to add any other person to the
array of the accused is after reaching evidence
collection when powers under Section 319 of the
Code can be invoked. We are unable to find any
other power for the Sessions Court to permit
addition of new person or persons to the array of
the accused. Of course it is not necessary for the
court to wait until the entire evidence is collected
for exercising the said powers.
21. But then one more question may survive. In a
situation where the Sessions Judge notices from
the materials produced but before any evidence is
taken, that any other person should also have
necessarily been made an accused (without which
the framing of the charge would be defective or
that it might lead to a miscarriage of justice), is the
Sessions Court completely powerless to deal with
such a contingency? One such situation is cited by
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the learned Judges through an illustration narrated
in Kishun Singh case1 as follows: (SCC pp. 29-
30, para 15)
“[W]here two persons A and B attack and kill X
and it is found from the material placed before the
Judge that the fatal blow was given by A whereas
the blow inflicted by B had fallen on a non-vital
part of the body of X. If A is not challaned by the
police, the Judge may find it difficult to charge B
for the murder of X with the aid of Section 34 IPC.
If he cannot summon A, how does he frame the
charge against B?”
22. Another instance can be this. All the materials
produced by the investigating agency would
clearly show the positive involvement of a person
who was not shown in the array of the accused due
to some inadvertence or omission. Should the
court wait until evidence is collected to get that
person arraigned in the case?
23. Though such situations may arise only in
extremely rare cases, the Sessions Court is not
altogether powerless to deal with such situations
to prevent a miscarriage of justice. It is then open
to the Sessions Court to send a report to the High
Court detailing the situation so that the High Court
can in its inherent powers or revisional powers
direct the committing Magistrate to rectify the
committal order by issuing process to such left-out
accused. But we hasten to add that the said
procedure need be resorted to only for rectifying
or correcting such grave mistakes.
This Court in Lok Pal v. Nihal Singh [(2006) 10 SCC 192] observed:
“…The court, while examining an application
under Section 319 of the Code, has also to bear in
mind that there is no compelling duty on the court
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to proceed against other persons. In a nutshell, for
exercise of discretion under Section 319 of the
Code all relevant factors, including those noticed
above, have to be kept in view and an order is not
required to be made mechanically merely on the
ground that some evidence had come on record
implicating the person sought to be added as an
accused.
It was furthermore observed:
“19. In these circumstances, therefore, if the
prosecution can at any stage produce evidence
which satisfies the court that the other accused or
those who have not been arrayed as accused
against whom proceedings have been quashed
have also committed the offence the court can take
cognizance against them and try them along with
the other accused. But, we 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…”
In Mohd. Shafi v. Mohd. Rafiq & Anr. [2007 (5) SCALE 611], this
Court held:
“7. Before, thus, a trial court seeks to take recourse
to the said provision, the requisite ingredients
therefore must be fulfilled. Commission of an
offence by a person not facing trial, must,
therefore, appears to the court concerned. It cannot
be ipse dixit on the part of the court. Discretion in
this behalf must be judicially exercised. It is
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incumbent that the court must arrive at its
satisfaction in this behalf.
*
12. 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.”
The decision of this Court in Mohd. Shafi (supra), however, has been
explained in Lal Suraj @ Suraj Singh and Anr. v. State of Jharkhand [2008
(16) SCALE 276], stating:
“…The principle of strong suspicion may be a
criterion at the stage of framing of charge as all the
materials brought during investigation were
required to be taken into consideration, but, for the
purpose of summoning a person, who did not
figure as accused, a different legal principle is
required to be applied. A court framing a charge
would have before it all the materials on record
which were required to be proved by the
prosecution. In a case where, however, the court
exercises its jurisdiction under Section 319 of the
Code, the power has to be exercised on the basis
of the fresh evidence brought before the court.
There lies a fine but clear distinction.”
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14. Our attention, however, has been drawn to a Two-Judge Bench
decision of this Court in Hardeep Singh v. State of Punjab & Ors. [JT 2008
(12) SC 7] wherein doubting the correctness of Mohd. Shafi (supra), two
questions have been referred to a larger Bench, which are as under:
“(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?
(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?”
Mr. Mehta would also draw our attention to Bholu Ram v. State of
Punjab & Anr. [JT 2008 (9) SC 504].
Whereas Hardeep Singh (supra) is not a judgment in that sense of the
term; in Bholu Ram (supra) the principal question which arose for
consideration of this Court was as to whether an order passed under Section
319 of the Code can be recalled which was answered in the negative.
15. For the purpose of this case, it is not necessary to proceed on the basis
that the decision in Mohd. Shafi (supra) should be applied in all fours.
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16. We have noticed hereinbefore that Mohd. Shafi (supra) has been
explained in Lal Suraj (supra) holding that a power under Section 319 of the
Code can be exercised only on the basis of fresh evidence brought before it
and not on the basis of the materials which had been collected during
investigation particularly when a final form was submitted and the same had
been accepted by the Magistrate concerned. There is no gainsaying that the
power under Section 319 of the Code is an extraordinary power which in
terms of the decision of this Court in Municipal Corporation of Delhi
(supra) is required to be exercised sparingly and if compelling reasons exist
for taking cognizance against whom action has not been taken.
17. The provision of Section 319 of the Code, on a plain reading,
provides that such an extraordinary case has been made out must appear to
the court. Has the criterion laid down by this Court in Municipal
Corporation of Delhi (supra) been satisfied is the question? Indisputably,
before an additional accused can be summoned for standing trial, the nature
of the evidence should be such which would make out grounds for exercise
of extraordinary power. The materials brought before the court must also be
such which would satisfy the court that it is one of those cases where its
jurisdiction should be exercised sparingly.
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We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and
Anr. [JT 2007 (6) SC 460], this Court opined:
“…Undisputedly, it is an extraordinary power
which is conferred on the Court and should be
used very sparingly and only if compelling reasons
exist for taking action against a person against
whom action had not been taken earlier. The word
“evidence” in Section 319 contemplates that
evidence of witnesses given in Court…”
An order under Section 319 of the Code, therefore, should not be
passed only because the first informant or one of the witnesses seeks to
implicate other person(s). Sufficient and cogent reasons are required to be
assigned by the court so as to satisfy the ingredients of the provisions. Mere
ipse dixit would not serve the purpose. Such an evidence must be
convincing one at least for the purpose of exercise of the extraordinary
jurisdiction.
For the aforementioned purpose, the courts are required to apply
stringent tests; one of the tests being whether evidence on record is such
which would reasonably lead to conviction of the person sought to be
summoned.
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18. The observation of this Court in Municipal Corporation of Delhi
(supra) and other decisions following the same is that mere existence of a
prima facie case may not serve the purpose. Different standards are
required to be applied at different stages. Whereas the test of prima facie
case may be sufficient for taking cognizance of an offence at the stage of
framing of charge, the court must be satisfied that there exists a strong
suspicion. While framing charge in terms of Section 227 of the Code, the
court must consider the entire materials on record to form an opinion that
the evidence if unrebutted would lead to a judgment of conviction. Whether
a higher standard be set up for the purpose of invoking the jurisdiction
under Section 319 of the Code is the question. The answer to these
questions should be rendered in the affirmative. Unless a higher standard
for the purpose of forming an opinion to summon a person as an additional
accused is laid down, the ingredients thereof, viz., (i) an extraordinary case
and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.
19. We, therefore, are of the opinion that the impugned judgment cannot
be sustained which is set aside accordingly and the matter is remitted to the
learned Sessions Judge for consideration of the matter afresh.
20. The appeals are allowed with the aforementioned directions.
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………………………….J.
[S.B. Sinha]
..…………………………J.
[P. Sathasivam]
New Delhi;
May 12, 2009