Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 298299 OF 2021
Sartaj Singh .. Appellant
Versus
State of Haryana & Anr. Etc. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 28.08.2020 passed by the High Court of
Punjab and Haryana at Chandigarh in revision application bearing
CRR No. 3238 of 2018 and CRMM No. 55631 of 2018 by which the
High Court has allowed the said revision application and quashed
and set aside the order dated 21.04.2018 passed by the learned
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2021.03.15
17:26:30 IST
Reason:
Trial Court summoning the private respondents herein, the original
informant has preferred the present appeals.
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2. As per the case of the appellant hereinoriginal informant, the
appellant was attacked by the private respondents herein and other
accused persons on 27.07.2016. That the appellant got severely
injured. That a FIR was lodged by the appellant herein in which he
stated that besides Manjeet Singh, Narvair Singh and other persons
namely Palwinder Singh son of Ran Singh, Satkar Singh son of
Rajwant Singh, Rajwant Singh son of Gurcharan Singh and
Sukhdeep Singh son of Satnam Singh had inflicted injuries on his
person. It was stated that while he was going in his car – Mahendra
XUV500 for personal work and stopped his car on the left side to
answer the phone call, Manjeet Singh son of Mahinder Singh, who
was coming in his car from Assandh side and a lady was sitting by
his side, stopped his car next to him and after rolling down his
window threatened him for having ploughed his barley crop in his
capacity as the Sarpanch and while going back home after finishing
his work, he found that a car was parked diagonally on the road.
The same car was parked in which Manjeet Singh was traveling and
when he took out his head to look for the driver, Palwinder Singh
son of Ran Singh, Satkar Singh son of Rajwant Singh armed with
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lathies and were hiding on the right side of road came and attached
him and gave lathi blows on the head. Thereafter, 1012 persons
came running towards the car from both sides of the road. It was
further stated in the FIR that Manjeet Singh son of Mahinder Singh,
Amarjit Singh son of Ran Singh, Rajwant Singh son of Gurcharan
Singh, Narvai Singh son of Tarlok Singh, Sukhdev Singh son of
Satnam Singh, residents of Bandrala were holding lathies and
Gandasis in their hands. Rajwant Singh came running towards his
side and switched off the engine of the car and also opened the door
lock of driver side of the car. Manjeet Singh opened the door from
outside. Manjeet Singh and Rajwant Singh both dragged him out of
the car and Rajwant Singh raised a Lalkara that “today there is an
opportunity to kill him”. On saying this, Amarjeet Singh, who was
armed with Gandasi gave a blow on his head and Manjeet Singh,
who was armed with Gandasi gave a blow on his left ear. Then
Rajwant Singh who was armed with Gandasi gave blow from its
front side. Thereafter, all these persons gave number of blows upon
him and he started feeling unconscious and fell on the ground on
his knees. He thought that they will kill him today and he was
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seeing his death in front of his eyes. They he took his revolver from
the holster tied around his waist and fired with the same and he did
not know to whom and where the shots hit. Those persons started
running away upon his firing and while running away, some
persons gave blows on his right shoulder and due to which his
revolver fell down and those assailants ran away and he also in
order to save himself came back towards Adarsh School. He
entered the Dera of Chhinna situated near the Adarsh School,
where Bhupinder Singh and his father were present, whom he
informed that some persons wanted to kill him and kindly take him
to Police Station. Thereafter, Bhupinder Singh @ Pinda took him to
Assandh on his motor cycle and after sometime he became
unconscious, where the doctor gave him first aid and on seeing the
seriousness of injuries referred him to General Hospital, Karnal. In
the meantime, his family members also reached the Hospital,
Assandh took him to General Hospital Karnal in the car and after
considering the number of injuries, the doctor referred him to PGI,
Chandigarh. That, on the basis of the statement of the appellant,
FIR no. 477 of 2016 was lodged for the offences under Sections 148,
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149, 341, 323, 324, 307 and 506 IPC. That, thereafter, the DSP,
Assandh submitted a report wherein it was found that only four
persons were involved in the dispute and the respondents herein
who were named were found not to be involved. That, thereafter,
the Investigating Officer filed the chargesheet against other
accused, but not against the private respondents herein. That,
thereafter, during the trial the appellant herein came to be
examined by the prosecution as P.W.1, who was an injured witness.
He named the private respondents herein in his evidence
specifically and stood the test of crossexamination. Dr. Mahinder,
the Medical Officer, Civil Hospital was also examined as P.W.2.
That, thereafter, one Bhupinder Singh who took the injured
appellant to the hospital was also examined as P.W.7. That,
thereafter, the appellant herein filed an application before the
learned Trial Court under Section 319 CrPC for summoning of the
additional accused – private respondents herein on the basis of the
evidence recorded. That the learned Trial Court after considering
the statements of both – the appellant and other eye witnesses and
the material on record allowed the application under Section 319
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CrPC vide order dated 21.04.2018. The private respondents herein
thereafter filed two separate revision petitions against the order
passed by the learned Trial Court summoning them, before the
High Court. It appears that during the pendency of the aforesaid
revision applications, as the order passed by the learned Trial Court
summoning the private respondents herein was not stayed and
therefore the learned Trial Court proceeded with the trial and after
summoning of the additional accusedprivate respondents herein,
18 witnesses came to have been examined by the learned Trial
Court. That, by the impugned judgment and order, the High Court
has allowed the revision applications preferred by the private
respondents herein and has quashed and set aside the order
passed by the learned Trial Court summoning the additional
accusedprivate respondents herein. Hence, the present appeals.
3. Shri R. Basant, learned Senior Advocate appearing on behalf
of the appellant has vehemently submitted that when the learned
Trial Court, considering the evidence on record, both documentary
and oral, allowed the application under Section 319 CrPC
summoning the private respondents herein to face the trial, the
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High Court is not justified in quashing and setting aside the order
summoning the private respondents herein.
3.1 It is further submitted that while quashing and setting aside the
order passed by the learned Trial Court summoning the private
respondents herein, which was in exercise of powers under Section
319 CrPC, the High Court has acted beyond the scope and ambit of
Section 319 CrPC.
3.2 It is submitted that the High Court has failed to appreciate
that in fact the private respondents herein were specifically named
in the FIR and thereafter even the names have been disclosed in the
evidence of the deposition of the appellant – injured eye witness. It
is submitted that therefore the learned Trial Court was justified in
summoning the private respondents herein in exercise of powers
under Section 319 CrPC.
3.3 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellant that even the reasons assigned
by the High Court while reversing the order passed by the learned
Trial Court are not sustainable in law and on facts.
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3.4 It is submitted that the High Court has erred in quashing and
setting aside the order passed by the learned Trial Court
summoning the private respondents herein by observing that there
is no evidence except the statement of the appellant herein. It is
submitted that however even the accused can be convicted on the
basis of the evidence of a single witness and in the present case the
appellant is an injured eye witness. It is submitted that the
appellant is subjected to crossexamination. It is submitted that
therefore merely because there may be one witness and/or
statement of only one person, is no ground not to summon the
additional accused in exercise of powers under Section 319 CrPC.
It is further submitted that at this stage the High Court was not
justified in appreciating the deposition/evidence of the appellant on
merits. It is submitted that the things which are required to be
done during the trial, have been done by the High Court at this
stage of summoning the additional accused in exercise of powers
under Section 319 CrPC. It is submitted that the aforesaid is
wholly impermissible at the stage of considering an application
under Section 319 CrPC.
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3.5 It is further submitted that, by the time, the High Court has
passed the impugned judgment and order, as there was no stay in
the revision applications, the learned Trial Court proceeded further
with the trial and 18 witnesses came to be examined and the trial
was at the near end. It is submitted that therefore also, the High
Court is not justified in quashing and setting aside a wellreasoned
order passed by the learned Trial Court summoning the private
respondents herein in exercise of powers under Section 319 CrPC.
3.6 Shri R. Basant, learned Senior Advocate appearing on behalf
of the appellant has relied upon the decision of this Court in the
case of (2014) 3 SCC 92 and
Hardeep Singh v. State of Punjab
the subsequent decision of this Court in Sukhpal Singh Khaira v.
(2019) 6 SCC 638, in support of his submission
State of Punjab
that at the stage of considering the application under Section 319
CrPC the High Court was not justified in entering into the merits
and/or appreciation of the evidence on merits, which is required to
be considered at that stage of trial. It is submitted that as held by
this Court in (supra), the word ‘evidence’ in Section
Hardeep Singh
319 CrPC has to be broadly understood and not literally as evidence
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brought during a trial. It is submitted that it is further held that
the statement made in examinationinchief constitutes ‘evidence’
and the court exercising powers under Section 319 CrPC post
commencement of trial, need not wait for evidence against person
proposed to be summoned to be tested by crossexamination. It is
submitted that the degree of satisfaction for invoking Section 319
should not be more than a prima facie case as exercised at the time
of framing of charge but short of satisfaction to an extent that
evidence, if not rebutted, may lead to conviction of person sought to
be added as accused.
3.7 Making the above submissions and relying upon the above
decisions of this Court, it is prayed to allow the present appeals.
4. Shri Anil Kaushik, learned AAG, Haryana has supported the
present appeals and has submitted that the reasons given by the
High Court while quashing and setting aside a wellreasoned order
passed by the learned Trial Court summoning the private
respondents herein in exercise of powers under Section 319 CrPC
are not sustainable in law and even on facts.
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5. Learned counsel appearing on behalf of the private
respondents herein has vehemently opposed the present appeals.
5.1 It is submitted that the power under Sections 319 CrPC is a
discretionary and an extraordinary power and has to be exercised
sparingly and only in those cases where the circumstances of the
case so warrant. It is submitted that it is not to be exercised
because the Trial Court is of the opinion that some other person
may also be guilty of committing that offence. It is submitted that
where strong and cogent evidence occurs against a person from the
evidence led before the Court that such powers should be exercised
and not in a casual and cavalier manner.
5.2 It is submitted that an order under Section 319 CrPC directing
summoning of additional accused cannot be passed because the
first informant or one of the witnesses seeks to implicate other
persons. It is submitted that there must be sufficient and cogent
reasons which are required to be assigned by the Trial Court
satisfying the ingredients of the provisions under Section 319 CrPC.
It is submitted that, in the present case, the appellant herein
reiterated the contents of his complaint in the examinationinchief
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and no new evidence was placed on record. It is submitted that the
said statement does not satisfy the test for adjudication for an
application under Section 319 CrPC, i.e. evidence on record is such
which would be more than what is required at the stage of framing
of chares but less than if left unrebutted would lead to conviction.
5.3 It is further submitted that in the examination in chief, the
appellant has reiterated what was stated in the FIR. It is submitted
that the allegations in the FIR were investigated/enquired into by
the DSP and as per his report no evidence was found against the
private respondents herein. It is submitted that therefore the High
Court is justified in quashing and setting aside the order passed by
the learned Trial Court.
5.4 It is submitted that as such the appellant herein is an accused
in FIR NO. 477, regarding the death of one Amarjeet Singh and the
injuries having been suffered by Manjeet Singh. It is submitted
that as per the said FIR, Amarjeet Singh died and Manjeet Singh
suffered injuries at the hands of the appellant Sartaj Singh using
his licensed revolver. It is submitted that only after the FIR No. 477
was registered against the appellant and his accomplices, belatedly
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a cross case in the same FIR was got registered by the police on the
statement of the appellant herein, wherein he made up a concocted
story of firing bullets in self defence. It is submitted that the
appellant herein stated that Palwinder Singh and Satkar Singh have
given lathi blows on the head, whereas Manjeet Singh, Amarjeet
Singh, Rajwant Singh, Narvair Singh and Sukdev Singh were
holding Gandasis and gave him blows on the head and face, which
seems to be not at all possible as rightly observed by the High
Court.
5.5 It is further submitted that even otherwise the only evidence
against the private respondents herein was the statement of the
appellant herein, who in fact is an interested witness in entire
matter. He himself stands accused of killing Amarjeet Singh and
grievously hurting and attempting to kill Manjeet Singh in the
original and earlier FIR. It is submitted that therefore the High
Court has rightly set aside the order passed by the learned Trial
Court observing that there was no new evidence that had come
forward against the private respondents herein, rather there was a
detailed enquiry corroborating the innocence of the respondents
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and doubting the version of the appellant. It is submitted that the
High Court has rightly come to the conclusion that the learned Trial
Court has erred in exercising its jurisdiction in summoning the
answering respondents. It is further submitted that even the
deposition of P.W.7 Bhupinder Singh relied upon by the appellant
herein does not support the appellant. It is submitted that in the
light of the crossexamination of the witness Bhupinder Singh, it
appears that the entire story has been concocted by the appellant
herein in his testimony. It is submitted that it raises substantial
doubt about the whole version of the accused stated in the cross
case in FIR No. 477 of 2016.
5.6 Making the above submissions, it is prayed to dismiss the
present appeals.
6. Heard learned counsel for the respective parties at length.
What is under challenge in the present appeals is the impugned
judgment and order passed by the High Court allowing the revision
applications filed by the private respondents herein and quashing
and setting aside the order passed by the learned Trial Court
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summoning the accused in exercise of powers under Section 319
CrPC and to face the trial.
6.1 While considering the rival submissions, the law on the scope
and ambit of Section 319 CrPC is required to be considered and for
that few decisions of this Court are required to be referred to.
6.1.1 In (supra), this Court had an occasion to
Hardeep Singh
consider in detail the scope and ambit of the powers of the
Magistrate under Section 319 CrPC, the object and purpose of
Section 319 CrPC etc. It is observed in the said decision that the
entire effort is not to allow the real perpetrator of an offence to get
away unpunished. It is observed that this is also a part of fair trial
and in order to achieve this very end that the legislature thought of
incorporating the provisions of Section 319 CrPC. It is further
observed that for the empowerment of the courts to ensure that the
criminal administration of justice works properly, the law has been
appropriately codified and modified by the legislature under the
CrPC indicating as to how the Courts should proceed to ultimately
find out the truth so that the innocent does not get punished but at
the same time, the guilty are brought to book under the law. It is
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also observed that it is the duty of the court to find out the real
truth and to ensure that the guilty does not go unpunished. In
Paragraphs 8 and 9, this Court observed and held as under:
The constitutional mandate under Articles 20
“8.
and 21 of the Constitution of India provides a protective
umbrella for the smooth administration of justice making
adequate provisions to ensure a fair and efficacious trial
so that the accused does not get prejudiced after the law
has been put into motion to try him for the offence but at
the same time also gives equal protection to victims and
to society at large to ensure that the guilty does not get
away from the clutches of law. For the empowerment of
the courts to ensure that the criminal administration of
justice works properly, the law was appropriately codified
and modified by the legislature under CrPC indicating as
to how the courts should proceed in order to ultimately
find out the truth so that an innocent does not get
punished but at the same time, the guilty are brought to
book under the law. It is these ideals as enshrined under
the Constitution and our laws that have led to several
decisions, whereby innovating methods and progressive
tools have been forged to find out the real truth and to
ensure that the guilty does not go unpunished.
9. The presumption of innocence is the general law
of the land as every man is presumed to be innocent
unless proven to be guilty. Alternatively, certain statutory
presumptions in relation to certain class of offences have
been raised against the accused whereby the
presumption of guilt prevails till the accused discharges
his burden upon an onus being cast upon him under the
law to prove himself to be innocent. These competing
theories have been kept in mind by the legislature. The
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entire effort, therefore, is not to allow the real perpetrator
of an offence to get away unpunished. This is also a part
of fair trial and in our opinion, in order to achieve this
very end that the legislature thought of incorporating
provisions of Section 319 CrPC. It is with the said object
in mind that a constructive and purposive interpretation
should be adopted that advances the cause of justice and
does not dilute the intention of the statute conferring
powers on the court to carry out the abovementioned
avowed object and purpose to try the person to the
satisfaction of the court as an accomplice in the
commission of the offence that is the subjectmatter of
trial.”
6.1.2 In the said case, the following five questions fell for
consideration before this Court.
( ) What is the stage at which power under Section
i
319 CrPC can be exercised?
( ) Whether the word “evidence” used in Section
ii
319(1) CrPC could only mean evidence tested by cross
examination or the court can exercise the power under
the said provision even on the basis of the statement
made in the examinationinchief of the witness
concerned?
( ) Whether the word “evidence” used in Section
iii
319(1) CrPC has been used in a comprehensive sense
and includes the evidence collected during investigation
or the word “evidence” is limited to the evidence recorded
during trial?
( ) What is the nature of the satisfaction required to
iv
invoke the power under Section 319 CrPC to arraign an
accused? Whether the power under Section 319(1) CrPC
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can be exercised only if the court is satisfied that the
accused summoned will in all likelihood be convicted?
( v ) Does the power under Section 319 CrPC extend
to persons not named in the FIR or named in the FIR but
not charged or who have been discharged?”
6.1.3 While considering the aforesaid questions, this Court in
(supra) observed and held as under:
Hardeep Singh
12. Section 319 CrPC springs out of the
doctrine judex damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted) and this doctrine
must be used as a beacon light while explaining the
ambit and the spirit underlying the enactment of Section
319 CrPC.
It is the duty of the court to do justice by
13.
punishing the real culprit. Where the investigating
agency for any reason does not array one of the real
culprits as an accused, the court is not powerless in
calling the said accused to face trial. The question
remains under what circumstances and at what stage
should the court exercise its power as contemplated in
Section 319 CrPC?
14. The submissions that were raised before us
covered a very wide canvas and the learned counsel have
taken us through various provisions of CrPC and the
judgments that have been relied on for the said purpose.
The controversy centres around the stage at which such
powers can be invoked by the court and the material on
the basis whereof such powers can be exercised.
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xxx xxx xxx
17. Section 319 CrPC allows the court to proceed
against any person who is not an accused in a case
before it. Thus, the person against whom summons are
issued in exercise of such powers, has to necessarily not
be an accused already facing trial. He can either be a
person named in Column 2 of the chargesheet filed
under Section 173 CrPC or a person whose name has
been disclosed in any material before the court that is to
be considered for the purpose of trying the offence, but
not investigated. He has to be a person whose complicity
may be indicated and connected with the commission of
the offence.
The legislature cannot be presumed to have
18.
imagined all the circumstances and, therefore, it is the
duty of the court to give full effect to the words used by
the legislature so as to encompass any situation which
the court may have to tackle while proceeding to try an
offence and not allow a person who deserves to be tried
to go scotfree by being not arraigned in the trial in spite
of the possibility of his complicity which can be gathered
from the documents presented by the prosecution.
19. The court is the sole repository of justice and a
duty is cast upon it to uphold the rule of law and,
therefore, it will be inappropriate to deny the existence of
such powers with the courts in our criminal justice
system where it is not uncommon that the real accused,
at times, get away by manipulating the investigating
and/or the prosecuting agency. The desire to avoid trial
is so strong that an accused makes efforts at times to get
himself absolved even at the stage of investigation or
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inquiry even though he may be connected with the
commission of the offence.
xxx xxx xxx
In our opinion, Section 319 CrPC is an enabling
22.
provision empowering the court to take appropriate steps
for proceeding against any person not being an accused
for also having committed the offence under trial. It is
this part which is under reference before this Court and
therefore in our opinion, while answering the question
referred to herein, we do not find any conflict so as to
delve upon the situation that was dealt with by this
Court in Dharam Pal (CB) [ Dharam Pal v. State of
Haryana , (2014) 3 SCC 306 : AIR 2013 SC 3018] .
xxx xxx xxx
47. Since after the filing of the chargesheet, the
court reaches the stage of inquiry and as soon as the
court frames the charges, the trial commences, and
therefore, the power under Section 319(1) CrPC can be
exercised at any time after the chargesheet is filed and
before the pronouncement of judgment, except during the
stage of Sections 207/208 CrPC, committal, etc. which is
only a pretrial stage, intended to put the process into
motion. This stage cannot be said to be a judicial step in
the true sense for it only requires an application of mind
rather than a judicial application of mind. At this pre
trial stage, the Magistrate is required to perform acts in
the nature of administrative work rather than judicial
such as ensuring compliance with Sections 207 and 208
CrPC, and committing the matter if it is exclusively
triable by the Sessions Court. Therefore, it would be
legitimate for us to conclude that the Magistrate at the
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stage of Sections 207 to 209 CrPC is forbidden, by
express provision of Section 319 CrPC, to apply his mind
to the merits of the case and determine as to whether any
accused needs to be added or subtracted to face trial
before the Court of Session.
xxx xxx xxx
53. It is thus aptly clear that until and unless the
case reaches the stage of inquiry or trial by the court, the
power under Section 319 CrPC cannot be exercised. In
fact, this proposition does not seem to have been
disturbed by the Constitution Bench in Dharam Pal
(CB) [ Dharam Pal v. State of Haryana , (2014) 3 SCC 306 :
AIR 2013 SC 3018] . The dispute therein was resolved
visualising a situation wherein the court was concerned
with procedural delay and was of the opinion that the
Sessions Court should not necessarily wait till the stage
of Section 319 CrPC is reached to direct a person, not
facing trial, to appear and face trial as an accused. We
are in full agreement with the interpretation given by the
Constitution Bench that Section 193 CrPC confers power
of original jurisdiction upon the Sessions Court to add an
accused once the case has been committed to it.
In our opinion, the stage of inquiry does not
54.
contemplate any evidence in its strict legal sense, nor
could the legislature have contemplated this inasmuch as
the stage for evidence has not yet arrived. The only
material that the court has before it is the material
collected by the prosecution and the court at this stage
prima facie can apply its mind to find out as to whether a
person, who can be an accused, has been erroneously
omitted from being arraigned or has been deliberately
excluded by the prosecuting agencies. This is all the more
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necessary in order to ensure that the investigating and
the prosecuting agencies have acted fairly in bringing
before the court those persons who deserve to be tried
and to prevent any person from being deliberately
shielded when they ought to have been tried. This is
necessary to usher faith in the judicial system whereby
the court should be empowered to exercise such powers
even at the stage of inquiry and it is for this reason that
the legislature has consciously used separate terms,
namely, inquiry or trial in Section 319 CrPC.
55. Accordingly, we hold that the court can exercise
the power under Section 319 CrPC only after the trial
proceeds and commences with the recording of the
evidence and also in exceptional circumstances as
explained hereinabove.
There is yet another set of provisions which
56.
form part of inquiry relevant for the purposes of Section
319 CrPC i.e. provisions of Sections 200, 201, 202, etc.
CrPC applicable in the case of complaint cases. As has
been discussed herein, evidence means evidence adduced
before the court. Complaint case is a distinct category of
criminal trial where some sort of evidence in the strict
legal sense of Section 3 of the Evidence Act 1872
(hereinafter referred to as “the Evidence Act”) comes
before the court. There does not seem to be any
restriction in the provisions of Section 319 CrPC so as to
preclude such evidence as coming before the court in
complaint cases even before charges have been framed or
the process has been issued. But at that stage as there is
no accused before the court, such evidence can be used
only to corroborate the evidence recorded during the trial
( sic or) for the purpose of Section 319 CrPC, if so
required. What is essential for the purpose of the section
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is that there should appear some evidence against a
person not proceeded against and the stage of the
proceedings is irrelevant. Where the complainant is
circumspect in proceeding against several persons, but
the court is of the opinion that there appears to be some
evidence pointing to the complicity of some other persons
as well, Section 319 CrPC acts as an empowering
provision enabling the court/Magistrate to initiate
proceedings against such other persons. The purpose of
Section 319 CrPC is to do complete justice and to ensure
that persons who ought to have been tried as well are
also tried. Therefore, there does not appear to be any
difficulty in invoking powers of Section 319 CrPC at the
stage of trial in a complaint case when the evidence of the
complainant as well as his witnesses are being recorded.
6.1.4 While answering Questions (iii), namely, whether the
word “evidence” used in Section 319(1) CrPC has been used in a
comprehensive sense and includes the evidence collected during
investigation or the word “evidence” is limited to the evidence
recorded during trial, this Court, in the aforesaid decision has
observed and held as under:
“58. To answer the questions and to resolve the
impediment that is being faced by the trial courts in
exercising of powers under Section 319 CrPC, the issue
has to be investigated by examining the circumstances
which give rise to a situation for the court to invoke such
powers. The circumstances that lead to such inference
being drawn up by the court for summoning a person
24
arise out of the availability of the facts and material that
come up before the court and are made the basis for
summoning such a person as an accomplice to the
offence alleged to have been committed. The material
should disclose the complicity of the person in the
commission of the offence which has to be the material
that appears from the evidence during the course of any
inquiry into or trial of offence. The words as used in
Section 319 CrPC indicate that the material has to be
“where … it appears from the evidence ” before the court.
59. Before we answer this issue, let us examine the
meaning of the word “evidence”. According to Section 3 of
the Evidence Act, “evidence” means and includes:
“ (1) all statements which the court permits or
requires to be made before it by witnesses, in relation to
matters of fact under inquiry;
such statements are called oral evidence;
all documents including electronic records
(2)
produced for the inspection of the court;
such documents are called documentary evidence.”
xxx xxx xxx
It is, therefore, clear that the word “evidence” in
78.
Section 319 CrPC means only such evidence as is made
before the court, in relation to statements, and as
produced before the court, in relation to documents. It is
only such evidence that can be taken into account by the
Magistrate or the court to decide whether the power
under Section 319 CrPC is to be exercised and not on the
basis of material collected during the investigation.
25
xxx xxx xxx
82. This pretrial stage is a stage where no
adjudication on the evidence of the offences involved
takes place and therefore, after the material along with
the chargesheet has been brought before the court, the
same can be inquired into in order to effectively proceed
with framing of charges. After the charges are framed, the
prosecution is asked to lead evidence and till that is
done, there is no evidence available in the strict legal
sense of Section 3 of the Evidence Act. The actual trial of
the offence by bringing the accused before the court has
still not begun. What is available is the material that has
been submitted before the court along with the charge
sheet. In such situation, the court only has the
preparatory material that has been placed before the
court for its consideration in order to proceed with the
trial by framing of charges.
83. It is, therefore, not any material that can be
utilised, rather it is that material after cognizance is
taken by a court, that is available to it while making an
inquiry into or trying an offence, that the court can
utilise or take into consideration for supporting reasons
to summon any person on the basis of evidence adduced
before the court, who may be on the basis of such
material, treated to be an accomplice in the commission
of the offence. The inference that can be drawn is that
material which is not exactly evidence recorded before
the court, but is a material collected by the court, can be
utilised to corroborate evidence already recorded for the
purpose of summoning any other person, other than the
accused. This would harmonise such material with the
word “evidence” as material that would be supportive in
nature to facilitate the exposition of any other accomplice
26
whose complicity in the offence may have either been
suppressed or escaped the notice of the court.
84. The word “evidence” therefore has to be
understood in its wider sense both at the stage of trial
and, as discussed earlier, even at the stage of inquiry, as
used under Section 319 CrPC. The court, therefore,
should be understood to have the power to proceed
against any person after summoning him on the basis of
any such material as brought forth before it. The duty
and obligation of the court becomes more onerous to
invoke such powers cautiously on such material after
evidence has been led during trial.
85. In view of the discussion made and the
conclusion drawn hereinabove, the answer to the
aforesaid question posed is that apart from evidence
recorded during trial, any material that has been received
by the court after cognizance is taken and before the trial
commences, can be utilised only for corroboration and to
support the evidence recorded by the court to invoke the
power under Section 319 CrPC. The “evidence” is thus,
limited to the evidence recorded during trial.
6.1.5 While answering Question (ii) namely, whether the word
“evidence” used in Section 319(1) CrPC means as arising in
examinationinchief or also together with crossexamination, in the
aforesaid decision, this Court has observed and held as under:
86. The second question referred to herein is in
relation to the word “evidence” as used under Section
27
| 319 CrPC, which leaves no room for doubt that the<br>evidence as understood under Section 3 of the Evidence<br>Act is the statement of the witnesses that are recorded<br>during trial and the documentary evidence in accordance<br>with the Evidence Act, which also includes the document<br>and material evidence in the Evidence Act. Such evidence<br>begins with the statement of the prosecution witnesses,<br>therefore, is evidence which includes the statement<br>during examinationinchief. In Rakesh [(2001) 6 SCC<br>248 : 2001 SCC (Cri) 1090 : AIR 2001 SC 2521] , it was<br>held that: (SCC p. 252, para 10) | |
|---|---|
| “10. … It is true that finally at the time of trial<br>the accused is to be given an opportunity to cross<br>examine the witness to test its truthfulness. But that<br>stage would not arise while exercising the court's<br>power under Section 319 CrPC. Once the deposition<br>is recorded, no doubt there being no cross<br>examination, it would be a prima facie material which<br>would enable the Sessions Court to decide whether<br>powers under Section 319 should be exercised or<br>not.” | |
| 87. In Ranjit Singh [Ranjit Singh v. State of Punjab,<br>(1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC<br>3148] , this Court held that: (SCC p. 156, para 20) | |
| “20. … it is not necessary for the court to wait<br>until the entire evidence is collected for exercising the<br>said powers.” | |
| 88. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq,<br>(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007<br>SC 1899] , it was held that the prerequisite for exercise of<br>power under Section 319 CrPC is the satisfaction of the<br>court to proceed against a person who is not an accused<br>but against whom evidence occurs, for which the court |
28
can even wait till the crossexamination is over and that
there would be no illegality in doing so. A similar view
has been taken by a twoJudge Bench in Harbhajan
Singh v. State of Punjab [(2009) 13 SCC 608 : (2010) 1
SCC (Cri) 1135] . This Court in Hardeep Singh [ Hardeep
Singh v. State of Punjab , (2009) 16 SCC 785 : (2010) 2
SCC (Cri) 355] seems to have misread the judgment
in Mohd. Shafi [ Mohd. Shafi v. Mohd. Rafiq , (2007) 14
SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] ,
as it construed that the said judgment laid down that for
the exercise of power under Section 319 CrPC, the court
has to necessarily wait till the witness is crossexamined
and on complete appreciation of evidence, come to the
conclusion whether there is a need to proceed under
Section 319 CrPC.
89. We have given our thoughtful consideration to
the diverse views expressed in the aforementioned cases.
Once examinationinchief is conducted, the statement
becomes part of the record. It is evidence as per law and
in the true sense, for at best, it may be rebuttable. An
evidence being rebutted or controverted becomes a
matter of consideration, relevance and belief, which is the
stage of judgment by the court. Yet it is evidence and it is
material on the basis whereof the court can come to a
prima facie opinion as to complicity of some other person
who may be connected with the offence.
As held in Mohd. Shafi [ Mohd. Shafi v. Mohd.
90.
, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR
Rafiq
2007 SC 1899] and [(2009) 13 SCC
Harbhajan Singh
608 : (2010) 1 SCC (Cri) 1135] , all that is required for
the exercise of the power under Section 319 CrPC is that,
it must to the court that some other person also
appear
who is not facing the trial, may also have been involved
in the offence. The prerequisite for the exercise of this
29
power is similar to the prima facie view which the
Magistrate must come to in order to take cognizance of
the offence. Therefore, no straitjacket formula can and
should be laid with respect to conditions precedent for
arriving at such an opinion and, if the Magistrate/court
is convinced even on the basis of evidence appearing in
examinationinchief, it can exercise the power under
Section 319 CrPC and can proceed against such other
person(s). It is essential to note that the section also uses
the words “such person could be tried” instead
of should be tried. Hence, what is required is not to have
a minitrial at this stage by having examination and
crossexamination and thereafter rendering a decision on
the overt act of such person sought to be added. In fact,
it is this minitrial that would affect the right of the
person sought to be arraigned as an accused rather than
not having any crossexamination at all, for in light of
subsection (4) of Section 319 CrPC, the person would be
entitled to a fresh trial where he would have all the rights
including the right to crossexamine prosecution
witnesses and examine defence witnesses and advance
his arguments upon the same. Therefore, even on the
basis of examinationinchief, the court or the Magistrate
can proceed against a person as long as the court is
satisfied that the evidence appearing against such person
is such that it prima facie necessitates bringing such
person to face trial. In fact, examinationinchief untested
by crossexamination, undoubtedly in itself, is an
evidence.
91. Further, in our opinion, there does not seem to
be any logic behind waiting till the crossexamination of
the witness is over. It is to be kept in mind that at the
time of exercise of power under Section 319 CrPC, the
person sought to be arraigned as an accused, is in no
30
way participating in the trial. Even if the cross
examination is to be taken into consideration, the person
sought to be arraigned as an accused cannot cross
examine the witness(es) prior to passing of an order
under Section 319 CrPC, as such a procedure is not
contemplated by CrPC. Secondly, invariably the State
would not oppose or object to naming of more persons as
an accused as it would only help the prosecution in
completing the chain of evidence, unless the witness(es)
is obliterating the role of persons already facing trial.
More so, Section 299 CrPC enables the court to record
evidence in absence of the accused in the circumstances
mentioned therein.
92. Thus, in view of the above, we hold that power
under Section 319 CrPC can be exercised at the stage of
completion of examinationinchief and the court does
not need to wait till the said evidence is tested on cross
examination for it is the satisfaction of the court which
can be gathered from the reasons recorded by the court,
in respect of complicity of some other person(s), not
facing the trial in the offence.
6.1.6 While answering Question (iv), namely, what is the degree
of satisfaction required for invoking the power under Section 319
CrPC, this Court after considering various earlier decisions on this
point, has observed and held as under:
Power under Section 319 CrPC is a
105.
discretionary and an extraordinary power. It is to be
exercised sparingly and only in those cases where the
31
circumstances of the case so warrant. It is not to be
exercised because the Magistrate or the Sessions Judge
is of the opinion that some other person may also be
guilty of committing that offence. Only where strong and
cogent evidence occurs against a person from the
evidence led before the court that such power should be
exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie
case is to be established from the evidence led before the
court, not necessarily tested on the anvil of cross
examination, it requires much stronger evidence than
mere probability of his complicity. The test that has to be
applied is one which is more than prima facie case as
exercised at the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence of
such satisfaction, the court should refrain from
exercising power under Section 319 CrPC. In Section 319
CrPC the purpose of providing if “it appears from the
evidence that any person not being the accused has
committed any offence” is clear from the words “ for which
such person could be tried together with the accused ”. The
words used are not “for which such person could be
convicted”. There is, therefore, no scope for the court
acting under Section 319 CrPC to form any opinion as to
the guilt of the accused.
6.1.7 While answering Question (v), namely, in what situations
can the power under Section 319 CrPC be exercised: named in the
32
FIR, but not chargesheeted or has been discharged, this Court has
observed and held as under:
112. However, there is a great difference with
regard to a person who has been discharged. A person
who has been discharged stands on a different footing
than a person who was never subjected to investigation
or if subjected to, but not chargesheeted. Such a person
has stood the stage of inquiry before the court and upon
judicial examination of the material collected during
investigation, the court had come to the conclusion that
there is not even a prima facie case to proceed against
such person. Generally, the stage of evidence in trial is
merely proving the material collected during investigation
and therefore, there is not much change as regards the
material existing against the person so discharged.
Therefore, there must exist compelling circumstances to
exercise such power. The court should keep in mind that
the witness when giving evidence against the person so
discharged, is not doing so merely to seek revenge or is
naming him at the behest of someone or for such other
extraneous considerations. The court has to be
circumspect in treating such evidence and try to separate
the chaff from the grain. If after such careful examination
of the evidence, the court is of the opinion that there does
exist evidence to proceed against the person so
discharged, it may take steps but only in accordance with
Section 398 CrPC without resorting to the provision of
Section 319 CrPC directly.
xxx xxx xxx
116. Thus, it is evident that power under Section
319 CrPC can be exercised against a person not
33
subjected to investigation, or a person placed in Column
2 of the chargesheet and against whom cognizance had
not been taken, or a person who has been discharged.
However, concerning a person who has been discharged,
no proceedings can be commenced against him directly
under Section 319 CrPC without taking recourse to
provisions of Section 300(5) read with Section 398 CrPC.
6.2 Considering the law laid down by this Court in Hardeep
(supra) and the observations and findings referred to and
Singh
reproduced hereinabove, it emerges that ( i ) the Court can exercise
the power under Section 319 CrPC even on the basis of the
statement made in the examinationinchief of the witness
concerned and the Court need not wait till the crossexamination of
such a witness and the Court need not wait for the evidence against
the accused proposed to be summoned to be tested by cross
examination; and ( ii ) a person not named in the FIR or a person
though named in the FIR but has not been chargesheeted or a
person who has been discharged can be summoned under Section
319 CrPC, provided from the evidence (may be on the basis of the
evidence collected in the form of statement made in the
34
| examinationinchief of the witness concerned), it appears that such<br>person can be tried along with the accused already facing trial. | ||
|---|---|---|
| 6.3 In S. Mohammed Ispahani v. Yogendra Chandak (2017) 16<br>SCC 226, this Court has observed and held as under: (SCC p. 243) | ||
| “35. It needs to be highlighted that when a person is<br>named in the FIR by the complainant, but police, after<br>investigation, finds no role of that particular person and<br>files the chargesheet without implicating him, the Court is<br>not powerless, and at the stage of summoning, if the trial<br>court finds that a particular person should be summoned<br>as accused, even though not named in the chargesheet, it<br>can do so. At that stage, chance is given to the complainant<br>also to file a protest petition urging upon the trial court to<br>summon other persons as well who were named in the FIR<br>but not implicated in the chargesheet. Once that stage has<br>gone, the Court is still not powerless by virtue of Section<br>319 CrPC. However, this section gets triggered when during<br>the trial some evidence surfaces against the proposed<br>accused.” | ||
| 6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC 368,<br>after considering the observations made by this Court in Hardeep<br>Singh (supra) referred to hereinabove, this Court has further<br>observed and held that even in a case where the stage of giving<br>opportunity to the complainant to file a protest petition urging upon |
35
the trial court to summon other persons as well who were named in
FIR but not implicated in the chargesheet has gone, in that case
also, the Court is still not powerless by virtue of Section 319 CrPC
and even those persons named in FIR but not implicated in charge
sheet can be summoned to face the trial provided during the trial
some evidence surfaces against the proposed accused.
7. Applying the law laid down by this Court in the aforesaid
decisions to the case of the accused on hand, we are of the opinion
that learned Trial Court was justified in summoning the private
respondents herein to face the trial as accused on the basis of the
deposition of the appellant – injured eye witness. As held by this
Court in the aforesaid decisions, the accused can be summoned on
the basis of even examinationinchief of the witness and the Court
need not wait till his crossexamination. If on the basis of the
examinationinchief of the witness the Court is satisfied that there
is a prima facie case against the proposed accused, the Court may
in exercise of powers under Section 319 CrPC array such a person
as accused and summon him to face the trial. At this stage, it is
required to be noted that right from the beginning the appellant
36
herein – injured eye witness, who was the first informant, disclosed
the names of private respondents herein and specifically named
them in the FIR. But on the basis of some enquiry by the DSP they
were not chargesheeted. What will be the evidentiary value of the
enquiry report submitted by the DSP is another question. It is not
that the investigating officer did not find the case against the
private respondents herein and therefore they were not charge
sheeted. In any case, in the examinationinchief of the appellant
injured eye witness, the names of the private respondents herein
are disclosed. It might be that whatever is stated in the
examinationinchief is the same which was stated in the FIR. The
same is bound to be there and ultimately the appellant herein –
injured eye witness is the first informant and he is bound to again
state what was stated in the FIR, otherwise he would be accused of
contradictions in the FIR and the statement before the Court.
Therefore, as such, the learned Trial Court was justified in directing
to issue summons against the private respondents herein to face
the trial.
37
8. Now, so far as the impugned judgment and order passed by
the High Court is concerned, it appears that while quashing and
setting aside the order passed by the learned Trial Court, the High
Court has considered/observed as under:
“No evidence except the statement of Sartaj Singh,
which has already been investigated into by the
concerned DSPs was relied upon by the trial Court to
summon, which was not sufficient for exercising power
under Section 319 Cr.P.C.
As per statement of Sartaj Singh, Palwinder Singh
and Satkar Singh gave him lathi blows on the head.
Manjeet Singh, Amarjeet Singh, Rajwant Singh, Narvair
Singh and Sukhdev Singh were holding gandasi. Manjeet
Singh, Amarjeet Singha and Rajwant Singh gave him
gandasi blows on the head and face. All the injuries are
stated to fall in the offence under Sections 323, 324, 326,
341 read with Section 149 IPC. In case, so many people
as mentioned above were giving gandasi and lathies
blows on the head, Sartaj Singh was bound to have
suffered more injuries, which would not have left him
alive and probably he would have been killed on the spot.
He seems to have escaped with only such injuries as
have invited offence only under Sections 323, 324, 326,
341 read with Section 149 of IPC. Therefore, the trial
Court erred in exercising his jurisdiction summoning the
other accused where exaggeration and implication is
evident on both sides.”
8.1 The aforesaid reasons assigned by the High Court are
unsustainable in law and on facts. At this stage, the High Court
was not required to appreciate the deposition of the injured eye
38
witness and what was required to be considered at this stage was
whether there is any prima facie case and not whether on the basis
of such material the proposed accused is likely to be convicted or
not and/or whatever is stated by the injured eye witness in his
examinationinchief is exaggeration or not. The aforesaid aspects
are required to be considered during the trial and while
appreciating the entire evidence on record. Therefore, the High
Court has materially erred in quashing and setting aside the order
passed by the learned Trial Court summoning the accused to face
the trial in exercise of powers under Section 319 CrPC, on the
reasoning mentioned hereinabove. Even the observations made by
the High Court referred to hereinabove are on probability.
Therefore, the impugned judgment and order passed by the High
Court is not sustainable in law and on facts and is beyond the
scope and ambit of Section 319 CrPC.
8.2 In view of the above and for the reasons stated above, the
present appeals succeed. The impugned judgment and order
passed by the High Court dated 28.08.2020 in revision application
bearing CRR No. 3238 of 2018 and CRMM No. 55631 of 2018 is
39
hereby quashed and set aside and the order passed by the learned
Trial Court summoning the private respondents herein to face the
trial is hereby restored. The private respondents herein now to face
the trial as summoned by the learned Trial Court. The present
appeals are allowed accordingly.
……………………………………J.
[Dr. Dhananjaya Y. Chandrachud]
………………………………….J.
[M. R. Shah]
New Delhi,
March 15, 2021