Summoning an accused omitted from the charge-sheet under Section 319 Cr.P.C. was upheld on an injured eyewitness's testimony. The court dismissed the Section 482 application and rejected the contention that summoning had to await examination of the investigating officer.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved on 23.09.2021 Deelivered on 08.10.2021
Court No. - 83
Case :- APPLICATION U/S 482 No. - 5653 of 2021 Applicant :- Naaved Opposite Party :- State of U.P. and Another Counsel for Applicant :- Syed Mohammad Nawaz,Shahabuddin Counsel for Opposite Party :- G.A.,Rajesh Kumar Mishra
Hon'ble Rajeev Misra,J.
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326, 504, 506 I.P.C., Police Station-Bhont, District-Rampur. In the aforesaid F.I.R., seven persons, namely, Khurshid, Anwar, Irfan Ali, Imran, Maqbool Ali, Rafiq and Naved have been nominated as named accused.
6.After registeration of above mentioned F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. Investigating Officer during course of investigation examined first informant/opposite party-2 and other witnesses in terms of Section 161 Cr.P.C. Witnesses so examined supported the prosecution story as unfolded in F.I.R. On the basis of above and other material gathered by Investigating Officer during course of investigation, he came to the conclusion that complicity of only some of the accused is established in the crime in question. Accordingly, he opined to submit a charge-sheet. However, in the charge-sheet so submitted, only some of the named accused were charge-sheeted, whereas others were exculpated.
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disclose the material, on the basis of which, applicant was exculpated. In the absence of above material, on the basis of which, applicant was exculpated from charge-sheet, could not be placed before court below. It is also contended that no protest petition was filed by first informant/opposite party-2 against charge-sheet submitted by Investigating Officer. In the application under Sections 319 Cr.P.C. filed by first informant/opposite party-2, no explanation regarding same has been offerred. As such, application under Section 319 Cr.P.C. filed by first informant/opposite party-2 is with an ulterior and oblique motive. As such, same is wholly malicious. Learned counsel for applicant further contends that as per the testimony of P.W.-1, no cast iron case for summoning of present applicant is made out. Court below has not recorded any finding in the light of law laid down by Constitution Bench in Hardeep Singh and others Vs. State of Panjab and others 2014, 3 SCC 92. It is, thus, urged that court below has failed to exercise it's jurisdiction diligently. Accordingly, court below has summoned applicant in a “casual and cavalier manner” even when no “strong and cogent evidence” exist against applicant on the record of above mentioned Sessions Trial. On the aforesaid premise, it is thus urged by learned counsel for applicant that order impugned dated 04.09.2019, passed by court below cannot be sustained in law and fact. Consequently, order impugned is liable to be quahsed and application be allowed.
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Investigating Officer is not conclusive proof of innocence of applicant. No irregularity or illegality has been committed by court below, in passing impugned order dated 04.09.2019. Even though applicant has been exculpated by Investigating Officer, same cannot be taken as a ground to urge that applicant cannot be subsequently summoned to face trial. Applicant will have adequate opportunity to prove his innocence before court below by adducing evidence as well as Investigating Officer as a defence witness. No attempt has been made to draw a parallel between statement of P.W.1 as recorded by Investigating Officer under Section 161 Cr.P.C. and his testimony given before court below. No pleading has been raised in the affidavit filed in support of present application under Section 482 Cr.P.C. that nothing new has been stated by P.W.1 Anish Ahmad in his deposition before court below than what was stated in his statement under Section 161 Cr.P.C.. As such, nothing new has come on record on the basis of which, applicant could be summoned. Impugned order passed by court below is in conformity with the principles laid down by Constitution Bench in Hardeep Singh (supra), wherein court has defined the manner in which jurisdiction under Section 319 Cr.P.C. is to be exercised as well as the nature of evidence required to summon a prosepctive accused. On the aforesaid premise, it is thus urged by learned A.G.A. that no indulgence be granted by this Court in favour of applicant.
( i ) Dharam Pal and Others Vs. State of Haryana and Another,
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(2014) 3 SCC 306 (Constitution Bench)
( ii ) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)
( iii ) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568
( iv ) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244
( v ) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706
( vi ) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393
( viii ) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329
( ix ) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342
( x ) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556
( xi ) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368
( xii ) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638
( xiii ) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805
( xiv ) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390
( xv ) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644
(xvi) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806
(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337
(xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632
(xviv). Criminal Appeal No. 990 of 2021 (Umesh Chandra Srivastava Vs. The State of U.P. and another)
Pal (Supra) considered the provisions of Sections 193, 190, 319, 209,
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173(2) and 200 to 204 Cr.P.C. and held that Sessions Judge has power to summon non charge sheeted accused after the case has been committed to Court of Sessions under section 193 Cr.P.C and for this purpose need not wait for evidence to be recorded so that non charge sheeted accused could be summoned under section 319 Cr.P.C.
"4. Reference made in Dharam Pal (Supra) came to be answered in relation to the power of a Court of Sessions to invoke Section 319 Cr.P.C. at the stage of committal of the case to a Court of Sessions. The said reference was answered by the Constitution Bench in the case of Dharam Pal & Ors. v. State of Haryana & Anr., AIR 2013 SC 3018 [hereinafter called 'Dharam Pal (CB)'], wherein it was held that a Court of Sessions can with the aid of Section 193 Cr.P.C. proceed to array any other person and summon him for being tried even if the provisions of Section 319 Cr.P.C. could not be pressed in service at the stage of committal.
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6.3 (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. 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?
6.5 (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
"319 Cr.P.C. -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.
(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."
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Questions (i) and (iii)
AND
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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?
Answer
117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
117.3. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question (ii)- Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by crossexamination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
Answer
117.4. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question (iv)- What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer.
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117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question (v)- Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?
Answer
117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of ?Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
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"7. Before we proceed to deal with the evidence against the appellant and address whether in light of the evidence available, power under Section 319 of the Code was validly exercised, it would be expedient to understand the position of law in this regard. The issue regarding the scope and extent of powers of the court to arraign any person as an accused during the course of inquiry or trial in exercise of power under Section 319 of the Code has been set at rest by a Constitution Bench of this Court in Hardeep Singh v. State of Punjab[(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86 : (2014) 1 Scale 241] . On a review of the authorities, this Court summarised the legal position in the following words: (SCC p. 138, paras 105-06)
"105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the 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.
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evidence and, thus, cannot be considered as such to enable exercise of power under Section 319 of the Code.
"13. We are not unmindful of the fact that the interpretation placed by us on the scheme of Sections 319 and 227 makes Section 227 unavailable to an accused who has been added under Section 319 CrPC. We are of the view, for the reasons given above, that this must necessarily be so since a view to the contrary would render the exercise undertaken by a court under Section 319 CrPC, for summoning an accused, on the basis of a higher standard of proof totally infructuous and futile if the same court were to subsequently discharge the same accused by exercise of the power under Section 227
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CrPC, on the basis of a mere prima facie view. The exercise of the power under Section 319 CrPC, must be placed on a higher pedestal. Needless to say the accused summoned under Section 319 CrPC, are entitled to invoke remedy under law against an illegal or improper exercise of the power under Section 319, but cannot have the effect of the order undone by seeking a discharge under Section 227 CrPC. If allowed to, such an action of discharge would not be in accordance with the purpose of Criminal Procedure Code in enacting Section 319 which empowers the Court to summon a person for being tried along with the other accused where it appears from the evidence that he has committed an offence."
"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the I.O. at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt,
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such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
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There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."
"31. The order of the learned Chief Metropolitan Magistrate reveals that while dismissing the application of the complainant under Section 319 CrPC, the Chief Metropolitan Magistrate was swayed by two considerations:
(a) The complainant (PW 1) in his examination-in-chief had not spoken anything with regard to the alleged conspiracy entered into between the appellants i.e. the landlords and the bailiff. Also other witnesses i.e. PWs 2, 3 and 4, who were working in the company of the de facto complainant had not spoken anything with regard to the appellants. There was no documentary evidence produced by the complainant. Therefore, the available "evidence" was not sufficient to implead the appellants/proposed accused as accused in the case.
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(b) The police, after thorough investigation, had filed the charge-sheet in which the appellants were not implicated. However, the complainant never filed any protest petition at that stage.
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and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.
“ 7. In the matter on hand, the Sessions Court, as aforementioned, has found that the earlier order of discharge was without reference to the supplementary charge-sheet, though the supplementary charge-sheet was in existence then. Only after applying its mind judiciously to the facts of the case and on verifying the details of the supplementary charge-sheet as well as other material on
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record, mentioned supra, the trial court concluded that it is a fit case to proceed against the appellant-accused under Section 319 of the Code of Criminal Procedure. The said order is confirmed by the High Court. The procedure as contemplated under Section 319 CrPC as well as the procedure as laid down by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] is fully satisfied by the trial court.”
"8. Section 319(1) CrPC empowers the court to proceed against other persons who "appear" to be guilty of an offence, though not accused before the court. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has ruled that the word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved", and imparts a lesser degree of probability than proof. Though only a prima facie case is to be established from the evidence led before the Court, it requires much stronger evidence than a mere probability of the complicity of the persons against whom the deponent has deposed. The test that has to be applied is of a degree of satisfaction which is more than that of a 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, may lead to conviction of the proposed accused. In the absence of such satisfaction, the Court should refrain from exercising the power under Section 319 CrPC. In our considered opinion, the impugned judgment has been passed by the High Court keeping the aforementioned principle in mind,
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though the said judgment has not been cited before the High Court.
"13. In the statements recorded under Section 161 of the Code during the course of investigation, the complainant and his witnesses have not disclosed any other name except the 11 persons named in the FIR. Thus, the complainant has sought to cast net wide so as to include numerous other persons while moving an application under Section 319 of the Code without there being primary evidence about their role in house trespass or of threatening the complainant. Large number of people will not come to the house of the complainant and would return without causing any injury as they were said to be armed with weapons like crowbar, knife and ripper, etc.
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of description in the first information report to identify such person. There is no assertion in respect of the villages to which the additional accused belong. Therefore, there is no strong or cogent evidence to make the appellants stand the trial for the offences under Sections 147, 448, 294(b) and 506 IPC in view of the judgment inHardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] . The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.
"13. Applying the above principles to the case in hand, in our considered view, no prima facie case is made out for summoning the appellants and to proceed against the appellants for the offence punishable under Section 302 IPC. As pointed out earlier, in the dying declaration,
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deceased Shilpa has only mentioned the name of Chanchal alias Babita; but she has not mentioned the names of others. In his complaint lodged before the police on the next day i.e. 20-8-2012, Sudhir Kumar Gupta PW 1 has stated that his daughter Shilpa told him that Chanchal alias Babita and all other people set her on fire after pouring kerosene. PW 1 has neither stated the names of the appellants nor attributed any overt act. Likewise, in their evidence before the court, PWs 1 and 3 have only stated that Shilpa told them that Chanchal alias Babita and all others have set fire on deceased Shilpa. Neither the complaint nor the evidence of witnesses indicates as to the role played by the appellants in the commission of the offence and which accused has committed what offence. Under such circumstances, it cannot be said that the prosecution has shown prima facie material for summoning the accused for the offence punishable under Section 302 IPC.
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principles governing the exercise of jurisdiction under section 319 Cr.P.C in a situation, where a person is named in F.I.R., and specific allegations are made against him yet not charge sheeted nor any protest petition having been filed in Court by first informant after submission of charge sheet. Here again Court took notice of the law laid down by Apex Court in Hardeep Singh (Supra) and Brijendra Singh (Supra) and then evaluated oral testimony of P.W.1 and P.W.2 whose testimonies did implicate the non charge sheeted accused in a case under Sections- 302, 307, 148, 149, 323, 324, 325 and 506 I.P.C. Ultimately, Court settled the issue as follows in paragraphs 6.8, 6.9, 6.10, 7 and 8:
"6.8. Considering the law laid down by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and the observations and findings referred to and 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 examination-in-chief of the witness concerned and the Court need not wait till the cross-examination 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 charge-sheeted 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 examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.
6.9. In S. Mohammed Ispahani v. Yogendra Chandak [S. Mohammed Ispahani v.Yogendra Chandak, (2017) 16 SCC 226 : (2018) 2 SCC (Cri) 138] , SCC para 35, this Court has observed and held as under : (SCC p. 243)
"35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed
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accused."
6.10. Thus, even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in the FIR but not implicated in the chargesheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.
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circumstances, the submission on behalf of the accused that as they were discharged by the learned Magistrate and therefore it was not open to the learned Magistrate to exercise the power under Section 319 CrPC and to summon the appellants to face the trial, cannot be accepted."
"22. It was contended that the question of law herein is unique to the present case, and the earlier judgment of Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] did not have an opportunity to cast any light about the validity of summoning orders pronounced after the passing of the judgment. They further argued that, Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , treats Section 319 in an isolated manner without taking into consideration the spirit and the mandate of the Code.
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an isolated island and should instead be given a pragmatic interpretation by keeping in view the entire mandate of the Code to render complete justice.
26.1.(i) Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
26.2.(ii) Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
26.3.(iii) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?
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judgement and paragraph 13 of the judgement in Labhuji Amratji Thakor Vs State of Gujarat, (2019) 12 SCC 644, which is regarding the nature of evidence required for summoning of a non charge sheeted accused and applying the principles laid down therein, Court ultimately resolved as follows in paragraphs 12, 13, 14, 15 and 16:
"12. In Labhuji Amratji Thakor v. State of Gujarat [Labhuji Amratji Thakor v. State of Gujarat, (2019) 12 SCC 644 : AIR 2019 SC 734] , this Court held that the Court has to consider substance of the evidence, which has come before it and has to apply the test i.e. "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. It was held as under: (SCC p. 649, paras 1314)
"13. The High Court [Meruji Jesuji Thakore v. State of Gujarat, 2018 SCC OnLine Guj 4765] does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that the Court has power under Section 319 CrPC to proceed against any person who is not named in the FIR or in the charge-sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 CrPC. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has to apply the test i.e. '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'.
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2012 (for short "the Pocso Act") is not sustainable in law.
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paragraphs 95, 105 and 106 and thereafter Court formulated its view as follows in paragraphs 18, 19, 20, 21, 22 and 23:
"18. Thus, the provisions contained in Section 319 CrPC sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prima facie opinion which is to be formed for exercise of this power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prima facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.
20 The appellant (PW 1) has made the statement assigning specific roles to the proposed accused persons. At the stage of consideration of the application under Section 319 CrPC, of course, the trial court was to look at something more than a prima facie case but could not have gone to the extent of enquiring as to whether the matter would ultimately result in conviction of the proposed accused persons.
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Section 319 CrPC are restored for reconsideration of the trial court. In the interest of justice, it is made clear that we have not pronounced on the merits of the case either way and it would be expected of the trial court to reconsider the prayer of prosecution for proceeding against the proposed accused persons totally uninfluenced by any observation herein regarding facts of the case but with due regard to the evidence on record and to the law applicable."
"10. In the present case, there are not even suggestions of any act done by the appellants amounting to an offence referred to in Sections 3 and 4 of thePocso Act. Thus, there was no occasion to proceed against the appellants under the Pocso Act.
"3. On going through the depositions of the victim as well as her mother, some overtact and participation on the part of Respondents 3 to 5 are clearly revealing. But, this Court is not inclined to opine either way as the said fact was not stated before the police at the time of recording of their statements. But, taking into consideration the provision of Section 319 of the Criminal Procedure Code, this Court deems it appropriate to summon them and put them to trial…."
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issue process under Section 319 CrPC. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has to apply the test i.e. "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." Although, the High Court has not adverted to the test laid down by the Constitution Bench in Hardeep Singh[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] nor has given any cogent reasons for exercise of power under Section 319 CrPC, but for our satisfaction, we have looked into the evidence, which has come on record before the trial court as statements of PW 3 and PW 4. PW 3 is mother of the victim, who has clearly stated that her daughter has informed that she was abducted by the appellants and Natuji, who had taken her to the Morbi in the vehicle of Labhuji. The statement of the mother of the victim was a hearsay statement and could not have been relied for proceeding against the appellants. Now, coming to the statement of the victim, PW 4, she has only stated that Natuji, the accused had come along with his three friends, i.e. appellants and she was taken in the jeep to Morbi. She does not even allege complicity of the appellants in the offence. Her further statement was that she was taken to Morbi in the jeep driven by Labhuji and subsequently was taken to Modasa from Morbi in the jeep of Labhuji which also could not furnish any basis to proceed against the appellants. The mere fact that the jeep, in which she was taken to Modasa, the appellants were also present cannot be treated to be any allegation of complicity of the appellants in the offence. The observations of the trial court while rejecting the application holding that the application appears to be filed with mala fide intention, has not even been adverted to by the High Court."
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therein and summarized its views as follows in paragraphs 13, 14, 15, 16 and 17 of the judgement:
"13. In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that Respondent 2 cannot be summoned as an accused. The FIR in Case Crime No. 328-A/2013 was registered on 6-9-2013 at 1815 hours. The name of the second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the investigating officer recorded the statements of witnesses, namely, Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that Respondent 2 was not present at the place of occurrence at the time of the incident. The investigating officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which Respondent 2 was employed who had stated that Respondent 2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the investigating officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 6-9-2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the investigating officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge-sheet was filed on 19-9-2014. The supplementary charge-sheet was filed against Rahul Shukla on 15-10-2014. Though the name of the second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the investigating officer, he was not charge-sheeted. Be it noted that the appellant complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon Respondent 2 as an accused.
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1 in his cross-examination stated that Subhash Chandra Shukla was on duty at that time. The relevant portion of the statement of PW 1 reads as under:
"… Subhash Chandra Shukla does not live in the house. He does service/job. At the same time in Jigna Police Station, District Mirjapur he was making bridge and due to this reason, he was on duty there.…"
31 . In Sartaj Singh (Supra), Court was examining correctness of an order passed by the High Court, whereby High Court allowed the revision and set-aside the order passed by trial court on an application under Section 319 Cr.P.C., whereby non charge sheeted accused were summoned to face trial in a sessions case, arising out of an F.I.R. under Sections- 148, 149, 341, 323, 324, 307 and 506 I.P.C. Court noticed the Constitution Bench judgement in Hardeep Singh's case as well as the judgement in S. Mohammed Ispahani (Supra) . After applying the law laid down therein, Court proceeded to deduce the nature of evidence that is required for summoning of a non charge-sheeted accused and upon evaluation, disagreed with the view expressed by High Court by drawing its disagreement as follows in paragraphs 14, 15, 16 and 17 of the
35
judgement:
“ 14. 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 the 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 eyewitness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the court need not wait till his cross-examination. If on the basis of the examination-in-chief 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.
“ 29. No evidence except the statement of Sartaj Singh, which has already been investigated into by the DSPs concerned was relied upon by the trial court to summon, which was not sufficient for exercising power under Section 319 CrPC.
36
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 Singh and Rajwant Singh gave him gandasiblows 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 lathis 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 IPC. Therefore, the trial court erred in exercising his jurisdiction summoning the other accused where exaggeration and implication is evident on both sides.”
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High Court as well as trial court. Following disagreement was expressed by court in paragraphs 34, 35, 36, 37 and 38 of the judgement:
“ 34. The ratio of the aforesaid decisions on the scope and ambit of the powers of the Court under Section 319 CrPC can be summarized as under:
(i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly;
(iii) the law has been properly 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;
(iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished;
(v) 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;
(vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it;
(vii) 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;
(viii) Section 319 CrPC is an enabling 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;
(ix) the power under Section 319(1) CrPC can be exercised at any stage after the charge-sheet 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;
(x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence;
(xi) the word “evidence” in 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;
(xii) it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power
38
under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation;
(xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised;
(xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross-examination;
(xvi) even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet 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 the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses);
(xvii) while exercising the powers under Section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial.
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behalf of the private respondents herein that four different DSPs inquired into the matter and thereafter when no evidence was found against them the private respondents herein were put in column no. 2 and therefore the same is to be given much weightage rather than considering/believing the examination-in-chief of the appellant herein. Heavy reliance is placed on the case of Brijendra Singh (Supra). However none of DSPs and/or their reports, if any, are part of the charge-sheet. None of the DSPs are shown as witnesses. None of the DSPs are Investigating Officer. Even on considering the final report/charge-sheet as a whole there does not appear to be any consideration on the specific allegations qua the accused the private respondents herein who are kept in column no. 2. Entire discussion in the charge-sheet/final report is against Sartaj Singh only.
40
of the respondents except they were armed with weapons and the concerned injuries are attributed only to Sartaj Singh even for the sake of arguments someone was present with Sartaj Singh it cannot be said that they had any common intention or there was meeting of mind or knew that Sartaj would be firing. The aforesaid reasonings are not sustainable at all. At the stage of exercising the powers under Section 319 CrPC, the Court is not required to appreciate and/or enter on the merits of the allegations of the case. The High Court has lost sight of the fact that the allegations against all the accused persons right from the very beginning were for the offences under Sections 302, 307, 341, 148 & 149 IPC. The High Court has failed to appreciate the fact that for attracting the offence under Section 149 IPC only forming part of unlawful assembly is sufficient and the individual role and/or overt act is immaterial. Therefore, the reasoning given by the High Court that no injury has been attributed to either of the respondents except that they were armed with weapons and therefore, they cannot be added as accused is unsustainable. The Learned trial Court and the High Court have failed to exercise the jurisdiction and/or powers while exercising the powers under Section 319 CrPC.”
34.With the aid of above, Court now proceeds to examine the correctness of impugned order dated 04.09.2019 passed by Additional Sessions Judge, Court No.5, Rampur, in Sessions Trial No. 268 of 2018 (State Vs. Khurshid and others), under Sections 147, 148, 149, 307, 323, 326, 504, 506 I.P.C., Police Station-Bhot, District-Rampur, whereby applicant has been summoned under Section 319 Cr.P.C. to face trial in abovementioned sessions trial.
41
42
jurisdiction “diligently” or as termed by Apex Court in a “casual and cavalier manner.”
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Constitution Bench judgement in Hardeep Singh (supra) , wherein Court has noticed Section 319 Cr.P.C. and has laid emphasis on the term “for which such person could be tried together with the accused”. His testimony also satisfies the other test laid down in aforesaid paragraph of above-noted judgement which is as follows: 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 view of the fact that P.W.1 has been cross examined, wherein presence of applicant at the time and place of occurrence stands established, testimony of P.W.-2 thus falls in the nature of “strong and cogent evidence.” As such, testimony of this witness also satisfies the test laid down in S. Mohammaed Ispahani (Supra).
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YK
2 issues framed by the court
Did the injured eyewitness's testimony satisfy the evidentiary threshold for summoning the applicant under Section 319 Cr.P.C.?
Was examination of the investigating officer necessary before summoning an accused exculpated during investigation?
Colour shows how this judgement treated each authority
Dharam Pal and Others Vs. State of Haryana and AnotherExplained¶48
(2014) 3 SCC 306 · Who else cites this
Hardeep Singh Vs. State of Punjab and OthersApplied¶283
Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 · Who else cites this
Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and OthersExplained¶102
Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 · Who else cites this
Jogendra yadav and Others Vs. State of Bihar and AnotherExplained¶115
Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 · Who else cites this
Brijendra Singh and Others Vs. State of RajasthanExplained¶119
Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 · Who else cites this
S Mohammed Ispahani Vs. Yogendra Chandak and OthersApplied¶283
S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 · Who else cites this
Deepu @ Deepak Vs. State of Madhya PradeshExplained¶139
Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 · Who else cites this
Dev Wati and Others Vs. State of Haryana and AnotherExplained¶143
Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 · Who else cites this
Periyasamai and Others Vs. S.NallasamyExplained¶148
Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 · Who else cites this
Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and OthersExplained¶155
Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 · Who else cites this
Rajesh and Others Vs. State of HaryanaApplied¶287
Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 · Who else cites this
Sukhpal Singh Khaira Vs. State of PunjabExplained¶173
Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 · Who else cites this
Mani Pushpak Joshi Vs. State of Uttarakhand and AnotherExplained¶185
Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 · Who else cites this
Sugreev Kumar Vs. State of Punjab and OthersApplied¶287
Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 · Who else cites this
Labhuji Amratji Thakor Vs. State of GujaratExplained¶208
Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 · Who else cites this
Shiv Prakash Mishra Vs. State of Uttar Pradesh and AnotherApplied¶287
Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 · Who else cites this
Sartaj Singh Vs. State of Haryana and AnotherApplied¶287
Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 · Who else cites this
Manjeet Singh Vs. State of Haryana and OthersRelied on¶275
Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 · Who else cites this
Umesh Chandra Srivastava Vs. The State of U.P. and anotherExplained¶268
Criminal Appeal No. 990 of 2021 (Umesh Chandra Srivastava Vs. The State of U.P. and another)
2 provisions across 1 enactments
Naaved
State of U.P.
Anis Ahmad
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
