Powers under Section 319 of the CPC meant to be used by court only in exceptional cases: Supreme Court of India

Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 Supreme Court of India Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 Author: S.B. Sinha Bench: S.B. Sinha P. Sathasivam REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 998 OF 2009 No. 57806 Sarabjit Singh & Anr. ...Appellant Versus State of Punjab & Anr. ...Respondents WITH CRIMINAL APPEAL NO. 999 OF 2009 No. 107 cid:12) 2 JUDGMENT S.B. SINHA J 1. Leave granted 2. Interpretation and or application of the provisions of Section 319 of the Code of Criminal Procedure 1973is in question in these appeals. They arise out of a judgment and order dated 12.10.2006 passed by a learned Single Judge of the Punjab and Haryana High Court in Crl. Rev. No. 20706 dismissing the revision petition filed by the appellants herein from an order dated 28.09.2006 passed by the Additional Sessions Judge Gurdaspur whereby application of prosecution under Section 319 of the Code was allowed and the appellants were summoned to face trial for offences under Section 148 302 read with Section 149 of the Indian Penal Code 3. A First Information Report was lodged by Balwant Singhalleging that while working on the fields at about 11.30 a.m. on 02.05.2005 he found Rajwinder Singh alias Raju being surrounded by the accused. He was attacked by them by their respective weapons in their hands till they became sure of his death. After the accused left the place of occurrence PW 1 went near Raju and made him drink water. Sarabjit Singh and Saroop Singh appellants herein while standing near the village Indian Kanoon Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 shouted that Raju had not died whereupon Gurdip Singh appellant in Criminal Appeal arising out of SLPNo.107 Hira Singh and Bhagwant Masih again came near him and caused further physical injuries to him. They thereafter fled away 4. Contention of the accused however in that case is that the deceased Raju was a vagabond having numerous criminal cases registered against him and a large number of proceedings were initiated He was catched by a mob of villagers being fed up with his activities. Allegations against the appellants have been levelled because of political rivalry 5. The investigating officer upon completion of the investigation filed a chargesheet against ten persons and filed a final report against the appellants herein. The accused persons were standing 6. Before the learned Sessions Judge Balwant Singhwas examined. He repeated the allegations contained in the First Information Report 7. Relying only on or on the basis of the said statements made by PW 1 an application for summoning the appellants in terms of Section 319 of the Code was filed 8. On the basis of the said statements alone the application filed by the first informant under Section 319 of the Code was allowed stating 7. In view of the specific attribution to Gurdip Singh Sarabjit Singh and Sarup Singh it is prima facie established that they were members of an unlawful assembly having the common object to kill Rajwinder Singh and they are liable to face the trial u s 148 302 read with Section 149 I.P.C. Hence accused Gurdip Singh son of Sohan Singh Sarabjit Singh son of Nazir Singh and Sarup Singh son of Mohan Singh residents of village Kaile Kalan be summoned through non bailable warrant of arrest for 17.10.06 to face trial u s 148 302 read with Section 149 I.P.C. alongwith the other accused. Singh accused Gurpreet Singh alias Gopi is already facing the trial therefore there is no need to issue process against him. With this the application u s 319 Cr. P.C. is disposed of accordingly. Papers be attached with the trial file As indicated hereinbefore appellants revision application thereagainst before the High Court was 9. Mr. Jasbir Singh Malik learned counsel appearing on behalf of the appellants would contend that the power of a court under Section 319 of the Code being exceptional in nature the courts below must be held to have committed a manifest error in summoning the appellants for standing trial as additional accused although they were found to be innocent during investigation 10. Mr. A.K. Mehta learned counsel appearing on behalf of respondents on the other hand supported the impugned judgment Indian Kanoon 11. Section 319 of the Code reads as under Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 319. Power to proceed against other persons appearing to be guilty of offence.Where such person is not attending the Court he may be arrested or summoned as the circumstances of the case may require for the purpose aforesaid 3) Any person attending the Court although not under arrest or upon a summons may be detained by such court for the purpose of the inquiry into or trial of the offence which he appears to have committed 4) Where the Court proceeds against any person under Sub sectionthen a) the proceedings in respect of such person shall be commenced afresh and witnesses re heard b) subject to the provisions of Clausethe case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced 12. The extent of the power of a Sessions Judge to summon persons other than the accused to stand trial in a pending case came up for consideration before this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi1 SCC 1]. Therein this Court while holding that the provision confers a discretionary jurisdiction on the court added "this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken 13. Interpretation of the aforementioned provision in the light of the said decision came up for consideration before various courts from time to time. We may take note of some of them In Shashikant Singh v. Tarkeshwar Singh5 SCC 738] this Court held 9. The intention of the provision here is that where in the course of any enquiry into or trial of an offence it appears to the court from the evidence that any person not being the accused has committed any offence the court may proceed against him for the offence which he appears to have committed. At that stage the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It Indian Kanoon Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 would not be sufficient to only tender the witnesses for the cross examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1) appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed the order would become ineffective and inoperative nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the It was furthermore held 14. A Magistrate is empowered to take cognizance of an offence in the manner provided under Section 190 of the Code. Section 209 enjoins upon a Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Section 193 provides for the power of the Court of Session to take cognizance of any offence. It uses the expression cognizance of any offence" and not that of "offender". These three provisions read with Section 319 make it clear that the words "could be tried together with the accused" in Section 319 are only for the purpose of finding out whether such a person could be put on trial for the offence In Rakesh v. State of Haryana6 SCC 248] this Court held 13. Hence it is difficult to accept the contention of the learned counsel for the appellants that the term "evidence" as used in Section 319 of the Criminal Procedure Code would mean evidence which is tested by cross examination. The question of testing the evidence by cross examination would arise only after addition of the accused. There is no question of cross examining the witness prior to adding such person as accused. The section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. The word "evidence" occurring in sub sectionis used in a comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the court and from which the court can prima facie conclude that the person not arraigned before it is involved in the commission of the crime In Ranjit Singh v. State of Punjab7 SCC 149] this Court opined Indian Kanoon Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 20. Thus once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers 21. But then one more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken that any other person should also have necessarily been made an accusedis the Sessions Court completely powerless to deal with such a contingency One such situation is cited by the learned Judges through an illustration narrated in Kishun Singh case1 as follows:"[W]here two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non vital part of the body of X. If A is not challaned by the police the Judge may find it difficult to charge B for the murder of X with the aid of Section 34 IPC. If he cannot summon A how does he frame the charge against B 22. Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of the accused due to some inadvertence or omission. Should the court wait until evidence is collected to get that person arraigned in the case 23. Though such situations may arise only in extremely rare cases the Sessions Court is not altogether powerless to deal with such situations to prevent a miscarriage of justice. It is then open to the Sessions Court to send a report to the High Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes This Court in Lok Pal v. Nihal Singh10 SCC 192] observed The court while examining an application under Section 319 of the Code has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell for exercise of discretion under Section 319 of the Code all relevant factors including those noticed above have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused It was furthermore observed Indian Kanoon Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 19. In these circumstances therefore if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the court can take cognizance against them and try them along with the other accused. But we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken In Mohd. Shafi v. Mohd. Rafiq & Anr.SCALE 611] this Court held 7. Before thus a trial court seeks to take recourse to the said provision the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial must therefore appears to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf 12. The Trial Judge as noticed by us in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross examination of the witnesses is over no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same The decision of this Court in Mohd. Shafihowever has been explained in Lal Suraj @ Suraj Singh and Anr. v. State of JharkhandSCALE 276] stating The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration but for the purpose of summoning a person who did not figure as accused a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where however the court exercises its jurisdiction under Section 319 of the Code the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction 14. Our attention however has been drawn to a Two Judge Bench decision of this Court in Hardeep Singh v. State of Punjab & Ors.SC 7] wherein doubting the correctness of Mohd. Shafitwo questions have been referred to a larger Bench which are as under 1) When the power under Sub sectionof Section 319 of the Code of addition of accused can be exercised by a Court Whether application under Section 319 is not Indian Kanoon Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 maintainable unless the cross examination of the witness is complete What is the test and what are the guidelines of exercising power under Sub sectionof Section 319 of the Code Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted Mr. Mehta would also draw our attention to Bholu Ram v. State of Punjab & Anr.SC 504 Whereas Hardeep Singhis not a judgment in that sense of the term in Bholu Ramshould be applied in all fours 16. We have noticed hereinbefore that Mohd. Shafihas been explained in Lal Surajis required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken 17. The provision of Section 319 of the Code on a plain reading provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhibeen satisfied is the question Indisputably before an additional accused can be summoned for standing trial the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr.SC 460] this Undisputedly it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word evidence" in Section 319 contemplates that evidence of witnesses given in Court An order under Section 319 of the Code therefore should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose Indian Kanoon of exercise of the extraordinary jurisdiction Sarabjit Singh & Anr vs State Of Punjab & Anr on 12 May 2009 For the aforementioned purpose the courts are required to apply stringent tests one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned 18. The observation of this Court in Municipal Corporation of Delhiand other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down the ingredients thereof viz. an extraordinary case anda case for sparingly exercise of jurisdiction would not 19. We therefore are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to the learned Sessions Judge for consideration of the 20. The appeals are allowed with the aforementioned directions S.B. Sinha] ................................J P. Sathasivam] New Delhi May 12 2009 Indian Kanoon 

Summary: The power granted to the court under Section 319 of the Criminal Procedure Code allows for a person other than the accused to be tried alongside the accused person. However, a bench of the Supreme Court consisting of Justice S.B. Sinha and Justice P. Sathasivam adjudged in the case of Sarabjit Singh &amp;Anr. v State of Punjab [Criminal Appeal No. 998 of 2009] on May 12th 2009  that these powers were meant to be used very sparingly and only in exceptional cases. As per the First Information Report lodged, a witness saw the victim, Rajwinder Singh surrounded by the appellants, Sarabjit Singh and Saroop Singh in some fields on 2nd May 2005. The appellants allegedly attacked and beat the victim causing serious injury to him. After the appellants had finished beating the victim, Gurdip Singh who is the appellant in Criminal Appeal arising out of SLP (Crl.) No.19 of 2007, allegedly beat the victim until his death. The appellants of the present case contended that the deceased man, Rajwinder Singh was a vagabond who had numerous criminal cases pending against him as well as feuds with multiple people of that village and that the whole village was sick of his activities. They also added that the victim was still alive after they beat him and that they were in no way responsible for his death. Based on the FIR, an application was filed to summon the appellants under Section 319 of the Criminal Procedure Code which states that in cases where it appears that any person apart from the accused has committed any offence for which they could be tried alongside the accused, the court has the power to proceed against them for whatever offence they appear to have committed. The appellants counsel contended that provisions of Section 319 of the Criminal Procedure Code was exceptional in nature and that since the appellants played no role in the murder of the Rajwinder Singh and were found to be innocent during the investigation, the Sessions  Court committed an error in summoning them to stand trial alongside Gurdip Singh. The court accepted this contention of the appellants and cited the case of Municipal Corporation of Delhi v Ram Kishan Rastogi [(1983) 1 SCC 1] where this court stated “this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken” while talking about the powers under Section 319 of the CPC.