Trail Court does not need to wait for cross examination to summon persons under Section 319 Cr.P.C: Supreme Court of India

Feeling aggrieved and dissatisfied with the impugned and set aside the order dated 21.04.2018 passed by the learned accused persons on 27.07.2016. That the appellant got severely namely Palwinder Singh son of Ran Singh Satkar Singh son of Rajwant Singh Rajwant Singh son of Gurcharan Singh and answer the phone call Manjeet Singh son of Mahinder Singh who his side stopped his car next to him and after rolling down his him and gave lathi blows on the head. Thereafter 10­12 persons Singh Narvai Singh son of Tarlok Singh Sukhdev Singh son of Satnam Singh residents of Bandrala were holding lathies and opportunity to kill him”. On saying this Amarjeet Singh who was Rajwant Singh who was armed with Gandasi gave blow from its his knees. He thought that they will kill him today and he was 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 Assandh on his motor cycle and after sometime he became the meantime his family members also reached the Hospital considering the number of injuries the doctor referred him to PGI Chandigarh. That on the basis of the statement of the appellant 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 He named the private respondents herein in his evidence 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 thereafter filed two separate revision petitions against the order passed by the learned Trial Court summoning them before the summoning the private respondents herein was not stayed and 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 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 order passed by the learned Trial Court summoning the private 3.2 It is submitted that the High Court has failed to appreciate summoning the private respondents herein in exercise of powers 3.3 It is further submitted by the learned Senior Advocate setting aside the order passed by the learned Trial Court appellant is an injured eye witness. It is submitted that the therefore merely because there may be one witness and or statement of only one person is no ground not to summon the 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 under Section 319 CrPC. It is submitted that the aforesaid is wholly impermissible at the stage of considering an application 3.5 It is further submitted that by the time the High Court has was at the near end. It is submitted that therefore also the High order passed by the learned Trial Court summoning the private 3.6 Shri R. Basant learned Senior Advocate appearing on behalf case of Hardeep Singh v. State of Punjab 3 SCC 92 and State of Punjab 6 SCC 638 in support of his submission 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 of framing of charge but short of satisfaction to an extent that evidence if not rebutted may lead to conviction of person sought to 3.7 Making the above submissions and relying upon the above Shri Anil Kaushik learned AAG Haryana has supported the passed by the learned Trial Court summoning the private Learned counsel appearing on behalf of the private case so warrant. It is submitted that it is not to be exercised summoning of additional accused cannot be passed because the first informant or one of the witnesses seeks to implicate other reasons which are required to be assigned by the Trial Court It is submitted that in the present case the appellant herein said statement does not satisfy the test for adjudication for an 5.3 It is further submitted that in the examination in chief the injuries having been suffered by Manjeet Singh. It is submitted story of firing bullets in self defence. It is submitted that the given lathi blows on the head whereas Manjeet Singh Amarjeet Singh Rajwant Singh Narvair Singh and Sukdev Singh were seems to be not at all possible as rightly observed by the High against the private respondents herein was the statement of the appellant herein who in fact is an interested witness in entire grievously hurting and attempting to kill Manjeet Singh in the original and earlier FIR. It is submitted that therefore the High Court observing that there was no new evidence that had come detailed enquiry corroborating the innocence of the respondents Court has erred in exercising its jurisdiction in summoning the answering respondents. It is further submitted that even the light of the cross­examination of the witness Bhupinder Singh it 5.6 Making the above submissions it is prayed to dismiss the Heard learned counsel for the respective parties at length What is under challenge in the present appeals is the impugned and setting aside the order passed by the learned Trial Court 6.1 While considering the rival submissions the law on the scope consider in detail the scope and ambit of the powers of the Magistrate under Section 319 CrPC the object and purpose of incorporating the provisions of Section 319 CrPC. It is further appropriately codified and modified by the legislature under the truth and to ensure that the guilty does not go unpunished. In “8. The constitutional mandate under Articles 20 find out the truth so that an innocent does not get the Constitution and our laws that have led to several decisions whereby innovating methods and progressive of the land as every man is presumed to be innocent been raised against the accused whereby the law to prove himself to be innocent. These competing entire effort therefore is not to allow the real perpetrator very end that the legislature thought of incorporating 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 In the said case the following five questions fell for Whether the word “evidence” used in Section the said provision even on the basis of the statement made in the examination­in­chief of the witness iii) Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense can be exercised only if the court is satisfied that the 12. Section 319 CrPC springs out of the condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the 13. It is the duty of the court to do justice by 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 14. The submissions that were raised before us taken us through various provisions of CrPC and the xxx xxx xxx 17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case 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 18. The legislature cannot be presumed to have imagined all the circumstances and therefore it is the duty is cast upon it to uphold the rule of law and such powers with the courts in our criminal justice at times get away by manipulating the investigating himself absolved even at the stage of investigation or inquiry even though he may be connected with the xxx xxx xxx for also having committed the offence under trial. It is 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 [Dharam Pal v. State of 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 stage of Sections 207 208 CrPC committal etc. which is only a pre­trial stage intended to put the process into rather than a judicial application of mind. At this pre­ the nature of administrative work rather than judicial CrPC and committing the matter if it is exclusively triable by the Sessions Court. Therefore it would be stage of Sections 207 to 209 CrPC is forbidden by accused needs to be added or subtracted to face trial xxx xxx xxx 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 AIR 2013 SC 3018] . The dispute therein was resolved with procedural delay and was of the opinion that the of Section 319 CrPC is reached to direct a person not 54. In our opinion the stage of inquiry does not contemplate any evidence in its strict legal sense nor the stage for evidence has not yet arrived. The only material that the court has before it is the material person who can be an accused has been erroneously omitted from being arraigned or has been deliberately 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 the legislature has consciously used separate terms 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 56. There is yet another set of provisions which 319 CrPC i.e. provisions of Sections 200 201 202 etc 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 preclude such evidence as coming before the court in sic or) for the purpose of Section 319 CrPC if so 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 as well Section 319 CrPC acts as an empowering provision enabling the court Magistrate to initiate that persons who ought to have been tried as well are also tried. Therefore there does not appear to be any While answering Questions namely whether the 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 “58. To answer the questions and to resolve the impediment that is being faced by the trial courts in has to be investigated by examining the circumstances powers. The circumstances that lead to such inference being drawn up by the court for summoning a person 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 inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be “(1) all statements which the court permits or 2) all documents including electronic records xxx xxx xxx 78. It is therefore clear that the word “evidence” in before the court in relation to statements and as Magistrate or the court to decide whether the power xxx xxx xxx 82. This pre­trial stage is a stage where no adjudication on the evidence of the offences involved prosecution is asked to lead evidence and till that is done there is no evidence available in the strict legal sheet. In such situation the court only has the preparatory material that has been placed before the 83. It is therefore not any material that can be utilised rather it is that material after cognizance is inquiry into or trying an offence that the court can before the court who may be on the basis of such material which is not exactly evidence recorded before the court but is a material collected by the court can be accused. This would harmonise such material with the whose complicity in the offence may have either been 84. The word “evidence” therefore has to be 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 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 85. In view of the discussion made and the conclusion drawn hereinabove the answer to the aforesaid question posed is that apart from evidence “evidence” used in Section 319(1) CrPC means as arising in 86. The second question referred to herein is in relation to the word “evidence” as used under Section 319 CrPC which leaves no room for doubt that the therefore is evidence which includes the statement during examination­in­chief. In Rakesh6 SCC stage would not arise while exercising the court s is recorded no doubt there being no cross­ would enable the Sessions Court to decide whether powers under Section 319 should be exercised or 87. In Ranjit Singhthis Court held that:13 SCC 608 : 1 Singh v. State of Punjab 16 SCC 785 : 2 SCC 355] seems to have misread the judgment in Mohd. Shafi14 and on complete appreciation of evidence come to the conclusion whether there is a need to proceed under Once examination­in­chief is conducted the statement 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 90. As held in Mohd. Shafiand Harbhajan Singh13 SCC in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the the offence. Therefore no straitjacket formula can and should be laid with respect to conditions precedent for examination­in­chief it can exercise the power under Section 319 CrPC and can proceed against such other the words “such person could be tried” instead a mini­trial at this stage by having examination and it is this mini­trial that would affect the right of the not having any cross­examination at all for in light of including the right to cross­examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore even on the can proceed against a person as long as the court is is such that it prima facie necessitates bringing such by cross­examination undoubtedly in itself is an 91. Further in our opinion there does not seem to time of exercise of power under Section 319 CrPC the person sought to be arraigned as an accused is in no way participating in the trial. Even if the cross­ 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 an accused as it would only help the prosecution in is obliterating the role of persons already facing trial 92. Thus in view of the above we hold that power completion of examination­in­chief and the court does in respect of complicity of some other person(s) not While answering Questionnamely what is the degree 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 is of the opinion that some other person may also be cogent evidence occurs against a person from the court not necessarily tested on the anvil of cross­ examination it requires much stronger evidence than applied is one which is more than prima facie case as satisfaction to an extent that the evidence if goes such satisfaction the court should refrain from CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has words used are not “for which such person could be convicted”. There is therefore no scope for the court While answering Questionnamely in what situations FIR but not charge­sheeted or has been discharged this Court has 112. However there is a great difference with who has been discharged stands on a different footing judicial examination of the material collected during material existing against the person so discharged extraneous considerations. The court has to be exist evidence to proceed against the person so Section 398 CrPC without resorting to the provision of xxx xxx xxx 116. Thus it is evident that power under Section 319 CrPC can be exercised against a person not not been taken or a person who has been discharged However concerning a person who has been discharged under Section 319 CrPC without taking recourse to 6.2 Considering the law laid down by this Court in Hardeep Singh and the observations and findings referred to and the power under Section 319 CrPC even on the basis of the statement made in the examination­in­chief of the witness the accused proposed to be summoned to be tested by cross­ examination anda person not named in the FIR or a person though named in the FIR but has not been charge­sheeted or a evidence collected in the form of statement made in the “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 not powerless and at the stage of summoning if the trial as accused even though not named in the charge­sheet it gone the Court is still not powerless by virtue of Section the trial some evidence surfaces against the proposed 6.4 In the case of Rajesh v. State of Haryana6 SCC 368 Singh referred to hereinabove this Court has further observed and held that even in a case where the stage of giving Applying the law laid down by this Court in the aforesaid that learned Trial Court was justified in summoning the private need not wait till his cross­examination. If on the basis of the 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 herein injured eye witness who was the first informant disclosed the names of private respondents herein and specifically named that the investigating officer did not find the case against the private respondents herein and therefore they were not charge­ are disclosed. It might be that whatever is stated in the same is bound to be there and ultimately the appellant herein contradictions in the FIR and the statement before the Court Therefore as such the learned Trial Court was justified in directing 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 and Satkar Singh gave him lathi blows on the head Manjeet Singh Amarjeet Singh Rajwant Singh Narvair Singh Amarjeet Singha and Rajwant Singh gave him stated to fall in the offence under Sections 323 324 326 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 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 other accused where exaggeration and implication is 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 not and or whatever is stated by the injured eye witness in his are required to be considered during the trial and while appreciating the entire evidence on record. Therefore the High the trial in exercise of powers under Section 319 CrPC on the the High Court referred to hereinabove are on probability Court is not sustainable in law and on facts and is beyond the 8.2 In view of the above and for the reasons stated above the present appeals succeed. The impugned judgment and order the trial as summoned by the learned Trial Court. The present Dr. Dhananjaya Y. Chandrachud M. R. Shah New Delhi March 15 2021

Summary: Underlining the scope of Section 319 CrPC it was held that Trial Court  can summon the private respondents in exercise of powers under Section 319 CrPC on the basis of the evidence recorded which includes statements of both  the appellant and other eye witnesses ie on basis of examination in chief. This was decided in the case of Sartaj Singh v State of Haryana &amp; Anr. [CRIMINAL APPEAL NOS. 298­299 OF 2021] in the Supreme Court of India division bench consisting of Hon’ble Justices DY Chandrachud and Hon’ble  Justice M R Shah. The appellant was attacked and severely injured on the basis of his statement,  FIR as lodged for the offenses under Sections 148,149, 341, 323, 324, 307 and 506 IPC against multiple respondents. Charge­-sheet was filed against only four accused, but not against the other private respondents. In his examination in chief appellant named the private respondents and on application before the learned Trial Court under Section 319 CrPC, the court passed order for summoning of the additional accused – private respondents. The High Court on basis of  revision applications preferred by the private respondents quashed and set aside the order passed by the learned Trial Court summoning the additional private respondents based on probability and likelihood of the accused getting convicted whilst appreciating the deposition of the injured eye witness. The Supreme court in order to establish the scope of Section 319 Cr.P.C referred to the the judgement of Hardeep Singh vs State Of Punjab wherein it was held “The power under Section 319 CrPC can be exercised at the stage of completion of examination­ in­ chief 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.”