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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.875 of 2021
MANJEET SINGH .. Appellant
Versus
STATE OF HARYANA & ORS. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned Judgment
and Order passed by the High Court of Punjab and Haryana at
Chandigarh in CRR No.28 of 2018 by which the High Court has
dismissed the said Revision Application preferred by the appellant
herein and has confirmed the order passed by the Learned Sessions
Judge dated 05.09.2017 by which the Additional Sessions Judge
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dismissed an application under Section 319 CrPC moved by the
appellant herein for summoning the Respondent Nos. 2 to 5 herein as
additional accused in the case FIR No.477 dated 27.07.2016 for the
offences under Sections 302, 307, 341, 148 & 149 IPC registered at
Police Station Assandh, the appellant/victim has preferred the present
appeal.
2. An FIR No.477 dated 27.07.2016 was registered at Police
Station Assandh on the basis of the statement of one Rann Singh,
regarding the death of his son Amarjit Singh and the injuries having
been suffered by the present appellant – Manjeet Singh.
That as per the statement of Rann Singh his son Amarjit Singh
and his nephew Manjeet Singh were attacked by Sartaj Singh, Tejpal
Singh and Sukhpal Singh sons of Gurdev Singh, Parab Sharan Singh
and Preet Samrat sons of Mohan Sarup while they were on their way
back home after purchasing the pesticides meant for paddy in their
car. They parked their Mahendera XUV 500 belonging to Sartaj
Singh and blocked the road. They were armed with weapons and
when his son Amarjit Singh followed by Manjeet Singh stepped out
from his car to get the road cleared, Sartaj Singh fired four shots from
his licenced revolver, which hit the left side of the chest, stomach and
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elbow of Amarjit Singh. Sartaj Singh fired indiscriminately from his
licenced revolver, which also hit the nephew Manjeet Singh on the
chest near the right shoulder. Amarjit Singh died on spot and Manjeet
Singh was admitted in the hospital, as per the statement of Rann
Singh.
2.1 A cross-case was also registered at the behest of Sartaj Singh,
the accused in the FIR on 28.07.2016 which was recorded against
the complainant side in FIR No.477 dated 27.07.2016. In the crosscase the allegations were made against Manjeet Singh, Narvair Singh
and other persons namely Palwinder Singh son of Rann Singh,
Satkar Singh son of Rajwant Singh, Rajwant Singh son of Gurcharan
Singh and Sukhdeep Singh son of Satnam Singh where it was
alleged that all the persons inflicted injuries on his person.
2.2 The matter was investigated and after investigation, a final
report was filed only against Sartaj Singh in FIR No.477. All other
accused were exonerated and were kept in column no.2. In cross
case, one of the accused died and a challan was filed against two
persons where four of them namely Palwinder Singh, Rajwant Singh,
Sukhdeep Singh and Satkar Singh were kept in column no.2.
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2.3 The case was committed to the Court of Sessions and the trial
begin in both the cases namely arising out of FIR No.477 dated
27.07.2016 and the cross case. That during the trial arising out of
FIR No.477, appellant herein came to be examined as PW1. In the
deposition, he reiterated the allegations made in the FIR including the
allegations made against the private respondents herein namely
Sukhpal Singh, Tejpal Singh, Parab Sharan and Preet Samrat and
reiterated what was stated in the FIR. He came to be crossexamined partly and during the cross-examination, an application
under Section 319 CrPC was given on behalf of the complainant for
summoning of Sukhpal Singh, Tejpal Singh, Parab Sharan and Preet
Samrat as additional accused. Further cross-examination of PW1
came to be deferred. That by order dated 05.09.2017, the Learned
trial Court dismissed the application under Section 319 CrPC for
summoning Sukhpal Singh, Tejpal Singh, Parab Sharan and Preet
Samrat as additional accused to face trial arising out of FIR No.477 of
2016.
3. In the cross case arising out of the complaint given by Sukhpal
Singh recorded on 28.07.2016 (accused in FIR No. 477 dated
27.07.2016) the prosecution examined Sukhpal Singh as PW1, Dr.
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Mahinder, the Medical Officer as PW2 and one Bhupinder Singh as
PW7. That thereafter the said Sartaj Singh filed an application before
the Learned trial Court under Section 319 CrPC for summoning
Palwinder Singh, Sartaj Singh, Rajwant Singh and Sukhdeep Singh
as additional accused. On the basis of the evidence recorded the
Learned trial Court after considering the statements of Sartaj Singh
and other eye witnesses and the material on record allowed the
application under Section 319 CrPC vide order dated 21.04.2018 and
directed to issue summons against Palwinder Singh, Satkar Singh,
Rajwant Singh and Sukhdeep Singh.
4. Being aggrieved and dissatisfied with the order dated
05.09.2017 passed by the Learned trial Court rejecting the application
under Section 319 CrPC in FIR No.477 and refusing to issue
summons against Sukhpal Singh, Tejpal Singh, Parab Sharan and
Preet Samrat as additional accused, the appellant herein – Manjeet
Singh – victim preferred a revision application before the High Court
which was numbered as CRR 28 of 2018.
Against the order passed by the Learned trial Court dated
21.04.2018 by which an application under Section 319 CrPC filed by
Sartaj Singh in a cross case summoning Palwinder Singh, Satkar
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Singh, Rajwant Singh and Sukhdeep Singh came to be allowed,
Satkar Singh and others filed a revision application before the High
Court being CRR No.3238 of 2018.
5. By the impugned Judgment and Order dated 28.08.2020 the
High Court dismissed CRR No.28 of 2018 filed by Manjeet Singh. It
was filed challenging the order passed by Learned trial Court dated
05.09.2017 rejecting the application under Section 319 CrPC for
summoning Sukhpal Singh, Tejpal Singh, Parab Sharan and Preet
Samrat as additional accused to face the trial arising out of FIR
No.477 of 2016. By the very common judgment and order, the High
Court allowed CRR No. 3238 of 2018 filed by Satkar Singh and
others and quashed and set aside the order passed by the Learned
trial Court dated 21.04.2018 arising out of cross case by which
Palwinder Singh, Satkar Singh, Rajwant Singh and Sukhdeep Singh
were summoned to face the trial, the application which was given by
Sartaj Singh under Section 319 CrPC.
6. Sartaj Singh feeling aggrieved and dissatisfied with the
judgment and order passed by the High Court in CRR 3238 of 2018
by which the High Court set aside the order passed by the trial Court
dated 28.07.2016 summoning Palwinder Singh, Satkar Singh,
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Rajwant Singh and Sukhdeep Singh under Section 319 CrPC,
approached this Court vide Criminal Appeal No.298-299 of 2021. By
detailed judgment and order this very Bench vide judgment and order
dated 15.03.2021 allowed the said appeal and set aside the order
passed by the High Court passed in CRR No.3238 of 2018 and
restored the order passed by the Learned trial Court arising out of a
cross case given by Sartaj Singh dated 28.07.2016.
7. That thereafter the present appellant herein Manjeet Singh has
preferred the present appeal challenging the order passed by the
High Court passed in CRR 28 of 2018 by which the High Court has
confirmed the order passed by the Learned trial Court dismissing an
application under Section 319 CrPC to summon private respondents
herein as additional accused and to face the trial arising out of FIR
No.477 of 2016 dated 27.07.2016
8. Shri G.S. Gill, Learned Senior Advocate has appeared on
behalf of Manjeet Singh and Shri Ankit Raj, Learned Advocate has
appeared on behalf of the respondent – State and Shri R. Basant,
Learned Senior Advocate has appeared on behalf of private
respondents herein.
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8.1 Shri Gill, Learned Counsel appearing on behalf of Manjeet
Singh has vehemently submitted that in the facts and circumstances
of the case, both, the Learned trial Court as well as the High Court
have committed a grave error in rejecting the application under
Section 319 CrPC to summon the private respondents herein to face
the trial arising out of FIR No. 477 dated 27.07.2016.
8.2 It is submitted that while rejecting the application under Section
319 CrPC, the Learned trial Court as well as the High Court have not
properly appreciated and considered the scope, ambit and powers
under Section 319 CrPC.
8.3 It is submitted that by not allowing the application under Section
319 CrPC and not summoning the private respondents herein as
additional accused, both, the Learned trial Court as well as the High
Court have not exercised the powers vested under Section 319
CrPC.
8.4 Learned Counsel appearing on behalf of the appellant has
submitted that even the reasons assigned by the High Court while
dismissing the revision application and confirming the order passed
by the High Court refusing to summon the private respondent as
additional accused are not sustainable in law and on facts.
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8.5 It is further submitted that while passing the impugned order,
the High Court has not appreciated the fact that all the private
respondents herein who were sought to be arraigned as additional
accused were specifically named in the FIR No.477. It is submitted
that even in the deposition the appellant herein – PW1 has also
specifically named the private respondents herein with their specific
role. It is submitted that therefore the Learned trial Court ought to
have exercised the powers under Section 319 CrPC and ought to
have summoned the private respondents as additional accused.
8.6 It is submitted that as held by this Court in catena of decisions
and more particularly in Hardeep Singh v. State of Punjab (2014) 3
SCC 92, even on the basis of the statement made in the examinationin-chief of the witnesses concerned the Court can in exercise of
powers under Section 319 CrPC summon the persons even named in
the examination-in-chief as additional accused and to face the trial. It
is submitted that in the present case not only the names of the private
respondents have been disclosed in the examination-in-chief of the
appellant – victim but they were named in the FIR also with specific
role.
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8.7 It is submitted that even the accused can be convicted on the
basis of the evidence of a single witness. It is submitted that in the
present case the appellant is the injured eye witness and as observed
and held by this Court in the recent decision Lakshman Singh vs.
State of Bihar (now Jharkhand) (Criminal Appeal No.606 of 2021)
decided on 23rd July, 2021) unless there are compelling
circumstances and reasons normally and by and large the injured
eye-witness should be believed. It is submitted that even otherwise
the appellant is subjected to cross-examination. It is submitted that
therefore merely because there may be one witness and/or
statement of only one person, is no ground not to summon the
additional accused in exercise of powers under Section 319 CrPC.
8.8 It is further submitted that at this stage the High Court was not
justified in appreciating the deposition/evidence of the appellant on
merits. It is submitted that the things which are required to be done
during the trial, have been done by the High Court at this stage of
summoning the additional accused in exercise of powers under
Section 319 CrPC. It is submitted that the aforesaid is wholly
impermissible at the stage of considering an application under
Section 319 CrPC. It is vehemently submitted that as held by this
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Court in the case of Hardeep Singh (Supra); Sukhpal Singh Khaira
v. State of Punjab (2019) 6 SCC 638 and in other subsequent
decisions at the stage of considering the application under Section
319 CrPC the High Court is not justified in entering into the merits
and/or appreciation of the evidence on merits, which is required to be
considered at the stage of trial.
8.9 It is submitted that even the reasoning given by the High Court
dismissing the revision application while confirming the order passed
by the Learned trial Court dismissing the application under Section
319 CrPC are not sustainable in law. It is submitted that while
passing the impugned judgment and order, the High Court is not
justified in entering into the allegations and the evidence on merits
which is wholly impermissible at this stage as held by this Court in the
aforesaid decisions and other decisions.
8.10 It is submitted that the High Court has failed to notice that the
allegations against the original accused as well as the private
respondents herein are for the aforesaid offences under Sections 148
& 149 IPC also. It is submitted that as per the settled law while
considering the charge under Section 149 IPC the individual role and
overt act by each accused is not relevant and/or material and it is
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sufficient that accused is a part of the unlawful assembly. (See
Masalti v. State of U.P, AIR 1965 SC 202 & Shambhu Nath Singh
And Ors. v. State Of Bihar, AIR 1960 SC 725). It is submitted that
therefore when the High Court has observed that no injury has been
attributed to either of the respondents except that they were armed
with weapons and therefore they cannot be arrayed as additional
accused, is unsustainable and contrary to the law laid down by this
Court in catena of decisions on Section 149 of IPC.
8.11 It is submitted that even the observations made by the High
Court that it cannot be said that the private respondents had any
common intention or there was meeting of mind that Sartaj Singh
would be firing are unwarranted at this stage. It is submitted that at
this stage the Court is not required to enter into the merits of the
allegations and/or the evidence. It is submitted that therefore while
making above observations while rejecting the application under
Section 319 CrPC the High Court has not exercised its powers vested
under Section 319 CrPC.
8.12 It is submitted that even in the facts and circumstances of the
case the High Court has committed a grave error in relying upon the
decision of this Court in the case of Brijendra Singh vs. State of
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Rajasthan, (2017) 7 SCC 706. It is submitted that in the present
case if we go through and consider the final report by which the
private respondents herein were to be in column no. 2 there do not
seem to be any evidence discussed and/or specific allegations
considered against the private respondents herein. It is submitted
that the private respondents herein are put at column no.2. on the
basis of the reports of HC Baljinder Singh, HPS, DSP Assandh and
Shri Kushal Pal, HPS, DSP Indri, who as such are not even the
Investigating Officer and even the reports if any, are part of the
charge-sheet nor the aforesaid officers are cited as witnesses. It is
submitted therefore as such no proper investigation has been carried
out against the private respondents herein and without discussing the
specific allegations against the private respondents herein which
have been made in the FIR, the private respondents herein are kept
in column no.2. It is submitted that therefore the decision in the case
of Brijendra Singh (Supra), would not be applicable to the facts of
the case on hand.
8.13 Making above submissions and relying upon the decisions in
the cases of Hardeep Singh (Supra); S. Mohammed Ispahani vs.
Yogendra Chandak (2017) 16 SCC 226; Rajesh vs. State of
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Haryana, (2019) 6 SCC 368 and the recent decision of this Court in
the case of Sartaj Singh vs. State of Haryana, 2021 (4) Scale 227,
which was arising out of the cross case in the very case, it is prayed
to allow the present appeal and quash and set aside the order
passed by the Learned trial Court as well as the High Court and
consequently allow the application under Section 319 CrPC to
summon the private respondents herein to face the trial arising out of
cross case dated 28.07.2016 for the offences under Sections 302,
307, 341, 148 & 149 IPC.
9. Shri Ankit Raj, Learned Counsel appearing on behalf of the
State has surprisingly supported the private respondents herein and
had submitted that in the present case, both, the Learned trial Court
as well as the High Court have rightly dismissed the application under
Section 319 CrPC and have rightly refused to summon the private
respondents herein as additional accused.
10. Present appeal is vehemently opposed by Shri R. Basant,
Learned Senior Counsel appearing on behalf of the private
respondent herein.
10.1 While opposing the present appeal and supporting the
impugned judgment and order passed by the trial Court as well as the
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High Court Shri Basant, Learned Counsel appearing on behalf of
private respondents herein has made following submissions:
(i) That in the facts and circumstances of the case no error
has been committed by the courts below in rejecting the
application under Section 319 CrPC and refusing to
summon the private respondents herein as additional
accused;
(ii) That cogent reasons have been given by, both, the
Learned trial Court as well as the High Court refusing to
summon the private respondents herein as additional
accused;
(iii) That though a common judgment and order was passed
by the High Court in CRR No.28 of 2018 and CRR 3238
of 2018, when Sartaj Singh the original complainant in
cross case dated 28.07.2016 approached this Court by
way of Criminal Appeal No.298-299 of 2021, at that stage
the appellant herein did not challenge the impugned
judgment and order passed by the High Court passed in
CRR No.28 of 2018. It is submitted that only thereafter
when number of witnesses have been examined and the
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trial is at the fag-end, the present appeal has been
preferred. Therefore, it is prayed not to exercise the
powers under Article 136;
(iv) That in the present case even the inquiry was conducted
by four high rank officials and only thereafter the
Investigating Officer put/kept the private respondents
herein in column no.2. It is submitted that during the
course of the investigation and even thereafter in the
inquiry four DSPs which were conducting at the instance
of the Rann Singh – original complainant and when there
was no evidence found the private respondents herein
are kept in column no.2;
(v) It is submitted that in the case of Brijendra Singh (Supra)
it is observed by this Court that when the evidence has
been collected by the IO during the investigation and
thereafter having found no evidence against the accused
named in the FIR and thereafter they are kept in column
no.2, the same is required to be considered seriously
and/or having greater value than the deposition of the
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complainant and some other persons in their
examination-in-chief;
(vi) That when initially after investigation the private
respondents herein were put/kept in column no.2, though
they were having an opportunity on the part of the
complainant to submit the protest application, they failed
to do so and thereafter after recording the deposition of
PW1 – appellant herein when the cross-examination of
the said witness was going on, the complainant filed an
application under Section 319 CrPC;
(vii) That except the bare statements of the appellant who
himself is an accused in the cross case, there is no
further material/evidence on record and therefore, both,
the Learned trial Court as well as the High Court have
rightly refused to summon the private respondents herein
as additional accused.
10.2 Making above submissions and relying upon the decision of this
Court in the case of Brijendra Singh (Supra) it is prayed to dismiss
the present appeal.
11. Heard Learned Counsels for the respective parties at length.
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12. What is under challenge in the present appeal is the impugned
judgment and order passed by the High Court dismissing the revision
application preferred by the appellant herein and confirming the order
passed by the Learned trial Court rejecting the application under
Section 319 CrPC on behalf of the complainant and refusing to
summon the private respondents herein as additional accused.
12.1 While considering the rival submissions the law on the scope
and ambit of Section 319 CrPC is required to be considered. In the
recent decision in the case of Sartaj Singh (Supra) this very Bench
has considered in detail the law on the scope and ambit of Section
319 CrPC. In the said decision this court considered the decisions in
the cases of Hardeep Singh (Supra); S. Mohammed
Ispahani v. Yogendra Chandak (Supra) and Rajesh (Supra) in
detail. The relevant part of the aforesaid decisions which came to be
considered by this Court are as under:
“6.1.1 In Hardeep Singh (supra), this Court had an occasion to
consider in detail the scope and ambit of the powers of the Magistrate
under Section 319 CrPC, the object and purpose of Section 319
CrPC etc. It is observed in the said decision that the entire effort is
not to allow the real perpetrator of an offence to get away
unpunished. It is observed that this is also a part of fair trial and in
order to achieve this very end that the legislature thought of
incorporating the provisions of Section 319 CrPC. It is further
observed that for the empowerment of the courts to ensure that the
criminal administration of justice works properly, the law has been
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appropriately codified and modified by the legislature under the CrPC
indicating as to how the Courts should proceed to ultimately find out
the truth so that the innocent does not get punished but at the same
time, the guilty are brought to book under the law. It is also observed
that it is the duty of the court to find out the real truth and to ensure
that the guilty does not go unpunished. In Paragraphs 8 and 9, this
Court observed and held as under:
“8. The constitutional mandate under Articles 20
and 21 of the Constitution of India provides a protective
umbrella for the smooth administration of justice making
adequate provisions to ensure a fair and efficacious trial
so that the accused does not get prejudiced after the law
has been put into motion to try him for the offence but at
the same time also gives equal protection to victims and
to society at large to ensure that the guilty does not get
away from the clutches of law. For the empowerment of
the courts to ensure that the criminal administration of
justice works properly, the law was appropriately codified
and modified by the legislature under CrPC indicating as
to how the courts should proceed in order to ultimately
find out the truth so that an innocent does not get
punished but at the same time, the guilty are brought to
book under the law. It is these ideals as enshrined under
the Constitution and our laws that have led to several
decisions, whereby innovating methods and progressive
tools have been forged to find out the real truth and to
ensure that the guilty does not go unpunished.
9. The presumption of innocence is the general law
of the land as every man is presumed to be innocent
unless proven to be guilty. Alternatively, certain statutory
presumptions in relation to certain class of offences have
been raised against the accused whereby the
presumption of guilt prevails till the accused discharges
his burden upon an onus being cast upon him under the
law to prove himself to be innocent. These competing
theories have been kept in mind by the legislature. The
entire effort, therefore, is not to allow the real perpetrator
of an offence to get away unpunished. This is also a part
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of fair trial and in our opinion, in order to achieve this very
end that the legislature thought of incorporating provisions
of Section 319 CrPC. It is with the said object in mind that
a constructive and purposive interpretation should be
adopted that advances the cause of justice and does not
dilute the intention of the statute conferring powers on the
court to carry out the abovementioned avowed object and
purpose to try the person to the satisfaction of the court
as an accomplice in the commission of the offence that is
the subject-matter of trial.”
6.1.2In the said case, the following five questions fell for
consideration before this Court.
(i) What is the stage at which power under Section
319 CrPC can be exercised?
(ii) Whether the word “evidence” used in Section
319(1) CrPC 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?
(iii) Whether the word “evidence” used in Section
319(1) CrPC has been used in a comprehensive sense
and includes the evidence collected during investigation
or the word “evidence” is limited to the evidence recorded
during trial?
(iv) What is the nature of the satisfaction required to
invoke the power under Section 319 CrPC to arraign an
accused? Whether the power under Section 319(1) CrPC
can be exercised only if the court is satisfied that the
accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 CrPC extend
to persons not named in the FIR or named in the FIR but
not charged or who have been discharged?”
6.1.3 While considering the aforesaid questions, this Court in
Hardeep Singh (supra) observed and held as under:
12. Section 319 CrPC springs out of the
doctrine judex damnatur cum nocens absolvitur (Judge is
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condemned when guilty is acquitted) and this doctrine
must be used as a beacon light while explaining the ambit
and the spirit underlying the enactment of Section 319
CrPC.
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 Section 319 CrPC?
14. The submissions that were raised before us
covered a very wide canvas and the learned counsel
have taken us through various provisions of CrPC and the
judgments that have been relied on for the said purpose.
The controversy centres around the stage at which such
powers can be invoked by the court and the material on
the basis whereof such powers can be exercised.
xxx xxx xxx
17. Section 319 CrPC allows the court to proceed
against any person who is not an accused in a case
before it. Thus, the person against whom summons are
issued in exercise of such powers, has to necessarily not
be an accused already facing trial. He can either be a
person named in Column 2 of the charge-sheet filed
under Section 173 CrPC or a person whose name has
been disclosed in any material before the court that is to
be considered for the purpose of trying the offence, but
not investigated. He has to be a person whose complicity
may be indicated and connected with the commission of
the offence.
18. The legislature cannot be presumed to have
imagined all the circumstances and, therefore, it is the
duty of the court to give full effect to the words used by
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the legislature so as to encompass any situation which
the court may have to tackle while proceeding to try an
offence and not allow a person who deserves to be tried
to go scot-free by being not arraigned in the trial in spite
of the possibility of his complicity which can be gathered
from the documents presented by the prosecution.
19. The court is the sole repository of justice and a
duty is cast upon it to uphold the rule of law and,
therefore, it will be inappropriate to deny the existence of
such powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at times,
get away by manipulating the investigating and/or the
prosecuting agency. The desire to avoid trial is so strong
that an accused makes efforts at times to get himself
absolved even at the stage of investigation or inquiry
even though he may be connected with the commission
of the offence.
xxx xxx xxx
22. In our opinion, 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. It is this
part which is under reference before this Court and
therefore in our opinion, while answering the question
referred to herein, we do not find any conflict so as to
delve upon the situation that was dealt with by this Court
in Dharam Pal (CB) [Dharam Pal v. State of Haryana,
(2014) 3 SCC 306 : AIR 2013 SC 3018] .
xxx xxx xxx
47. Since after the filing of the charge-sheet, the
court reaches the stage of inquiry and as soon as the
court frames the charges, the trial commences, and
therefore, the power under Section 319(1) CrPC can be
exercised at any time after the charge-sheet is filed and
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before the pronouncement of judgment, except during the
stage of Sections 207/208 CrPC, committal, etc. which is
only a pre-trial stage, intended to put the process into
motion. This stage cannot be said to be a judicial step in
the true sense for it only requires an application of mind
rather than a judicial application of mind. At this pre-trial
stage, the Magistrate is required to perform acts in the
nature of administrative work rather than judicial such as
ensuring compliance with Sections 207 and 208 CrPC,
and committing the matter if it is exclusively triable by the
Sessions Court. Therefore, it would be legitimate for us to
conclude that the Magistrate at the stage of Sections 207
to 209 CrPC is forbidden, by express provision of Section
319 CrPC, to apply his mind to the merits of the case and
determine as to whether any accused needs to be added
or subtracted to face trial before the Court of Session.
xxx xxx xxx
53. It is thus aptly clear that until and unless the
case reaches the stage of inquiry or trial by the court, the
power under Section 319 CrPC cannot be exercised. In
fact, this proposition does not seem to have been
disturbed by the Constitution Bench in Dharam Pal
(CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC
306 : AIR 2013 SC 3018] . The dispute therein was
resolved visualising a situation wherein the court was
concerned with procedural delay and was of the opinion
that the Sessions Court should not necessarily wait till the
stage of Section 319 CrPC is reached to direct a person,
not facing trial, to appear and face trial as an accused.
We are in full agreement with the interpretation given by
the Constitution Bench that Section 193 CrPC confers
power of original jurisdiction upon the Sessions Court to
add an accused once the case has been committed to it.
54. In our opinion, the stage of inquiry does not
contemplate any evidence in its strict legal sense, nor
could the legislature have contemplated this inasmuch as
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the stage for evidence has not yet arrived. The only
material that the court has before it is the material
collected by the prosecution and the court at this stage
prima facie can apply its mind to find out as to whether a
person, who can be an accused, has been erroneously
omitted from being arraigned or has been deliberately
excluded by the prosecuting agencies. This is all the more
necessary in order to ensure that the investigating and
the prosecuting agencies have acted fairly in bringing
before the court those persons who deserve to be tried
and to prevent any person from being deliberately
shielded when they ought to have been tried. This is
necessary to usher faith in the judicial system whereby
the court should be empowered to exercise such powers
even at the stage of inquiry and it is for this reason that
the legislature has consciously used separate terms,
namely, inquiry or trial in Section 319 CrPC.
55. Accordingly, we hold that the court can exercise
the power under Section 319 CrPC only after the trial
proceeds and commences with the recording of the
evidence and also in exceptional circumstances as
explained hereinabove.
56. There is yet another set of provisions which
form part of inquiry relevant for the purposes of Section
319 CrPC i.e. provisions of Sections 200, 201, 202, etc.
CrPC applicable in the case of complaint cases. As has
been discussed herein, evidence means evidence
adduced before the court. Complaint case is a distinct
category of criminal trial where some sort of evidence in
the strict legal sense of Section 3 of the Evidence Act
1872 (hereinafter referred to as “the Evidence Act”)
comes before the court. There does not seem to be any
restriction in the provisions of Section 319 CrPC so as to
preclude such evidence as coming before the court in
complaint cases even before charges have been framed
or the process has been issued. But at that stage as there
is no accused before the court, such evidence can be
25
used only to corroborate the evidence recorded during the
trial (sic or) for the purpose of Section 319 CrPC, if so
required. What is essential for the purpose of the section
is that there should appear some evidence against a
person not proceeded against and the stage of the
proceedings is irrelevant. Where the complainant is
circumspect in proceeding against several persons, but
the court is of the opinion that there appears to be some
evidence pointing to the complicity of some other persons
as well, Section 319 CrPC acts as an empowering
provision enabling the court/Magistrate to initiate
proceedings against such other persons. The purpose of
Section 319 CrPC is to do complete justice and to ensure
that persons who ought to have been tried as well are
also tried. Therefore, there does not appear to be any
difficulty in invoking powers of Section 319 CrPC at the
stage of trial in a complaint case when the evidence of the
complainant as well as his witnesses are being recorded.
6.1.4 While answering Questions (iii), namely, whether the word
“evidence” used in Section 319(1) CrPC has been used in a
comprehensive sense and includes the evidence collected during
investigation or the word “evidence” is limited to the evidence
recorded during trial, this Court, in the aforesaid decision has
observed and held as under:
“58. To answer the questions and to resolve the
impediment that is being faced by the trial courts in
exercising of powers under Section 319 CrPC, the issue
has to be investigated by examining the circumstances
which give rise to a situation for the court to invoke such
powers. The circumstances that lead to such inference
being drawn up by the court for summoning a person
arise out of the availability of the facts and material that
come up before the court and are made the basis for
summoning such a person as an accomplice to the
offence alleged to have been committed. The material
should disclose the complicity of the person in the
commission of the offence which has to be the material
26
that appears from the evidence during the course of any
inquiry into or trial of offence. The words as used in
Section 319 CrPC indicate that the material has to be
“where … it appears from the evidence” before the court.
59. Before we answer this issue, let us examine the
meaning of the word “evidence”. According to Section 3 of
the Evidence Act, “evidence” means and includes:
“(1) all statements which the court permits or
requires to be made before it by witnesses, in relation to
matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents including electronic records
produced for the inspection of the court;
such documents are called documentary evidence.”
xxx xxx xxx
78. It is, therefore, clear that 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. It is
only such evidence that can be taken into account by the
Magistrate or the court to decide whether the power under
Section 319 CrPC is to be exercised and not on the basis
of material collected during the investigation.
xxx xxx xxx
82. This pre-trial stage is a stage where no
adjudication on the evidence of the offences involved
takes place and therefore, after the material along with
the charge-sheet has been brought before the court, the
same can be inquired into in order to effectively proceed
with framing of charges. After the charges are framed, the
prosecution is asked to lead evidence and till that is done,
there is no evidence available in the strict legal sense of
27
Section 3 of the Evidence Act. The actual trial of the
offence by bringing the accused before the court has still
not begun. What is available is the material that has been
submitted before the court along with the charge-sheet. In
such situation, the court only has the preparatory material
that has been placed before the court for its consideration
in order to proceed with the trial by framing of charges.
83. It is, therefore, not any material that can be
utilised, rather it is that material after cognizance is taken
by a court, that is available to it while making an inquiry
into or trying an offence, that the court can utilise or take
into consideration for supporting reasons to summon any
person on the basis of evidence adduced before the
court, who may be on the basis of such material, treated
to be an accomplice in the commission of the offence.
The inference that can be drawn is that material which is
not exactly evidence recorded before the court, but is a
material collected by the court, can be utilised to
corroborate evidence already recorded for the purpose of
summoning any other person, other than the accused.
This would harmonise such material with the word
“evidence” as material that would be supportive in nature
to facilitate the exposition of any other accomplice whose
complicity in the offence may have either been
suppressed or escaped the notice of the court.
84. The word “evidence” therefore has to be
understood in its wider sense both at the stage of trial
and, as discussed earlier, even at the stage of inquiry, as
used under Section 319 CrPC. The court, therefore,
should be understood to have the power to proceed
against any person after summoning him on the basis of
any such material as brought forth before it. The duty and
obligation of the court becomes more onerous to invoke
such powers cautiously on such material after evidence
has been led during trial.
28
85. In view of the discussion made and the
conclusion drawn hereinabove, the answer to the
aforesaid question posed is that apart from evidence
recorded during trial, any material that has been received
by the court after cognizance is taken and before the trial
commences, can be utilised only for corroboration and to
support the evidence recorded by the court to invoke the
power under Section 319 CrPC. The “evidence” is thus,
limited to the evidence recorded during trial.
6.1.5 While answering Question (ii) namely, whether the word
“evidence” used in Section 319(1) CrPC means as arising in
examination-in-chief or also together with cross-examination, in the
aforesaid decision, this Court has observed and held as under:
86. The second question referred to herein is in
relation to the word “evidence” as used under Section 319
CrPC, which leaves no room for doubt that the evidence
as understood under Section 3 of the Evidence Act is the
statement of the witnesses that are recorded during trial
and the documentary evidence in accordance with the
Evidence Act, which also includes the document and
material evidence in the Evidence Act. Such evidence
begins with the statement of the prosecution witnesses,
therefore, is evidence which includes the statement
during examination-in-chief. In Rakesh [(2001) 6 SCC 248
: 2001 SCC (Cri) 1090 : AIR 2001 SC 2521] , it was held
that: (SCC p. 252, para 10)
“10. … It is true that finally at the time of trial
the accused is to be given an opportunity to crossexamine the witness to test its truthfulness. But that
stage would not arise while exercising the court's
power under Section 319 CrPC. Once the deposition
is recorded, no doubt there being no crossexamination, it would be a prima facie material which
would enable the Sessions Court to decide whether
powers under Section 319 should be exercised or
not.”
29
87. In Ranjit Singh [Ranjit Singh v. State of Punjab,
(1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC
3148] , this Court held that: (SCC p. 156, para 20)
“20. … it is not necessary for the court to wait
until the entire evidence is collected for exercising the
said powers.”
88. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq,
(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007
SC 1899] , it was held that the prerequisite for exercise of
power under Section 319 CrPC is the satisfaction of the
court to proceed against a person who is not an accused
but against whom evidence occurs, for which the court
can even wait till the cross-examination is over and that
there would be no illegality in doing so. A similar view has
been taken by a two-Judge Bench in Harbhajan
Singh v. State of Punjab [(2009) 13 SCC 608 : (2010) 1
SCC (Cri) 1135] . This Court in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2009) 16 SCC 785 : (2010) 2
SCC (Cri) 355] seems to have misread the judgment
in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14
SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] ,
as it construed that the said judgment laid down that for
the exercise of power under Section 319 CrPC, the court
has to necessarily wait till the witness is cross-examined
and on complete appreciation of evidence, come to the
conclusion whether there is a need to proceed under
Section 319 CrPC.
89. We have given our thoughtful consideration to
the diverse views expressed in the aforementioned cases.
Once examination-in-chief is conducted, the statement
becomes part of the record. It is evidence as per law and
in the true sense, for at best, it may be rebuttable. An
evidence being rebutted or controverted becomes a
matter of consideration, relevance and belief, which is the
stage of judgment by the court. Yet it is evidence and it is
material on the basis whereof the court can come to a
30
prima facie opinion as to complicity of some other person
who may be connected with the offence.
90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd.
Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR
2007 SC 1899] and Harbhajan Singh [(2009) 13 SCC 608
: (2010) 1 SCC (Cri) 1135] , all that is required for the
exercise of the power under Section 319 CrPC is that, it
must appear to the court that some other person also who
is not facing the trial, may also have been involved in the
offence. The prerequisite for the exercise of this power is
similar to the prima facie view which the Magistrate must
come to in order to take cognizance of the offence.
Therefore, no straitjacket formula can and should be laid
with respect to conditions precedent for arriving at such
an opinion and, if the Magistrate/court is convinced even
on the basis of evidence appearing in examination-inchief, it can exercise the power under Section 319 CrPC
and can proceed against such other person(s). It is
essential to note that the section also uses the words
“such person could be tried” instead of should be tried.
Hence, what is required is not to have a mini-trial at this
stage by having examination and cross-examination and
thereafter rendering a decision on the overt act of such
person sought to be added. In fact, it is this mini-trial that
would affect the right of the person sought to be arraigned
as an accused rather than not having any crossexamination at all, for in light of sub-section (4) of Section
319 CrPC, the person would be entitled to a fresh trial
where he would have all the rights including the right to
cross-examine prosecution witnesses and examine
defence witnesses and advance his arguments upon the
same. Therefore, even on the basis of examination-inchief, the court or the Magistrate can proceed against a
person as long as the court is satisfied that the evidence
appearing against such person is such that it prima facie
necessitates bringing such person to face trial. In fact,
examination-in-chief untested by cross-examination,
undoubtedly in itself, is an evidence.
31
91. Further, in our opinion, there does not seem to
be any logic behind waiting till the cross-examination of
the witness is over. It is to be kept in mind that at the time
of exercise of power under Section 319 CrPC, the person
sought to be arraigned as an accused, is in no way
participating in the trial. Even if the cross-examination is
to be taken into consideration, the person sought to be
arraigned as an accused cannot cross-examine the
witness(es) prior to passing of an order under Section 319
CrPC, as such a procedure is not contemplated by CrPC.
Secondly, invariably the State would not oppose or object
to naming of more persons as an accused as it would
only help the prosecution in completing the chain of
evidence, unless the witness(es) is obliterating the role of
persons already facing trial. More so, Section 299 CrPC
enables the court to record evidence in absence of the
accused in the circumstances mentioned therein.
92. Thus, in view of the above, we hold that power
under Section 319 CrPC can be exercised at the stage of
completion of examination-in-chief and the court does not
need to wait till the said evidence is tested on crossexamination for it is the satisfaction of the court which can
be gathered from the reasons recorded by the court, in
respect of complicity of some other person(s), not facing
the trial in the offence.
6.1.6 While answering Question (iv), namely, what is the degree
of satisfaction required for invoking the power under Section 319
CrPC, this Court after considering various earlier decisions on this
point, has observed and held as under:
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
32
guilty of committing that offence. Only where strong and
cogent evidence occurs against a person from the
evidence led before the court that such power should be
exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie
case is to be established from the evidence led before the
court, not necessarily tested on the anvil of crossexamination, it requires much stronger evidence than
mere probability of his complicity. The test that has to be
applied is one which is more than prima facie case as
exercised at the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence of
such satisfaction, the court should refrain from exercising
power under Section 319 CrPC. In Section 319 CrPC the
purpose of providing if “it appears from the evidence that
any person not being the accused has committed any
offence” is clear from the words “for which such person
could be tried together with the accused”. The words used
are not “for which such person could be convicted”. There
is, therefore, no scope for the court acting under Section
319 CrPC to form any opinion as to the guilt of the
accused.
6.1.7 While answering Question (v), namely, in what situations
can the power under Section 319 CrPC be exercised: named in the
FIR, but not charge-sheeted or has been discharged, this Court has
observed and held as under:
112. However, there is a great difference with
regard to a person who has been discharged. A person
who has been discharged stands on a different footing
than a person who was never subjected to investigation
or if subjected to, but not charge-sheeted. Such a person
has stood the stage of inquiry before the court and upon
judicial examination of the material collected during
investigation, the court had come to the conclusion that
there is not even a prima facie case to proceed against
33
such person. Generally, the stage of evidence in trial is
merely proving the material collected during investigation
and therefore, there is not much change as regards the
material existing against the person so discharged.
Therefore, there must exist compelling circumstances to
exercise such power. The court should keep in mind that
the witness when giving evidence against the person so
discharged, is not doing so merely to seek revenge or is
naming him at the behest of someone or for such other
extraneous considerations. The court has to be
circumspect in treating such evidence and try to separate
the chaff from the grain. If after such careful examination
of the evidence, the court is of the opinion that there does
exist evidence to proceed against the person so
discharged, it may take steps but only in accordance with
Section 398 CrPC without resorting to the provision of
Section 319 CrPC directly.
xxx xxx xxx
116. Thus, it is evident that power under Section
319 CrPC can be exercised against a person not
subjected to investigation, or a person placed in Column 2
of the charge-sheet and against whom cognizance had
not been taken, or a person who has been discharged.
However, concerning a person who has been discharged,
no proceedings can be commenced against him directly
under Section 319 CrPC without taking recourse to
provisions of Section 300(5) read with Section 398 CrPC.
6.2 Considering the law laid down by this Court in Hardeep Singh
(supra) 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
34
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.
6.3 In S. Mohammed Ispahani v. Yogendra Chandak (2017) 16
SCC 226, 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 accused.”
6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC 368,
after considering the observations made by this Court in Hardeep
Singh (supra) referred to hereinabove, this Court has further
observed and held that 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 chargesheet can be summoned to face the trial provided during the trial
some evidence surfaces against the proposed accused.”
35
13. 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;
36
(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;
37
(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 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
38
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.
14. Applying the law laid down in the aforesaid decisions to the
facts of the case on hand we are of the opinion that the Learned trial
Court as well as the High Court have materially erred in dismissing
the application under Section 319 CrPC and refusing to summon the
39
private respondents herein to face the trial in exercising the powers
under Section 319 CrPC. It is required to be noted that in the FIR
No.477 all the private respondents herein who are sought to be
arraigned as additional accused were specifically named with specific
role attributed to them. It is specifically mentioned that while they
were returning back, Mahendra XUV bearing no. HR-40A-4352 was
standing on the road which belongs to Sartaj Singh and Sukhpal.
Tejpal, Parab Saran Singh, Preet Samrat and Sartaj were standing.
Parab Sharan was having lathi in his hand, Tejpal was having a
gandsi, Sukhpal was having a danda, Sartaj was having a revolver
and Preet Singh was sitting in the jeep. It is specifically mentioned in
the FIR that all the aforesaid persons with common intention parked
the Mahendra XUV HR-40A-4352 in a manner which blocks the entire
road and they were armed with the weapons. Despite the above
specific allegations, when the charge-sheet/final report came to be
filed only two persons came to be charge-sheeted and the private
respondents herein though named in the FIR were put/kept in column
no.2. It is the case on 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
40
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.
So far as the private respondents are concerned only thing
which is stated is “During the investigation of the present case, Shri
Baljinder Singh, HPS, DSP Assandh and Shri Kushalpal, HPS, DSP
Indri found accused Tejpal Singh, Sukhpal Singh, sons of Gurdev
Singh, Parab Sharan Singh and Preet Samrat Singh sons of Mohan
Sarup Singh caste Jat Sikh, residents of Bandrala innocent and
accordingly Sections 148, 149 and 341 of the IPC were deleted in the
case and they were kept in column no.2, whereas challan against
accused Sartaj has been presented in the Court.”
41
14.1 Now thereafter when in the examination-in-chief the appellant
herein – victim – injured eye witness has specifically named the
private respondents herein with specific role attributed to them, the
Learned trial Court as well as the High Court ought to have
summoned the private respondents herein to face the trial. At this
stage it is required to be noted that so far as the appellant herein is
concerned he is an injured eye-witness. As observed by this Court in
the cases of State of MP v. Mansingh (2003) 10 SCC 414 (para 9);
Abdul Sayeed v. State of MP (2010) 10 SCC 259; State of Uttar
Pradesh v. Naresh (2011) 4 SCC 324, the evidence of an injured
eye witness has greater evidential value and unless compelling
reasons exist, their statements are not to be discarded lightly. As
observed hereinabove while exercising the powers under Section 319
CrPC the Court has not to wait till the cross-examination and on the
basis of the examination-in-chief of a witness if a case is made out, a
person can be summoned to face the trial under Section 319 CrPC.
14.2 Now so far as the reasoning given by the High Court while
dismissing the revision application and confirming the order passed
by the Learned trial Court dismissing the application under Section
319 CrPC is concerned, the High Court itself has observed that PW1
42
Manjeet Singh is the injured witness and therefore his presence
cannot be doubted as he has received fire arm injuries along with the
deceased. However, thereafter the High Court has observed that the
statement of Manjeet Singh indicates over implication and that no
injury has been attributed to either 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
43
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.
14.3 Now so far as the submission on behalf of the private
respondents that though a common judgment and order was passed
by the High Court in CRR No.3238 of 2018 at that stage the appellant
herein did not prefer appeal against the impugned judgment and
order passed by the High Court in CRR No.28 of 2018 and therefore
this Court may not exercise the powers under Section Article 136 is
concerned the aforesaid has no substance. Once it is found that the
Learned trial Court as well as the High Court ought to have
summoned the private respondents herein as additional accused,
belated filing of the appeal or not filing the appeal at a relevant time
when this Court considered the very judgment and order but in CRR
No.3238 of 2018 cannot be a ground not to direct to summons the
private respondents herein when this Court has found that a prima
facie case is made out against the private respondents herein and
they are to be summoned to face the trial.
44
14.4 Now so far as the submission on behalf of the private
respondents that though in the charge-sheet the private respondents
herein were put in column no.2 at that stage the complainant side did
not file any protest application is concerned, the same has been
specifically dealt with by this Court in the case of Rajesh (Supra).
This Court in the aforesaid decision has specifically observed that
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 as 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.
14.5 Similarly, the submission on behalf of the private respondents
herein that after the impugned judgment and order passed by the
High Court there is a much progress in the trial and therefore at this
stage power under Section 319 CrPC may not be exercised is
concerned, the aforesaid has no substance and cannot be accepted.
As per the settled preposition of law and as observed by this Court in
the case of Hardeep Singh (Supra), the powers under Section 319
CrPC can be exercised at any stage before the final conclusion of the
trial. Even otherwise it is required to be noted that at the time when
45
the application under Section 319 CrPC was given only one witness
was examined and examination-in-chief of PW1 was recorded and
while the cross-examination of PW1 was going on, application under
Section 319 CrPC was given which came to be rejected by the
Learned trial Court. The Order passed by the Learned trial Court is
held to be unsustainable. If the Learned trial Court would have
summoned the private respondents herein at that stage such a
situation would not have arisen. Be that as it may as observed herein
powers under Section 319 CrPC can be exercised at any stage from
commencing of the trial and recording of evidence/deposition and
before the conclusion of the trial at any stage.
15. In view of the above and for the reasons stated above the
impugned judgment and order passed by the High Court and that of
the Learned trial Court dismissing the application under Section 319
CrPC submitted on behalf of the complainant to summon the private
respondents herein as additional accused are unsustainable and
deserve to be quashed and set aside and are accordingly quashed
and set aside. Consequently the application submitted on behalf of
the complainant to summon the private respondents herein is hereby
allowed and the Learned trial Court is directed to summon the private
46
respondents herein to face the trial arising out of FIR No.477 dated
27.07.2016 in Sessions Case No.362 of 2016 for the offences
punishable under Sections 302, 307, 341, 148 & 149 IPC. However,
it is specifically observed that the observations made hereinabove are
only prima facie for the purpose of exercising the powers under
Section 319 CrPC and the Learned trial Court to decide and dispose
of the trial in accordance with the law and on its own merits and on
the basis of the evidence to be laid before it.
Appeal is allowed accordingly.
.……………………………………J.
[Dr. Dhananjaya Y. Chandrachud]
…………………………………….J.
[M. R. Shah]
New Delhi,
August 24, 2021
