Second wife filed Sec.498 A IPC against her husband - convicted -Whether the accused is entitled for extension of the benefit of Probation of Offenders Act, 1958,

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 NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO .894 OF 2021

SAMAUL SK. … APPELLANT

versus

THE STATE OF JHARKHAND & ANR. …RESPONDENTS

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Hena Bibi, respondent No.2/complainant claimed to be the legally

married wife of the appellant, the marriage having been solemnised on

8.2.2000 as per Muslim customs & rites. It may be noticed that the

appellant was already married to one Mastra Bibi and he apparently had

illicit relationship with respondent No.2, which culminated in their marriage.

The two parties are stated to have lived as husband and wife in the house of

the appellant for about a year and a half and two children were born out of

the said marriage.

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2. It is the case of respondent No.2 that on the instigation of the first

wife, the appellant started mental and physical torture and made demands of

dowry and respondent No.2 had to ultimately go back to her parents’ house.

It may be noticed that during this period that respondent No.2 conceived for

the second time. It is not necessary to go into more details but suffice to say

that the alleged demand of dowry resulted in PCR No.310 of 2006 being

lodged in the Court of Sub Divisional Judicial Magistrate (for short

‘SDJM’), Pakur for offences under Section 498A of the Indian Penal Code,

1860.

3. The case went to trial and in terms of the judgment of the SDJM,

Pakur dated 30.1.2014, the appellant was held guilty and sentenced to three

years of rigorous imprisonment with a fine of Rs.10,000/- and in case of

failure to pay the fine, the appellant was directed to undergo further sentence

of six months. The appellant preferred Criminal Appeal No. 07/2014 against

the judgment of the SDJM which was dismissed vide judgment dated

02.09.2014 by the Principal District and Sessions Judge, Pakur.

4. The appellant, thereafter, preferred a Criminal Revision against the

said order, being Criminal Revision No.1060/2014, and in terms of the

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impugned judgment dated 11/20.10.2020, the Criminal Revision was

dismissed. The appellant thereafter preferred the Special Leave Petition (for

short ‘SLP’) before this Court.

5. The appellant was called upon to surrender by this Court and he

did duly surrender.

6. In the course of hearing of the SLP, the petitioner/appellant prayed

for extension of the benefit of Probation of Offenders Act, 1958, which was

declined on 26.07.2021. However, the Court expressed the view that it was

not averse to consideration of reduction of sentence subject to the condition

that the petitioner gave adequate compensation to respondent No.2 for

herself and her children apart from whatever maintenance was being paid

under Section 125 of the Code of Criminal Procedure, 1973.

7. In the proceedings dated 09.08.2021, learned counsel submitted on

behalf of the appellant that he was willing to pay compensation of Rs.3.00

lakhs to respondent No.2 for herself and the children and requested for about

six months’ time to raise the money. Since respondent No.2 did not put an

appearance despite service, learned counsel for the State was asked to verify

the stand of respondent No.2. Learned counsel submitted that the police

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authorities had verified from respondent No.2 and she was agreeable to

receive the compensation of Rs.3.00 lakhs. Further, on compensation being

paid, she had agreed that if the sentence of the appellant is reduced and/or if

he is granted the benefit of the Probation of Offenders Act, she has no

objection. This was recorded in the proceedings held on 23.08.2021 and the

certificate has been placed on record.

8. We have given thought to the matter. We have already noticed that

keeping in mind the nature of the offence, we had declined the benefit of the

Probation of Offenders Act to the appellant. However, if the

petitioner/appellant is showing remorse and is willing to make arrangements

for respondent No.2 and his two children born out of the wedlock, we would

not like to come in the way of such an arrangement, which should be

beneficial to respondent No.2 and her children.

9. The object of any criminal jurisprudence is reformative in

character and to take care of the victim. It is towards this objective that

Section 357 of the Code of Criminal Procedure is enacted in the statute.

The objective of which is to apply whole or any part of the fine recovered

to be applied on payment to any person of compensation for any loss or

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injury caused by the offence. In the present case, it is one of voluntarily

offering the amount albeit to seek a reduction of sentence.

10. We are informed that the appellant has now undergone about seven

months of sentence and, thus, we are inclined to reduce the sentence to the

period undergone in case the appellant pays to respondent No.2 for her

benefit and her children’s benefit a sum of Rs.3.00 lakhs.

11. In view of the submission made by the petitioner on 09.08.2021

requesting for six months’ time to make arrangement to deposit/pay the

amount, we direct that the appellant shall deposit with the trial court the

amount of Rs.3.00 lakh on or before 28.2.2022 and subject to the deposit,

the period of sentence undergone shall be treated as the sentenced period.

The above-mentioned amount of Rs.3.00 lakh shall be apart from the

requirement of paying fine of Rs.10,000/- directed by the trial court. We,

however, make it clear that if the amounts are not deposited, the appellant

will have to undergo the remaining part of the sentence of 3 years.

12. On the deposit of the amount, the trial court will take steps to

release an amount of Rs.2.00 lakhs out of Rs.3.00 lakhs to respondent No.2

for herself and for her children. In order to secure the interest of the

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children, a sum of Rs.50,000/- each out of the remaining amount, would be

kept in an FDR with a nationalised bank for the benefit of the children. This

amount will be released to them with accrued interest on attaining the age

of 21 years.

13. The appeal is accordingly allowed to the aforesaid extent leaving

the parties to bear their own costs.

...……………………………J.

[Sanjay Kishan Kaul]

...……………………………J.

[Hrishikesh Roy]

New Delhi.

August 31, 2021.

whether on the basis of the evidence, the accused is likely to be convicted or not, which as such is not permissible at all at this stage while considering the application under Section 482 Cr.P.C. The High Court was not as such conducting the trial and/or was not exercising the jurisdiction as an appellate court against the order of conviction or acquittal.=In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court quashing the chargesheet/criminal proceedings in P.R. C. No. 250 of 2019 on the file of the learned Metropolitan Magistrate, Egmore, Chennai for the offences under Sections 420, 302 r/w 109 IPC qua respondent no.1 herein – original accused no.2 deserves to be quashed and set aside and is accordingly quashed and set aside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 873 OF 2021

Saranya …Appellant

Versus

Bharathi and another …Respondent

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 25.08.2020 passed by the High Court of Judicature at

Madras in Criminal OP No. 1443 of 2020, by which the High Court in

exercise of powers under Section 482 Cr.P.C. has quashed and set

aside the entire criminal proceedings qua respondent no.1 herein –

original accused no.2 (A2) in P.R.C. No.250 of 2019 on the file of the

learned X Metropolitan Magistrate, Egmore, Chennai, the original

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complainant – wife of the deceased – victim has preferred the present

appeal.

2. That an FIR was lodged against respondent no.1 herein and one

another on the statement of the appellant herein initially for the offences

under Sections 326, 307, 302, 420, r/w 34 IPC. As per the statement

and the allegations in the FIR, her husband was serving as Assistant

Professor a year before. However, thereafter he was unemployed; that

she had studied up to B.Com and looking after the domestic works; that

since her husband was unemployed and it was difficult to maintain the

family expenses, at that time, one Vela alias Velayutham was introduced

by respondent no.1 herein and told them that the said Vela alias

Velayutham is employed at Guindy Employment Exchange and that if

they give money, he can arrange Government employment for them; it

was further alleged that believing in his words they gave Rs. 4 lakhs to

Velayutham about six months before; that on 23.09.2019 the said

Velayutham promised that my husband will get the appointment order

today itself and asked us to come to Vyasarpadi; that as asked by

Velayutham, A1 in the aforesaid FIR, the complainant and her husband

went to Flat No. 560, 8th Main Road behind Vyasarpadi Mullai Nagar Bus

Depot at about 9:00 a.m. and met him; that A1 offered them ‘Prasadam’

from Shirdi Sai Baba Temple and to talk after our taking the Prasadam;

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that it was a powder like Vibhuti in Shiva Temples; that since the powder

was bitter in taste, she spitted it out, however, her husband had

consumed it; that her husband fainted and fell down and that she was

also feeling drowsy; that people nearby called 108 Ambulance and sent

them to Stanley Hospital for treatment; that while she was on treatment

she came to know that her husband died at the spot of the incident itself;

that it was alleged that the powder given by Velayutham-A1 was the

cause for her husband’s death and her drowsiness; that the statement of

the complainant was recorded at the hospital on 24.09.2019 which at the

relevant time was treated as dying declaration. The relevant extract of

the same is as under:

“My name is Saranya I studied B.Com, I got married, my husband name is

Karthick, I am having two sons, I am a house wife, my husband was

professor and due to non-payment of salary, he started Xerox shop. One

Bharathi regularly come to my husband’s Xerox shop for Xeroxing. She

said that she is working in secretariat, she said there is a job in

employment office and for arranging the same Rs. 6 Lakhs may be given,

we decided the job for my husband as advance during 7 month we paid 5

Lakhs. Daily when enquired the phone, the file has been moved, one week

ago he said that he will give order copy and saibaba prasadam. We went

to palani with family and returned on Monday at 7.30 hrs, Since, there is

examination for our sons, I took my sons to school due to delay and

spoken with the madam and left my sons in the school, my husband saw

the missed call from velayutham three times, immediately my husband

asked me to go home but I wanted to accompany him to Mullai Nagar.

Previously I went to guindy office, velayutham asked as to come in the

lane, green colour house is my house. He showed an order and given

viboothi and kungumam and we kept it then he opened the box in the

vehicle, he has given some powder from to me and my husband yellow

colour cover in spoon, immediately velayutham took the mobile of her

husband and went in two wheeler for taking Xerox copy of the order copy.

My husband took the prasadam and felt something irritation and

immediately took the water and spit the same, and also he give water to

his wife with instruction to spit the content in her mouth, she also spit the

content, my husband suffered fits and he closed his eyes, I do not know

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what had happened to me. When I wake up, I was in the hospital.

Velayutham has given something to my husband and killed him, Bharathi

is also the cause. Enquiry completed at 02.55 afternoon. The Patient

conscious and able to speak till completing the declaration.”

2.1 That the dying declaration was recorded by the Magistrate in the

presence of Doctor who certified that the patient was conscious and able

to speak; that it was the specific case on behalf of the appellantcomplainant that it was the respondent no.1 herein – original accused

no.2 who introduced Vela @ Velayutham – A1 to them and she said that

she is working in the Secretariat and that there is a job in the

employment office and for arranging the same, Rs. 6 lakhs may be given

and relying upon her statement Rs. 5 lakhs was given; that thereafter

after the investigation the investigating officer filed the chargesheet

against Vela @ Velayutham – A1 for the offences under Sections 326,

307, 302, 420 r/w 34 IPC and against respondent no.1 herein – A2 for

the offences under Sections 420, 302 r/w Section 109 IPC; that the case

was pending for committal before the learned X Metropolitan Magistrate,

Egmore, Chennai; that at this stage respondent No.1 herein – A2

approached the High Court by way of Criminal O.P. No. 1443 of 2020

under Section 482 Cr.P.C praying for quashing the entire chargesheet as

against her, pending committal in P.R.C. No. 250 of 2019 on the file of

the learned X Metropolitan Magistrate, Egmore, Chennai; that by the

impugned judgment and order, the High Court in exercise of powers

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under Section 482 Cr.P.C. has quashed and set aside the entire

chargesheet and the criminal proceedings qua respondent no.1 hereinA2 in P.R.C. No. 250 of 2019 on the file of the learned X Metropolitan

Magistrate, Egmore, Chennai for the offences under Sections 420, 302

r/w 109 IPC.

3. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court quashing and setting aside the

entire criminal proceedings/chargesheet qua respondent no.1 herein-A2

in P.R.C. No. 250 of 2019 on the file of the learned X Metropolitan

Magistrate, Egmore, Chennai for the offences under Sections 420, 302

r/w 109 IPC, the original complainant – victim – wife of the deceased has

preferred the present appeal.

4. Shri G.S. Mani, learned Advocate has appeared for the appellant,

Shri S. Nagamuthu, learned Senior Advocate has appeared on behalf of

respondent no.1 herein – original accused no.2 and Shri (Dr.) Joseph

Aristotle S, learned Advocate has appeared on behalf of the respondent

– State of Tamil Nadu.

4.1 Shri Mani, learned Advocate appearing on behalf of the appellant

has vehemently submitted that in the facts and circumstances of the

case, the High Court has committed a grave error in quashing and

setting aside the entire criminal proceedings qua respondent no.1 herein

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for the offences under Sections 420, 302 r/w 109 IPC, in exercise of

powers under Section 482 Cr.P.C.

4.2 It is submitted that despite the fact that there is ample material

against respondent no.1 herein – original accused no.2, the High Court

has quashed the entire criminal proceedings/chargesheet by entering

into the merits of the allegations and appreciating the evidence on

record, which at this stage and while considering the application under

Section 482 Cr.P.C. is not permissible.

4.3 It is submitted that the High Court has not properly appreciated the

fact that as such it was respondent no.1 herein – original accused no.2

who assured and/or given promise that she will arrange for the job and

for that she demanded the money.

4.4 It is submitted that as such respondent no.1 herein – original

accused no.2 introduced Vela @ Velayutham – A1 to the complainant

and her husband and an amount of Rs. 5 lakhs were given to A1. It is

submitted that the High Court has not properly appreciated the fact that

as such there was confessional statement of respondent no.1 herein –

A2 and on the basis of the said confessional statement, there was a

recovery of Rs. 1 lakh 20 thousand from the house of respondent no.1

herein – original accused no.2.

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4.5 It is further submitted that during the course of the investigation,

the investigating officer also collected the evidence in the form of call

details, more particularly the calls between A1 & A2 in the proximity of

the time of commission of offence.

4.6 It is submitted that despite the above material collected and the

circumstances, the High Court has erroneously quashed the

chargesheet/entire criminal proceedings qua respondent no.1 herein –

original accused no.2, in exercise of powers under Section 482 Cr.P.C.

4.7 It is submitted that while quashing the chargesheet/entire criminal

proceedings, the High Court has evidently ignored what has emerged

during the course of investigation. The High Court has not at all applied

the relevant test, namely, when there is sufficient ground for proceeding

against the accused or whether there is ground for presuming that

accused has committed the offence. It is submitted that the High Court

has exceeded in its jurisdiction to quash the chargesheet/entire criminal

proceedings in exercise of powers under Section 482 Cr.P.C. Heavy

reliance is placed on the decision of this Court in the case of State of

Madhya Pradesh v. Deepak, reported in (2019) 13 SCC 62.

4.8 Making the above submissions, it is prayed to allow the present

appeal and quash and set aside the impugned judgment and order

passed by the High Court quashing and setting aside the

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chargesheet/entire criminal proceedings qua respondent no.1 herein –

original accused no.2 for the offences under Sections 420, 302 r/w 109

IPC.

5. Dr. Joseph Aristotle S, learned Advocate appearing on behalf of

the State of Tamil Nadu has supported the appellant. Reliance is placed

on the counter affidavit filed on behalf of respondent no.2 – State of

Tamil Nadu.

5.1 It is vehemently submitted that as such during the course of the

investigation, the investigating officer collected ample material/evidence

against both the accused and only thereafter chargesheet has been filed

against A1 for the offences under Sections 326, 307, 302, 420, r/w 34

IPC and for the offences under Sections 420, 302 r/w 109 IPC against

respondent no.1 herein – original accused no.2.

5.2 It is vehemently submitted that during the course of the

investigation, the investigating officer has collected the call details

between A1 and A2. It is submitted that perusal of the call details report

furnished by the service provider and the nodal officer clearly proves that

there were several calls made by both A1 and A2, vice versa, for

example on 23.09.2019 (the day when the incident had occurred) at

about 09:05:26, respondent no.1 herein – A2 made a call to A1 on his

mobile No. 9790846016 from her mobile No. 6382028209 and again A1

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had made a call to A2 – respondent no.1 herein on the same day at

about 09:51:59 and 09:55:15. It is submitted that it clearly shows that at

that time A1 was available at the place of the incident and for second call

also tower location showed the same place. It is submitted that again on

the same day from mobile No. 9790846016, A1 made a call to A2 on her

mobile no. 6382028209 at about 6:36 p.m. It is submitted that therefore

it is clearly established that the said Mrs. Bharathi, respondent no.1

herein – A2 aided and instigated the offence committed by A1.

5.3 It is further submitted that there was a recovery of Rs. 1 lakh 20

thousand from the house of A2 at the instance of A2. It is submitted

therefore that the High Court has exceeded in its jurisdiction to quash

the chargesheet/entire criminal proceedings qua respondent no.1 herein,

while exercising the powers under Section 482 Cr.P.C.

6. Shri Nagamuthu, learned Senior Advocate appearing on behalf of

respondent no.1 herein – A2 has submitted that in the facts and

circumstances of the case and considering the material/evidence on

record and having found that there is not even a prima facie

evidence/material against respondent no.1 herein – A2, the High Court

has rightly quashed the chargesheet/criminal proceedings qua

respondent no.1 herein in exercise of powers under Section 482 Cr.P.C.

It is submitted that as such and even considering the statement of the

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original complainant as it is and even considering the case of the

prosecution as it is, it cannot be said that respondent no.1 herein – A2

has committed any offence under Sections 420, 302 r/w 109 IPC. It is

submitted that from the statement of the original complainant –

appellant, it can be gathered that the allegations against A2 is that she

introduced A1 to them; that an amount of Rs.4/5 lakhs was paid to A1;

that the allegations of giving poison and even purchasing of poison is

against A1 only; that there is no evidence that at the time when A1 gave

poison to the deceased, A2 – respondent no.1 herein was present.

6.1 It is further submitted that the so-called confessional statement of

A2 is not admissible in the evidence at all and therefore no reliance can

be placed upon such alleged confessional statement, which has no

evidentiary value.

6.2 It is further submitted that even the so-called recovery of Rs. 1 lakh

20 thousand from the house of A2 cannot bring home the charge against

A2 for the offences for which she has been chargesheeted. It is

submitted that there is no evidence at all that it was the very money

which was given to A1 by the complainant.

6.3 It is submitted that even the so-called call details between A1 & A2

cannot be said to be a sufficient material/evidence against A2. Merely

because A1 & A2 might have talked cannot be held against A2.

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6.4 It is further submitted that even the statement of the complainant

recorded on 24.09.2019 recorded at the hospital cannot be treated as

dying declaration as subsequently she survived. It is submitted that

there is improvement in the case and subsequently she had come out

with the case that she paid Rs. 5 lakhs, whereas as per the original

case, an amount of Rs. 4 lakhs was given.

6.5 It is submitted that as such there is no material/evidence at all

against A2 for the offence under Section 109 IPC. It is submitted that no

case of appellant attracting the offence under Section 109 IPC against

respondent no.1 herein – A2 is made out. It is submitted that there is no

ingredient available as against A2 to attract the offence under Section

109 IPC.

6.6 It is submitted therefore that in the facts and circumstances of the

case, the High Court has not committed any error in quashing and

setting aside the chargesheet/criminal proceedings qua accused no.2 in

exercise of powers under Section 482 Cr.P.C.

6.7 Making the above submissions, it is prayed to dismiss the present

appeal.

7. We have heard the learned counsel for the respective parties at

length.

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Before considering the rival submissions of the parties, few

decisions of this Court on the principles which the High Court must keep

in mind while exercising the jurisdiction under Section 482 Cr.P.C./at the

stage of framing of the charge while considering the discharge

application are required to be referred to and considered.

7.1 In the case of Deepak (supra), to which one of us (Dr. Justice D.Y.

Chandrachud) is the author, after considering the other binding decisions

of this Court on the point, namely, Amit Kapoor v. Ramesh Chander

(2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu (2017) 3

SCC 198; and Chitresh Kumar Chopra v. State (Government of NCT of

Delhi) (2009) 16 SCC 605, it is observed and held that at the stage of

framing of charges, the Court has to consider the material only with a

view to find out if there is a ground for “presuming” that the accused

had committed the offence. It is observed and held that at that stage,

the High Court is required to evaluate the material and documents on

record with a view to finding out if the facts emerging therefrom, take at

their face value, disclose the existence of all the ingredients constituting

the alleged offence or offences. It is further observed and held that at

this stage the High Court is not required to appreciate the evidence on

record and consider the allegations on merits and to find out on the basis

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of the evidence recorded the accused chargesheeted or against whom

the charge is framed is likely to be convicted or not.

8. In the present case, there is sufficient material on record raising

the strong suspicion against respondent no.1 herein – A2 also. It has

been found that A2- respondent no.1 herein who was serving in the

Secretariat and was in touch with the deceased and the complainant as

she used to go to Xerox shop owned by the deceased and she

introduced A1 to the complainant and the deceased. It is specifically

alleged that she said that she can manage to get the job/employment for

the deceased but for that they have to pay. It is true that as per the case

of the prosecution and even as per the statement of the complainant, an

amount of Rs. 5 lakhs was paid to A1. However, during the course of the

investigation, an amount of Rs. 1 lakh 20 thousand has been recovered

from the house of respondent no.1 herein – A2 at the instance of A2

herself. It may be true that the so-called confessional statement of

respondent no.1 herein is inadmissible in evidence. However, it is to be

noted that on the basis of such statement, there was a recovery of Rs. 1

lakh 20 thousand from the house of A2 – respondent no.1 herein. The

other aspect whether the recovered amount of Rs. 1 lakh 20 thousand

was the same amount which was given by the deceased and the

complainant to A1 is a matter of evidence to be considered during trial.

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Even the source of Rs. 1lakh 20 thousand might have to be explained by

the accused.

9. It also appears that during the course of the investigation, the

investigating officer has collected very important evidence in the form of

call details between A1 & A2 which are in the proximity of the time of

commission of offence and even thereafter. Therefore, in the facts and

circumstances of the case, when respondent no.1 herein has been

chargesheeted for the offences under Sections 420, 302 r/w 109 IPC

and as observed hereinabove when there is ample material to show at

least a prima facie case against respondent no.1 herein – A2, the High

Court has committed a grave error in quashing the chargesheet/entire

criminal proceedings qua her in exercise of powers under Section 482

Cr.P.C. Quashing the chargesheet against the accused is not justified.

The High Court has evidently ignored what has emerged during the

course of investigation. The High Court has entered into the

appreciation of the evidence and considered whether on the basis of the

evidence, the accused is likely to be convicted or not, which as such is

not permissible at all at this stage while considering the application

under Section 482 Cr.P.C. The High Court was not as such conducting

the trial and/or was not exercising the jurisdiction as an appellate court

against the order of conviction or acquittal. Therefore, in the facts and

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circumstances of the case, the High Court ought not to have quashed

the chargesheet qua respondent no.1 herein – original accused no.2.

10. In view of the above and for the reasons stated above, the present

appeal succeeds. The impugned judgment and order passed by the

High Court quashing the chargesheet/criminal proceedings in P.R. C.

No. 250 of 2019 on the file of the learned Metropolitan Magistrate,

Egmore, Chennai for the offences under Sections 420, 302 r/w 109 IPC

qua respondent no.1 herein – original accused no.2 deserves to be

quashed and set aside and is accordingly quashed and set aside. Now

the learned Magistrate to proceed further with the case, in accordance

with law. It goes without saying that any observations made by this

Court in the present order shall be confined to while considering the

application under Section 482 Cr.P.C. and the trial in the aforesaid case

shall proceed further on its own merits, in accordance with law on the

basis of the evidence laid.

11. The appeal is allowed in the aforesaid terms.

….…………………………………J.

[Dr. Dhananjaya Y. Chandrachud]

New Delhi; ……………………………………..J.

August 24, 2021. [M.R. Shah]

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The authority contemplated in Section 26 is the Highway Authority constituted under Section 3 or any officer authorised by the Highway Authority. Since no claim is raised based on powers under Section 26, we are constrained to interfere in the matter. Accordingly, the impugned judgment is set aside.

‘REPORTABLE’

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4946 OF 2021

(Arising out of SLP (C)No. 10493 of 2021)

GUNASEKARAN Appellant(s)

VERSUS

THE DIVISIONAL ENGINEER

NATIONAL HIGHWAYS & ORS. Respondent(s)

WITH

CIVIL APPEAL NO. 4947 of 2021

(Arising out of SLP (C)No. 11768 of 2021)

CIVIL APPEAL NO. 4948 of 2021

(Arising out of SLP (C)No. 12587 of 2021)

CIVIL APPEAL NO. 4949/2021

(Arising out of SLP (C)No. 12947 of 2021)

J U D G M E N T

K. M. JOSEPH, J.

Leave granted.

(1) Dr. Joseph Aristotle, learned counsel, appears and

accepts notice on behalf of the respondents in Civil Appeal

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Civil Appeal No. 4946/2021 etc.

No. 4948 of 2021 (arising out of SLP (C)No. 12587 of 2021)

and Civil Appeal No. 4949 of 2021 (arising out of SLP (C)No.

12947 of 2021).

(2) The appellants in these cases filed writ petitions

wherein they mounted challenge to the show cause notices

issued by the respondents. The High Court, by the impugned

judgment, did not interfere with the impugned notices noting

that the appellants have not attributed any malafides and

their writ petitions were accordingly, dismissed.

However, in paragraph 15 it held as follows:

“15. However, it is open to the petitioners to offer

their explanation to the impugned show cause notices

to the respondents, within a period of ten days from

the date of receipt of copy of this order and if any

explanation is offered by the petitioners, the 2nd

respondent shall consider the same and pass orders

within a period of two weeks from the date of receipt

of their explanation and thereafter, shall proceed

further. No costs. Consequently, connected

miscellaneous petitions are also dismissed.”

The dispute lies essentially in a narrow compass. The

allegation raised in the show cause notices is to the effect

that the appellants have encroached upon the property

comprising in the ‘National Highway’ in question. The case

set up by the appellants before the High Court was that the

notices have been issued, purporting to be under Section

28(2)(ii) of the Tamil Nadu State Highway Act, 2001

(hereinafter referred to as State Act, 2001, for brevity).

It was contended that the said enactment had become void in

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Civil Appeal No. 4946/2021 etc.

view of the enactment of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013. It was expatiated and is contended

that the authority under the State Act, 2001, did not have

the jurisdiction in the matter of dealing with the alleged

encroachments over the National Highway.

The High Court notices that though the road actually

belongs to the National Highways Department, the

construction and maintenance of the road was under the

supervision and control of the officer of the National

Highways Wing, Highways Department, Government of Tamil

Nadu. Noticing that since the subject matter of the road is

under the maintenance and supervision of the National

Highways Wing, Highways Department, Government of Tamil

Nadu, the Court did not find any error in the impugned

notices. It is further noted that there were 326

encroachers in the said Highway and such encroachments were

identified after survey and notices were issued. It was

further observed that the impugned notices are only show

cause notices, which are normally not interfered with,

except for lack of jurisdiction of the authority or if

malafides is attributed. Accordingly the writ petitions

were dismissed as noticed.

(3) We have heard Shri B. Karunakaran, learned counsel for

the appellants, and Shri V. Krishnamurthy, learned

3

Civil Appeal No. 4946/2021 etc.

Additional Advocate General for the State.

(4) In the appeals, the appellants persisted with the

complaint that the notices have been issued under the State

Act, 2001. It is the case of the appellants that the

officer who issued the notices, could not possibly have

seized at, power to purport to remove the alleged

encroachment in the National Highway.

(5) The contention on the other hand of the State as

articulated by Shri V. Krishnamurthy, learned Additional

Advocate General for the State of Tamil Nadu, is that

notification has been issued under Section 5 of the National

Highways Act, 1956 (hereinafter referred to as ‘Act of 1956’

for brevity) and the roads in question where the

encroachments have taken place are covered by the

notification. It is the contention of the respondents that

the officer, therefore, who has issued notices purportedly

under the State Act, did have jurisdiction, as correctly

found by the High Court.

(6) If we notice the statutory framework of the Act of

1956, this Act provides in Section 5 as follows:

5. Responsibility for development and maintenance of

national highways.—It shall be the responsibility of

the Central Government to develop and maintain in

proper repair all national highways; but the Central

Government may, by notification in the Official

Gazette, direct that any function in relation to the

development or maintenance of any national highway

shall, subject to such conditions, if any, as may be

specified in the notification, also be exercisable by

4

Civil Appeal No. 4946/2021 etc.

the Government of the State within which the national

highway is situated or by any officer or authority

subordinate to the Central Government or to the State

Government.

There is undoubtedly a notification issued under

Section 5 in this case.

(7) If matters stood thus, perhaps it could be contended

that the power comprised in the section has been delegated

to the author of the notices in these cases and which

extended to the removal of encroachments over the National

Highway. We must further notice that in fact, Section 5

speaks about the responsibility of the Central Government to

develop and maintain in proper repair the National Highways.

It also provides, undoubtedly, that any function in relation

to the development and maintenance of any National Highway

shall, subject to such conditions, as may be specified in

the notification, also be exercisable by the Government of

the State within which the national highway is situated or

by any officer or authority subordinate to the Central

Government or to the State Government. It is in terms of

this power that the notification relied upon by the

respondent-State has been issued viz., it provides for the

functions relating to development or maintenance of the

National Highway. The legislature however, has not stood

still. In the year 2002, new legislation was churned out

viz., The Control of National Highways (Land and Traffic)

5

Civil Appeal No. 4946/2021 etc.

Act, 2002 (hereinafter referred to as ‘Act of 2002’ for

brevity). The following is the statement of objects and

reasons:

“1. At present, the National Highways are governed by

the National Highways Act, 1956 and the National

Highways Authority of India Act, 1988. These

enactments contain provisions for declaration of the

National Highways and for the constitution of the

National Highways Authority of India for the

development, maintenance and management of the

National Highways and the matters connected

therewith. However, these enactments do not give

powers to the Central Government to prevent or remove

encroachments on land under the National Highways/or

to restrict access to them from the adjacent land, or

to regulate traffic movement of any category of

vehicles or animals on the National Highways. The

provisions in the existing law and in the Code of

Civil Procedure, 1908 have not proved effective in

view of dilatory tactics adopted by the private

parties to defeat the purposes of these Acts. In

order to deal effectively with these problems, it is

imperative to vest the Central Government with

necessary powers through the Highway Administration.

2. National Highways are rapidly getting congested

and choked by undesirable roadside developments and

encroachments. In fact, encroachments make further

widening of the existing roads in response to growing

traffic, very difficult and costly, and often,

impossible. The result is that the main traffic on

the National Highways is subjected to a lot of

hardship and there is widespread criticism about the

deteriorating level of service.

3. The absence of legislation empowering the

competent authority to remove encroachments on the

National Highways has resulted in shops, hotels, tea

stalls, repair shops, petrol pumps, weigh bridge,

residences and commercial establishments extending

their activities right on the National Highways land.

4. Highway authorities do not have either power to

regulate traffic coming on the National Highways or

to control the number of access roads joining the

highways. All this leads to failure of roads and

bridges caused by overloading, increased congestion,

waste of fuel, reduced speed, high incidents of

accidents, increased vehicle operating costs and

unhealthy and unhygienic conditions. It has been

6

Civil Appeal No. 4946/2021 etc.

also observed that highways are frequently dug up by

utility organisations which put the traffic on

highways in danger. The highway authorities have no

adequate legal authority to prevent such nuisances.”

(8) Section 3 provides for the establishment of Highways

Administration. It reads as follows:

3. Establishment of Highway Administrations.—(1) The

Central Government shall, by notification in the

Official Gazette,—

(a) establish, for the purposes of this Act, a

body or authority consisting of one or more

officers of the Central Government or the State

Government to be known as Highway Administration

to exercise powers and discharge functions

conferred on it under this Act; and

(b) define the limits of the Highway within which,

or the length of Highway on which, a Highway

Administration shall have jurisdiction:

Provided that the Central Government may, in the

notification issued under this sub-section or by any

general or special order, impose any condition or

limitation subject to which a Highway Administration

shall exercise powers and discharge functions

conferred on it under this Act.

(2) The Central Government may establish one or more

Highway Administrations for a State or Union

territory or for a Highway under sub-section (1).

(3) Subject to the provisions of this Act, the

Highway Administration shall exercise powers and

discharge functions conferred on it under this Act in

such manner as may be prescribed.

(9) Section 4 provides for powers and functions of Highway

Administration:

4. Powers and functions of Highway Administration.—A

Highway Administration shall exercise powers and

discharge functions throughout its jurisdiction

specified under this Act subject to such conditions or

limitations as may be imposed by the notification

issued under sub-section (1) of section 3 and by any

general or special order made in this behalf by the

Central Government.

7

Civil Appeal No. 4946/2021 etc.

(10) Chapter III deals with prevention of unauthorised

occupation of Highway land and under Section 23, the Highway

land is deemed to be the property of the Central Government.

Section 24 inter alia provides for prevention of

occupation of any person of any Highway land or discharge of

any material through drain on such land without obtaining

prior permission, for such purpose in writing, of the

Highway Administration or any officer authorised by such

administration.

(11) Section 26 dealing with the removal of unauthorised

occupation, reads as follows:

26. Removal of unauthorised occupation.—(1) Where the

Highway Administration or the officer authorised by

such Administration in this behalf is of the opinion

that it is necessary in the interest of traffic

safety or convenience to cancel any permit issued

under sub-section (2) of section 24, it may, after

recording the reasons in writing for doing so, cancel

such permit and, thereupon, the person to whom the

permission was granted shall, within the period

specified by an order made by the Highway

Administration or such officer restore the portion of

the Highway specified in the permit in such condition

as it was immediately before the issuing of such

permit and deliver the possession of such portion to

the Highway Administration and in case such person

fails to deliver such possession within such period,

he shall be deemed to be in unauthorised occupation

of highway land for the purposes of this section and

section 27.

(2) When, as a result of the periodical inspection of

highway land or otherwise, the Highway Administration

or the officer authorised by such Administration in

this behalf is satisfied that any unauthorised

occupation has taken place on highway land, the

Highway Administration or the officer so authorised

shall serve a notice in a prescribed form on the

person causing or responsible for such unauthorised

8

Civil Appeal No. 4946/2021 etc.

occupation requiring him to remove such unauthorised

occupation and to restore such highway land in its

original condition as before the unauthorised

occupation within the period specified in the notice.

(3) The notice under sub-section (2) shall specify

therein the highway land in respect of which such

notice is issued, the period within which the

unauthorised occupation on such land is required to

be removed, the place and time of hearing any

representation, if any, which the person to whom the

notice is addressed may make within the time

specified in the notice and that failure to comply

with such notice shall render the person specified in

the notice liable to penalty, and summary eviction

from the highway land in respect of which such notice

is issued, under sub-section (6).

(4) The service of the notice under sub-section (2)

shall be made by delivering a copy thereof to the

person to whom such notice is addressed or to his

agent or other person on his behalf or by registered

post addressed to the person to whom such notice is

addressed and an acknowledgment purporting to be

signed by such person or his agent or other person on

his behalf or an endorsement by a postal employee

that such person or his agent or such other person on

his behalf has refused to take delivery may be deemed

to be prima facie proof of service.

(5) Where the service of the notice is not made in

the manner provided under sub-section (4), the

contents of the notice shall be advertised in a local

newspaper for the knowledge of the person to whom the

notice is addressed and such advertisement shall be

deemed to be the service of such notice on such

person.

(6) Where the service of notice under sub-section (2)

has been made under sub-section (4) or sub-section

(5) and the unauthorised occupation on the highway

land in respect of which such notice is served has

not been removed within the time specified in the

notice for such purpose and no reasonable cause has

been shown before the Highway Administration or the

officer authorised by such Administration in this

behalf for not so removing unauthorised occupation,

the Highway Administration or such officer,as the

case may be, shall cause such unauthorised occupation

to be removed at the expenses of the Central

Government or the State Government, as the case may

be, and impose penalty on the person to whom the

notice is addressed which shall be five hundred

rupees per square metre of the land so unauthorisedly

occupied and where the penalty so imposed is less

9

Civil Appeal No. 4946/2021 etc.

than the cost of such land, the penalty may be

extended equal to such cost.

(7) Notwithstanding anything contained in this

section, the Highway Administration or the officer

authorised by such Administration in this behalf

shall have power without issuing any notice under

this section to remove the unauthorised occupation on

the highway land, if such unauthorised occupation is

in the nature of—

(a) exposing any goods or article—

(i) in open air; or

(ii) through temporary stall, kiosk,

booth or any other shop of temporary

nature,

(b) construction or erection, whether

temporary or permanent, or

(c) trespass or other unauthorised occupation

which can be removed easily without use

of any machine or other device,

and in removing such occupation, the Highway

Administration or such officer may take assistance of

the police, if necessary, to remove such occupation

by use of the reasonable force necessary for such

removal.

(8) Notwithstanding anything contained in this

section, if the Highway Administration or the officer

authorised by such Administration in this behalf is

of the opinion that any unauthorised occupation on

the highway land is of such a nature that the

immediate removal of which is necessary in the

interest of—

(a) the safety of traffic on the Highway; or

(b) the safety of any structure forming part

of the Highway,

and no notice can be served on the person responsible

for such unauthorised occupation under this section

without undue delay owing to his absence or for any

other reason, the Highway Administration or the

officer authorised by such Administration may make

such construction including alteration of any

construction as may be feasible at the prescribed

cost necessary for the safety referred to in clause

(a) or clause (b) or have such unauthorised

occupation removed in the manner specified in subsection (7).

(9) The Highway Administration or an officer

authorised by such Administration in this behalf

shall, for the purposes of this section or section

27, have the same powers as are vested in a civil

court under the Code of Civil Procedure, 1908 (5 of

10

Civil Appeal No. 4946/2021 etc.

1908), while trying a suit, in respect of the

following matters, namely:—

(a) summoning and enforcing the attendance of

any person and examining him on oath;

(b) requiring the discovery and production of

documents;

(c) issuing commissions for the examination

of witnesses; and

(d) any other matter which may be prescribed,

and any proceeding before such Administration or

officer shall be deemed to be a judicial proceeding

within the meaning of sections 193 and 228, and for

the purpose of section 196, of the Indian Penal Code

(45 of 1860) and the Administration or the officer

shall be deemed to be a civil court for the purposes

of section 195 and Chapter XXVI of the Code of

Criminal Procedure, 1973 (2 of 1974).”

(12) A perusal of Section 26, bearing in mind the object

with which the said law was enacted, leaves us in no manner

of doubt, as regards power and procedure for the removal of

any encroachment at a National Highway. The appropriate

law is the Act of 2002. In other words, the show cause

notices which have been issued and impugned in these cases

are admittedly issued seeking shelter under Section 5 of the

Act of 1956. Power under Section 5 of the Act of 1956 does

not extend as is made clear by the circumstances leading to

the Act of 2002 and also the express provisions of the Act

of 2002, in particular, Section 26 which provides for the

procedure as also the power for causing the removal of

encroachment in regard to National Highways. Section 14 of

the Act of 2002 confer a right of appeal to the Tribunal.

(13) The upshot of the above discussion is that the show

cause notices which have, in fact, been issued by the

11

Civil Appeal No. 4946/2021 etc.

officer clutching the power under Section 28 of the State

Act, 2001, and which the learned senior counsel for the

State seeks to rest under the provisions of the notification

issued under Section 5 of the Act of 1956, are unauthorised.

As correctly observed by the High Court, one of the grounds

on which show cause notices can be interfered with is the

lack of jurisdiction of the authority. This is one such

case, where the authority to take action and the law under

which such action can be taken are all found located in Act

of 2002. To be more specific, the provision of section 26

provides the statutory charter for setting in motion the

proceedings to get rid of encroachment over National

Highways.

(14) The respondents do not have a case before us that the

authority which has issued the impugned show cause notices

in these cases is the authority contemplated under Section

26. The authority contemplated in Section 26 is the Highway

Authority constituted under Section 3 or any officer

authorised by the Highway Authority.

Since no claim is raised based on powers under Section

26, we are constrained to interfere in the matter.

Accordingly, the impugned judgment is set aside. The

writ petitions are allowed. The impugned show cause notices

will stand set aside. However, we make it crystal clear

that this will be without prejudice to the competent

12

Civil Appeal No. 4946/2021 etc.

authority under Section 26 to take appropriate action as

advised in law.

The appeals are allowed as above.

No orders as to costs.

………………………………………………………………., J.

[ K.M. JOSEPH ]

………………………………………………………………., J.

[ S. RAVINDRA BHAT ]

New Delhi;

August 24, 2021.

13

whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee.” 29. Public service - like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service. Judicial review, under the Constitution, is permissible to ensure that those norms are fair and reasonable, and applied fairly, in a non-discriminatory manner. However, suitability is entirely different; the autonomy or choice of the public employer, is greatest, as long as the process of decision making is neither illegal, unfair, or lacking in bona fides. The High Court’s approach, evident from its observations about the youth and age of the candidates, appears to hint at the general acceptability of behaviour which involves petty crime or misdemeanour. The impugned order indicates a broad view, that such misdemeanour should not be taken seriously, given the age of the youth and the rural setting. This court is of opinion that such generalizations, leading to condonation of the offender’s conduct, should not enter the judicial verdict and should be avoided. Certain types of offences, like molestation of women, or trespass and beating up, assault, causing hurt or grievous hurt, (with or without use of weapons), of victims, in rural settings, can also be indicative of caste or hierarchy-based behaviour. Each case is to be scrutinized by the concerned public employer, through its designated officials- more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society’s security.For the foregoing reasons, this court hereby sets aside the common impugned judgment and the orders of the CAT, quashing the orders issued by the appellant, declining appointment to the respondent candidates. The appeals are accordingly allowed, without any order on costs.

1

REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4960/ 2021

(ARISING OUT OF SLP (C) NO. 13285 OF 2014)

COMMISSIONER OF POLICE …APPELLANT(S)

VERSUS

RAJ KUMAR ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 4961/ 2021

 (ARISING OUT OF SLP (C) 13282/2014)

CIVIL APPEAL NO. 4963/ 2021

 (ARISING OUT OF SLP (C) 18397/2014)

CIVIL APPEAL NO. 4962/2021

 (ARISING OUT OF SLP (C) 18396/2014)

JUDGMENT

S. RAVINDRA BHAT, J.

1. Leave granted. The Commissioner of Police, Delhi (“the appellant”) is in

appeal, aggrieved by a common judgment of the Delhi High Court by which the

respondents (hereafter referred to as “candidates/applicants”) were directed to be considered for appointment to the post of Constable of Delhi Police.

2. An advertisement was issued in the year 2009, inviting applications from

eligible candidates to fill up vacancies in the cadre of constable in the Delhi Police. It

is not in dispute that the respondent candidates, in their applications, disclosed that

criminal cases had been instituted against them – as well as the outcome of those

cases. Except in SLP(C) 18396/2014 where the applicant Deepa Tomar was facing

2

trial, the criminal cases had ended in compromise. After due consideration of their

candidature, and in terms of S.O. No.398/2010, the appellant referred their cases to a

Standing Committee, to assess their suitability. In Deepa Tomar’s case, the

consideration was deferred since she was facing trial in criminal proceedings where

she was charged with committing the offence of kidnapping under Section 364 IPC.

By various orders, which were impugned in separate proceedings by the candidates,

the Central Administrative Tribunal (CAT) allowed the applications of the

candidates, upholding their pleas, and quashing the orders of the Screening

Committees. All the orders of the CAT were impugned by the appellant before the

High Court. They were dealt with and considered by the common impugned order,

which rejected the appellant’s petitions, under Article 226 of the Constitution of

India.

3. The main argument by the candidates was that having regard to the terms of

the applicable Standing Order as well as the decisions of this Court, the rejection of

their candidature was unsustainable because of non-application of mind and further

the orders were made in a mechanical manner. By the impugned order, the Division

Bench allowed the writ petitions and quashed the rejection of the candidatures of the

respondents.

4. It is urged by the Additional Solicitor General (ASG), Ms. Madhavi Divan, appearing on behalf of the appellant that the impugned judgment is erroneous

inasmuch as the Division Bench lost sight of the fact that the Standing Orders could

not be so read as compelling the authorities to select applicants whose conduct was

not satisfactory in the opinion of the Screening Committee. The appellant relies upon

the rulings of this Court in Commissioner of Police, New Delhi & Anr v Mehar Singh1

as well as the observations of the three-Judge Bench in the Court’s judgment in Avtar

Singh v. UOI &Ors2

.

1

(2013) 7 SCC 685

2

(2016) 8 SCC 471

3

5. The appellant urges that in all the four cases, the candidates faced criminal

proceedings – in most of them, even charges were framed after which the cases

against them ended in a compromise. In the case of Ms. Deepa Tomar, the candidate

was not only accused but also charged for committing the offence of kidnapping. She

stood trial but was acquitted on the ground of insufficient evidence. It was submitted

that having regard to the nature of the offences that the candidates were alleged to

have committed and the outcome of the cases, the authorities were justified in

concluding that they were unsuitable for employment in the concerned post, i.e. as

Constables of Police.

6. It was argued by Mr. Singhal appearing on behalf of two candidates, Shiv

Singh [SLP(C) 13282/2014] and Prem Singh Choudhary [SLP(C) 18396/2014] that

the Screening Committee dealt with their cases in a perfunctory manner and did not

appreciate the entirety of facts. With respect to the respondent Shiv Singh, it was

urged that though in the first information report (FIR), allegations could have led to

grave offences, including charge under Section 353 IPC, as a matter of fact the

charges framed were not in relation to these offences. Ultimately, the alleged victims

had no difficulty in entering into compromise with the candidate, which led to

compounding of the offences that he was said to have committed. It was submitted

that in the case of Prem Singh Choudhary/Respondent too, it could not be said that

the criminal charges (i.e., of committing offences under Sections 143/343/341 IPC)

were either grave or involved moral turpitude. In this case too, the accused/candidate

was not convicted; and a compromise was entered into with the informant.

7. Learned counsel for the respondent/candidates relied upon the observations of

the High Court that in cases involving allegations of commission of offences under

Section 323 IPC, especially where the offenders were youth from rural backgrounds,

it cannot be said that the conduct involved moral turpitude and that the Courts should

be alive to the realities that in such areas, brawls and fights are common place. It was

also emphasized that there is a tendency of exaggerating on the part of the informants

4

whenever such incidents occur, to falsify the facts and implicate the offenders.

8. Learned counsel appearing on behalf of the respondent Deepa Tomar drew the

attention of the court to the findings recorded by the trial court. It was submitted that

an overall reading of the facts narrated by the trial court would show that the relationship between the candidate and her husband Joginder was strained and that

therefore, she and her family members were accused of having abducted him; he was

reported missing. Learned counsel submitted that having regard to the evidence led

by the prosecution which was considered by the concerned court of competent

jurisdiction, the candidate was exonerated of the offences. These had to be duly

considered and appropriate weight given, to the findings of such court by the

Screening Committee. Learned counsel submitted that the Screening Committee did

not apply its mind and merely went by the label, i.e. the seriousness of the offence to

hold the candidate Deepa Tomar unsuitable – an entirely arbitrary outcome.

Analysis and Conclusions

9. For the sake of clarity, a tabular chart, indicating the involvement of each of

the respondent, in respect of various offences, the course of the trials, their outcome,

etc, is set out below:

S.

No.

Name of

writ

petitioner

candidate

Case No. FIR Offence Remarks

1 Raj

Kumar

SLP(C.) No.

13285/2014

FIR No. 283/07,

dated

14.10.2007.

under Sections

143, 451, 323,

336, 382 IPC

Cognizance

taken under

sec. 147,

451, 323,

336 IPC

Acquitted by Order

dated 22.05.2008 under

Sections 147 and 336 as

charges were not

proved. Compromised

charges under Sections

451 and 323.

2. Shiv

Singh

SLP(C.) No.

13282/2014

FIR No.

410/2009

Dated

18.10.2009

under Sections

323, 341, 325, 34

IPC.

Cognizance

taken under

sec. under

Sections

323, 341,

325, 34 IPC

Acquitted by order

dated 01.12.2019;

acquitted under Sections

323, 341, 325, 34 IPC

based on the

compromise deed dated

01.12.2019.

5

3. Deepa

Tomar

SLP(C.) No.

18397/2014

FIR dated

26.05.2002

under Sections

364, 506, 120

IPC

Cognizance

taken under

Sections

364, 120 B

IPC

Acquitted by order

dated 04.05.2011 (pg.

67-106). Acquitted

under Sections 120B,

364 IPC as the

prosecution was not

able to prove the

charges beyond the

doubt. Therefore, Court

held that the accused as

entitled to the benefit of

doubt.

4 Prem

Singh

Choudhar

y

SLP(C.) No.

18396/2014

FIR No. 38/2007

dated 14.02.2007

under Sections

143, 341, 323

IPC

Cognizance

Under

Sections

 323, 341,

325, 34 IPC

Acquitted by order

dated 04.12.2009 under

Sections

323, 341, 325, 34 IPC

on the basis of

compromise with the

informant.

10. Standing order No.398/2010, which is relevant for an appropriate decision in

this case, reads as follows:

“STANDING ORDER NO. 398/2010 POLICY FOR DECIDING CASES OF CANDIDATES PROVISIONALLY SELECTED IN DELHI POLICE INVOLVED IN

CRIMINAL CASES (FACING TRIAL OR ACQUITTED).

During the recruitments made in Delhi Police, several cases come to light where

candidates conceal the fact of their involvement in criminal cases in the application Form/Attestation Form in the hope that it may not come to light and disclosure by them at the beginning of the recruitment process itself may debar them

from participating in the various recruitment tests. Also the appointment if he/she

has been acquitted but not honourably.

In order to formulate a comprehensive policy, the following rules shall be applicable for all the recruitments conducted by Delhi Police:-

 1). xxx xxxxxx

 2). xxx xxxxxx

3). If a candidate had disclosed his/her involvement and/or arrest in criminal

cases, complaint case, preventive proceedings etc. and the case is pending investigation or pending trial, the candidature will be kept in abeyance till the final decision of the case. After the court’ judgment, if the candidate is acquitted or discharged, the case will be referred to the Screening Committee of the PHQ comprising of Special Commissioner of Police/Administration, Joint Commissioner of

Police/Headquarters and Joint Commissioner of Police/Vigilance to assess

his/her suitability for appointment in Delhi Police.

6

4) If a candidate had disclosed his/her involvement in criminal case, complaint

case, preventive proceedings etc. both in the application form as well as in the attestation form but was acquitted or discharged by the court, his/her case will be

referred to the Screening Committee of PHQ to assess his/her suitability for appointment in Delhi Police.

5). xxx xxxxxx

6). Such candidates against whom charge-sheet in any criminal case has been

filed in the court and the charges fall in the category of serious offences or moral

turpitude, though later acquitted or acquitted by extending benefit of doubt or the

witnesses have turned hostile due to fear of reprisal by the accused person, he/she

will generally not be considered suitable for government service. However, all

such cases will be judged by the Screening Committee of PHQ to assess their suitability for the government job. The details of criminal cases which involve moral

turpitude may kindly be perused at Annexure ‘A’.

7) Such cases in which a candidate had faced trial in any criminal case which

does not fall in the category of moral turpitude and is subsequently acquitted by

the court and he/she discloses about the same in both application form as well as

attestation form will be judged by the Screening Committee to decide about

his/her suitability for the government job.

8) xxx xxxxxx

9). If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her

suitability for government service.”

11. Annexure A to the above policy which refers to offences involving moral

turpitude is extracted below:

“1. Criminal Conspiracy (Section 120-B, Indian Penal Code)

2. Offences against the State (Sections 121 - 130, Indian Penal Code)

3. Offences relating to Army, Navy and Air Force (Sections 131-134, Indian Penal

Code)

4. Offence against Public Tranquility (Section 153-A & 153-B, Indian Penal

Code).

5. False evidence and offences against Public Justice (Sections 193-216A, Indian

Penal Code)

6. Offences relating to coin and government stamps (Section 231-263A, Indian

Penal Code).

7. Offences relating to Religion (Section 295-297, Indian Penal Code)

8. Offences affecting Human Body (Sections 302-304, 304B, 305-308, 311-317,

325-333, 335, 347, 348, 354, 363-373, 376-376-A, 376-B, 376-C, 376-D, 377, Indian Penal Code)

9. Offences against Property (Section 379-462, Indian Penal Code)

7

10. Offences relating to Documents and Property Marks (Section 465-489, Indian

Penal Code)

11. Offences relating to Marriage and Dowry Prohibition Act (Section 498-A, Indian Penal Code)”

12. Mehar Singh noted that Clause 3 of the Standing Order, which refers to the

Screening Committee, comprises of senior police officers. This committee assesses

candidates’ (previously implicated for an offence, but against whom charges are

terminated, for any reason), suitability for appointment. Clause 6 prescribes that

candidates who faced charges involving serious offences or offences involving moral

turpitude and who are later acquitted giving benefit of doubt or because the witnesses

turned hostile due to fear of reprisal by the accused person shall not generally be

considered suitable for government service. Each of such cases is to be considered by

the Screening Committee manned by senior officers.

13. It is evident from a reading of the applicable Standing Order along with

Annexure-A that in relation to certain offences, acquittal or exoneration of an accused

candidate, per se would not entitle her or him to consideration. In this regard, in

relation to offences listed in Annexure A inter alia, those who are accused of having

committed offences under Sections 325-333; 363-373 and 379-462; would fall within

the mischief of Clause 6. Upon an overall analysis of the Standing Order, this Court

is of the opinion that an acquittal or discharge in a criminal proceeding would not per

se enable the candidate to argue that the authorities can be compelled to select and

appoint her or him. This Court, in this regard, held inter alia as follows:

“The Screening Committee will be within its rights to cancel the candidature of a

candidate if it finds that the acquittal is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile.

It is only experienced officers of the Screening Committee who will be able to

judge whether the acquitted or discharged candidate is likely to revert to similar

activities in future with more strength and vigour, if appointed, to the post in a police force.”

14. This Court has, in the past, on several occasions, dealt with questions which

are similar, if not entirely identical to what is involved in the present case, to wit,

8

whether in the event of exoneration or acquittal of an applicant/candidate arrayed as

accused of various offences is a decisive factor for consideration of his or her

suitability. Several judgments in the past had appeared to draw a distinction between

“clean” acquittal of accused individuals on the one hand and those acquitted or

exonerated on account of benefit of doubt. Similarly, where candidates were charged

with grave offences involving moral turpitude as well as larger outcomes were

examined. Another area which engaged this Court’s attention was the effect of

non-disclosure of pending criminal cases. Matters came to a head when all these

issues were referred to authoritative decision by a larger three judge Bench. In Avtar

Singh (supra), the three-judge bench, after detailed discussion of the various

circumstances that arose when public authorities are called upon to deal with such

cases, recorded its conclusions in the following manner:

“38. We have noticed various decisions and tried to explain and reconcile them

as far as possible. In view of aforesaid discussion, we summarize our conclusion

thus:

38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into

service must be true and there should be no suppression or false mention of required information.

38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.”

15. There are subsequent judgments too in this regard which have followed the

ruling in Joginder Singh v. Union Territory of Chandigarh & Ors3

; Union Territory,

Chandigarh Administration & Ors v. Pradeep Kumar & Anr4

and Anil Bhardwaj v.

High Court of Madhya Pradesh5

. Before proceeding to analyze the facts in each

appeal, it would also be useful to reproduce the relevant extract of this Court’s ruling

in Mehr Singh (supra) where it was held as follows:

3

 (2015) 2 SCC 377

4

(2018) 1 SCC 797

5

(2020) SCC Online (SC) 832

9

“The police force is a disciplined force. It shoulders the great responsibility of

maintaining law and order and public order in the society. People repose great

faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not

fit in this category. Even if he is acquitted or discharged in the criminal case, that

acquittal or discharge order will have to be examined to see whether he has been

completely exonerated in the case because even a possibility of his taking to the

life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the

Screening Committee. The decision of the Screening Committee must be taken as

final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing

power are in public domain and are a matter of concern. The reputation of the

police force has taken a beating. In such a situation, we would not like to dilute

the importance and efficacy of a mechanism like the Screening Committee created

by the Delhi Police to ensure that persons who are likely to erode its credibility

do not enter the police force. At the same time, the Screening Committee must be

alive to the importance of trust reposed in it and must treat all candidates with

even hand.”

16. Turning now, to the individual facts of each case, the candidate in the Civil

Appeal arising from SLP(C) 13285/2014 (Raj Kumar), is alleged to have committed

offences under Sections 143/323/336/451 IPC along with other individuals. The

candidate is alleged to have committed trespass along with others into the house of

the complainant, armed with lathis and jailis, snatched the jewellery of the complainant’s brother’s daughter-in-law. According to the allegations, there was a scuffle

resulting in injuries. Apparently, the existence of criminal charges had been disclosed

by the candidate which led to rejection of the case. The order of rejection of

candidature6

 issued by the Screening Committee noted that the candidate’s

explanation was in regard to an antecedent family dispute between his family and that

of the informant. The order noted that a chargesheet was filed in the court and

cognizance was taken. Later, during the pendency of trial, both parties compromised

the case so that it could be compounded under Section 451/323 IPC with the approval

of the Court and that the candidate was later acquitted by order dated 22.05.2008 in

the absence of adequate evidence for charges under Section 147/336.

6

dated 22.03.2011

10

17. The impugned order proceeds on the footing that the complainant was found to

be suffering from a simple hurt. It also held that Raj Kumar was aged 20 years when

the incident occurred. The Division Bench was of the opinion that having regard to

these facts, the Screening Committee approached this task in a mechanical manner

and rejected Raj Kumar’s candidature.

18. In the opinion of this Court, the conclusions recorded in regard to Raj Kumar

are unsustainable. The Screening Committee went through the case records and noted

that a compromise was recorded with the approval of the Court with respect to two

offences whereas in the graver offences, the candidate stood trial but was acquitted on

account as there was no sufficient evidence and that “material witnesses” did not support the prosecution story. In the opinion of this Court, that the compromise

recorded in respect of the offences, that were compounded (and the acquittal for lack

of evidence) is apparently so on account of material witnesses not appearing or

turning hostile, was a relevant factor that the Screening Committee could and did

consider. In these circumstances, the conclusions of the High Court cannot be

supported.

19. Shiv Singh, respondent, in another case was accused of committing offences

punishable under Sections 323, 341, 325, 34 IPC. A charge sheet was filed before the

trail court on 12.11.2009. The court also recorded that the offences were prima facie

made out against the accused persons- including the respondent Shiv Singh. Later,

however, a compromise was arrived at between the accused and the complainant, and

an order of composition was issued on 01.12.2009, by the trial court. The Screening

committee considered the charge sheet and the order of the trial court, and having

regard to the nature of offences involved, was of the view that the candidate was not

suitable, because of his propensity to indulge in such behavior without fear of law.

The High Court faulted the Screening Committee's order, as a mechanical exercise of

power, and reasoned that no charge of assaulting the modesty of a woman was made

against the candidate and that the charge of theft was unsubstantiated. The court was

11

also of the opinion that the candidate was young.

20. This court is unable to agree with the impugned order. Here, there is no dispute

that a charge sheet was filed in court, in respect of various offences, including

Section 325. The respondent candidate apparently thereafter approached the

informants, and compromised the dispute. The approach of the High Court, in

considering if evidence existed (in support of criminal charges), its credibility,

especially after a charge sheet was filed, and on the basis of its appreciation of those

materials, without the benefit of all the relevant records and evidence in judicial

review, cannot be sustained.

21. In the case of Prem Singh Choudhary, (the respondent in SLP (C) No

4304/2013) an FIR was registered in a police station at District Alwar, alleging that

he committed offences punishable under Sections 143/323/341 IPC. He and four

others were named by the complainant, Mukesh for forming an unlawful assembly;

he also alleged that the accused were carrying lathis and jeli (a farm implement) and

the accused, along with others assaulted him. The matter was compromised;

consequently, the court recorded acquittal. The Screening Committee took note of

these facts; the appointment order previously issued, was consequently withdrawn.

The order was quashed by the CAT. The High Court, commented that the accused

was not charged under Section 325 IPC; that he was young, and aged 22 years; that

the informant had not suffered serious injuries. After noting that one of the offences

the candidate was charged with was Section 325, the High Court stated “that no

material or evidence whatsoever was presented wherefrom it could be gathered that

the complainant suffered grievous injuries.” It was held that in the light of the

materials before the police, the informant had given an exaggerated account, of the

incident, which the Screening Committee rejected, mechanically.

22. Again, in Prem Singh Chaudhary’s case, this court is of the opinion that the

scrutiny of the materials, by the High Court, was as if it was sitting in appeal over the

decision of the Screening Committee. That body had the benefit of the overall record

12

of the candidate, in the context of considering his or her suitability. Its conclusions

should not have been brushed aside, on the ground that it showed mechanical

application of mind, or that the materials did not show involvement in a grave or

serious offence.

23. Deepa Tomar is the last candidate in the present batch of appeals. She was

accused along with her father in CM No. 198/2003 for an offence punishable under

Sections 120-B/364 IPC. Both were accused of having abducted her husband,

Jitender Singh. After facing trial, both accused were acquitted, by judgment dated

May 04, 2011. The screening committee was of the view that the acquittal was by

granting benefit of doubt, and that the candidate was unfit for appointment as a

Constable (Female) in the Delhi Police because she was accused of having committed

a heinous crime i.e. of abduction and that the victim, her husband (Jitender) was still

untraceable.

24. While quashing the decision of the Screening Committee, the High Court

reasoned that the incident was of 2001; Jitender’s father complained in 2002 and

voiced his suspicion against the candidate and her father. The High Court also

observed:

“meaningfully read, the testimony of Jitender's family members was

suggestive of the fact that Deepa and Jitender were not having a strained

relationship but because of problems in the house of her in-laws Deepa had

to leave for her parental house and stealthily Jitender used to visit Deepa

or so his parents suspected. If this be so it would not stand to any logic or

reason for Deepa and her parents to have contrived to abduct Jitender and

make his disappear. Regretfully, the Screening Committee has gone by the

label of the offence and not the facts on which Deepa and her father were

acquitted. The Screening Committee has also overlooked the fact that in

her complaint lodged under Section 498-A/406 IPC Deepa has made no

accusation against her husband.”

25. In the case of Deepa Tomar, the intensive factual scrutiny which led the

impugned order to conclude that the decision of the screening committee is not

sustainable, is impermissible under Article 226 of the Constitution. It is evident from

the screening committee’s order, that it was aware of the judgment, as well as the

13

materials before the trial court. Significantly, before the candidature was cancelled,

the Deepa was issued with a show cause notice and she duly responded to it. The

committee had the benefit of considering that, as well as her overall record, when it

drew its conclusions. The fact appreciation by the High Court, and the intensive

scrutiny of the evidence, in the opinion of this court to conclude that Deepa could not

have been implicated in the offence, based on inferences drawn under Article 226 of

the Constitution, is an exercise of overreach of judicial review process.

26. Courts exercising judicial review cannot second guess the suitability of a

candidate for any public office or post. Absent evidence of malice or mindlessness (to

the materials), or illegality by the public employer, an intense scrutiny on why a

candidate is excluded as unsuitable renders the courts' decision suspect to the charge

of trespass into executive power of determining suitability of an individual for

appointment. This was emphasized by this court, in M.V. Thimmaiah v. Union Public

Service Commission7

 held as follows:

“21. Now, comes the question with regard to the selection of the candidates.

Normally, the recommendations of the Selection Committee cannot be challenged

except on the ground of mala fides or serious violation of the statutory rules. The

courts cannot sit as an Appellate Authority to examine the recommendations of

the Selection Committee like the court of appeal. This discretion has been given to

the Selection Committee only and courts rarely sit as a court of appeal to examine

the selection of the candidates nor is the business of the court to examine each

candidate and record its opinion...

xxxxxxxxxxxxxxxx

30. We fail to understand how the Tribunal can sit as an Appellate Authority to

call for the personal records and constitute Selection Committee to undertake this

exercise. This power is not given to the Tribunal and it should be clearly

understood that the assessment of the Selection Committee is not subject to

appeal either before the Tribunal or by the courts. One has to give credit to the

Selection Committee for making their assessment and it is not subject to appeal.

Taking the overall view of ACRs of the candidates, one may be held to be very

good and another may be held to be good. If this type of interference is permitted

then it would virtually amount that the Tribunals and the High Courts have

started sitting as Selection Committee or act as an Appellate Authority over the

selection.”

27. In Dalpat Abasaheb Solunke v Dr. B.S. Mahajan8

 this court held that

7

(2008) 2 SCC 119

8

(1990) 1 SCC 305

14

“12. ... it is not the function of the court to hear appeals over the decisions of

the Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided

by the duly constituted Selection Committee which has the expertise on the

subject. The court has no such expertise. ... in the present case the University

had constituted the Committee in due compliance with the relevant statutes.

The Committee consisted of experts and it selected the candidates after going

through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative

merits of the candidates as assessed by the court, the High Court went wrong

and exceeded its jurisdiction.”

28. Again, in Union Public Service Commission v. M. Sathiya Priya9

it was

iterated that

“The question as to how the categories are assessed in light of the relevant

records and as to what norms apply in making the assessment, is exclusively to be

determined by the Selection Committee. Since the jurisdiction to make selection

as per law is vested in the Selection Committee and as the Selection Committee

members have got expertise in the matter, it is not open for the courts generally to

interfere in such matters except in cases where the process of assessment is

vitiated either on the ground of bias, mala fides or arbitrariness. It is not the

function of the court to hear the matters before it treating them as appeals over

the decisions of the Selection Committee and to scrutinise the relative merit of the

candidates. The question as to whether a candidate is fit for a particular post or

not has to be decided by the duly constituted expert body i.e. the Selection

Committee.”

29. Public service - like any other, pre-supposes that the state employer has an

element of latitude or choice on who should enter its service. Norms, based on

principles, govern essential aspects such as qualification, experience, age, number of

attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions

required of each candidate or applicant aspiring to enter public service. Judicial

review, under the Constitution, is permissible to ensure that those norms are fair and

reasonable, and applied fairly, in a non-discriminatory manner. However, suitability is

entirely different; the autonomy or choice of the public employer, is greatest, as long

as the process of decision making is neither illegal, unfair, or lacking in bona fides.

9

(2018) 15 SCC 796

15

30. The High Court’s approach, evident from its observations about the youth and

age of the candidates, appears to hint at the general acceptability of behaviour which

involves petty crime or misdemeanour. The impugned order indicates a broad view,

that such misdemeanour should not be taken seriously, given the age of the youth and

the rural setting. This court is of opinion that such generalizations, leading to

condonation of the offender’s conduct, should not enter the judicial verdict and

should be avoided. Certain types of offences, like molestation of women, or trespass

and beating up, assault, causing hurt or grievous hurt, (with or without use of

weapons), of victims, in rural settings, can also be indicative of caste or

hierarchy-based behaviour. Each case is to be scrutinized by the concerned public

employer, through its designated officials- more so, in the case of recruitment for the

police force, who are under a duty to maintain order, and tackle lawlessness, since

their ability to inspire public confidence is a bulwark to society’s security.

31. For the foregoing reasons, this court hereby sets aside the common impugned

judgment and the orders of the CAT, quashing the orders issued by the appellant,

declining appointment to the respondent candidates. The appeals are accordingly

allowed, without any order on costs.

 ...............................................J

 [K.M. JOSEPH]

...............................................J

 [S. RAVINDRA BHAT]

NEW DELHI.

AUGUST 25, 2021.

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. = 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.

1

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

2

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

3

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.

4

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.

5

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

6

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,

7

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.

8

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.

9

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.

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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.

18

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

19

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

20

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

21

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

22

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

23

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

24

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