RAJENDRA SINGH versus STATE OF U.P. AND ANR.

RAJENDRA SINGH v.

STATE OF U.P, AND ANR.

AUGUST 6, 2007

[G.P. MATHURANDP.K. BALASUBRAMANY AN, JJ.]

Code of Criminal Procedure, 1973-ss. 319, 161and482-Murder by two persons-Allegation of-'-Charge-sheet only against one person -Accused (not charged) called by trial court to face trial in view of eVidence of first informant-Application thereagainst u/s 482-Plea of alibi by the accused placing reliance on the statements u/s 161-High Court quashing the order of trial court-On appeal, held: Jn view of the evidence of the first informant, the accused, even though not chargesheeted was rightly called to face the trial-The statement u/s 161 being wholly inadmissible in evidence could not have been taken into consideration by High Court-A finding on plea of alibi cannot be recorded for the first time in petition uls 482-Criminal Law-Alibi.

s. 319-Jurisdiction under-Scope of-Discussed

Evidence Act, 1872-s. 103-Burden of proof-To prove alibi-Held: It is on the person who takes such plea-The same can be proved by leading evidence at trial and not by filing some affidavits before High Court.

Judgment-Ratio decidendi-The ratio of decision is generally secundum subjectam materiam.

It was alleged by prosecution that respondent-accused alongwith the co-accused caused death of one person. The motive for killing was that the deceased was prime witness in triple murder case against the respondent-accused alongwith others. The accused were threatening him not to give evidence in the triple murder case. When the deceased did not agree, the accused killed him. Charge-sheet was submitted only against the co-accused and not against the respondent-accused. The First informant in his deposition specifically stated about the presence of the respondent-accused and the ro.le played by him. The application u/s 319 Cr.P.C. for summoning the respondent-

\ ) J '

accused was allowed by Sessions Court.

Respondent-accused filed petition u/s 482 Cr.P.C. for quashing the order of Sessions Judge. He took the plea of alibi relying on statements of six witnesses recorded by Investigating Officer u/s 161 Cr.P.C. High Court allowed the petition relying on the statements. Hence the present appeal.

In the meantime, trial of the co-accused concluded, acquitting him. Criminal revision was filed thereagainst by the appellant-first informant.

Respondent-accused inter-alia contended that order of acquittal of co-accused has rendered the judgment calling the respondent-accused to face trial as infructuous.

Allowing the appeal, the Court

HELD: Per G.P. Mathur, J.

1. Sub-section (1) of Section 319 Cr.P.C. says that where in the course of aiJy enquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against . such. person' for the offence which he appears to have committed.

fPara 5) 1841-C-D)

· 2. If the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge sheeted by the investigating agency or may have been discharged at an earlier stage. fPara 5) (842-F)

Municipal Corporation of Delhi v. Ram Kishan Rohtagi, 1983 1 SCC 1; Joginder Singhv. State of Punjab, (1979) 1.SCC 345; Kishun Singh v. State of Bihar, (1993) 2SCC16, relied on.

3. The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C. to record positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in meeting. statement under Section 161 Cr.P.C. is not substantive piece of ·evidence. In view of the proviso to sub-section (1) of Section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof iii the manner laid·down in the said proviso.Therefore, the High Court

[2007] 8 S.C.R.

committed manifest error of law in relying upon wholly inadmissible evidence in recording finding that respondent No. 2 could not have been present at the scene of commission of the crime. (Para 6) (842-G-H; 843-A)

4. The plea taken by respondent No. 2 in his petition under Section 482 Cr.P.C. was that of alibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. Section 103 makes it obvious that the burden of establishing the plea of alibi set up by the respondent No. 2 in the petition file_d by him under Section 482 Cr.P.C. before the High Court lay squarely

upon him. (Para 7) (843-B, CJ

Gurcharan Singh v. State of Punjab, AIR (1956) SC 460; Chandrika Prasad Singh v. State of Bihar, AIR (1972) SC 109 and State of Haryana v. Sher Singh, AIR (1981) SC 1021, relied on.

5. The alibi could be proved by leading evidence in the trial and not by filing some affidavits before the High Court. In such case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that theii- testimony was not correct. As it was pleaded that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of respondent No. 2 which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the Sessions Judge. (Para 7) (843-D-E]

6. The mere fact that trial of co-accused has concluded cannot have the effect of nullifying or making the order passed by the Sessions Judge as infructuous. Sessions Judge trying the case of co-accused seems to have been swayed by the fact that the High Court had not only set aside the order passed by the Sessions Judge under Section 319 Cr.P.C. by which the respondent No. 2 was summoned to face trial but had also recorded finding in his favour that he was present in meeting. Since the order of the High Court is set aside, the aforesaid finding of the learned Sessions Judge would automatically go and cannot stand. (Paras 10 and 11) [845-F-H; 846-A)

Shashikant Singh v. Tarkeshwar Singh, (2002) 5 SCC738, relied on~

7. Having regard to the facts and circumstances of the case and in the

interest of justice, it is desirable that the criminal revision filed by the appellant herein against the acquittal of the co-accused should be heard by the High Court as expeditiously as possible. (Para 12) (846-BJ

Per P.K. Balasubramanyan,J. (Supplementing)

1.1. The words occurring in s. 319 (1) Cr.P.C. are plain and the meaning clear. When in the course of the enquiry or trial, it appears to the court from the evidence that person, not arrayed as an accused, appears to have committed any offence for which that person could be tried together with the accused, the court may proceed against that person. Surely, it must appear to the Court from the evidence that someone not arrayed as an accused, appears to have committed an offence. Be it noted, the Court need not be satisfied that he has committed an offence. It need only appear to it that he has committe~ an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has discretion not to proceed, since the expression used is 'may' and not 'shall'. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its I jurisdiction under this Section. The expression 'appears' indicates ari application of mind by the court to the evidence that has come before it and then taking decision to proceed under Section 319 Cr.P.C. or not.

(Para 2) [846-F-H; 847-A)

1.2. There is no reason to describe the power as an extraordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the section only gives power to the court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. There is no reason to curtail this power of the court to do justice to the victim and to the society. It is left to the judicial discretion of the courl, judicially trained, to decide to proceed or not to proceed against person in terms of Section 319 Cr.P.C. [Para 2) (847-A-CI

Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., ( 1983)

1 S.C.C. 1, distinguished.

1.3. The power under Section 319 of the Code is conferred on the court to ensur~ that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the Criminal Justice System is to maintain social order. It is necessary in that context to ensure that rio

[2007] 8 S.C.R.

one who aP;pears to be guilty escapes proper trial in relation to that guilt. There is also duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred po.wer in the court to proceed against others not arrayed as accused in the circumstances set out by this Section. It is salutary power enabling the discharge of court's obligation to the society to brin~ to book all those guilty of crime.

!Para 611848-D-FJ

1.4. Exercise of power under Section 319 of the Code is left to the court trying the offence based on the evidence that comes before it. The court must be satisfied of the condition precedent for the exercise of power under Section 319 of the Code. There is no reason to assume that court trained in law would not exercise th'! power within the confines ofthe provision and decide whether it may proceed against such person or not. There is no rationale in fettering that power and the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises.

!Para 7) 1848-F-GJ

2. An authority has to be understood in the context of the facts based on which the observations therein are made. The ratio of decision is generally secundum subjectam materiam. tpara 411848-AI

·Punjab Cooperative Bank Ltd, v. Commissioner of Income Tax, Lahore, A.l.R. 1940 P.C. 230, relied on.

Quinn v. Leathern, 1901 A.C. 495, Earl ofHalsbury L.C., referred to.

CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal No. I 019 of

From the Judgment and Order 24.4.2006 of the High Court of Judicature at Allahabad in Criminal Misc. Application No. 6610 of2005.

Manoj Goel, Shuvodeep Roy, Wajeeh shafiq, Gopal Verma and Brij Bhusan for the Appellant.

S.R. Singh, T.N. Singh, V.K. Singh, C.P. Pandey and Javed Mahmud Rao for the Respondent.

The Judgment of the Court was delivered by

G.P. MA THUR, J. l. Leave granted.

2. This appeal, by special leave, has been preferred against the judgment and order dated 24.4.2006 of Allahabad High Court by which the petition filed by the respondent No. 2 Kapil Dev Singh under Section 482 Cr.P.C. was allowed and the order dated 26.5.2005 passed by the learned Sessions Judge, Allahabad under Section 319 Cr.P.C. summoning him to face trial under Section 302 IPC was set aside.

3. In the morning hours between 6.30 a.m. and 7.00 a.m. on 15.12.1995, three persons, viz., the wife, son and brother-in-law of Nigam Singh were murdered. An FIR of the incident was lodged by Nigam Singh at 8.10 a.m. on 15.12.1995 at P.S. George Town, Allahabad. After investigation, charge sheet was submitted and four persons, viz., Kapil Dev Singh (respondent No. 2 herein), Suresh Singh, Sukhpal Singh and Kamlesh Singh were put up for trial. The present incident took place on 16.3 .2002 when the trial of the aforesaid tripple murder case was going on. According to the case of the prosecution, the accused of the tripple murder case were putting pressure on Nigam Singh not to give evidence in the said case. It is alleged that at about 6.00 p.m. on 16.3.2002, the first infonnant Rajendra Singh (appellant herein) and his brother Ajay Singh were returning after getting their field harvested. At that time, · Nigam Singh also arrived there on scooter: The accused in the present case, viz., Kapil Dev ~ingh (respondent No. 2 herein) and Daya Singh stopped him and asked him not to give evidence in the tripple murde~ case. Nigam Singh, however, did not agree to their suggestion not to give evidence and tried to move ahead on his scooter: Kapil Dev Singh then instigated his brother Daya Singh, who fired upon Nigam Singh from country-made pistol. In spite of ·receiving the gun shot injury, Nigam Singh m'anaged to escape from there and informed about the incident to his family members. Meanwhile, the first iitfonnant, Rajendra Singh, and his elder brother Ajay Singh also reached there. However, Nigam Singh succumbed to his injuries shortly thereafter. Thereafter, Rajendra Singh lodged an FIR of the incident at 8.30 p.m. on 16.3.2002 at P.S. Pipri. The poiice after investigation submitted charge-sheet o'nly against Daya Sirigh and not against Kapil Dev Singh. In the trial before the learned ·Sessions Judge, Allahabad, the. statement of the first informant, Rajendra Singh was recorded whe~e he specifically stated about the presence . of Kap ii Dev Sirigh and the role played by .hirri in the incident. The prosecution· then moved an application for summoning Kapil Dev Singh under Section 319 Cr.P.C. The ie·arned Sessions Judge held that Kapil Dev Singh is named in the FIR and the first informant Rajendra Siilgh in his statement had'corroborated ·H

the version given in the FIR and had ·assigned the role of exhortation to him and after taking note of the relevant law-an_ the subject, allowed the application by the order dated 26.5.2005 and directed that Kapil Dev Singh be summoned to face the trial.

4. Kapil Dev Singh then fil;d petition under Section 482 Cr.P.C. for quashing the aforesaid order before the High Court. It appears that in the petition under Section 482 Cr.P.C. the statements of certain witnesses who had been examined by the investigating officer during the course of investigation were annexed which include~ the statement ofS.L. Yadav, Vijay Kumar Singh, Up Nagar Ayukta, Shankar Lal Jaiswal, Mukhya Nagar Adhikari and some other officials of Nagar Nigam, who had stated that respondent No. 2 Kapil Dev Singh was working as Sahayak Nagar Ayukta, Nagar Nigam, Allahabad and between 4.30 p.m. and 5.30 p.m. on 16.3.2002, he was attending meeting in the Nagar Nigam. After referring to the aforesaid statements, the High Court concluded as under :

"The statement of those witnesses do not leave any room for doubt that the applicant was present in the meeting of Nagar Nigam at the time of incident and could not reach the place of occurrence which is 35 Kms. from Allahabad. The applicant is brilliant student and has good academic career and has also been selected in U.P. Public Services Examination. The family of the applicant is well educated family. The father of the applicant was also selected in Provincial Civil Services (Judicial) in Uttar Pradesh in 1983 but because of the animosity prevalent in the village, he was murdered. Now the said animosity is the result of the present case."

The High Court then referred to Municipal Corporation of Delhi v. Ram Kishan Rohtagi, [1983] l sec I, wherein it is observed that power under Section 3 I 9 is really an extraordinary power which should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. On the basis of the aforesaid authority, the High Court posed the question whether compelling ground existed or not and whether there was no option but to summon the accused. Thereafter, the High Court referred to the statements of six persons which had been recorded by the investigating officer, which .;bowed that between 4.30 p.m. and 5.30 p.m. Kapil Dev Singh was present in the meeting and then observed as under :

"No doubt, it might have been probable defence which the court

could not consider at the time of proceeding under Section 319 Cr.P.C. but as the power has to be exercised sparingly, the Court should have examined all the aspects of the case."

Observing as above, the High Court allowed the petition under Section 482 Cr.P.C. and quashed the order dated 26.5.2005 passed by the learned Sessions Judge under Section 319 Cr.P.C. summoning the respondent No. 2 to face the trial.

5. We have heard Shri Manoj Goel, learned counsel for the petitioner, Shri S.R. Singh, learned senior counsel for respondent No. 2 and have perused the record. Sub-section {l) of Section 319 says that where in the course of any enquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. The scope of power under Section 319 Cr.P.C. was explained in Municipal Corporation of Delhi v. Ram Kishan Rohtagi (l 983) l SCC l and it was held as under :"Section 319 is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. If the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence, the court can take cognizance against them and try them along with the other accused. The mere fact that the proceedings have been quashed under Section 482 against some of the accused persons (respondents 2 to 5) will not prevent the court from exercising its discretion if it is fully satisfied that case for taking cognizance against them has been made out on the additional evidence led before it."

In Joginder Singh V. State of Punjab, (1979] l sec 345 it was held as under:

"The summoning of additional persons by the Sessions Court under Section 319 of those who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who have been committed, must be regarded as

incidental to the cognizance under Section 193 and part of the normal process that follows it. Section 3 l 9(4)(b) enacts deeming provision in that behalf dispensing with the formal committal order against the newly added accused.

The phrase "any person not being the accused" in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169."

In Kishun Singh v. State of Bihar, [1993) 2 SCC 16, it was observed:

"11. On plain reading of Sub-section (I) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not. being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some ev.idence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the. commission of the crime for which he can be tried with those already named by the police. Even person who has. earlier been discharged would fall within the sweep of the power conferred by Sedi~n 319 of the Code ......................... "

It is, therefore, clear that if the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge.sheeted by the investigating agency or may have been discharged at an earlier stage.·

6. The High Court has basically relied upon the· statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C .. to record positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in meeting ofNagar Nigam at Allahabad. statement under Section 161 Cr.P.C .. is not substantive piece of evidence. In view of the proviso to sub-section (I) of section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed manifest error of Jaw in relying . . upon wholly inadmissible evidence in recording finding that Kapil Dev

Singh could not have been present at the scene of commission of the crime.

7. That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 Cr.P.C. was that ofalibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. The sec9nd illustration to section I 03 reads as under :

"B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it."

This provision makes it obvious that the burden of establishing the plea of alibi set up by the respondent No. 2 in the petition filed by him under Section 482 Cr.P.C. before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. See Gurcharan Singh v. State of Punjab, AIR (1956) SC 460, Chandrika Prasad Singh v. State of Bihar, AIR (1972) SC 109 and State of Haryana v. Sher Singh, AIR 1981 SC 1021. This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such case the prosecution would .. have got an opportunity to cross-examine those witnesses and demonstrate that their testimony . was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge.

8. Shri S.R. Singh, learned senior counsel for the respondent No. 2, has submitted that though the statements recorded by the investigating officer under Section 161 Cr.P.C. are not substantive piece of evidence, but the High Court while exercising power under Section 482 Cr.P.C. could have looked into attending circumstances, namely, the statements and the affidavits filed by ·some of these persons before the Superintendent of Police, Allahabad. Learned counsel has also submitted that the summoning order itself must exhibit special· circr·mstances warranting such course of action and if no speeial circumstances are demonstrated in the order, the summoning order is per se illegal. Learned counsel has further submitted that the trial of co-accused Daya Singh has concluded and he has been acquitted by the learned Sessions Judge and in such circumstances it will not be so'und exercise of discretion

to set aside the order passed by the High Court and restore that of the learned Sessions Judge.

9. Shri Manoj Goel, learned counsel for the appellant, has, on the other hand, submitted that the name of Kap ii Dev Singh was mentioned in the FIR and specific role was attributed to him. In his statement in Court the first informant Rajendra Singh had corroborated the version given in the FIR and had not only mentioned about the presence of Kapil Dev Singh at the scene of commission of the crime but had assigned specific role to him. He has also submitted that having regard to the background of the case, viz., the earlier tripple murder case in which Nigam Singh was the first informant and the main eye-witness, the accused had strong motive to commit his murder. Learned counsel has thus submitted that the ingredients of Section 319 Cr.P.C. were fully satisfied and the learned Sessions Judge had rightly exercised the power and had summoned the accused. Shri Goel has also submitted that in the present case, the learned Sessions Judge while acquitting the co-accused Daya Singh in the trial which concluded much later has referred to the impugned order of the High Court dated 24.4.2006 at several places in t~ judgment and has observed that fifty per cent of the prosecution case has already been disbelieved by the High Court. Learned counsel has also made statement that the first informant Rajendra Singh has filed Criminal Revision No.1828 of2007 (Rajendra Singh v. Daya Singh) challenging the acquittal of Daya Singh which has been admitted by the High Court on l l.7.2007 and is pending for hearing.

l 0. Having considered the submissions made by learned counsel for the partfes, we are of the opinion that the statements of the witnesses under Seftion 161 Cr.P.C. being wholly inadmissible in evidence could not at all be ta~p into consideration. The High Court relied upon wholly inadmissible evR!ence to set aside the order passed by the learned Sessions Judge. That ap~rt, no finding on plea of alibi can be recorded by the High Court for the first time in petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section on 161 Cr.P.C. The whole procedure 1adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal 'of co-accused Daya Singh has also n~ merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh

purported to have been recorded under Section on 161 Cr.P.C. The whole procedure 1

[20021 5 sec 738. and it was held as under in para 9 of the report :

"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1 ), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused ,_.,. .o was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."

Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26.5.2005 as infructuous.

11. The learned Sessions Judge trying the case of co-accused Daya Singh seems to have been swayed by the fact that the High Court had not (,11ly set aside the order passed by the learned Sessions Judge unc;~r Section 319 Cr.P.C. by which the respondent No. 2 Kapil Dev Singh was summoned to face trial but had also recorded finding in his favour that he was present in meeting in Nagar Nigam, Allahabad. Since we are setting aside the order of the High Court, the aforesaid finding of the learned Sessions Judge would

automatically go and cannot stand.

12. Having regard to the facts and circumstances of the case and .in the interest of justice, we consider it desirable that the criminal revision filed by Rajendra Singh against the acquittal of Daya Singh should be heard by the High Court as expeditiously as possible. We accordingly request the High Court fo decide Criminal Revision No.1828 of 2007 (Rajendra Singh v. Daya Singh) expeditiously preferably within period of four months of presentation of certified copy of this order before the High Court.

13. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order dated 24.4.2006 of the i-ligh Court is set aside and the order dated 26.5.2005 passed by the learned Sessions Judge, Allahabad, summoning respondent No. 2 Kapil Dev Singh to face trial is restored.

P.K. BALASUBRAMANY AN, J. 1. I very respectfully agree with the reasoning and conclusion of my learned Brother. But, I would like to add few words on Section 319 of the Code of Criminal Procedure with view at least to kindle thought.

2. Section 319 (1), which is relevant for our purpose reads:

"319. Power to proceed against o.ther persons appearing to be guilty of offence- ( 1) Where, in the course of any inquiry into, or trial of, an · offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court rriay proceed against such person for the offence which he appears to have committed."

As I see it, the words are plain and the meaning clear. When in the course of the enquiry or trial, it appears to the court from the evidence that person, not arrayed as an accused, appears to have committed any offence for wltich that person could be tried together with the accused, the court may proceed against that person. Surely, it must appear to the Court from the evidence that someone not arrayed as an accused, appears to have committed an offence. Be it noted, the Court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In .other words, from the evidence it neeu only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has discretion not to proceed, since the expression used is 'may' and not 'shall'. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The

· expression 'appears' indicates an application of mind by the court to the evidence that has come before it and then taking decision to proceed under Section 319 of the Code or not. With great respect, I see no reason to describe the power as an extraordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the section only gives power to the court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. I see no reason to curtail this power of the court to do justice to the victim and to the society. It appears to me that it is left to the judicial discretion of the court, judicially trained, to decide to proceed or not to proceed against person in terms of Section 3 19 of the Code.

3. The decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., [1983] 1 S.C.C. I which described the power as an extraordinary power to be exercised very sparingly and only if compelling reasons exist proceeded on its own peculiar facts. The broad statement contained in that decision cannot be understood out of context. That was case where the very same proceeding against certain persons initially arrayed as accused, had been quashed. But, thereafter from the evidence, it appeared to the court that some of them have to be tried as accused in exercise of power under Section 319 of the Code. This Court in that context after referring to Joginder Singh v. State of Punjab, [1979] 2 S.C.R. 306 held that ifthe prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them and try them along with the other accused. This Court thus upheld the power of the court to invoke Section 319 of the Code even in. such case. Their Lordships then added:

"But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken."

With respect, I understand this sentence as relating to exercise of the power under Section 319 of the Code in case where the prosecution against the person sought to be arraigned, had earlier been qua~ned by the court, but still he is to be roped in, in exercise of power under Section 319 of the Code.

4. These observations have unfortunately led to some decisions using these expressions, even in cases where there has not been prior quashing

(2007] 8 S.CR.

of the charge and proceeding is taken in terms of Section 319 of the Code. With respect, it appears to me that there is no warrant for such narrowing down of the power of the court .. After all, an authority has to be understood in the context of the facts based on which the observations therein are made. The ratio of decision is generally secundum subjectam materiam.

5. In Quinn v. Leathem, (190 I) A.C. 495, Earl of Halsbury L.C. stated:

" ........................................................... ,that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that case is only an authority for what it actually decides."

The above dictum, as regards the first proposition, was quoted and adopted by the Privy Council in Punjab Cooperative Bank Ltd. v. Commissioner of

Income Tax, Lahore, A.LR. (1940) P.C. 230

6. The power under Section 3 19 of the Code is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the Criminal Justice System is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes proper trial in relation to that guilt. There is also duty to render justice to the victim of the offence. It is in recognition ofthis that the Code has specifically conferred power in the court to proceed against others not arrayed as accused in the circumstances set out by this Section. It is salutary power enabling the discharge of court's obligation to the society to bring to book all those guilty of crime.

7. Exercise of power under Section 319 of the Code, in my view, is left to the court trying the offence based on the evidence that comes before it. The court must be satisfied of the condition precedent for the exercise of power under Section 319 of the Code. There is no reason to assume that court trained in law would not exercise the power within the confines of the provision and. decide whether it may proceed against such person or not. There is no rationale in fettering that power. and the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises. · ·:-