RAJESH & ORS. versus STATE OF HARYANA

[2019] 8 S.C.R. 187

RAJESH & ORS.

STATE OF HARYANA

(Criminal Appeal No. 813 of 2019)

MAY 01, 2019

[L. NAGESWARA RAO AND M.R. SHAH, JJ.]

Code of Criminal Procedure, 1973: s.319 – Scope and ambitof power of Magistrate under s.319 – Prosecution case was that onthe fateful day, the accused persons, ten in number, arrived at theplace where the complainant (PW-1), his son (PW-2) and victim-deceased were present – Accused persons were armed with swords,pistols, hockeys, iron bars and gandasi etc. and they attacked PW-2 and the victim-deceased and inflicted injuries with their respectiveweapons – When PW-1 raised alarm, accused persons fled awayfrom place of occurrence – The injured were rushed to hospitalwhere the deceased succumbed to injuries – Investigating officersubmitted report against four accused only – According to him, theappellants were not present at the place of occurrence – ThereafterInvestigating Agency conducted further investigation wherein alsoit found that the appellants were not present at the place ofoccurrence rather they were found on different places – Magistratedirected release of the appellants – Trial proceeded against otheraccused – Application filed by PW-1 under s.319 to summon theappellants categorically stating that the appellants were present atthe time of the incident – Trial court summoned the appellant toface trial for the offences under ss.148, 149, 323, 325, 302, 307and 506 of IPC – Revision petition challenging the order of trialcourt dismissed by High Court – On appeal, held: PW-1-firstinformant had specifically named ten persons as accused, includingthe appellants in the FIR – However, they were not shown as accusedin the challan/charge-sheet – There was nothing on record to showthat PW-1 was given an opportunity to submit the protest applicationagainst non-filing of the charge-sheet against the appellants – Inthe deposition before the Court, P.W.1 and P.W.2 specifically statedagainst the appellants and the specific role was attributed to them –Thus, the statements of P.W.1 and P.W.2 before the Court could be

Asaid to be “evidence” during the trial and, therefore, on the basisof the same the persons against whom no charge-sheet was filedcould be summoned to face the trial – Therefore, no error wascommitted by the Courts below to summon the appellants to face thetrial in exercise of power under s.319.BCode of Criminal Procedure, 1973: s.319 – Investigating

BCode of Criminal Procedure, 1973: s.319 – InvestigatingAgency conducted investigation wherein it found that the appellantswere not present at the place of occurrence – As the appellantswere in custody, SHO filed applications before the Magistrate on1.9.2016 and 28.10.2016 submitting that after investigation sinceno evidence was found against the appellants, therefore, they mayCbe discharged/released – Magistrate directed release of theappellants – Application filed by complainant under s.319 tosummon the appellants categorically stating that the appellants werepresent at the time of the incident – Trial court summoned theappellants to face trial – Submission that once the appellants wereDdischarged by the Magistrate on an application submitted by theInvestigating Officer/SHO, therefore, thereafter it was not open tothe Magistrate to summon the accused to face the trial in exerciseof power under s.319 – Held: The submission is not tenable – Ordersdated 01.09.2016 and 28.10.2016 cannot be said to be the ordersdischarging the accused – If the applications submitted by theEInvestigating Officer/SHO and the orders passed thereon areconsidered, those were the applications to discharge/release theappellants from custody as at that stage the appellants were injudicial custody – Therefore, as such, those orders cannot be saidto be the orders of discharge in stricto sensu – Those were the ordersFdischarging the appellants from custody – Under the circumstances,the submission on behalf of the accused that as they were dischargedby the Magistrate and therefore it was not open to the Magistrate toexercise the power under s.319 of the CrPC and to summon theappellants to face the trial, cannot be accepted.

GCode of Criminal Procedure, 1973: Closure report –Procedure to be followed before accepting closure report – Held:Before accepting the closure report, the Magistrate is bound to issuenotice to the complainant/original informant and the complainant/original informant is required to be given an opportunity to submit

the protest application and, thereafter, after giving an opportunityto the complainant/original informant, the Magistrate may eitheraccept the closure report or may not accept the closure report anddirect to proceed further against those persons for whom the closurereport was submitted.

Dismissing the appeal, the Court

HELD: 1. During the trial, the depositions of P.W.1 andP.W.2 were recorded. In the deposition, they specifically statedthe overacts by the appellants and the role played by them andcategorically stated that at the time of the incident/commissionof the offence, the appellants were also present and theyparticipated in the commission of the offence. That, thereafter,on the application submitted by the original complainant submittedunder Section 319 of the CrPC, the Magistrate found primafacie case against the appellants and summoned the appellantsto face the trial along with other co-accused. The said order wasconfirmed by the High Court. [Para 6.1] [197-D-F]

2. Before accepting the closure report, the Magistrate isbound to issue notice to the complainant and give an opportunityto submit the protest application. Even in case where the stageof giving opportunity to the complainant to file protest petitionurging upon the trial Court to summon other persons as wellwho were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerlessby virtue of Section 319 of the CrPC and even those personsnamed in the FIR but not implicated in the charge-sheet can besummoned to face the trial provided during the trial someevidence surfaces against the proposed accused. Nothing is onrecord whether at any point of time the complainant was given anopportunity to submit the protest application against non-filingof the charge-sheet against the appellants. In the depositionbefore the Court, P.W.1 and P.W.2 specifically stated against theappellants and the specific role is attributed to the accused-appellants. Thus, the statement of P.W.1 and P.W.2 before theCourt can be said to be “evidence” during the trial and, therefore,on the basis of the same the persons against whom no charge-

Asheet is filed can be summoned to face the trial. Therefore, noerror was committed by the Courts below to summon theappellants to face the trial in exercise of power under Section319 of the CrPC. The orders dated 01.09.2016 and 28.10.2016cannot be said to be the orders discharging the accused. If theapplications submitted by the Investigating Officer/SHO and theBorders passed thereon are considered, those were the applicationsto discharge/release the appellants from custody asat that stage the appellants were in judicial custody.[Paras 6.1, 7.10, 8, 9] [197-B; 209-E-F; 210-A-C, E-F]

Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :C[2014] 2 SCR 1 – followed.

S. Mohammed Ispahani v. Yogendra Chandak (2017)16 SCC 226;Bhagwant Singh v. Commissioner of Police(1985) 2 SCC 537 : [2017] 3 SCR 374 – relied on.

DBijendra Singh v. State of Rajasthan(2017) 7 SCC 706– referred to.

FCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 813 of 2019

From the Judgment and Order dated 19.12.2018 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Revision No. 521 of2018

R. Basant, Sr. Adv., Mrs. Rani Chhabra, Mrs. Neelam Kalsi, Advs.for the Appellants.

Amit Kumar, AAG, Vishwa Pal Singh, Adv. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 19.12.2018 passed by the High Court of Punjab &Haryana at Chandigarh in Criminal Revision – CRR No. 521 of 2018 bywhich the High Court has dismissed the said revision petition preferredby the appellants herein and has confirmed the order dated 28.10.2017passed by the learned Trial Court, by which the appellants herein weresummoned to face the trial for the offences under Sections 148, 149,323, 324, 325, 302, 307 and 506 of the IPC, the appellants herein havepreferred the present appeal.

3. The facts leading to the present appeal in nutshell are as under:

That one Hukum Singh lodged one FIR No. 180 on 12.06.2016 atPolice Station Sadar, Panipat against ten accused, including the appellantsherein for the offences under Sections 148, 149, 323, 324, 325, 302, 307and 506 of the IPC. It was alleged that on 12.06.2016 at about 1.30 pm,he along with his son Bhajji and Hari son of Parkash were going fromPanipat to his village Chhajpur Khurd on his tractor. His son had parkedhis motorcycle in front of the shop of Nande at bus stand. Therefore,his son Bhajji and Hari son of Parkash alighted from the tractor to pickup the motorcycle. When his son picked up the motorcycle, in themeantime, Sunil son of Jagpal came on Splendor motorcycle. Ravit sonof Ramesh and Vicky son of Jaswant were sitting on pillion behind himon motorcycle. Sheela son of Paras was on his motorcycle Pulsar andSumit son of Jagdish, Rinku son of Rai Singh were sitting behind him onhis motorcycle. Sunder son of Om Singh was on motorcycle Bullet andRajesh son of Prem and Sanjay son of Bishni were sitting behind him onthe said motorcycle. Ankush son of Rajinder was on his motorcyclemake Splendor and Jagdish son of Devi Singh and Tejpal son of NarSingh were sitting behind him. Joni son of Sahab Singh was on hismotorcycle Bullet and Sachinson of Khilla was sitting behind him. Theywere armed with swards, pistols, hockeys, iron bars and gandasi etc.They attacked his son Bhajji and Hari son of Parkash. Ravit son ofRamesh was armed with hockey, Vicky son of Jaswant was armedwith wooden baton, Sheela son of Paras was armed with gandasi. Sumitson of Jagdish was armed with pistol, Rinky son of Rai Singh was armed

Awith iron bar, Sunder son of Om Singh was armed with wooden baton,Rajesh son of Prem was armed with sword, Jagdish son of Devi Singhwas armed with lathi, Tejpal son of Nar Singh was armed with iron bar,Joni son of Sahab Singh was armed with wooden handle of spade, Sachinson of Ruhla Ram was armed with sword and Joginder son of Sahi Ramwas having gandasi with him. Rajesh son of Prem exhorted to kill bothBof them because they were pressing hard for their ejectment frompanchayat land. Pursuant to exhortation, accused inflicted injuries to hisson and Hari son of Parkash with their respective weapons. When heraised alarm, accused sped away on their motorcycles threatening to killthem in case any action is taken against them. In the meantime, hisCbrother Mahender came there and they removed both the injured toPrem Hospital where Hari son of Parkash succumbed to his injuries on14.06.2016 during treatment.3.1 That all the accused named in the FIR were arrested. TheInvestigating Officer conducted the investigation and found ten personsDinvolved in the said incident. However, the Investigating Officer foundthat the appellants herein (six in numbers) were not present at the site ofincident. That the Investigating Officer submitted his report underSection 173(2) of the CrPC against four accused only. That, thereafterthe Investigating Agency conducted further investigation by JagdeepSingh HPS, DSP, Panipat. It appears that report under Section 173(8)Eof the CrPC was also submitted. According to the Investigating Officer,on the date of the commission of the offence the appellants herein werenot present at the place of occurrence, rather they were found on differentplaces which have been found by the Investigating Agency also. It

appears that thereafter, as the appellants herein were in custody, theFSHO, Police Station Sadar filed the applications before the JudicialMagistrate, First Class, Panipat on 01.09.2016 and 28.10.2016 submittingthat after investigation no challan is filed against the appellants hereinand no evidence is found against them and, therefore, they may bedischarged/released. That the learned Magistrate directed to releasethe appellants. That, thereafter the trial proceeded further against theGremaining accused against whom the challan/charge-sheet was filed.The prosecution examined two witnesses – P.W.1, the original informantand P.W.2, Bhajji, the injured eye witness. Both of them corroboratedthe case of the prosecution and categorically stated that the appellants

herein were also present at the time of incident. Both of them werecross-examined by the defence. That, thereafter the original informantP.W.1 submitted the application before the learned Magistrate underSection 319 of the CrPC to summon the appellants herein to face thetrial for the offences under Sections 148, 149, 323, 324, 325, 302, 307and 506 of the IPC. It was the case on behalf of the original informantthat P.W.1 and P.W.2 who were examined during the course of the trial,in their depositions both of them have corroborated the case of theprosecution and the statements which they had made before the policehave also been found corroborated and their statements before the Courtare part of the application filed and, therefore the appellants herein whowere named in the FIR are to be summoned to face the trial. That, by adetailed judgment and order, the learned Magistrate in exercise of powersunder Section 319 of the CrPC has directed to issue summons againstthe appellants herein to face the trial along with the other co-accusedfor the offences under Sections 148, 149, 323, 324, 325, 302, 307 and506 of the IPC

3.2 The order passed by the learned Magistrate has been confirmedin revision by the High Court by the impugned judgment and order. Hencethe present appeal by the appellants herein who are issued the summonsto face the trial in exercise of powers under Section 319 of the CrPC.

4. Shri R. Basant, learned Senior Advocate has appeared on behalfof the appellants herein.

4.1 Shri Basant, learned Senior Advocate appearing on behalf ofthe appellants has vehemently submitted that, in the facts andcircumstances of the case, the learned Magistrate has erred in summoningthe appellants herein to face the trial in exercise of powers under Section319 of the CrPC.

4.2 It is vehemently submitted by Shri Basant, learned SeniorAdvocate appearing on behalf of the appellants that both, the High Courtas well as the learned Trial Court have not properly appreciated thescope and ambit of the powers to be exercised under Section 319 of theCrPC. Relying upon the decision of this Court in the case of HardeepSingh v. State of Punjab (2014) 3 SCC 92, it is submitted by the learnedSenior Advocate appearing on behalf of the appellants that, as observedand held by this Court, the power under Section 319 of the CrPC is

Adiscretionary and an extraordinary power and it is to be exercisedsparingly and only in those cases where the circumstances of the caseso warrant.

4.3 It is submitted by the learned Senior Advocate appearing onbehalf of the appellants that the learned Magistrate has mechanicallyBpassed the order despite the fact that there was no strong and cogentevidence on record even at the time of the trial.

4.4 It is further submitted by the learned Senior Advocate appearingon behalf of the appellants that, in the present case, as such, theinvestigating agency thoroughly investigated the case when all theCappellants were in judicial custody and after taking into account all thefacts and evidence, came to the conclusion that all the appellants wereinnocent as they were not present at the place of incident and thereaftersubmitted the report under Section 173(2) of the CrPC and filed thechallan only against four accused persons and did not file the challanagainst the appellants herein. It is submitted that not only that, evenDthereafter also, further investigation was carried out by the DCP whosubmitted the report under Section 173(8) of the CrPC and in that reportalso all the appellants were found innocent. It is submitted that, therefore,the SHO, Police Station Sadar submitted the applications praying fordischarge of the appellants specifically stating that the appellants areEinnocent and the learned Magistrate allowed the said dischargeapplications, though opposed by the complainant. It is submitted that,therefore, once the learned Magistrate discharged the appellants on theapplications submitted by the SHO, Police Station,Sadar, thereafter solelyon the basis of depositions of P.W.1 and P.W.2 which was nothing butreiteration of what they stated in their statements before the police, theFlearned Magistrate was not justified in summoning the appellants hereinto face the trial in exercise of powers under Section 319 of the CrPC.

4.5 Relying upon the decision of this Court in the case of BijendraSingh v. State of Rajasthan (2017) 7 SCC 706, it is vehemently submittedby Shri Basant, learned Senior Advocate appearing on behalf of theGappellants that, as observed by this Court, merely on the basis of thedeposition of the complainant and some other persons, with no othermaterial to support their so-called verbal/ocular version, no person canbe arrayed as an accused in exercise of powers under Section 319 ofthe CrPC. It is submitted by the learned Senior Advocate appearing on

behalf of the appellants that, as observed by this Court in the aforesaiddecision, such an “evidence” recorded during the trial is nothing morethan the statements which was already there under Section 161 of theCrPC recorded at the time of investigation of the case. Relying uponthe aforesaid decision, it is vehemently submitted by the learned SeniorAdvocate appearing on behalf of the appellants that, in any case, thelearned Magistrate was bound to look into the evidence collected by theinvestigating officer during investigation which suggested that the accusedwere not present at the time of commission of the offence. It is submittedthat, in the present case, the learned Magistrate on the applicationssubmitted by the SHO in fact discharged the accused-appellants hereinand allowed the applications submitted by the SHO in which it wascategorically stated that the appellants are innocent and that they werenot present at the time of the incident. It is submitted that therefore theHigh Court has erred in dismissing the revision petition and confirmingthe order passed by the learned Magistrate in summoning the accused-appellants herein to face the trial for the offences under Sections 148,149, 323, 324, 325, 302, 307 and 506 of the IPC, which was passed inexercise of powers under Section 319 of the CrPC.5. Learned counsel appearing on behalf of the respondent-Stateof Haryana has supported the order passed by the learned Magistrateas well as the impugned judgment and order passed by the High Court.He has also relied upon some of the observations made by this Court inthe case of Hardeep Singh (supra) and even some of the observationsmade by this Court in the case of Bijendra Singh (supra).

5.1 It is vehemently submitted by the learned counsel appearingon behalf of the State that it is not correct to state that the appellantsherein were discharged by the learned Magistrate on the applicationsfiled by the SHO, It is submitted that the SHO submitted the applicationsto discharge the appellants from the custody and to release them as theywere in jail and those applications came to be allowed. It is submittedthat therefore the orders dated 01.09.2016 and 28.10.2016 cannot besaid to be the orders of discharge in strictosensu, as sought to becontended on behalf of the appellants.

5.2 It is submitted that, in the present case, even at the initialstage when the investigating officer submitted the report under Section173(2) of the CrPC and the challan was filed only against four accused

Apersons, out of ten accused persons named in the FIR and the remainingsix accused (appellants herein) were dropped, nothing is on record thatthe learned Magistrate accepted the report/closure report against theappellants and, that too, by following the procedure as required as perthe decision of this Court in the case of Bhagwant Singh v.Commissioner of Police (1985) 2 SCC 537. It is submitted that, as perBsettled law, before even accepting the closure report, an opportunity isrequired to be given to the informant to submit the objections/protest andonly thereafter the closure report can be accepted. It is submitted that,in the present case, no such procedure was followed. It is submittedthat thereafter when in the examination-in-chief/cross-examination, P.W.1Cand P.W.2, who are the informant and the injured eye witness respectively,categorically deposed that the appellants were also present at the timeof the incident and they actively participated in commission of offenceand, therefore, in the facts and circumstances of the case, the learnedMagistrate was justified in issuing the summons against the appellants to

face the trial along with the other co-accused. It is submitted that,Dtherefore, the order passed by the learned Trial Court is rightly confirmedby the High Court by the impugned judgment and order.

5.3 Making the above submissions, it is prayed to dismiss thepresent appeal.

E6. Heard learned counsel appearing on behalf of the respectiveparties at length. We have also perused and considered the orderspassed by the High Court as well as the learned Trial Court in depth.

6.1 At the outset, it is required to be noted that, in the presentcase, what is under challenge is the impugned order passed by the HighFCourt dismissing the revision application and confirming the order passedby the learned Trial Court summoning the accused in exercise of powersunder Section 319 of the CrPC and to face the trial for the offencesunder Sections 148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. Itis required to be noted that, in the present case, the original complainant-first informant specifically named ten persons as accused, including theGappellants herein. However, thereafter after the investigation, theinvestigating officer filed the charge-sheet/challan against four accusedpersons only and no challan/charge-sheet was filed against the appellantsherein. Nothing is on record whether at that time any specific closurereport was submitted by the investigating officer or not. Nothing is onrecord whether at that stage an opportunity was given to the complainant/original informant to submit any protest application or not. Assumingthat non-filing of the charge-sheet/challan against the remaining accusednamed in the FIR can be said to be closure report, in that case also, asper the settled proposition of law and more particularly, the decision ofthis Court in the case of Bhagwant Singh (supra), before accepting theclosure report, the Magistrate is bound to issue notice to the complainant/original informant and the complainant/original informant is required tobe given an opportunity to submit the protest application and, thereafter,after giving an opportunity to the complainant/original informant, theMagistrate may either accept the closure report or may not accept theclosure report and direct to proceed further against those persons forwhom the closure report was submitted. In the present case, nothing ison record that such procedure was followed by the learned Magistrate.That, thereafter the trial proceeded against the four accused personsagainst whom the charge-sheet/challan was filed. During the trial, thedepositions of P.W.1 and P.W.2 were recorded. Both of them wereeven cross-examined. In the deposition, P.W.1 and P.W.2 specificallystated the overacts by the appellants herein and the role played by themand categorically stated that at the time of the incident/commission ofthe offence, the appellants herein were also present and they participatedin the commission of the offence. That, thereafter, on the applicationsubmitted by the original complainant submitted under Section 319 ofthe CrPC, the learned Magistrate found prima facie case against theappellants herein and summoned the appellants herein to face the trialalong with other co-accused. The said order has been confirmed by theHigh Court. Therefore, the short question posed for the considerationof this Court is whether, in the facts and circumstances of the case, theTrial Court was justified in summoning the appellants herein to face thetrial in exercise of powers under Section 319 of the CrPC?

7. While considering the aforesaid question/issue, few decisionsof this Court are required to be referred to and considered.

7.1 The first decision which is required to be considered is adecision of the Constitution Bench of this Court in the case of HardeepSingh (supra) which has been consistently followed by this Court insubsequent decisions.

7.2 In the case of Hardeep Singh (supra), this Court had theoccasion to consider in detail the scope and ambit of the powers of theMagistrate under Section 319 of the CrPC; the object and purpose ofSection 319 of the CrPC etc. In the said case, the following five questionsfell for consideration before this Court:

“(i) What is the stage at which power under Section 319CrPC can be exercised?

(ii) Whether the word “evidence” used in Section 319(1)CrPC could only mean evidence tested by cross-examination orthe court can exercise the power under the said provision even onthe basis of the statement made in the examination-in-chief of thewitness concerned?

(iii) Whether the word “evidence” used in Section 319(1)CrPC has been used in comprehensive sense and includes theevidence collected during investigation or the word “evidence” islimited to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invokethe power under Section 319 CrPC to arraign an accused? Whetherthe power under Section 319(1) CrPC can be exercised only ifthe court is satisfied that the accused summoned will in all likelihoodbe convicted?

(v) Does the power under Section 319 CrPC extend topersons not named in the FIR or named in the FIR but not chargedor who have been discharged?”

7.3 While considering the aforesaid questions, this Court observedFand held as under:

“12. Section 319 CrPC springs out of the doctrine judexdamnatur cum nocensabsolvitur (Judge is condemned whenguilty is acquitted) and this doctrine must be used as beaconlight while explaining the ambit and the spirit underlying theenactment of Section 319 CrPC.

13. It is the duty of the court to do justice by punishing thereal culprit. Where the investigating agency for any reason doesnot array one of the real culprits as an accused, the court is notpowerless in calling the said accused to face trial. The question

remains under what circumstances and at what stage should thecourt exercise its power as contemplated in Section 319 CrPC?

14. The submissions that were raised before us covered avery wide canvas and the learned counsel have taken us throughvarious provisions of CrPC and the judgments that have beenrelied on for the said purpose. The controversy centres aroundthe stage at which such powers can be invoked by the court andthe material on the basis whereof such powers can be exercised.

17. Section 319 CrPC allows the court to proceed againstany person who is not an accused in case before it. Thus, theperson against whom summons are issued in exercise of suchpowers, has to necessarily not be an accused already facing trial.He can either be person named in Column 2 of the charge-sheet filed under Section 173 CrPC or person whose name hasbeen disclosed in any material before the court that is to beconsidered for the purpose of trying the offence, but notinvestigated. He has to be person whose complicity may beindicated and connected with the commission of the offence.

18. The legislature cannot be presumed to have imagined allthe circumstances and, therefore, it is the duty of the court to givefull effect to the words used by the legislature so as to encompassany situation which the court may have to tackle while proceedingto try an offence and not allow person who deserves to be triedto go scot-free by being not arraigned in the trial in spite of thepossibility of his complicity which can be gathered from thedocuments presented by the prosecution.

19. The court is the sole repository of justice and duty iscast upon it to uphold the rule of law and, therefore, it will beinappropriate to deny the existence of such powers with the courtsin our criminal justice system where it is not uncommon that thereal accused, at times, get away by manipulating the investigatingand/or the prosecuting agency. The desire to avoid trial is so strongthat an accused makes efforts at times to get himself absolvedeven at the stage of investigation or inquiry even though he maybe connected with the commission of the offence.

22. In our opinion, Section 319 CrPC is an enabling provisionempowering the court to take appropriate steps for proceeding

against any person not being an accused for also having committedthe offence under trial......

47. Since after the filing of the charge-sheet, the courtreaches the stage of inquiry and as soon as the court frames thecharges, the trial commences, and therefore, the power underSection 319(1) CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, exceptduring the stage of Sections 207/208 CrPC, committal, etc. whichis only pre-trial stage, intended to put the process into motion.This stage cannot be said to be judicial step in the true sense forit only requires an application of mind rather than judicialapplication of mind. At this pre-trial stage, the Magistrate is requiredto perform acts in the nature of administrative work rather thanjudicial such as ensuring compliance with Sections 207 and 208CrPC, and committing the matter if it is exclusively triable by theSessions Court. Therefore, it would be legitimate for us to concludethat the Magistrate at the stage of Sections 207 to 209 CrPC isforbidden, by express provision of Section 319 CrPC, to apply hismind to the merits of the case and determine as to whether anyaccused needs to be added or subtracted to face trial before theCourt of Session.

53. It is thus aptly clear that until and unless the case reachesthe stage of inquiry or trial by the court, the power under Section319 CrPC cannot be exercised. ............

54. In our opinion, the stage of inquiry does not contemplateany evidence in its strict legal sense, nor could the legislaturehave contemplated this inasmuch as the stage for evidence hasnot yet arrived. The only material that the court has before it isthe material collected by the prosecution and the court at thisstage prima facie can apply its mind to find out as to whether aperson, who can be an accused, has been erroneously omittedfrom being arraigned or has been deliberately excluded by theprosecuting agencies. This is all the more necessary in order toensure that the investigating and the prosecuting agencies haveacted fairly in bringing before the court those persons who deserveto be tried and to prevent any person from being deliberatelyshielded when they ought to have been tried. This is necessary to

usher faith in the judicial system whereby the court should beempowered to exercise such powers even at the stage of inquiryand it is for this reason that the legislature has consciously usedseparate terms, namely, inquiry or trial in Section 319 CrPC.

55. Accordingly, we hold that the court can exercise thepower under Section 319 CrPC only after the trial proceeds andcommences with the recording of the evidence and also inexceptional circumstances as explained hereinabove.

56. ........ What is essential for the purpose of the sectionis that there should appear some evidence against person notproceeded against and the stage of the proceedings is irrelevant.Where the complainant is circumspect in proceeding againstseveral persons, but the court is of the opinion that there appearsto be some evidence pointing to the complicity of some otherpersons as well, Section 319 CrPC acts as an empowering provisionenabling the court/Magistrate to initiate proceedings against suchother persons. The purpose of Section 319 CrPC is to do completejustice and to ensure that persons who ought to have been tried aswell are also tried. Therefore, there does not appear to be anydifficulty in invoking powers of Section 319 CrPC at the stage oftrial in complaint case when the evidence of the complainant aswell as his witnesses are being recorded.”7.4 While answering question No. (iii), namely whether the word“evidence” used in Section 319(1) of the CrPC has been used ina comprehensive sense and includes the evidence collected duringinvestigation or the word “evidence” is limited to the evidencerecorded during trial, this Court, in the aforesaid decision hasobserved and held as under:

“58. To answer the questions and to resolve the impedimentthat is being faced by the trial courts in exercising of powersunder Section 319 CrPC, the issue has to be investigated byexamining the circumstances which give rise to situation for thecourt to invoke such powers. The circumstances that lead to suchinference being drawn up by the court for summoning personarise out of the availability of the facts and material that come upbefore the court and are made the basis for summoning such

person as an accomplice to the offence alleged to have beencommitted. The material should disclose the complicity of theperson in the commission of the offence which has to be thematerial that appears from the evidence during the course of anyinquiry into or trial of offence. The words as used in Section 319CrPCindicate that the material has to be “where … it appearsfrom the evidence” before the court.

59. Before we answer this issue, let us examine the meaning ofthe word “evidence”. According to Section 3 of the EvidenceAct, “evidence” means and includes:

“(1) all statements which the court permits or requires to bemade before it by witnesses, in relation to matters of fact underinquiry;

such statements are called oral evidence;

(2) all documents including electronic records produced forthe inspection of the court;

such documents are called documentary evidence.”

78. It is, therefore, clear that the word “evidence” in Section319 CrPC means only such evidence as is made before the court,in relation to statements, and as produced before the court, inrelation to documents. It is only such evidence that can be takeninto account by the Magistrate or the court to decide whether thepower under Section 319 CrPC is to be exercised and not on thebasis of material collected during the investigation.

82. This pre-trial stage is stage where no adjudication onthe evidence of the offences involved takes place and therefore,after the material along with the charge-sheet has been broughtbefore the court, the same can be inquired into in order toeffectively proceed with framing of charges. After the chargesare framed, the prosecution is asked to lead evidence and till thatis done, there is no evidence available in the strict legal sense ofSection 3 of the Evidence Act. The actual trial of the offence bybringing the accused before the court has still not begun. What isavailable is the material that has been submitted before the courtalong with the charge-sheet. In such situation, the court only has

the preparatory material that has been placed before the court forits consideration in order to proceed with the trial by framing ofcharges.

83. It is, therefore, not any material that can be utilised, ratherit is that material after cognizance is taken by court, that isavailable to it while making an inquiry into or trying an offence,that the court can utilise or take into consideration for supportingreasons to summon any person on the basis of evidence adducedbefore the court, who may be on the basis of such material, treatedto be an accomplice in the commission of the offence. Theinference that can be drawn is that material which is not exactlyevidence recorded before the court, but is material collected bythe court, can be utilised to corroborate evidence already recordedfor the purpose of summoning any other person, other than theaccused. ........84. The word “evidence” therefore has to be understood inits 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 toproceed against any person after summoning him on the basis ofany such material as brought forth before it. The duty and obligationof the court becomes more onerous to invoke such powerscautiously on such material after evidence has been led duringtrial.

85. In view of the discussion made and the conclusion drawnhereinabove, the answer to the aforesaid question posed is thatapart from evidence recorded during trial, any material that hasbeen received by the court after cognizance is taken and beforethe trial commences, can be utilised only for corroboration and tosupport the evidence recorded by the court to invoke the powerunder Section 319 CrPC. The “evidence” is thus, limited to theevidence recorded during trial.”

7.5 While answering question No. (ii), namely whether the word“evidence” used in Section 319(1) of the CrPC means as arising inexamination-in-chief or also together with cross-examination, in theaforesaid decision, this Court has observed and held as under:

“86. The second question referred to herein is in relationto the word “evidence” as used under Section 319 CrPC, whichleaves no room for doubt that the evidence as understood underSection 3 of the Evidence Act is the statement of the witnessesthat are recorded during trial and the documentary evidence inaccordance with the Evidence Act, which also includes thedocument and material evidence in the Evidence Act. Suchevidence begins with the statement of the prosecution witnesses,therefore, is evidence which includes the statement duringexamination-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 isto be given an opportunity to cross-examine the witness to testits truthfulness. But that stage would not arise while exercisingthe court’s power under Section 319 CrPC. Once the depositionis recorded, no doubt there being no cross-examination, it wouldbe prima facie material which would enable the SessionsCourt to decide whether powers under Section 319 should beexercised or not.”

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 entireevidence 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] , itwas held that the prerequisite for exercise of power under Section319 CrPC is the satisfaction of the court to proceed against aperson who is not an accused but against whom evidence occurs,for which the court can even wait till the cross-examination isover and that there would be no illegality in doing so. similarview has been taken by two-Judge Bench in Harbhajan Singhv. 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] seemsto have misread the judgment in Mohd. Shafi [Mohd. Shafi v.Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR2007 SC 1899] , as it construed that the said judgment laid downthat for the exercise of power under Section 319 CrPC, the courthas to necessarily wait till the witness is cross-examined and oncomplete appreciation of evidence, come to the conclusion whetherthere is need to proceed under Section 319 CrPC.

89. We have given our thoughtful consideration to the diverseviews 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 maybe rebuttable. An evidence being rebutted or controvertedbecomes matter of consideration, relevance and belief, which isthe stage of judgment by the court. Yet it is evidence and it ismaterial on the basis whereof the court can come to prima facieopinion as to complicity of some other person who may beconnected 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 SC1899] and Harbhajan Singh [(2009) 13 SCC 608 : (2010) 1 SCC(Cri) 1135] , all that is required for the exercise of the powerunder Section 319 CrPC is that, it must appear to the court thatsome other person also who is not facing the trial, may also havebeen involved in the offence. The prerequisite for the exercise ofthis power is similar to the prima facie view which the Magistratemust come to in order to take cognizance of the offence.Therefore, no straitjacket formula can and should be laid withrespect to conditions precedent for arriving at such an opinionand, if the Magistrate/court is convinced even on the basis ofevidence appearing in examination-in-chief, it can exercise thepower under Section 319 CrPC and can proceed against suchother person(s). It is essential to note that the section also usesthe words “such person could be tried” instead of should betried. Hence, what is required is not to have mini-trial at thisstage by having examination and cross-examination and thereafter

rendering decision on the overt act of such person sought to beadded. In fact, it is this mini-trial that would affect the right of theperson sought to be arraigned as an accused rather than not havingany cross-examination at all, for in light of sub-section (4) of Section319 CrPC, the person would be entitled to fresh trial where hewould have all the rights including the right to cross-examineprosecution witnesses and examine defence witnesses andadvance his arguments upon the same. Therefore, even on thebasis of examination-in-chief, the court or the Magistrate canproceed against person as long as the court is satisfied that theevidence appearing against such person is such that it prima facienecessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is anevidence.

91. Further, in our opinion, there does not seem to be anylogic behind waiting till the cross-examination of the witness isover. It is to be kept in mind that at the time of exercise of powerunder Section 319 CrPC, the person sought to be arraigned as anaccused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought tobe arraigned as an accused cannot cross-examine the witness(es)prior to passing of an order under Section 319 CrPC, as such aprocedure is not contemplated by CrPC. Secondly, invariably theState would not oppose or object to naming of more persons as anaccused as it would only help the prosecution in completing thechain of evidence, unless the witness(es) is obliterating the role ofpersons already facing trial. More so, Section 299 CrPC enablesthe court to record evidence in absence of the accused in thecircumstances mentioned therein.92. Thus, in view of the above, we hold that power underSection 319 CrPC can be exercised at the stage of completion ofexamination-in-chief and the court does not need to wait till thesaid evidence is tested on cross-examination for it is the satisfactionof the court which can be gathered from the reasons recorded bythe court, in respect of complicity of some other person(s), notfacing the trial in the offence.”

7.6 While answering question No. (iv), namely what is the degreeof satisfaction required for invoking the power under Section 319 of theCrPC, this Court after considering various earlier decisions on the point,has observed and held as under:

105. Power under Section 319 CrPC is discretionary andan extraordinary power. It is to be exercised sparingly and only inthose cases where the circumstances of the case so warrant. It isnot to be exercised because the Magistrate or the Sessions Judgeis of the opinion that some other person may also be guilty ofcommitting that offence. Only where strong and cogent evidenceoccurs against person from the evidence led before the courtthat such power should be exercised and not in casual and cavaliermanner.

106. Thus, we hold that though only prima facie case is tobe established from the evidence led before the court, notnecessarily tested on the anvil of cross-examination, it requiresmuch stronger evidence than mere probability of his complicity.The test that has to be applied is one which is more than primafacie case as exercised at the time of framing of charge, but shortof satisfaction to an extent that the evidence, if goes unrebutted,would lead to conviction. In the absence of such satisfaction, thecourt should refrain from exercising power under Section 319CrPC. In Section 319 CrPC the purpose of providing if “it appearsfrom the evidence that any person not being the accused hascommitted any offence” is clear from the words “for which suchperson could be tried together with the accused”. The wordsused are not “for which such person could be convicted”. Thereis, therefore, no scope for the court acting under Section 319 CrPCto form any opinion as to the guilt of the accused.”

7.7 While answering question No. (v), namely in what situationscan the power under Section 319 of the CrPC be exercised: named inthe FIR, but not charge-sheeted or has been discharged, this Court hasobserved and held as under:

“112. However, there is great difference with regard to aperson who has been discharged. person who has been

Adischarged stands on different footing than person who wasnever subjected to investigation or if subjected to, but not charge-sheeted. Such person has stood the stage of inquiry before thecourt and upon judicial examination of the material collected duringinvestigation, the court had come to the conclusion that there isnot even prima facie case to proceed against such person.BGenerally, the stage of evidence in trial is merely proving thematerial collected during investigation and therefore, there is notmuch change as regards the material existing against the personso discharged. Therefore, there must exist compellingcircumstances to exercise such power. The court should keep inCmind that the witness when giving evidence against the person sodischarged, is not doing so merely to seek revenge or is naminghim at the behest of someone or for such other extraneousconsiderations. The court has to be circumspect in treating suchevidence and try to separate the chaff from the grain. If aftersuch careful examination of the evidence, the court is of the opinionDthat there does exist evidence to proceed against the person sodischarged, it may take steps but only in accordance with Section398 CrPC without resorting to the provision of Section 319 CrPCdirectly.116. Thus, it is evident that power under Section 319 CrPC canEbe exercised against person not subjected to investigation, or aperson placed in Column 2 of the charge-sheet and against whomcognizance had not been taken, or person who has beendischarged. However, concerning person who has beendischarged, no proceedings can be commenced against him directlyFunder Section 319 CrPC without taking recourse to provisions ofSection 300(5) read with Section 398 CrPC.”

7.8 Considering the law laid down by this Court in the case ofHardeep Singh (supra) and the observations and findings referred toand reproduced hereinabove, it emerges that (i) the Court can exerciseGthe power under Section 319 of the CrPC even on the basis of thestatement made in the examination-in-chief of the witness concernedand the Court need not wait till the cross-examination of such witnessand the Court need not wait for the evidence against the accused proposedto be summoned to be tested by cross-examination; and (ii) person not

named in the FIR or person though named in the FIR but has not beencharge-sheeted or person who has been discharged can be summonedunder Section 319 of the CrPC, provided from the evidence (may be onthe basis of the evidence collected in the form of statement made in theexamination-in-chief of the witness concerned), it appears that suchperson can be tried along with the accused already facing trial.

7.9 In the case of S. Mohammed Ispahani v. YogendraChandak(2017) 16 SCC 226 in para 35, this Court has observed andheld as under:

“35. It needs to be highlighted that when person is named in theFIR by the complainant, but police, after investigation, finds norole of that particular person and files the charge-sheet withoutimplicating him, the Court is not powerless, and at the stage ofsummoning, if the trial court finds that particular person shouldbe summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainantalso to file protest petition urging upon the trial court to summonother persons as well who were named in the FIR but not implicatedin the charge-sheet. Once that stage has gone, the Court is stillnot powerless by virtue of Section 319 CrPC. However, this sectiongets triggered when during the trial some evidence surfaces againstthe proposed accused.”

7.10 Thus, even in case where the stage of giving opportunityto the complainant to file protest petition urging upon the trial Court tosummon other persons as well who were named in the FIR but notimplicated in the charge-sheet has gone, in that case also, the Court isstill not powerless by virtue of Section 319 of the CrPC and even thosepersons named in the FIR but not implicated in the charge-sheet can besummoned to face the trial provided during the trial some evidencesurfaces against the proposed accused.

8. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, we are of the opinion that, inthe facts and circumstances of the case, neither the learned Trial Courtnor the High Court have committed any error in summoning the appellantsherein to face the trial along with other co-accused. As observedhereinabove, the appellants herein were also named in the FIR. However,

Athey were not shown as accused in the challan/charge-sheet. As observedhereinabove, nothing is on record whether at any point of time thecomplainant was given an opportunity to submit the protest applicationagainst non-filing of the charge-sheet against the appellants. In thedeposition before the Court, P.W.1 and P.W.2 have specifically statedagainst the appellants herein and the specific role is attributed to theBaccused-appellants herein. Thus, the statement of P.W.1 and P.W.2before the Court can be said to be “evidence” during the trial and,therefore, on the basis of the same and as held by this Court in the caseof Hardeep Singh (supra), the persons against whom no charge-sheetis filed can be summoned to face the trial. Therefore, we are of theCopinion that no error has been committed by the Courts below to summonthe appellants herein to face the trial in exercise of power under Section319 of the CrPC.

9. Now, so far as the submissions made on behalf of the appellantsherein relying upon the orders passed by the learned Magistrate datedD01.09.2016 and 28.10.2016 that once the appellants herein weredischarged by the learned Magistrate on an application submitted by theInvestigating Officer/SHO and, therefore, thereafter it was not open tothe learned Magistrate to summon the accused to face the trial in exerciseof power under Section 319 of the CrPC is concerned, it appears that

there is some mis-conception on the part of the appellants. At theEoutset, it is required to be noted that the orders dated 01.09.2016 and28.10.2016 cannot be said to be the orders discharging the accused. Ifthe applications submitted by the Investigating Officer/SHO and the orderspassed thereon are considered, those were the applications to discharge/

release the appellants herein from custody as at that stage the appellantsFwere in judicial custody. Therefore, as such, those orders cannot besaid to be the orders of discharge in strictosensu. Those are the ordersdischarging the appellants from custody. Under the circumstances, thesubmission on behalf of the accused that as they were discharged by thelearned Magistrate and therefore it was not open to the learned Magistrateto exercise the power under Section 319 of the CrPC and to summonGthe appellants to face the trial, cannot be accepted.

10. In view of the above and for the reasons stated above, wesee no reason to interfere with the impugned judgment and order passedby the High Court confirming the order passed by the learned Magistrate

RAJESH & ORS. v. STATE OF HARYANA

[M.R. SHAH, J.]

summoning the accused-appellants herein to face the trial in exercise ofthe power under Section 319 of the CrPC. We are in complete agreementwith the view taken by the High Court. No interference is called for bythis Court. In the facts and circumstance of the case and for the reasonsstated hereinabove, the present appeal fails and deserves to be dismissedand is according dismissed.

Devika Gujral

Appeal dismissed.