SARTAJ SINGH versus STATE OF HARYANA & ANR. ETC.

[2021] 3 S.C.R. 87

SARTAJ SINGH

STATE OF HARYANA & ANR. ETC.

(Criminal Appeal Nos. 298-299 of 2021)

MARCH 15, 2021

[DR. DHANANJAYA Y CHANDRACHUD

AND M. R. SHAH, JJ.]

Code of Criminal Procedure, 1973 – s.319 – Summoning ofadditional accused – Appellant-original informant was attackedby private respondents and other accused persons – On basis ofthe statement of the appellant, FIR was lodged for offences u/ss.148,149, 341, 323, 324, 307 and 506 IPC – Thereafter, charge-sheetwas filed by the Investigating Officer against the other accused,but not against the private respondents – During the trial theappellant was examined as P.W-1, he named the private respondentsin his evidence specifically and stood the test of cross-examination– Appellant filed an application u/s. 319 Cr.P.C. for summoning ofthe additional accused-private respondents – The trial Court allowedthe application u/s.319 Cr.P.C. – In the revision petitions, the HighCourt quashed and set aside the order passed by the trial Courtsummoning the additional accused-private respondents – On appeal,held: The accused can be summoned on the basis of evenexamination-in-chief of the witness and the Court need not wait tillhis cross-examination – If on basis of the examination-in-chief ofthe witness the Court is satisfied that there is prima facie caseagainst the proposed accused, the Court may in exercise of powersu/s.319 Cr.P.C. array such person as accused and summon him toface the trial – In the instant case, the appellant right from thebeginning disclosed the names of private respondents andspecifically named them in FIR – The reasons assigned by the HighCourt were unsustainable in law and on facts – What is required tobe considered at this stage was whether there is any prima faciecase and not whether on the basis of such material the proposedaccused is likely to be convicted or not and/or whatever is statedby the injured eye witness in his examination-in-chief is exaggerationor not – Therefore, the trial Court was justified in directing to issuesummons against the private respondents to face trial.

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88SUPREME COURT REPORTS

AAllowing the appeals, the Court

HELD: 1. In Hardeep Singh, this Court had an occasion toconsider in detail the scope and ambit of the powers of theMagistrate under Section 319 CrPC, the object and purposeof Section 319 CrPC etc. It is observed in the said decision thatBthe entire effort is not to allow the real perpetrator of an offenceto get away unpunished. It is observed that this is also part offair trial and in order to achieve this very end that the legislaturethought of incorporating the provisions of Section 319 CrPC. Itis further observed that for the empowerment of the courts toensure that the criminal administration of justice works properly,Cthe law has been appropriately codified and modified by thelegislature under the CrPC indicating as to how the Courts shouldproceed to ultimately find out the truth so that the innocent doesnot get punished but at the same time, the guilty are brought tobook under the law. It is also observed that it is the duty of theDcourt to find out the real truth and to ensure that the guilty doesnot go unpunished. [Para 6.1.1][97-D-F]2. Considering the law laid down by this Court inHardeep Singh, it emerges that (i) the Court can exercise thepower under Section 319 CrPC even on the basis of theEstatement made in the examination-in-chief of the witnessconcerned and the Court need not wait till the cross-examinationof such witness and the Court need not wait for the evidenceagainst the accused proposed to be summoned to be testedby crossexamination; and (ii) person not named in the FIR or aperson though named in the FIR but has not been charge-sheetedFor person who has been discharged can be summoned underSection 319 CrPC, provided from the evidence (may be on thebasis of the evidence collected in the form of statement madein the examination-in-chief of the witness concerned), it appearsthat such person can be tried along with the accused already facingGtrial. [Para 6.2][110-C-E]

3. Applying the law laid down by this Court in its variousdecisions to the case of the accused on hand, this Court is of theopinion that learned Trial Court was justified in summoning theprivate respondents herein to face the trial as accused on the

basis of the deposition of the appellant – injured eye witness. Asheld by this Court in the aforesaid decisions, the accused can besummoned on the basis of even examination-in-chief of the witnessand the Court need not wait till his cross-examination. If on thebasis of the examination-in-chief of the witness the Court issatisfied that there is prima facie case against the proposedaccused, the Court may in exercise of powers under Section 319CrPC array such person as accused and summon him to facethe trial. At this stage, it is required to be noted that right fromthe beginning the appellant herein – injured eye witness, whowas the first informant, disclosed the names of privaterespondents herein and specifically named them in the FIR. Buton the basis of some enquiry by the DSP they were notcharge-sheeted. What will be the evidentiary value of the enquiryreport submitted by the DSP is another question. It is not thatthe investigating officer did not find the case against theprivate respondents herein and therefore they were notchargesheeted. In any case, in the examination-in-chief of theappellant injured eye witness, the names of the privaterespondents herein are disclosed. It might be that whateveris stated in the examination-in-chief is the same which wasstated in the FIR. The same is bound to be there and ultimatelythe appellant herein – injured eye witness is the first informantand he is bound to again state what was stated in the FIR, otherwisehe would be accused of contradictions in the FIR and thestatement before the Court. Therefore, as such, the Trial Courtwas justified in directing to issue summons against the privaterespondents herein to face the trial. [Para 7][111-C-H]

4. The reasons assigned by the High Court for quashingthe order of the trial Court are unsustainable in law and on facts.At this stage, the High Court was not required to appreciate thedeposition of the injured eye witness and what was required tobe considered at this stage was whether there is any prima faciecase and not whether on the basis of such material the proposedaccused is likely to be convicted or not and/or whatever is statedby the injured eye witness in his examination-in-chief is

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Aexaggeration or not. The aforesaid aspects are required to beconsidered during the trial and while appreciating the entireevidence on record. Therefore, the High Court has materiallyerred in quashing and setting aside the order passed by thelearned Trial Court summoning the accused to face the trial inexercise of powers under Section 319 CrPC, on the reasoningBmentioned hereinabove. Even the observations made by theHigh Court referred are on probability. Therefore, the impugnedjudgment and order passed by the High Court is not sustainablein law and on facts and is beyond the scope and ambit of Section319 CrPC. [Para 8.1][112-E-H; 113-A]CHardeep Singh v. State of Punjab (2014) 3 SCC 92: [2014] 2 SCR 1; S. Mohammed Ispahani v. YogendraChandak (2017) 16 SCC 226: [2017] 10 SCR 29– relied on.

Sukhpal Singh Khaira v. State of Punjab (2019) 6 SCCD638: Rajesh v. State of Haryana (2019) 6 SCC 368 :[2019] 8 SCR 187 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealFNos.298-299 of 2021.

From the Judgment and Order dated 28.08.2020 of the High Courtof Punjab and Haryana at Chandigarh in CRR No.3238/2018(O&M)and CRM-M No.55631/2018(O&M).

R. Basant, Sr. Adv., Atul Kumar, Abhimanyu Sharma, Ms. Deepali,GPulak Bagchi, Tarun Gupta, Advs. for the Appellant.

Anil Kaushik, AAG, Haryana, Vivek Sood, Sr. Adv., Sanjay KumarVisen, Sanjeev Prakash Upadhyaya, Shashi Pratap Singh, Ms. MonishaHanda, Mohit D. Ram, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 28.08.2020 passed by the High Court of Punjab andHaryana at Chandigarh in revision application bearing CRR No. 3238 of2018 and CRMM No. 55631 of 2018 by which the High Court has allowedthe said revision application and quashed and set aside the order dated21.04.2018 passed by the learned Trial Court summoning the privaterespondents herein, the original informant has preferred the presentappeals.

2. As per the case of the appellant herein-original informant, theappellant was attacked by the private respondents herein and otheraccused persons on 27.07.2016. That the appellant got severely injured.That FIR was lodged by the appellant herein in which he stated thatbesides Manjeet Singh, Narvair Singh and other persons namelyPalwinder Singh son of Ran Singh, Satkar Singh son of Rajwant Singh,Rajwant Singh son of Gurcharan Singh and Sukhdeep Singh son ofSatnam Singh had inflicted injuries on his person. It was stated thatwhile he was going in his car – Mahendra XUV-500 for personal workand stopped his car on the left side to answer the phone call, ManjeetSingh son of Mahinder Singh, who was coming in his car from Assandhside and lady was sitting by his side, stopped his car next to him andafter rolling down his window threatened him for having ploughed hisbarley crop in his capacity as the Sarpanch and while going back homeafter finishing his work, he found that car was parked diagonally onthe road. The same car was parked in which Manjeet Singh was travelingand when he took out his head to look for the driver, Palwinder Singhson of Ran Singh, Satkar Singh son of Rajwant Singh armed with lathiesand were hiding on the right side of road came and attached him andgave lathi blows on the head. Thereafter, 10-12 persons came runningtowards the car from both sides of the road. It was further stated in theFIR that Manjeet Singh son of Mahinder Singh, Amarjit Singh son ofRan Singh, Rajwant Singh son of Gurcharan Singh, Narvai Singh son ofTarlok Singh, Sukhdev Singh son of Satnam Singh, residents of Bandralawere holding lathies and Gandasis in their hands. Rajwant Singh camerunning towards his side and switched off the engine of the car and alsoopened the door lock of driver side of the car. Manjeet Singh opened thedoor from outside. Manjeet Singh and Rajwant Singh both dragged him

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Aout of the car and Rajwant Singh raised Lalkara that “today there is anopportunity to kill him”. On saying this, Amarjeet Singh, who was armedwith Gandasi gave blow on his head and Manjeet Singh, who wasarmed with Gandasi gave blow on his left ear. Then Rajwant Singhwho was armed with Gandasi gave blow from its front side. Thereafter,all these persons gave number of blows upon him and he started feelingBunconscious and fell on the ground on his knees. He thought that theywill kill him today and he was seeing his death in front of his eyes. Theyhe took his revolver from the holster tied around his waist and fired withthe same and he did not know to whom and where the shots hit. Thosepersons started running away upon his firing and while running away,Csome persons gave blows on his right shoulder and due to which hisrevolver fell down and those assailants ran away and he also in order tosave himself came back towards Adarsh School. He entered the Deraof Chhinna situated near the Adarsh School, where Bhupinder Singhand his father were present, whom he informed that some persons wantedto kill him and kindly take him to Police Station. Thereafter, BhupinderDSingh @ Pinda took him to Assandh on his motor cycle and after sometimehe became unconscious, where the doctor gave him first aid and onseeing the seriousness of injuries referred him to General Hospital, Karnal.In the meantime, his family members also reached the Hospital, Assandhtook him to General Hospital Karnal in the car and after considering theEnumber of injuries, the doctor referred him to PGI, Chandigarh. That, onthe basis of the statement of the appellant, FIR no. 477 of 2016 waslodged for the offences under Sections 148, 149, 341, 323, 324, 307 and506 IPC. That, thereafter, the DSP, Assandh submitted report whereinit was found that only four persons were involved in the dispute and therespondents herein who were named were found not to be involved.FThat, thereafter, the Investigating Officer filed the charge-sheet againstother accused, but not against the private respondents herein. That,thereafter, during the trial the appellant herein came to be examined bythe prosecution as P.W.1, who was an injured witness. He named theprivate respondents herein in his evidence specifically and stood the testGof cross-examination. Dr. Mahinder, the Medical Officer, Civil Hospitalwas also examined as P.W.2. That, thereafter, one Bhupinder Singh whotook the injured appellant to the hospital was also examined as P.W.7.That, thereafter, the appellant herein filed an application before the learnedTrial Court under Section 319 CrPC for summoning of the additionalaccused – private respondents herein on the basis of the evidenceH

recorded. That the learned Trial Court after considering the statementsof both – the appellant and other eye witnesses and the material onrecord allowed the application under Section 319 CrPC vide order dated21.04.2018. The private respondents herein thereafter filed two separaterevision petitions against the order passed by the learned Trial Courtsummoning them, before the High Court. It appears that during thependency of the aforesaid revision applications, as the order passed bythe learned Trial Court summoning the private respondents herein wasnot stayed and therefore the learned Trial Court proceeded with the trialand after summoning of the additional accused-private respondents herein,18 witnesses came to have been examined by the learned Trial Court.That, by the impugned judgment and order, the High Court has allowedthe revision applications preferred by the private respondents herein andhas quashed and set aside the order passed by the learned Trial Courtsummoning the additional accused-private respondents herein. Hence,the present appeals.3. Shri R. Basant, learned Senior Advocate appearing on behalfof the appellant has vehemently submitted that when the learned TrialCourt, considering the evidence on record, both documentary and oral,allowed the application under Section 319 CrPC summoning the privaterespondents herein to face the trial, the High Court is not justified inquashing and setting aside the order summoning the private respondentsherein.

3.1 It is further submitted that while quashing and setting asidethe order passed by the learned Trial Court summoning the privaterespondents herein, which was in exercise of powers under Section 319CrPC, the High Court has acted beyond the scope and ambit of Section319 CrPC.

3.2 It is submitted that the High Court has failed to appreciatethat in fact the private respondents herein were specifically named inthe FIR and thereafter even the names have been disclosed in theevidence of the deposition of the appellant – injured eye witness. It issubmitted that therefore the learned Trial Court was justified insummoning the private respondents herein in exercise of powers underSection 319 CrPC.

3.3 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that even the reasons assigned by the High

ACourt while reversing the order passed by the learned Trial Court arenot sustainable in law and on facts.

3.4 It is submitted that the High Court has erred in quashing andsetting aside the order passed by the learned Trial Court summoning theprivate respondents herein by observing that there is no evidence exceptBthe statement of the appellant herein. It is submitted that however eventhe accused can be convicted on the basis of the evidence of singlewitness and in the present case the appellant is an injured eye witness. Itis submitted that the appellant is subjected to cross-examination. It issubmitted that therefore merely because there may be one witness and/or statement of only one person, is no ground not to summon the additionalCaccused in exercise of powers under Section 319 CrPC. It is furthersubmitted that at this stage the High Court was not justified in appreciatingthe deposition/evidence of the appellant on merits. It is submitted thatthe things which are required to be done during the trial, have been doneby the High Court at this stage of summoning the additional accused inDexercise of powers under Section 319 CrPC. It is submitted that theaforesaid is wholly impermissible at the stage of considering an applicationunder Section 319 CrPC.

3.5 It is further submitted that, by the time, the High Court haspassed the impugned judgment and order, as there was no stay in theErevision applications, the learned Trial Court proceeded further with thetrial and 18 witnesses came to be examined and the trial wasat the nearend. It is submitted that therefore also, the High Court is not justified inquashing and setting aside well-reasoned order passed by the learnedTrial Court summoning the private respondents herein in exercise ofpowers under Section 319 CrPC.F

3.6 Shri R. Basant, learned Senior Advocate appearing on behalfof the appellant has relied upon the decision of this Court in the case ofHardeep Singh v. State of Punjab (2014) 3 SCC 92 and the subsequentdecision of this Court in Sukhpal Singh Khaira v. State of Punjab(2019) 6 SCC 638, in support of his submission that at the stage ofGconsidering the application under Section 319 CrPC the High Court wasnot justified in entering into the merits and/or appreciation of the evidenceon merits, which is required to be considered at that stage of trial. It issubmitted that as held by this Court in Hardeep Singh (supra), theword ‘evidence’ in Section 319 CrPC has to be broadly understood andHnot literally as evidence brought during trial. It is submitted that it isfurther held that the statement made in examination-in-chief constitutes‘evidence’ and the court exercising powers under Section 319 CrPCpost commencement of trial,need not wait for evidence against personproposed to be summoned to be tested by cross-examination. It issubmitted that the degree of satisfaction for invoking Section 319 shouldnot be more than prima facie case as exercised at the time of framingof charge but short of satisfaction to an extent that evidence, if notrebutted, may lead to conviction of person sought to be added as accused.

3.7 Making the above submissions and relying upon the abovedecisions of this Court, it is prayed to allow the present appeals.

4. Shri Anil Kaushik, learned AAG, Haryana has supported thepresent appeals and has submitted that the reasons given by the HighCourt while quashing and setting aside well-reasoned order passed bythe learned Trial Court summoning the private respondents herein inexercise of powers under Section 319 CrPC are not sustainable in lawand even on facts.

5. Learned counsel appearing on behalf of the private respondentsherein has vehemently opposed the present appeals.

5.1 It is submitted that the power under Sections 319 CrPC is adiscretionary and an extra-ordinary power and has to be exercisedsparingly and only in those cases where the circumstances of the caseso warrant. It is submitted that it is not to be exercised because the TrialCourt is of the opinion that some other person may also be guilty ofcommitting that offence. It is submitted that where strong and cogentevidence occurs against person from the evidence led before the Courtthat such powers should be exercised and not in casual and cavaliermanner.

5.2 It is submitted that an order under Section 319 CrPC directingsummoning of additional accused cannot be passed because the firstinformant or one of the witnesses seeks to implicate other persons. It issubmitted that there must be sufficient and cogent reasons which arerequired to be assigned by the Trial Court satisfying the ingredients ofthe provisions under Section 319 CrPC. It is submitted that, in the presentcase, the appellant herein reiterated the contents of his complaint in theexamination-in-chief and no new evidence was placed on record. It issubmitted that the said statement does not satisfy the test for adjudicationfor an application under Section 319 CrPC, i.e. evidence on record is

Asuch which would be more than what is required at the stage of framingof chares but less than if left unrebutted would lead to conviction.

5.3 It is further submitted that in the examination in chief, theappellant has reiterated what was stated in the FIR. It is submitted thatthe allegations in the FIR were investigated/enquired into by the DSPBand as per his report no evidence was found against the privaterespondents herein. It is submitted that therefore the High Court is justifiedin quashing and setting aside the order passed by the learned Trial Court.

5.4 It is submitted that as such the appellant herein is an accusedin FIR NO. 477, regarding the death of one Amarjeet Singh and theCinjuries having been suffered by Manjeet Singh. It is submitted that asper the said FIR, Amarjeet Singh died and Manjeet Singh suffered injuriesat the hands of the appellant Sartaj Singh using his licensed revolver. It issubmitted that only after the FIR No. 477 was registered against theappellant and his accomplices, belatedly cross case in the same FIRwas got registered by the police on the statement of the appellant herein,Dwherein he made up concocted story of firing bullets in self defence. Itis submitted that the appellant herein stated that Palwinder Singh andSatkar Singh have given lathi blows on the head, whereas Manjeet Singh,Amarjeet Singh, Rajwant Singh, Narvair Singh and Sukdev Singh wereholding Gandasis and gave him blows on the head and face, which seemsEto be not at all possible as rightly observed by the High Court.5.5 It is further submitted that even otherwise the only evidenceagainst the private respondents herein was the statement of the appellantherein, who in fact is an interested witness in entire matter. He himselfstands accused of killing Amarjeet Singh and grievously hurting andFattempting to kill Manjeet Singh in the original and earlier FIR. It issubmitted that therefore the High Court has rightly set aside the orderpassed by the learned Trial Court observing that there was no newevidence that had come forward against the private respondents herein,rather there was detailed enquiry corroborating the innocence of therespondents and doubting the version of the appellant. It is submittedGthat the High Court has rightly come to the conclusion that the learnedTrial Court has erred in exercising its jurisdiction in summoning theanswering respondents. It is further submitted that even the depositionof P.W.7 Bhupinder Singh relied upon by the appellant herein does notsupport the appellant. It is submitted that in the light of the cross-Hexamination of the witness Bhupinder Singh, it appears that the entire

story has been concocted by the appellant herein in his testimony. It issubmitted that it raises substantial doubt about the whole version of theaccused stated in the cross case in FIR No. 477 of 2016.

5.6 Making the above submissions, it is prayed to dismiss thepresent appeals.

6. Heard learned counsel for the respective parties at length. Whatis under challenge in the present appeals is the impugned judgment andorder passed by the High Court allowing the revision applications filedby the private respondents herein and quashing and setting aside theorder passed by the learned Trial Court summoning the accused inexercise of powers under Section 319 CrPC and to face the trial.

6.1 While considering the rival submissions, the law on the scopeand ambit of Section 319 CrPC is required to be considered and for thatfew decisions of this Court are required to be referred to.

6.1.1 In Hardeep Singh (supra), this Court had an occasion toconsider in detail the scope and ambit of the powers of the Magistrateunder Section 319 CrPC, the object and purpose of Section 319 CrPCetc. It is observed in the said decision that the entire effort is not to allowthe real perpetrator of an offence to get away unpunished. It is observedthat this is also part of fair trial and in order to achieve this very endthat the legislature thought of incorporating the provisions of Section 319CrPC. It is further observed that for the empowerment of the courts toensure that the criminal administration of justice works properly, the lawhas been appropriately codified and modified by the legislature underthe CrPC indicating as to how the Courts should proceed to ultimatelyfind out the truth so that the innocent does not get punished but at thesame time, the guilty are brought to book under the law. It is also observedthat it is the duty of the court to find out the real truth and to ensure thatthe guilty does not go unpunished. In Paragraphs 8 and 9, this Courtobserved and held as under:

“8. The constitutional mandate under Articles 20 and 21 ofthe Constitution of India provides protective umbrella for thesmooth administration of justice making adequate provisions toensure fair and efficacious trial so that the accused does not getprejudiced after the law has been put into motion to try him forthe offence but at the same time also gives equal protection tovictims and to society at large to ensure that the guilty does not

Aget away from the clutches of law. For the empowerment of thecourts to ensure that the criminal administration of justice worksproperly, the law was appropriately codified and modified by thelegislature under CrPC indicating as to how the courts shouldproceed in order to ultimately find out the truth so that an innocentdoes not get punished but at the same time, the guilty are broughtBto book under the law. It is these ideals as enshrined under theConstitution and our laws that have led to several decisions,whereby innovating methods and progressive tools have beenforged to find out the real truth and to ensure that the guilty doesnot go unpunished.

9. The presumption of innocence is the general law of theland as every man is presumed to be innocent unless proven to beguilty. Alternatively, certain statutory presumptions in relation tocertain class of offences have been raised against the accusedwhereby the presumption of guilt prevails till the accusedDdischarges his burden upon an onus being cast upon him underthe law to prove himself to be innocent. These competing theorieshave been kept in mind by the legislature. The entire effort,therefore, is not to allow the real perpetrator of an offence to getaway unpunished. This is also part of fair trial and in our opinion,in order to achieve this very end that the legislature thought ofEincorporating provisions of Section 319 CrPC. It is with the saidobject in mind that constructive and purposive interpretationshould be adopted that advances the cause of justice and does notdilute the intention of the statute conferring powers on the courtto carry out the abovementioned avowed object and purpose toFtry the person to the satisfaction of the court as an accomplice inthe commission of the offence that is the subject-matter of trial.”

6.1.2 In the said case, the following five questions fell forconsideration before this Court.

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

(ii)Whether the word “evidence” used in Section 319(1) CrPCcould only mean evidence tested by cross-examination orthe court can exercise the power under the said provisioneven on the basis of the statement made in the examination-Hin-chief of the witness concerned?

(iii)Whether the word “evidence” used in Section 319(1) CrPChas been used in comprehensive sense and includes theevidence 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 thepower under Section 319 CrPC to arraign an accused?Whether the power under Section 319(1) CrPC can beexercised only if the court is satisfied that the accusedsummoned will in all likelihood be convicted?

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

6.1.3 While considering the aforesaid questions, this Court inHardeep Singh (supra) observed and held as under:

12. Section 319 CrPC springs out of the doctrine judexdamnatur cum nocens absolvitur (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 questionremains 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 imaginedall the circumstances and, therefore, it is the duty of the court togive full effect to the words used by the legislature so as toencompass any situation which the court may have to tackle whileproceeding to try an offence and not allow person who deservesto be tried to go scot-free by being not arraigned in the trial inspite of the possibility of his complicity which can be gatheredfrom the documents 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.

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22. In our opinion, Section 319 CrPC is an enabling provisionempowering the court to take appropriate steps for proceedingagainst any person not being an accused for also having committedthe offence under trial. It is this part which is under referencebefore this Court and therefore in our opinion, while answeringthe question referred to herein, we do not find any conflict so asto delve upon the situation that was dealt with by this Courtin Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014)3 SCC 306 : AIR 2013 SC 3018] .

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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 under

Section 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. In fact, this proposition does notseem to have been disturbed by the Constitution Bench in DharamPal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306: AIR 2013 SC 3018] . The dispute therein was resolved visualisinga situation wherein the court was concerned with procedural delayand was of the opinion that the Sessions Court should notnecessarily wait till the stage of Section 319 CrPC is reached todirect person, not facing trial, to appear and face trial as anaccused. We are in full agreement with the interpretation givenby the Constitution Bench that Section 193 CrPC confers powerof original jurisdiction upon the Sessions Court to add an accusedonce the case has been committed to it.

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 omitted

from 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 tousher 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. There is yet another set of provisions which form partof inquiry relevant for the purposes of Section 319 CrPC i.e.provisions of Sections 200, 201, 202, etc. CrPC applicable in thecase of complaint cases. As has been discussed herein, evidencemeans evidence adduced before the court. Complaint case is adistinct category of criminal trial where some sort of evidence inthe strict legal sense of Section 3 of the Evidence Act 1872(hereinafter referred to as “the Evidence Act”) comes before thecourt. There does not seem to be any restriction in the provisionsof Section 319 CrPC so as to preclude such evidence as comingbefore the court in complaint cases even before charges havebeen framed or the process has been issued. But at that stage asthere is no accused before the court, such evidence can be usedonly to corroborate the evidence recorded during the trial (sic or)for the purpose of Section 319 CrPC, if so required. What isessential for the purpose of the section is that there should appearsome evidence against person not proceeded against and thestage of the proceedings is irrelevant. Where the complainant iscircumspect in proceeding against several persons, but the courtis of the opinion that there appears to be some evidence pointingto the complicity of some other persons as well, Section 319 CrPCacts as an empowering provision enabling the court/Magistrate toinitiate proceedings against such other persons. The purpose ofSection 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 invokingpowers of Section 319 CrPC at the stage of trial in complaintcase when the evidence of the complainant as well as his witnessesare being recorded.

6.1.4 While answering Questions (iii), namely, whether the word“evidence” used in Section 319(1) CrPC has been used in acomprehensive sense and includes the evidence collected duringinvestigation or the word “evidence” is limited to the evidence recordedduring trial, this Court, in the aforesaid decision has observed and heldas 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 aperson 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 319CrPC indicate that the material has to be “where … it appearsfrom the evidence” before the court.

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

“(1) all statements which the court permits or requires tobe made 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.”

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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.

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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 hasthe 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,rather it is that material after cognizance is taken by court, thatis available 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. This would harmonise such material with the word“evidence” as material that would be supportive in nature tofacilitate the exposition of any other accomplice whose complicity

in the offence may have either been suppressed or escaped thenotice of the court.

84. The word “evidence” therefore has to be understoodin 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 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.

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 tothe 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 theaccused is to be given an opportunity to cross-examine the

witness to test its truthfulness. But that stage would not arisewhile exercising the court’s power under Section 319 CrPC.Once the deposition is recorded, no doubt there being no cross-examination, it would be prima facie material which wouldenable the Sessions Court to decide whether powers underSection 319 should be exercised 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 theentire 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] , 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 HarbhajanSingh v. State of Punjab [(2009) 13 SCC 608 : (2010) 1 SCC(Cri) 1135] . This Court in Hardeep Singh [HardeepSingh 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 thesaid judgment laid down that for the exercise of power underSection 319 CrPC, the court has to necessarily wait till the witnessis cross-examined and on complete appreciation of evidence, cometo the conclusion whether there is need to proceed under Section319 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 is

material 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 be tried.Hence, what is required is not to have mini-trial at this stage byhaving examination and cross-examination and thereafter renderinga decision on the overt act of such person sought to be added. Infact, it is this mini-trial that would affect the right of the personsought to be arraigned as an accused rather than not having anycross-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 thatthe evidence appearing against such person is such that it primafacie necessitates bringing such person to face trial. In fact,examination-in-chief untested by cross-examination, undoubtedlyin itself, is an evidence.

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 power

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under 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.

6.1.6 While answering Question (iv), namely, what is the degreeof satisfaction required for invoking the power under Section 319 CrPC,this Court after considering various earlier decisions on this point, hasobserved 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 isto be 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 prima

facie 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.

6.1.7 While answering Question (v), namely, in what situationscan the power under Section 319 CrPC be exercised: named in the FIR,but not charge-sheeted or has been discharged, this Court has observedand held as under:

112. However, there is great difference with regard to aperson who has been discharged. person who has beendischarged 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.Generally, 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 inmind 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 opinionthat 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.

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116. Thus, it is evident that power under Section 319 CrPCcan be exercised against person not subjected to investigation,or person placed in Column 2 of the charge-sheet and againstwhom cognizance had not been taken, or person who has beenBdischarged. However, concerning person who has beendischarged, no proceedings can be commenced against him directlyunder Section 319 CrPC without taking recourse to provisions ofSection 300(5) read with Section 398 CrPC.

6.2 Considering the law laid down by this Court in HardeepCSingh(supra) and the observations and findings referred to andreproduced hereinabove, it emerges that (i) the Court can exercise thepower under Section 319 CrPC even on the basis of the statement madein the examination-in-chief of the witness concerned and the Court neednot wait till the cross-examination of such witness and the Court neednot wait for the evidence against the accused proposed to be summonedDto be tested by cross-examination; and (ii) person not named in theFIR or person though named in the FIR but has not been charge-sheeted or person who has been discharged can be summoned underSection 319 CrPC, provided from the evidence (may be on the basis ofthe evidence collected in the form of statement made in the examination-Ein-chief of the witness concerned), it appears that such person can betried 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 person is named in theFFIR 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-Gsheet, 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 againstHthe proposed accused.”

6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC368, after considering the observations made by this Court in HardeepSingh (supra) referred to hereinabove, this Court has further observedand held that even in case where the stage of giving opportunity to thecomplainant to file protest petition urging upon the trial court to summonother persons as well who were named in FIR but not implicated in thecharge-sheet has gone, in that case also, the Court is still not powerlessby virtue of Section 319 CrPC and even those persons named in FIR butnot implicated in charge-sheet can be summoned to face the trial providedduring the trial some evidence surfaces against the proposed accused.

7. Applying the law laid down by this Court in the aforesaiddecisions to the case of the accused on hand, we are of the opinion thatlearned Trial Court was justified in summoning the private respondentsherein to face the trial as accused on the basis of the deposition of theappellant – injured eye witness. As held by this Court in the aforesaiddecisions, the accused can be summoned on the basis of evenexamination-in-chief of the witness and the Court need not wait till his

cross-examination. If on the basis of the examination-in-chief of thewitness the Court is satisfied that there is prima facie case against theproposed accused, the Court may in exercise of powers under Section319 CrPC array such person as accused and summon him to face thetrial. At this stage, it is required to be noted that right from the beginningthe appellant herein – injured eye witness, who was the first informant,disclosed the names of private respondents herein and specifically namedthem in the FIR. But on the basis of some enquiry by the DSP they werenot charge-sheeted. What will be the evidentiary value of the enquiryreport submitted by the DSP is another question. It is not that theinvestigating officer did not find the case against the private respondentsherein and therefore they were not charge-sheeted. In any case, in theexamination-in-chief of the appellant-injured eye witness, the names ofthe private respondents herein are disclosed. It might be that whateveris stated in the examination-in-chief is the same which was stated in theFIR. The same is bound to be there and ultimately the appellant herein –injured eye witness is the first informant and he is bound to again statewhat was stated in the FIR, otherwise he would be accused ofcontradictions in the FIR and the statement before the Court. Therefore,as such, the learned Trial Court was justified in directing to issue summonsagainst the private respondents herein to face the trial.

A8. Now, so far as the impugned judgment and order passed by theHigh Court is concerned, it appears that while quashing and setting asidethe order passed by the learned Trial Court, the High Court has considered/observed as under:

“No evidence except the statement of Sartaj Singh, whichBhas already been investigated into by the concerned DSPs wasrelied upon by the trial Court to summon, which was not sufficientfor exercising power under Section 319 Cr.P.C.

As per statement of Sartaj Singh, Palwinder Singh and SatkarSingh gave him lathi blows on the head. Manjeet Singh, AmarjeetCSingh, Rajwant Singh, Narvair Singh and Sukhdev Singh wereholding gandasi. Manjeet Singh, Amarjeet Singha and RajwantSingh gave him gandasi blows on the head and face. All the injuriesare stated to fall in the offence under Sections 323, 324, 326, 341read with Section 149 IPC. In case, so many people as mentionedabove were giving gandasi and lathies blows on the head, SartajDSingh was bound to have suffered more injuries, which would nothave left him alive and probably he would have been killed on thespot. He seems to have escaped with only such injuries as haveinvited offence only under Sections 323, 324, 326, 341 read withSection 149 of IPC. Therefore, the trial Court erred in exercisingEhis jurisdiction summoning the other accused where exaggerationand implication is evident on both sides.”8.1 The aforesaid reasons assigned by the High Court areunsustainable in law and on facts. At this stage, the High Court was notrequired to appreciate the deposition of the injured eye witness and whatFwas required to be considered at this stage was whether there is anyprima facie case and not whether on the basis of such material theproposed accused is likely to be convicted or not and/or whatever isstated by the injured eye witness in his examination-in-chief isexaggeration or not. The aforesaid aspects are required to be consideredduring the trial and while appreciating the entire evidence on record.GTherefore, the High Court has materially erred in quashing and settingaside the order passed by the learned Trial Court summoning the accusedto face the trial in exercise of powers under Section 319 CrPC, on thereasoning mentioned hereinabove. Even the observations made by theHigh Court referred to hereinabove are on probability. Therefore, theHimpugned judgment and order passed by the High Court is not sustainable

in law and on facts and is beyond the scope and ambit of Section 319CrPC.

8.2 In view of the above and for the reasons stated above, thepresent appeals succeed. The impugned judgment and order passed bythe High Court dated 28.08.2020 in revision application bearing CRRNo. 3238 of 2018 and CRMM No. 55631 of 2018 is hereby quashed andset aside and the order passed by the learned Trial Court summoning theprivate respondents herein to face the trial is hereby restored. The privaterespondents herein now to face the trial as summoned by the learnedTrial Court. The present appeals are allowed accordingly.

Ankit Gyan

Appeals allowed.