MANJEET SINGH versus STATE OF HARYANA & ORS.

[2021] 7 S.C.R. 855

MANJEET SINGH

STATE OF HARYANA & ORS.

(Criminal Appeal No.875 of 2021)

AUGUST 24, 2021

[DR. DHANANJAYA Y. CHANDRACHUD AND

M. R. SHAH, JJ.]

Code of Criminal Procedure, 1973 – s.319 – Summoning ofadditional accused – An FIR was registered on the basis of thestatement of the original complainant regarding death of his sonand injuries suffered by his nephew-appellant – As per his statementhis son and his nephew were attacked by one ‘S’ and four accusedpersons/private respondents armed with weapons while they wereon their way back home after purchasing the pesticides meant forpaddy in their car – There was indiscriminate firing from ‘S’ whichled to death of his son and his nephew was injured – cross-casewas also registered against the complainant side – The matter wasinvestigated and after investigation, final report was filed onlyagainst ‘S’ – That during the trial, appellant-nephnew was examinedas PW1 – In the deposition, he reiterated the allegations made inthe FIR including the allegations made against the four privaterespondents and reiterated what was stated in the FIR – He came tobe cross-examined partly and during the cross-examination, anapplication u/s. 319 CrPC was given on behalf of the complainantfor summoning of four private respondents as additional accused –The trial Court dismissed the application u/s. 319 CrPC – The HighCourt confirmed the order passed by the trial Court – On appeal,held: It is required to be noted that in the FIR all the privaterespondents herein who are sought to be arraigned as additionalaccused were specifically named with specific role attributed to them– It is specifically mentioned in the FIR that all the aforesaid personswith common intention parked the car in manner which blocksthe entire road and they were armed with the weapons – The evidenceof an injured eye witness has greater evidential value and unlesscompelling reasons exist, their statements are not to be discardedlightly – While exercising the powers u/s. 319 CrPC the Court hasnot to wait till the cross-examination and on the basis of the

Aexamination-in-chief of witness if case is made out, personcan be summoned to face the trial u/s. 319 CrPC – The trial Courtas well as the High Court have materially erred in dismissing theapplication u/s.319 CrPC and refusing to summon the privaterespondents herein to face the trial in exercising the powers u/s.319 CrPC.B

Code of Criminal Procedure, 1973 – s.319 – The High Courtwhile dismissing the application filed u/s.319 CrPC went into themerits of the case – Held: At the stage of exercising the powers u/s.319 CrPC, the Court is not required to appreciate and/or enter onthe merits of the allegations of the case.C

Code of Criminal Procedure, 1973 – s.319 – Exercise ofpower under – Held: Powers u/s. 319 CrPC can be exercised atany stage from commencing of the trial and recording of evidence/deposition and before the conclusion of the trial at any stage.

DAllowing the appeal, the Court

HELD: 1. The ratio of the various Supreme Court decisionson the scope and ambit of the powers of the Court under Section319 CrPC can be summarized as under:

(i) That while exercising the powers under Section 319ECrPC and to summon the persons not charge-sheeted, the entireeffort is not to allow the real perpetrator of an offence to get awayunpunished;

(ii) for the empowerment of the courts to ensure that thecriminal administration of justice works properly;

(iii) the law has been properly 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;

(iv) to discharge duty of the court to find out the real truthand to ensure that the guilty does not go unpunished;

(v) where the investigating agency for any reason does notarray one of the real culprits as an accused, the court is notpowerless in calling the said accused to face trial;

(vi) Section 319 CrPC allows the court to proceed againstany person who is not an accused in case before it;

(vii) 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;

(viii) Section 319 CrPC is an enabling provision empoweringthe court to take appropriate steps for proceeding against anyperson not being an accused for also having committed the offenceunder trial;

(ix) the power under Section 319(1) CrPC can be exercisedat any stage after the charge-sheet is filed and before thepronouncement of judgment, except during the stage of Sections207/208 CrPC, committal, etc. which is only pre-trial stageintended to put the process into motion;

(x) the court can exercise the power under Section 319CrPC only after the trial proceeds and commences with therecording of the evidence;

(xi) the word “evidence” in Section 319 CrPC means onlysuch evidence as is made before the court, in relation tostatements, and as produced before the court, in relation todocuments;

(xii) it is only such evidence that can be taken into accountby the Magistrate or the court to decide whether the power underSection 319 CrPC is to be exercised and not on the basis ofmaterial collected during the investigation;

(xiii) if the Magistrate/court is convinced even on the basisof evidence appearing in examination-in-chief, it can exercise thepower under Section 319 CrPC and can proceed against suchother person(s);

(xiv) that the Magistrate/court is convinced even on thebasis of evidence appearing in examination-in-chief, powers underSection 319 CrPC can be exercised;

[2021] 7 S.C.R.

A(xv) that power under Section 319 CrPC can be exercisedeven at the stage of completion of examination-in-chief and thecourt need not has to wait till the said evidence is tested on cross-examination;

(xvi) even in case where the stage of giving opportunityBto the complainant to file protest petition urging upon the trialcourt to summon other persons as well who were named in FIRbut not implicated in the charge-sheet has gone, in that case also,the Court is still not powerless by virtue of Section 319 CrPCand even those persons named in FIR but not implicated in thecharge-sheet can be summoned to face the trial, provided duringCthe trial some evidence surfaces against the proposed accused(may be in the form of examination-in-chief of the prosecutionwitnesses);

(xvii) while exercising the powers under Section 319 CrPCthe Court is not required and/or justified in appreciating theDdeposition/evidence of the prosecution witnesses on merits whichis required to be done during the trial. [Para 13][884-A-H;885-A-H]

2. Applying the law laid down in the various decisions tothe facts of the case on hand this Court is of the opinion that theEtrial Court as well as the High Court have materially erred indismissing the application under Section 319 CrPC and refusingto summon the private respondents herein to face the trial inexercising the powers under Section 319 CrPC. It is required tobe noted that in the FIR No.477 all the private respondents hereinFwho are sought to be arraigned as additional accused werespecifically named with specific role attributed to them. It isspecifically mentioned that while they were returning back, carwas standing on the road which belongs to accused persons. Allthe five accused persons were armed with lathi, gandsi, dandaand revolver. It is specifically mentioned in the FIR that all theGaforesaid persons with common intention parked the car in amanner which blocks the entire road and they were armed withthe weapons. Despite the above specific allegations, when thecharge-sheet/final report came to be filed only two persons cameto be charge-sheeted and the private respondents herein thoughHnamed in the FIR were put/kept in column no.2. Entire discussion

in the charge-sheet/final report is against ‘S’ only. So far as theprivate respondents are concerned only thing which is stated is“During the investigation of the present case, HPS, DSP Assandhand HPS, DSP Indri found four accused, residents of Bandralainnocent and accordingly Sections 148, 149 and 341 of the IPCwere deleted in the case and they were kept in column no.2,whereas challan against accused ‘S’ has been presented in theCourt.” [Para 14][886-A-H; 887-A]

3. Now thereafter when in the examination-in-chief theappellant herein – victim – injured eye witness has specificallynamed the private respondents herein with specific role attributedto them, the trial Court as well as the High Court ought to havesummoned the private respondents herein to face the trial. Atthis stage it is required to be noted that so far as the appellantherein is concerned he is an injured eye-witness. The evidenceof an injured eye witness has greater evidential value and unlesscompelling reasons exist, their statements are not to be discardedlightly. As observed hereinabove while exercising the powersunder Section 319 CrPC the Court has not to wait till the cross-examination and on the basis of the examination-in-chief of awitness if case is made out, person can be summoned to facethe trial under Section 319 CrPC. [Para 14.1][887-B-D]

4. Now so far as the reasoning given by the High Courtwhile dismissing the revision application and confirming the orderpassed by the trial Court dismissing the application under Section319 CrPC is concerned, the High Court entered into the meritsof the case. At the stage of exercising the powers under Section319 CrPC, the Court is not required to appreciate and/or enteron the merits of the allegations of the case. The High Court haslost sight of the fact that the allegations against all the accusedpersons right from the very beginning were for the offences underSections 302, 307, 341, 148 & 149 IPC. The High Court hasfailed to appreciate the fact that for attracting the offence underSection 149 IPC only forming part of unlawful assembly is sufficientand the individual role and/or overt act is immaterial. Therefore,the reasoning given by the High Court that no injury has beenattributed to either of the respondents except that they were

Aarmed with weapons and therefore, they cannot be added asaccused is unsustainable. The trial Court and the High Courthave failed to exercise the jurisdiction and/or powers whileexercising the powers under Section 319 CrPC. [Para 14.2][887-

E-H; 888-A-B]

BSartaj Singh v. State of Haryana 2021 (4) SCALE 227;Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :[2014] 2 SCR 1 – relied on.

Lakshman Singh v. State of Bihar (now Jharkhand) 2021(8) SCALE 448; Sukhpal Singh Khaira v. State ofCPunjab (2019) 6 SCC 638; Masalti v. State of U.P AIR1965 SC 202 : [1964] SCR 133; Shambhu Nath Singhand Ors. v. State of Bihar AIR 1960 SC 725; BrijendraSingh v. State of Rajasthan (2017) 7 SCC 706 : [2017]3 SCR 374; S. Mohammed Ispahani v. YogendraChandak (2017) 16 SCC 226 : [2017] 10 SCR 29;DRajesh v. State of Haryana (2019) 6 SCC 368 : [2019]8 SCR 187; State of MP v. Mansingh (2003) 10 SCC414 : [2003] 2 Suppl. SCR 460; Abdul Sayeed v. Stateof MP (2010) 10 SCC 259 : [2010] 13 SCR 311; Stateof Uttar Pradesh v. Naresh (2011) 4 SCC 324 : [2011]E4 SCR 1176 – referred to.

Case Law Reference

[2010] 13 SCR 311referred toPara 14.1[2011] 4 SCR 1176referred toPara 14.1

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.875 of 2021.

From the Judgment and Order dated 28.08.2020 of the High Courtof Punjab and Haryana at Chandigarh in CRR No.28 of 2018.

Gurinder Singh Gill, Sr. Adv., P.P. Nayak, Kuldeep Singh Kuchaliya,Ms. Aashna Gill, Pratap Singh Gill, Ms. Bhupinder, Ms. Vandana Hooda,Ajay Pal, Advs. for the Appellant.

R. Basant, Sr. Adv., Ankit Raj, Satya Ranjan Swian, VedanshAnand, Dr. Monika Gusain, Atul Kumar, Abhimanyu Sharma,Ms. Deepali, Pulak Bagchi, Tarun Gupta, 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 passed by the High Court of Punjab and Haryana at Chandigarhin CRR No.28 of 2018 by which the High Court has dismissed the saidRevision Application preferred by the appellant herein and has confirmedthe order passed by the Learned Sessions Judge dated 05.09.2017 bywhich the Additional Sessions Judge dismissed an application underSection 319 CrPC moved by the appellant herein for summoning theRespondent Nos. 2 to 5 herein as additional accused in the case FIRNo.477 dated 27.07.2016 for the offences under Sections 302, 307, 341,148 & 149 IPC registered at Police Station Assandh, the appellant/victimhas preferred the present appeal.

2. An FIR No.477 dated 27.07.2016 was registered at Police StationAssandh on the basis of the statement of one Rann Singh, regarding thedeath of his son Amarjit Singh and the injuries having been suffered bythe present appellant – Manjeet Singh.

That as per the statement of Rann Singh his son Amarjit Singhand his nephew Manjeet Singh were attacked by Sartaj Singh, TejpalSingh and Sukhpal Singh sons of Gurdev Singh, Parab Sharan Singh andPreet Samrat sons of Mohan Sarup while they were on their way backhome after purchasing the pesticides meant for paddy in their car. Theyparked their Mahendera XUV 500 belonging to Sartaj Singh and blocked

Athe road. They were armed with weapons and when his son AmarjitSingh followed by Manjeet Singh stepped out from his car to get theroad cleared, Sartaj Singh fired four shots from his licenced revolver,which hit the left side of the chest, stomach and elbow of Amarjit Singh.Sartaj Singh fired indiscriminately from his licenced revolver, which alsohit the nephew Manjeet Singh on the chest near the right shoulder. AmarjitBSingh died on spot and Manjeet Singh was admitted in the hospital, asper the statement of Rann Singh.2.1 cross-case was also registered at the behest of Sartaj Singh,the accused in the FIR on 28.07.2016 which was recorded against thecomplainant side in FIR No.477 dated 27.07.2016. In the cross- caseCthe allegations were made against Manjeet Singh, Narvair Singh andother persons namely Palwinder Singh son of Rann Singh, Satkar Singhson of Rajwant Singh, Rajwant Singh son of Gurcharan Singh andSukhdeep Singh son of Satnam Singh where it was alleged that all thepersons inflicted injuries on his person.

2.2 The matter was investigated and after investigation, finalreport was filed only against Sartaj Singh in FIR No.477. All other accusedwere exonerated and were kept in column no.2. In cross case, one ofthe accused died and challan was filed against two persons wherefour of them namely Palwinder Singh, Rajwant Singh, Sukhdeep SinghEand Satkar Singh were kept in column no.2.

2.3 The case was committed to the Court of Sessions and the trialbegin in both the cases namely arising out of FIR No.477 dated 27.07.2016and the cross case. That during the trial arising out of FIR No.477,appellant herein came to be examined as PW1. In the deposition, heFreiterated the allegations made in the FIR including the allegations madeagainst the private respondents herein namely Sukhpal Singh, Tejpal Singh,Parab Sharan and Preet Samrat and reiterated what was stated in theFIR. He came to be cross- examined partly and during the cross-examination, an application under Section 319 CrPC was given on behalfof the complainant for summoning of Sukhpal Singh, Tejpal Singh, ParabGSharan and Preet Samrat as additional accused. Further cross-examination of PW1 came to be deferred. That by order dated05.09.2017, the Learned trial Court dismissed the application under Section319 CrPC for summoning Sukhpal Singh, Tejpal Singh, Parab Sharanand Preet Samrat as additional accused to face trial arising out of FIRNo.477 of 2016.H

3. In the cross case arising out of the complaint given by SukhpalSingh recorded on 28.07.2016 (accused in FIR No. 477 dated 27.07.2016)the prosecution examined Sukhpal Singh as PW1, Dr. Mahinder, theMedical Officer as PW2 and one Bhupinder Singh as PW7. Thatthereafter the said Sartaj Singh filed an application before the Learnedtrial Court under Section 319 CrPC for summoning Palwinder Singh,Sartaj Singh, Rajwant Singh and Sukhdeep Singh as additional accused.On the basis of the evidence recorded the Learned trial Court afterconsidering the statements of Sartaj Singh and other eye witnesses andthe material on record allowed the application under Section 319 CrPCvide order dated 21.04.2018 and directed to issue summons againstPalwinder Singh, Satkar Singh, Rajwant Singh and Sukhdeep Singh.

4. Being aggrieved and dissatisfied with the order dated 05.09.2017passed by the Learned trial Court rejecting the application under Section319 CrPC in FIR No.477 and refusing to issue summons against SukhpalSingh, Tejpal Singh, Parab Sharan and Preet Samrat as additional accused,the appellant herein – Manjeet Singh – victim preferred revisionapplication before the High Court which was numbered as CRR 28 of2018.

Against the order passed by the Learned trial Court dated21.04.2018 by which an application under Section 319 CrPC filed bySartaj Singh in cross case summoning Palwinder Singh, Satkar Singh,Rajwant Singh and Sukhdeep Singh came to be allowed, Satkar Singhand others filed revision application before the High Court being CRRNo.3238 of 2018.

5. By the impugned Judgment and Order dated 28.08.2020 theHigh Court dismissed CRR No.28 of 2018 filed by Manjeet Singh. Itwas filed challenging the order passed by Learned trial Court dated05.09.2017 rejecting the application under Section 319 CrPC forsummoning Sukhpal Singh, Tejpal Singh, Parab Sharan and Preet Samratas additional accused to face the trial arising out of FIR No.477 of 2016.By the very common judgment and order, the High Court allowed CRRNo. 3238 of 2018 filed by Satkar Singh and others and quashed and setaside the order passed by the Learned trial Court dated 21.04.2018 arisingout of cross case by which Palwinder Singh, Satkar Singh, Rajwant Singhand Sukhdeep Singh were summoned to face the trial, the applicationwhich was given by Sartaj Singh under Section 319 CrPC.

A6. Sartaj Singh feeling aggrieved and dissatisfied with the judgmentand order passed by the High Court in CRR 3238 of 2018 by which theHigh Court set aside the order passed by the trial Court dated 28.07.2016summoning Palwinder Singh, Satkar Singh, Rajwant Singh and SukhdeepSingh under Section 319 CrPC, approached this Court vide CriminalAppeal No.298-299 of 2021. By detailed judgment and order this veryBBench vide judgment and order dated 15.03.2021 allowed the said appealand set aside the order passed by the High Court passed in CRR No.3238of 2018 and restored the order passed by the Learned trial Court arisingout of cross case given by Sartaj Singh dated 28.07.2016.

7. That thereafter the present appellant herein Manjeet Singh hasCpreferred the present appeal challenging the order passed by the HighCourt passed in CRR 28 of 2018 by which the High Court has confirmedthe order passed by the Learned trial Court dismissing an applicationunder Section 319 CrPC to summon private respondents herein asadditional accused and to face the trial arising out of FIR No.477 ofD2016 dated 27.07.2016

8. Shri G.S. Gill, Learned Senior Advocate has appeared on behalfof Manjeet Singh and Shri Ankit Raj, Learned Advocate has appearedon behalf of the respondent – State and Shri R. Basant, Learned SeniorAdvocate has appeared on behalf of private respondents herein.

8.1 Shri Gill, Learned Counsel appearing on behalf of ManjeetSingh has vehemently submitted that in the facts and circumstances ofthe case, both, the Learned trial Court as well as the High Court havecommitted grave error in rejecting the application under Section 319CrPC to summon the private respondents herein to face the trial arisingout of FIR No. 477 dated 27.07.2016.F

8.2 It is submitted that while rejecting the application under Section319 CrPC, the Learned trial Court as well as the High Court have notproperly appreciated and considered the scope, ambit and powers underSection 319 CrPC.

8.3 It is submitted that by not allowing the application under Section319 CrPC and not summoning the private respondents herein as additionalaccused, both, the Learned trial Court as well as the High Court havenot exercised the powers vested under Section 319 CrPC.

8.4 Learned Counsel appearing on behalf of the appellant hasHsubmitted that even the reasons assigned by the High Court while

dismissing the revision application and confirming the order passed bythe High Court refusing to summon the private respondent as additionalaccused are not sustainable in law and on facts.

8.5 It is further submitted that while passing the impugned order,the High Court has not appreciated the fact that all the private respondentsherein who were sought to be arraigned as additional accused werespecifically named in the FIR No.477. It is submitted that even in thedeposition the appellant herein – PW1 has also specifically named theprivate respondents herein with their specific role. It is submitted thattherefore the Learned trial Court ought to have exercised the powersunder Section 319 CrPC and ought to have summoned the privaterespondents as additional accused.

8.6 It is submitted that as held by this Court in catena of decisionsand more particularly in Hardeep Singh v. State of Punjab (2014) 3SCC 92, even on the basis of the statement made in the examination- in-chief of the witnesses concerned the Court can in exercise of powersunder Section 319 CrPC summon the persons even named in theexamination-in-chief as additional accused and to face the trial. It issubmitted that in the present case not only the names of the privaterespondents have been disclosed in the examination-in-chief of theappellant – victim but they were named in the FIR also with specificrole.

8.7 It is submitted that even the accused can be convicted on thebasis of the evidence of single witness. It is submitted that in thepresent case the appellant is the injured eye witness and as observedand held by this Court in the recent decision Lakshman Singh vs.State of Bihar (now Jharkhand) (Criminal Appeal No.606 of 2021)decided on 23[rd] July, 2021) unless there are compelling circumstancesand reasons normally and by and large the injured eye-witness should bebelieved. It is submitted that even otherwise the appellant is subjected tocross-examination. It is submitted that therefore merely because theremay be one witness and/or statement of only one person, is no groundnot to summon the additional accused in exercise of powers under Section319 CrPC.

8.8 It is further submitted that at this stage the High Court wasnot justified in appreciating the deposition/evidence of the appellant onmerits. It is submitted that the things which are required to be done

Aduring the trial, have been done by the High Court at this stage ofsummoning the additional accused in exercise of powers under Section319 CrPC. It is submitted that the aforesaid is wholly impermissible atthe stage of considering an application under Section 319 CrPC. It isvehemently submitted that as held by this Court in the case of HardeepSingh (Supra); Sukhpal Singh Khaira v. State of Punjab (2019) 6BSCC 638 and in other subsequent decisions at the stage of consideringthe application under Section 319 CrPC the High Court is not justified inentering into the merits and/or appreciation of the evidence on merits,which is required to be considered at the stage of trial.

8.9 It is submitted that even the reasoning given by the High CourtCdismissing the revision application while confirming the order passed bythe Learned trial Court dismissing the application under Section 319CrPC are not sustainable in law. It is submitted that while passing theimpugned judgment and order, the High Court is not justified in enteringinto the allegations and the evidence on merits which is wholly

Dimpermissible at this stage as held by this Court in the aforesaid decisionsand other decisions.

8.10 It is submitted that the High Court has failed to notice thatthe allegations against the original accused as well as the privaterespondents herein are for the aforesaid offences under Sections 148 &E149 IPC also. It is submitted that as per the settled law while consideringthe charge under Section 149 IPC the individual role and overt act byeach accused is not relevant and/or material and it is sufficient thataccused is part of the unlawful assembly. (See Masalti v. State ofU.P, AIR 1965 SC 202 & Shambhu Nath Singh And Ors. v. State OfBihar, AIR 1960 SC 725). It is submitted that therefore when the HighFCourt has observed that no injury has been attributed to either of therespondents except that they were armed with weapons and thereforethey cannot be arrayed as additional accused, is unsustainable andcontrary to the law laid down by this Court in catena of decisions onSection 149 of IPC.G

8.11 It is submitted that even the observations made by the HighCourt that it cannot be said that the private respondents had any commonintention or there was meeting of mind that Sartaj Singh would be firingare unwarranted at this stage. It is submitted that at this stage the Courtis not required to enter into the merits of the allegations and/or theHevidence. It is submitted that therefore while making above observations

while rejecting the application under Section 319 CrPC the High Courthas not exercised its powers vested under Section 319 CrPC.

8.12 It is submitted that even in the facts and circumstances ofthe case the High Court has committed grave error in relying upon thedecision of this Court in the case of Brijendra Singh vs. State ofRajasthan, (2017) 7 SCC 706. It is submitted that in the present case ifwe go through and consider the final report by which the privaterespondents herein were to be in column no. 2 there do not seem to beany evidence discussed and/or specific allegations considered againstthe private respondents herein. It is submitted that the private respondentsherein are put at column no.2. on the basis of the reports of HC BaljinderSingh, HPS, DSP Assandh and Shri Kushal Pal, HPS, DSP Indri, who assuch are not even the Investigating Officer and even the reports if any,are part of the charge-sheet nor the aforesaid officers are cited aswitnesses. It is submitted therefore as such no proper investigation hasbeen carried out against the private respondents herein and withoutdiscussing the specific allegations against the private respondents hereinwhich have been made in the FIR, the private respondents herein arekept in column no.2. It is submitted that therefore the decision in thecase of Brijendra Singh (Supra), would not be applicable to the factsof the case on hand.

8.13 Making above submissions and relying upon the decisions inthe cases of Hardeep Singh (Supra); S. Mohammed Ispahani vs.Yogendra Chandak (2017) 16 SCC 226; Rajesh vs. State of Haryana,(2019) 6 SCC 368 and the recent decision of this Court in the case ofSartaj Singh vs. State of Haryana, 2021 (4) Scale 227, which wasarising out of the cross case in the very case, it is prayed to allow thepresent appeal and quash and set aside the order passed by the Learnedtrial Court as well as the High Court and consequently allow theapplication under Section 319 CrPC to summon the private respondentsherein to face the trial arising out of cross case dated 28.07.2016 for theoffences under Sections 302, 307, 341, 148 & 149 IPC.

9. Shri Ankit Raj, Learned Counsel appearing on behalf of theState has surprisingly supported the private respondents herein and hadsubmitted that in the present case, both, the Learned trial Court as wellas the High Court have rightly dismissed the application under Section319 CrPC and have rightly refused to summon the private respondentsherein as additional accused.

[2021] 7 S.C.R.

A10. Present appeal is vehemently opposed by Shri R. Basant,Learned Senior Counsel appearing on behalf of the private respondentherein.

10.1 While opposing the present appeal and supporting the impugnedjudgment and order passed by the trial Court as well as the High CourtBShri Basant, Learned Counsel appearing on behalf of private respondentsherein has made following submissions:

(i)That in the facts and circumstances of the case no errorhas been committed by the courts below in rejecting theapplication under Section 319 CrPC and refusing to summonCthe private respondents herein as additional accused;

(ii)That cogent reasons have been given by, both, the Learnedtrial Court as well as the High Court refusing to summonthe private respondents herein as additional accused;

(iii)That though common judgment and order was passed byDthe High Court in CRR No.28 of 2018 and CRR 3238 of2018, when Sartaj Singh the original complainant in crosscase dated 28.07.2016 approached this Court by way ofCriminal Appeal No.298-299 of 2021, at that stage theappellant herein did not challenge the impugned judgmentEand order passed by the High Court passed in CRR No.28of 2018. It is submitted that only thereafter when numberof witnesses have been examined and the trial is at the fag-end, the present appeal has been preferred. Therefore, it isprayed not to exercise the powers under Article 136;

F(iv)That in the present case even the inquiry was conducted byfour high rank officials and only thereafter the InvestigatingOfficer put/kept the private respondents herein in columnno.2. It is submitted that during the course of theinvestigation and even thereafter in the inquiry four DSPswhich were conducting at the instance of the Rann Singh –Goriginal complainant and when there was no evidence foundthe private respondents herein are kept in column no.2;

(v)It is submitted that in the case of Brijendra Singh (Supra)it is observed by this Court that when the evidence hasbeen collected by the IO during the investigation andHthereafter having found no evidence against the accused

named in the FIR and thereafter they are kept in columnno.2, the same is required to be considered seriously and/orhaving greater value than the deposition of the complainantand some other persons in their examination-in-chief;

(vi)That when initially after investigation the private respondentsherein were put/kept in column no.2, though they were havingan opportunity on the part of the complainant to submit theprotest application, they failed to do so and thereafter afterrecording the deposition of PW1 – appellant herein whenthe cross-examination of the said witness was going on,the complainant filed an application under Section 319 CrPC;

(vii)That except the bare statements of the appellant who himselfis an accused in the cross case, there is no further material/evidence on record and therefore, both, the Learned trialCourt as well as the High Court have rightly refused tosummon the private respondents herein as additionalaccused.

10.2 Making above submissions and relying upon the decision ofthis Court in the case of Brijendra Singh (Supra) it is prayed to dismissthe present appeal.

11. Heard Learned Counsels for the respective parties at length.

12. What is under challenge in the present appeal is the impugnedjudgment and order passed by the High Court dismissing the revisionapplication preferred by the appellant herein and confirming the orderpassed by the Learned trial Court rejecting the application under Section319 CrPC on behalf of the complainant and refusing to summon theprivate respondents herein as additional accused.

12.1 While considering the rival submissions the law on the scopeand ambit of Section 319 CrPC is required to be considered. In therecent decision in the case of Sartaj Singh (Supra) this very Bench hasconsidered in detail the law on the scope and ambit of Section 319 CrPC.In the said decision this court considered the decisions in the cases ofHardeep Singh (Supra); S. Mohammed Ispahani v. YogendraChandak (Supra) and Rajesh (Supra) in detail. The relevant part of theaforesaid decisions which came to be considered by this Court are asunder:

“6.1.1 In Hardeep Singh (supra), this Court had an occasion toconsider in detail the scope and ambit of the powers of theMagistrate under Section 319 CrPC, the object and purpose ofSection 319 CrPC etc. It is observed in the said decision that theentire effort is not to allow the real perpetrator of an offence toget away unpunished. It is observed that this is also part of fairtrial and in order to achieve this very end that the legislature thoughtof incorporating the provisions of Section 319 CrPC. It is furtherobserved that for the empowerment of the courts to ensure thatthe criminal administration of justice works properly, the law hasbeen appropriately codified and modified by the legislature underthe CrPC indicating as to how the Courts should proceed toultimately find out the truth so that the innocent does not getpunished but at the same time, the guilty are brought to book underthe law. It is also observed that it is the duty of the court to findout the real truth and to ensure that the guilty does not gounpunished. In Paragraphs 8 and 9, this Court observed and heldas under:

“8. The constitutional mandate under Articles 20 and21 of the Constitution of India provides protective umbrellafor the smooth administration of justice making adequateprovisions to ensure fair and efficacious trial so that theaccused does not get prejudiced after the law has been putinto motion to try him for the offence but at the same time alsogives equal protection to victims and to society at large toensure that the guilty does not get away from the clutches oflaw. For the empowerment of the courts to ensure that thecriminal administration of justice works properly, the law wasappropriately codified and modified by the legislature underCrPC indicating as to how the courts should proceed in orderto ultimately find out the truth so that an innocent does not getpunished but at the same time, the guilty are brought to bookunder 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 guiltydoes not go unpunished.9. The presumption of innocence is the general law ofthe land as every man is presumed to be innocent unless provento be guilty. Alternatively, certain statutory presumptions inrelation to certain class of offences have been raised againstthe accused whereby the presumption of guilt prevails till theaccused discharges his burden upon an onus being cast uponhim under the law to prove himself to be innocent. Thesecompeting theories have been kept in mind by the legislature.The entire effort, therefore, is not to allow the real perpetratorof an offence to get away unpunished. This is also part of fairtrial and in our opinion, in order to achieve this very end thatthe legislature thought of incorporating provisions of Section319 CrPC. It is with the said object in mind that constructiveand purposive interpretation should be adopted that advancesthe cause of justice and does not dilute the intention of thestatute conferring powers on the court to carry out theabovementioned avowed object and purpose to try the personto the satisfaction of the court as an accomplice in thecommission 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 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 evenon the basis of the statement made in the examination-in-chief ofthe witness 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?”

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.

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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-sheetfiled under Section 173 CrPC or person whose name has beendisclosed in any material before the court that is to be consideredfor the purpose of trying the offence, but not investigated. Hehas to be person whose complicity may be indicated andconnected 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 to

encompass 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 as todelve upon the situation that was dealt with by this Court inDharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3SCC 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 underSection 319(1) CrPC can be exercised at any time after thecharge-sheet is filed and before the pronouncement of judgment,except during the stage of Sections 207/208 CrPC, committal,etc. which is only pre-trial stage, intended to put the processinto motion. This stage cannot be said to be judicial step in thetrue sense for it only requires an application of mind rather than ajudicial application of mind. At this pre-trial stage, the Magistrateis required to perform acts in the nature of administrative workrather than judicial such as ensuring compliance with Sections

207 and 208 CrPC, and committing the matter if it is exclusivelytriable by the Sessions Court. Therefore, it would be legitimatefor us to conclude that the Magistrate at the stage of Sections 207to 209 CrPC is forbidden, by express provision of Section 319CrPC, to apply his mind to the merits of the case and determineas to whether any accused needs to be added or subtracted toface trial before the Court of Session.

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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 legislature havecontemplated this inasmuch as the stage for evidence has not yetarrived. The only material that the court has before it is the materialcollected by the prosecution and the court at this stage primafacie can apply its mind to find out as to whether person, whocan be an accused, has been erroneously omitted from beingarraigned or has been deliberately excluded by the prosecutingagencies. This is all the more necessary in order to ensure thatthe investigating and the prosecuting agencies have acted fairly inbringing before the court those persons who deserve to be triedand to prevent any person from being deliberately shielded whenthey ought to have been tried. This is necessary to usher faith inthe judicial system whereby the court should be empowered toexercise such powers even at the stage of inquiry and it is for

this reason that the legislature has consciously used separate terms,namely, inquiry or trial in Section 319 CrPC.

55. Accordingly, we hold that the court can exercise 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 thatpersons 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 during

investigation 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 powers underSection 319 CrPC, the issue has to be investigated by examiningthe circumstances which give rise to situation for the court toinvoke such powers. The circumstances that lead to such inferencebeing drawn up by the court for summoning person arise out ofthe availability of the facts and material that come up before thecourt and are made the basis for summoning such person as anaccomplice to the offence alleged to have been committed. Thematerial should disclose the complicity of the person in thecommission of the offence which has to be the material thatappears from the evidence during the course of any inquiry into ortrial of offence. The words as used in Section 319 CrPC indicatethat the material has to be “where … it appears from 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 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 documentaryevidence.”

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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 complicityin the offence may have either been suppressed or escaped thenotice of the court.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. Thecourt, therefore, should be understood to have the power to proceedagainst any person after summoning him on the basis of any suchmaterial as brought forth before it. The duty and obligation of thecourt becomes more onerous to invoke such powers cautiouslyon such material after evidence has been led during trial.

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 inexamination-in-chief or also together with cross-examination, inthe 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, which leavesno room for doubt that the evidence as understood under Section3 of the Evidence Act is the statement of the witnesses that arerecorded during trial and the documentary evidence in accordancewith the Evidence Act, which also includes the document andmaterial evidence in the Evidence Act. Such evidence begins withthe statement of the prosecution witnesses, therefore, is evidencewhich includes the statement during examination-in-chief. InRakesh [(2001) 6 SCC 248 : 2001 SCC (Cri) 1090 : AIR 2001 SC2521] , 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 thewitness 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 Harbhajan Singhv. State of Punjab [(2009) 13 SCC 608 : (2010) 1 SCC (Cri)1135]. This Court in Hardeep Singh [Hardeep Singh v. State ofPunjab, (2009) 16 SCC 785 : (2010) 2 SCC (Cri) 355] seems tohave 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. Itis evidence as per law and in the true sense, for at best, it may berebuttable. An evidence being rebutted or controverted becomesa matter of consideration, relevance and belief, which is the stageof judgment by the court. Yet it is evidence and it is material onthe basis whereof the court can come to prima facie opinion asto complicity of some other person who may be connected withthe offence.

90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq,(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899]and Harbhajan Singh [(2009) 13 SCC 608 : (2010) 1 SCC (Cri)1135] , all that is required for the exercise of the power underSection 319 CrPC is that, it must appear to the court that someother person also who is not facing the trial, may also have beeninvolved in the offence. The prerequisite for the exercise of thispower 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 with respect to

conditions precedent for arriving at such an opinion and, if theMagistrate/court is convinced even on the basis of evidenceappearing in examination-in- chief, it can exercise the power underSection 319 CrPC and can proceed against such other person(s).It is essential to note that the section also uses the words “suchperson could be tried” instead of should be tried. Hence, what isrequired is not to have mini-trial at this stage by having examinationand cross-examination and thereafter rendering decision on theovert act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraignedas an accused rather than not having any cross- examination atall, for in light of sub-section (4) of Section 319 CrPC, the personwould be entitled to fresh trial where he would have all therights including the right to cross-examine prosecution witnessesand examine defence witnesses and advance his arguments uponthe same. Therefore, even on the basis of examination-in- chief,the court or the Magistrate can proceed against person as longas the court is satisfied that the evidence appearing against suchperson is such that it prima facie necessitates bringing such personto face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in 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 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 to

be 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 asan accused 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 of

examination-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 319CrPC, this Court after considering various earlier decisions onthis 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 319CrPC to 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 inthe FIR, but not charge-sheeted or has been discharged, this Courthas observed and 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 beendischarged. 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 Hardeep Singh(supra) and the observations and findings referred to andreproduced hereinabove, it emerges that (i) the Court can exercisethe power under Section 319 CrPC even on the basis of thestatement made in the examination-in-chief of the witnessconcerned and the Court need not wait till the cross-examination

of such witness and the Court need not wait for the evidenceagainst the accused proposed to be summoned to be tested bycross-examination; and (ii) person not named in the FIR or aperson though named in the FIR but has not been charge-sheetedor 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 made inthe examination-in-chief of the witness concerned), it appearsthat such person can be tried along with the accused already facingtrial.

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 namedin the FIR by the complainant, but police, after investigation, findsno role 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.”

6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC368, after considering the observations made by this Court inHardeep Singh (supra) referred to hereinabove, this Court hasfurther observed and held that even in case where the stage ofgiving opportunity to the complainant to file protest petitionurging upon the trial court to summon other persons as well whowere named in FIR but not implicated in the charge-sheet hasgone, in that case also, the Court is still not powerless by virtueof Section 319 CrPC and even those persons named in FIR butnot implicated in charge- sheet can be summoned to face the trialprovided during the trial some evidence surfaces against theproposed accused.”

884SUPREME COURT REPORTS

[2021] 7 S.C.R.

A13. The ratio of the aforesaid decisions on the scope and ambit ofthe powers of the Court under Section 319 CrPC can be summarized asunder:

(i) That while exercising the powers under Section 319 CrPCand to summon the persons not charge-sheeted, the entireBeffort is not to allow the real perpetrator of an offence toget away unpunished;

(ii) for the empowerment of the courts to ensure that thecriminal administration of justice works properly;

(iii)the law has been properly codified and modified by theClegislature under the CrPC indicating as to how the courtsshould proceed to ultimately find out the truth so that theinnocent does not get punished but at the same time, theguilty are brought to book under the law;

(iv)to discharge duty of the court to find out the real truth andDto ensure that the guilty does not go unpunished;

(v) where the investigating agency for any reason does notarray one of the real culprits as an accused, the court is notpowerless in calling the said accused to face trial;

(vi)Section 319 CrPC allows the court to proceed against anyEperson who is not an accused in case before it;

(vii)the court is the sole repository of justice and duty is castupon it to uphold the rule of law and, therefore, it will beinappropriate to deny the existence of such powers withthe courts in our criminal justice system where it is notFuncommon that the real accused, at times, get away bymanipulating the investigating and/or the prosecuting agency;

(viii)Section 319 CrPC is an enabling provision empoweringthe court to take appropriate steps for proceeding againstany person not being an accused for also having committedGthe offence under trial;

(ix)the power under Section 319(1) CrPC can be exercisedat any stage after the charge-sheet is filed and before thepronouncement of judgment, except during the stage ofSections 207/208 CrPC, committal, etc. which is only pre-Htrial stage intended to put the process into motion;

(x)the court can exercise the power under Section 319 CrPConly after the trial proceeds and commences with therecording of the evidence;

(xi)the word “evidence” in Section 319 CrPC means onlysuch evidence as is made before the court, in relation tostatements, and as produced before the court, in relation todocuments;

(xii)it is only such evidence that can be taken into account bythe Magistrate or the court to decide whether the powerunder Section 319 CrPC is to be exercised and not on thebasis of material collected during the investigation;

(xiii)if the Magistrate/court is convinced even on the basis ofevidence appearing in examination-in-chief, it can exercisethe power under Section 319 CrPC and can proceed againstsuch other person(s);

(xiv)that the Magistrate/court is convinced even on the basisof evidence appearing in examination-in-chief, powers underSection 319 CrPC can be exercised;

(xv)that power under Section 319 CrPC can be exercisedeven at the stage of completion of examination-in-chiefand the court need not has to wait till the said evidence istested on cross-examination;

(xvi)even in case where the stage of giving opportunity tothe complainant to file protest petition urging upon thetrial court to summon other persons as well who were namedin FIR but not implicated in the charge-sheet has gone, inthat case also, the Court is still not powerless by virtue ofSection 319 CrPC and even those persons named in FIRbut not implicated in the charge-sheet can be summoned toface the trial, provided during the trial some evidence surfacesagainst the proposed accused (may be in the form ofexamination-in-chief of the prosecution witnesses);

(xvii)while exercising the powers under Section 319 CrPC theCourt is not required and/or justified in appreciating thedeposition/evidence of the prosecution witnesses on meritswhich is required to be done during the trial.

EFG

A14. Applying the law laid down in the aforesaid decisions to thefacts of the case on hand we are of the opinion that the Learned trialCourt as well as the High Court have materially erred in dismissing theapplication under Section 319 CrPC and refusing to summon the privaterespondents herein to face the trial in exercising the powers under Section319 CrPC. It is required to be noted that in the FIR No.477 all the privateBrespondents herein who are sought to be arraigned as additional accusedwere specifically named with specific role attributed to them. It isspecifically mentioned that while they were returning back, MahendraXUV bearing no. HR-40A-4352 was standing on the road which belongsto Sartaj Singh and Sukhpal. Tejpal, Parab Saran Singh, Preet SamratCand Sartaj were standing. Parab Sharan was having lathi in his hand,Tejpal was having gandsi, Sukhpal was having danda, Sartaj washaving revolver and Preet Singh was sitting in the jeep. It is specificallymentioned in the FIR that all the aforesaid persons with common intentionparked the Mahendra XUV HR-40A-4352 in manner which blocks theentire road and they were armed with the weapons. Despite the aboveDspecific allegations, when the charge-sheet/final report came to be filedonly two persons came to be charge-sheeted and the private respondentsherein though named in the FIR were put/kept in column no.2. It is thecase on behalf of the private respondents herein that four different DSPsinquired into the matter and thereafter when no evidence was foundEagainst them the private respondents herein were put in column no.2and therefore the same is to be given much weightage rather thanconsidering/believing the examination-in-chief of the appellant herein.Heavy reliance is placed on the case of Brijendra Singh (Supra).However none of DSPs and/or their reports, if any, are part of the charge-sheet. None of the DSPs are shown as witnesses. None of the DSPsFare Investigating Officer. Even on considering the final report/charge-sheet as whole there does not appear to be any consideration on thespecific allegations qua the accused the private respondents herein whoare kept in column no.2. Entire discussion in the charge-sheet/final reportis against Sartaj Singh only.G

So far as the private respondents are concerned only thing whichis stated is “During the investigation of the present case, Shri BaljinderSingh, HPS, DSP Assandh and Shri Kushalpal, HPS, DSP Indri foundaccused Tejpal Singh, Sukhpal Singh, sons of Gurdev Singh, Parab SharanSingh and Preet Samrat Singh sons of Mohan Sarup Singh caste JatHSikh, residents of Bandrala innocent and accordingly Sections 148, 149

and 341 of the IPC were deleted in the case and they were kept incolumn no.2, whereas challan against accused Sartaj has been presentedin the Court.”

14.1 Now thereafter when in the examination-in-chief the appellantherein – victim – injured eye witness has specifically named the privaterespondents herein with specific role attributed to them, the Learnedtrial Court as well as the High Court ought to have summoned the privaterespondents herein to face the trial. At this stage it is required to benoted that so far as the appellant herein is concerned he is an injuredeye-witness. As observed by this Court in the cases of State of MP v.Mansingh (2003) 10 SCC 414 (para 9); Abdul Sayeed v. State of MP(2010) 10 SCC 259; State of Uttar Pradesh v. Naresh (2011) 4 SCC324, the evidence of an injured eye witness has greater evidential valueand unless compelling reasons exist, their statements are not to bediscarded lightly. As observed hereinabove while exercising the powersunder Section 319 CrPC the Court has not to wait till the cross-examination and on the basis of the examination-in-chief of witness ifa case is made out, person can be summoned to face the trial underSection 319 CrPC.

14.2 Now so far as the reasoning given by the High Court whiledismissing the revision application and confirming the order passed bythe Learned trial Court dismissing the application under Section 319 CrPCis concerned, the High Court itself has observed that PW1 Manjeet Singhis the injured witness and therefore his presence cannot be doubted ashe has received fire arm injuries along with the deceased. However,thereafter the High Court has observed that the statement of ManjeetSingh indicates over implication and that no injury has been attributed toeither of the respondents except they were armed with weapons andthe concerned injuries are attributed only to Sartaj Singh even for thesake of arguments someone was present with Sartaj Singh it cannot besaid that they had any common intention or there was meeting of mindor knew that Sartaj would be firing. The aforesaid reasonings are notsustainable at all. At the stage of exercising the powers under Section319 CrPC, the Court is not required to appreciate and/or enter on themerits of the allegations of the case. The High Court has lost sight of thefact that the allegations against all the accused persons right from thevery beginning were for the offences under Sections 302, 307, 341, 148& 149 IPC. The High Court has failed to appreciate the fact that for

Aattracting the offence under Section 149 IPC only forming part ofunlawful assembly is sufficient and the individual role and/or overt act isimmaterial. Therefore, the reasoning given by the High Court that noinjury has been attributed to either of the respondents except that theywere armed with weapons and therefore, they cannot be added asaccused is unsustainable. The Learned trial Court and the High CourtBhave failed to exercise the jurisdiction and/or powers while exercisingthe powers under Section 319 CrPC.

14.3 Now so far as the submission on behalf of the privaterespondents that though common judgment and order was passed bythe High Court in CRR No.3238 of 2018 at that stage the appellantCherein did not prefer appeal against the impugned judgment and orderpassed by the High Court in CRR No.28 of 2018 and therefore thisCourt may not exercise the powers under Section Article 136 is concernedthe aforesaid has no substance. Once it is found that the Learned trialCourt as well as the High Court ought to have summoned the privateDrespondents herein as additional accused, belated filing of the appeal ornot filing the appeal at relevant time when this Court considered thevery judgment and order but in CRR No.3238 of 2018 cannot be groundnot to direct to summons the private respondents herein when this Courthas found that prima facie case is made out against the privaterespondents herein and they are to be summoned to face the trial.E14.4 Now so far as the submission on behalf of the privaterespondents that though in the charge-sheet the private respondents hereinwere put in column no.2 at that stage the complainant side did not fileany protest application is concerned, the same has been specifically dealtwith by this Court in the case of Rajesh (Supra). This Court in theFaforesaid decision has specifically observed that even in case wherethe stage of giving opportunity to the complainant to file protest petitionurging upon the trial Court to summon other persons as well as whowere named in the FIR but not implicated in the charge-sheet has gone,in that case also, the court is still not powerless by virtue of Section 319GCrPC.

14.5 Similarly, the submission on behalf of the private respondentsherein that after the impugned judgment and order passed by the HighCourt there is much progress in the trial and therefore at this stagepower under Section 319 CrPC may not be exercised is concerned, theHaforesaid has no substance and cannot be accepted. As per the settled

preposition of law and as observed by this Court in the case of HardeepSingh (Supra), the powers under Section 319 CrPC can be exercised atany stage before the final conclusion of the trial. Even otherwise it isrequired to be noted that at the time when the application under Section319 CrPC was given only one witness was examined and examination-in-chief of PW1 was recorded and while the cross-examination of PW1was going on, application under Section 319 CrPC was given whichcame to be rejected by the Learned trial Court. The Order passed by theLearned trial Court is held to be unsustainable. If the Learned trial Courtwould have summoned the private respondents herein at that stage sucha situation would not have arisen. Be that as it may as observed hereinpowers under Section 319 CrPC can be exercised at any stage fromcommencing of the trial and recording of evidence/deposition and beforethe conclusion of the trial at any stage.

15. In view of the above and for the reasons stated above theimpugned judgment and order passed by the High Court and that of theLearned trial Court dismissing the application under Section 319 CrPCsubmitted on behalf of the complainant to summon the private respondentsherein as additional accused are unsustainable and deserve to be quashedand set aside and are accordingly quashed and set aside. Consequentlythe application submitted on behalf of the complainant to summon theprivate respondents herein is hereby allowed and the Learned trial Court

is directed to summon the private respondents herein to face the trialarising out of FIR No.477 dated 27.07.2016 in Sessions Case No.362 of2016 for the offences punishable under Sections 302, 307, 341, 148 &149 IPC. However, it is specifically observed that the observations madehereinabove are only prima facie for the purpose of exercising the powersunder Section 319 CrPC and the Learned trial Court to decide and disposeof the trial in accordance with the law and on its own merits and on thebasis of the evidence to be laid before it.

Appeal is allowed accordingly.

Ankit Gyan

Appeal allowed