Sec.319 to summon any person as an accused and face the trial in the ongoing case when to be exercised – Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. = the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. = the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the ‘evidence’ recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ‘much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny. As a consequence, this appeal is allowed setting aside the order of summoning the appellants under Section 319 Cr.P.C.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 763 OF 2017
|BRIJENDRA SINGH & ORS. |…..APPELLANT(S) |
|VERSUS | |
|STATE OF RAJASTHAN |…..RESPONDENT(S) |

J U D G M E N T
A.K. SIKRI, J.
The appellants herein, three in number, have been summoned by
the Court of Special Judge, SC/ST Act, which is in seisin of the trial in
respect of FIR No. 53 of 2000, wherein charges for offences under Sections
147, 148, 149, 323, 448, 302/149 of Indian Penal Code (IPC) as well as
under Sections 3 and 3(2)(V) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) have been framed.
The appellants were not arraigned as accused in the chargesheet. The
charges were framed against those who were accused in the chargesheet and
prosecution evidence is being recorded. The appellants are summoned as
additional accused persons under Section 319 of Code of Criminal Procedure,
1973 (Cr.P.C.) to face the trial along with other accused persons. The
trial court has passed the Order dated 06.10.2015 on an application filed
by the complainant Harkesh Meena under Section 319 of Cr.P.C. This order
was challenged by the appellants before the High Court. However, the High
Court has dismissed the revision petition preferred by the appellants on
11.01.2016.

Factual details pertaining to the FIR and registration of case against
other persons as well as filing of the application by the complainant under
Section 319 of Cr.P.C. and the orders therein are as under:
On the basis of a written complaint, FIR No. 53 of 2000 was
registered at 10:30 pm on 29.04.2000 under Sections 147, 148, 149, 323,
448, 302/149 IPC as well as under Sections 3 and 3(2)(V) of SC/ST Act. In
this complaint, the complainant had stated that at about 3:00 pm on
29.04.2000 when he was at his Khejra well, making his cattle drink water,
certain persons including appellants who belong to his village came there
armed with axe, lathi sabbal (iron rod) and knives in their hands, with
intention to kill the complainant. On seeing them, the complainant ran
from that place and came to his uncle’s (Nathu) house and cried loudly.
His uncle was sleeping in front of the house and Lakhpat was sleeping under
Neem tree. As soon as he came into the thatch, Pratap Singh inflicted
lathi blow on him from behind which hit on his back. The complainant ran
into the house of Bharatlal. Brijendra Singh inflicted sabbal at the head
of his uncle Nathu who was sleeping at that time and Pratap hit his uncle
with axe above the ear. Thereafter, all these accused persons started
inflicting lathi sticks. Lakhpat tried to run in order to rescue himself.
These persons gave beating to him as well, with lathi sticks. When the
complainant’s elder brother went to rescue them, these accused persons gave
lathi sticks blow to him as well. In the meantime, their wives, wives of
their sons had also come. Rishi, son of Ramu Brahmin of Talabka and Bhanu,
nephew of Jagdish Singh of Jaipur were also along with them. Because of
the beating by the accused persons, complainant’s uncle Nathu died on the
spot. Thereafter, accused persons fled away. The incident was witnessed
by a number of villagers. In the FIR, the appellants were also named as
accused persons.
FIR was registered and the matter was investigated by the Investigating
Officer (IO). During the investigation, the appellants were also
interrogated. They had stated that they are residing at Jaipur and at the
time of incident, they were in Jaipur. Thus, plea of alibi was taken by
these persons. Appellant No.1 and 2 are in police service and at relevant
time they were posted at Jaipur. Appellant No.2 Jagdish has lost his leg
while on traffic police duty. Appellant No.3 Bhanu is the appellant’s
sister’s son and claimed that he was also at Jaipur. The police after
investigation and considering the evidence with regard to the alibi of the
appellants Brijendra, Jagdish (who lost his leg while discharging traffic
police duty) and Bhanu, did not find any sufficient and reliable evidence
against the appellants and, therefore, did not file any challan against
them and kept the investigation pending under Section 178(3) Cr.P.C. When
the trial court by its Order dated 06.09.2000, without any challan being
submitted by the police, directed cognizance of the matter, the appellants
filed the S.B. Criminal Revision No. 505/2000 before the High Court and the
High Court vide its Order dated 16.04.2009 allowed the Revision and set
aside the Order dated 06.09.2000 of the trial court. The High Court,
however, made it clear that the said Order dated 16.04.2009 shall be
without prejudice to the powers of the Sessions Court to add any person in
the array of accused under Section 319 Cr.P.C.

During the period when S.B. Criminal Revision No. 505 of 2000 was pending
before the High Court, the police came to the conclusion that the
appellants were not involved in the incident. The police after
investigation, prepared the Final Report of closure of the case against the
appellants which was approved by the SP. In this manner, after completing
the investigation, the police filed the Challan only against other accused
persons, namely, Bhanwar Singh, Pratap Singh and Shambhu Singh.

Though, at the time of filing of the Challan, the police kept investigation
pending, subsequently it came to the conclusion that the appellants were
not involved and the final report of closure of the case against the
appellants was filed. The trial court framed charges against the aforesaid
three accused persons and the trial proceeded, though it has been delayed
abnormally as more than 15 years have been passed. Be that as it may, the
prosecution examined 23 witnesses including PW-1 Bharat Lal, PW-2 Kamla, PW-
3 Lakhpat, PW-4 Harkesh and PW-5 Amritlal sometime in the year 2009. On
26.03.2014 i.e. after five years of examination of the aforesaid witnesses,
complainant filed application under Section 319 of Cr.P.C. It is this
application which has been allowed by the Special Judge and the said order
has been affirmed by the High Court.

Mr. Sushil Kumar Jain, learned senior counsel appearing for the appellant,
submitted that the appellant had obtained information from the authorities
under the Right to Information Act about the status of the investigation
that was carried out by the Investigating Officer culminating into filing
of the final report. He drew our attention to the letter dated 19.02.2016
that was received by the appellant in response to his query under the Right
to Information Act wherein the information was supplied to the appellant
along with requisite documents that were collected during the
investigation. The details of these documents are as under:

Duty Certificate No. 2407 dated 04.05.2000 signed by the Assistant
Inspector General of Police (Training), Jaipur, Rajasthan, certifying that
Brijendra Singh, Junior Driver, was present on duty on 29.04.2000.

Medical Certificate No. 13365 dated 28.04.2000 issued by the Medical
Officer, Primary Medical Centre, Moti Kotla, Jaipur, certifying that
Jagdish Singh was suffering from ….. (illegible) disease on 24.04.2000
and was advised five days rest.

Letter dated 17.02.2002 signed by the Police Superintendent, District
Karauli, addressed to the Circle Officer, Circle – Kailadevi, giving the
sanction under Section 173(9) of the Cr.P.C. to end investigation in Cr.No.
53/2K, Police Station, Sapotra, and submit the report in the Court.

Statement of Rajendra Prasad, Deputy Inspector General of Police, Police
Head Office, Jaipur, recorded under Section 161 Cr.P.C. on 07.12.2000,
wherein he stated that on 29.04.2000, he was working on the post of
Assistant Inspector General of Police (Training), Jaipur, Rajasthan and
Brijendra Singh, Constable, was his driver who was present on duty on that
day. Log book of the vehicle was also produced to show the presence of
Brijendra Singh.

Statement recorded under Section 161 Cr.P.C. of Smt. Shashi Rajawat,
Medical Officer In-charge, Government Ayurvedic Hospital, Nahati Ka Naka,
wherein she had stated that as per the record one Bhanu Pratap Singh had
come to the hospital on 26.4.2000, suffering from sickness as he was having
loose motions and was vomiting as well. He was treated by the said Medical
Officer and was also prescribed medicines on a slip written by her. She
verified the prescription.

Statement of Mr. Naveel Kasliwal of Jain Medical Store, Opposite Government
Hospital, Moti Katla, Jaipur, recorded under Section 161 Cr.P.C., wherein
stated that the said Medical Store was owned by him. He verified that the
medical slip of the Government Hospital had been written by Sudhir Sharma
on 29.04.2000 and based thereupon he had given the medicines.

Statement of Sudhir Sharma, Medical Officer, Government Hospital, Moti
Katla, Jaipur, recorded under Section 161 Cr.P.C., wherein he stated that
from 22.02.2000 to 04.05.2000, his duty was at Vidhan Sabha from 3.00 p.m.
to 7.00 p.m. and in the morning from 8.00 a.m. till 12.00 noon at the
Government Hospital. He further stated that on 29.04.2000, a patient named
Jagdish Singh, who was suffering from malaria fever, had come and was
prescribed medicines by him on the slip, which are medicines of the
Government Hospital. He verified that the slip was written by him,
containing the prescription. Three days medicines were given to the
patient. On 02.05.2000, again two days medicines for the patient were
prescribed on the said slip.

Statement of Shri Mahendra Singh Tanwar, who was working as a driver at the
Government District Mahila Hospital, Sanganeri Gate, Jaipur, recorded under
Section 161 Cr.P.C. He stated that son of his elder brother, Bhanu Pratap
Singh, who was a student, was unwell for 15 to 20 days in the month of
April, 2000. For this purpose, he was given treatment in private hospital
but no improvement was found and, therefore, he was taken to Ayurvedic
Hospital on 26.04.2000 for treatment. He was suffering from loose motions
and cough for which he was prescribed three days medicines and the
medicines were repeated again on 29.04.2000 for further three days.

Mr. Jain, learned senior counsel, submitted that it is on the basis of the
aforesaid documents and statements of various persons, recorded during
investigation, the Investigating Officer was convinced that these three
appellants were in Jaipur at the time of the incident and, therefore, could
not have been present at the place of incident, i.e. Karauli, which is at a
distance of 176 kms. approximately, from Jaipur. Submission of Mr. Jain
was that merely on the basis of the statement of the complainant, which was
there before the Investigating Officer as well at the time of
investigation, the Special Judge could not have allowed the application
under Section 319 Cr.P.C. as no further or new material was produced before
the Court which could indicate the involvement of the appellants. Learned
counsel submitted that for exercising the powers under Section 319 Cr.P.C.,
which was discretionary and extraordinary in nature, the trial court should
have convinced itself that there is strong and cogent evidence indicating
that the appellants may be guilty of committing the offence. This
condition, according to him, was not satisfied. He further submitted that
the High Court also did not examine the matter from the aforesaid
perspective and merely went by the fact that the witnesses have deposed
about the involvement of the appellants in their deposition before the
Court.

Learned counsel for the respondents, on the other hand, argued that the
trial court has rightly exercised its power on the basis of depositions of
the witnesses before it, which were in the form of ‘evidence’ to the effect
that the appellants may have committed the offence in question. It was
argued that provisions of Section 319 Cr.P.C. were not meant for this
purpose only and the exercise of power by the trial court cannot be treated
as unwarranted. It was so observed by the High Court also while dismissing
the revision petition and observing that no illegality or perversity was
found in the orders of the trial court.

Powers of the Court to proceed under Section 319 Cr.P.C. even against those
persons who are not arraigned as accused, cannot be disputed. This
provision is meant to achieve the objective that real culprit should not
get away unpunished. A Constitution Bench of this Court in Hardeep Singh
v. State of Punjab & Ors., (2014) 3 SCC 92, explained the aforesaid purpose
behind this provision in the following manner:
“8. The constitutional mandate under Articles 20 and 21 of the Constitution
of India provides a protective umbrella for the smooth administration of
justice making adequate provisions to ensure a fair and efficacious trial
so that the accused does not get prejudiced after the law has been put into
motion to try him for the offence but at the same time also gives equal
protection to victims and to society at large to ensure that the guilty
does not get away from the clutches of law. For the empowerment of the
courts to ensure that the criminal administration of justice works
properly, the law was appropriately codified and modified by the
legislature under CrPC indicating as to how the courts should proceed in
order to ultimately find out the truth so that an innocent does not get
punished but at the same time, the guilty are brought to book under the
law. It is these ideals as enshrined under the Constitution and our laws
that have led to several decisions, whereby innovating methods and
progressive tools have been forged to find out the real truth and to ensure
that the guilty does not go unpunished.

xx xx xx

12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens
absolvitur  (Judge is condemned when guilty is acquitted) and this doctrine
must be used as a beacon light while explaining the ambit and the spirit
underlying the enactment of Section 319 CrPC.

13. It is the duty of the court to do justice by punishing the real
culprit. Where the investigating agency for any reason does not array one
of the real culprits as an accused, the court is not powerless in calling
the said accused to face trial. The question remains under what
circumstances and at what stage should the court exercise its power as
contemplated in Section 319 CrPC?

xx xx xx

19. The court is the sole repository of justice and a duty is cast upon it
to uphold the rule of law and, therefore, it will be inappropriate to deny
the existence of such powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at times, get away by
manipulating the investigating and/or the prosecuting agency. The desire to
avoid trial is so strong that an accused makes efforts at times to get
himself absolved even at the stage of investigation or inquiry even though
he may be connected with the commission of the offence.”

It also goes without saying that Section 319 Cr.P.C., which is an enabling
provision empowering the Court to take appropriate steps for proceeding
against any person, not being an accused, can be exercised at any time
after the charge-sheet is filed and before the pronouncement of the
judgment, except during the stage of Section 207/208 Cr.P.C., the committal
etc., which is only a pre-trial stage intended to put the process into
motion.

In Hardeep Singh’s case, the Constitution Bench has also settled the
controversy on the issue as to whether the word ‘evidence’ used in Section
319(1) Cr.P.C. has been used in a comprehensive sense and indicates the
evidence collected during investigation or the word ‘evidence’ is limited
to the evidence recorded during trial. It is held that it is that
material, after cognizance is taken by the Court, that is available to it
while making an inquiry into or trying an offence, which the court can
utilise or take into consideration for supporting reasons to summon any
person on the basis of evidence adduced before the Court. The word
‘evidence’ has to be understood in its wider sense, both at the stage of
trial and even at the stage of inquiry. It means that the power to proceed
against any person after summoning him can be exercised on the basis of any
such material as brought forth before it. At the same time, this Court
cautioned that the duty and obligation of the Court becomes more onerous to
invoke such powers consciously on such material after evidence has been led
during trial. The Court also clarified that ‘evidence’ under Section 319
Cr.P.C. could even be examination-in-chief and the Court is not required to
wait till such evidence is tested on cross-examination, as it is the
satisfaction of the Court which can be gathered from the reasons recorded
by the Court in respect of complicity of some other person(s) not facing
trial in the offence.

The moot question, however, is the degree of satisfaction that is required
for invoking the powers under Section 319 Cr.P.C. and the related question
is as to in what situations this power should be exercised in respect of a
person named in the FIR but not charge-sheeted. These two aspects were
also specifically dealt with by the Constitution Bench in Hardeep Singh’s
case and answered in the following manner:
“95. At the time of taking cognizance, the court has to see whether a
prima facie case is made out to proceed against the accused. Under Section
319 CrPC, though the test of prima facie case is the same, the degree of
satisfaction that is required is much stricter. A two-Judge Bench of this
Court in Vikas v. State of Rajasthan [(2014) 3 SCC 321] , held that on
the objective satisfaction of the court a person may be “arrested” or
“summoned”, as the circumstances of the case may require, if it appears
from the evidence that any such person not being the accused has committed
an offence for which such person could be tried together with the already
arraigned accused persons.

xx xx xx

105. Power under Section 319 CrPC is a discretionary and an extraordinary
power. It is to be exercised sparingly and only in those cases where the
circumstances of the case so warrant. It is not to be exercised because the
Magistrate or the Sessions Judge is of the opinion that some other person
may also be guilty of committing that offence. Only where strong and cogent
evidence occurs against a person from the evidence led before the court
that such power should be exercised and not in a casual and cavalier
manner.

106. Thus, we hold that though only a prima facie case is to be established
from the evidence led before the court, not necessarily tested on the anvil
of cross-examination, it requires much stronger evidence than mere
probability of his complicity. The test that has to be applied is one which
is more than prima facie case as exercised at the time of framing of
charge, but short of satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence of such satisfaction,
the court should refrain from exercising power under Section 319 CrPC. In
Section 319 CrPC the purpose of providing if “it appears from the evidence
that any person not being the accused has committed any offence” is clear
from the words “for which such person could be tried together with the
accused”. The words used are not “for which such person could be
convicted”. There is, therefore, no scope for the court acting under
Section 319 CrPC to form any opinion as to the guilt of the accused.
(emphasis supplied)”

In order to answer the question, some of the principles enunciated in
Hardeep Singh’s case may be recapitulated:
Power under Section 319 Cr.P.C. can be exercised by the trial court
at any stage during the trial, i.e., before the conclusion of trial, to
summon any person as an accused and face the trial in the ongoing case,
once the trial court finds that there is some ‘evidence’ against such a
person on the basis of which evidence it can be gathered that he appears to
be guilty of offence. The ‘evidence’ herein means the material that is
brought before the Court during trial. Insofar as the material/evidence
collected by the IO at the stage of inquiry is concerned, it can be
utilised for corroboration and to support the evidence recorded by the
Court to invoke the power under Section 319 Cr.P.C. No doubt, such
evidence that has surfaced in examination-in-chief, without cross-
examination of witnesses, can also be taken into consideration. However,
since it is a discretionary power given to the Court under Section 319
Cr.P.C. and is also an extraordinary one, same has to be exercised
sparingly and only in those cases where the circumstances of the case so
warrants. The degree of satisfaction is more than the degree which is
warranted at the time of framing of the charges against others in respect
of whom chargesheet was filed. Only where strong and cogent evidence
occurs against a person from the evidence led before the Court that such
power should be exercised. It is not to be exercised in a casual or a
cavalier manner. The prima facie opinion which is to be formed requires
stronger evidence than mere probability of his complicity.

When we translate the aforesaid principles with their application to the
facts of this case, we gather an impression that the trial court acted in a
casual and cavalier manner in passing the summoning order against the
appellants. The appellants were named in the FIR. Investigation was
carried out by the police. On the basis of material collected during
investigation, which has been referred to by us above, the IO found that
these appellants were in Jaipur city when the incident took place in
Kanaur, at a distance of 175 kms. The complainant and others who supported
the version in the FIR regarding alleged presence of the appellants at the
place of incident had also made statements under Section 161 Cr.P.C. to the
same effect. Notwithstanding the same, the police investigation revealed
that the statements of these persons regarding the presence of the
appellants at the place of occurrence was doubtful and did not inspire
confidence, in view of the documentary and other evidence collected during
the investigation, which depicted another story and clinchingly showed that
appellants plea of alibi was correct.

This record was before the trial court. Notwithstanding the same, the
trial court went by the deposition of complainant and some other persons in
their examination-in-chief, with no other material to support their so-
called verbal/ocular version. Thus, the ‘evidence’ recorded during trial
was nothing more than the statements which was already there under Section
161 Cr.P.C. recorded at the time of investigation of the case. No doubt,
the trial court would be competent to exercise its power even on the basis
of such statements recorded before it in examination-in-chief. However, in
a case like the present where plethora of evidence was collected by the IO
during investigation which suggested otherwise, the trial court was at
least duty bound to look into the same while forming prima facie opinion
and to see as to whether ‘much stronger evidence than mere possibility of
their (i.e. appellants) complicity has come on record. There is no
satisfaction of this nature. Even if we presume that the trial court was
not apprised of the same at the time when it passed the order (as the
appellants were not on the scene at that time), what is more troubling is
that even when this material on record was specifically brought to the
notice of the High Court in the Revision Petition filed by the appellants,
the High Court too blissfully ignored the said material. Except
reproducing the discussion contained in the order of the trial court and
expressing agreement therewith, nothing more has been done. Such orders
cannot stand judicial scrutiny.

As a consequence, this appeal is allowed setting aside the order of
summoning the appellants under Section 319 Cr.P.C.
………………………………………J.
(A.K. SIKRI)

………………………………………J.
(ASHOK BHUSHAN)

NEW DELHI;
APRIL 27, 2017

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