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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

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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.   

2) 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

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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.

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3) 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

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Sessions Court to add any person in the array of accused under

Section 319 Cr.P.C.   

4) 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.   

5) 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

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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.   

6) 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:

(i) 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.

(ii) Medical Certificate No. 13365 dated 28.04.2000 issued by

the  Medical  Officer,  Primary  Medical  Centre,  Moti  Kotla,

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Jaipur, certifying that Jagdish Singh was suffering from .....

(illegible) disease on 24.04.2000 and was advised five days

rest.

(iii) 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.

(iv) 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.

(v) 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

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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.

(vi) 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.

(vii) 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

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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.

(viii) 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.

7) 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

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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.

8) 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

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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.

9) 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

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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.

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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?

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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.”

10) 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

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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.

11) 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

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‘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.

12) 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.

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105. Power under Section 319 CrPC is a discretionary

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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)”

13) 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

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‘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.   

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14) 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.

15) 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

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Page 18

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.

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16) 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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