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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 813  OF 2019 [Arising out of SLP (Crl.) No. 1189 of 2019]

Rajesh & Ors. .. Appellants

Versus

State of Haryana .. Respondents

J U D G M E N T

M. R. Shah, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 19.12.2018 passed by the High Court

of Punjab & Haryana at Chandigarh in Criminal Revision – CRR

No. 521 of 2018 by which the High Court has dismissed the said

revision petition preferred by the appellants herein and has

confirmed the order dated 28.10.2017 passed by the learned Trial

Court, by which the appellants herein were summoned to face

the trial for the offences under Sections 148, 149, 323, 324, 325,

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302, 307 and 506 of the IPC, the appellants herein have preferred

the present appeal.

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

under:

That one Hukum Singh lodged one FIR No. 180 on 12.06.2016 at

Police Station Sadar, Panipat against ten accused, including the

appellants herein for the offences under Sections 148, 149, 323,

324, 325, 302, 307 and 506 of the IPC.   It was alleged that on

12.06.2016 at about 1.30 pm, he along with his son Bhajji and

Hari son of Parkash were going from Panipat to his village

Chhajpur Khurd on his tractor.   His son had parked his

motorcycle in front of the shop of Nande at bus stand.  Therefore,

his son Bhajji and Hari son of Parkash alighted from the tractor

to pick up the motorcycle.   When his son picked up the

motorcycle, in the meantime, Sunil son of Jagpal came on

Splendor  motorcycle.  Ravit son  of  Ramesh and  Vicky son  of

Jaswant were sitting on pillion behind him on motorcycle.

Sheela son of Paras was on his motorcycle Pulsar and Sumit son

of Jagdish, Rinku son of Rai Singh were sitting behind him on his

motorcycle.   Sunder son of Om Singh was on motorcycle Bullet

and Rajesh son of Prem and Sanjay son of Bishni were sitting

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behind him on the said motorcycle.  Ankush son of Rajinder was

on his motorcycle make Splendor and Jagdish son of Devi Singh

and Tejpal son of Nar Singh were sitting behind him.  Joni son of

Sahab Singh was on his  motorcycle  Bullet  and Sachin son of

Khilla was sitting behind him.   They were armed with swards,

pistols, hockeys, iron bars and gandasi etc.    They attacked his

son Bhajji and Hari son of Parkash.   Ravit son of Ramesh was

armed  with  a  hockey,  Vicky son  of  Jaswant  was  armed  with

wooden  baton,  Sheela son  of Paras  was  armed  with gandasi.

Sumit son of Jagdish was armed with pistol, Rinky son of Rai

Singh was armed with iron bar, Sunder son of Om Singh was

armed with wooden baton, Rajesh son of Prem was armed with

sword, Jagdish son of Devi Singh was armed with lathi, Tejpal

son of Nar Singh was armed with iron bar, Joni son of Sahab

Singh was armed with wooden handle of spade, Sachin son of

Ruhla Ram was armed with sword and Joginder son of Sahi Ram

was having gandasi with him.   Rajesh son of Prem exhorted to

kill both of them because they  were pressing hard for their

ejectment from panchayat land.   Pursuant to exhortation,

accused inflicted injuries to his son and Hari son of Parkash with

their respective weapons.   When he raised alarm, accused sped

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away on their motorcycles threatening to kill them in case any

action is taken against them.   In the  meantime, his brother

Mahender came there and they removed both the injured to Prem

Hospital where Hari son of Parkash succumbed to his injuries on

14.06.2016 during treatment.  

3.1 That all the accused named in the FIR were arrested.   The

Investigating Officer conducted the investigation and found ten

persons involved in the said incident.  However, the Investigating

Officer found that the appellants herein (six in numbers) were not

present at the site of incident.   That the Investigating Officer

submitted his report under Section 173(2) of the CrPC against

four accused only.   That, thereafter the Investigating Agency

conducted further investigation by Jagdeep Singh  HPS,  DSP,

Panipat.   It  appears that a report under Section 173(8)  of  the

CrPC was also submitted.  According to the Investigating Officer,

on the date of the commission of the offence the appellants

herein were not present at the place of occurrence, rather they

were  found on different  places which have been  found by  the

Investigating Agency also.   It appears that thereafter, as the

appellants herein were in custody, the SHO, Police Station Sadar

filed the applications before the Judicial Magistrate, First Class,

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Panipat on 01.09.2016 and 28.10.2016 submitting that after

investigation no challan is filed against the appellants herein and

no evidence is found against them and, therefore, they may be

discharged/released.   That the learned  Magistrate directed to

release the appellants.   That, thereafter the trial proceeded

further against the remaining accused against whom the

challan/charge­sheet was filed.   The prosecution examined two

witnesses – P.W.1, the original informant and P.W.2, Bhajji, the

injured eye witness.   Both of them corroborated the case of the

prosecution and categorically  stated that the appellants herein

were also present at  the time of incident.   Both of them were

cross­examined by the defence.   That, thereafter the original

informant P.W.1 submitted the application  before the learned

Magistrate under Section 319 of the CrPC to summon the

appellants herein to face the trial for the offences under Sections

148, 149, 323, 324, 325, 302, 307 and 506 of the IPC.  It was the

case on behalf  of  the original informant that P.W.1 and P.W.2

who were examined during the course of the trial, in their

depositions both of them have corroborated the case of the

prosecution and the statements which they had made before the

police have also been found corroborated and their statements

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before the Court are part of the application filed and, therefore

the appellants herein  who  were named in the FIR are to be

summoned to face the trial.   That, by a detailed judgment and

order, the learned Magistrate in exercise of powers under Section

319 of the  CrPC  has  directed to issue summons  against the

appellants herein to face the trial along with the other co­accused

for the offences under Sections 148, 149, 323, 324, 325, 302,

307 and 506 of the IPC

3.2 The order passed by the learned Magistrate has been

confirmed in revision by the High Court by the impugned

judgment and order.  Hence the present appeal by the appellants

herein who are issued the summons to face the trial in exercise of

powers under Section 319 of the CrPC.

4. Shri R. Basant,  learned Senior Advocate has appeared on

behalf of the appellants herein.

4.1 Shri Basant, learned Senior Advocate appearing on behalf of

the appellants has vehemently submitted that, in the facts and

circumstances of the case, the learned Magistrate has erred in

summoning the appellants herein to face the trial in exercise of

powers under Section 319 of the CrPC.   

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4.2 It is vehemently submitted by Shri Basant, learned Senior

Advocate  appearing on behalf  of the  appellants that  both, the

High Court as well as the learned Trial Court have not properly

appreciated the scope and ambit of the powers to be exercised

under Section 319 of the CrPC.   Relying upon the decision of

this Court  in the case of  Hardeep Singh v. State of Punjab

(2014) 3 SCC 92, it is submitted by the learned Senior Advocate

appearing on behalf of the appellants that, as observed and held

by  this  Court, the  power  under  Section 319 of the  CrPC  is  a

discretionary and an extraordinary power and it is to be exercised

sparingly and only in those cases where the circumstances of the

case so warrant.    

4.3 It is submitted by the learned Senior Advocate appearing on

behalf of the appellants that the learned Magistrate has

mechanically passed the order despite the fact that there was no

strong and cogent evidence on record even at the time of the trial.

4.4 It is further submitted by the learned Senior Advocate

appearing on behalf of the appellants that, in the present case, as

such, the investigating agency thoroughly investigated the case

when all the appellants were in judicial custody and after taking

into account all the facts and evidence, came to the conclusion

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that all the appellants were innocent as they were not present at

the place of incident and thereafter submitted the report under

Section 173(2) of the CrPC and filed the challan only against four

accused persons and did not file the challan against the

appellants herein.   It is submitted that not only that, even

thereafter also, further investigation was carried out by the DCP

who submitted the report under Section 173(8) of the CrPC and

in that report also all the appellants were found innocent.   It is

submitted that, therefore, the SHO, Police Station Sadar

submitted the applications praying for discharge of the

appellants  specifically  stating that the  appellants are  innocent

and the learned Magistrate allowed the said discharge

applications, though opposed by the complainant.   It is

submitted that, therefore, once the learned Magistrate discharged

the appellants on the applications submitted by the SHO, Police

Station,  Sadar, thereafter  solely on the basis of  depositions of

P.W.1 and P.W.2 which was nothing but reiteration of what they

stated in their statements before the police, the learned

Magistrate was not justified in summoning the appellants herein

to face the trial in exercise of powers under Section 319 of the

CrPC.  

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4.5 Relying upon the decision of this Court in the case of

Bijendra Singh v. State of Rajasthan  (2017) 7 SCC 706, it is

vehemently submitted by Shri Basant, learned Senior Advocate

appearing on behalf of the appellants that, as observed by this

Court, merely on the basis of the deposition of the complainant

and some other persons, with no other material to support their

so­called verbal/ocular version, no person can be arrayed as an

accused in exercise of powers under Section 319 of the CrPC.    It

is submitted by the learned Senior Advocate appearing on behalf

of the appellants that, as observed by this Court in the aforesaid

decision, such an “evidence” recorded during the trial is nothing

more than the statements which was already there under Section

161 of the CrPC recorded at the time of investigation of the case.

Relying upon the aforesaid decision, it is vehemently submitted

by the learned Senior Advocate appearing on behalf of the

appellants that, in any case, the learned Magistrate was bound to

look into the evidence collected by the investigating officer during

investigation which suggested that the accused were not present

at the time of commission of the offence.  It is submitted that, in

the present case, the learned  Magistrate on the applications

submitted by the SHO in fact discharged the accused­appellants

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herein and allowed  the  applications  submitted by the  SHO in

which it was categorically stated that the appellants are innocent

and that they were not present at the time of the incident.  It is

submitted that therefore the High Court has erred in dismissing

the revision  petition and confirming the order passed  by the

learned Magistrate in summoning the accused­appellants herein

to face the trial for the offences under Sections 148, 149, 323,

324, 325, 302, 307 and 506 of  the IPC, which was passed  in

exercise of powers under Section 319 of the CrPC.

5. Learned counsel appearing on behalf of the respondent­

State of Haryana has supported the order passed by the learned

Magistrate as well as the impugned judgment and order passed

by the High Court.   He has also relied upon some of the

observations made by this Court in the case of  Hardeep Singh

(supra) and even some of the observations made by this Court in

the case of Bijendra Singh (supra).

5.1 It is vehemently submitted by the learned counsel appearing

on behalf  of the  State that it is  not  correct to  state that the

appellants herein were discharged by the learned Magistrate on

the applications filed by the SHO,    It is submitted that the SHO

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submitted the applications to discharge the appellants from the

custody and to release them  as they  were in jail and those

applications came to be allowed.   It is submitted that therefore

the orders dated 01.09.2016 and 28.10.2016 cannot be said to

be the orders of discharge in  stricto sensu, as sought to be

contended on behalf of the appellants.

5.2 It is submitted that, in the present case, even at the initial

stage when the investigating officer submitted the report under

Section 173(2) of the CrPC and the challan was filed only against

four accused persons, out of ten accused persons named in the

FIR and the remaining six accused (appellants herein) were

dropped, nothing is on record that the learned Magistrate

accepted the report/closure report  against the appellants  and,

that too, by following the procedure as required as per the

decision of this Court in the case of  Bhagwant Singh v.

Commissioner of Police  (1985)  2 SCC 537.    It is  submitted

that, as per settled law, before even accepting the closure report,

an opportunity is required to be given to the informant to submit

the objections/protest and only thereafter the closure report can

be accepted.   It is submitted that, in the present case, no such

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procedure was followed.   It is submitted that thereafter when in

the examination­in­chief/cross­examination, P.W.1 and P.W.2,

who are the informant and the injured eye witness respectively,

categorically deposed that the appellants were also present at the

time of the incident and they actively participated in commission

of offence and, therefore, in the facts and circumstances of the

case, the learned Magistrate was justified in issuing the

summons against the appellants to face the trial along with the

other  co­accused.     It is  submitted  that, therefore, the  order

passed by the learned Trial Court is rightly confirmed by the High

Court by the impugned judgment and order.

5.3  Making the above submissions, it is prayed to dismiss the

present appeal.    

6. Heard learned counsel appearing on behalf of the respective

parties  at length.    We have also perused and considered the

orders  passed by the  High Court  as  well  as the learned Trial

Court in depth.

6.1 At the outset, it is required to be noted that, in the present

case, what is under challenge is the impugned order passed by

the High Court dismissing the revision application and

confirming the order passed by the learned Trial Court

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summoning the accused in exercise of powers under Section 319

of the CrPC and to face the trial for the offences under Sections

148, 149, 323, 324, 325, 302, 307 and 506 of the IPC.   It is

required to be noted that, in the present case, the original

complainant­first informant specifically named ten  persons  as

accused, including the  appellants  herein.  However, thereafter

after the investigation, the investigating officer filed the charge­

sheet/challan against four accused persons only and no

challan/charge­sheet was filed against the appellants herein.

Nothing is on record whether at that time any specific closure

report was submitted by the investigating officer or not.  Nothing

is on record whether at that stage an opportunity was given to

the complainant/original informant to submit any protest

application or not.   Assuming that non­filing of the charge­

sheet/challan against the remaining accused named in the FIR

can be said to be a closure report, in that case also, as per the

settled proposition of law and more particularly, the decision of

this Court in the case of  Bhagwant Singh  (supra), before

accepting  the closure report, the Magistrate  is  bound to  issue

notice to the complainant/original informant and the

complainant/original informant is required to be given an

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opportunity to submit the protest application and, thereafter,

after giving an opportunity to the complainant/original

informant, the Magistrate may either accept the closure report or

may not accept the closure report and direct to proceed further

against those persons for whom the closure report was

submitted.    In the present case, nothing is on record that such

a procedure was followed by the learned  Magistrate.   That,

thereafter the trial proceeded against the four accused persons

against  whom the charge­sheet/challan was  filed.  During  the

trial, the depositions of P.W.1 and P.W.2 were recorded.  Both of

them were even cross­examined.   In the deposition, P.W.1 and

P.W.2 specifically  stated  the overacts  by  the  appellants herein

and the role played by them and categorically stated that at the

time of the  incident/commission of the offence, the appellants

herein were also present and they participated in the commission

of the offence. That, thereafter, on the application submitted by

the original complainant submitted  under Section  319 of the

CrPC, the learned Magistrate found a prima facie case against the

appellants herein and summoned the appellants herein to face

the trial along with other co­accused.   The said order has been

confirmed by the  High  Court.   Therefore, the short question

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posed for the consideration of this Court is whether, in the facts

and circumstances of the case, the Trial Court was justified in

summoning the appellants herein to face the trial in exercise of

powers under Section 319 of the CrPC?     

7. While considering the aforesaid question/issue, few

decisions of this Court are required to be referred to and

considered.

7.1 The first decision which is required to be considered is a

decision of the Constitution Bench of this Court in the case of

Hardeep Singh (supra) which has been consistently followed by

this Court in subsequent decisions.    

7.2 In the case of  Hardeep Singh  (supra), this Court had the

occasion to consider in detail the scope and ambit of the powers

of the Magistrate under Section 319 of the CrPC; the object and

purpose of Section 319 of the CrPC etc.   In the said case, the

following five questions fell for consideration before this Court:

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

(ii)  Whether  the word “evidence” used  in Section 319(1) CrPC could only  mean evidence tested by cross­examination or the court can exercise the power under the said provision even on the basis of the statement  made in the examination­in­chief of the witness concerned?

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

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

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

7.3 While considering the aforesaid questions, this Court

observed and held as under:

“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?

14. The submissions that were raised before us covered a very wide canvas and the learned counsel have taken  us through various  provisions  of  CrPC and the judgments that have been relied on for the said purpose. The controversy centres around the stage at which such powers can be invoked by the

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court  and  the  material  on the  basis  whereof such powers can be exercised.

17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of  the charge­sheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.

18. The legislature cannot be presumed to have imagined all  the circumstances and, therefore,  it  is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot­free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.

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.

22. In our opinion, Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person

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not being an accused for also having committed the offence under trial.  .....

47. Since after the filing of the charge­sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised  at any time  after the charge­sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre­trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre­trial stage, the  Magistrate is required to perform acts in the nature of administrative  work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it  would  be legitimate for  us to  conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine  as to  whether  any  accused  needs to  be added or subtracted to face trial before the Court of Session.

53. It is thus aptly clear that until  and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 CrPC cannot be exercised. ............

54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to  whether a person,  who can  be an accused,  has  been  erroneously  omitted from being arraigned or has been deliberately excluded by the

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prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those  persons  who  deserve to  be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise 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 the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.

56. ........ What is essential for the purpose of the section  is that there  should  appear  some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there  appears  to  be some evidence  pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded.”

7.4 While answering question No. (iii), namely whether the word

“evidence” used in Section 319(1) of the CrPC has been used in a

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comprehensive sense and includes the evidence collected during

investigation or the  word  “evidence” is limited  to the  evidence

recorded during trial, this Court,  in the aforesaid decision has

observed and held as under:

“58. To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers  under  Section  319  CrPC, the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts  and material that  come up before the court and are made the basis for summoning such a person  as an  accomplice to the offence  alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence  which has  to  be the  material that  appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be “where … it appears from the evidence” before the court.

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

“(1) all statements which the court permits or requires to  be  made  before it  by  witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence.”

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

82. This pre­trial stage is a stage where no adjudication on the evidence of the offences involved takes  place  and  therefore,  after the  material  along with the charge­sheet  has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that  is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing  the accused before  the court has still  not begun.  What is available is the  material that has been submitted before the court along with the charge­sheet.  In such situation, the court only has the preparatory material that has been placed before the  court for its consideration in  order to  proceed with the trial by framing of charges.

83. It  is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the

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purpose of summoning any other person, other than the accused. ........

84. The word “evidence” therefore has to be understood  in  its  wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such  material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.

85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any  material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The “evidence” is thus, limited to the evidence recorded during trial.”

7.5 While answering question No. (ii), namely whether the word

“evidence” used in Section 319(1) of the CrPC means as arising in

examination­in­chief or also together with cross­examination, in

the aforesaid decision, this Court has observed and held as

under:

“86. The second question referred to herein is in relation to the word “evidence” as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that

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are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination­in­chief. In Rakesh [(2001) 6 SCC 248 : 2001 SCC (Cri) 1090 : AIR 2001 SC 2521] , it was held that: (SCC p. 252, para 10)

“10.  … It  is true that finally at the time of trial the accused is to be given an opportunity to cross­examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition  is  recorded, no doubt there being no cross­examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 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 the entire 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] , it was held that the prerequisite for exercise of power under Section 319  CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for  which the court can even wait till the cross­examination is over and that there would be no illegality in doing so. A similar view has been taken by a two­Judge Bench in Harbhajan Singh v. State of Punjab [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] . This Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2009) 16 SCC 785 : (2010) 2 SCC (Cri) 355] seems to have misread the judgment

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in Mohd. Shafi[Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544  : (2009)  1 SCC  (Cri)  889  :  AIR 2007 SC 1899] , as it construed that the said judgment laid down that for the  exercise  of  power under Section 319 CrPC, the court has to necessarily wait till the witness is cross­examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC.

89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases.  Once  examination­in­chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of  some other person who may be connected with the offence.

90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13 SCC  608 : (2010) 1  SCC (Cri) 1135] , all that is required for the exercise of the power under Section 319 CrPC  is  that, it  must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must 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 the  Magistrate/court is convinced even on the basis of evidence appearing in examination­in­chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words “such person could be tried”

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instead of should be tried. Hence, what is required is not to have a mini­trial at this stage by having examination and cross­examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini­trial that would affect the right of the  person sought to  be arraigned as an accused rather than not having any cross­examination at all, for in light of sub­section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross­examine prosecution witnesses and examine defence witnesses and advance  his arguments  upon the same.  Therefore, even on the basis of examination­in­chief, the court or the Magistrate can proceed against  a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination­in­chief untested by cross­ examination, undoubtedly in itself, is an evidence.

91. Further, in our opinion, there does not seem to be any logic behind waiting till the cross­ examination of the witness is over. It is to be kept in mind that at the time of exercise of power  under Section 319 CrPC, the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross­examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross­examine the witness(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. Secondly,  invariably the State would not oppose or object to naming of more persons as an accused as it would only  help the  prosecution  in  completing the chain of evidence, unless the witness(es) is obliterating the role of  persons already  facing trial. More so, Section 299 CrPC enables the court to record evidence in absence of the accused in the circumstances mentioned therein.

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92. Thus, in view of the above, we hold that power under Section 319 CrPC can be exercised at the stage of completion of examination­in­chief and the court does not need to wait till the said evidence is tested on cross­examination for 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 the trial in the offence.”

7.6 While answering question No. (iv), namely what is the degree

of satisfaction required for invoking the power under Section 319

of the CrPC, this Court after considering various earlier decisions

on the point, has observed and held as under:

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 cross­examination, 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

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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.”

7.7 While answering question No. (v), namely in what situations

can the power under Section 319 of the  CrPC be exercised:

named in the FIR, but not charge­sheeted or has been

discharged, this Court has observed and held as under:

“112. However, there  is  a  great  difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge­sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation, the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there  must exist compelling circumstances to exercise such power. The court should keep  in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect  in

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treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 CrPC without resorting to the provision of Section 319 CrPC directly.

116. Thus, it is evident that power under Section 319  CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge­sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC.”

7.8 Considering the law laid down by this Court in the case of

Hardeep Singh  (supra) and the observations and findings

referred to and reproduced hereinabove,  it emerges that  (i)  the

Court can exercise the power under Section 319 of the CrPC even

on the basis of the statement made in the examination­in­chief of

the witness concerned and the Court need not wait till the cross­

examination of such a witness and the Court need not wait for

the evidence against the accused proposed to be summoned to be

tested by cross­examination; and (ii) a person not named in the

FIR  or  a  person though named in the  FIR  but  has  not  been

charge­sheeted or a person  who  has  been  discharged can  be

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summoned under Section 319 of the CrPC,  provided  from the

evidence (may be on the basis of the evidence collected in the

form of statement made in the examination­in­chief of the

witness concerned), it appears that such  person  can  be tried

along with the accused already facing trial.

7.9 In the case of  S. Mohammed Ispahani v. Yogendra

Chandak (2017) 16 SCC 226 in para 35, this Court has observed

and held as under:

“35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds  no role of that particular person and files the charge­sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge­sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge­sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets  triggered when during the  trial  some evidence surfaces against the proposed accused.”

7.10 Thus, even in a case where the stage of giving

opportunity to the complainant to file a protest petition urging

upon the trial Court to summon other persons as well who were

named in the FIR but not  implicated  in the charge­sheet has

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gone, in that case also, the Court is still not powerless by virtue

of Section 319 of the CrPC and even those persons named in the

FIR but not implicated in the charge­sheet can be summoned to

face the trial provided during the trial some evidence surfaces

against the proposed accused.

8. Applying the law laid down by this Court in the aforesaid

decisions to the facts of the case on hand, we are of the opinion

that, in the facts  and circumstances  of the  case,  neither the

learned Trial Court nor the High Court have committed any error

in summoning the appellants herein to face the trial along with

other co­accused.   As observed hereinabove, the appellants

herein were also  named  in  the  FIR.  However, they were not

shown as  accused in the challan/charge­sheet.  As  observed

hereinabove, nothing is on record whether at any point of time

the complainant was given an opportunity to submit the protest

application  against  non­filing of the charge­sheet against the

appellants.  In the deposition before the Court, P.W.1 and P.W.2

have  specifically  stated against the appellants herein and the

specific role is attributed to the accused­appellants herein.

Thus, the statement of P.W.1 and P.W.2 before the Court can be

said to be “evidence” during the trial and, therefore, on the basis

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of the same and as held by this Court in the case of  Hardeep

Singh  (supra), the  persons  against  whom no  charge­sheet is

filed can be summoned to face the trial.  Therefore, we are of the

opinion that no error has been committed by the Courts below to

summon the appellants  herein  to face  the trial in  exercise  of

power under Section 319 of the CrPC.

9. Now, so far as the submissions  made on  behalf of the

appellants herein relying upon the orders passed by the learned

Magistrate dated 01.09.2016 and 28.10.2016 that once the

appellants herein were discharged by the learned Magistrate on

an application submitted by the Investigating Officer/SHO and,

therefore, thereafter it was not open to the learned Magistrate to

summon the accused to face the trial in exercise of power under

Section 319 of the CrPC is concerned, it appears that there is

some mis­conception  on the  part of the  appellants.    At the

outset, it is required to be noted that the orders dated

01.09.2016  and  28.10.2016  cannot  be said to  be the orders

discharging the accused.   If the applications submitted by the

Investigating  Officer/SHO and the orders  passed thereon  are

considered, those were the applications to discharge/release the

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appellants herein from custody as at that stage the appellants

were in judicial custody.   Therefore, as such, those orders

cannot be said to be the orders of  discharge  in  stricto sensu.

Those are the orders discharging the appellants from custody.

Under the circumstances, the submission on behalf of the

accused that as they were discharged by the learned Magistrate

and therefore it was not open to the learned  Magistrate to

exercise the power under Section 319 of the CrPC and to

summon the appellants to face the trial, cannot be accepted.   

10.  In view of the above and for the reasons stated above, we

see  no reason to interfere  with the impugned judgment and

order passed by the High Court confirming the order passed by

the learned Magistrate summoning the accused­appellants

herein to face the trial  in exercise of the power under Section

319 of the CrPC.   We are in complete agreement with the view

taken by the High Court.   No interference is called for by this

Court.   In the facts and circumstance of the case and for the

reasons stated hereinabove, the present appeal fails and

deserves to be dismissed and is according dismissed.

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............................................J.       [L. NAGESWARA RAO]

NEW DELHI;      ............................................J. MAY 1, 2019.                 [M.R. SHAH]