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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1301  OF 2013 (@ SPECIAL LEAVE PETITION (CRL.)NO.5294 OF 2012)

GULAB CHAND ...APPELLANT

VERSUS

PRADEEP KR. DEHALWAL AND ANR.    ...RESPONDENTS

O R D E R

1. Leave granted.

2. This appeal is directed against the judgment and order passed  

by the High Court of Judicature of Madhya Pradesh, Bench at Gwalior  

in  Criminal  Revision  No.704  of  2011,  dated  23.09.2011.  By  the  

impugned judgment and order, the High Court has set aside the order  

passed by the Trial Court on an application filed by the prosecution  

under Section 319 of the Code of Criminal Procedure, 1973 ('the  

Code' for short).

3. The Trial Court as well as the High Court has referred to the  

facts in detail. Therefore, we will only advert to the facts of the  

case briefly and they are as follows :-  The incident occurred on  

04.05.2007 at around 3.30 p.m. in the house of the Respondent No.1  

-Pradeep Dehalwal, where the deceased-Nitesh succumbed to a bullet  

injury. Thereafter, an FIR was lodged by the Respondent No. 1 before  

the Police station at Ashok Nagar  against Ritesh  Pathak (A1) and  

Narendra Singh Dhakad (A2) under Sections 304, 201, 34 of the Indian

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Penal Code (“the IPC” for short)  and Section 3(2)5 of  S.C./S.T.  

Act.  

4. After completion of the investigation, the investigating agency  

had filed a charge-sheet against (A1) and (A2) for the offences  

under Sections 302 read with 34 of the IPC.   

5. After examining the main prosecution witnesses during the trial,  

the prosecution had filed an application under Section 319 of the  

Code,  inter alia, requesting the Court to direct respondent No.1  

herein to face the trial along with the other arraigned accused  

persons for offences under Section 302 read with 34 of the IPC.  

6. The Trial Court after taking into consideration the evidence of  

P.W.5- mother of the deceased and the evidence of P.W.6- father of  

the deceased, has come to the conclusion that respondent no. 1 had  

formed  a  common  intention  along  with  the  other  accused  and  in  

furtherance of the common intention, played an important role in the  

killing  of  the  deceased,  and  accordingly,  has  allowed  the  

application filed by the prosecution. In  the  words  of  the  Trial  

Court :

“Both sides were heard on the present application  and  original  case  and  the  statements  of  the  witnesses were perused.  From the perusal of the  records  it  is  found  that  before  the  Court  Manjulata Jaatav (PW-5) who is the mother of the  deceased,  has  stated  in  para  2,  4  of  her  statement and witness (PW-6) Gulabchandra who is  the father of the deceased has stated in para 1,  4 and 5 of his statement and PW-7 Niran Nigam has  stated in para 3 and 7 of his statement clearly  about the threatening given by Pradeep Dahalwaar  to the deceased to kill him and committing the

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murder of Nitesh by shooting and his involvement  in the incident and even in forensic report the  place of incident is stated to be the room of  Pradeep  Dahalwaar.   In  this  way  from  the  statements of the above prosecution witnesses and  from  the  forensic  report  given  by  the  senior  scientist the evidence in record to the place of  incident  as  the  room  of  Pradeep  Dahalwaar  has  appeared.  Looking at the above evidence it is  found  proper  to  accuse  Pradeep  Dahalwaar  along  with other accused persons in the case, to take  cognizance against him and conduct his trial.”  

7. Being aggrieved by the order so passed by the Trial Court,  

respondent  no.1  herein,  had  filed  a  Criminal  Revision  Petition  

before  the  High  Court.  The  High  Court  in  the  impugned  judgment  

notices the conclusions reached by the Trial Court. However, on a  

very strange reasoning holds that the Trial Court was not justified  

in allowing the application filed by the prosecution to call upon  

the respondent no.1 to face the trial for the death of the deceased.

In the words of the High Court :

“Looking to the statements of the witnesses, it is  gathered  that  just  before  the  incident,  deceased  Nitesh informed that accused and the petitioner were  threatening  him  to  kill,  but  therefore  the  trial  Court,  there  was  no  strong  circumstance  appeared  against the petitioner to establish his involvement  in the commission of murder of Nitesh. Besides, it  there was no direct or indirect evidence to involve  him in the alleged crime.  No doubt, the trial court  can take such a step to add such persons as accused  only on the basis of evidence adduced before it and  not on the basis of material available in the charge- sheet or the case diary, but to invoke powers under  Section 319 of Cr.P.C., it is essential that need to  proceed against a person other than accused appearing  to be guilty of offence, should arise only on the  evidence recorded in the course of any enquiry or  trial. Where no such evidence is recorded nor the  Investigating  Officer  has  collected  any  material  against such person during investigation, the person  shouldn't be summoned under Section 319 of Cr.P.C.,  the Court must arrive at the satisfaction that there

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exists a possibility that the accused so summoned is  in all likelihood would be convicted. So, the Court  has  to  use  the  power  under  Secion  319  of  Cr.P.C.  Sparingly  and  primarily  to  advance  the  cause  of  criminal justice but not as a handle at the hands of  the complainant to cause harassment to the person who  is not involved in the commission of crime.”

8. With the assistance of the learned counsel for the appellant  

and respondent no.1, we have carefully perused the evidence of the  

mother of the deceased- P.W.5 and the father of the deceased-P.W.6.  

We have also seen the order passed by the Trial Court as well as by  

the  High  Court.  The  High  Court,  without  properly  examining  the  

evidence on record and without properly appreciating the judgment  

passed by the Trial Court, ought not to have reversed the findings  

reached by the Trial Court. In our considered view, the Trial Court  

was justified in calling upon the respondent no.1 to face the trial  

for the death of the deceased.  

9. In view of the above, we allow this appeal, set aside the order  

passed by the High Court in Criminal Revision No.704 of 2011 and  

restore the order passed by the Trial Court.

10. Any observations made by us in the course of our order are only  

for the purpose of disposal of this appeal. This should not be taken  

as an expression of our opinion for involving of respondent no.1 for  

the death of the deceased.

11. In view of the order passed by us, the interim order granted by

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this Court stands vacated.

12. The incident is of the year 2007 and, therefore, we request the  

Trial Court to expeditiously dispose of the trial, provided both the  

parties co-operate in completion of such trial.  

..........................J. (H.L. DATTU)

..........................J. (SUDHANSU JYOTI MUKHOPADHAY)

..........................J. (M.Y. EQBAL)

NEW DELHI; AUGUST 29, 2013