CRIMINAL APPEAL NO.  121    OF 2012  (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  121    OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011

JILE SINGH                                    Appellant(s)

                VERSUS

STATE OF U.P.& ANR                            Respondent(s)

O  R  D  E  R

R.M. LODHA, J.

Leave granted.

2. A certain Bharat Lal Sharma was done to death  

on October 26, 2008. His father (respondent No. 2 herein)  

informed  the  Police  Station  Kosikalan  on  the  next  day,  

i.e.,  October  27,  2008  at  8  a.m.  that  he  received  an  

information in the morning at about 7 a.m. that his son  

Bharat Lal Sharma had been murdered and his dead body was  

lying  in  the  agricultural  field  of  Ghure  son  of  Gaisi,  

'Jat' resident of Tumaura. On receipt of this information,  

he (respondent No. 2 herein ) went to the spot and found  

that the body of his son was lying in blood. His son was  

killed with some sharp edged weapon the previous night. He  

requested the police to register First Information Report

CRIMINAL APPEAL NO.  121    OF 2012  (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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(FIR) against unknown accused persons and take appropriate  

action in the matter.  On this information, an FIR was  

registered and investigation commenced.  On conclusion of  

the  investigation,  the  Investigating  Officer  submitted  

charge-sheet  naming  one  Hari  Singh  as  an  accused  having  

committed the murder of Bharat Lal Sharma.  On the basis of  

the  material  collected  by  the  Investigating  Officer,  no  

case was found out against the present appellant-Jile Singh  

and the Investigating Officer concluded that the appellant  

has been falsely named in the course of investigation.

3. On  May  2,  2009,  the  Chief  Judicial  

Magistrate,  Mathura,  committed  the  accused-Hari  Singh  to  

the Court of Sessions Judge, Mathura for trial.  It was  

then that the complainant-respondent No. 2 herein filed a  

private complaint under Section 200 of the Code of Criminal  

Procedure, 1973 (for short, 'the Code') in the court of  

Judicial Magistrate, Mathura, against the present appellant  

and one Jayveer Singh for the murder of his son Bharat Lal  

Sharma.

4. The Chief Judicial Magistrate, Mathura, after  

recording  the  statements  under  Section  202  of  the  Code,  

issued  summons  to  the  appellant  on  January  3,  2011.  

Aggrieved  by  that  order,  the  appellant  filed  Criminal  

Revision before the Allahabad High Court which came to be

CRIMINAL APPEAL NO.  121    OF 2012  (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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dismissed on March 10, 2011. It is from this order that the  

present Appeal, by special leave, has arisen.

5. Mr.  Manoj  Saxena,  learned  counsel  for  the  

appellant, submitted that the issuance of summons by the  

Chief Judicial Magistrate, Mathura, on a private complaint  

made by the respondent No. 2 after committal of accused-

Hari  Singh  for  the  murder  of  Bharat  Lal  Sharma  to  the  

Sessions Court, was without jurisdiction. He would submit  

that addition of a new person to the array of the accused  

in a case pending before the sessions court can only be  

done by that court in exercise of the power under Section  

319 of the Code and in no other way.  In this regard, he  

relied upon decisions of this Court in the cases of Ranjit  

Singh  Vs.  State of Punjab1  and  Kishori Singh and Ors.  

Vs.  State of Bihar and Anr.2   

6. Mr. Ratnakar Dash, learned senior counsel for  

the respondent No. 1-State of Uttar Pradesh, and Mr. Vikram  

Patralekh,  learned  counsel  for  respondent  No.  2-

complainant,  stoutly  defended  the  impugned  order.   They  

submitted  that  the  complaint  filed  by  the  complainant  

before the Magistrate was maintainable under Section 200 of  

the Code since the Investigating Officer on conclusion of  

the  investigation  did  not  name  the  appellant  as  accused  

1  (1998) 7 SCC 149 2  (2004) 13 SCC 11

CRIMINAL APPEAL NO.  121    OF 2012  (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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although there was material to that effect in the course of  

investigation. The learned senior counsel and the learned  

counsel for the respondents submitted that if on receipt of  

a report, the police takes up the investigation of a case  

and on completion thereof submits a charge-sheet against  

few persons and leaves the other persons involved in the  

crime by stating in the report that no case has been made  

out  against  such  person,  it  is  open  to  the  aggrieved  

complainant to file a complaint under Section 200 of the  

Code and the Magistrate is empowered to issue summons.  In  

this regard, they relied upon a decision of this Court in  

Hareram  Satpathy  Vs.   Tikaram  Agarwala  &  Ors.3  

Mr.  Ratnakat  Dash,  learned  senior  counsel  for  the  

respondent No. 1, also referred to another decision of this  

Court in  Kishan Lal  Vs.  Dharmendra Bafna & Anr.4 and  

submitted that if a right has been given to the complainant  

to be given notice of filing of the police report and to  

file protest petition, there is no impediment in the law  

for  maintaining  a  complaint  if  persons  involved  in  the  

crime have been left over by the police in the course of  

the investigation.

7. The present case, in our view, is squarely  

covered by the law laid down by this Court in the case of  

3   1978 (4) SCC 58 4   2009 (7) SCC 685

CRIMINAL APPEAL NO.  121    OF 2012  (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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Ranjit  Singh (supra)  and  the  subsequent  decision  in  the  

case of  Kishori Singh (supra) reiterating the same legal  

position. In Ranjit Singh (supra), this Court was concerned  

with the issue whether the sessions  court can add a new  

person to the array of the accused in a case pending before  

it at a stage prior to collecting any evidence. The three  

Judge  Bench  that  considered  the  above  issue  referred  to  

various provisions of the Code, namely, Sections 204, 207,  

208, 209, 225, 226, 227, 228, 229, 230 and 319  and held as  

under :

“19. So from the stage of committal till  the  Sessions  Court  reaches  the  stage  indicated in Section 230 of the Code, that  court  can  deal  with  only  the  accused  referred  to  in  Section  209  of  the  Code.  There  is  no  intermediary  stage  till  then  for  the  Sessions  Court  to  add  any  other  person to the array of the accused.

20.  Thus,  once  the  Sessions  Court  takes  cognizance of the offence pursuant to the  committal order, the only other stage when  the  court  is  empowered  to  add  any  other  person to the array of the accused is after  reaching  evidence  collection  when  powers  under  Section  319  of  the  Code  can  be  invoked.  We  are  unable  to  find  any  other  power  for  the  Sessions  Court  to  permit  addition  of  new  person  or  persons  to  the  array of the accused. Of course it is not  necessary for the court to wait until the  entire evidence is collected for exercising  the said powers.”

CRIMINAL APPEAL NO.  121    OF 2012  (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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8. The above legal position has been reiterated  

by  this  Court  in  a  subsequent  decision  in  the  case  of  

Kishori Singh (supra). The two Judge Bench in Kishori Singh  

(supra) considered some of the provisions of the Code and  

earlier decision of this Court in Ranjit Singh (supra) and  

two other decisions, namely, Raj Kishore Prasad  Vs.  State  

of  Bihar  5      and  India  Carat  (P)  Ltd.  Vs.   State  of  

Karnataka6, and held as under :-

“9. After going through the provisions of the  Code of the Criminal Procedure and the aforesaid  two judgments and on examining the order dated  10-6-1997 passed by the Magistrate, we have no  hesitation to come to the conclusion that the  Magistrate could not have issued process against  those persons who may have been named in the FIR  as accused persons, but not charge-sheeted in the  charge-sheet that was filed by the police under  Section 173 CrPC.

10. So far as those persons against whom charge- sheet has not been filed, they can be arrayed as  “accused  persons”  in  exercise  of  powers  under  Section 319 CrPC when some evidence or materials  are brought on record in course of trial or they  could also be arrayed as “accused persons” only  when a reference is made either by the Magistrate  while passing an order of commitment or by the  learned Sessions Judge to the High Court and the  High Court, on examining the materials, comes to  the  conclusion  that  sufficient  materials  exist  against them even though the police might not  have filed charge-sheet, as has been explained in  the latter three-Judge Bench decision.  Neither  of the contingencies has arisen in the case in  hand.”  

5   (1996) 4 SCC 495 6   (1989) 2 SCC 132

CRIMINAL APPEAL NO.  121    OF 2012  (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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9. In the present case, if the order passed by  

the Chief Judicial Magistrate, Mathura, in issuing summons  

against  the  appellant  on  the  complaint  filed  by  the  

respondent No. 2-complainant, which has been confirmed by  

the High Court, is allowed to stand, it would mean addition  

of the appellant to the array of the accused in a pending  

case  before  the  Sessions  Judge  at  a  stage  prior  to  

collecting  any  evidence  by  that  court.   This  course  is  

absolutely impermissible in view of the law laid down by a  

three Judge Bench of this court in the case of Ranjit Singh  

(supra).  The  stage  of  Section  209  of  the  Code  having  

reached in the case, it was not open to the Chief Judicial  

Magistrate,  Mathura  to  exercise  the  power  under  Section  

204(1)(b) of the Code and issue summons to the appellant.  

The  order  of  the  Chief  Judicial  Magistrate,  Mathura  is  

totally without jurisdiction.  The High Court was clearly  

in error in not keeping in view the law laid by this Court  

in  the  case  of  Ranjit  Singh (supra)  followed  by  a  

subsequent decision in the case of  Kishori Singh (supra)  

and in upholding the illegal order of the Chief Judicial  

Magistrate, Mathura.

10. The  two  decisions,  namely,  Hareram  Satpathy  

(supra)and  Kishan Lal (supra) relied upon by the learned

CRIMINAL APPEAL NO.  121    OF 2012  (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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senior  counsel  and  counsel  for  the  respondents  have  no  

application at all to the case in hand.

11. We, accordingly, allow this Appeal and set aside the  

order of the High Court dated March 10, 2011 impugned in  

this present Appeal and the order of the Chief Judicial  

Magistrate, Mathura, dated January 3, 2011.

12. Needless to say that in the course of trial, on the  

basis of the evidence if it appears to the Sessions Judge  

that any person not being the accused in the trial has  

committed the offence and the case is made out for exercise  

of  power  under  Section  319  of  the  Code  for  proceeding  

against such person,  it will be open to the Sessions Judge  

to proceed accordingly and the present order will not come  

in the way in exercise of his power under Section 319 of  

the Code.

........................J. (R.M. LODHA)

NEW DELHI; ........................J. JANUARY 12, 2012 (H.L. GOKHALE)