REPORTABLE

IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 509  OF 2019_ (Arising Out of SLP (Crl.) No. 9687 of 2018)

SUGREEV KUMAR ….APPELLANT(S)

VERSUS

STATE OF PUNJAB & ORS.           ….RESPONDENT(S)

JUDGMENT

Dinesh Maheshwari J.

Leave Granted.  

2. In  this  appeal,  the  complainant-appellant  has  called  in  question  the

judgement and order dated 02.07.2018 in Criminal Revision Application No.

2626 of 2014 whereby, the High Court of Punjab and Haryana at Chandigarh,

has upheld the order dated 24.07.2014 as passed by the Additional Sessions

Judge,  Fazilka  in  S.C.  No.  9  of  14.01.2014  on  an  application  filed  under

Section 319 of the Code of Criminal Procedure ('CrPC') seeking summoning

of additional accused persons to stand the trial.

2.1 The  sessions  case  aforesaid  is  pending  trial  for  the  offences  under

Sections 302, 307, 341, 34 of the Indian Penal Code ('IPC') and Sections 25,

54  and  59  of  the  Arms  Act.  By  the  said  order  dated  24.07.2014  on  the

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application under Section 319 CrPC, the Trial Court, while partly granting the

prayer of the prosecution to summon one of the accused Sonu son of Jaipal to

face the trial, has dismissed the prayer for summoning the other 7 persons

namely, Krishan Dev, Vikash son of Krishan Dev, Rajan, Mukesh @ Jungli,

Devinder @ Veeru, Surinder Mahal and Prithvi Raj.  

3. The background aspects, so far relevant for the present purpose, could

be noticed, in brief, as follows:

3.1 The prosecution case is that on 29.08.2013, the appellant accompanied

by his father, brother and other associates, proceeded to reclaim possession

of  their  land  from  the  erstwhile  tenants  in  compliance  with  the  directions

issued by the Court of Assistant Collector Grade-I; that on reaching the site at

about  3:30 p.m.,  they found that  the concerned revenue officers  were not

present and while they were making their way back to the village in search of

the  revenue  officers,  3-4  cars  intercepted  them and  about  10-12  persons

emerged from the said vehicles, some of them being the alleged tenants, who

were armed with pistols, rifles, swords,  dangs,  sotas, and 12 bore gun; and

that after a heated exchange of words, the appellant, his family members and

their associates were attacked by the accused which resulted in the demise of

the appellant's father and brother while the others sustained varying injuries

with the appellant receiving three bullet injuries.

3.2 For the incident in question, FIR came to be filed against 11 persons for

the offences under Sections 302, 307, 341, 148 and 149 IPC as also Sections

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27, 54 and 59 of the Arms Act. However, after investigation, only 3 persons,

namely, Vikram Gilla, Gurmit Singh and Sunil Kumar, were charge-sheeted.  

3.3 In trial, the appellant was examined by the prosecution as PW-1, who

asserted in relation to the incident in question, inter alia, as under:-

"…….After alighting from the Car Vikas raised Alarm that they be  taught  lesson  for  taking  possession  of  their  land.  Then Vikram fired from his rifle on my father which hit him. Then my brother Sandeep alighted from the Jeep and Vikram with his rifle fired two shots at him which hit on the left side of his chest and waist.  Krishan again  raised Lalkara and instigated Sonu why  are  you  standing  and  asked  him  to  kill  all  sons  of Hanuman. Then Sonu fired three shots from his revolver out of which two fires on my chest near the heart and one near the left shoulder.  Vikram again fired shot  from his  gun on my father which  hit  him  on  his  waist.  Then  all  the  accused  started indiscriminating firing with their revolver, 12 bore gun and pistols and the fires hit with the vehicles, Mahi Ram, Budh Ram, my father and Sham Lal our servant. Thereafter we raised Raula of MAR DITTA MAR DITTA. Then accused tried to run away on their vehicles but Innova did not start and they left the Innova then along with 12 bore rifle  and ran away from the spot  in another vehicles.....(sic)"

3.4 In  his  cross-examination,  the  appellant  deposed  that  Krishan  Dev,

Vikas, Sonu, Rajan, Mukesh @ Jungli,  Devinder @ Veeru, Surinder Mahal

and Pirthi Raj were declared innocent after investigation by the police,  but

volunteered to state that they were wrongly declared innocent.  

3.5 Pending further cross-examination of the appellant, an application under

Section 319 CrPC was filed by the prosecution to summon the aforesaid 8

persons to face trial on the basis of the testimony of the appellant (PW-1),

wherein, he had asserted that all of them were present at the crime scene;

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and  had  assaulted  and  injured  the  appellant,  his  family  members  and

associates on exhortation by Krishan Dev, which resulted in the demise of his

father and brother. Hence, it was submitted that there was sufficient material

on record to summon all the aforesaid persons to face the trial in this case.

4.  In  its  impugned order  dated 24.07.2014,  the Trial  Court  referred to

certain inconsistencies in the testimony of the appellant as compared to his

statement  under  Section  161  CrPC  and  the  FIR;  and  found  no  case  for

summoning 7 of the aforesaid persons but considered it just and proper to

summon Sonu son of  Jaipal,  who had allegedly fired three shots from his

firearm, which hit the appellant.  

5. Against  the  order  aforesaid,  the  appellant  filed  a  criminal  revision

petition, being CRR No. 2626 of 2014, before the High Court of Punjab and

Haryana at Chandigarh which was dismissed by the impugned order dated

02.07.2018. It  is mentioned in paragraph 4 of the order impugned that the

learned  counsel  for  the  petitioner  had  confined  the  relief  only  qua the

respondent Nos. 2 and 3, Krishan Dev and Vikas son of Krishan Dev. The

High Court upheld the order of the Trial Court while observing as under:

"11. In this case, statements of complainant and witnesses is same, which were recorded by the police during investigation. Learned trial  Court  has observed in its order that  Vikas was attributed lalkara to the effect that complainant party be taught lesson for taking possession of the disputed land while Sugreev (PW) had admitted in his cross-examination that possession of the disputed land had not yet been taken by them. This shows that  respondents,  Krishna  Dev  and  Vikas  were  arrayed  as accused because of enmity between the parties and the police during  investigation  had  collected  the  evidence  which  prove

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that both these respondents were far away from the place of occurrence.  

12. Hon'ble Apex Court in the case Brijendra Singh (supra) has observed  that  for  summoning  the  additional  accused  under Section  319  Cr.P.C.  degree  of  satisfaction  is  much  stricter. Power  under  Section  319  Cr.P.C.  is  discretionary  and extraordinary power which is to be exercised sparingly and only in those cases where circumstances of the case so warrants and strong and cogent evidence occurs against a person from the  evidence  led  before  the  Court  and  not  in  a  casual  and cavalier manner. …."

6. Assailing the order aforesaid, the learned counsel for the appellant has

strenuously argued that the High Court as also the Trial Court have failed to

consider the fact that respondent No. 2 Krishan Dev and respondent No. 3

Vikas are the main perpetrators of the crime; and had planned everything in

advance for executing the crime and to escape from the law. Learned counsel

would submit that the exhortation (lalkara) was a previously planned one as

the possession of the land was to be handed over to the appellant and his

family  members;  that  the  Innova  car,  which  is  registered  in  the  name  of

respondent No. 2, was recovered from the scene of the crime; and that the

report submitted by the police is based on the statement of witnesses at the

instance of the respondents Nos. 2 and 3, where some of them are related to

respondent  No.  2  and  while  the  others  are  his  acquaintances.  Learned

counsel would submit that with the evidence available on record, a clear case

for proceeding against the aforesaid persons alongwith the charge-sheeted

accused is made out. Learned counsel for the appellant has referred to and

relied upon the decisions in  Hardeep Singh v. State of Punjab  : (2014) 3

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SCC 92  and  Brijendra Singh & Ors v. State of Rajasthan: (2017) 7 SCC

706.  

7. Per contra,  learned counsel for the respondents have duly supported

the orders impugned and have submitted that no case for interference is made

out as the discretionary powers of the Court under section 319 of CrPC are to

be exercised sparingly and, in this case, the Trial Court and the High Court,

after  having  thoroughly  examined  the  record,  found  no  substance  in  the

application so moved. More specifically, learned counsel for respondent No. 6

has pointed out that before the High Court, the appellant had given up the

challenge  qua this  respondent.  Learned  counsel  would  submit  that  the

impugned order has been passed after due consideration of the material on

record; that his name was neither reflected in the FIR nor in the statement

under Section 161 CrPC; that after police investigation, nothing incriminating

was found against him and even the Trial Court has found no cogent evidence

against him.

8. During the course of submissions, it  has been pointed out that since

after passing of the orders impugned, further evidence of the prosecution was

recorded in  the trial  and thereafter,  another  application under  Section 319

CrPC was moved for summoning of the aforesaid 7 persons but the same was

also rejected by the Trial Court on 28.09.2018. It has also been submitted that

practically, the entire prosecution evidence in the matter is over.     

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9. Having given anxious consideration to the rival submissions and having

examined the record with reference to the law applicable, we are clearly of the

view that the disposal of applications moved in this matter under Section 319

CrPC cannot be approved; and in the given set of facts and circumstances, it

appears  just  and proper  that  the  Trial  Court  should  re-examine the  entire

matter with reference to the principles applicable to the case, in order to take a

decision  afresh  as  to  whether  the  persons  above-named  or  any  of  them

deserve to be tried together with the other accused persons.  

10. It remains trite that the provisions contained in Section 319 CrPC are to

achieve the objective that the real culprit should not get away unpunished. By

virtue of these provisions, the Court is empowered to proceed against any

person not shown as an accused, if it appears from evidence that such person

has committed any offence for which, he could be tried together with the other

accused persons. In  Hardeep Singh (supra), the Constitution Bench of this

Court  has  explained  the  purpose  behind  this  provision,  inter  alia,  in  the

following:

"12. Section 319 Code of Criminal Procedure 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  Code  of  Criminal Procedure.

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

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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."

11. As regards the degree of satisfaction required  for  invoking  the  powers

under Section 319 CrPC, the Constitution Bench has laid down the principles

as follows:

“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,  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.  

*** *** ***

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.

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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.”

12. Thus,  the  provisions  contained  in  Section  319  CrPC  sanction  the

summoning of any person on the basis of any relevant evidence as available

on record. However, it being a discretionary power and an extraordinary one,

is to be exercised sparingly and only when cogent evidence is available. The

prime facie opinion which is to be formed for exercise of this power requires

stronger evidence than mere probability of complicity of a person. The test to

be applied is the one which is more than a prime facie case as examined at

the  time  of  framing  charge  but  not  of  satisfaction  to  the  extent  that  the

evidence, if goes uncontroverted, would lead to the conviction of the accused.

13. While  applying  the  above-mentioned  principles  to  the  facts  of  the

present case, we are of the view that the consideration of the application under

Section 319 CrPC in the orders impugned had been as if the existence of a

case beyond reasonable  doubt  was  being  examined against  the  proposed

accused persons.  In other words,  the Trial  Court  and the High Court  have

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proceeded as if an infallible case was required to be shown by the prosecution

in order to proceed against the proposed accused persons. That had clearly

been  an  erroneous  approach  towards  the  prayer  for  proceeding  against  a

person with reference to the evidence available on record.  

14. The appellant (PW-1) has made the statement assigning specific roles

to  the  proposed  accused  persons.  At  the  stage  of  consideration  of  the

application under Section 319 CrPC, of course, the Trial Court was to look at

something more than a prima facie case but could not have gone to the extent

of enquiring as to whether the matter would ultimately result in conviction of

the proposed accused persons.

15. The other application moved by the prosecution after leading of further

evidence in the matter has been rejected by the Trial Court essentially with

reference to the impugned orders dated 24.07.2014 and 02.07.2018, which

are the subject matter of challenge in this appeal.  

16. In  the  totality  of  the  circumstances  of  this  case,  rather  than  dilating

further on the evidence, suffice it would be to observe for the present purpose

that  the  prayer  of  the  prosecution  for  proceeding  against  other  accused

persons, having not been examined in the proper prospective and with due

regard to the applicable principles, deserves to be restored for reconsideration

of the Trial Court.

17. Accordingly,  this  appeal  is  allowed  in  part,  to  the  extent  and  in  the

manner that the impugned orders are set aside and the applications made by

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the prosecution under Section 319 CrPC are restored for reconsideration of

the Trial  Court.  In the interest of justice,  it  is made clear that we have not

pronounced on the merits of the case either way and it would be expected of

the Trial Court to reconsider the prayer of prosecution for proceeding against

the proposed accused persons totally uninfluenced by any observation herein

regarding facts of the case but with due regard to the evidence on record and

to the law applicable.  

……...…………………J.           (Abhay Manohar Sapre)

….……………………J. (Dinesh Maheshwari) 1

New Delhi, Dated: 15th March, 2019.

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