Code of Criminal Procedure, 1973 – s.319 – Summoning of additional accused – An FIR was registered on the basis of the statement of the original complainant regarding death of his son and injuries suffered by his nephew-appellant – As per his statement his son and his nephew were attacked by one ‘S’ and four accused persons/private respondents armed with weapons while they were on their way back home after purchasing the pesticides meant for paddy in their car – There was indiscriminate firing from ‘S’ which led to death of his son and his nephew was injured – A cross-case was also registered against the complainant side – The matter was investigated and after investigation, a final report was filed only against ‘S’ – That during the trial, appellant-nephnew was examined as PW1 – In the deposition, he reiterated the allegations made in the FIR including the allegations made against the four private respondents and reiterated what was stated in the FIR – He came to be cross-examined partly and during the cross-examination, an application u/s. 319 CrPC was given on behalf of the complainant for summoning of four private respondents as additional accused – The trial Court dismissed the application u/s. 319 CrPC – The High Court confirmed the order passed by the trial Court – On appeal, held: It is required to be noted that in the FIR all the private respondents herein who are sought to be arraigned as additional accused were specifically named with specific role attributed to them – It is specifically mentioned in the FIR that all the aforesaid persons with common intention parked the car in a manner which blocks the entire road and they were armed with the weapons – The evidence of an injured eye witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly – While exercising the powers u/s. 319 CrPC the Court has not to wait till the cross-examination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial u/s. 319 CrPC – The trial Court as well as the High Court have materially erred in dismissing the application u/s.319 CrPC and refusing to summon the private respondents herein to face the trial in exercising the powers u/s.
319 CrPC.
Code of Criminal Procedure, 1973 – s.319 – The High Court while dismissing the application filed u/s.319 CrPC went into the merits of the case – Held: At the stage of exercising the powers u/s.
319 CrPC, the Court is not required to appreciate and/or enter on the merits of the allegations of the case.
Code of Criminal Procedure, 1973 – s.319 – Exercise of power under – Held: Powers u/s. 319 CrPC can be exercised at any stage from commencing of the trial and recording of evidence/deposition and before the conclusion of the trial at any stage.
Allowing the appeal, the Court
HELD: 1. The ratio of the various Supreme Court decisions on the scope and ambit of the powers of the Court under Section
319 CrPC can be summarized as under:
(i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the legislature under the CrPC indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law;
(iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished;
(v) 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;
(vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it;
(vii) 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;
(viii) Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial;
(ix) the power under Section 319(1) CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage intended to put the process into motion;
(x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence;
(xi) 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;
(xii) 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;
(xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised;
(xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on crossexamination;
(xvi) 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 FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses);
(xvii) while exercising the powers under Section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial. [Para 13][884-A-H; 885-A-H]
2. Applying the law laid down in the various decisions to the facts of the case on hand this Court is of the opinion that the trial Court as well as the High Court have materially erred in dismissing the application under Section 319 CrPC and refusing to summon the private respondents herein to face the trial in exercising the powers under Section 319 CrPC. It is required to be noted that in the FIR No.477 all the private respondents herein who are sought to be arraigned as additional accused were specifically named with specific role attributed to them. It is specifically mentioned that while they were returning back, a car was standing on the road which belongs to accused persons. All the five accused persons were armed with lathi, gandsi, danda and a revolver. It is specifically mentioned in the FIR that all the aforesaid persons with common intention parked the car in a manner which blocks the entire road and they were armed with the weapons. Despite the above specific allegations, when the charge-sheet/final report came to be filed only two persons came to be charge-sheeted and the private respondents herein though named in the FIR were put/kept in column no.2. Entire discussion in the charge-sheet/final report is against ‘S’ only. So far as the private respondents are concerned only thing which is stated is “During the investigation of the present case, HPS, DSP Assandh and HPS, DSP Indri found four accused, residents of Bandrala innocent and accordingly Sections 148, 149 and 341 of the IPC were deleted in the case and they were kept in column no.2, whereas challan against accused ‘S’ has been presented in the Court.” [Para 14][886-A-H; 887-A]
3. Now thereafter when in the examination-in-chief the appellant herein – victim – injured eye witness has specifically named the private respondents herein with specific role attributed to them, the trial Court as well as the High Court ought to have summoned the private respondents herein to face the trial. At this stage it is required to be noted that so far as the appellant herein is concerned he is an injured eye-witness. The evidence of an injured eye witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. As observed hereinabove while exercising the powers under Section 319 CrPC the Court has not to wait till the crossexamination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial under Section 319 CrPC. [Para 14.1][887-B-D]
4. Now so far as the reasoning given by the High Court while dismissing the revision application and confirming the order passed by the trial Court dismissing the application under Section
319 CrPC is concerned, the High Court entered into the merits of the case. At the stage of exercising the powers under Section
319 CrPC, the Court is not required to appreciate and/or enter on the merits of the allegations of the case. The High Court has lost sight of the fact that the allegations against all the accused persons right from the very beginning were for the offences under Sections 302, 307, 341, 148 & 149 IPC. The High Court has failed to appreciate the fact that for attracting the offence under Section 149 IPC only forming part of unlawful assembly is sufficient and the individual role and/or overt act is immaterial. Therefore, the reasoning given by the High Court that no injury has been attributed to either of the respondents except that they were armed with weapons and therefore, they cannot be added as accused is unsustainable. The trial Court and the High Court have failed to exercise the jurisdiction and/or powers while exercising the powers under Section 319 CrPC. [Para 14.2][887E-H; 888-A-B]
Sartaj Singh v. State of Haryana 2021 (4) SCALE 227; Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2 SCR 1 – relied on.
Lakshman Singh v. State of Bihar (now Jharkhand) 2021
(8) SCALE 448; Sukhpal Singh Khaira v. State of Punjab (2019) 6 SCC 638; Masalti v. State of U.P AIR 1965 SC 202 : [1964] SCR 133; Shambhu Nath Singh and Ors. v. State of Bihar AIR 1960 SC 725; Brijendra Singh v. State of Rajasthan (2017) 7 SCC 706 : [2017]
3 SCR 374; S. Mohammed Ispahani v. Yogendra
Chandak (2017) 16 SCC 226 : [2017] 10 SCR 29; Rajesh v. State of Haryana (2019) 6 SCC 368 : [2019]
8 SCR 187; State of MP v. Mansingh (2003) 10 SCC
414 : [2003] 2 Suppl. SCR 460; Abdul Sayeed v. State of MP (2010) 10 SCC 259 : [2010] 13 SCR 311; State of Uttar Pradesh v. Naresh (2011) 4 SCC 324 : [2011]
4 SCR 1176 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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