Code of Criminal Procedure, 1973 – s.319 – Summoning of additional accused – Appellant-original informant was attacked by private respondents and other accused persons – On basis of the statement of the appellant, FIR was lodged for offences u/ss.148, 149, 341, 323, 324, 307 and 506 IPC – Thereafter, charge-sheet was filed by the Investigating Officer against the other accused, but not against the private respondents – During the trial the appellant was examined as P.W-1, he named the private respondents in his evidence specifically and stood the test of cross-examination – Appellant filed an application u/s. 319 Cr.P.C. for summoning of the additional accused-private respondents – The trial Court allowed the application u/s.319 Cr.P.C. – In the revision petitions, the High Court quashed and set aside the order passed by the trial Court summoning the additional accused-private respondents – On appeal, held: The accused can be summoned on the basis of even examination-in-chief of the witness and the Court need not wait till his cross-examination – If on basis of the examination-in-chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers u/s.319 Cr.P.C. array such a person as accused and summon him to face the trial – In the instant case, the appellant right from the beginning disclosed the names of private respondents and specifically named them in FIR – The reasons assigned by the High Court were unsustainable in law and on facts – What is required to be considered at this stage was whether there is any prima facie case and not whether on the basis of such material the proposed accused is likely to be convicted or not and/or whatever is stated by the injured eye witness in his examination-in-chief is exaggeration or not – Therefore, the trial Court was justified in directing to issue summons against the private respondents to face trial. Allowing the appeals, the Court
HELD: 1. In Hardeep Singh, this Court had an occasion to consider in detail the scope and ambit of the powers of the Magistrate under Section 319 CrPC, the object and purpose of Section 319 CrPC etc. It is observed in the said decision that the entire effort is not to allow the real perpetrator of an offence to get away unpunished. It is observed that this is also a part of fair trial and in order to achieve this very end that the legislature thought of incorporating the provisions of Section 319 CrPC. It is further observed that for the empowerment of the courts to ensure that the criminal administration of justice works properly, the law has been appropriately 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. It is also observed that it is the duty of the court to find out the real truth and to ensure that the guilty does not go unpunished. [Para 6.1.1][97-D-F]
2. Considering the law laid down by this Court in Hardeep Singh, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief 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 charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial. [Para 6.2][110-C-E]
3. Applying the law laid down by this Court in its various decisions to the case of the accused on hand, this Court is of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant – injured eye witness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the Court need not wait till his cross-examination. If on the basis of the examination-in-chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial. At this stage, it is required to be noted that right from the beginning the appellant herein – injured eye witness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not charge-sheeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not chargesheeted. In any case, in the examination-in-chief of the appellant injured eye witness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examination-in-chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein – injured eye witness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the Court. Therefore, as such, the Trial Court was justified in directing to issue summons against the private respondents herein to face the trial. [Para 7][111-C-H]
4. The reasons assigned by the High Court for quashing the order of the trial Court are unsustainable in law and on facts. At this stage, the High Court was not required to appreciate the deposition of the injured eye witness and what was required to be considered at this stage was whether there is any prima facie case and not whether on the basis of such material the proposed accused is likely to be convicted or not and/or whatever is stated by the injured eye witness in his examination-in-chief is exaggeration or not. The aforesaid aspects are required to be considered during the trial and while appreciating the entire evidence on record. Therefore, the High Court has materially erred in quashing and setting aside the order passed by the learned Trial Court summoning the accused to face the trial in exercise of powers under Section 319 CrPC, on the reasoning mentioned hereinabove. Even the observations made by the High Court referred are on probability. Therefore, the impugned judgment and order passed by the High Court is not sustainable in law and on facts and is beyond the scope and ambit of Section
319 CrPC. [Para 8.1][112-E-H; 113-A]
Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2 SCR 1; S. Mohammed Ispahani v. Yogendra Chandak (2017) 16 SCC 226: [2017] 10 SCR 29
– relied on.
Sukhpal Singh Khaira v. State of Punjab (2019) 6 SCC 638: Rajesh v. State of Haryana (2019) 6 SCC 368 : [2019] 8 SCR 187 – 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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