Monday, 5 October 2015

Whether accused summoned U/S 319 of CRPC can be discharged as per S 227 of CRPC?

It was, however, urged by learned counsel for the
appellants that in order to avail of the remedies of discharge
under Section 227 of the Cr.P.C., the only qualification
necessary is that the person should be accused. Learned
counsel submitted that there is no difference between an
accused since inception and accused who has been added as
such under Section 319 of the Cr.P.C. It is, however, not
possible to accept this submission since there is a material
difference between the two. An accused since inception is not
necessarily heard before he is added as an accused. However, a
person who is added as an accused under Section 319 of the
Cr.P.C., is necessarily heard before being so added. Often he
gets a further hearing if he challenges the summoning order
before the High Court and further. It seems incongruous and
indeed anomalous if the two sections are construed to mean that
a person who is added as an accused by the court after
considering the evidence against him can avail remedy of
discharge on the ground that there is no sufficient material
against him. Moreover, it is settled that the extraordinary power
under Section 319 of the Cr.P.C., can be exercised only if very
strong and cogent evidence occurs against a person from the
6evidence led before the Court. It is now settled vide the
Constitution Bench decision in Hardeep Singh v. State of
Punjab and Others [(2014) 3 SCC 92] that the standard of proof
employed for summoning a person as an accused under Section
319 of the Cr.P.C., is higher than the standard of proof employed
for framing a charge against an accused. The Court observed for
the purpose of Section 319 of the Cr.P.C., that “what is,
therefore, necessary for the Court is to arrive at a satisfaction that
the evidence adduced on behalf of the prosecution, if unrebutted,
may lead to the conviction of a person sought to be added as the
accused in the case.” As regards the degree of satisfaction
necessary for framing a charge this Court observed in para 100:-
“100. However, there is a series of cases wherein this
court while dealing with the provisions of Sections
227, 228, 239, 240, 241, 242 and 245 of the Cr.P.C.,
has consistently held that the court at the stage of
framing of the charge has to apply its mind to the
question whether or not there is any ground for
presuming the commission of an offence by the
accused. The court has to see as to whether the
material brought on record reasonably connect the
accused with the offence. Nothing more is required
to be enquired into. While dealing with the aforesaid
provisions, the test of prima facie case is to be
applied. The court has to find out whether the
materials offered by the prosecution to be adduced as
evidence are sufficient for the court to proceed
against the accused further”.
The Court concluded in para 106 as follows:-
“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
7than 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……..”
10. Thus it does not stand to reason that a person who is
summoned as an accused to stand trial and added as such to
the proceedings on the basis of a stricter standard of proof can
be allowed to be discharged from the proceedings on the basis of
a lesser standard of proof such as a prima facie connection with
the offence necessary for charging the accused.
11. This view is further fortified by the fact that a person is
added as an accused under Section 319 of the Cr.P.C., on the
basis of evidence; whereas an accused is discharged under
Section 227 of the Cr.P.C., on a sifting of material collected i.e.
“the record of the case and the document submitted herewith” in
order to find out whether or not there is sufficient ground for
proceeding against the accused. In fact it may be noted that the
mandate of Section 228, Cr.P.C., is that the Judge only need be
of “opinion that there is ground for presuming that the accused
has committed an offence …..” before framing a charge. In fact
this Court has held in Ajay Kumar Parmar v. State of
Rajasthan reported in (2012) 12 SCC 406 that appreciation of
evidence at the stage of Section 227 of the Cr.P.C., is not
8permissible (vide para 17). It is, therefore, clear that an order for
addition of an accused made after considering the evidence
cannot be undone by coming to the conclusion that there is no
sufficient ground for proceeding against the accused without
appreciation of evidence.
12. We are not unmindful of the fact that the interpretation
placed by us on the scheme of Sections 319 and 227 makes
Section 227 unavailable to an accused who has been added
under Section 319 of the Cr.P.C. We are of the view, for the
reasons given above that this must necessarily be so since a
view to the contrary would render the exercise undertaken by a
Court under Section 319 of the Cr.P.C., for summoning an
accused, on the basis of a higher standard of proof totally
infructuous and futile if the same court were to subsequently
discharge the same accused by exercise of the power under
Section 227 of the Cr.P.C., on the basis of a mere prima facie
view. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 343 OF 2012
JOGENDRA YADAV & ORS. ….. APPELLANTS
VERSUS
STATE OF BIHAR & ANR. ….. RESPONDENTS
Dated;JULY 15, 2015
S. A. BOBDE, J.
Citation;2015 ALLMR(CRI)3707 SC

1. This is an appeal by four persons who have been added as
accused under Section 319 of the Code of Criminal Procedure,
1973 (for short 'the Cr.P.C.') in Sessions Trial No.446/2002 for
an offence under Section 302 read with Sections 149 and 323 of
the Indian Penal Code, 1860 (for short 'the IPC') and Section 27
of the Arms Act, 1959. The trial is being held in respect of the
murder of one Saryug Yadav. On 04.06.2000, FIR was lodged by
an informant under Sections 149, 302 and 323 of the IPC
against 8 accused. A charge-sheet was submitted on
23.04.2001 only against four persons. Later on, a
supplementary charge-sheet was submitted on 31.01.2003 by
which one Bhankhar Yadav was included. A final form was
1submitted excluding the four appellants herein viz. Jogendra
Yadav, Kailash Yadav, Kusum Pahalwan, Brijendra Yadav from
the array of parties. On 18.02.2003, the Magistrate accepted the
charge-sheet and the final form while taking cognizance of the
offence. The case was committed to the Court of Sessions.
2. In the course of the trial, the evidence of the widow and
two sons of the deceased were recorded. On the basis of the
evidence the Additional Sessions Judge on 05.02.2005 under
Section 319 of the Cr.P.C. issued notice to the appellants asking
them to show cause as to why they should not be added as
accused. After giving an opportunity to the appellants to file a
reply, the learned Additional Sessions Judge summoned the
appellants as accused for being added to the proceedings. It is
nobody’s case that they were not heard before such summon. In
any case after the appellants were added, they preferred an
application under Section 482 of the Cr.P.C. before the High
Court, which was pending for a long time. They finally withdrew
this application since they had got relief by way of discharge
under Section 227 of the Cr.P.C. The respondent State preferred
a Criminal Revision Application before the High Court. The High
Court set aside the Order dated 23.09.2006 in Criminal Revision
Application passed by the Additional Sessions Judge by which
the appellants were discharged. While setting aside the order,
2the High Court made several observations on the merits of the
case as well as on the material that was taken into account
before discharging the appellants – accused. The High Court
also observed that the order by which the appellants were added
under Section 319 of the Cr.P.C. was not challenged and was
allowed to become final. This may not actually be accurate
since, as noted above, the appellants had in fact challenged the
order but had withdrawn the application under Section 482 of
the Cr.P.C.

3. The High Court also observed that the order of discharge
virtually nullifies the order under Section 319 of the Cr.P.C.
made earlier by which the accused were added. It is this last
observation which has been put in issue before us.
4. Mr. Sishir Pinaki, learned counsel for the appellants
submitted that Section 227 of the Cr.P.C. can be availed of by an
accused, even if he is added as an accused under Section 319 of
the Cr.P.C. since the effect of adding such a person is that he
becomes newly added accused who is entitled to avail of all the
remedies available to him under the Cr.P.C., in particular, the
remedy of discharge. It is, therefore, necessary to construe
Section 227 and Section 319 of the Cr.P.C.
35. Provisions of Sections 227 and 319 of the Cr.P.C. are read
as under:
“227. Discharge.- If, upon consideration of the record
of the case and the documents submitted therewith,
and after hearing the submissions of the accused and
the prosecution in this behalf, the Judge considers
that there is not sufficient ground for proceeding
against the accused, he shall discharge the accused
and record his reasons for so doing.
319. Power to proceed against other persons appearing
to be guilty of offence.-
(1) Where, in the course of any inquiry into, or trial
of, an offence, it appears from the evidence that any
person not being the accused has committed any offence
for which such person could be tried together
with the accused, the Court may proceed against
such person for the offence which he appears to have
committed.
(2) Where such person is not attending the Court, he
may be arrested or summoned, as the circumstances
of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under
arrest or upon a summons, may be detained by
such Court for the purpose of the inquiry into, or
trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under
sub- section (1), then-
(a) the proceedings in respect of such person
shall be commenced a fresh, and the witnesses
re- heard;
(b) subject to the provisions of clause (a), the
case may proceed as if such person had been
an accused person when the Court took cognizance
of the offence upon which the inquiry
or trial was commenced.”
46. On a perusal of Section 319 of the Cr.P.C., it is apparent
that a person who is not an accused may be added as an
accused only when it appears from the evidence that he has
committed any offence for which he could be tried together with
the accused. The Section says that in such an eventuality, the
Court “may proceed against such person” for the offence which
he appears to have committed. In other words, a person who is
not an accused becomes liable to be added where he appears to
have committed an offence. Thereupon, the effect is that the
Court may proceed against such a person.
7. Section 227 of the Cr.P.C. on the other hand, provides that
an accused may be discharged if the Judge construes that there
is no sufficient ground for the proceedings against him. In other
words, if the Judge is of the view that there are no sufficient
grounds for the proceedings against the accused, he may be
discharged, whereupon the proceedings against him are
dropped.

8. It is apparent that both these provisions, in essence, have
the opposite effect. The power under Section 319 of the Cr.P.C.
results in the summoning and consequent commencement of the
proceedings against a person who was hitherto not an accused
and the power under Section 227 of the Cr.P.C., results in
5termination of proceedings against the person who is an
accused.
9. It was, however, urged by learned counsel for the
appellants that in order to avail of the remedies of discharge
under Section 227 of the Cr.P.C., the only qualification
necessary is that the person should be accused. Learned
counsel submitted that there is no difference between an
accused since inception and accused who has been added as
such under Section 319 of the Cr.P.C. It is, however, not
possible to accept this submission since there is a material
difference between the two. An accused since inception is not
necessarily heard before he is added as an accused. However, a
person who is added as an accused under Section 319 of the
Cr.P.C., is necessarily heard before being so added. Often he
gets a further hearing if he challenges the summoning order
before the High Court and further. It seems incongruous and
indeed anomalous if the two sections are construed to mean that
a person who is added as an accused by the court after
considering the evidence against him can avail remedy of
discharge on the ground that there is no sufficient material
against him. Moreover, it is settled that the extraordinary power
under Section 319 of the Cr.P.C., can be exercised only if very
strong and cogent evidence occurs against a person from the
6evidence led before the Court. It is now settled vide the
Constitution Bench decision in Hardeep Singh v. State of
Punjab and Others [(2014) 3 SCC 92] that the standard of proof
employed for summoning a person as an accused under Section
319 of the Cr.P.C., is higher than the standard of proof employed
for framing a charge against an accused. The Court observed for
the purpose of Section 319 of the Cr.P.C., that “what is,
therefore, necessary for the Court is to arrive at a satisfaction that
the evidence adduced on behalf of the prosecution, if unrebutted,
may lead to the conviction of a person sought to be added as the
accused in the case.” As regards the degree of satisfaction
necessary for framing a charge this Court observed in para 100:-
“100. However, there is a series of cases wherein this
court while dealing with the provisions of Sections
227, 228, 239, 240, 241, 242 and 245 of the Cr.P.C.,
has consistently held that the court at the stage of
framing of the charge has to apply its mind to the
question whether or not there is any ground for
presuming the commission of an offence by the
accused. The court has to see as to whether the
material brought on record reasonably connect the
accused with the offence. Nothing more is required
to be enquired into. While dealing with the aforesaid
provisions, the test of prima facie case is to be
applied. The court has to find out whether the
materials offered by the prosecution to be adduced as
evidence are sufficient for the court to proceed
against the accused further”.
The Court concluded in para 106 as follows:-
“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
7than 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……..”
10. Thus it does not stand to reason that a person who is
summoned as an accused to stand trial and added as such to
the proceedings on the basis of a stricter standard of proof can
be allowed to be discharged from the proceedings on the basis of
a lesser standard of proof such as a prima facie connection with
the offence necessary for charging the accused.
11. This view is further fortified by the fact that a person is
added as an accused under Section 319 of the Cr.P.C., on the
basis of evidence; whereas an accused is discharged under
Section 227 of the Cr.P.C., on a sifting of material collected i.e.
“the record of the case and the document submitted herewith” in
order to find out whether or not there is sufficient ground for
proceeding against the accused. In fact it may be noted that the
mandate of Section 228, Cr.P.C., is that the Judge only need be
of “opinion that there is ground for presuming that the accused
has committed an offence …..” before framing a charge. In fact
this Court has held in Ajay Kumar Parmar v. State of
Rajasthan reported in (2012) 12 SCC 406 that appreciation of
evidence at the stage of Section 227 of the Cr.P.C., is not
8permissible (vide para 17). It is, therefore, clear that an order for
addition of an accused made after considering the evidence
cannot be undone by coming to the conclusion that there is no
sufficient ground for proceeding against the accused without
appreciation of evidence.
12. We are not unmindful of the fact that the interpretation
placed by us on the scheme of Sections 319 and 227 makes
Section 227 unavailable to an accused who has been added
under Section 319 of the Cr.P.C. We are of the view, for the
reasons given above that this must necessarily be so since a
view to the contrary would render the exercise undertaken by a
Court under Section 319 of the Cr.P.C., for summoning an
accused, on the basis of a higher standard of proof totally
infructuous and futile if the same court were to subsequently
discharge the same accused by exercise of the power under
Section 227 of the Cr.P.C., on the basis of a mere prima facie
view. The exercise of the power under Section 319 of the
Cr.P.C., must be placed on a higher pedestal. Needless to say
the accused summoned under Section 319 of the Cr.P.C., are
entitled to invoke remedy under law against an illegal or
improper exercise of the power under Section 319, but cannot
have the effect of the order undone by seeking a discharge under
Section 227 of the Cr.P.C. If allowed to, such an action of
9discharge would not be in accordance with the purpose of the
Cr.P.C in enacting Section 319 which empowers the Court to
summon a person for being tried along with the other accused
where it appears from the evidence that he has committed an
offence. It would be apposite to refer to the principle of
purposive construction of a statute invoked by this Court in
New India Assurance Co. Ltd. v. Nusli Neville Wadia and
Anr. (2008) 3 SCC 279, which is as under:
“51…….. With a view to read the provisions of the Act
in a proper and effective manner, we are of the opinion
that literal interpretation, if given, may give rise to
an anomaly or absurdity which must be avoided. So
as to enable a superior court to interpret a statute in a
reasonable manner, the court must place itself in the
chair of a reasonable legislator/author. So done, the
rules of purposive construction have to be resorted to
which would require the construction of the Act in
such a manner so as to see that the object of the Act is
fulfilled, which in turn would lead the beneficiary under
the statutory scheme to fulfil its constitutional obligations
as held by the Court inter alia in Ashoka Marketing
Ltd.
52. Barak in his exhaustive work on “Purposive Construction”
explains various meanings attributed to the
term “purpose”. It would be in the fitness of discussion
to refer to Purposive Construction in Barak’s words:
“Hart and Sachs also appear to treat ‘purpose’ as a
subjective concept. I say ‘appear’ because, although
Hart and Sachs claim that the interpreter should imagine
himself or herself in the legislator’s shoes, they introduce
two elements of objectivity: First, the interpreter
should assume that the legislature is composed
of reasonable people seeking to achieve reasonable
goals in a reasonable manner; and second, the interpreter
should accept the non-rebuttable presumption
that members of the legislative body sought to fulfil
10their constitutional duties in good faith. This formulation
allows the interpreter to inquire not into the subjective
intent of the author, but rather the intent the
author would have had, had he or she acted reasonably.”
13. Ms. Prerna Singh, learned counsel for the State also
submitted that a person who is an accused under Section 319
ought not to be given an opportunity to avail of the remedy of
discharge under Section 227 since it would be contrary to the
scheme and intent of the Cr.P.C.
14. We have no difficulty in accepting this submission for the
reasons stated above. We are also satisfied that it would not
result in any undue hardships to the accused since the remedy
before a superior court is available.
15. In the result, we see no merit in the appeal which is liable
to be dismissed.
16. The criminal appeal is dismissed in view of the above.
…......................J.
[S.A. BOBDE]
…......................J.
[R.K. AGRAWAL]
NEW DELHI
JULY 15, 2015

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