Sunday, 5 May 2019

Supreme Court: Magistrate should give opportunity of complainant to file Protest petition against non filing of chargesheet against some of accused?

Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, we are of the opinion
that, in the facts and circumstances of the case, neither the
learned Trial Court nor the High Court have committed any error
in summoning the appellants herein to face the trial along with
other coaccused.
As observed hereinabove, the appellants
herein were also named in the FIR. However, they were not
shown as accused in the challan/chargesheet.
As observed
hereinabove, nothing is on record whether at any point of time
the complainant was given an opportunity to submit the protest
application against nonfiling
of the chargesheet
against the
appellants. In the deposition before the Court, P.W.1 and P.W.2
have specifically stated against the appellants herein and the
specific role is attributed to the accusedappellants
herein.
Thus, the statement of P.W.1 and P.W.2 before the Court can be
said to be “evidence” during the trial and, therefore, on the basis

of the same and as held by this Court in the case of Hardeep
Singh (supra), the persons against whom no chargesheet
is
filed can be summoned to face the trial. Therefore, we are of the
opinion that no error has been committed by the Courts below to
summon the appellants herein to face the trial in exercise of
power under Section 319 of the CrPC.
9. Now, so far as the submissions made on behalf of the
appellants herein relying upon the orders passed by the learned
Magistrate dated 01.09.2016 and 28.10.2016 that once the
appellants herein were discharged by the learned Magistrate on
an application submitted by the Investigating Officer/SHO and,
therefore, thereafter it was not open to the learned Magistrate to
summon the accused to face the trial in exercise of power under
Section 319 of the CrPC is concerned, it appears that there is
some misconception
on the part of the appellants. At the
outset, it is required to be noted that the orders dated
01.09.2016 and 28.10.2016 cannot be said to be the orders
discharging the accused. If the applications submitted by the
Investigating Officer/SHO and the orders passed thereon are
considered, those were the applications to discharge/release the

appellants herein from custody as at that stage the appellants
were in judicial custody. Therefore, as such, those orders
cannot be said to be the orders of discharge in stricto sensu.
Those are the orders discharging the appellants from custody.
Under the circumstances, the submission on behalf of the
accused that as they were discharged by the learned Magistrate
and therefore it was not open to the learned Magistrate to
exercise the power under Section 319 of the CrPC and to
summon the appellants to face the trial, cannot be accepted.
10. In view of the above and for the reasons stated above, we
see no reason to interfere with the impugned judgment and
order passed by the High Court confirming the order passed by
the learned Magistrate summoning the accusedappellants
herein to face the trial in exercise of the power under Section
319 of the CrPC. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
CRIMINAL APPEAL NO. 813 OF 2019

Rajesh  Vs  State of Haryana .

Dated:MAY 1, 2019.

M. R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 19.12.2018 passed by the High Court
of Punjab & Haryana at Chandigarh in Criminal Revision – CRR
No. 521 of 2018 by which the High Court has dismissed the said
revision petition preferred by the appellants herein and has
confirmed the order dated 28.10.2017 passed by the learned Trial
Court, by which the appellants herein were summoned to face
the trial for the offences under Sections 148, 149, 323, 324, 325,
2
302, 307 and 506 of the IPC, the appellants herein have preferred
the present appeal.
3. The facts leading to the present appeal in nutshell are as
under:
That one Hukum Singh lodged one FIR No. 180 on 12.06.2016 at
Police Station Sadar, Panipat against ten accused, including the
appellants herein for the offences under Sections 148, 149, 323,
324, 325, 302, 307 and 506 of the IPC. It was alleged that on
12.06.2016 at about 1.30 pm, he along with his son Bhajji and
Hari son of Parkash were going from Panipat to his village
Chhajpur Khurd on his tractor. His son had parked his
motorcycle in front of the shop of Nande at bus stand. Therefore,
his son Bhajji and Hari son of Parkash alighted from the tractor
to pick up the motorcycle. When his son picked up the
motorcycle, in the meantime, Sunil son of Jagpal came on
Splendor motorcycle. Ravit son of Ramesh and Vicky son of
Jaswant were sitting on pillion behind him on motorcycle.
Sheela son of Paras was on his motorcycle Pulsar and Sumit son
of Jagdish, Rinku son of Rai Singh were sitting behind him on his
motorcycle. Sunder son of Om Singh was on motorcycle Bullet
and Rajesh son of Prem and Sanjay son of Bishni were sitting

behind him on the said motorcycle. Ankush son of Rajinder was
on his motorcycle make Splendor and Jagdish son of Devi Singh
and Tejpal son of Nar Singh were sitting behind him. Joni son of
Sahab Singh was on his motorcycle Bullet and Sachin son of
Khilla was sitting behind him. They were armed with swards,
pistols, hockeys, iron bars and gandasi etc. They attacked his
son Bhajji and Hari son of Parkash. Ravit son of Ramesh was
armed with a hockey, Vicky son of Jaswant was armed with
wooden baton, Sheela son of Paras was armed with gandasi.
Sumit son of Jagdish was armed with pistol, Rinky son of Rai
Singh was armed with iron bar, Sunder son of Om Singh was
armed with wooden baton, Rajesh son of Prem was armed with
sword, Jagdish son of Devi Singh was armed with lathi, Tejpal
son of Nar Singh was armed with iron bar, Joni son of Sahab
Singh was armed with wooden handle of spade, Sachin son of
Ruhla Ram was armed with sword and Joginder son of Sahi Ram
was having gandasi with him. Rajesh son of Prem exhorted to
kill both of them because they were pressing hard for their
ejectment from panchayat land. Pursuant to exhortation,
accused inflicted injuries to his son and Hari son of Parkash with
their respective weapons. When he raised alarm, accused sped
4
away on their motorcycles threatening to kill them in case any
action is taken against them. In the meantime, his brother
Mahender came there and they removed both the injured to Prem
Hospital where Hari son of Parkash succumbed to his injuries on
14.06.2016 during treatment.
3.1 That all the accused named in the FIR were arrested. The
Investigating Officer conducted the investigation and found ten
persons involved in the said incident. However, the Investigating
Officer found that the appellants herein (six in numbers) were not
present at the site of incident. That the Investigating Officer
submitted his report under Section 173(2) of the CrPC against
four accused only. That, thereafter the Investigating Agency
conducted further investigation by Jagdeep Singh HPS, DSP,
Panipat. It appears that a report under Section 173(8) of the
CrPC was also submitted. According to the Investigating Officer,
on the date of the commission of the offence the appellants
herein were not present at the place of occurrence, rather they
were found on different places which have been found by the
Investigating Agency also. It appears that thereafter, as the
appellants herein were in custody, the SHO, Police Station Sadar
filed the applications before the Judicial Magistrate, First Class,

Panipat on 01.09.2016 and 28.10.2016 submitting that after
investigation no challan is filed against the appellants herein and
no evidence is found against them and, therefore, they may be
discharged/released. That the learned Magistrate directed to
release the appellants. That, thereafter the trial proceeded
further against the remaining accused against whom the
challan/chargesheet
was filed. The prosecution examined two
witnesses – P.W.1, the original informant and P.W.2, Bhajji, the
injured eye witness. Both of them corroborated the case of the
prosecution and categorically stated that the appellants herein
were also present at the time of incident. Both of them were
crossexamined
by the defence. That, thereafter the original
informant P.W.1 submitted the application before the learned
Magistrate under Section 319 of the CrPC to summon the
appellants herein to face the trial for the offences under Sections
148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. It was the
case on behalf of the original informant that P.W.1 and P.W.2
who were examined during the course of the trial, in their
depositions both of them have corroborated the case of the
prosecution and the statements which they had made before the
police have also been found corroborated and their statements

before the Court are part of the application filed and, therefore
the appellants herein who were named in the FIR are to be
summoned to face the trial. That, by a detailed judgment and
order, the learned Magistrate in exercise of powers under Section
319 of the CrPC has directed to issue summons against the
appellants herein to face the trial along with the other coaccused
for the offences under Sections 148, 149, 323, 324, 325, 302,
307 and 506 of the IPC
3.2 The order passed by the learned Magistrate has been
confirmed in revision by the High Court by the impugned
judgment and order. Hence the present appeal by the appellants
herein who are issued the summons to face the trial in exercise of
powers under Section 319 of the CrPC.
4. Shri R. Basant, learned Senior Advocate has appeared on
behalf of the appellants herein.
4.1 Shri Basant, learned Senior Advocate appearing on behalf of
the appellants has vehemently submitted that, in the facts and
circumstances of the case, the learned Magistrate has erred in
summoning the appellants herein to face the trial in exercise of
powers under Section 319 of the CrPC.
7
4.2 It is vehemently submitted by Shri Basant, learned Senior
Advocate appearing on behalf of the appellants that both, the
High Court as well as the learned Trial Court have not properly
appreciated the scope and ambit of the powers to be exercised
under Section 319 of the CrPC. Relying upon the decision of
this Court in the case of Hardeep Singh v. State of Punjab
(2014) 3 SCC 92, it is submitted by the learned Senior Advocate
appearing on behalf of the appellants that, as observed and held
by this Court, the power under Section 319 of the CrPC is a
discretionary and an extraordinary power and it is to be exercised
sparingly and only in those cases where the circumstances of the
case so warrant.
4.3 It is submitted by the learned Senior Advocate appearing on
behalf of the appellants that the learned Magistrate has
mechanically passed the order despite the fact that there was no
strong and cogent evidence on record even at the time of the trial.
4.4 It is further submitted by the learned Senior Advocate
appearing on behalf of the appellants that, in the present case, as
such, the investigating agency thoroughly investigated the case
when all the appellants were in judicial custody and after taking
into account all the facts and evidence, came to the conclusion

that all the appellants were innocent as they were not present at
the place of incident and thereafter submitted the report under
Section 173(2) of the CrPC and filed the challan only against four
accused persons and did not file the challan against the
appellants herein. It is submitted that not only that, even
thereafter also, further investigation was carried out by the DCP
who submitted the report under Section 173(8) of the CrPC and
in that report also all the appellants were found innocent. It is
submitted that, therefore, the SHO, Police Station Sadar
submitted the applications praying for discharge of the
appellants specifically stating that the appellants are innocent
and the learned Magistrate allowed the said discharge
applications, though opposed by the complainant. It is
submitted that, therefore, once the learned Magistrate discharged
the appellants on the applications submitted by the SHO, Police
Station, Sadar, thereafter solely on the basis of depositions of
P.W.1 and P.W.2 which was nothing but reiteration of what they
stated in their statements before the police, the learned
Magistrate was not justified in summoning the appellants herein
to face the trial in exercise of powers under Section 319 of the
CrPC.
9
4.5 Relying upon the decision of this Court in the case of
Bijendra Singh v. State of Rajasthan (2017) 7 SCC 706, it is
vehemently submitted by Shri Basant, learned Senior Advocate
appearing on behalf of the appellants that, as observed by this
Court, merely on the basis of the deposition of the complainant
and some other persons, with no other material to support their
socalled
verbal/ocular version, no person can be arrayed as an
accused in exercise of powers under Section 319 of the CrPC. It
is submitted by the learned Senior Advocate appearing on behalf
of the appellants that, as observed by this Court in the aforesaid
decision, such an “evidence” recorded during the trial is nothing
more than the statements which was already there under Section
161 of the CrPC recorded at the time of investigation of the case.
Relying upon the aforesaid decision, it is vehemently submitted
by the learned Senior Advocate appearing on behalf of the
appellants that, in any case, the learned Magistrate was bound to
look into the evidence collected by the investigating officer during
investigation which suggested that the accused were not present
at the time of commission of the offence. It is submitted that, in
the present case, the learned Magistrate on the applications
submitted by the SHO in fact discharged the accusedappellants
10
herein and allowed the applications submitted by the SHO in
which it was categorically stated that the appellants are innocent
and that they were not present at the time of the incident. It is
submitted that therefore the High Court has erred in dismissing
the revision petition and confirming the order passed by the
learned Magistrate in summoning the accusedappellants
herein
to face the trial for the offences under Sections 148, 149, 323,
324, 325, 302, 307 and 506 of the IPC, which was passed in
exercise of powers under Section 319 of the CrPC.
5. Learned counsel appearing on behalf of the respondentState
of Haryana has supported the order passed by the learned
Magistrate as well as the impugned judgment and order passed
by the High Court. He has also relied upon some of the
observations made by this Court in the case of Hardeep Singh
(supra) and even some of the observations made by this Court in
the case of Bijendra Singh (supra).
5.1 It is vehemently submitted by the learned counsel appearing
on behalf of the State that it is not correct to state that the
appellants herein were discharged by the learned Magistrate on
the applications filed by the SHO, It is submitted that the SHO
11
submitted the applications to discharge the appellants from the
custody and to release them as they were in jail and those
applications came to be allowed. It is submitted that therefore
the orders dated 01.09.2016 and 28.10.2016 cannot be said to
be the orders of discharge in stricto sensu, as sought to be
contended on behalf of the appellants.
5.2 It is submitted that, in the present case, even at the initial
stage when the investigating officer submitted the report under
Section 173(2) of the CrPC and the challan was filed only against
four accused persons, out of ten accused persons named in the
FIR and the remaining six accused (appellants herein) were
dropped, nothing is on record that the learned Magistrate
accepted the report/closure report against the appellants and,
that too, by following the procedure as required as per the
decision of this Court in the case of Bhagwant Singh v.
Commissioner of Police (1985) 2 SCC 537. It is submitted
that, as per settled law, before even accepting the closure report,
an opportunity is required to be given to the informant to submit
the objections/protest and only thereafter the closure report can
be accepted. It is submitted that, in the present case, no such
12
procedure was followed. It is submitted that thereafter when in
the examinationinchief/
crossexamination,
P.W.1 and P.W.2,
who are the informant and the injured eye witness respectively,
categorically deposed that the appellants were also present at the
time of the incident and they actively participated in commission
of offence and, therefore, in the facts and circumstances of the
case, the learned Magistrate was justified in issuing the
summons against the appellants to face the trial along with the
other coaccused.
It is submitted that, therefore, the order
passed by the learned Trial Court is rightly confirmed by the High
Court by the impugned judgment and order.
5.3 Making the above submissions, it is prayed to dismiss the
present appeal.
6. Heard learned counsel appearing on behalf of the respective
parties at length. We have also perused and considered the
orders passed by the High Court as well as the learned Trial
Court in depth.
6.1 At the outset, it is required to be noted that, in the present
case, what is under challenge is the impugned order passed by
the High Court dismissing the revision application and
confirming the order passed by the learned Trial Court
13
summoning the accused in exercise of powers under Section 319
of the CrPC and to face the trial for the offences under Sections
148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. It is
required to be noted that, in the present case, the original
complainantfirst
informant specifically named ten persons as
accused, including the appellants herein. However, thereafter
after the investigation, the investigating officer filed the chargesheet/
challan against four accused persons only and no
challan/chargesheet
was filed against the appellants herein.
Nothing is on record whether at that time any specific closure
report was submitted by the investigating officer or not. Nothing
is on record whether at that stage an opportunity was given to
the complainant/original informant to submit any protest
application or not. Assuming that nonfiling
of the chargesheet/
challan against the remaining accused named in the FIR
can be said to be a closure report, in that case also, as per the
settled proposition of law and more particularly, the decision of
this Court in the case of Bhagwant Singh (supra), before
accepting the closure report, the Magistrate is bound to issue
notice to the complainant/original informant and the
complainant/original informant is required to be given an
14
opportunity to submit the protest application and, thereafter,
after giving an opportunity to the complainant/original
informant, the Magistrate may either accept the closure report or
may not accept the closure report and direct to proceed further
against those persons for whom the closure report was
submitted. In the present case, nothing is on record that such
a procedure was followed by the learned Magistrate. That,
thereafter the trial proceeded against the four accused persons
against whom the chargesheet/
challan was filed. During the
trial, the depositions of P.W.1 and P.W.2 were recorded. Both of
them were even crossexamined.
In the deposition, P.W.1 and
P.W.2 specifically stated the overacts by the appellants herein
and the role played by them and categorically stated that at the
time of the incident/commission of the offence, the appellants
herein were also present and they participated in the commission
of the offence. That, thereafter, on the application submitted by
the original complainant submitted under Section 319 of the
CrPC, the learned Magistrate found a prima facie case against the
appellants herein and summoned the appellants herein to face
the trial along with other coaccused.
The said order has been
confirmed by the High Court. Therefore, the short question
15
posed for the consideration of this Court is whether, in the facts
and circumstances of the case, the Trial Court was justified in
summoning the appellants herein to face the trial in exercise of
powers under Section 319 of the CrPC?
7. While considering the aforesaid question/issue, few
decisions of this Court are required to be referred to and
considered.
7.1 The first decision which is required to be considered is a
decision of the Constitution Bench of this Court in the case of
Hardeep Singh (supra) which has been consistently followed by
this Court in subsequent decisions.
7.2 In the case of Hardeep Singh (supra), this Court had the
occasion to consider in detail the scope and ambit of the powers
of the Magistrate under Section 319 of the CrPC; the object and
purpose of Section 319 of the CrPC etc. In the said case, the
following five questions fell for consideration before this Court:
“(i) What is the stage at which power under Section
319 CrPC can be exercised?
(ii) Whether the word “evidence” used in Section
319(1) CrPC could only mean evidence tested by
crossexamination
or the court can exercise the
power under the said provision even on the basis of
the statement made in the examinationinchief
of
the witness concerned?
16
(iii) Whether the word “evidence” used in Section
319(1) CrPC has been used in a comprehensive sense
and includes the evidence collected during
investigation or the word “evidence” is limited to the
evidence recorded during trial?
(iv) What is the nature of the satisfaction required
to invoke the power under Section 319 CrPC to
arraign an accused? Whether the power under
Section 319(1) CrPC can be exercised only if the
court is satisfied that the accused summoned will in
all likelihood be convicted?
(v) Does the power under Section 319 CrPC extend
to persons not named in the FIR or named in the FIR
but not charged or who have been discharged?”
7.3 While considering the aforesaid questions, this Court
observed and held as under:
“12. Section 319 CrPC 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 CrPC.
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 the court exercise its power as
contemplated in Section 319 CrPC?
14. The submissions that were raised before us
covered a very wide canvas and the learned counsel
have taken us through various provisions of CrPC
and the judgments that have been relied on for the
said purpose. The controversy centres around the
stage at which such powers can be invoked by the
17
court and the material on the basis whereof such
powers can be exercised.
17. Section 319 CrPC allows the court to proceed
against any person who is not an accused in a case
before it. Thus, the person against whom summons
are issued in exercise of such powers, has to
necessarily not be an accused already facing trial. He
can either be a person named in Column 2 of the
chargesheet
filed under Section 173 CrPC or a
person whose name has been disclosed in any
material before the court that is to be considered for
the purpose of trying the offence, but not
investigated. He has to be a person whose complicity
may be indicated and connected with the commission
of the offence.
18. The legislature cannot be presumed to have
imagined all the circumstances and, therefore, it is
the duty of the court to give full effect to the words
used by the legislature so as to encompass any
situation which the court may have to tackle while
proceeding to try an offence and not allow a person
who deserves to be tried to go scotfree
by being not
arraigned in the trial in spite of the possibility of his
complicity which can be gathered from the
documents presented by the prosecution.
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.
22. In our opinion, Section 319 CrPC is an
enabling provision empowering the court to take
appropriate steps for proceeding against any person
18
not being an accused for also having committed the
offence under trial. .....
47. Since after the filing of the chargesheet,
the
court reaches the stage of inquiry and as soon as the
court frames the charges, the trial commences, and
therefore, the power under Section 319(1) CrPC can
be exercised at any time after the chargesheet
is
filed and before the pronouncement of judgment,
except during the stage of Sections 207/208 CrPC,
committal, etc. which is only a pretrial
stage,
intended to put the process into motion. This stage
cannot be said to be a judicial step in the true sense
for it only requires an application of mind rather than
a judicial application of mind. At this pretrial
stage,
the Magistrate is required to perform acts in the
nature of administrative work rather than judicial
such as ensuring compliance with Sections 207 and
208 CrPC, and committing the matter if it is
exclusively triable by the Sessions Court. Therefore,
it would be legitimate for us to conclude that the
Magistrate at the stage of Sections 207 to 209 CrPC
is forbidden, by express provision of Section 319
CrPC, to apply his mind to the merits of the case and
determine as to whether any accused needs to be
added or subtracted to face trial before the Court of
Session.
53. It is thus aptly clear that until and unless
the case reaches the stage of inquiry or trial by the
court, the power under Section 319 CrPC cannot be
exercised. ............
54. In our opinion, the stage of inquiry does not
contemplate any evidence in its strict legal sense, nor
could the legislature have contemplated this
inasmuch as the stage for evidence has not yet
arrived. The only material that the court has before it
is the material collected by the prosecution and the
court at this stage prima facie can apply its mind to
find out as to whether a person, who can be an
accused, has been erroneously omitted from being
arraigned or has been deliberately excluded by the
19
prosecuting agencies. This is all the more necessary
in order to ensure that the investigating and the
prosecuting agencies have acted fairly in bringing
before the court those persons who deserve to be
tried and to prevent any person from being
deliberately shielded when they ought to have been
tried. This is necessary to usher faith in the judicial
system whereby the court should be empowered to
exercise such powers even at the stage of inquiry and
it is for this reason that the legislature has
consciously used separate terms, namely, inquiry or
trial in Section 319 CrPC.
55. Accordingly, we hold that the court can
exercise the power under Section 319 CrPC only after
the trial proceeds and commences with the recording
of the evidence and also in exceptional circumstances
as explained hereinabove.
56. ........ What is essential for the purpose of the
section is that there should appear some evidence
against a person not proceeded against and the stage
of the proceedings is irrelevant. Where the
complainant is circumspect in proceeding against
several persons, but the court is of the opinion that
there appears to be some evidence pointing to the
complicity of some other persons as well, Section 319
CrPC acts as an empowering provision enabling the
court/Magistrate to initiate proceedings against such
other persons. The purpose of Section 319 CrPC is to
do complete justice and to ensure that persons who
ought to have been tried as well are also tried.
Therefore, there does not appear to be any difficulty
in invoking powers of Section 319 CrPC at the stage
of trial in a complaint case when the evidence of the
complainant as well as his witnesses are being
recorded.”
7.4 While answering question No. (iii), namely whether the word
“evidence” used in Section 319(1) of the CrPC has been used in a
20
comprehensive sense and includes the evidence collected during
investigation or the word “evidence” is limited to the evidence
recorded during trial, this Court, in the aforesaid decision has
observed and held as under:
“58. To answer the questions and to resolve the
impediment that is being faced by the trial courts in
exercising of powers under Section 319 CrPC, the
issue has to be investigated by examining the
circumstances which give rise to a situation for the
court to invoke such powers. The circumstances that
lead to such inference being drawn up by the court
for summoning a person arise out of the availability
of the facts and material that come up before the
court and are made the basis for summoning such a
person as an accomplice to the offence alleged to
have been committed. The material should disclose
the complicity of the person in the commission of the
offence which has to be the material that appears
from the evidence during the course of any inquiry
into or trial of offence. The words as used in Section
319 CrPC indicate that the material has to be “where
… it appears from the evidence” before the court.
59. Before we answer this issue, let us examine
the meaning of the word “evidence”. According to
Section 3 of the Evidence Act, “evidence” means and
includes:
“(1) all statements which the court permits or
requires to be made before it by witnesses, in
relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents including electronic records
produced for the inspection of the court;
such documents are called documentary
evidence.”
21
78. It is, therefore, clear that 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. 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.
82. This pretrial
stage is a stage where no
adjudication on the evidence of the offences involved
takes place and therefore, after the material along
with the chargesheet
has been brought before the
court, the same can be inquired into in order to
effectively proceed with framing of charges. After the
charges are framed, the prosecution is asked to lead
evidence and till that is done, there is no evidence
available in the strict legal sense of Section 3 of the
Evidence Act. The actual trial of the offence by
bringing the accused before the court has still not
begun. What is available is the material that has
been submitted before the court along with the
chargesheet.
In such situation, the court only has
the preparatory material that has been placed before
the court for its consideration in order to proceed
with the trial by framing of charges.
83. It is, therefore, not any material that can be
utilised, rather it is that material after cognizance is
taken by a court, that is available to it while making
an inquiry into or trying an offence, that the court
can utilise or take into consideration for supporting
reasons to summon any person on the basis of
evidence adduced before the court, who may be on
the basis of such material, treated to be an
accomplice in the commission of the offence. The
inference that can be drawn is that material which is
not exactly evidence recorded before the court, but is
a material collected by the court, can be utilised to
corroborate evidence already recorded for the
22
purpose of summoning any other person, other than
the accused. ........
84. The word “evidence” therefore has to be
understood in its wider sense both at the stage of
trial and, as discussed earlier, even at the stage of
inquiry, as used under Section 319 CrPC. The court,
therefore, should be understood to have the power to
proceed against any person after summoning him on
the basis of any such material as brought forth
before it. The duty and obligation of the court
becomes more onerous to invoke such powers
cautiously on such material after evidence has been
led during trial.
85. In view of the discussion made and the
conclusion drawn hereinabove, the answer to the
aforesaid question posed is that apart from evidence
recorded during trial, any material that has been
received by the court after cognizance is taken and
before the trial commences, can be utilised only for
corroboration and to support the evidence recorded
by the court to invoke the power under Section 319
CrPC. The “evidence” is thus, limited to the evidence
recorded during trial.”
7.5 While answering question No. (ii), namely whether the word
“evidence” used in Section 319(1) of the CrPC means as arising in
examinationinchief
or also together with crossexamination,
in
the aforesaid decision, this Court has observed and held as
under:
“86. The second question referred to herein is in
relation to the word “evidence” as used under Section
319 CrPC, which leaves no room for doubt that the
evidence as understood under Section 3 of the
Evidence Act is the statement of the witnesses that
are recorded during trial and the documentary
evidence in accordance with the Evidence Act, which
also includes the document and material evidence in
the Evidence Act. Such evidence begins with the
statement of the prosecution witnesses, therefore, is
evidence which includes the statement during
examinationinchief.
In Rakesh [(2001) 6 SCC 248 :
2001 SCC (Cri) 1090 : AIR 2001 SC 2521] , it was
held that: (SCC p. 252, para 10)
“10. … It is true that finally at the time of
trial the accused is to be given an opportunity to
crossexamine
the witness to test its
truthfulness. But that stage would not arise
while exercising the court's power under Section
319 CrPC. Once the deposition is recorded, no
doubt there being no crossexamination,
it would
be a prima facie material which would enable the
Sessions Court to decide whether powers under
Section 319 should be exercised or not.”
87. In Ranjit Singh [Ranjit Singh v. State of
Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 :
AIR 1998 SC 3148] , this Court held that: (SCC p.
156, para 20)
“20. … it is not necessary for the court to
wait until the entire evidence is collected for
exercising the said powers.”
88. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq,
(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR
2007 SC 1899] , it was held that the prerequisite for
exercise of power under Section 319 CrPC is the
satisfaction of the court to proceed against a person
who is not an accused but against whom evidence
occurs, for which the court can even wait till the
crossexamination
is over and that there would be no
illegality in doing so. A similar view has been taken
by a twoJudge
Bench in Harbhajan Singh v. State of
Punjab [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135]
. This Court in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2009) 16 SCC 785 : (2010)
2 SCC (Cri) 355] seems to have misread the judgment
24
in Mohd. Shafi[Mohd. Shafi v. Mohd. Rafiq, (2007) 14
SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC
1899] , as it construed that the said judgment laid
down that for the exercise of power under Section
319 CrPC, the court has to necessarily wait till the
witness is crossexamined
and on complete
appreciation of evidence, come to the conclusion
whether there is a need to proceed under Section 319
CrPC.
89. We have given our thoughtful consideration
to the diverse views expressed in the aforementioned
cases. Once examinationinchief
is conducted, the
statement becomes part of the record. It is evidence
as per law and in the true sense, for at best, it may
be rebuttable. An evidence being rebutted or
controverted becomes a matter of consideration,
relevance and belief, which is the stage of judgment
by the court. Yet it is evidence and it is material on
the basis whereof the court can come to a prima facie
opinion as to complicity of some other person who
may be connected with the offence.
90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd.
Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 :
AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13
SCC 608 : (2010) 1 SCC (Cri) 1135] , all that is
required for the exercise of the power under Section
319 CrPC is that, it must appear to the court that
some other person also who is not facing the trial,
may also have been involved in the offence. The
prerequisite for the exercise of this power is similar to
the prima facie view which the Magistrate must come
to in order to take cognizance of the offence.
Therefore, no straitjacket formula can and should be
laid with respect to conditions precedent for arriving
at such an opinion and, if the Magistrate/court is
convinced even on the basis of evidence appearing in
examinationinchief,
it can exercise the power under
Section 319 CrPC and can proceed against such
other person(s). It is essential to note that the section
also uses the words “such person could be tried”
25
instead of should be tried. Hence, what is required is
not to have a minitrial
at this stage by having
examination and crossexamination
and thereafter
rendering a decision on the overt act of such person
sought to be added. In fact, it is this minitrial
that
would affect the right of the person sought to be
arraigned as an accused rather than not having any
crossexamination
at all, for in light of subsection
(4)
of Section 319 CrPC, the person would be entitled to
a fresh trial where he would have all the rights
including the right to crossexamine
prosecution
witnesses and examine defence witnesses and
advance his arguments upon the same. Therefore,
even on the basis of examinationinchief,
the court
or the Magistrate can proceed against a person as
long as the court is satisfied that the evidence
appearing against such person is such that it prima
facie necessitates bringing such person to face trial.
In fact, examinationinchief
untested by crossexamination,
undoubtedly in itself, is an evidence.
91. Further, in our opinion, there does not seem
to be any logic behind waiting till the crossexamination
of the witness is over. It is to be kept in
mind that at the time of exercise of power under
Section 319 CrPC, the person sought to be arraigned
as an accused, is in no way participating in the trial.
Even if the crossexamination
is to be taken into
consideration, the person sought to be arraigned as
an accused cannot crossexamine
the witness(es)
prior to passing of an order under Section 319 CrPC,
as such a procedure is not contemplated by CrPC.
Secondly, invariably the State would not oppose or
object to naming of more persons as an accused as it
would only help the prosecution in completing the
chain of evidence, unless the witness(es) is
obliterating the role of persons already facing trial.
More so, Section 299 CrPC enables the court to
record evidence in absence of the accused in the
circumstances mentioned therein.
26
92. Thus, in view of the above, we hold that
power under Section 319 CrPC can be exercised at
the stage of completion of examinationinchief
and
the court does not need to wait till the said evidence
is tested on crossexamination
for it is the
satisfaction of the court which can be gathered from
the reasons recorded by the court, in respect of
complicity of some other person(s), not facing the
trial in the offence.”
7.6 While answering question No. (iv), namely what is the degree
of satisfaction required for invoking the power under Section 319
of the CrPC, this Court after considering various earlier decisions
on the point, has observed and held as under:
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.
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
crossexamination,
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
27
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.”
7.7 While answering question No. (v), namely in what situations
can the power under Section 319 of the CrPC be exercised:
named in the FIR, but not chargesheeted
or has been
discharged, this Court has observed and held as under:
“112. However, there is a great difference with
regard to a person who has been discharged. A
person who has been discharged stands on a
different footing than a person who was never
subjected to investigation or if subjected to, but not
chargesheeted.
Such a person has stood the stage of
inquiry before the court and upon judicial
examination of the material collected during
investigation, the court had come to the conclusion
that there is not even a prima facie case to proceed
against such person. Generally, the stage of evidence
in trial is merely proving the material collected during
investigation and therefore, there is not much change
as regards the material existing against the person so
discharged. Therefore, there must exist compelling
circumstances to exercise such power. The court
should keep in mind that the witness when giving
evidence against the person so discharged, is not
doing so merely to seek revenge or is naming him at
the behest of someone or for such other extraneous
considerations. The court has to be circumspect in

treating such evidence and try to separate the chaff
from the grain. If after such careful examination of
the evidence, the court is of the opinion that there
does exist evidence to proceed against the person so
discharged, it may take steps but only in accordance
with Section 398 CrPC without resorting to the
provision of Section 319 CrPC directly.
116. Thus, it is evident that power under Section
319 CrPC can be exercised against a person not
subjected to investigation, or a person placed in
Column 2 of the chargesheet
and against whom
cognizance had not been taken, or a person who has
been discharged. However, concerning a person who
has been discharged, no proceedings can be
commenced against him directly under Section 319
CrPC without taking recourse to provisions of Section
300(5) read with Section 398 CrPC.”
7.8 Considering the law laid down by this Court in the case of
Hardeep Singh (supra) and the observations and findings
referred to and reproduced hereinabove, it emerges that (i) the
Court can exercise the power under Section 319 of the CrPC even
on the basis of the statement made in the examinationinchief
of
the witness concerned and the Court need not wait till the crossexamination
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
chargesheeted
or a person who has been discharged can be

summoned under Section 319 of the CrPC, provided from the
evidence (may be on the basis of the evidence collected in the
form of statement made in the examinationinchief
of the
witness concerned), it appears that such person can be tried
along with the accused already facing trial.
7.9 In the case of S. Mohammed Ispahani v. Yogendra
Chandak (2017) 16 SCC 226 in para 35, this Court has observed
and held as under:
“35. It needs to be highlighted that when a person
is named in the FIR by the complainant, but police,
after investigation, finds no role of that particular
person and files the chargesheet
without implicating
him, the Court is not powerless, and at the stage of
summoning, if the trial court finds that a particular
person should be summoned as accused, even
though not named in the chargesheet,
it can do so.
At that stage, chance is given to the complainant also
to file a protest petition urging upon the trial court to
summon other persons as well who were named in
the FIR but not implicated in the chargesheet.
Once
that stage has gone, the Court is still not powerless
by virtue of Section 319 CrPC. However, this section
gets triggered when during the trial some evidence
surfaces against the proposed accused.”
7.10 Thus, 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 the FIR but not implicated in the chargesheet
has

gone, in that case also, the Court is still not powerless by virtue
of Section 319 of the CrPC and even those persons named in the
FIR but not implicated in the chargesheet
can be summoned to
face the trial provided during the trial some evidence surfaces
against the proposed accused.
8. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, we are of the opinion
that, in the facts and circumstances of the case, neither the
learned Trial Court nor the High Court have committed any error
in summoning the appellants herein to face the trial along with
other coaccused.
As observed hereinabove, the appellants
herein were also named in the FIR. However, they were not
shown as accused in the challan/chargesheet.
As observed
hereinabove, nothing is on record whether at any point of time
the complainant was given an opportunity to submit the protest
application against nonfiling
of the chargesheet
against the
appellants. In the deposition before the Court, P.W.1 and P.W.2
have specifically stated against the appellants herein and the
specific role is attributed to the accusedappellants
herein.
Thus, the statement of P.W.1 and P.W.2 before the Court can be
said to be “evidence” during the trial and, therefore, on the basis

of the same and as held by this Court in the case of Hardeep
Singh (supra), the persons against whom no chargesheet
is
filed can be summoned to face the trial. Therefore, we are of the
opinion that no error has been committed by the Courts below to
summon the appellants herein to face the trial in exercise of
power under Section 319 of the CrPC.
9. Now, so far as the submissions made on behalf of the
appellants herein relying upon the orders passed by the learned
Magistrate dated 01.09.2016 and 28.10.2016 that once the
appellants herein were discharged by the learned Magistrate on
an application submitted by the Investigating Officer/SHO and,
therefore, thereafter it was not open to the learned Magistrate to
summon the accused to face the trial in exercise of power under
Section 319 of the CrPC is concerned, it appears that there is
some misconception
on the part of the appellants. At the
outset, it is required to be noted that the orders dated
01.09.2016 and 28.10.2016 cannot be said to be the orders
discharging the accused. If the applications submitted by the
Investigating Officer/SHO and the orders passed thereon are
considered, those were the applications to discharge/release the

appellants herein from custody as at that stage the appellants
were in judicial custody. Therefore, as such, those orders
cannot be said to be the orders of discharge in stricto sensu.
Those are the orders discharging the appellants from custody.
Under the circumstances, the submission on behalf of the
accused that as they were discharged by the learned Magistrate
and therefore it was not open to the learned Magistrate to
exercise the power under Section 319 of the CrPC and to
summon the appellants to face the trial, cannot be accepted.
10. In view of the above and for the reasons stated above, we
see no reason to interfere with the impugned judgment and
order passed by the High Court confirming the order passed by
the learned Magistrate summoning the accusedappellants
herein to face the trial in exercise of the power under Section
319 of the CrPC. We are in complete agreement with the view
taken by the High Court. No interference is called for by this
Court. In the facts and circumstance of the case and for the
reasons stated hereinabove, the present appeal fails and
deserves to be dismissed and is according dismissed.
............................................J.
[L. NAGESWARA RAO]
NEW DELHI; ............................................J.
MAY 1, 2019. [M.R. SHAH]
Print Page

No comments:

Post a Comment