Most Important Judgment of Today on Rule of Summon for Person not Named in Chargesheet (15th May, 2019)

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Title of the Case – Rule of Summon for Person not Named in Chargesheet

Name of the caseRajesh & Ors V. State of Haryana, Crl. No. 813 of 2019 (@SLP (Crl.) No. 1189 of 2019)

Date of Judgment 15th May, 2019

Judges: Justice MR Shah and L. Nageswara Rao

Subject and sections involved Section 319 of CrPC, 1973

 

Issue:

  1. What is the stage at which power under Section 319 CrPC can be exercised?
  2. Whether the word “evidence” used in Section 319(1) CrPC could only mean evidence tested by cross-­examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination­-in-­chief of the witness concerned?
  3. Whether the word “evidence” used in Section 319(1) of the 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?
  4. 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?
  5. 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?”

 

Fact of the Case:

Fact in Brief

Rajesh and others were named in the FIR relating to a murder case. However, charge sheet was filed against four other persons named in the FIR and the trial proceeded against them. During witness examination, the prosecution witness named Rajesh and others. Thereafter, the prosecution filed an application under section 319 CrPC to summon them as additional-accused, which came to be allowed by the Trial Court. The High Court affirmed the order summoning the accused.

Fact in Detail

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 spedaway 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 PremHospital where Hari son of Parkash succumbed to his injuries on 14.06.2016 during treatment. 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.

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

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.


 

Ratio of the case -

The Court Observed in Answer to Issue No. 1 and 2

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.

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?

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 court and the material on the basis whereof such powers can be exercised.

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.

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.

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.

In our opinion, 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. .....

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.

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. ............

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 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.

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.

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.”

The Court Observed in Answer to Issue No. 2

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 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.

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” 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 cross­ examination, undoubtedly in itself, is an evidence.

Further, in our opinion, there does not seem to be any logic behind waiting till the cross­ examination 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.

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.”

 

The Court Observed in Answer to Issue No. 3

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.

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.”

 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.

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.

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 purpose of summoning any other person, other than the accused. ........

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.

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.”

 

The Court Observed in Answer to Issue No. 4

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.

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 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.”

 

The Court Observed in Answer to Issue No. 5

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.

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.”