# ~ BHOLU RAM v. STATE OF PUNJAB & ANR

- **Citation:** [2008] 12 S.C.R. 959
- **Court:** Supreme Court of India
- **Decided:** 2008-08-29
- **Case number:** Criminal Appeal No. 1366 of 2008
- **Bench:** C.K. Thakker, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bholu-ram-v-state-of-punjab-anr-23665
- **Pages:** 33

## Headnote

..
~ ~~
Code of Criminal Procedure, 1973:
ss. 319, 197 and 482 - Recalling order of issuance of
summons against person other than accused -·Permissibility c
of- Held: Order passed by competent court issuing summons
cannot be recalled - Aggrieli'ed party can challenge the order
by invoking in{lerent jurisdiction of High Court u/s. 482 - On
facts, Revisional Court and High Court not justified in recalling
summoning order passed by Magistrate against Head MasterD
cum-Drawing and Disbursing Officer other than accused-clerk
in Government School - Accused in a complaint alleging
forgery and cheating, filed application to add respondent as
accused and summon him -
Magistrate had power and
;urisdiction to entertain the applications - It issued summons
E
on being satisfied that depositions of prosecution witnesses
prima facie made out offence against respondent - Revisional .
Court erred in entering into correctness of the evidence at the
stage of issuance of summons to respondent - Proceedings
could not have been quashed on the ground of want of F
sanction - Application to issue summons could be filed by
any person including accused and the court could entertain
such application filed belatedly - Thus, orders of Revisional
Court and High Court set aside and that of Magistrate restored.·
s. 319 -
Summoning of person other than accused -
G
Power of court - Nature and scope of - Discussed.
Penal Code, 1860 - ss. 409, 420, 467, 468, 471 -
Offences under- Requirement of sanction uls. 197 Cr.PC. -
959
H
960
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A Held: Offences u/ss. 409, 420, 467, 468, 471 cannot be
regarded as having been committed by a public servant while
'acting or purporting to act in discharge of official duty,' thus,
sanction is not required - On facts, complaint alleging forgery
and cheating against accused-clerk in Government school -
g
Issuance of summons against Head Master other than
accused - Quashing of, by Revisional Court on the ground of
absence of sanction but holding that at the most there was
negligence on the part of Head master but no criminal intent
- Held: Not correct - Mens rea can only be decided at the
c time of trial and not at the stage of issuing summons - Need
or necessity of sanction can be taken during the conduct of
trial or at any stage of the proceedings - Code of Criminal
Procedure, 1973 - s. 197.
Administrative law - State authorities - Role of -
On
D facts, complaint alleging forgery and cheating against
accused-clerk in Government school - Issuance of summons
against Head Master other than accused - Challenge to, by
State before Sessions Court - Before Supreme Court also
State supporting the Head master - Propriety of - Held: Not
E proper.
First Information Report was lodged against the
appellant u/ss. 409, 420, 467, 468 and 471 IPC. It was
alleged that the appellant-Clerk in Government School
forged signature of respondent No. 2-Head Master-cumF Drawing and Disbursing Officer and embezzled
substantial amount. During investigation, signatures of
respondent No. 2 were also taken but prosecution never
filed the report. Witnesses deposed that respondent No.
2 had withdrawn the amount and ·signatures purported
G to have been forged by appellant tallied with the
specimen signatures of respondent No. 2. Thereafter,
appellant filed applications u/s. 319 Cr.P.C. to add
respondent No. 2 as accused and summon him. The.
Magistrate allowed the application. Respondent No. 2 was
H
BHOLU RAM v. STATE OF PUNJAB & ANR.
961
--'r
issued summons. Aggrieved, respondent No. 1-State filed A
Revision Petition which was dismissed. Thereafter,
respondent No. 2 filed application to review/recall
summoning order on the ground that he could not be
prosecuted in absence of sanction required by s. 197 of
the Code. The Magistrate dismissed the c;ipplication in
B
~ view of dismissal of revision petition filed by State.
However, Additional Sessions Judge allowed the revision
petitions filed by the respondent No, 2 and set aside the

## Text

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[2008] 12 S.C.R. 959
~
BHOLU RAM
A
v.
STATE OF PUNJAB & ANR.
(Criminal Appeal No. 1366 of 2008)
AUGUST 29, 2008
B
[C.K. THAKKER AND D.K. JAIN, JJ.]
..
~ ~~
Code of Criminal Procedure, 1973:
ss. 319, 197 and 482 - Recalling order of issuance of
summons against person other than accused -·Permissibility c
of- Held: Order passed by competent court issuing summons
cannot be recalled - Aggrieli'ed party can challenge the order
by invoking in{lerent jurisdiction of High Court u/s. 482 - On
facts, Revisional Court and High Court not justified in recalling
summoning order passed by Magistrate against Head MasterD
cum-Drawing and Disbursing Officer other than accused-clerk
in Government School - Accused in a complaint alleging
forgery and cheating, filed application to add respondent as
accused and summon him -
Magistrate had power and
;urisdiction to entertain the applications - It issued summons
E
on being satisfied that depositions of prosecution witnesses
prima facie made out offence against respondent - Revisional .
Court erred in entering into correctness of the evidence at the
stage of issuance of summons to respondent - Proceedings
could not have been quashed on the ground of want of F
sanction - Application to issue summons could be filed by
any person including accused and the court could entertain
such application filed belatedly - Thus, orders of Revisional
Court and High Court set aside and that of Magistrate restored.·
s. 319 -
Summoning of person other than accused -
G
Power of court - Nature and scope of - Discussed.
Penal Code, 1860 - ss. 409, 420, 467, 468, 471 -
Offences under- Requirement of sanction uls. 197 Cr.PC. -
959
H
960
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A Held: Offences u/ss. 409, 420, 467, 468, 471 cannot be
regarded as having been committed by a public servant while
'acting or purporting to act in discharge of official duty,' thus,
sanction is not required - On facts, complaint alleging forgery
and cheating against accused-clerk in Government school -
g
Issuance of summons against Head Master other than
accused - Quashing of, by Revisional Court on the ground of
absence of sanction but holding that at the most there was
negligence on the part of Head master but no criminal intent
- Held: Not correct - Mens rea can only be decided at the
c time of trial and not at the stage of issuing summons - Need
or necessity of sanction can be taken during the conduct of
trial or at any stage of the proceedings - Code of Criminal
Procedure, 1973 - s. 197.
Administrative law - State authorities - Role of -
On
D facts, complaint alleging forgery and cheating against
accused-clerk in Government school - Issuance of summons
against Head Master other than accused - Challenge to, by
State before Sessions Court - Before Supreme Court also
State supporting the Head master - Propriety of - Held: Not
E proper.
First Information Report was lodged against the
appellant u/ss. 409, 420, 467, 468 and 471 IPC. It was
alleged that the appellant-Clerk in Government School
forged signature of respondent No. 2-Head Master-cumF Drawing and Disbursing Officer and embezzled
substantial amount. During investigation, signatures of
respondent No. 2 were also taken but prosecution never
filed the report. Witnesses deposed that respondent No.
2 had withdrawn the amount and ·signatures purported
G to have been forged by appellant tallied with the
specimen signatures of respondent No. 2. Thereafter,
appellant filed applications u/s. 319 Cr.P.C. to add
respondent No. 2 as accused and summon him. The.
Magistrate allowed the application. Respondent No. 2 was
H
BHOLU RAM v. STATE OF PUNJAB & ANR.
961
--'r
issued summons. Aggrieved, respondent No. 1-State filed A
Revision Petition which was dismissed. Thereafter,
respondent No. 2 filed application to review/recall
summoning order on the ground that he could not be
prosecuted in absence of sanction required by s. 197 of
the Code. The Magistrate dismissed the c;ipplication in
B
~ view of dismissal of revision petition filed by State.
However, Additional Sessions Judge allowed the revision
petitions filed by the respondent No, 2 and set aside the
order adding respondent No. 2 as an accused and
summoning him. High Court upheld-the order. Hence the c
present appeal.
Allowing the appeal, the Court
HELD: 1.1 Section 319 Cr.P.C., 1973 empowers a
Court to proceed against any person not shown tc;> be an D
accused if it appears from the evidence that such person
has also committed an offence for which he can be tried
...
together with the accu~ed. It is only proper that a
Magistrate should have power to summon by joining such
person as an accused in the case. The primary object E
underlying s. 319 is that the whole case against all the
accused should be tried and disposed of not only
expeditious~y but also simultaneously. Justice and
convenience both require that cognizance against the
newly aqded accused should be taken in the same case
and in the same manner as against the original accused.
F
~
The power must be regarded and conceded as incidental
and ancillary to the main power to take cognizance as
part of normal process in the administration of criminal
justice. [Paras 19 and 21] [970,G-H; ~71,G-H; 972,A]
1.2 The power under Section 319 can be exercised G
)
either on an application made to the Court or by the Court
suo motu. It is in the discretion of the Court to take an
action under the said section and the Court is expected
to exercise the discretion judicially and judiciously having H
962
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A regard to the facts and circumstances of each case. [Para
22] [972, 8-C]
1.3 Section 319 of the Code nowhere states that such
an application can be filed by a person other than the
accused. It also does not prescribe any time limit within
B which such application should be filed in the Court. [Para
25] (972,G-H]
1.4 In the instant case, the Magistrate had power
a.nd jurisdiction to entertain applications filed by the
c appellant-accused u/s.319 of the Code and to issue
summons fo respondent No. 2 by adding him as accused.
The said order could not be said to be illegal, unlawful or
otherwise objectionable. The submission that the power
u/s.319 of the Code, cannot be exercised belatedly by the
Court, and that an application u/s.319 cannot be filed by
D a person who is facing the trial, cannot .be accepted. It
was the case of the appellant that it was during the course
of prosecution evidence that ·he came to know that
signatures of respondent No. 2 were sent for examination,
some report was received by the prose<;:ution which was
E not produced in Court and on the basis of such evidence,
the. case was made out against respondent No.2. If in
these circumstances, applications were made and the
prayer was granted, there is no infirmity therein. [Paras
24, 40 and 70] [998,G-H; 972,F; 990,A-B]
F
· Joginder Singh and Anr. v. State of Punjab and Anr. 1979
(1) SCC 345; Municipal Corporation of Delhi v.' Ram Kishan
Rohtagi and Ors. 1983 (1) SCC 1; Lok Ram v. Nihal Singh
and Anr. 2006 (10) SCC 192; Shashikant Singh v. Tarkeshwar
G· Singh and Anr. 2002 (5) SCC 738 - referred to.
H
2.1 Once an order is passed by a competent Court
issuing summons or process, it cannot be recalled. [Para
51] [982,E]
2.2 It is quite possible that in a given ca~e, a
BHOLU RAM v. STATE OF PUNJAB & ANR.
963
~ Magistrate may take cognizance of an offence illegally or A
arbitrarily without there being any material whatsoever.
Such illegal order should not deprive the accused from
contending that the Magistrate was wrong and wholly
unjustified in entertaining the complaint or taking
cognizance of an offence. In such cases, however, the
B
.4
accused is not without legal remedy. If the act of taking
cognizance, issuance of process or joining of an innocent
person as an accused is totally uncalled for or ex facie
bad in law, it is open to the aggrieved party to invoke
inherent jurisdiction of High Court u/s 482 of the Code. If c
High Court is satisfied that the orqer passed by the
Magistrate was illegal, improper or arbitrary, it can exercise
inherent powers and quash criminal proceedings initiated
against the party. But that power is independent and has
nothing to do with recalling of an earlier order by the
D
Court which passed it. [Para 55] [983,D-G]
"'
2.3 The submission of the respondent no. 2 that even if
it is assumed that the trial court did not possess the power
of recalling its order, the Court may consider an important
fact that the respondent No. 2, who was really an 'aggrieved
E
party' had preferred revisions in the Court of Sessions and
it would not preclude the revisional Court from exercising
revisional jurisdiction and quashing and setting aside an order
passed by subordinate Court if it was not in accordance with
law, cannot be accepted. [Para 54] [983,A-C]
F
,A
2.4 In the instant case, even on merits, the order
passed by the Magistrate issuing summons to respondent
No.2 could not be said to be unlawful or even improper.
When applications u/s. 319 of the ·Code were preferred
by the appellant praying to join respondent No.2 as an
G
)
accused and to issue summons, the Magistrate
considered the evidence of prosecution witnesses and
he was satisfied that depositions of witnesses prima facie
made out offence against respondent No.2. [Paras 56 and
57] [983,G-H; 984,A-B]
H
964
SUPREME COUl~T REPORTS
[2008] 12 S.C.R.
A
2.5 The Revisional Court ought not to have interfered
with the order passed by the trial court u/s 319 of the
Code. Since the order passed by the Judicial Magistrate
was in consonance with law, the· Additional Sessions
Judge should have refrained from exercising revisional
B jurisdiction. The orders passed by the Additional Sessions
Judge and the High Court are set aside and. the order
passed by the Judicial Magisfrate is restored. Since the
matter pertains to' FIR of 1986, the Magistrate is directed
to conclude the trial expeditiously. [Paras 71 and 73]
C
[990,~-D;. 991,B]
2;6 The Revisional Court referred to *K.K. Mathew's
case and held that a summoning order, being interlocutory
in nature, could not be termed as 'judgmenf and there
was no bar in recalling such order. The Additional
D. Session.s Judge decided the revision in 1998. The law
governing the field at that time was the law laid down in
K. K. Mathew. **Ada/at Prasad's case had not seen the light
6f the day. Therefore, there is nothing wrong on the part
of the Additional Sessions Judge in considering,
E following and deciding the case on the basis of K.K.
Mathew. However, Revisional Court was not right in·
interfering with the order passed by the trial court. The.
Magistrate issued summons taking into account evidence
led by the prosecution. The ~evisional Court was having
F depositions of those witnesses, the order passed by the
Magistrate, the order made by the Additional Sessions
_.___
Judge in revision instituted by the State and also the
otder·passed by the Magistrate in an application to recall
filed by respondent no. 2. lnspite of the above material,
G Revisional Court interfered with the order of the trial
Court. It was not justified in entering into correctness or
otherwise of the evidence at the stage of issuance of
summons to respondent No.2. Hence, the order was not
in accordance with law. [Paras 62, 63, 64 and 66] [987 ,AH E; 988,G; 989,B]
t
)
BHOLU RAM v. STATE OF PUNJAB & ANR.
965
*K.K. Mathew v. State of Kera/a and Anr. 1992 (1) SCC A .
217; **Ada/at Prasad v. Roop/al Jindal and Ors. 2004 (7)
SCC 338; Nilamani Routray v. Bennett Coleman and Co.
Ltd. 1998 (8) SCC 594; Subramaniam Sethuraman v. State
of Maharashtra, (2004) 13 SCC 324; N. K. Sharma v.
Abhimanya (2005) 13 SCC 213; Everest Advertisement v.
B
State Government of NCT of Delhi 2007 (5) SCC 54- referred
to.
3. The offences punishable u/ss 409, 420, 467, 468,
471 IPC can by no stretch of imagination by their very
nature be regarded as having been committed by a public C
servant while 'acting or purporting to act in discharge of
official duty'. The Revisional Court was aware of legal
position. It was, however, held by the Court that at the
most there was negligence on the part of respondent
No.2 but there was no criminal intent and he cannot be D
held criminally liable. Mens rea can only be decided at the
time of trial and not at the stage of issuing summons.
Moreover, a point as to need or necessity of sanction can
be taken during the conduct of trial or at any stage of the
proceedings. Hence, proceedings could not have been
E
quashed on the ground of want of sanction in the instant
case. [Paras 68 and 69] [989,C-D; 989,E-F]
Prakash Singh Badal v. State of Punjab (2007) 1 SCC
1 - referred to.
4. As regard the role of the State, an order passed by F
the Judicial Magistrate summoning respondent No.2 as
accused was challenged by the State by filing a revision
in the Court of Session, which was dismissed. Even in this
Court, the State supported respondent No.2. An affidavit
in reply was filed by the State even before counter affidavit G
was filed by contesting respondent No.2. Though in the
affidavit, it is not necessary to deal with law points and/or
decisions rendered by a Court of law, the deponent refers
to and relies on K.K. Mathew expressly overruled by a larger
H
966
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A
Bench in Ada/at Prasad. No reference at all has been made
to Ada/at Prasad. It is respondent No.2 who, in his counter,
refers to both the decisions. In the totality of the facts and
circumstances, the submission of the appellant that the
Stat~ Authorities were helping· and ·assisting respondent
B No.2 cannot be said to be totally ill-founded or without
substance: The State, could have easily avoided such
embarrassment. [Para 72] [990,E-H; 991,A]
Case Law Reference
c
1979 (1) sec 345
Referred to.
27
1983 (1) sec 1
Referred· to.
33
2006 (10) sec 192
Referred to.
35
2002 (5) sec 738
Referred to.
39
D
1992 (1) sec 211
Referred to.
42
2004 (7) sec 338
Referred to.
45
1998 (8) sec 594
Referred to.
46
2004 (13) sec 324
Referred to.
50 ~
E
2005 (13) sec 213
Referred to.
50
2001 (5) sec 54
Referred to.
50
2001 (1) sec 1
Referred to.
68
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
F
No. 1366 of 2008
From the final Judgment and Order dated 27.11.2006 of
the High Court of Punjab and Haryana at Chandigarh 'in Criminal
Revision No. 401 of 1998
G
Rishi Malhotra for the Appellant.
H
Seeraj Bagga, Kuldip Singh, P.N. Puri, Dhiraj and Reeta
Dewan for the Respondents.,
The Judgment of the Court was delivered by
BHOLU RAM v. STATE OF PUNJAB & ANR.
967
[C.K. THAKKER, J.]
--i
C.K. THAKKER, J. 1. Leave granted.
A
2. The present appeal is filed by the appellant-accused
against the order passed by the Additional Sessions Judge,
Barnala on March 5, 19~8 in Criminal Revision Nos. 11 and 12
of 1997 and confirmed by the High Court of Punjab & Haryana
B
on November 26, 2006 in Criminal Revision Nos. 401 and 402
.
_,)
of 1998.
3. To appreciate the issues raised in the j;)resent appeal,
few relevant facts may be stated.
4. On August 21, 1986, First Information Report (FIR) No. c
87 was lodged against the appellant for commission of offences
punishable under Sections 409, 420, 467, 468 and 471 of the
Indian Penal Code (IPC). The allegation in the FIR was that the
appellant was a Clerk in Government Hign School, Rurke Kalan.
He had forged signature of Sher Singh-respondent No. 2 herein D
who was the Head Master-cum-Drawing and Disbursing Officer
and embezzled substantial amount of more than Rs. one lakh
between 1979 and 1986. As stated in the FIR, the said fact
came to light when audit was carried out and report was
submitted. Hence, the complaint.
E
5. According to the appeilant, during the course of
investigation, signatures of respondent No. 2 were also taken
and were sent for examination but the report on the said
examination was never filed by the prosecution in the
F
proceedings. It was only in the course of recording of
~+-
prosecution evidence that certain witnesses deposed against
respondent No. 2 alleging that it was respondent No. 2 who
had withdrawn the amount and signatures purported to have
been forged by the appellant really tallied with the specimen
signatures of respondent No. 2. In view of the said fact, the G
)
appellant on February 05, 1994 and on January 06, 1996, filed
applications under Section 319 of the Code of. Criminal
Procedure, 1973 (hereinafter referred to as 'the Code') in the
Court of Judicial Magistrate praying therein to add .r:.,espondent
No. 2 as an accused and summon him being Head MasterH
968
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A
cum-Drawing and Disbursing Officer who had prepared false
and forged bills, misappropriated the amount and committed
fraud on the Government.
6. The learned Magistrate, after considering the evidence
on record, held that prima facie case had been made out against
B respondent No. 2 and that he should also be joined as accused.
The learned Magistrate allowed the applications of the appellant
"-- ~
and issued summons to respondent No. 2 by joining him as
accused.
c
7. Though the order was passed on January 22, 1996, it
was not challenged by respondent No. 2. The order, however,
was challenged by the Sta.te by filing a Revision Petition in the
Court of Additional Sessions Judge, Barnala. The learned Judge
vide an order dated May 06, 1996, dismissed the petition filed
D by respondent No. 1-State.
,
8. After a gap of more than eight months from the order
passed by the learned Magistrate summoning respondent No.
2, he filed an application on September 25, 1996 to. review/
recall summoning order dated January 22, 1996. He also
E contended in a separate petition that he could not be prosecuted
in absence of sanction as required by Section 197 of the Code.
The learned Magistrate by an order dated March 12, 1997
dismissed the application of respondent No. 2 holding it to be
not maintainable in view of dismissal of revision of the State by
F
the Additional Sessions Judge.
9. Being aggrieved by the order passed by the Judicial
Magistrate, respondent No. 2 filed two Revision Petitions before
the learned Additional Sessions Judge. The learned Judge
allowed the revisions of respondent No. 2 and set aside the
G order dated January 22, 1996 passed by the Judicial Magistrate
adding respondent No. 2 as an accused and summoning him.
The said order was passed on March 5, 1998.
" .
10. "The appellant challenged both the orders by
approaching the High Court by instituting two revision petitions.
H
)
)
BHOLU RAM v. STATE Or PUNJAB & ANR.
969
[C.K. THAKKER, J.]
I
The High Court, however, dismissed both the revisions and
A
confirmed the order passed by the learned Additional Sessions
Judge. The said order is challenged in the present appeal.
11. On January 19, 2007, notice was issued by this Court.
On February 15, 2007, further proceedings were stayed. ,
8
Considering the controversy and issues involved, the Registry
was directed to place the matter for final hearing. Accordingly,
the matter was placed before us.
12. We have heard the learned counsel for the parties.
13. The learned counsel for the appellant contended that
i C
once an order was passed and summons was issued by the
Judicial Magistrate, he had no power, authority or jurisdiction to
. review the said order or recall the summons. On that ground
alone, the orders passed by the courts below are liable to be
set aside. It was also submitted that the order passed by the , D
Judicial Magistrate adding respondent No. 2 and summoning
him was in consonance with Section 319 of the Code and
should not have been interfered with. It was urged that such an
order could be passed on an application of any party including
the accused and the matter ought to have been decided on
E
merits and the said order could not have been disturbed by the
revisional Court. It was further submitted that the Courts below
were wrong in invoking Section 197 of the Code and in holding
that sanction was necessary.
14. It was submitted that even on merits, the orders passed
F
by the Judicial Magistrate was in consonance with law and '
called for no interference. It was, therefore, prayed that the
order passed by the Additional Sessions Judge and confirmed
by the High Court may be set aside and the order passed by
the Judicial Magistrate be restored.
G
15. The learned counsel for the contesting respondent
No. 2, on the other hand, supported the order passed by the
Courts below. It was submitted that the Additional Sessions
Judge was satisfied that the order passed by the Judicial· H
970
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A
Magistrate was not in consonance with lav1 and it could be
""/--
recalled. Such order was not an order of review, but recalling
of earlier order which was not found legal or lawful. It was also
submitted that FIR was lodged as early as in 1986 and
applications for adding respondent No. 2 as an accused were
8
made by the appellant-accused in the year 1994 and 1996, i.e.
after about 8 to 10 years. Such applications, therefore, could
"---""<
not have been entertained by the Court. Again, the respondent
No. 2 was admittedly Head Master-cum-Drawing and Disbursing
Officer and no prosecution could be launched against him
c without sanction from the Government as envisaged by Section
197 of the Code. Since no such sanction was obtained, no
prosecution could be launched against him.
16. The counsel also submitted that no application under
Section 319 could be filed by an accused and since the
D appellant herein was the accused, applications by him were
not maintainable. The counsel urged that when the Additional
Sessions Judge allowed the revisions filed by respondent No.
--(
2 and the said order was confirmed by the High Court, this
Court may not interfere with it in exercise of discretionary
E jurisdiction under Article 136 of the Constitution. It was, therefore,
submitted that the appeal may be dismissed.
17. The learned Government pleader appearing for
respondent No. 1 adopted the arguments of learned counsel
F
for respondent No. 2 and submitted that the appeal deserves
to be dismissed.
I "'-
18. Having heard the learned counsel for the parties and
in the light of the relevant provisions of law as also judicial
pronouncements to which our attention has been invited by the
G learned cot.:nsel for the parties, in our opinion, the appeal
deserves to be allowed.
(
19. Section 319 of the Code empowers a Court to proceed
against any person not shown to be an ac.cused if it appears
from the evidence that such person has a!so committed an
H offence for which he can be Uied together with the accused.
BHOLU RAM v. STATE OF PUNJAB & ANR.
[C.K. THAKKER, J.]
20. Section 319 of the Code reads thus;
971
A
· 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 ttie . 1
evidence that any person ·not being the. accused had
comm_itted ariy offence for which such· per~;oh could be · B
~- ._,/
tried together With the. accused, the Court may proceed
ag·ainst such person for the offence which tie appea.rs to
have committed.
(2) Where such person is not attending the Court he may 'c
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 detailed by such Court
for the purpose of the inquiry into, or trial of, the offence D
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 , E
commenced afresh, and 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.
F
21. Sometimes a Magistrate while hearing a case against
one or more accused finds from the evidence that some person ,
other than the accused before him is also involved in that very
offence. It is only proper that a Magistrate should have power , G
to summon by joining such person as an accused in the case.
The primary object underlying Section 319 is that the whole
case against all the accused should be tried and disposed of '
not only expeditiously but also simultaneously. Justice and
convenience both require that cognizance against the newly ' H
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SUPREME COURT REPORTS
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].-...
A
added accused should be taken in the same case and in the
same manner as against the original accused. The power must
v
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be regarded and conceded as incidental and ancillary to the
main power to take cognizance as part of normal process in
the administration of criminal justiGe.
B
22. It is also settled law that power under Section 319 can
be exercised either on an application made to the Court or by
\......-,.
the Court suo motu. It is in the discretion of the Court to take
an action under the said section and the Court is expected to
exercise the discretion judicially and judiciously having regard
c to the facts and circumstances of each case.
23. In the instant case, an FIR was lodged against the
appellant in August, 1986. But it was during the course of trial
that it came to light that signatures of respondent No. 2 were
D also taken and were sent for examination and a report was
received showing that the signatures on the basis of which
amount was withdrawn tallied with the signatures of respondent
No. 2. The said report, however, was not filed by the prosecution.
It was in these circumstances that the appellant made
E
applications in 1994 and in 1996 under Section 319 of the
Code requesting the learned Magistrate to join respondent No.
2 as accused and to summon him.
24. The contention of the learned counsel for respondent
No. 2 is that the power under Section 319 of the Code, cannot
F
be exercised belatedly by the Court. Again, such order can be
made only on the application by the Public Prosecutor or by
~'
some p~rson other than the accused. In other words, an
application under Section 319 cannot be filed by a person who
is facing the trial.
G
25. We are unable to uphold the contentions. We have
quoted Section 319 of the Code. It nowhere· states that such an
(
application can be filed by a person other than the accused. It
also does not prescribe any time limit within which such
application should be filed in the Court.
H
BHOLU RAM v. STATE OF PUNJAB & ANR.
973
[C.K. THAKKER, J.]
26. Let us consider few leading decisions of this Court on
A
interpretation and application of the said provision.
27. Before three decades, in Joginder Singh & Anr. v.
State of Punjab & Anr., (1979) 1 SCC 345, a case was
registered against Joginder Singh, Ram Singh, Bhan Singh,
Darshan Singh and Ranjit Singh for committing various offences · B
,.. -
punishable under the Indian Penal Code. During the
investigation, the police found Joginder Singh and Ram Singh
(appellants before this Court) to be innocent and, hence, a
charge-sheet was submitted against the remaining accused
only. The learned Magistrate after holding preliminary inquiry,
C
committed three accused to the Sessions Court for trial.
28. During trial, evidence of some of the witnesses was
recorded who implicated the appellants. A Public. Prosecutor,
therefore, moved an application to summon the appellants and D
to try them along with other accl:lsed. The application was
granted by the Sessions Court. The said order was challenged
by the appellants.
29. It was, inter a/ia, contended on behalf of the appellants
that Section 319 of the Code was not attracted inasmuch as
E
the phrase "any person not being the accused" occurring therein
excluded from its operation an accused who had been released
by the police under Section 169 of the Code and against whom
no sufficient material was found by the police during
investigation.
F
30. This Court considered the relevant provisions of the
Code of Criminal Procedure, 1898 (old Code), Forty-first
Report of the Law Commission, the amendment made in the
present Code and held that the Court could add any person,
not an accused before it, as an accused and direct him to be G
tried along with the other accused for the offence or offences
the added accused appears to have committed.
31. The Court, after considering the scheme of the
provision, observed;
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SUPREME COURT REPORTS
[2008] 12 S.C.R.
"A plain reading of Section 319(1 ), which occurs in Chapter
XXIV dealing with general provisions as to inquiries and
trials, clearly shows that it applies to all the·courts including
a Sessions Court and as such a Sessions Court will have
the power to add any person, not being the accused before
it, but against whom there appears during trial sufficient
evidence indicating his involvement in the offence, as an
accused and direct him to be tried along with the other
accused, ... "
32. Interpreting the expression "any person not being the
C
accused", the Court stated;
D
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F
"As regards the contention that the phrase "any person
not being the accused" occurring in Section 319 excludes
from its· operation an accused who has been released by
the police under Section 169 of the Code and has been
shown in column No. 2 of the charge-sheet, the contention
has merely to.be stat~d to be rejected. The said expression
clearly covers any person who is not being tried already
by the Court and the very purpose of enacting such a
provision like Section 319(1) clearly shows that even
persons who have been dropped by the police during
investigation but against whom evidence showing their
involvement in the offence comes before the Criminal Court
are Included in the said expression".
(emphasis supplied)
. (See also Rakesh v. State of Haryana, (2001) 6 SCC
248
33. In Municipal Corporation of Delhi v. Ram Kishan
G Rohtagi & Ors., (1983) 1 SCC 1, the Food Inspector, noticing
adulteration in 'Morton Toffees', filed a complaint against the
Company, its Managing Director as well as Directors under the
Prevention of Food Adulteration Act, 1954. The Managing
Director and Directors approached the High Court by invoking
Section 482 of the Code for quashing of proceedings which
H
-(
BHOLU RAM v. STATE OF PUNJAB & ANR.
975
[C.K. THAKKER, J.]
was granted and the proceedings against them were quashed.; A
The question before this Court was whether Section 319 of the
Code could be invoked once criminal proceedings against a
person were quashed.
34. Replying the question in the affirmative and quoting
with approval observations in Joginder Singh, this Court said; · 8
, - J
"In these circumstances, therefore, if the prosecution can ·
at any stage produce evidence which satisfies the court
that the other accused or those who have not been arrayed '
as accused against whom proceedings have been c
quashed have also committed the offence the Court can
take cognizance against them and try them along with the
other accused. But, we would hasten to add that this is
really an extraordinary power which is conferred on the
Court and should be used very sparingly and only if 0
compelling reasons exist for taking cognizance against
the other person against whom action has not been taken.
More than this we would not like to say anything further at
this stage. We leave the entire matter to the discretion of
the court concerned so that it may act according to law.
We would, however, make it plain that the mere fact. that 'E
the proceedings have been quashed against respondent
Nos. 2 to 5 will not prevent the court from exercising its
discretion if it is fully satisfied that a case for taking.
cognizance against them has been made out on the
additional evidence led before it".
· F
(emphasis supplied)
35. In Lok Ram v. Nihal Singh & Anr., (2006) 10 SCC
192, again, a similar question came up before this Court. In
Lok Ram, one Saroj Kumari was killed by her in-laws. A G
complaint was filed by the father of the deceased against the
husband, brother in law and father in law of Saroj Kumari that
all of them killed the deceased. Police registered a case against
the said persons for offences punishable under Sections 304-
. B, 498-A read with Section 34, IPC. The case of Lok Ram was H
976
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A that he was seNing in a school and at the time of incident, he
was not present. No charge-sheet was, therefore, filed against
him.
36. During the trial, however, depositions of witnesses
B
were recorded which revealed that Saroj Kumari was killed by.
her husband. Her brother in law and father if:1 law (Lok Ram)
poured kerosene oil on her and she was set on fire. Father of
'---,
the deceased, hence,; made an application under Section 319
of the Code to add Lok Ram as accused which was rejected
c
by the trial Court. Meanwhile, the trial proceeded further against
the other accused and they were convicted. The High Court
directed the trial Court to proceed against Lok Ram. The said
order was challenged by Lok Ram in this Court.
37. Dismissing the appeal, referring to earlier decisions
D of this Court on the point and explaining the scope of Section
319 of the Code, the Court stated;
"On a careful reading of Section 319 of the Code as well
as the aforesaid two decisions, it becomes clear that the
trial court has undoubted jurisdiction to add any person
E
not being the accused before it to face the trial along with
other accused persons, if the Court is satisfied at any
stage of the proceeding on the evidence adduced that the
persons who have not been arrayed as accused should
face the trial. It is further evident that such person even
F
though had initially been named in the F.l.R. as an accused,
but not charge sheeted, can also be added to face the
~
trial. The trial court can take such a step to add such
persons as accused only on the basis of evidence adduced
before it and not on the basis of materials available in the
G
charge-sheet or the case diary, because such materials
contained in the charge sheet or the case diary do not
<:
constitute evidence".
38. Construing the provision liberally, the Court proceeded
to state;
H
BHOLU RAM v. STATE OF PUNJAB & ANR.
977
[C.K. THAKKER, J.]
"Power under Section 319 of the Code can be exercised A
by the Court suo motu or on an application by someone
including accused already before it. If it is satisfied that
any person other than accused has committed an offence
he is to be tried together with the accused. The power is
discretionary and such discretion must be exercised
8
i.--'
judicially having regard to the facts and circumstances of
the case. Undisputedly, it is an extraordinary power which
is conferred on the Court and should be used very sparingly
and only if compelling reasons exist for taking action
against a person against whom action had not been taken c
earlier. The word 'evidence' in Section 319 contemplates
that evidence of witnesses given in Court. Under subsection (4)(1 )(b) of the aforesaid provision, it is specifically
made clear that it will be presumed that newly added
person had been an accused person when the Court took D
cognizance of the offence upon which the inquiry or trial
was commenced. That would show that by virtue of sub-
;.
section (4)(1)(b) a legal fiction is created that cognizance
would be presumed to have been taken so far as newly
added accused is concerned".
E
(emphasis supplied)
39. In Shashikant Singh v. Tarkeshwar Singh & Anr,
(2002) 5 SCC 738, during the pendency of trial of an accused,
another person was summoned by the trial Court under Section
319 of the Code. But by the time he could be brought before the
F
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Court, the trial against the accused was over. The question was
whether such a person could be summoned and tried for the
offence for which he was summoned. This Court held that the
words "should be tried together with the accused" were merely
directory and such a person could be tried even after conclusion G
")
of trial of the main accused.
The Court stated;
"The intention of the provision here is that where in the
course of any enquiry into, or trial of, an offence, it appears H
978
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SUPREME COURT REPORTS
[2008] 12 S.C.R.
to the court from the evidence that any person not being_
the accused has committed any offence, the Court may
proceed against him for the offence which he appears to
have committed. At the stage, the Court would consider
that such a person co·u1d be tried together with the accused
. who is already ·before.,,,the Court facing the trial. The -.
safeguard provided in respect of such person is that,_ the·
proceedings right from the beginning have mandatory t.o
be commenced afresh and the witnesses re-heard. In
short, there has to be a de nova trial against him. The
provision of de novo trial is mandatory. It vitally affects the
rights of a person so brought before the Court. It would not
be sufficient to only tender the witnesses for the crossexamination of such a person. They have to be examined
afresh. Fresh examination in chief and not only their
presentation for the purpose of the cross-examination of
the newly added accused is the mandate of Section 319(4).
The words 'could be tried together with the accused' in
Section 319(1), appear to be only directory. 'Could be'
cannot under these circumstances be held to be 'must
be'. The provision cannot be interpreted to mean that since
the trial in respect of a person who was before the Court
has concluded with the result that the newly added person
cannot be tried together with the accused who was before
the Court when order under Section 319(1) was passed,
the order would become ineffective and inoperative,
nullifying the opinion earlier formed by the Court on the
basis of evidence before it that the newly added person
appears to have committed the offence resulting in an
order for his being brought before the Court".
G
40. In our opinion, therefore, the learned Magistrate had
power and jurisdiction to entertain applications filed by the
appellant-accused under Section 319 .of the Code and to issL:e
summons to respondent No. 2 by adding him as accused. The
said order could not be said to be illegal, unlawful or otherwise
H
objectionable.
·
BHOLU RAM v. STATE OF PUNJAB & ANR.
979
[C.K. THAKKER, J.]
-.\
41. The next question is whether an order passed by a
fa.
Court could be recalled? Before the Courts below as also before
us, the learned counsel for respondent No. 2 urged that an
order passed by a Magistrate could be recalled.
42. In support of the submission, reliance was placed by
B
the counsel on a two-Judge Bench decision of this Court in
).__.)
K.M. Mathew v. State of Kera/a & Anr, (1992) 1 SCC 217. In
that case, the appellant was the Editor-in-Chief of a daily
newspaper. A complaint was filed against him and others
alleging commission of offence punishable under Section 500
read with Section 34, IPC. The Magistrate examined the c
complainant on oath and issued summons to the accused. The
Chief Editor appeared before the Court and prayed for dropping
of proceedings against him by recalling the order on the ground
that there was no allegation as to how he was responsible for
publication of news item alle~ed to have caused defamation of D
the complainant. The Magistrate accepted the plea and dropped
>
the proceedings so far as Chief Editor was concerned. The
complainant challenged the said order by filing a revision in the
High Court which was allowed. The Chief Editor questioned
correctness of the order passed by the High Court.
E
43. The issue before this Court was whether the Magistrate
had power to recall an order of summoning the accused.
Considering the relevant provisions of the Code, the Court held
that an order of summoning an accused could be recalled by
the Magistrate. Such order is merely an interim order and not
F
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a judgment and recalling thereof would not amount to review.
44.