# MANJEET SINGH v. STATE OF HARYANA & ORS

- **Citation:** [2021] 7 S.C.R. 855
- **Court:** Supreme Court of India
- **Decided:** 2021-08-24
- **Case number:** Criminal Appeal No.875 of 2021
- **Bench:** Dr. Dhananjaya Y. Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manjeet-singh-v-state-of-haryana-ors-35142
- **Pages:** 35

## Headnote

Code of Criminal Procedure, 1973 - s.319 - Summoning of
additional accused - An FIR was registered on the basis of the
statement of the original complainant regarding death of his son
and injuries suffered by his nephew-appellant - As per his statement
his son and his nephew were attacked by one 'S' and four accused
persons/private respondents armed with weapons while they were
on their way back home after purchasing the pesticides meant for
paddy in their car - There was indiscriminate firing from 'S' which
led to death of his son and his nephew was injured - A cross-case
was also registered against the complainant side - The matter was
investigated and after investigation, a final report was filed only
against 'S' - That during the trial, appellant-nephnew was examined
as PW1 - In the deposition, he reiterated the allegations made in
the FIR including the allegations made against the four private
respondents and reiterated what was stated in the FIR - He came to
be cross-examined partly and during the cross-examination, an
application u/s. 319 CrPC was given on behalf of the complainant
for summoning of four private respondents as additional accused -
The trial Court dismissed the application u/s. 319 CrPC - The High
Court confirmed the order passed by the trial Court - On appeal,
held: It is required to be noted that in the FIR all the private
respondents herein who are sought to be arraigned as additional
accused were specifically named with specific role attributed to them
- It is specifically mentioned in the FIR that all the aforesaid persons
with common intention parked the car in a manner which blocks
the entire road and they were armed with the weapons - The evidence
of an injured eye witness has greater evidential value and unless
compelling reasons exist, their statements are not to be discarded
lightly - While exercising the powers u/s. 319 CrPC the Court has
not to wait till the cross-examination and on the basis of the
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examination-in-chief of a witness if a case is made out, a person
can be summoned to face the trial u/s. 319 CrPC - The trial Court
as well as the High Court have materially erred in dismissing the
application u/s.319 CrPC and refusing to summon the private
respondents herein to face the trial in exercising the powers u/s.
319 CrPC.
Code of Criminal Procedure, 1973 - s.319 - The High Court
while dismissing the application filed u/s.319 CrPC went into the
merits of the case - Held: At the stage of exercising the powers u/s.
319 CrPC, the Court is not required to appreciate and/or enter on
the merits of the allegations of the case.
Code of Criminal Procedure, 1973 - s.319 - Exercise of
power under - Held: Powers u/s. 319 CrPC can be exercised at
any stage from commencing of the trial and recording of evidence/
deposition and before the conclusion of the trial at any stage.
Allowing the appeal, the Court
HELD: 1. The ratio of the various Supreme Court decisions
on the scope and ambit of the powers of the Court under Section
319 CrPC can be summarized as under:
(i) That while exercising the powers under Section 319
CrPC and to summon the persons not charge-sheeted, the entire
effort is not to allow the real perpetrator of an offence to get away
unpunished;
(ii) for the empowerment of the courts to ensure that the
criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the
legislature under the CrPC indicating as to how the courts should
proceed to ultimately find out the truth so that the innocent does
not get punished but at the same time, the guilty are brought to
book under the law;
(iv) to discharge duty of the court to find out the real truth
and to ensure that the guilty does not go unpunished;
(v) 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;
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## Text

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[2021] 7 S.C.R. 855
855
MANJEET SINGH
v.
STATE OF HARYANA & ORS.
(Criminal Appeal No.875 of 2021)
AUGUST 24, 2021
[DR. DHANANJAYA Y. CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973 - s.319 - Summoning of
additional accused - An FIR was registered on the basis of the
statement of the original complainant regarding death of his son
and injuries suffered by his nephew-appellant - As per his statement
his son and his nephew were attacked by one 'S' and four accused
persons/private respondents armed with weapons while they were
on their way back home after purchasing the pesticides meant for
paddy in their car - There was indiscriminate firing from 'S' which
led to death of his son and his nephew was injured - A cross-case
was also registered against the complainant side - The matter was
investigated and after investigation, a final report was filed only
against 'S' - That during the trial, appellant-nephnew was examined
as PW1 - In the deposition, he reiterated the allegations made in
the FIR including the allegations made against the four private
respondents and reiterated what was stated in the FIR - He came to
be cross-examined partly and during the cross-examination, an
application u/s. 319 CrPC was given on behalf of the complainant
for summoning of four private respondents as additional accused -
The trial Court dismissed the application u/s. 319 CrPC - The High
Court confirmed the order passed by the trial Court - On appeal,
held: It is required to be noted that in the FIR all the private
respondents herein who are sought to be arraigned as additional
accused were specifically named with specific role attributed to them
- It is specifically mentioned in the FIR that all the aforesaid persons
with common intention parked the car in a manner which blocks
the entire road and they were armed with the weapons - The evidence
of an injured eye witness has greater evidential value and unless
compelling reasons exist, their statements are not to be discarded
lightly - While exercising the powers u/s. 319 CrPC the Court has
not to wait till the cross-examination and on the basis of the
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examination-in-chief of a witness if a case is made out, a person
can be summoned to face the trial u/s. 319 CrPC - The trial Court
as well as the High Court have materially erred in dismissing the
application u/s.319 CrPC and refusing to summon the private
respondents herein to face the trial in exercising the powers u/s.
319 CrPC.
Code of Criminal Procedure, 1973 - s.319 - The High Court
while dismissing the application filed u/s.319 CrPC went into the
merits of the case - Held: At the stage of exercising the powers u/s.
319 CrPC, the Court is not required to appreciate and/or enter on
the merits of the allegations of the case.
Code of Criminal Procedure, 1973 - s.319 - Exercise of
power under - Held: Powers u/s. 319 CrPC can be exercised at
any stage from commencing of the trial and recording of evidence/
deposition and before the conclusion of the trial at any stage.
Allowing the appeal, the Court
HELD: 1. The ratio of the various Supreme Court decisions
on the scope and ambit of the powers of the Court under Section
319 CrPC can be summarized as under:
(i) That while exercising the powers under Section 319
CrPC and to summon the persons not charge-sheeted, the entire
effort is not to allow the real perpetrator of an offence to get away
unpunished;
(ii) for the empowerment of the courts to ensure that the
criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the
legislature under the CrPC indicating as to how the courts should
proceed to ultimately find out the truth so that the innocent does
not get punished but at the same time, the guilty are brought to
book under the law;
(iv) to discharge duty of the court to find out the real truth
and to ensure that the guilty does not go unpunished;
(v) 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;
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(vi) Section 319 CrPC allows the court to proceed against
any person who is not an accused in a case before it;
(vii) 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;
(viii) 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;
(ix) the power under Section 319(1) CrPC can be exercised
at any stage after the charge-sheet is filed and before the
pronouncement of judgment, except during the stage of Sections
207/208 CrPC, committal, etc. which is only a pre-trial stage
intended to put the process into motion;
(x) the court can exercise the power under Section 319
CrPC only after the trial proceeds and commences with the
recording of the evidence;
(xi) 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;
(xii) 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;
(xiii) if the Magistrate/court is convinced even on the basis
of evidence appearing in examination-in-chief, it can exercise the
power under Section 319 CrPC and can proceed against such
other person(s);
(xiv) that the Magistrate/court is convinced even on the
basis of evidence appearing in examination-in-chief, powers under
Section 319 CrPC can be exercised;
MANJEET SINGH v. STATE OF HARYANA & ORS.
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(xv) that power under Section 319 CrPC can be exercised
even at the stage of completion of examination-in-chief and the
court need not has to wait till the said evidence is tested on crossexamination;
(xvi) 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 FIR
but not implicated in the charge-sheet has gone, in that case also,
the Court is still not powerless by virtue of Section 319 CrPC
and even those persons named in FIR but not implicated in the
charge-sheet can be summoned to face the trial, provided during
the trial some evidence surfaces against the proposed accused
(may be in the form of examination-in-chief of the prosecution
witnesses);
(xvii) while exercising the powers under Section 319 CrPC
the Court is not required and/or justified in appreciating the
deposition/evidence of the prosecution witnesses on merits which
is required to be done during the trial. [Para 13][884-A-H;
885-A-H]
2. Applying the law laid down in the various decisions to
the facts of the case on hand this Court is of the opinion that the
trial Court as well as the High Court have materially erred in
dismissing the application under Section 319 CrPC and refusing
to summon the private respondents herein to face the trial in
exercising the powers under Section 319 CrPC. It is required to
be noted that in the FIR No.477 all the private respondents herein
who are sought to be arraigned as additional accused were
specifically named with specific role attributed to them. It is
specifically mentioned that while they were returning back, a car
was standing on the road which belongs to accused persons. All
the five accused persons were armed with lathi, gandsi, danda
and a revolver. It is specifically mentioned in the FIR that all the
aforesaid persons with common intention parked the car in a
manner which blocks the entire road and they were armed with
the weapons. Despite the above specific allegations, when the
charge-sheet/final report came to be filed only two persons came
to be charge-sheeted and the private respondents herein though
named in the FIR were put/kept in column no.2. Entire discussion
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in the charge-sheet/final report is against 'S' only. So far as the
private respondents are concerned only thing which is stated is
"During the investigation of the present case, HPS, DSP Assandh
and HPS, DSP Indri found four accused, residents of Bandrala
innocent and accordingly Sections 148, 149 and 341 of the IPC
were deleted in the case and they were kept in column no.2,
whereas challan against accused 'S' has been presented in the
Court." [Para 14][886-A-H; 887-A]
3. Now thereafter when in the examination-in-chief the
appellant herein - victim - injured eye witness has specifically
named the private respondents herein with specific role attributed
to them, the trial Court as well as the High Court ought to have
summoned the private respondents herein to face the trial. At
this stage it is required to be noted that so far as the appellant
herein is concerned he is an injured eye-witness. The evidence
of an injured eye witness has greater evidential value and unless
compelling reasons exist, their statements are not to be discarded
lightly. As observed hereinabove while exercising the powers
under Section 319 CrPC the Court has not to wait till the crossexamination and on the basis of the examination-in-chief of a
witness if a case is made out, a person can be summoned to face
the trial under Section 319 CrPC. [Para 14.1][887-B-D]
4. Now so far as the reasoning given by the High Court
while dismissing the revision application and confirming the order
passed by the trial Court dismissing the application under Section
319 CrPC is concerned, the High Court entered into the merits
of the case. At the stage of exercising the powers under Section
319 CrPC, the Court is not required to appreciate and/or enter
on the merits of the allegations of the case. The High Court has
lost sight of the fact that the allegations against all the accused
persons right from the very beginning were for the offences under
Sections 302, 307, 341, 148 & 149 IPC. The High Court has
failed to appreciate the fact that for attracting the offence under
Section 149 IPC only forming part of unlawful assembly is sufficient
and the individual role and/or overt act is immaterial. Therefore,
the reasoning given by the High Court that no injury has been
attributed to either of the respondents except that they were
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armed with weapons and therefore, they cannot be added as
accused is unsustainable. The trial Court and the High Court
have failed to exercise the jurisdiction and/or powers while
exercising the powers under Section 319 CrPC. [Para 14.2][887E-H; 888-A-B]
Sartaj Singh v. State of Haryana 2021 (4) SCALE 227;
Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :
[2014] 2 SCR 1 - relied on.
Lakshman Singh v. State of Bihar (now Jharkhand) 2021
(8) SCALE 448; Sukhpal Singh Khaira v. State of
Punjab (2019) 6 SCC 638; Masalti v. State of U.P AIR
1965 SC 202 : [1964] SCR 133; Shambhu Nath Singh
and Ors. v. State of Bihar AIR 1960 SC 725; Brijendra
Singh v. State of Rajasthan (2017) 7 SCC 706 : [2017]
3 SCR 374; S. Mohammed Ispahani v. Yogendra
Chandak (2017) 16 SCC 226 : [2017] 10 SCR 29;
Rajesh v. State of Haryana (2019) 6 SCC 368 : [2019]
8 SCR 187; State of MP v. Mansingh (2003) 10 SCC
414 : [2003] 2 Suppl. SCR 460; Abdul Sayeed v. State
of MP (2010) 10 SCC 259 : [2010] 13 SCR 311; State
of Uttar Pradesh v. Naresh (2011) 4 SCC 324 : [2011]
4 SCR 1176 - referred to.
Case Law Reference
[2014] 2 SCR 1
relied on
Para 8.6
2021 (8) SCALE 448
referred to
Para 8.7
(2019) 6 SCC 638
referred to
Para 8.8
[1964] SCR 133
referred to
Para 8.10
AIR 1960 SC 725
referred to
Para 8.10
[2017] 3 SCR 374
referred to
Para 8.12
[2017] 10 SCR 29
referred to
Para 8.13
[2019] 8 SCR 187
referred to
Para 8.13
2021 (4) SCALE 227
relied on
Para 8.13
[2003] 2 Suppl. SCR 460
referred to
Para 14.1
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[2010] 13 SCR 311
referred to
Para 14.1
[2011] 4 SCR 1176
referred to
Para 14.1
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
875 of 2021.
From the Judgment and Order dated 28.08.2020 of the High Court
of Punjab and Haryana at Chandigarh in CRR No.28 of 2018.
Gurinder Singh Gill, Sr. Adv., P.P. Nayak, Kuldeep Singh Kuchaliya,
Ms. Aashna Gill, Pratap Singh Gill, Ms. Bhupinder, Ms. Vandana Hooda,
Ajay Pal, Advs. for the Appellant.
R. Basant, Sr. Adv., Ankit Raj, Satya Ranjan Swian, Vedansh
Anand, Dr. Monika Gusain, Atul Kumar, Abhimanyu Sharma,
Ms. Deepali, Pulak Bagchi, Tarun Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned Judgment
and Order passed by the High Court of Punjab and Haryana at Chandigarh
in CRR No.28 of 2018 by which the High Court has dismissed the said
Revision Application preferred by the appellant herein and has confirmed
the order passed by the Learned Sessions Judge dated 05.09.2017 by
which the Additional Sessions Judge dismissed an application under
Section 319 CrPC moved by the appellant herein for summoning the
Respondent Nos. 2 to 5 herein as additional accused in the case FIR
No.477 dated 27.07.2016 for the offences under Sections 302, 307, 341,
148 & 149 IPC registered at Police Station Assandh, the appellant/victim
has preferred the present appeal.
2. An FIR No.477 dated 27.07.2016 was registered at Police Station
Assandh on the basis of the statement of one Rann Singh, regarding the
death of his son Amarjit Singh and the injuries having been suffered by
the present appellant - Manjeet Singh.
That as per the statement of Rann Singh his son Amarjit Singh
and his nephew Manjeet Singh were attacked by Sartaj Singh, Tejpal
Singh and Sukhpal Singh sons of Gurdev Singh, Parab Sharan Singh and
Preet Samrat sons of Mohan Sarup while they were on their way back
home after purchasing the pesticides meant for paddy in their car. They
parked their Mahendera XUV 500 belonging to Sartaj Singh and blocked
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the road. They were armed with weapons and when his son Amarjit
Singh followed by Manjeet Singh stepped out from his car to get the
road cleared, Sartaj Singh fired four shots from his licenced revolver,
which hit the left side of the chest, stomach and elbow of Amarjit Singh.
Sartaj Singh fired indiscriminately from his licenced revolver, which also
hit the nephew Manjeet Singh on the chest near the right shoulder. Amarjit
Singh died on spot and Manjeet Singh was admitted in the hospital, as
per the statement of Rann Singh.
2.1 A cross-case was also registered at the behest of Sartaj Singh,
the accused in the FIR on 28.07.2016 which was recorded against the
complainant side in FIR No.477 dated 27.07.2016. In the cross- case
the allegations were made against Manjeet Singh, Narvair Singh and
other persons namely Palwinder Singh son of Rann Singh, Satkar Singh
son of Rajwant Singh, Rajwant Singh son of Gurcharan Singh and
Sukhdeep Singh son of Satnam Singh where it was alleged that all the
persons inflicted injuries on his person.
2.2 The matter was investigated and after investigation, a final
report was filed only against Sartaj Singh in FIR No.477. All other accused
were exonerated and were kept in column no.2. In cross case, one of
the accused died and a challan was filed against two persons where
four of them namely Palwinder Singh, Rajwant Singh, Sukhdeep Singh
and Satkar Singh were kept in column no.2.
2.3 The case was committed to the Court of Sessions and the trial
begin in both the cases namely arising out of FIR No.477 dated 27.07.2016
and the cross case. That during the trial arising out of FIR No.477,
appellant herein came to be examined as PW1. In the deposition, he
reiterated the allegations made in the FIR including the allegations made
against the private respondents herein namely Sukhpal Singh, Tejpal Singh,
Parab Sharan and Preet Samrat and reiterated what was stated in the
FIR. He came to be cross- examined partly and during the crossexamination, an application under Section 319 CrPC was given on behalf
of the complainant for summoning of Sukhpal Singh, Tejpal Singh, Parab
Sharan and Preet Samrat as additional accused. Further crossexamination of PW1 came to be deferred. That by order dated
05.09.2017, the Learned trial Court dismissed the application under Section
319 CrPC for summoning Sukhpal Singh, Tejpal Singh, Parab Sharan
and Preet Samrat as additional accused to face trial arising out of FIR
No.477 of 2016.
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3. In the cross case arising out of the complaint given by Sukhpal
Singh recorded on 28.07.2016 (accused in FIR No. 477 dated 27.07.2016)
the prosecution examined Sukhpal Singh as PW1, Dr. Mahinder, the
Medical Officer as PW2 and one Bhupinder Singh as PW7. That
thereafter the said Sartaj Singh filed an application before the Learned
trial Court under Section 319 CrPC for summoning Palwinder Singh,
Sartaj Singh, Rajwant Singh and Sukhdeep Singh as additional accused.
On the basis of the evidence recorded the Learned trial Court after
considering the statements of Sartaj Singh and other eye witnesses and
the material on record allowed the application under Section 319 CrPC
vide order dated 21.04.2018 and directed to issue summons against
Palwinder Singh, Satkar Singh, Rajwant Singh and Sukhdeep Singh.
4. Being aggrieved and dissatisfied with the order dated 05.09.2017
passed by the Learned trial Court rejecting the application under Section
319 CrPC in FIR No.477 and refusing to issue summons against Sukhpal
Singh, Tejpal Singh, Parab Sharan and Preet Samrat as additional accused,
the appellant herein - Manjeet Singh - victim preferred a revision
application before the High Court which was numbered as CRR 28 of
2018.
Against the order passed by the Learned trial Court dated
21.04.2018 by which an application under Section 319 CrPC filed by
Sartaj Singh in a cross case summoning Palwinder Singh, Satkar Singh,
Rajwant Singh and Sukhdeep Singh came to be allowed, Satkar Singh
and others filed a revision application before the High Court being CRR
No.3238 of 2018.
5. By the impugned Judgment and Order dated 28.08.2020 the
High Court dismissed CRR No.28 of 2018 filed by Manjeet Singh. It
was filed challenging the order passed by Learned trial Court dated
05.09.2017 rejecting the application under Section 319 CrPC for
summoning Sukhpal Singh, Tejpal Singh, Parab Sharan and Preet Samrat
as additional accused to face the trial arising out of FIR No.477 of 2016.
By the very common judgment and order, the High Court allowed CRR
No. 3238 of 2018 filed by Satkar Singh and others and quashed and set
aside the order passed by the Learned trial Court dated 21.04.2018 arising
out of cross case by which Palwinder Singh, Satkar Singh, Rajwant Singh
and Sukhdeep Singh were summoned to face the trial, the application
which was given by Sartaj Singh under Section 319 CrPC.
MANJEET SINGH v. STATE OF HARYANA & ORS.
[M. R. SHAH, J.]
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6. Sartaj Singh feeling aggrieved and dissatisfied with the judgment
and order passed by the High Court in CRR 3238 of 2018 by which the
High Court set aside the order passed by the trial Court dated 28.07.2016
summoning Palwinder Singh, Satkar Singh, Rajwant Singh and Sukhdeep
Singh under Section 319 CrPC, approached this Court vide Criminal
Appeal No.298-299 of 2021. By detailed judgment and order this very
Bench vide judgment and order dated 15.03.2021 allowed the said appeal
and set aside the order passed by the High Court passed in CRR No.3238
of 2018 and restored the order passed by the Learned trial Court arising
out of a cross case given by Sartaj Singh dated 28.07.2016.
7. That thereafter the present appellant herein Manjeet Singh has
preferred the present appeal challenging the order passed by the High
Court passed in CRR 28 of 2018 by which the High Court has confirmed
the order passed by the Learned trial Court dismissing an application
under Section 319 CrPC to summon private respondents herein as
additional accused and to face the trial arising out of FIR No.477 of
2016 dated 27.07.2016
8. Shri G.S. Gill, Learned Senior Advocate has appeared on behalf
of Manjeet Singh and Shri Ankit Raj, Learned Advocate has appeared
on behalf of the respondent - State and Shri R. Basant, Learned Senior
Advocate has appeared on behalf of private respondents herein.
8.1 Shri Gill, Learned Counsel appearing on behalf of Manjeet
Singh has vehemently submitted that in the facts and circumstances of
the case, both, the Learned trial Court as well as the High Court have
committed a grave error in rejecting the application under Section 319
CrPC to summon the private respondents herein to face the trial arising
out of FIR No. 477 dated 27.07.2016.
8.2 It is submitted that while rejecting the application under Section
319 CrPC, the Learned trial Court as well as the High Court have not
properly appreciated and considered the scope, ambit and powers under
Section 319 CrPC.
8.3 It is submitted that by not allowing the application under Section
319 CrPC and not summoning the private respondents herein as additional
accused, both, the Learned trial Court as well as the High Court have
not exercised the powers vested under Section 319 CrPC.
8.4 Learned Counsel appearing on behalf of the appellant has
submitted that even the reasons assigned by the High Court while
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dismissing the revision application and confirming the order passed by
the High Court refusing to summon the private respondent as additional
accused are not sustainable in law and on facts.
8.5 It is further submitted that while passing the impugned order,
the High Court has not appreciated the fact that all the private respondents
herein who were sought to be arraigned as additional accused were
specifically named in the FIR No.477. It is submitted that even in the
deposition the appellant herein - PW1 has also specifically named the
private respondents herein with their specific role. It is submitted that
therefore the Learned trial Court ought to have exercised the powers
under Section 319 CrPC and ought to have summoned the private
respondents as additional accused.
8.6 It is submitted that as held by this Court in catena of decisions
and more particularly in Hardeep Singh v. State of Punjab (2014) 3
SCC 92, even on the basis of the statement made in the examination- inchief of the witnesses concerned the Court can in exercise of powers
under Section 319 CrPC summon the persons even named in the
examination-in-chief as additional accused and to face the trial. It is
submitted that in the present case not only the names of the private
respondents have been disclosed in the examination-in-chief of the
appellant - victim but they were named in the FIR also with specific
role.
8.7 It is submitted that even the accused can be convicted on the
basis of the evidence of a single witness. It is submitted that in the
present case the appellant is the injured eye witness and as observed
and held by this Court in the recent decision Lakshman Singh vs.
State of Bihar (now Jharkhand) (Criminal Appeal No.606 of 2021)
decided on 23rd July, 2021) unless there are compelling circumstances
and reasons normally and by and large the injured eye-witness should be
believed. It is submitted that even otherwise the appellant is subjected to
cross-examination. It is submitted that therefore merely because there
may be one witness and/or statement of only one person, is no ground
not to summon the additional accused in exercise of powers under Section
319 CrPC.
8.8 It is further submitted that at this stage the High Court was
not justified in appreciating the deposition/evidence of the appellant on
merits. It is submitted that the things which are required to be done
MANJEET SINGH v. STATE OF HARYANA & ORS.
[M. R. SHAH, J.]
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during the trial, have been done by the High Court at this stage of
summoning the additional accused in exercise of powers under Section
319 CrPC. It is submitted that the aforesaid is wholly impermissible at
the stage of considering an application under Section 319 CrPC. It is
vehemently submitted that as held by this Court in the case of Hardeep
Singh (Supra); Sukhpal Singh Khaira v. State of Punjab (2019) 6
SCC 638 and in other subsequent decisions at the stage of considering
the application under Section 319 CrPC the High Court is not justified in
entering into the merits and/or appreciation of the evidence on merits,
which is required to be considered at the stage of trial.
8.9 It is submitted that even the reasoning given by the High Court
dismissing the revision application while confirming the order passed by
the Learned trial Court dismissing the application under Section 319
CrPC are not sustainable in law. It is submitted that while passing the
impugned judgment and order, the High Court is not justified in entering
into the allegations and the evidence on merits which is wholly
impermissible at this stage as held by this Court in the aforesaid decisions
and other decisions.
8.10 It is submitted that the High Court has failed to notice that
the allegations against the original accused as well as the private
respondents herein are for the aforesaid offences under Sections 148 &
149 IPC also. It is submitted that as per the settled law while considering
the charge under Section 149 IPC the individual role and overt act by
each accused is not relevant and/or material and it is sufficient that
accused is a part of the unlawful assembly. (See Masalti v. State of
U.P, AIR 1965 SC 202 & Shambhu Nath Singh And Ors. v. State Of
Bihar, AIR 1960 SC 725). It is submitted that therefore when the High
Court has observed that no injury has been attributed to either of the
respondents except that they were armed with weapons and therefore
they cannot be arrayed as additional accused, is unsustainable and
contrary to the law laid down by this Court in catena of decisions on
Section 149 of IPC.
8.11 It is submitted that even the observations made by the High
Court that it cannot be said that the private respondents had any common
intention or there was meeting of mind that Sartaj Singh would be firing
are unwarranted at this stage. It is submitted that at this stage the Court
is not required to enter into the merits of the allegations and/or the
evidence. It is submitted that therefore while making above observations
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while rejecting the application under Section 319 CrPC the High Court
has not exercised its powers vested under Section 319 CrPC.
8.12 It is submitted that even in the facts and circumstances of
the case the High Court has committed a grave error in relying upon the
decision of this Court in the case of Brijendra Singh vs. State of
Rajasthan, (2017) 7 SCC 706. It is submitted that in the present case if
we go through and consider the final report by which the private
respondents herein were to be in column no. 2 there do not seem to be
any evidence discussed and/or specific allegations considered against
the private respondents herein. It is submitted that the private respondents
herein are put at column no.2. on the basis of the reports of HC Baljinder
Singh, HPS, DSP Assandh and Shri Kushal Pal, HPS, DSP Indri, who as
such are not even the Investigating Officer and even the reports if any,
are part of the charge-sheet nor the aforesaid officers are cited as
witnesses. It is submitted therefore as such no proper investigation has
been carried out against the private respondents herein and without
discussing the specific allegations against the private respondents herein
which have been made in the FIR, the private respondents herein are
kept in column no.2. It is submitted that therefore the decision in the
case of Brijendra Singh (Supra), would not be applicable to the facts
of the case on hand.
8.13 Making above submissions and relying upon the decisions in
the cases of Hardeep Singh (Supra); S. Mohammed Ispahani vs.
Yogendra Chandak (2017) 16 SCC 226; Rajesh vs. State of Haryana,
(2019) 6 SCC 368 and the recent decision of this Court in the case of
Sartaj Singh vs. State of Haryana, 2021 (4) Scale 227, which was
arising out of the cross case in the very case, it is prayed to allow the
present appeal and quash and set aside the order passed by the Learned
trial Court as well as the High Court and consequently allow the
application under Section 319 CrPC to summon the private respondents
herein to face the trial arising out of cross case dated 28.07.2016 for the
offences under Sections 302, 307, 341, 148 & 149 IPC.
9. Shri Ankit Raj, Learned Counsel appearing on behalf of the
State has surprisingly supported the private respondents herein and had
submitted that in the present case, both, the Learned trial Court as well
as the High Court have rightly dismissed the application under Section
319 CrPC and have rightly refused to summon the private respondents
herein as additional accused.
MANJEET SINGH v. STATE OF HARYANA & ORS.
[M. R. SHAH, J.]
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10. Present appeal is vehemently opposed by Shri R. Basant,
Learned Senior Counsel appearing on behalf of the private respondent
herein.
10.1 While opposing the present appeal and supporting the impugned
judgment and order passed by the trial Court as well as the High Court
Shri Basant, Learned Counsel appearing on behalf of private respondents
herein has made following submissions:
(i)
That in the facts and circumstances of the case no error
has been committed by the courts below in rejecting the
application under Section 319 CrPC and refusing to summon
the private respondents herein as additional accused;
(ii)
That cogent reasons have been given by, both, the Learned
trial Court as well as the High Court refusing to summon
the private respondents herein as additional accused;
(iii)
That though a common judgment and order was passed by
the High Court in CRR No.28 of 2018 and CRR 3238 of
2018, when Sartaj Singh the original complainant in cross
case dated 28.07.2016 approached this Court by way of
Criminal Appeal No.298-299 of 2021, at that stage the
appellant herein did not challenge the impugned judgment
and order passed by the High Court passed in CRR No.28
of 2018. It is submitted that only thereafter when number
of witnesses have been examined and the trial is at the fagend, the present appeal has been preferred. Therefore, it is
prayed not to exercise the powers under Article 136;
(iv)
That in the present case even the inquiry was conducted by
four high rank officials and only thereafter the Investigating
Officer put/kept the private respondents herein in column
no.2. It is submitted that during the course of the
investigation and even thereafter in the inquiry four DSPs
which were conducting at the instance of the Rann Singh -
original complainant and when there was no evidence found
the private respondents herein are kept in column no.2;
(v)
It is submitted that in the case of Brijendra Singh (Supra)
it is observed by this Court that when the evidence has
been collected by the IO during the investigation and
thereafter having found no evidence against the accused
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named in the FIR and thereafter they are kept in column
no.2, the same is required to be considered seriously and/or
having greater value than the deposition of the complainant
and some other persons in their examination-in-chief;
(vi)
That when initially after investigation the private respondents
herein were put/kept in column no.2, though they were having
an opportunity on the part of the complainant to submit the
protest application, they failed to do so and thereafter after
recording the deposition of PW1 - appellant herein when
the cross-examination of the said witness was going on,
the complainant filed an application under Section 319 CrPC;
(vii)
That except the bare statements of the appellant who himself
is an accused in the cross case, there is no further material/
evidence on record and therefore, both, the Learned trial
Court as well as the High Court have rightly refused to
summon the private respondents herein as additional
accused.
10.2 Making above submissions and relying upon the decision of
this Court in the case of Brijendra Singh (Supra) it is prayed to dismiss
the present appeal.
11. Heard Learned Counsels for the respective parties at length.
12. What is under challenge in the present appeal is the impugned
judgment and order passed by the High Court dismissing the revision
application preferred by the appellant herein and confirming the order
passed by the Learned trial Court rejecting the application under Section
319 CrPC on behalf of the complainant and refusing to summon the
private respondents herein as additional accused.
12.1 While considering the rival submissions the law on the scope
and ambit of Section 319 CrPC is required to be considered. In the
recent decision in the case of Sartaj Singh (Supra) this very Bench has
considered in detail the law on the scope and ambit of Section 319 CrPC.
In the said decision this court considered the decisions in the cases of
Hardeep Singh (Supra); S. Mohammed Ispahani v. Yogendra
Chandak (Supra) and Rajesh (Supra) in detail. The relevant part of the
aforesaid decisions which came to be considered by this Court are as
under:
MANJEET SINGH v. STATE OF HARYANA & ORS.
[M. R. SHAH, J.]
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"6.1.1 In Hardeep Singh (supra), this Court had an occasion to
consider in detail the scope and ambit of the powers of the
Magistrate under Section 319 CrPC, the object and purpose of
Section 319 CrPC etc. It is observed in the said decision that the
entire effort is not to allow the real perpetrator of an offence to
get away unpunished. It is observed that this is also a part of fair
trial and in order to achieve this very end that the legislature thought
of incorporating the provisions of Section 319 CrPC. It is further
observed that for the empowerment of the courts to ensure that
the criminal administration of justice works properly, the law has
been appropriately codified and modified by the legislature under
the CrPC indicating as to how the Courts should proceed to
ultimately find out the truth so that the innocent does not get
punished but at the same time, the guilty are brought to book under
the law. It is also observed that it is the duty of the court to find
out the real truth and to ensure that the guilty does not go
unpunished. In Paragraphs 8 and 9, this Court observed and held
as under:
"8. The constitutional mandate under Articles 20 and
21 of the Constitution of India provides a protective umbrella
for the smooth administration of justice making adequate
provisions to ensure a fair and efficacious trial so that the
accused does not get prejudiced after the law has been put
into motion to try him for the offence but at the same time also
gives equal protection to victims and to society at large to
ensure that the guilty does not get away from the clutches of
law. For the empowerment of the courts to ensure that the
criminal administration of justice works properly, the law was
appropriately codified and modified by the legislature under
CrPC indicating as to how the courts should proceed in order
to ultimately find out the truth so that an innocent does not get
punished but at the same time, the guilty are brought to book
under the law. It is these ideals as enshrined under the
Constitution and our laws that have led to several decisions,
whereby innovating methods and progressive tools have been
forged to find out the real truth and to ensure that the guilty
does not go unpunished.
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9. The presumption of innocence is the general law of
the land as every man is presumed to be innocent unless proven
to be guilty. Alternatively, certain statutory presumptions in
relation to certain class of offences have been raised against
the accused whereby the presumption of guilt prevails till the
accused discharges his burden upon an onus being cast upon
him under the law to prove himself to be innocent. These
competing theories have been kept in mind by the legislature.
The entire effort, therefore, is not to allow the real perpetrator
of an offence to get away unpunished. This is also a part of fair
trial and in our opinion, in order to achieve this very end that
the legislature thought of incorporating provisions of Section
319 CrPC. It is with the said object in mind that a constructive
and purposive interpretation should be adopted that advances
the cause of justice and does not dilute the intention of the
statute conferring powers on the court to carry out the
abovementioned avowed object and purpose to try the person
to the satisfaction of the court as an accomplice in the
commission of the offence that is the subject-matter of trial."
6.1.2 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 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?
(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?
MANJEET SINGH v. STATE OF HARYANA & ORS.
[M. R. SHAH, J.]
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(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?"
6.1.3 While considering the aforesaid questions, this Court in
Hardeep Singh (supra) 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 court and
the material on the basis whereof such powers can be exercised.
xxx xxx xxx
17. Section 319 CrPC allows the court to proceed against
any person who is not an accused in a case before it.