# RAJESH & ORS v. STATE OF HARYANA

- **Citation:** [2019] 8 S.C.R. 187
- **Court:** Supreme Court of India
- **Decided:** 2019-05-01
- **Case number:** Criminal Appeal No. 813 of 2019
- **Bench:** L. Nageswara Rao, M.R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajesh-ors-v-state-of-haryana-34061
- **Pages:** 25

## Headnote

Code of Criminal Procedure, 1973: s.319 - Scope and ambit
of power of Magistrate under s.319 - Prosecution case was that on
the fateful day, the accused persons, ten in number, arrived at the
place where the complainant (PW-1), his son (PW-2) and victimdeceased were present - Accused persons were armed with swords,
pistols, hockeys, iron bars and gandasi etc. and they attacked PW2 and the victim-deceased and inflicted injuries with their respective
weapons - When PW-1 raised alarm, accused persons fled away
from place of occurrence - The injured were rushed to hospital
where the deceased succumbed to injuries - Investigating officer
submitted report against four accused only - According to him, the
appellants were not present at the place of occurrence - Thereafter
Investigating Agency conducted further investigation wherein also
it found that the appellants were not present at the place of
occurrence rather they were found on different places - Magistrate
directed release of the appellants - Trial proceeded against other
accused - Application filed by PW-1 under s.319 to summon the
appellants categorically stating that the appellants were present at
the time of the incident - Trial court summoned the appellant to
face trial for the offences under ss.148, 149, 323, 325, 302, 307
and 506 of IPC - Revision petition challenging the order of trial
court dismissed by High Court - On appeal, held: PW-1-first
informant had specifically named ten persons as accused, including
the appellants in the FIR - However, they were not shown as accused
in the challan/charge-sheet - There was nothing on record to show
that PW-1 was given an opportunity to submit the protest application
against non-filing of the charge-sheet against the appellants - In
the deposition before the Court, P.W.1 and P.W.2 specifically stated
against the appellants and the specific role was attributed to them -
Thus, the statements of P.W.1 and P.W.2 before the Court could be
[2019] 8 S.C.R. 187
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said to be "evidence" during the trial and, therefore, on the basis
of the same the persons against whom no charge-sheet was filed
could be summoned to face the trial - Therefore, no error was
committed by the Courts below to summon the appellants to face the
trial in exercise of power under s.319.
Code of Criminal Procedure, 1973: s.319 - Investigating
Agency conducted investigation wherein it found that the appellants
were not present at the place of occurrence - As the appellants
were in custody, SHO filed applications before the Magistrate on
1.9.2016 and 28.10.2016 submitting that after investigation since
no evidence was found against the appellants, therefore, they may
be discharged/released - Magistrate directed release of the
appellants - Application filed by complainant under s.319 to
summon the appellants categorically stating that the appellants were
present at the time of the incident - Trial court summoned the
appellants to face trial - Submission that once the appellants were
discharged by the Magistrate on an application submitted by the
Investigating Officer/SHO, therefore, thereafter it was not open to
the Magistrate to summon the accused to face the trial in exercise
of power under s.319 - Held: The submission is not tenable - Orders
dated 01.09.2016 and 28.10.2016 cannot be said to be the orders
discharging the accused - If the applications submitted by the
Investigating Officer/SHO and the orders passed thereon are
considered, those were the applications to discharge/release the
appellants from custody as at that stage the appellants were in
judicial custody - Therefore, as such, those orders cannot be said
to be the orders of discharge in stricto sensu - Those were the orders
discharging the appellants from custody - Under the circumstances,
the submission on behalf of the accused that as they were discharged
by the Magistrate and therefore it was not open to the Magistrate to
exercise the

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 RAJESH & ORS.
v.
 STATE OF HARYANA
(Criminal Appeal No. 813 of 2019)
MAY 01, 2019
 [L. NAGESWARA RAO AND M.R. SHAH, JJ.]
Code of Criminal Procedure, 1973: s.319 - Scope and ambit
of power of Magistrate under s.319 - Prosecution case was that on
the fateful day, the accused persons, ten in number, arrived at the
place where the complainant (PW-1), his son (PW-2) and victimdeceased were present - Accused persons were armed with swords,
pistols, hockeys, iron bars and gandasi etc. and they attacked PW2 and the victim-deceased and inflicted injuries with their respective
weapons - When PW-1 raised alarm, accused persons fled away
from place of occurrence - The injured were rushed to hospital
where the deceased succumbed to injuries - Investigating officer
submitted report against four accused only - According to him, the
appellants were not present at the place of occurrence - Thereafter
Investigating Agency conducted further investigation wherein also
it found that the appellants were not present at the place of
occurrence rather they were found on different places - Magistrate
directed release of the appellants - Trial proceeded against other
accused - Application filed by PW-1 under s.319 to summon the
appellants categorically stating that the appellants were present at
the time of the incident - Trial court summoned the appellant to
face trial for the offences under ss.148, 149, 323, 325, 302, 307
and 506 of IPC - Revision petition challenging the order of trial
court dismissed by High Court - On appeal, held: PW-1-first
informant had specifically named ten persons as accused, including
the appellants in the FIR - However, they were not shown as accused
in the challan/charge-sheet - There was nothing on record to show
that PW-1 was given an opportunity to submit the protest application
against non-filing of the charge-sheet against the appellants - In
the deposition before the Court, P.W.1 and P.W.2 specifically stated
against the appellants and the specific role was attributed to them -
Thus, the statements of P.W.1 and P.W.2 before the Court could be
[2019] 8 S.C.R. 187
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said to be "evidence" during the trial and, therefore, on the basis
of the same the persons against whom no charge-sheet was filed
could be summoned to face the trial - Therefore, no error was
committed by the Courts below to summon the appellants to face the
trial in exercise of power under s.319.
Code of Criminal Procedure, 1973: s.319 - Investigating
Agency conducted investigation wherein it found that the appellants
were not present at the place of occurrence - As the appellants
were in custody, SHO filed applications before the Magistrate on
1.9.2016 and 28.10.2016 submitting that after investigation since
no evidence was found against the appellants, therefore, they may
be discharged/released - Magistrate directed release of the
appellants - Application filed by complainant under s.319 to
summon the appellants categorically stating that the appellants were
present at the time of the incident - Trial court summoned the
appellants to face trial - Submission that once the appellants were
discharged by the Magistrate on an application submitted by the
Investigating Officer/SHO, therefore, thereafter it was not open to
the Magistrate to summon the accused to face the trial in exercise
of power under s.319 - Held: The submission is not tenable - Orders
dated 01.09.2016 and 28.10.2016 cannot be said to be the orders
discharging the accused - If the applications submitted by the
Investigating Officer/SHO and the orders passed thereon are
considered, those were the applications to discharge/release the
appellants from custody as at that stage the appellants were in
judicial custody - Therefore, as such, those orders cannot be said
to be the orders of discharge in stricto sensu - Those were the orders
discharging the appellants from custody - Under the circumstances,
the submission on behalf of the accused that as they were discharged
by the Magistrate and therefore it was not open to the Magistrate to
exercise the power under s.319 of the CrPC and to summon the
appellants to face the trial, cannot be accepted.
Code of Criminal Procedure, 1973: Closure report -
Procedure to be followed before accepting closure report - Held:
Before accepting the closure report, the Magistrate is bound to issue
notice to the complainant/original informant and the complainant/
original informant is required to be given an opportunity to submit
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the protest application and, thereafter, after giving an opportunity
to the complainant/original informant, the Magistrate may either
accept the closure report or may not accept the closure report and
direct to proceed further against those persons for whom the closure
report was submitted.
Dismissing the appeal, the Court
HELD: 1. During the trial, the depositions of P.W.1 and
P.W.2 were recorded. In the deposition, they specifically stated
the overacts by the appellants and the role played by them and
categorically stated that at the time of the incident/commission
of the offence, the appellants were also present and they
participated in the commission of the offence. That, thereafter,
on the application submitted by the original complainant submitted
under Section 319 of the CrPC, the Magistrate found a prima
facie case against the appellants and summoned the appellants
to face the trial along with other co-accused. The said order was
confirmed by the High Court. [Para 6.1] [197-D-F]
2. Before accepting the closure report, the Magistrate is
bound to issue notice to the complainant and give an opportunity
to submit the protest application. Even in a case where the stage
of giving opportunity to the complainant to file a protest petition
urging upon the trial Court to summon other persons as well
who were named in the FIR but not implicated in the chargesheet has gone, in that case also, the Court is still not powerless
by virtue of Section 319 of the CrPC and even those persons
named in the FIR but not implicated in the charge-sheet can be
summoned to face the trial provided during the trial some
evidence surfaces against the proposed accused. Nothing is on
record whether at any point of time the complainant was given an
opportunity to submit the protest application against non-filing
of the charge-sheet against the appellants. In the deposition
before the Court, P.W.1 and P.W.2 specifically stated against the
appellants and the specific role is attributed to the accusedappellants. Thus, the statement of P.W.1 and P.W.2 before the
Court can be said to be "evidence" during the trial and, therefore,
on the basis of the same the persons against whom no charge-
 RAJESH & ORS. v. STATE OF HARYANA
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sheet is filed can be summoned to face the trial. Therefore, no
error was committed by the Courts below to summon the
appellants to face the trial in exercise of power under Section
319 of the CrPC. The orders dated 01.09.2016 and 28.10.2016
cannot be said to be the orders discharging the accused. If the
applications submitted by the Investigating Officer/SHO and the
orders passed thereon are considered, those were the applications
to discharge/release the appellants from custody as
at that stage the appellants were in judicial custody.
[Paras 6.1, 7.10, 8, 9] [197-B; 209-E-F; 210-A-C, E-F]
Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :
[2014] 2 SCR 1 - followed.
S. Mohammed Ispahani v. Yogendra Chandak (2017)
16 SCC 226; Bhagwant Singh v. Commissioner of Police
(1985) 2 SCC 537 : [2017] 3 SCR 374 - relied on.
Bijendra Singh v. State of Rajasthan (2017) 7 SCC 706
- referred to.
Case Law Reference
[2014] 2 SCR 1
 followed
Para 4.1
(2017) 7 SCC 706
 referred to
Para 4.5
[2017] 3 SCR 374
 relied on
Para 5.1
(2017) 16 SCC 226
 relied on
Para 7.9
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 813 of 2019
From the Judgment and Order dated 19.12.2018 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Revision No. 521 of
2018
R. Basant, Sr. Adv., Mrs. Rani Chhabra, Mrs. Neelam Kalsi, Advs.
for the Appellants.
Amit Kumar, AAG, Vishwa Pal Singh, Adv. for the Respondent.
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The Judgment of the Court was delivered by
M. R. SHAH, J. 1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 19.12.2018 passed by the High Court of Punjab &
Haryana at Chandigarh in Criminal Revision - CRR No. 521 of 2018 by
which the High Court has dismissed the said revision petition preferred
by the appellants herein and has confirmed the order dated 28.10.2017
passed by the learned Trial Court, by which the appellants herein were
summoned to face the trial for the offences under Sections 148, 149,
323, 324, 325, 302, 307 and 506 of the IPC, the appellants herein have
preferred the present appeal.
3. The facts leading to the present appeal in nutshell are as under:
That one Hukum Singh lodged one FIR No. 180 on 12.06.2016 at
Police Station Sadar, Panipat against ten accused, including the appellants
herein for the offences under Sections 148, 149, 323, 324, 325, 302, 307
and 506 of the IPC. It was alleged that on 12.06.2016 at about 1.30 pm,
he along with his son Bhajji and Hari son of Parkash were going from
Panipat to his village Chhajpur Khurd on his tractor. His son had parked
his motorcycle in front of the shop of Nande at bus stand. Therefore,
his son Bhajji and Hari son of Parkash alighted from the tractor to pick
up the motorcycle. When his son picked up the motorcycle, in the
meantime, Sunil son of Jagpal came on Splendor motorcycle. Ravit son
of Ramesh and Vicky son of Jaswant were sitting on pillion behind him
on motorcycle. Sheela son of Paras was on his motorcycle Pulsar and
Sumit son of Jagdish, Rinku son of Rai Singh were sitting behind him on
his motorcycle. Sunder son of Om Singh was on motorcycle Bullet and
Rajesh son of Prem and Sanjay son of Bishni were sitting behind him on
the said motorcycle. Ankush son of Rajinder was on his motorcycle
make Splendor and Jagdish son of Devi Singh and Tejpal son of Nar
Singh were sitting behind him. Joni son of Sahab Singh was on his
motorcycle Bullet and Sachinson 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
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with iron bar, Sunder son of Om Singh was armed with wooden baton,
Rajesh son of Prem was armed with sword, Jagdish son of Devi Singh
was armed with lathi, Tejpal son of Nar Singh was armed with iron bar,
Joni son of Sahab Singh was armed with wooden handle of spade, Sachin
son of Ruhla Ram was armed with sword and Joginder son of Sahi Ram
was having gandasi with him. Rajesh son of Prem exhorted to kill both
of them because they were pressing hard for their ejectment from
panchayat land. Pursuant to exhortation, accused inflicted injuries to his
son and Hari son of Parkash with their respective weapons. When he
raised alarm, accused sped away on their motorcycles threatening to kill
them in case any action is taken against them. In the meantime, his
brother Mahender came there and they removed both the injured to
Prem Hospital where Hari son of Parkash succumbed to his injuries on
14.06.2016 during treatment.
3.1 That all the accused named in the FIR were arrested. The
Investigating Officer conducted the investigation and found ten persons
involved in the said incident. However, the Investigating Officer found
that the appellants herein (six in numbers) were not present at the site of
incident. That the Investigating Officer submitted his report under
Section 173(2) of the CrPC against four accused only. That, thereafter
the Investigating Agency conducted further investigation by Jagdeep
Singh HPS, DSP, Panipat. It appears that a report under Section 173(8)
of the CrPC was also submitted. According to the Investigating Officer,
on the date of the commission of the offence the appellants herein were
not present at the place of occurrence, rather they were found on different
places which have been found by the Investigating Agency also. It
appears that thereafter, as the appellants herein were in custody, the
SHO, Police Station Sadar filed the applications before the Judicial
Magistrate, First Class, Panipat on 01.09.2016 and 28.10.2016 submitting
that after investigation no challan is filed against the appellants herein
and no evidence is found against them and, therefore, they may be
discharged/released. That the learned Magistrate directed to release
the appellants. That, thereafter the trial proceeded further against the
remaining accused against whom the challan/charge-sheet 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
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herein were also present at the time of incident. Both of them were
cross-examined 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 co-accused
for the offences under Sections 148, 149, 323, 324, 325, 302, 307 and
506 of the IPC
3.2 The order passed by the learned Magistrate has been confirmed
in revision by the High Court by the impugned judgment and order. Hence
the present appeal by the appellants herein who are issued the summons
to face the trial in exercise of powers under Section 319 of the CrPC.
4. Shri R. Basant, learned Senior Advocate has appeared on behalf
of the appellants herein.
4.1 Shri Basant, learned Senior Advocate appearing on behalf of
the appellants has vehemently submitted that, in the facts and
circumstances of the case, the learned Magistrate has erred in summoning
the appellants herein to face the trial in exercise of powers under Section
319 of the CrPC.
4.2 It is vehemently submitted by Shri Basant, learned Senior
Advocate appearing on behalf of the appellants that both, the High Court
as well as the learned Trial Court have not properly appreciated the
scope and ambit of the powers to be exercised under Section 319 of the
CrPC. Relying upon the decision of this Court in the case of Hardeep
Singh v. State of Punjab (2014) 3 SCC 92, it is submitted by the learned
Senior Advocate appearing on behalf of the appellants that, as observed
and held by this Court, the power under Section 319 of the CrPC is a
 RAJESH & ORS. v. STATE OF HARYANA
[M.R. SHAH, J.]
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discretionary and an extraordinary power and it is to be exercised
sparingly and only in those cases where the circumstances of the case
so warrant.
4.3 It is submitted by the learned Senior Advocate appearing on
behalf of the appellants that the learned Magistrate has mechanically
passed the order despite the fact that there was no strong and cogent
evidence on record even at the time of the trial.
4.4 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellants that, in the present case, as such, the
investigating agency thoroughly investigated the case when all the
appellants were in judicial custody and after taking into account all the
facts and evidence, came to the conclusion that all the appellants were
innocent as they were not present at the place of incident and thereafter
submitted the report under Section 173(2) of the CrPC and filed the
challan only against four accused persons and did not file the challan
against the appellants herein. It is submitted that not only that, even
thereafter also, further investigation was carried out by the DCP who
submitted the report under Section 173(8) of the CrPC and in that report
also all the appellants were found innocent. It is submitted that, therefore,
the SHO, Police Station Sadar submitted the applications praying for
discharge of the appellants specifically stating that the appellants are
innocent and the learned Magistrate allowed the said discharge
applications, though opposed by the complainant. It is submitted that,
therefore, once the learned Magistrate discharged the appellants on the
applications submitted by the SHO, Police Station,Sadar, thereafter solely
on the basis of depositions of P.W.1 and P.W.2 which was nothing but
reiteration of what they stated in their statements before the police, the
learned Magistrate was not justified in summoning the appellants herein
to face the trial in exercise of powers under Section 319 of the CrPC.
4.5 Relying upon the decision of this Court in the case of Bijendra
Singh v. State of Rajasthan (2017) 7 SCC 706, it is vehemently submitted
by Shri Basant, learned Senior Advocate appearing on behalf of the
appellants that, as observed by this Court, merely on the basis of the
deposition of the complainant and some other persons, with no other
material to support their so-called verbal/ocular version, no person can
be arrayed as an accused in exercise of powers under Section 319 of
the CrPC. It is submitted by the learned Senior Advocate appearing on
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behalf of the appellants that, as observed by this Court in the aforesaid
decision, such an "evidence" recorded during the trial is nothing more
than the statements which was already there under Section 161 of the
CrPC recorded at the time of investigation of the case. Relying upon
the aforesaid decision, it is vehemently submitted by the learned Senior
Advocate appearing on behalf of the appellants that, in any case, the
learned Magistrate was bound to look into the evidence collected by the
investigating officer during investigation which suggested that the accused
were not present at the time of commission of the offence. It is submitted
that, in the present case, the learned Magistrate on the applications
submitted by the SHO in fact discharged the accused-appellants herein
and allowed the applications submitted by the SHO in which it was
categorically stated that the appellants are innocent and that they were
not present at the time of the incident. It is submitted that therefore the
High Court has erred in dismissing the revision petition and confirming
the order passed by the learned Magistrate in summoning the accusedappellants herein to face the trial for the offences under Sections 148,
149, 323, 324, 325, 302, 307 and 506 of the IPC, which was passed in
exercise of powers under Section 319 of the CrPC.
5. Learned counsel appearing on behalf of the respondent-State
of Haryana has supported the order passed by the learned Magistrate
as well as the impugned judgment and order passed by the High Court.
He has also relied upon some of the observations made by this Court in
the case of Hardeep Singh (supra) and even some of the observations
made by this Court in the case of Bijendra Singh (supra).
5.1 It is vehemently submitted by the learned counsel appearing
on behalf of the State that it is not correct to state that the appellants
herein were discharged by the learned Magistrate on the applications
filed by the SHO, It is submitted that the SHO submitted the applications
to discharge the appellants from the custody and to release them as they
were in jail and those applications came to be allowed. It is submitted
that therefore the orders dated 01.09.2016 and 28.10.2016 cannot be
said to be the orders of discharge in strictosensu, as sought to be
contended on behalf of the appellants.
5.2 It is submitted that, in the present case, even at the initial
stage when the investigating officer submitted the report under Section
173(2) of the CrPC and the challan was filed only against four accused
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[M.R. SHAH, J.]
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persons, out of ten accused persons named in the FIR and the remaining
six accused (appellants herein) were dropped, nothing is on record that
the learned Magistrate accepted the report/closure report against the
appellants and, that too, by following the procedure as required as per
the decision of this Court in the case of Bhagwant Singh v.
Commissioner of Police (1985) 2 SCC 537. It is submitted that, as per
settled law, before even accepting the closure report, an opportunity is
required to be given to the informant to submit the objections/protest and
only thereafter the closure report can be accepted. It is submitted that,
in the present case, no such procedure was followed. It is submitted
that thereafter when in the examination-in-chief/cross-examination, P.W.1
and P.W.2, who are the informant and the injured eye witness respectively,
categorically deposed that the appellants were also present at the time
of the incident and they actively participated in commission of offence
and, therefore, in the facts and circumstances of the case, the learned
Magistrate was justified in issuing the summons against the appellants to
face the trial along with the other co-accused. It is submitted that,
therefore, the order passed by the learned Trial Court is rightly confirmed
by the High Court by the impugned judgment and order.
5.3 Making the above submissions, it is prayed to dismiss the
present appeal.
6. Heard learned counsel appearing on behalf of the respective
parties at length. We have also perused and considered the orders
passed by the High Court as well as the learned Trial Court in depth.
6.1 At the outset, it is required to be noted that, in the present
case, what is under challenge is the impugned order passed by the High
Court dismissing the revision application and confirming the order passed
by the learned Trial Court summoning the accused in exercise of powers
under Section 319 of the CrPC and to face the trial for the offences
under Sections 148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. It
is required to be noted that, in the present case, the original complainantfirst informant specifically named ten persons as accused, including the
appellants herein. However, thereafter after the investigation, the
investigating officer filed the charge-sheet/challan against four accused
persons only and no challan/charge-sheet was filed against the appellants
herein. Nothing is on record whether at that time any specific closure
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report was submitted by the investigating officer or not. Nothing is on
record whether at that stage an opportunity was given to the complainant/
original informant to submit any protest application or not. Assuming
that non-filing of the charge-sheet/challan against the remaining accused
named in the FIR can be said to be a closure report, in that case also, as
per the settled proposition of law and more particularly, the decision of
this Court in the case of Bhagwant Singh (supra), before accepting the
closure report, the Magistrate is bound to issue notice to the complainant/
original informant and the complainant/original informant is required to
be given an opportunity to submit the protest application and, thereafter,
after giving an opportunity to the complainant/original informant, the
Magistrate may either accept the closure report or may not accept the
closure report and direct to proceed further against those persons for
whom the closure report was submitted. In the present case, nothing is
on record that such a procedure was followed by the learned Magistrate.
That, thereafter the trial proceeded against the four accused persons
against whom the charge-sheet/challan was filed. During the trial, the
depositions of P.W.1 and P.W.2 were recorded. Both of them were
even cross-examined. In the deposition, P.W.1 and P.W.2 specifically
stated the overacts by the appellants herein and the role played by them
and categorically stated that at the time of the incident/commission of
the offence, the appellants herein were also present and they participated
in the commission of the offence. That, thereafter, on the application
submitted by the original complainant submitted under Section 319 of
the CrPC, the learned Magistrate found a prima facie case against the
appellants herein and summoned the appellants herein to face the trial
along with other co-accused. The said order has been confirmed by the
High Court. Therefore, the short question posed for the consideration
of this Court is whether, in the facts and circumstances of the case, the
Trial Court was justified in summoning the appellants herein to face the
trial in exercise of powers under Section 319 of the CrPC?
7. While considering the aforesaid question/issue, few decisions
of this Court are required to be referred to and considered.
7.1 The first decision which is required to be considered is a
decision of the Constitution Bench of this Court in the case of Hardeep
Singh (supra) which has been consistently followed by this Court in
subsequent decisions.
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[M.R. SHAH, J.]
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7.2 In the case of Hardeep Singh (supra), this Court had the
occasion to consider in detail the scope and ambit of the powers of the
Magistrate under Section 319 of the CrPC; the object and purpose of
Section 319 of the CrPC etc. In the said case, the following five questions
fell for consideration before this Court:
 "(i) What is the stage at which power under Section 319
CrPC can be exercised?
 (ii) Whether the word "evidence" used in Section 319(1)
CrPC could only mean evidence tested by 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?
 (v) Does the power under Section 319 CrPC extend to
persons not named in the FIR or named in the FIR but not charged
or who have been discharged?"
7.3 While considering the aforesaid questions, this Court observed
and held as under:
 "12. Section 319 CrPC springs out of the doctrine judex
damnatur cum nocensabsolvitur (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
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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.
 17. Section 319 CrPC allows the court to proceed against
any person who is not an accused in a case before it. Thus, the
person against whom summons are issued in exercise of such
powers, has to necessarily not be an accused already facing trial.
He can either be a person named in Column 2 of the chargesheet filed under Section 173 CrPC or a person whose name has
been disclosed in any material before the court that is to be
considered for the purpose of trying the offence, but not
investigated. He has to be a person whose complicity may be
indicated and connected with the commission of the offence.
 18. The legislature cannot be presumed to have imagined all
the circumstances and, therefore, it is the duty of the court to give
full effect to the words used by the legislature so as to encompass
any situation which the court may have to tackle while proceeding
to try an offence and not allow a person who deserves to be tried
to go scot-free by being not arraigned in the trial in spite of the
possibility of his complicity which can be gathered from the
documents presented by the prosecution.
 19. The court is the sole repository of justice and a duty is
cast upon it to uphold the rule of law and, therefore, it will be
inappropriate to deny the existence of such powers with the courts
in our criminal justice system where it is not uncommon that the
real accused, at times, get away by manipulating the investigating
and/or the prosecuting agency. The desire to avoid trial is so strong
that an accused makes efforts at times to get himself absolved
even at the stage of investigation or inquiry even though he may
be connected with the commission of the offence.
 22. In our opinion, Section 319 CrPC is an enabling provision
empowering the court to take appropriate steps for proceeding
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against any person not being an accused for also having committed
the offence under trial......
 47. Since after the filing of the charge-sheet, 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 pre-trial 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 pre-trial stage, the Magistrate is required
to perform acts in the nature of administrative work rather than
judicial such as ensuring compliance with Sections 207 and 208
CrPC, and committing the matter if it is exclusively triable by the
Sessions Court. Therefore, it would be legitimate for us to conclude
that the Magistrate at the stage of Sections 207 to 209 CrPC is
forbidden, by express provision of Section 319 CrPC, to apply his
mind to the merits of the case and determine as to whether any
accused needs to be added or subtracted to face trial before the
Court of Session.
 53. It is thus aptly clear that until and unless the case reaches
the stage of inquiry or trial by the court, the power under Section
319 CrPC cannot be exercised. ............
 54. In our opinion, the stage of inquiry does not contemplate
any evidence in its strict legal sense, nor could the legislature
have contemplated this inasmuch as the stage for evidence has
not yet arrived. The only material that the court has before it is
the material collected by the prosecution and the court at this
stage prima facie can apply its mind to find out as to whether a
person, who can be an accused, has been erroneously omitted
from being arraigned or has been deliberately excluded by the
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
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usher faith in the judicial system whereby the court should be
empowered to exercise such powers even at the stage of inquiry
and it is for this reason that the legislature has consciously used
separate terms, namely, inquiry or trial in Section 319 CrPC.
 55. Accordingly, we hold that the court can exercise the
power under Section 319 CrPC only after the trial proceeds and
commences with the recording of the evidence and also in
exceptional circumstances as explained hereinabove.
 56. ........ What is essential for the purpose of the section
is that there should appear some evidence against a person not
proceeded against and the stage of the proceedings is irrelevant.
Where the complainant is circumspect in proceeding against
several persons, but the court is of the opinion that there appears
to be some evidence pointing to the complicity of some other
persons as well, Section 319 CrPC acts as an empowering provision
enabling the court/Magistrate to initiate proceedings against such
other persons. The purpose of Section 319 CrPC is to do complete
justice and to ensure that persons who ought to have been tried as
well are also tried. Therefore, there does not appear to be any
difficulty in invoking powers of Section 319 CrPC at the stage of
trial in a complaint case when the evidence of the complainant as
well as his witnesses are being recorded."
7.4 While answering question No. (iii), namely whether the word
"evidence" used in Section 319(1) of the CrPC has been used in
a comprehensive sense and includes the evidence collected during
investigation or the word "evidence" is limited to the evidence
recorded during trial, this Court, in the aforesaid decision has
observed and held as under:
 "58. To answer the questions and to resolve the impediment
that is being faced by the trial courts in exercising of powers
under Section 319 CrPC, the issue has to be investigated by
examining the circumstances which give rise to a situation for the
court to invoke such powers. The circumstances that lead to such
inference being drawn up by the court for summoning a person
arise out of the availability of the facts and material that come up
before the court and are made the basis for summoning such a
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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
CrPCindicate that the material has to be "where ... it appears
from the evidence" before the court.
59. Before we answer this issue, let us examine the meaning of
the word "evidence". According to Section 3 of the Evidence
Act, "evidence" means and includes:
"(1) all statements which the court permits or requires to be
made before it by witnesses, in relation to matters of fact under
inquiry;
such statements are called oral evidence;
(2) all documents including electronic records produced for
the inspection of the court;
 such documents are called documentary evidence."
 78. It is, therefore, clear that the word "evidence" in Section
319 CrPC means only such evidence as is made before the court,
in relation to statements, and as produced before the court, in
relation to documents. It is only such evidence that can be taken
into account by the Magistrate or the court to decide whether the
power under Section 319 CrPC is to be exercised and not on the
basis of material collected during the investigation.
 82. This pre-trial stage is a stage where no adjudication on
the evidence of the offences involved takes place and therefore,
after the material along with the charge-sheet 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 charge-sheet. In such situation, the court only has
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the preparatory material that has been placed before the court for
its consideration in order to proceed with the trial by framing of
charges.
 83. It is, therefore, not any material that can be utilised, rather
it is that material after cognizance is taken by a court, that is
available to it while making an inquiry into or trying an offence,
that the court can utilise or take into consideration for supporting
reasons to summon any person on the basis of evidence adduced
before the court, who may be on the basis of such material, treated
to be an accomplice in the commission of the offence. The
inference that can be drawn is that material which is not exactly
evidence recorded before the court, but is a material collected by
the court, can be utilised to corroborate evidence already recorded
for the purpose of summoning any other person, other than the
accused. ........
 84. The word "evidence" therefore has to be understood in
its wider sense both at the stage of trial and, as discussed earlier,
even at the stage of inquiry, as used under Section 319 CrPC.
The court, therefore, should be understood to have the power to
proceed against any person after summoning him on the basis of
any such material as brought forth before it. The duty and obligation
of the court becomes more onerous to invoke such powers
cautiously on such material after evidence has been led during
trial.
 85. In view of the discussion made and the conclusion drawn
hereinabove, the answer to the aforesaid question posed is that
apart from evidence recorded during trial, any material that has
been received by the court after cognizance is taken and before
the trial commences, can be utilised only for corroboration and to
support the evidence recorded by the court to invoke the power
under Section 319 CrPC. The "evidence" is thus, limited to the
evidence recorded during trial."
7.5 While answering question No. (ii), namely whether the word
"evidence" used in Section 319(1) of the CrPC means as arising in
examination-in-chief or also together with cross-examination, in the
aforesaid decision, this Court has observed and held as under:
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 "86.