# SARTAJ SINGH v. STATE OF HARYANA & ANR. ETC

- **Citation:** [2021] 3 S.C.R. 87
- **Court:** Supreme Court of India
- **Decided:** 2021-03-15
- **Case number:** Criminal Appeal Nos. 298-299 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sartaj-singh-v-state-of-haryana-anr-etc-35032
- **Pages:** 27

## Headnote

Code of Criminal Procedure, 1973 - s.319 - Summoning of
additional accused - Appellant-original informant was attacked
by private respondents and other accused persons - On basis of
the statement of the appellant, FIR was lodged for offences u/ss.148,
149, 341, 323, 324, 307 and 506 IPC - Thereafter, charge-sheet
was filed by the Investigating Officer against the other accused,
but not against the private respondents - During the trial the
appellant was examined as P.W-1, he named the private respondents
in his evidence specifically and stood the test of cross-examination
- Appellant filed an application u/s. 319 Cr.P.C. for summoning of
the additional accused-private respondents - The trial Court allowed
the application u/s.319 Cr.P.C. - In the revision petitions, the High
Court quashed and set aside the order passed by the trial Court
summoning the additional accused-private respondents - On appeal,
held: The accused can be summoned on the basis of even
examination-in-chief of the witness and the Court need not wait till
his cross-examination - If on basis of the examination-in-chief of
the witness the Court is satisfied that there is a prima facie case
against the proposed accused, the Court may in exercise of powers
u/s.319 Cr.P.C. array such a person as accused and summon him to
face the trial - In the instant case, the appellant right from the
beginning disclosed the names of private respondents and
specifically named them in FIR - The reasons assigned by the High
Court were unsustainable in law and on facts - What is required to
be considered at this stage was whether there is any prima facie
case and not whether on the basis of such material the proposed
accused is likely to be convicted or not and/or whatever is stated
by the injured eye witness in his examination-in-chief is exaggeration
or not - Therefore, the trial Court was justified in directing to issue
summons against the private respondents to face trial.
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Allowing the appeals, the Court
HELD: 1. In Hardeep Singh, 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. [Para 6.1.1][97-D-F]
2. Considering the law laid down by this Court in
Hardeep Singh, it emerges that (i) the Court can exercise the
power under Section 319 CrPC even on the basis of the
statement made in the examination-in-chief of the witness
concerned and the Court need not wait till the cross-examination
of such a witness and the Court need not wait for the evidence
against the accused proposed to be summoned to be tested
by crossexamination; and (ii) a person not named in the FIR or a
person though named in the FIR but has not been charge-sheeted
or a person who has been discharged can be summoned under
Section 319 CrPC, provided from the evidence (may be on the
basis of the evidence collected in the form of statement made
in the examination-in-chief of the witness concerned), it appears
that such person can be tried along with

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 [2021] 3 S.C.R. 87
87
SARTAJ SINGH
v.
STATE OF HARYANA & ANR. ETC.
(Criminal Appeal Nos. 298-299 of 2021)
MARCH 15, 2021
[DR. DHANANJAYA Y CHANDRACHUD
AND M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973 - s.319 - Summoning of
additional accused - Appellant-original informant was attacked
by private respondents and other accused persons - On basis of
the statement of the appellant, FIR was lodged for offences u/ss.148,
149, 341, 323, 324, 307 and 506 IPC - Thereafter, charge-sheet
was filed by the Investigating Officer against the other accused,
but not against the private respondents - During the trial the
appellant was examined as P.W-1, he named the private respondents
in his evidence specifically and stood the test of cross-examination
- Appellant filed an application u/s. 319 Cr.P.C. for summoning of
the additional accused-private respondents - The trial Court allowed
the application u/s.319 Cr.P.C. - In the revision petitions, the High
Court quashed and set aside the order passed by the trial Court
summoning the additional accused-private respondents - On appeal,
held: The accused can be summoned on the basis of even
examination-in-chief of the witness and the Court need not wait till
his cross-examination - If on basis of the examination-in-chief of
the witness the Court is satisfied that there is a prima facie case
against the proposed accused, the Court may in exercise of powers
u/s.319 Cr.P.C. array such a person as accused and summon him to
face the trial - In the instant case, the appellant right from the
beginning disclosed the names of private respondents and
specifically named them in FIR - The reasons assigned by the High
Court were unsustainable in law and on facts - What is required to
be considered at this stage was whether there is any prima facie
case and not whether on the basis of such material the proposed
accused is likely to be convicted or not and/or whatever is stated
by the injured eye witness in his examination-in-chief is exaggeration
or not - Therefore, the trial Court was justified in directing to issue
summons against the private respondents to face trial.
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Allowing the appeals, the Court
HELD: 1. In Hardeep Singh, 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. [Para 6.1.1][97-D-F]
2. Considering the law laid down by this Court in
Hardeep Singh, it emerges that (i) the Court can exercise the
power under Section 319 CrPC even on the basis of the
statement made in the examination-in-chief of the witness
concerned and the Court need not wait till the cross-examination
of such a witness and the Court need not wait for the evidence
against the accused proposed to be summoned to be tested
by crossexamination; and (ii) a person not named in the FIR or a
person though named in the FIR but has not been charge-sheeted
or a person who has been discharged can be summoned under
Section 319 CrPC, provided from the evidence (may be on the
basis of the evidence collected in the form of statement made
in the examination-in-chief of the witness concerned), it appears
that such person can be tried along with the accused already facing
trial. [Para 6.2][110-C-E]
3. Applying the law laid down by this Court in its various
decisions to the case of the accused on hand, this Court is of the
opinion that learned Trial Court was justified in summoning the
private respondents herein to face the trial as accused on the
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basis of the deposition of the appellant - injured eye witness. As
held by this Court in the aforesaid decisions, the accused can be
summoned on the basis of even examination-in-chief of the witness
and the Court need not wait till his cross-examination. If on the
basis of the examination-in-chief of the witness the Court is
satisfied that there is a prima facie case against the proposed
accused, the Court may in exercise of powers under Section 319
CrPC array such a person as accused and summon him to face
the trial. At this stage, it is required to be noted that right from
the beginning the appellant herein - injured eye witness, who
was the first informant, disclosed the names of private
respondents herein and specifically named them in the FIR. But
on the basis of some enquiry by the DSP they were not
charge-sheeted. What will be the evidentiary value of the enquiry
report submitted by the DSP is another question. It is not that
the investigating officer did not find the case against the
private respondents herein and therefore they were not
chargesheeted. In any case, in the examination-in-chief of the
appellant injured eye witness, the names of the private
respondents herein are disclosed. It might be that whatever
is stated in the examination-in-chief is the same which was
stated in the FIR. The same is bound to be there and ultimately
the appellant herein - injured eye witness is the first informant
and he is bound to again state what was stated in the FIR, otherwise
he would be accused of contradictions in the FIR and the
statement before the Court. Therefore, as such, the Trial Court
was justified in directing to issue summons against the private
respondents herein to face the trial. [Para 7][111-C-H]
4. The reasons assigned by the High Court for quashing
the order of the trial Court are unsustainable in law and on facts.
At this stage, the High Court was not required to appreciate the
deposition of the injured eye witness and what was required to
be considered at this stage was whether there is any prima facie
case and not whether on the basis of such material the proposed
accused is likely to be convicted or not and/or whatever is stated
by the injured eye witness in his examination-in-chief is
SARTAJ SINGH v. STATE OF HARYANA & ANR. ETC.
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exaggeration or not. The aforesaid aspects are required to be
considered during the trial and while appreciating the entire
evidence on record. Therefore, the High Court has materially
erred in quashing and setting aside the order passed by the
learned Trial Court summoning the accused to face the trial in
exercise of powers under Section 319 CrPC, on the reasoning
mentioned hereinabove. Even the observations made by the
High Court referred are on probability. Therefore, the impugned
judgment and order passed by the High Court is not sustainable
in law and on facts and is beyond the scope and ambit of Section
319 CrPC. [Para 8.1][112-E-H; 113-A]
Hardeep Singh v. State of Punjab (2014) 3 SCC 92
: [2014] 2 SCR 1; S. Mohammed Ispahani v. Yogendra
Chandak (2017) 16 SCC 226: [2017] 10 SCR 29
- relied on.
Sukhpal Singh Khaira v. State of Punjab (2019) 6 SCC
638: Rajesh v. State of Haryana (2019) 6 SCC 368 :
[2019] 8 SCR 187 - referred to.
Case Law Reference
[2014] 2 SCR 1
relied on
Para 3.6
(2019) 6 SCC 638
referred to
Para 3.6
[2017] 10 SCR 29
relied on
Para 6.3
[2019] 8 SCR 187
referred to
Para 6.4
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos.298-299 of 2021.
From the Judgment and Order dated 28.08.2020 of the High Court
of Punjab and Haryana at Chandigarh in CRR No.3238/2018(O&M)
and CRM-M No.55631/2018(O&M).
R. Basant, Sr. Adv., Atul Kumar, Abhimanyu Sharma, Ms. Deepali,
Pulak Bagchi, Tarun Gupta, Advs. for the Appellant.
Anil Kaushik, AAG, Haryana, Vivek Sood, Sr. Adv., Sanjay Kumar
Visen, Sanjeev Prakash Upadhyaya, Shashi Pratap Singh, Ms. Monisha
Handa, Mohit D. Ram, Advs. for the Respondents.
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The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 28.08.2020 passed by the High Court of Punjab and
Haryana at Chandigarh in revision application bearing CRR No. 3238 of
2018 and CRMM No. 55631 of 2018 by which the High Court has allowed
the said revision application and quashed and set aside the order dated
21.04.2018 passed by the learned Trial Court summoning the private
respondents herein, the original informant has preferred the present
appeals.
2. As per the case of the appellant herein-original informant, the
appellant was attacked by the private respondents herein and other
accused persons on 27.07.2016. That the appellant got severely injured.
That a FIR was lodged by the appellant herein in which he stated that
besides Manjeet Singh, Narvair Singh and other persons namely
Palwinder Singh son of Ran Singh, Satkar Singh son of Rajwant Singh,
Rajwant Singh son of Gurcharan Singh and Sukhdeep Singh son of
Satnam Singh had inflicted injuries on his person. It was stated that
while he was going in his car - Mahendra XUV-500 for personal work
and stopped his car on the left side to answer the phone call, Manjeet
Singh son of Mahinder Singh, who was coming in his car from Assandh
side and a lady was sitting by his side, stopped his car next to him and
after rolling down his window threatened him for having ploughed his
barley crop in his capacity as the Sarpanch and while going back home
after finishing his work, he found that a car was parked diagonally on
the road. The same car was parked in which Manjeet Singh was traveling
and when he took out his head to look for the driver, Palwinder Singh
son of Ran Singh, Satkar Singh son of Rajwant Singh armed with lathies
and were hiding on the right side of road came and attached him and
gave lathi blows on the head. Thereafter, 10-12 persons came running
towards the car from both sides of the road. It was further stated in the
FIR that Manjeet Singh son of Mahinder Singh, Amarjit Singh son of
Ran Singh, Rajwant Singh son of Gurcharan Singh, Narvai Singh son of
Tarlok Singh, Sukhdev Singh son of Satnam Singh, residents of Bandrala
were holding lathies and Gandasis in their hands. Rajwant Singh came
running towards his side and switched off the engine of the car and also
opened the door lock of driver side of the car. Manjeet Singh opened the
door from outside. Manjeet Singh and Rajwant Singh both dragged him
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out of the car and Rajwant Singh raised a Lalkara that "today there is an
opportunity to kill him". On saying this, Amarjeet Singh, who was armed
with Gandasi gave a blow on his head and Manjeet Singh, who was
armed with Gandasi gave a blow on his left ear. Then Rajwant Singh
who was armed with Gandasi gave blow from its front side. Thereafter,
all these persons gave number of blows upon him and he started feeling
unconscious and fell on the ground on his knees. He thought that they
will kill him today and he was seeing his death in front of his eyes. They
he took his revolver from the holster tied around his waist and fired with
the same and he did not know to whom and where the shots hit. Those
persons started running away upon his firing and while running away,
some persons gave blows on his right shoulder and due to which his
revolver fell down and those assailants ran away and he also in order to
save himself came back towards Adarsh School. He entered the Dera
of Chhinna situated near the Adarsh School, where Bhupinder Singh
and his father were present, whom he informed that some persons wanted
to kill him and kindly take him to Police Station. Thereafter, Bhupinder
Singh @ Pinda took him to Assandh on his motor cycle and after sometime
he became unconscious, where the doctor gave him first aid and on
seeing the seriousness of injuries referred him to General Hospital, Karnal.
In the meantime, his family members also reached the Hospital, Assandh
took him to General Hospital Karnal in the car and after considering the
number of injuries, the doctor referred him to PGI, Chandigarh. That, on
the basis of the statement of the appellant, FIR no. 477 of 2016 was
lodged for the offences under Sections 148, 149, 341, 323, 324, 307 and
506 IPC. That, thereafter, the DSP, Assandh submitted a report wherein
it was found that only four persons were involved in the dispute and the
respondents herein who were named were found not to be involved.
That, thereafter, the Investigating Officer filed the charge-sheet against
other accused, but not against the private respondents herein. That,
thereafter, during the trial the appellant herein came to be examined by
the prosecution as P.W.1, who was an injured witness. He named the
private respondents herein in his evidence specifically and stood the test
of cross-examination. Dr. Mahinder, the Medical Officer, Civil Hospital
was also examined as P.W.2. That, thereafter, one Bhupinder Singh who
took the injured appellant to the hospital was also examined as P.W.7.
That, thereafter, the appellant herein filed an application before the learned
Trial Court under Section 319 CrPC for summoning of the additional
accused - private respondents herein on the basis of the evidence
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recorded. That the learned Trial Court after considering the statements
of both - the appellant and other eye witnesses and the material on
record allowed the application under Section 319 CrPC vide order dated
21.04.2018. The private respondents herein thereafter filed two separate
revision petitions against the order passed by the learned Trial Court
summoning them, before the High Court. It appears that during the
pendency of the aforesaid revision applications, as the order passed by
the learned Trial Court summoning the private respondents herein was
not stayed and therefore the learned Trial Court proceeded with the trial
and after summoning of the additional accused-private respondents herein,
18 witnesses came to have been examined by the learned Trial Court.
That, by the impugned judgment and order, the High Court has allowed
the revision applications preferred by the private respondents herein and
has quashed and set aside the order passed by the learned Trial Court
summoning the additional accused-private respondents herein. Hence,
the present appeals.
3. Shri R. Basant, learned Senior Advocate appearing on behalf
of the appellant has vehemently submitted that when the learned Trial
Court, considering the evidence on record, both documentary and oral,
allowed the application under Section 319 CrPC summoning the private
respondents herein to face the trial, the High Court is not justified in
quashing and setting aside the order summoning the private respondents
herein.
3.1 It is further submitted that while quashing and setting aside
the order passed by the learned Trial Court summoning the private
respondents herein, which was in exercise of powers under Section 319
CrPC, the High Court has acted beyond the scope and ambit of Section
319 CrPC.
3.2 It is submitted that the High Court has failed to appreciate
that in fact the private respondents herein were specifically named in
the FIR and thereafter even the names have been disclosed in the
evidence of the deposition of the appellant - injured eye witness. It is
submitted that therefore the learned Trial Court was justified in
summoning the private respondents herein in exercise of powers under
Section 319 CrPC.
3.3 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that even the reasons assigned by the High
SARTAJ SINGH v. STATE OF HARYANA & ANR. ETC.
[M. R. SHAH, J.]
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Court while reversing the order passed by the learned Trial Court are
not sustainable in law and on facts.
3.4 It is submitted that the High Court has erred in quashing and
setting aside the order passed by the learned Trial Court summoning the
private respondents herein by observing that there is no evidence except
the statement of the appellant herein. It is submitted that however even
the accused can be convicted on the basis of the evidence of a single
witness and in the present case the appellant is an injured eye witness. It
is submitted that 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. 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 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.
3.5 It is further submitted that, by the time, the High Court has
passed the impugned judgment and order, as there was no stay in the
revision applications, the learned Trial Court proceeded further with the
trial and 18 witnesses came to be examined and the trial wasat the near
end. It is submitted that therefore also, the High Court is not justified in
quashing and setting aside a well-reasoned order passed by the learned
Trial Court summoning the private respondents herein in exercise of
powers under Section 319 CrPC.
3.6 Shri R. Basant, learned Senior Advocate appearing on behalf
of the appellant has relied upon the decision of this Court in the case of
Hardeep Singh v. State of Punjab (2014) 3 SCC 92 and the subsequent
decision of this Court in Sukhpal Singh Khaira v. State of Punjab
(2019) 6 SCC 638, in support of his submission that at the stage of
considering the application under Section 319 CrPC the High Court was
not justified in entering into the merits and/or appreciation of the evidence
on merits, which is required to be considered at that stage of trial. It is
submitted that as held by this Court in Hardeep Singh (supra), the
word 'evidence' in Section 319 CrPC has to be broadly understood and
not literally as evidence brought during a trial. It is submitted that it is
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further held that the statement made in examination-in-chief constitutes
'evidence' and the court exercising powers under Section 319 CrPC
post commencement of trial,need not wait for evidence against person
proposed to be summoned to be tested by cross-examination. It is
submitted that the degree of satisfaction for invoking Section 319 should
not be more than a prima facie case as exercised at the time of framing
of charge but short of satisfaction to an extent that evidence, if not
rebutted, may lead to conviction of person sought to be added as accused.
3.7 Making the above submissions and relying upon the above
decisions of this Court, it is prayed to allow the present appeals.
4. Shri Anil Kaushik, learned AAG, Haryana has supported the
present appeals and has submitted that the reasons given by the High
Court while quashing and setting aside a well-reasoned order passed by
the learned Trial Court summoning the private respondents herein in
exercise of powers under Section 319 CrPC are not sustainable in law
and even on facts.
5. Learned counsel appearing on behalf of the private respondents
herein has vehemently opposed the present appeals.
5.1 It is submitted that the power under Sections 319 CrPC is a
discretionary and an extra-ordinary power and has to be exercised
sparingly and only in those cases where the circumstances of the case
so warrant. It is submitted that it is not to be exercised because the Trial
Court is of the opinion that some other person may also be guilty of
committing that offence. It is submitted that where strong and cogent
evidence occurs against a person from the evidence led before the Court
that such powers should be exercised and not in a casual and cavalier
manner.
5.2 It is submitted that an order under Section 319 CrPC directing
summoning of additional accused cannot be passed because the first
informant or one of the witnesses seeks to implicate other persons. It is
submitted that there must be sufficient and cogent reasons which are
required to be assigned by the Trial Court satisfying the ingredients of
the provisions under Section 319 CrPC. It is submitted that, in the present
case, the appellant herein reiterated the contents of his complaint in the
examination-in-chief and no new evidence was placed on record. It is
submitted that the said statement does not satisfy the test for adjudication
for an application under Section 319 CrPC, i.e. evidence on record is
SARTAJ SINGH v. STATE OF HARYANA & ANR. ETC.
[M. R. SHAH, J.]
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such which would be more than what is required at the stage of framing
of chares but less than if left unrebutted would lead to conviction.
5.3 It is further submitted that in the examination in chief, the
appellant has reiterated what was stated in the FIR. It is submitted that
the allegations in the FIR were investigated/enquired into by the DSP
and as per his report no evidence was found against the private
respondents herein. It is submitted that therefore the High Court is justified
in quashing and setting aside the order passed by the learned Trial Court.
5.4 It is submitted that as such the appellant herein is an accused
in FIR NO. 477, regarding the death of one Amarjeet Singh and the
injuries having been suffered by Manjeet Singh. It is submitted that as
per the said FIR, Amarjeet Singh died and Manjeet Singh suffered injuries
at the hands of the appellant Sartaj Singh using his licensed revolver. It is
submitted that only after the FIR No. 477 was registered against the
appellant and his accomplices, belatedly a cross case in the same FIR
was got registered by the police on the statement of the appellant herein,
wherein he made up a concocted story of firing bullets in self defence. It
is submitted that the appellant herein stated that Palwinder Singh and
Satkar Singh have given lathi blows on the head, whereas Manjeet Singh,
Amarjeet Singh, Rajwant Singh, Narvair Singh and Sukdev Singh were
holding Gandasis and gave him blows on the head and face, which seems
to be not at all possible as rightly observed by the High Court.
5.5 It is further submitted that even otherwise the only evidence
against the private respondents herein was the statement of the appellant
herein, who in fact is an interested witness in entire matter. He himself
stands accused of killing Amarjeet Singh and grievously hurting and
attempting to kill Manjeet Singh in the original and earlier FIR. It is
submitted that therefore the High Court has rightly set aside the order
passed by the learned Trial Court observing that there was no new
evidence that had come forward against the private respondents herein,
rather there was a detailed enquiry corroborating the innocence of the
respondents and doubting the version of the appellant. It is submitted
that the High Court has rightly come to the conclusion that the learned
Trial Court has erred in exercising its jurisdiction in summoning the
answering respondents. It is further submitted that even the deposition
of P.W.7 Bhupinder Singh relied upon by the appellant herein does not
support the appellant. It is submitted that in the light of the crossexamination of the witness Bhupinder Singh, it appears that the entire
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story has been concocted by the appellant herein in his testimony. It is
submitted that it raises substantial doubt about the whole version of the
accused stated in the cross case in FIR No. 477 of 2016.
5.6 Making the above submissions, it is prayed to dismiss the
present appeals.
6. Heard learned counsel for the respective parties at length. What
is under challenge in the present appeals is the impugned judgment and
order passed by the High Court allowing the revision applications filed
by the private respondents herein and quashing and setting aside the
order passed by the learned Trial Court summoning the accused in
exercise of powers under Section 319 CrPC and to face the trial.
6.1 While considering the rival submissions, the law on the scope
and ambit of Section 319 CrPC is required to be considered and for that
few decisions of this Court are required to be referred to.
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
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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.
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 examinationin-chief of the witness concerned?
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(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?"
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.
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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.
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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.
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22. In our opinion, Section 319 CrPC is an enabling provision
empowering the court to take appropriate steps for proceeding
against any person not being an accused for also having committed
the offence under trial. It is this part which is under reference
before this Court and therefore in our opinion, while answering
the question referred to herein, we do not find any conflict so as
to delve upon the situation that was dealt with by this Court
in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014)
3 SCC 306 : AIR 2013 SC 3018] .
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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
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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.
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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. In fact, this proposition does not
seem to have been disturbed by the Constitution Bench in Dharam
Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306
: AIR 2013 SC 3018] . The dispute therein was resolved visualising
a situation wherein the court was concerned with procedural delay
and was of the opinion that the Sessions Court should not
necessarily wait till the stage of Section 319 CrPC is reached to
direct a person, not facing trial, to appear and face trial as an
accused. We are in full agreement with the interpretation given
by the Constitution Bench that Section 193 CrPC confers power
of original jurisdiction upon the Sessions Court to add an accused
once the case has been committed to it.
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
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from being arraigned or has been deliberately excluded by the
prosecuting agencies. This is all the more necessary in order to
ensure that the investigating and the prosecuting agencies have
acted fairly in bringing before the court those persons who deserve
to be tried and to prevent any person from being deliberately
shielded when they ought to have been tried. This is necessary to
usher faith in the judicial system whereby the court should be
empowered to exercise such powers even at the stage of inquiry
and it is for this reason that the legislature has consciously used
separate terms, namely, inquiry or trial in Section 319 CrPC.
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. There is yet another set of provisions which form part
of inquiry relevant for the purposes of Section 319 CrPC i.e.
provisions of Sections 200, 201, 202, etc. CrPC applicable in the
case of complaint cases. As has been discussed herein, evidence
means evidence adduced before the court. Complaint case is a
distinct category of criminal trial where some sort of evidence in
the strict legal sense of Section 3 of the Evidence Act 1872
(hereinafter referred to as "the Evidence Act") comes before the
court. There does not seem to be any restriction in the provisions
of Section 319 CrPC so as to preclude such evidence as coming
before the court in complaint cases even before charges have
been framed or the process has been issued. But at that stage as
there is no accused before the court, such evidence can be used
only to corroborate the evidence recorded during the trial (sic or)
for the purpose of Section 319 CrPC, if so required. 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
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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.
6.1.4 While answering Questions (iii), namely, 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, this Court, in the aforesaid decision has observed and held
as under:
"58. To answer the questions and to resolve the impediment
that is being faced by the trial courts in exercising of powers
under Section 319 CrPC, the issue has to be investigated by
examining the circumstances which give rise to a situation for the
court to invoke such powers. The circumstances that lead to such
inference being drawn up by the court for summoning a person
arise out of the availability of the facts and material that come up
before the court and are made the basis for summoning such a
person as an accomplice to the offence alleged to have been
committed. The material should disclose the complicity of the
person in the commission of the offence which has to be the
material that appears from the evidence during the course of any
inquiry into or trial of offence. The words as used in Section 319
CrPC indicate that the material has to be "where ... it appears
from the evidence" before the court.
59.