REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1351      OF 2009 [Arising out of SLP (Crl.) No.3002 of 2008]

Harbhajan Singh & Anr. ..…Appellants

Versus

State of Punjab & Anr. ..…Respondents

J U D G M E N T  

S.B. Sinha, J.   

1. Leave granted.

2. Appellants  are  before  us  aggrieved  by  and  dissatisfied  with  the  

judgment and order dated 19th March 2008 passed by a learned Single Judge  

of  the  High  Court  of  Punjab  &  Haryana  at  Chandigarh  whereby  and  

whereunder the revision application filed by them questioning the legality  

and/or validity of the order dated 11th September 2006 passed by the learned  

Addl. Sessions Judge, Jalandhar allowing an application under Section 319  

of  the  Code  of  Criminal  Procedure  (for  short,  ‘the  Code’)  filed  by  the

complainant  (respondent  no.2  herein)  summoning  them  as  additional  

accused in connection with FIR No.45 dated 13th March 2005 under Sections  

306/509/420/120-B/456 of the Indian Penal Code, was dismissed.

3. Appellants  and  one  Sarabjit  Singh  used  to  live  together.   Sarabjit  

Singh is the brother of the appellant no. 2.  He used to follow the deceased  

Rajni despite protests made by her.  He gave a proposal of marriage to her  

which was not accepted.  Appellants also asked her to marry Sarabjit, but  

she refused.   She was threatened of  being blackmailed stating that  some  

obscene photographs of hers would be shown to others.  On 12th March 2005  

Sarabjit Singh threw some obscene photographs of the deceased at her house  

as well as at the house of her paternal uncle – Kamaljeet.  He telephoned the  

deceased that her father and uncle must have received the gift sent by him.  

She thereafter committed suicide by consuming ‘sulphos’ tablets.   

4. A First Information Report was lodged.  However, the charge-sheet  

was submitted only against Sarabjit Singh.  Witnesses were examined before  

the learned Addl. Sessions Judge.  They categorically stated that not only  

Sarabjit Singh but also the appellants, when informed that the deceased did  

not  want  to  marry  Sarabjit,  threatened  that  they  would  ‘defame’  Rajni.  

According to the said witnesses, they had gone to the house of Harbhajan  

Singh – appellant no.1 a week prior to her death in that connection.  It was  

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categorically stated that the deceased consumed ‘sulphos’ tablets as Sarabjit  

and the appellants used to harass her.  In cross-examination, the complainant  

– Subhash Chander furthermore stated that his sons had informed him that  

they had received a telephonic message from Sarabjit Singh as to whether  

they had received the gift sent by him to them.   

5. The learned Addl.  Sessions  Judge passed the  said  order  dated 11th  

September 2006 summoning the appellants as additional accused in the said  

case, stating:  

“I have heard the learned Addl. P.P. for the state as  well as perused the documents in the file, as well  as statement made by Subhash Chander father of  Rajni  before  the  police  as  well  as  his  statement  recorded  in  the  Court  and  also  the  statement  of  Rajni deceased at the time of her death given to the  police.   Rajni  as  well  as  her  father  have  named  both Harbhajan Singh and Rajnit  Kaur  as  active  participants  in  the  commission  of  the  offence  of  abetting  her  suicide  alongwith  accused  Sarbjit  Singh  @  Sabhi.   All  three  of  them  have  black  mailed  her  by  throwing  her  nude  photographs  before her house as well as in front of the house of  her uncle in order to defame her and in order to  pressurize  her  to  marry  Sarbjit  Singh  @  Sabhi.  There is sufficient material to proceed against the  accused.  A lady at the time of her death will never  tell a lie.  The very fact that she has named all the  three persons in the abetment of her suicide carries  conviction.  In view of the above said facts I allow  the application and order that Harbharaj Singh son  of Sarwan Singh and Ranjit Kaur w/o Harbhajan  Singh  both  residents  of  E-104,  Upkar  Nagar  (Jaimal Nagar),  P.S. Division No.8, Jalandhar be  

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summoned  as  accused  to  face  trial  alongwith  accused Sarbjit Singh @ Sabhi as their summoning  is essential in the interest of justice and for the just  and  proper  decision  of  the  case.   They  be  summoned for 28.9.06.”

6. The High Court, by reason of the impugned judgment, has dismissed  

the revision application filed by the appellants herein, stating:

“…. However,  Subhash Chander has  specifically  stated that they had met the petitioners even one  week  before  the  death  of  the  deceased.   In  all,  Subhash  Chander  stated  that  they  had  met  the  petitioners  three  times.   If  the  petitioners  were  reiterating  their  threat  to  defame  the  deceased,  throwing of obscene photographs of the deceased  at her house even by Sarabjit Singh alone, would  not exonerate the petitioners at this stage because it  was  in  continuation  of  the  series  of  acts  of  the  petitioners themselves as well.  Here it would not  be out of place to notice that even the deceased in  her  statement  (dying  declaration)  specifically  stated  that  the  petitioners  and Sarabjit  Singh are  responsible  for  her  suicide.   In  view  of  the  aforesaid, it cannot be said that there is no prima  facie for proceeding against the petitioners.  The  impugned order does not suffer from any illegality  or error of jurisdiction.”

7. Mr. Satinder S. Gulati, the learned counsel appearing on behalf of the  

appellants would submit that the learned Addl. Sessions Judge as also the  

High Court  committed  a  serious  error  insofar  as  they failed  to  take into  

consideration that the ingredients of Section 306 of the Indian Penal Code  

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having not been fulfilled inasmuch as the immediate cause for committing  

suicide being throwing of nude photographs of the deceased having been  

attributed  to  Sarabjit  Singh  alone,  the  appellants  could  not  have  been  

summoned as additional accused.  The learned counsel, in this behalf, would  

strongly rely upon the decision of this Court in the case of  Mohd. Shafi v.  

Mohd. Rafiq & Anr. (2007) 4 SCR 1023 = 2007(5) SCALE 611.

Our attention has further been drawn to the fact that correctness of  

decision in the case of Mohd. Shafi (supra) insofar as it was held that order  

summoning  the  accused  may  be  passed  only  upon  cross-examining  the  

witnesses, having been doubted, has been referred to a three-Judge Bench.

8. The learned counsel appearing on behalf of the respondents, on the  

other hand, would support the impugned judgment.  

9. In this case, the deceased made a dying declaration.  In the said dying  

declaration  not  only  Sarabjit  Singh  but  also  the  appellants  herein  were  

named as the persons who were responsible for her death.  Correctness of  

the said dying declaration at this stage is not and cannot be questioned.  It  

may be true that the appellants were not charge-sheeted but it is now well  

settled, by reason of various decisions of this Court, that only because no  

charge-sheet has been submitted against certain persons, the same by itself,  

would not be a sufficient ground for the court at a later stage, namely, upon  

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consideration of the evidence adduced before it by the prosecution to decline  

to exercise its jurisdiction to add other persons as accused for trying them for  

offences which appear to it to have been committed by them.   

The  dying  declaration  together  with  statements  made  by  the  

prosecution witnesses show commission of an offence.  Appellants took side  

of Sarabjit Singh.  They not only asked the deceased to marry him but even  

threatened  her  as  also  her  parents  that  in  case  of  refusal,  she  would  be  

‘defamed’.   

It is not possible, keeping in view the nature of evidence which was  

made  available  before  the  learned  Addl.  Sessions  Judge,  to  arrive  at  a  

conclusion that the said evidence, even if given face value and taken to be  

correct in its entirety; had not disclosed commission of an offence or on the  

basis thereof a judgment of conviction cannot be recorded at all.   

Appellants had raised certain defences.  The same ultimately may or  

may not be accepted.  But, indisputably, at this stage, the evidence adduced  

discloses some offence.   

10. In the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi  

& Ors. (1983) 1 SCC 1, it has been held as under :

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“19. In  these  circumstances,  therefore,  if  the  prosecution  can  at  any  stage  produce  evidence  which satisfies the court that the other accused or  those  who  have  not  been  arrayed  as  accused  against  whom  proceedings  have  been  quashed  have also committed the offence the Court can take  cognizance against them and try them along with  the other accused.  But,  we would hasten to add  that this is really an extraordinary power which is  conferred  on  the  court  and  should  be  used  very  sparingly and only if compelling reasons exist for  taking cognizance against the other person against  whom action has not been taken.  More than this  we would not like to say anything further at this  stage.  We leave the entire matter to the discretion  of the court concerned so that it may act according  to law.  We would, however, make it plain that the  mere fact that the proceedings have been quashed  against  respondents  2  to  5  will  not  prevent  the  court  from exercising  its  discretion  if  it  is  fully  satisfied that a case for taking cognizance against  them has been made out on the additional evidence  led before it.”

[See also  Joginder Singh & Anr. v.  State of Punjab & Anr. (1979) 1 SCC  

345; Lok Ram v. Nihal Singh & Anr. (2006) 10 SCC 192; Shashikant Singh  

v.  Tarkeshwar  Singh  &  Anr. (2002)  5  SCC  738;  Kailash v.  State  of  

Rajasthan & Anr. 2008(3) SCALE 338 and Sarabjit Singh & Anr. v. State of  

Punjab & Anr. 2009 (8) SCALE 175].

11. In the case of Mohd. Shafi (supra), an application under Section 319  

of the Code was filed by a witness.  He was not the complainant.  He had no  

locus standi to file the application.  In that case, the trial Judge had refused  

to pass an order on the application filed by the complainant under Section  

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319 of the Code stating that the matter would be considered only after the  

cross-examination of the witnesses is over.  The State was not aggrieved by  

that  order  and  in  that  situation  this  Court  refused  to  interfere  with  the  

inference that such an order by the High Court at that stage was not held to  

be correct.

12. Our attention, however, has been drawn to a decision of this Court in  

the case of  Hardeep Singh v.  State  of  Punjab & Ors. JT 2008(12) SC 7  

wherein the following questions have been referred for consideration by a  

larger Bench by an order dated 07th November 2008 :

“79.   We,  therefore,  refer  the  following  two  questions for the consideration of a Bench of three  Hon’ble Judges:

(1) When the power under sub-section (1) of Section 319 of  the Code of addition of accused can be exercised by a  Court?   Whether  application  under  Section  319  is  not  maintainable unless the cross-examination of the witness  is complete?

(2) What is the test and what are the guidelines of exercising  power under sub-section (1) of Section 319 of the Code?  Whether such power can be exercised only if the Court is  satisfied  that  the  accused  summoned  in  all  likelihood  would be convicted?”

13. We would assume that in all cases the court may not wait till cross-

examination is  over for the purpose of exercising its  jurisdiction.   In the  

aforementioned decision, the learned Judges had referred to a judgment of  

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this Court in the case of Rakesh & Anr. v. State of Haryana (2001) 6 SCC  

248 wherein it was held that even without cross-examination on the basis of  

a  prima facie material  which would enable  the Sessions Court  to  decide  

whether the power under Section 319 of the Code should be exercised or not  

stating that at that stage evidence as used in Section 319 of the Code would  

not mean evidence which is tested by cross-examination.  

14. Even if what is contended by the learned counsel is correct, it is not  

for us to go into the said question at this stage; herein cross-examination of  

the witnesses had taken place.  The Court had taken into consideration the  

materials available to it for the purpose of arriving at a satisfaction that a  

case for exercise of jurisdiction under Section 319 of the Code was made  

out.  Only because the correctness of a portion of the judgment in the case of  

Mohd. Shafi (supra) has been doubted by another bench, the same would not  

mean that we should wait for the decision of the larger bench, particularly  

when  the  same  instead  of  assisting  the  appellants  runs  counter  to  their  

contention.   

We may, however, incidentally place on record that in  Mohd. Shafi  

(supra),  the  trial  Court  refused  to  exercise  its  discretion  and  postponed  

passing of an order till  cross-examination was over.   If at  that stage,  the  

Court was not satisfied about existence of any other material which would  

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satisfy it to exercise the jurisdiction which as per the decision of this Court  

in the case of  Municipal Corporation of Delhi v.  Ram Kishan Rohtagi &  

Ors. (supra)  should  be  used  very  sparingly,  this  Court  should  not  have  

passed a favourable order at that stage itself.  It was merely held that the  

High Court should not have interfered with as the said provision conferred  

an extraordinary power.  Each case must be decided on its own facts.   

If a judicious discretion exercised by the Court had led it to pass an  

order under Section 319 of the Code, the High Court exercising a revisional  

jurisdiction  would  interfere  therewith,  inter  alia,  in  a  case  where  legal  

principles laid down by this Court had not been satisfied.  The decision of  

this Court in the case of Mohd. Shafi (supra), therefore, in our opinion, is not  

an authority for the proposition that in each and every case the Court must  

wait till the cross-examination is over.  

15. Keeping in view the materials available on record as also the nature of  

the order passed by the learned Sessions Judge we are of the opinion that no  

interference with the impugned judgment is called for in the peculiar facts  

and circumstances of the case.

16. For the reasons aforementioned, the appeal is dismissed.

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……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Cyriac Joseph]

New Delhi; July 29, 2009   

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