REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   2062         OF 2008 [Arising out of SLP (Crl.) No. 1179 of 2008]

Lal Suraj @ Suraj Singh & Anr. …Appellants

Versus

State of Jharkhand …Respondent

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. On the basis of a fardbeyan of one Bihari Singh, a First Information

Report  was  registered  against  seven  persons  for  commission  of  offences

under Sections 147, 148, 149, 307 and 302 of the Indian Penal Code and

Section 27 of the Arms Act as well as under Section 3/4 of the Explosive

Substance Act inter alia alleging that on 24.10.2000 at around 4 p.m. when

he  along  with  one  Ajay  Singh  was  sitting  in  his  shop  near  bus  stand,

Nagendra  Choubey,  Mukesh  Choubey,  Pradeep  Vishwakarma,  Sharvan

Vishwakarma,  Suraj  Singh,  B.N.  Singh  and  Arbind  Singh  came  in  two

vehicles and started firing.  Appellant No. 1 was specifically named therein.

In  the  said  incident,  the  complainant  and  Ajay  Singh  suffered  fire  arm

injuries.  When the people started assembling there, accused persons fled

away.  The motive for commission of the offence was said to be the murder

of  one  Jagdev  wherein  the  complainant  and  the  said  Ajay  Singh  were

accused.   The  first  informant  was  taken  to  the  hospital  and  died  on

25.10.2000.  He gave a dying declaration which was treated to be the First

Information Report.

3. Indisputably,  no  chargesheet  was  filed  against  the  appellants.   No

cognizance, therefore, was taken against them.   

4. Upon commitment of the case to the Court of learned Sessions Judge,

the prosecution examined eleven witnesses.   The learned Sessions  Judge

relied  upon  the  evidence  of  PWs  6  and  7  to  allow  an  application  for

summoning the appellant in exercise of his power under Section 319 of the

Code of Criminal Procedure (for short “Code”) , holding:

2

“There cannot be any two opinion that suspicion however  strong  it  may be  cannot  take  shape  of evidence and it cannot be a ground for conviction but so far issuance of process is concerned strong suspicion can be a ground to proceed against any person  in  a  criminal  case.   In  the  facts  of  the present  case  when  the  statement  of  the  injured formed basis of fardbeyan, who died subsequently then value of first  statement will  also be a point for consideration.  The statement of PW 7 is also said  to  be  statement  of  dead  person,  then  that statement of PW7 will also be under the scrutiny on the touchstone of evidence.  The name of above referred  two  persons  Suraj  Singh  and  Arbind Singh is stated by the informant.

Thus  in  consideration  of  the  entire  material  on record  I  am  of  the  view  that  the  materials  on record  is  sufficient  to  proceed  against  above named Suraj  Singh  and  Arbind  Singh.   Thus  in view of  the  above  observation  it  will  be  proper that summons against Suraj Singh son of Madhu Singh  and  Arbind  Singh  son  of  late  Amarnath Singh,  both  resident  of  village  –  Bandubar,  P.S. Panki, Distt – Palamau be issued and are arrayed as  accused  in  GR.  1256/2000  corresponding  to Sadar P.S. Case No. 381/2000 to face trial.   

The office is directed to open a separate record for those two persons bearing no.  209B/2004 and is further  directed  to  issue  summons  against  the above named two accused persons for their trial.”

5. Appellants filed criminal revision application thereagainst before the

High Court.  By reason of the impugned judgment, the same was dismissed.

3

6. Mr.  P.S.  Narasimha,  learned  counsel  appearing  on  behalf  of  the

appellants,  has  taken  us  through  the  evidences  of  PWs  6  and  7  and

submitted  that  both  the  learned  Sessions  Judge  as  also  the  High  Court

committed a serious error insofar as they failed to take into consideration

the legal principles required to be applied while summoning an accused in

exercise of the court’s power under Section 319 of the Code.

7. Mr. Manish Kumar Saran, learned counsel appearing on behalf of the

respondent, on the other hand, submitted that from a perusal of the judgment

of the High Court it  would appear that the only contention raised therein

was that  no  charge-sheet  having been filed  against  them, they could  not

have been summoned by the Court in exercise of its power under Section

319 of the Code, which has rightly been rejected by the High Court in view

of the decision of this Court in Y. Saraba Reddy v. Puthur Rami Reddy and

Another [(2007) 4 SCC 773].

8. The prosecution concededly did not file any chargesheet against the

appellants.  Even in the First Information Report only the appellant No. 1

was named.

4

9. The case was committed to the Court of Sessions.  There cannot be

any doubt or dispute that although a person named in the First Information

Report or another who was found to be involved in the commission of the

offence may be summoned at a subsequent stage by the learned Trial Judge,

legality of an order summoning such an accused, however, would depend on

the nature of evidence brought on record by the prosecution witnesses and

other  relevant  factors.   At that  stage  what  is  material  is  the evidence  of

prosecution witnesses and other materials which have been brought on the

record.   

10. Section 319 of the Code reads, thus:

“319  Power  to  proceed  against  other  persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears  from  the  evidence  that  any  person  not being the accused has committed any offence for which such person could be tried together with the accused,  the  court  may  proceed  against  such person for the offence which he appears to have committed.

(2) Where such person is not attending the court he  may  be  arrested  or  summoned,  as  the circumstances  of  the  case  may  require,  for  the purpose aforesaid.

5

(3)  Any person attending  the  court  although  not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial  of, the offence which he appears to have committed.

(4) Where the court  proceeds against any person under Sub-section (1) then -

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of Clause (a), the case may  proceed  as  if  such  person  had  been  an accused person when the court took cognizance of the  offence  upon  which  the  inquiry  or  trial  was commenced.”

11. Section 319 of the Code is a special provision.  It seeks to meet an

extraordinary situation.  It although confers a power of wide amplitude but

is required to be exercised very sparingly.

Before  an  order  summoning  an  accused  is  passed,  the  Trial  Court

must form an opinion on the basis of the evidences brought before it that a

case has been made out that such person could be tried together with the

other accused.

6

12. There is no dispute with the legal proposition that even if a person

had  not  been  chargesheeted,  he  may  come  within  the  purview  of  the

description of such a person as contained in Section 319 of the Code.   

In  Y. Saraba Reddy (supra),  this  Court  did not  lay down any new

principle.   It  relied  upon  several  well-known  decisions  of  this  Court  in

Joginder  Singh v.  State  of  Punjab [(1979)  1  SCC  345],  Municipal

Corporation of Delhi v.  Ram Kishan Rohtagi [(1983) 1 SCC 1] and Sohan

Lal v. State of Rajasthan [(1990) 4 SCC 580].   

We  may,  however,  notice  that  therein  the  High  Court  took  an

extraordinary step which was described by this Court as a basic fallacy in its

approach.  It had called for the file to satisfy itself as to whether the enquiry

conducted  was  to  be  preferred  to  the  evidence  of  PW-1.   In  the

aforementioned situation, it was observed:

“…If the satisfaction of the investigating officer or supervising  officer  is  to  be  treated  as determinative,  then  the  very  purpose  of  Section 319 of  the  Code would  be frustrated.  Though it cannot  always  be  the  satisfaction  of  the investigating officer which is to prevail, yet in the instant  case  the  High  Court  has  not  found  the evidence of PW 1 to be unworthy of acceptance. Whatever  be  the  worth  of  his  evidence  for  the

7

purposes  of  Section  319  of  the  Code  it  was required  to  be analysed.  The conclusion  that  the IO’s  satisfaction  should  be  given  primacy  is unsustainable…”

No exception can be taken to the said dicta.   

The fact involved herein, however, is completely different.

13. The  learned  Sessions  Judge  as  also  the  High  Court,  as  indicated

hereinbefore,  relied  upon  the  deposition  of  Jogendra  Singh  (PW-6)  and

Karu Singh (PW-7).   

Jogendra  Singh  in  his  deposition  merely  stated  that  the  appellants

were sitting in the said jeep.  The vehicle, however, was being driven at a

very high speed and, thus, he could not even see as to whether people sitting

therein  were  holding  any weapon  or  not.   He  is,  therefore,  not  an  eye-

witness to the occurrence.   

PW-7 in his deposition stated:

8

“1. Occurrence had taken place on 24.10.2003 at about 4-1/2 P.M. in the evening.  At that time I was at my house.  On receipt of the information of the occurrence, we reached at the Hospital.  After reaching at the Hospital, I saw that my father and Ajay Singh were on bed.  Ajay Singh had died and my father was giving statement and his statement was  being  recorded  by  Ram  Sagar  Tiwari Darogaji.  I had also talk with my father.  He told me that  Suraj  Singh,  Arbind  Singh,  B.N.  Singh, Pradeep  Vishwakarma,  Shravan  Vishwakarma, Nagendra  Chaubey  and  Mukesh  Chaubey  had committed the crime (occurrence with him).”

He is, thus, only hearsay witness.

14. No evidence worth the name, therefore, had been brought on record

to arrive at a satisfaction that there was a reasonable prospect of conviction

of the appellants.   

15. The  approach  of  the  learned  Sessions  Judge was wholly incorrect.

The principle of strong suspicion may be a criterion at the stage of framing

of charge as all the materials brought during investigation were required to

be taken into consideration, but,  for the purpose of summoning a person,

who did not figure as accused, a different legal principle is required to be

applied.   A court framing a charge would have before it all the materials on

9

record  which  were  required  to  be  proved  by the  prosecution.   In  a  case

where, however, the court exercises its jurisdiction under Section 319 of the

Code,  the  power  has  to  be  exercised  on  the  basis  of  the  fresh  evidence

brought before the court.  There lies a fine but clear distinction.

16. In Ram Kishan Rohtagi (supra), this court observed:

“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...”

17. In Yuvaraj Ambar Mohite v. State of Maharashtra [2006 (10) SCALE

369],  it  was  observed  that  there  is  a  possibility  of  the  accused  being

convicted on the basis of the evidences brought on record even if the same

is taken to be correct in its entirety.

10

18. In  Guriya alias Tabassum Tauquir and Others v.  State of Bihar and

Another [(2007) 8 SCC 224], referred to by the High Court, it was held that

where  there  was  no  new  material,  the  discretionary  jurisdiction  under

Section 319 of the Code can be exercised, holding:

“12. As noted above, PWs 1, 2 and 3 have stated about the presence of the appellants  without  any definite  role  being  ascribed  to  them  in  their evidence  recorded  on  16-4-2001,  8-1-2002  and 29-4-2002.  If  really  the  complainant  had  any grievance  about  the  appellants  being  not  made accused,  that  could  have,  at  the  most,  be  done immediately  after  the  recording  of  evidence  of PWs  1,  2  and  3.  That  has  apparently  not  been done.  Additionally,  after  the  charge-sheet  was filed,  a  protest  petition  was  filed  by  the complainant which was dismissed. No explanation whatsoever  has  been  offered  as  to  why  the application in terms of Section 319 CrPC was not filed  earlier.  The  Revisional  Court  did  not  deal with  these  aspects  and  came  to  an  abrupt conclusion  that  all  the  PWs have  stated  that  the appellants  have  committed  overt  acts  and  their names  also  find  place  in  the  protest  petition. Undisputedly, no overt act has been attributed to the  appellants  by PWs 1,  2  and  3.  Nothing  has been stated about the appellants by PWs 4 and 5. There was mention of their names in the FIR. A protest petition was filed. Same was also rejected. These  could  not  have  formed  the  basis  of accepting the prayer in terms of Section 319 CrPC. The High Court’s order, to say the least, is bereft of any foundation. It  merely states that there are materials  against  the petitioners  before it.  It  also did  not  deal  with  various  aspects  highlighted above.”

11

19. The said principle has been reiterated by this Court in Mohd. Shafi v.

Mohd. Rafiq & Anr. [AIR 2007 SC 1899] stating:

“6. Before, thus, a trial court seeks to take recourse to  the  said  provision,  the  requisite  ingredients therefore  must  be  fulfilled.  Commission  of  an offence  by  a  person  not  facing  trial,  must, therefore, appears to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this  behalf  must  be  judicially  exercised.  It  is incumbent  that  the  court  must  arrive  at  its satisfaction in this behalf.”

20. Yet again in Kailash v. State of Rajasthan & Anr. [2008 (3) SCALE

338] Sirpurkar, J. speaking for the Bench held:

“A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are "it appears from the evidence "..." any person "..." has committed any  offence".  It  is  not,  therefore,  that  merely because some witnesses have mentioned the name of  such  person  or  that  there  is  some  material against  that  person,  the discretion  under  Section 319 Cr.P.C.  would  be  used  by the  court.  This  is apart from the fact that such person against whom such discretion  is  used,  should be a person who could  be  tried  together  with  the  accused  against whom the trial is already going on. This Court has,

12

time and again, declared that the discretion under Section  319  Cr.P.C.  has  to  be  exercised  very sparingly  and  with  caution  and  only  when  the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised  only on the basis  of  the evidence. It could, therefore, be used only after the legal  evidence  comes  on  record  and  from  that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be circumspect while exercising this power and would  have  to  apply  the  caution  which  the language of the Section demands.”

21. Applying the aforementioned legal principles to the fact of this case,

we are of the opinion that the learned Sessions Judge as also the High Court

committed a serious error in passing the impugned judgment.  On the basis

of  the  aforementioned  evidence,  there  was  no  possibility  of  recording  a

judgment of conviction against the appellants at all.   

22. The appeal is, thus, allowed and the impugned orders are set aside.  

………………………….J. [S.B. Sinha]

..…………………………J.     

13

[Cyriac Joseph] New Delhi; December 18, 2008

14