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CASE NO.: Appeal (crl.)  1019 of 2007

PETITIONER: Rajendra Singh

RESPONDENT: State of U.P. & Anr

DATE OF JUDGMENT: 06/08/2007

BENCH: G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO. 1019 OF 2007 (Arising out of Special Leave Petition (Crl.) No.3182 of 2006)

P.K. BALASUBRAMANYAN, J.

                1.              I very respectfully agree with the reasoning and  conclusion of my learned Brother.  But, I would like to add a  few words on Section 319 of the Code of Criminal Procedure  with a view at least to kindle a thought.

2.              Section 319 (1), which is relevant for our purpose  reads: "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."

As I see it, the words are plain and the meaning clear.  When  in the course of the enquiry or trial, it appears to the court  from the evidence that a person, not arrayed as an accused,  appears to have committed any offence for which that person  could be tried together with the accused, the court may  proceed against that person.  Surely, it must appear to the  Court from the evidence that someone not arrayed as an  accused, appears to have committed an offence.  Be it noted,  the Court need not be satisfied that he has committed an  offence.  It need only appear to it that he has committed an  offence.  In other words, from the evidence it need only appear  to it that someone else has committed an offence, to exercise  jurisdiction under Section 319 of the Code. Even then, it has a  discretion not to proceed, since the expression used is ’may’  and not ’shall’.  The legislature apparently wanted to leave that  discretion to the trial court so as to enable it to exercise its  jurisdiction under this section.  The expression ’appears’  indicates an application of mind by the court to the evidence  that has come before it and then taking a decision to proceed  under Section 319 of the Code or not.  With great respect, I see  no reason to describe the power as an extraordinary power or  to confine the exercise of it only if compelling reasons exist for

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taking cognizance against any other person against whom  action has not been taken. After all, the section only gives  power to the court to ensure that all those apparently involved  in the commission of an offence are tried together and none  left out.  I see no reason to curtail this power of the court to do  justice to the victim and to the society.   It appears to me that  it is left to the judicial discretion of the court, judicially  trained, to decide to proceed or not to proceed against a  person in terms of Section 319 of the Code.  

3.              The decision in Municipal Corporation of Delhi  Vs. Ram Kishan Rohtagi & ors. [(1983) 1 S.C.C. 1] which  described the power as an extraordinary power to be exercised  very sparingly and only if compelling reasons exist proceeded  on its own peculiar facts.  The broad statement contained in  that decision cannot be understood out of context.  That was a  case where the very same proceeding against certain persons  initially arrayed as accused, had been quashed.  But,  thereafter from the evidence, it appeared to the court that  some of them have to be tried as accused in exercise of power  under Section 319 of the Code.  This Court in that context  after referring to Joginder Singh Vs. State of Punjab [(1979)  2 S.C.R. 306] held that 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.  This Court  thus upheld the power of the court to invoke Section 319 of  the Code even in such a case. Their Lordships then added: "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."

With respect, I understand this sentence as relating to  exercise of the power under Section 319 of the Code in a case  where the prosecution against the person sought to be  arraigned, had earlier been quashed by the court, but still he  is to be roped in, in exercise of power under Section 319 of the  Code.

4.              These observations have unfortunately led to some  decisions using these expressions, even in cases where there  has not been a prior quashing of the charge and a proceeding  is taken in terms of Section 319 of the Code.  With respect, it  appears to me that there is no warrant for such narrowing  down of the power of the court.  After all, an authority has to  be understood in the context of the facts based on which the  observations therein are made.  The ratio of a decision is  generally secundum subjectam materiam.   

5.              In Quinn Vs. Leathem (1901) A.C. 495, Earl of  Halsbury L.C. stated: "\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.., that  every judgment must be read as applicable to  the particular facts proved, or assumed to be  proved, since the generality of the expressions  which may be found there are not intended to  be expositions of the whole law, but governed  and qualified by the particular facts of the case  in which such expressions are to be found.   The other is that a case is only an authority for

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what it actually decides."

The above dictum, as regards the first proposition, was quoted  and adopted by the Privy Council in Punjab Cooperative  Bank Ltd. Vs. Commissioner of Income Tax, Lahore [A.I.R.  1940 P.C. 230]

6.              The power under Section 319 of the Code is  conferred on the court to ensure that justice is done to the  society by bringing to book all those guilty of an offence.  One  of the aims and purposes of the Criminal Justice System is to  maintain social order.  It is necessary in that context to ensure  that no one who appears to be guilty escapes a proper trial in  relation to that guilt.  There is also a duty to render justice to  the victim of the offence.  It is in recognition of this that the  Code has specifically conferred a power in the court to proceed  against others not arrayed as accused in the circumstances  set out by this Section.  It is a salutary power enabling the  discharge of a court’s obligation to the society to bring to book  all those guilty of a crime.

7.              Exercise of power under Section 319 of the Code, in  my view, is left to the court trying the offence based on the  evidence that comes before it.  The court must be satisfied of  the condition precedent for the exercise of power under  Section 319 of the Code.  There is no reason to assume that a  court trained in law would not exercise the power within the  confines of the provision and decide whether it may proceed  against such person or not.  There is no rationale in fettering  that power and the discretion, either by calling it extraordinary  or by stating that it will be exercised only in exceptional  circumstances.  It is intended to be used when the occasion  envisaged by the section arises.