REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                 OF 2009 [Arising out of SLP (Crl.) No.6723 of 2005]

Ram Singh & Ors. ..…Appellants

Versus

Ram Niwas & Anr. ..…Respondents

J U D G M E N T  

S.B. Sinha, J.   

1. Leave granted.

2. Scope  and  application  of  Section  319  of  the  Code  of  Criminal  

Procedure, 1973 (for short, ‘the Code’) is in question in this appeal which  

arises out of a judgment and order dated 16th November 2005 passed by a  

learned  Single  Judge  of  the  High  Court  of  Rajasthan  whereby  and  

whereunder  the  order  dated  29th May  2003 passed  by  the  learned Upper  

District  &  Sessions  Judge  (Fast  Track),  Sikar,  refusing  to  summon  the  

appellants herein as accused, was set aside.  

3. A First  Information Report (FIR) was lodged by the 1st respondent  

alleging  that  his  wife  was  attacked  by  nine  persons  including  the  five  

appellants herein.  His mother was also assaulted.  When his father rushed to  

their rescue, he was also surrounded by them and was assaulted as a result  

whereof,  he  expired.   Upon investigation,  a  final  form was submitted  in  

favour of the appellants.  A charge-sheet was filed only against four persons,  

viz., Kishori, Jagdish, Sarjit and Sheo.

4. Indisputably, a counter case had been filed.

5. An  application  was  filed  on  or  about  01st April  1998  in  terms  of  

Section 319 of the Code for summoning the appellants herein as accused.   

Before the learned Upper Distt. & Sessions Judge, a large number of  

witnesses  were  examined  and  cross-examined  on  behalf  of  the  accused  

persons.   By reason of an order dated 29th May 2003, the learned Upper  

Distt.  &  Sessions  Judge  rejected  the  said  application  filed  by  the  1st  

respondent  herein  opining  that  no  case  has  been  made  out  therefor.   A  

criminal miscellaneous petition filed by the 1st respondent before the High  

Court  against  the  order  of  the  learned  Upper  Distt.  &  Sessions  Judge,  

however, has been allowed by reason of the impugned judgment, stating:  

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“The  very  ambit  of  section  319  Cr.P.C.  is  to  empower the trial court to take cognizance against  those  persons  who  are  alleged  to  have  been  involved  in  an  offence,  but  who  have  not  been  arrayed  as  accused  by  the  investigating  agency  while filing the charge sheet.  Section 319 Cr.P.C.  comes  into  effect  once  the  evidence  comes  trickling in during the course of trial  against  the  alleged offender.  In case there is prima facie case  against the alleged offenders, the Court should take  cognizance against them.  At the juncture of taking  cognizance, the court should not critically analyze  the  evidence.   For  the  purpose  of  taking  cognizance, the existence of a prima facie case is  sufficient.  It is only at a later stage that the trial  court is called upon to appreciate the evidence in  proper  perspective.   Moreover,  the  duty  of  the  court is not only to protect the innocent, but also to  punish the guilty.   In case the jurisdiction under  section  319 Cr.P.C.  is  not  exercised  properly  by  the  trial  Court,  chances  are  that  those  who  are  alleged  in  the  offence  might  go  scot  free.   The  society cannot be exposed to the dangers created  by those who take law in their own hands.  

Considering the fact that the large number of  witnesses  have  deposed  against  the  respondents  No.2 to 6, a prima-facie case does not (sic) exist  against them for their involvement in the alleged  offence.   Thus,  in  our  opinion,  the  learned  Magistrate  should have exercised the jurisdiction  vested in him under section 319 Cr.P.C.

We allow this petition and direct the learned  Addl.  Sessions Judge to rehear  the arguments  of  the  learned  counsel  for  the  petitioner  and  the  learned  counsel  for  the  State  and  pass  the  necessary  orders  in  accordance  with  section  319  Cr.P.C. within a period of two weeks from the date  

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of the receipt of the certified copy of this order and  to expeditiously complete the trial as the trial has  been hanging fire since 1996.”

6. Dr.  Sushil  Balwada,  learned  counsel  appearing  on  behalf  of  the  

appellants would submit that the involvement of the appellants having not  

been found by the learned Upper Sessions Judge, the High Court committed  

a serious error in passing the impugned judgment.

7. Mr. Sushil Kumar Jain, the learned counsel appearing on behalf of the  

1st respondent, on the other hand, urged that although a final form was filed  

in favour of the appellants, the same would not mean that the application for  

summoning the accused was impermissible in law.

It  was  urged  that  the  learned  Upper  Sessions  Judge  committed  a  

serious error insofar as he failed to take into consideration that existence of a  

prima  facie case  alone  would  subserve  the  requirements  of  the  said  

provision.  It was urged that at that stage, the learned Upper Sessions Judge  

should not have entered into the arena of appreciation of evidence.   

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In  this  regard,  our  attention  has  been  drawn  to  the  statements  of  

various witnesses examined on behalf of the prosecution prior to the passing  

of the order dated 29th May 2003.   

8. Before the learned Upper Sessions Judge, the respondent no.1 herein  

was examined as P.W.2 on 23rd February 1998.  He alleged involvement of  

the appellants herein in the incident.  He had also attributed certain overt  

acts on their part,  inter alia, contending that they had assaulted his father  

with the reverse side of an axe (farsi).  One Ramesh Kumar, brother of the  

respondent  no.1  was  also  examined  as  P.W.  7  on  22nd January  2003.  

Similarly, one Kanesh, son of respondent no.1, examined himself as P.W.8  

on 22nd January 2003.

9. Mr. Naveen Kumar Singh, learned counsel appearing on behalf of the  

State would submit that it was not permissible in law for the learned Upper  

Sessions Judge to entertain an application under Section 319 of the Code  

although they had not been charge-sheeted.

We do not agree.

10. Section 319 of the Code reads thus :

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“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.

(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. An  application  under  the  aforementioned  provision  would  be  

maintainable not only during pendency of an inquiry but also in the course  

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of a trial.  In the event, it appears from the evidence that any person, not  

being an accused, has committed any offence for which he could be tried  

together with the accused, the court may proceed against him for the offence  

which he appears to have committed.  The provision of Section 319 of the  

Code confers an extraordinary power upon a court to summon a person who,  

at the relevant time, was not being tried as an accused, subject, of course, to  

fulfillment of the condition that it appears to the court that he had committed  

an offence.  A finding to that effect must be premised on the evidence that  

had been brought on record.  

12. Indisputably,  the court  must satisfy itself  about the existence of an  

extraordinary situation enabling it to exercise an extraordinary jurisdiction.  

It  is  true  that  the  court  is  not  denuded of  its  power  to  exercise  the  said  

jurisdiction only because a person named as an accused in the FIR was not  

charge-sheeted as  a result  whereof no cognizance has been taken against  

him.  What is necessary for the said purpose is that the person concerned  

was not being tried as an accused before the Court at that stage.   

13. This  Court  in  the  case  of  Kailash v.  State  of  Rajasthan [2008(3)  

SCALE 338],  has held that a glance of the provision would suggest  that  

during the trial it has to appear from the evidence that a person not being an  

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accused has committed any offence for which such person could be tried  

together  with the accused who are also being tried.   This  Court  has laid  

emphasis on the words, ‘it  appears from the evidence’, ‘any person’, and  

‘has  committed  any  offence’.   It  was  further  held  that  the  power  under  

Section 319 has to be essentially exercised only on the basis of the evidence  

brought  on  record  of  the  case.   The  discretionary  jurisdiction  could,  

therefore, be exercised only after the legal evidence comes on record and  

from that evidence it appears that the concerned person has committed an  

offence.   

14. In the case of Raj Kishore Prasad v. State of Bihar & Anr. [(1996) 4  

SCC 495], this Court opined :

“14. Learned counsel differ however on the other  question  posed  in  Kishun  Singh  case [Kishun  Singh v. State of Bihar(1993) 2 SCC 16].  It was  whether  a  Court  of  Session,  to  which  a  case  is  committed for trial by a Magistrate, could, without  itself  recording  evidence,  summon  a  person  not  named in the police report presented under Section  173 of the Code of Criminal Procedure, 1973, to  stand trial along with those named therein; if not in  exercise of power conferred by Section 319 of the  Code, then under any other provision?  The answer  given  was  in  the  affirmative,  on  the  basis  of  Section  193  of  the  Code,  as  it  presently  stands,  providing that once the case is committed to the  Court  of  Session by  a  Magistrate,  the  restriction  

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placed on the power of the Court of Session to take  cognizance  of  an offence as  a Court  of  Original  Jurisdiction gets lifted, thereby investing the Court  of  Session  unfettered  jurisdiction  to  take  cognizance of the offence which would include the  summoning  of  the  person  or  persons  whose  complicity  in  the  crime  can  prima  facie  be  gathered from the material available on the record.  It is on this reasoning that this Court sustained the  order of the Court of Session (though it ostensibly  was under Section 319 CrPC terming material of  investigation before it  as  ‘evidence’)  summoning  the unnamed accused to stand trial with the named  accused.  A stage has thus been discovered, before  the  reaching  of  the  stage  for  exercise  of  power  under Section 319 CrPC, on the supposition and  premise  that  it  is  pre-trial  when  the  question  of  charge  was  being  examined.   Such  power  of  summoning the new accused has been culled out  from the power exercisable by the Court of Session  under Sections 227 and 228 of the Code, enabling  it to discharge under Section 227 or charge under  Section  228  the  accused  persons  before  it  and  while so to summon another accused involved in  the  commission  of  the  crime,  prima  facie  appearing from the material available on record of  the  case.   Thus  at  a  stage posterior  to  the  stage  envisaged under Section 319, the Court of Session  has been held empowered to summon an accused if  a prima facie case is made out from the material  available on the record.”

15. In the case of Rakesh & Anr. v. State of Haryana [(2001) 6 SCC 248],  

it was held :

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“11. In support of his contention, learned Senior  Counsel Mr. Ranjit Kumar referred to the decision  of this Court in Joginder Singh v. State of Punjab  (1979)  1  SCC  345.   In  our  view,  this  decision  nowhere lays down that before a person is added  as accused in a sessions trial  case,  he should be  permitted  to  cross-examine  the  witnesses  whose  evidence  is  recorded.   On  the  contrary,  it  lays  down that once the Sessions Court is seized of the  matter  as  a result  of the committal  order  against  some accused the power under Section 319(1) can  come into play and the court can add any person,  not an accused before it, as an accused and direct  him to  be  tried  along  with  other  accused.   The  Court has further observed that the very purpose of  enacting  Section  319(1)  clearly  shows  that  even  persons  who  have  been  dropped  by  the  police  during  investigation  but  against  whom  evidence  showing  their  involvement  in  the  offence  comes  before  the  criminal  court  are  included  in  the  expression ‘any person not being the accused’.”

16. We must, however, at this stage also place on record that this Court, in  

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

[(1983) 1 SCC 1], opined that the power under the said provision must be  

exercised  very  sparingly  and  not  as  a  matter  of  course.   In  the  case  of  

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

Court even opined that such a power can be exercised even without there  

being a  committal  order  passed against  a person.   [see also  Lok Ram v.  

Nihal Singh & Anr. [(2006) 10 SCC 192]; Shashikant Singh v. Tarkeshwar  

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Singh & Anr. [(2002) 5 SCC 738];  Michael  Machado & Anr. v.  Central  

Bureau of Investigation & Anr. [(2000) 3 SCC 262]; Palanisamy Gounder &  

Anr. v.  State  represented  by  Inspector  of  Police [(2005)  12  SCC  327];  

Kailash Dwivedi v.  State of M.P. & Anr. [(2005) 11 SCC 182] and Mohd.  

Shafi v. Mohd. Rafiq & Anr. [2007(5) SCALE 611].

17. The High Court, in our opinion, however,  has committed a serious  

error in proceeding on the premise that mere existence of a prima facie case  

would be sufficient to exercise the court’s jurisdiction under Section 319 of  

the  Code.   We  have  noticed  hereinbefore  the  importance  of  the  word  

‘appears’.   What  is,  therefore,  necessary  for  the  court  is  to  arrive  at  a  

satisfaction  that  the  evidence  adduced  on  behalf  of  the  prosecution,  if  

unrebutted, would lead to conviction of the persons sought to be added as  

accused in the case.   

18. The High Court furthermore committed a serious error insofar as it  

failed to take into consideration that when the order dated 29th May 2003  

was passed, the learned Judge was in a position to consider the evidence  

brought  on  record  including  the  cross-examination  of  the  prosecution  

witnesses.  The High Court did not arrive at any finding that a case has been  

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made out for exercise of such an extraordinary jurisdiction which, in terms  

of the judgments of this Court, is required to be exercised very sparingly.   

19. For the reasons aforementioned, the impugned judgment is set aside.  

The appeal is allowed.

……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Cyriac Joseph]

New Delhi; May 13, 2009.

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