REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    998              OF 2009 [Arising out of SLP (Crl.) No. 5781 of 2006]

Sarabjit Singh & Anr. …Appellant

Versus

State of Punjab & Anr. …Respondents

WITH

CRIMINAL APPEAL NO.     999             OF 2009 [Arising out of SLP (Crl.) No. 19 of 2007]

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. Interpretation and/ or application of the provisions of Section 319 of  

the Code of Criminal Procedure, 1973 (for short “the Code”) is in question  

in these appeals.  They arise out of a judgment and order dated 12.10.2006  

passed by a learned Single Judge of the Punjab and Haryana High Court in  

Crl.  Rev.  No. 2073 of 2006 dismissing  the  revision  petition filed by the  

appellants herein from an order dated 28.09.2006 passed by the Additional  

Sessions  Judge,  Gurdaspur  whereby  application  of  prosecution  under  

Section 319 of the Code was allowed and the appellants were summoned to  

face trial for offences under Section 148/302 read with Section 149 of the  

Indian Penal Code.

3. A First  Information  Report  was  lodged  by Balwant  Singh  (PW-1)  

alleging that while working on the fields at about 11.30 a.m. on 02.05.2005,  

he found Rajwinder Singh alias Raju being surrounded by the accused.  He  

was attacked by them by their respective weapons in their hands, till they  

became sure of his death.  After the accused left the place of occurrence,  

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PW-1 went near Raju and made him drink water.  Sarabjit Singh and Saroop  

Singh, appellants herein, while standing near the village, shouted that Raju  

had not died whereupon Gurdip Singh, appellant in Criminal Appeal arising  

out of SLP (Crl.)  No.19 of 2007, Hira Singh and Bhagwant Masih again  

came near him and caused further physical injuries to him.  They thereafter  

fled away.  

4. Contention of the accused, however, in that case is that the deceased  

Raju  was a  vagabond  having  numerous  criminal  cases  registered  against  

him and a large number of proceedings were initiated.  He was catched by a  

mob of villagers being fed up with his activities.  Allegations against the  

appellants have been levelled because of political rivalry.   

5. The investigating officer upon completion of the investigation filed a  

chargesheet  against  ten  persons  and  filed  a  final  report  against  the  

appellants herein.  The accused persons were standing their trial.

6. Before  the  learned  Sessions  Judge,  Balwant  Singh  (PW-1)  was  

examined.  He repeated the allegations contained in the First  Information  

Report.

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7. Relying only on or on the basis of the said statements made by PW-1,  

an application for summoning the appellants in terms of Section 319 of the  

Code was filed.

8. On the basis of the said statements alone, the application filed by the  

first informant under Section 319 of the Code was allowed, stating:

“7. In view of the specific attribution to Gurdip  Singh, Sarabjit Singh and Sarup Singh, it is prima  facie  established  that  they  were  members  of  an  unlawful  assembly having the  common object  to  kill Rajwinder Singh and they are liable to face the  trial  u/s  148,  302  read  with  Section  149  I.P.C.  Hence, accused Gurdip Singh son of Sohan Singh,  Sarabjit Singh son of Nazir Singh and Sarup Singh  son  of  Mohan  Singh,  residents  of  village  Kaile  Kalan be summoned through non-bailable warrant,  of arrest for 17.10.06 to face trial u/s 148, 302 read  with  Section  149  I.P.C.  alongwith  the  other  accused.  Singh accused Gurpreet Singh alias Gopi  is  already  facing  the  trial,  therefore,  there  is  no  need to issue process against him.  With this, the  application  u/s  319  Cr.  P.C.  is  disposed  of  accordingly.   Papers  be  attached  with  the  trial  file.”

As  indicated  hereinbefore,  appellants’  revision  application  

thereagainst before the High Court was dismissed.

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9. Mr. Jasbir Singh Malik, learned counsel appearing on behalf of the  

appellants, would contend that the power of a court under Section 319 of the  

Code being exceptional  in nature, the courts below must be held to have  

committed a manifest error in summoning the appellants for standing trial as  

additional  accused  although  they  were  found  to  be  innocent  during  

investigation.   

10. Mr. A.K. Mehta, learned counsel appearing on behalf of respondents,  

on the other hand, supported the impugned judgment.

11. Section 319 of the Code reads as under:

“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.

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(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.”

12. The extent of the power of a Sessions Judge to summon persons other  

than the accused to stand trial in a pending case came up for consideration  

before this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi  

[(1983)  1  SCC 1].   Therein,  this  Court  while  holding  that  the  provision  

confers  a  discretionary  jurisdiction  on  the  court  added  “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”.

 13. Interpretation of the aforementioned provision, in the light of the said  

decision, came up for consideration before various courts from time to time.  

We may take note of some of them.

In  Shashikant Singh v.  Tarkeshwar Singh [(2002) 5 SCC 738], this  

Court held:

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“9.  The  intention  of  the  provision  here  is  that  where in the course of any enquiry into, or trial of,  an  offence,  it  appears  to  the  court  from  the  evidence that any person not being the accused has  committed  any  offence,  the  court  may  proceed  against  him for  the  offence  which he appears  to  have  committed.  At  that  stage,  the  court  would  consider that such a person could be tried together  with the accused who is already before the court  facing the trial. The safeguard provided in respect  of such person is that, the proceedings right from  the beginning have mandatorily to be commenced  afresh  and  the  witnesses  reheard.  In  short,  there  has  to  be  a  de  novo  trial  against  him.  The  provision of de novo trial is mandatory. It vitally  affects the rights of a person so brought before the  court. It would not be sufficient to only tender the  witnesses  for  the  cross-examination  of  such  a  person.  They have  to  be examined afresh.  Fresh  examination-in-chief  and  not  only  their  presentation  for  the  purpose  of  the  cross- examination  of  the  newly  added  accused  is  the  mandate of Section 319(4). The words “could be  tried together with the accused” in Section 319(1),  appear  to  be  only  directory.  “Could  be”  cannot  under these circumstances be held to be “must be”.  The provision cannot be interpreted to mean that  since  the  trial  in  respect  of  a  person  who  was  before the court has concluded with the result that  the newly added person cannot  be tried  together  with the accused who was before the court when  order under Section 319(1) was passed, the order  would  become  ineffective  and  inoperative,  nullifying the opinion earlier formed by the court  on  the  basis  of  the  evidence  before  it  that  the  newly added person appears to have committed the  offence resulting in an order for his being brought  before the court.”

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It was furthermore held:

“14.  A  Magistrate  is  empowered  to  take  cognizance of an offence in the manner provided  under  Section  190  of  the  Code.  Section  209  enjoins upon a Magistrate to commit the case to  the  Court  of  Session  when  it  appears  to  the  Magistrate  that  the  offence  is  triable  exclusively  by the Court of Session. Section 193 provides for  the  power  of  the  Court  of  Session  to  take  cognizance of any offence. It uses the expression  “cognizance  of  any  offence”  and  not  that  of  “offender”.  These  three  provisions  read  with  Section 319 make it clear that the words “could be  tried together with the accused” in Section 319 are  only for the purpose of finding out whether such a  person could be put on trial for the offence…”

In Rakesh v. State of Haryana [(2001) 6 SCC 248], this Court held:

“13. Hence, it is difficult to accept the contention  of the learned counsel  for the appellants that the  term  “evidence”  as  used  in  Section  319  of  the  Criminal  Procedure  Code  would  mean  evidence  which  is  tested  by  cross-examination.  The  question  of  testing  the  evidence  by  cross- examination would arise only after addition of the  accused. There is no question of cross-examining  the  witness  prior  to  adding  such  person  as  accused.  The  section  does  not  contemplate  an  additional stage of first summoning the person and  giving him an opportunity of cross-examining the  witness  who  has  deposed  against  him  and  

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thereafter  deciding  whether  such person is  to  be  added  as  accused  or  not.  The  word  “evidence”  occurring  in  sub-section  (1)  is  used  in  a  comprehensive and broad sense which would also  include the material collected by the investigating  officer and the material or evidence which comes  before  the  court  and  from which  the  court  can  prima facie conclude that the person not arraigned  before  it  is  involved  in  the  commission  of  the  crime.”

In  Ranjit  Singh v.  State of Punjab [(1998) 7 SCC 149], this Court  

opined:

“20.  Thus,  once  the  Sessions  Court  takes  cognizance  of  the  offence  pursuant  to  the  committal  order,  the  only  other  stage  when  the  court is empowered to add any other person to the  array  of  the  accused  is  after  reaching  evidence  collection when powers under Section 319 of the  Code can be invoked. We are unable to find any  other  power  for  the  Sessions  Court  to  permit  addition of new person or persons to the array of  the accused. Of course it is not necessary for the  court to wait until the entire evidence is collected  for exercising the said powers. 21. But then one more question may survive. In a  situation  where  the  Sessions  Judge  notices  from  the materials produced but before any evidence is  taken,  that  any  other  person  should  also  have  necessarily been made an accused (without which  the framing of the charge would be defective or  that it might lead to a miscarriage of justice), is the  Sessions Court completely powerless to deal with  such a contingency? One such situation is cited by  

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the learned Judges through an illustration narrated  in Kishun Singh case1 as follows: (SCC pp. 29- 30, para 15) “[W]here two persons A and B attack and kill X  and it is found from the material placed before the  Judge that the fatal blow was given by A whereas  the blow inflicted by B had fallen on a non-vital  part of the body of X. If A is not challaned by the  police, the Judge may find it difficult to charge B  for the murder of X with the aid of Section 34 IPC.  If he cannot  summon A, how does he frame the  charge against B?” 22. Another instance can be this. All the materials  produced  by  the  investigating  agency  would  clearly show the positive involvement of a person  who was not shown in the array of the accused due  to  some  inadvertence  or  omission.  Should  the  court  wait  until  evidence is  collected to  get  that  person arraigned in the case? 23.  Though  such  situations  may  arise  only  in  extremely  rare  cases,  the  Sessions  Court  is  not  altogether  powerless  to deal  with such situations  to prevent a miscarriage of justice. It is then open  to the Sessions Court to send a report to the High  Court detailing the situation so that the High Court  can  in  its  inherent  powers  or  revisional  powers  direct  the  committing  Magistrate  to  rectify  the  committal order by issuing process to such left-out  accused.  But  we  hasten  to  add  that  the  said  procedure need be resorted to only for rectifying  or correcting such grave mistakes.

  This Court in Lok Pal v. Nihal Singh [(2006) 10 SCC 192] observed:

“…The  court,  while  examining  an  application  under Section 319 of the Code, has also to bear in  mind that there is no compelling duty on the court  

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to proceed against other persons. In a nutshell, for  exercise  of  discretion  under  Section  319  of  the  Code all relevant factors, including those noticed  above, have to be kept in view and an order is not  required to be made mechanically merely on the  ground  that  some evidence  had  come on  record  implicating  the  person sought  to  be added as an  accused.

It was furthermore 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…”  

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

Court held:

“7. 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  

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incumbent  that  the  court  must  arrive  at  its  satisfaction in this behalf.

*** *** ***

12. The Trial Judge, as noticed by us, in terms of  Section  319 of  the  Code  of  Criminal  Procedure  was  required  to  arrive  at  his  satisfaction.  If  he  thought  that  the  matter  should  receive  his  due  consideration only after the cross-examination of  the witnesses is over,  no exception thereto could  be taken far less at the instance of a witness and  when the State was not aggrieved by the same.”

The decision of this Court in Mohd. Shafi (supra), however, has been  

explained in Lal Suraj @ Suraj Singh and Anr. v. State of Jharkhand [2008  

(16) SCALE 276], stating:

“…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  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.”

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14. Our  attention,  however,  has  been  drawn  to  a  Two-Judge  Bench  

decision of this Court in Hardeep Singh v. State of Punjab & Ors. [JT 2008  

(12) SC 7] wherein doubting the correctness of  Mohd. Shafi (supra), two  

questions have been referred to a larger Bench, which are as under:

“(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?”

Mr. Mehta would also draw our attention to  Bholu Ram v.  State of  

Punjab & Anr. [JT 2008 (9) SC 504].

Whereas Hardeep Singh (supra) is not a judgment in that sense of the  

term;  in  Bholu  Ram (supra)  the  principal  question  which  arose  for  

consideration of this Court was as to whether an order passed under Section  

319 of the Code can be recalled which was answered in the negative.

15. For the purpose of this case, it is not necessary to proceed on the basis  

that the decision in Mohd. Shafi (supra) should be applied in all fours.

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16. We  have  noticed  hereinbefore  that  Mohd.  Shafi (supra)  has  been  

explained in Lal Suraj (supra) holding that a power under Section 319 of the  

Code can be exercised only on the basis of fresh evidence brought before it  

and  not  on  the  basis  of  the  materials  which  had  been  collected  during  

investigation particularly when a final form was submitted and the same had  

been accepted by the Magistrate concerned.  There is no gainsaying that the  

power under Section 319 of the Code is an extraordinary power which in  

terms  of  the  decision  of  this  Court  in  Municipal  Corporation  of  Delhi  

(supra) is required to be exercised sparingly and if compelling reasons exist  

for taking cognizance against whom action has not been taken.

17. The  provision  of  Section  319  of  the  Code,  on  a  plain  reading,  

provides that such an extraordinary case has been made out must appear to  

the  court.   Has  the  criterion  laid  down  by  this  Court  in  Municipal  

Corporation of Delhi (supra) been satisfied is the question?  Indisputably,  

before an additional accused can be summoned for standing trial, the nature  

of the evidence should be such which would make out grounds for exercise  

of extraordinary power.  The materials brought before the court must also be  

such which would satisfy the court that it is one of those cases where its  

jurisdiction should be exercised sparingly.      

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We may notice that in  Y. Saraba Reddy v.  Puthur Rami Reddy and  

Anr. [JT 2007 (6) SC 460], this Court opined:

“…Undisputedly,  it  is  an  extraordinary  power  which  is  conferred  on  the  Court  and  should  be  used very sparingly and only if compelling reasons  exist  for  taking  action  against  a  person  against  whom action had not been taken earlier.  The word  “evidence”  in  Section  319  contemplates  that  evidence of witnesses given in Court…”

An order  under  Section  319 of  the Code,  therefore,  should  not  be  

passed  only because  the first  informant  or  one of  the  witnesses  seeks  to  

implicate other person(s).  Sufficient and cogent reasons are required to be  

assigned by the court so as to satisfy the ingredients of the provisions.  Mere  

ipse  dixit would  not  serve  the  purpose.   Such  an  evidence  must  be  

convincing  one  at  least  for  the  purpose  of  exercise  of  the  extraordinary  

jurisdiction.   

For  the  aforementioned  purpose,  the  courts  are  required  to  apply  

stringent  tests;  one of the tests being whether evidence on record is such  

which  would  reasonably  lead  to  conviction  of  the  person  sought  to  be  

summoned.

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18. The  observation  of  this  Court  in  Municipal  Corporation  of  Delhi  

(supra) and other decisions following the same is that mere existence of a  

prima  facie  case  may  not  serve  the  purpose.   Different  standards  are  

required to be applied at different stages.  Whereas the test of prima facie  

case may be sufficient for taking cognizance of an offence at the stage of  

framing  of  charge,  the  court  must  be  satisfied  that  there  exists  a  strong  

suspicion.  While framing charge in terms of Section 227 of the Code, the  

court must consider the entire materials on record to form an opinion that  

the evidence if unrebutted would lead to a judgment of conviction.  Whether  

a  higher  standard  be  set  up  for  the  purpose  of  invoking  the  jurisdiction  

under  Section  319  of  the  Code  is  the  question.   The  answer  to  these  

questions should be rendered in the affirmative.  Unless a higher standard  

for the purpose of forming an opinion to summon a person as an additional  

accused is laid down, the ingredients thereof, viz., (i) an extraordinary case  

and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.   

19. We, therefore, are of the opinion that the impugned judgment cannot  

be sustained which is set aside accordingly and the matter is remitted to the  

learned Sessions Judge for consideration of the matter afresh.

20. The appeals are allowed with the aforementioned directions.   

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………………………….J. [S.B. Sinha]

..…………………………J.     [P. Sathasivam]

New Delhi; May 12, 2009

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