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CASE NO.: Appeal (crl.)  1082 of 2006

PETITIONER: Anil Singh & Anr

RESPONDENT: State of Bihar & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (CRL) No. 5802 of 2004] WITH CRIMINAL APPEAL NO. 1083\005\005\005\005OF 2006 [Arising out of S.L.P. (CRL) No. 1590 of 2005]

S.B. SINHA, J :

       Leave granted.

       These appeals are directed against a judgment and order dated  8.7.2004 passed by a learned Single Judge of the Patna High Court in  Criminal Miscellaneous No. 33544 of 2001 whereby and whereunder an  application filed under Section 482 of the Code of Criminal Procedure on  behalf of Respondent No. 2 herein has been allowed.

       The question revolves round interpretation of Section 319 of the Code  of Criminal Procedure.  Respondent No. 2 herein lodged a first information  report inter alia against Appellants alleging that in an incident which took  place at 8.30 a.m. on 16.7.1997, one Ranjit Singh (deceased) S/o Dileswara  Singh was shot from behind as a result whereof he sustained bullet injuries.   In the first information report, Appellants herein were specifically named.   Upon an investigation, the Superintendent of Police having come to the  conclusion that they had been falsely implicated, a final form was filed in  their favour.  The said final form as against Appellants was accepted by the  learned Magistrate.  However, as a chargesheet was filed against the other  accused, cognizance was taken against them.   

       Before the learned Sessions Judge, the prosecution examined three  witnesses including the first informant.  They, in their deposition, stated that  Respondents herein with the chargesheeted accused took part in commission  of the offence of murder of Ranjit Singh.

       Navin Kumar Singh (PW-1) in his evidence stated:

"Ranjit Singh, Prahlad Singh were there.  They  were sitting on the shop of Mahender Yadav.   Ranjit and Prahlad went to the shop of Uchit Lal  Mahto for taking tea.  The witnesses state that at  first Prahlad Singh went to take tea.  After some  time, Ranjit was also going to the shop of Uchit  Lal for taking tea.  Ranjit was going from the shop  of Mahender and when he reached at Pakki road,  Pancha Mahto, Anil Singh, Biltu Mahto, Siyavar  Singh reached there from the North side.  Anil  Singh was having a country-made Pistol in his  hand."

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       Prahalad Singh (PW-2) in his deposition stated:

"As Ranjit reached the road from the North, Anil  Singh, Siyavar Singh, Pancha Mahto, Biltu Mahto  came towards Ranjit.  Anil Singh fired from the  country-made Pistol from behind.  On receiving  the bullet shot, Ranjit fell on the road and died  there."

       In cross-examination, he, however, stated:

"10.    There are four persons by the name of Anil  Singh in my village, Anil Singh s/o Sita Sharan,  Anil S/o Upendra, Anil Singh s/o Ram Bujhavan,  Anil Singh S/o Yugal Singh, they are all of my  caste.  I have acquaintance with them.  The house  of Anil Singh s/o Sitasharan Singh is at a distance  of < K.M. from my house.  The house of Mahtos  is at a distance from my house.  I recognize the  faces of all the persons of Mahto Tola.  I do not  know the names of every one.  I know about 100  persons of Mahto Tola by name\005

20.     After coming out of the shop of Uchit Lal, I  ran towards East, West.  I was injured of my own.   I recognize Sanjivan and Hari Narain.  Both of  them are my uncles.  Ranjit Singh was also my  uncle in relation.  I have no relationship with Anil  Singh s/o Sita Sharan Singh.  The house of Anil  Singh is in my Tola\005

28.     I know Biltu Mahto for the past many days.   He was not a leader of the Communist Party."

       Harsh Narain Singh (PW-3), however, stated:

"3.     Anil, Biltu, Siyavar, Pancha Mahto were  coming from North.  Anil came near Ranjit and  shot him dead by the Revolver.  On being hit by  Revolver, Ranjit died on the road.  Siyavar Singh,  Biltu Mahto, Pancha Mahto, asked to kill Prahalad.   Pancha Mahto got ready to kill Prahalad by the  knife and gave a blow on his stomach.  When  Prahalad stopped him, then his left hand was cut.   Prahalad threw the bench and ran away.  I  recognize the accused Pancho Mahto who is  present.  I can recognize on being seen.  There was  no opposition."

       The prosecution thereafter filed an application for summoning  Appellants purported to be in terms of Section 319 of the Code of Criminal  Procedure.  By a judgment and order dated 22.9.2001, the Second Addl.  Sessions Judge dismissed the said application inter alia holding that  Appellants have been found to be innocent as there was doubt as regards  their identity.   

       On an application filed under Section 482 of the Code of Criminal  Procedure by the informant, the High Court, however, opined:

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"In the present case, the Opposite Parties 1 to 3  were named in the first information report and in  the case diary there were sufficient materials  against them, even then the final form was  submitted by the Investigating Officer which was  accepted by the learned Magistrate without  observing the mandatory provisions of law.  Now  at the stage of trial some evidence has come  against them and, as such, the order passed by the  learned trial court is wholly without jurisdiction.   The finding of the learned trial court that identity  of the Opposite Parties 1 to 3 cannot be established  as their parentage is not given is against the  materials on record as in the first information  report and also in the charge-sheet the parentage of  the Opposite Parties 1 to 3 have been given.  In the  deposition the parentage of the Opposite Parties 1  to 3 has also been stated by the prosecution  witnesses.  As such, the petition filed by the  prosecution under Section 319 of the Code should  not have been dismissed on this ground.  As far as  the submission made by the learned counsel  appearing on behalf of Opposite Parties 1 and 2  that rightly or wrongly they were made accused by  an earlier order, which was quashed by this  Hon’ble Court, therefore, they cannot be  summoned under Section 319 of the Code is  concerned, I must say that this argument has no leg  to stand.  Once the order dated 16.8.1998 that  status of the Opposite Parties was not as an  accused and, as such, they can be summoned under  Section 319 of the Code.

       One consideration of the entire materials and  arguments advanced on behalf of the parties I am  of the view that the order impugned is without  jurisdiction.  The order impugned dated 22.9.2001  passed by the IInd Additional Sessions Judge,  Madhubani is quashed.  The trial court is directed  to proceed in the matter in accordance with law."

       Appellants are, thus, before us.

       Mr. Jaideep Gupta, learned senior counsel appearing on behalf of  Appellants, would submit that although there is no bar in law in issuing   summons to an accused, who had been named in the first information report  but had not been sent up for trial, by the court in exercise of its jurisdiction  under Section 319 of the Code of Criminal Procedure, the power of the court  being extraordinary in nature is required to be exercised very sparingly.  It  was contended that the learned Sessions Judge at the later stage of the  proceeding proceeded on the basis that the High Court had issued a direction  upon it to issue processes and, thus, the processes have since been directed  to be issued.

       Mr. Gopal Singh, learned standing counsel appearing on behalf of  Respondent \026 State, on the other hand, would contend that the High Court  cannot be said to have committed any error in passing the impugned  judgment having regard to the evidences brought on records.   

       Section 319 of the Code of Criminal Procedure reads, thus:

"319. Power to proceed against other persons

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appearing to be guilty of offence.\027(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\027 (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."

       As noticed, the jurisdiction of the court to issue processes against a  person who has not been sent up for trial is not disputed.  Processes can also  be issued against such persons who although were named in the first  information report, but were not sent up for trial upon investigation.

       The jurisdiction of the court indisputably is limited.  While it can  exercise an extraordinary power, it is required to be done cautiously.  The  court while issuing the processes should arrive at a reasonable satisfaction  that the prosecution would be able to prove the charges against whom the  processes are sought to be issued.

       The law in this behalf has been laid down in Municipal Corporation of  Delhi v. Ram Kishan Rohtagi and Others [(1983) 1 SCC 1] in the following  terms:

"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 cognisance  against the other person against whom action has  not been taken."

[See also Kishun Singh and Others v. State of Bihar (1993) 2 SCC 16]

       In Michael Machado and Another v. Central Bureau of Investigation  and Another [(2000) 3 SCC 262], this Court opined: "11. The basic requirements for invoking the  above section is that it should appear to the court  from the evidence collected during trial or in the  inquiry that some other person, who is not  arraigned as an accused in that case, has  committed an offence for which that person could  be tried together with the accused already  arraigned. It is not enough that the court  entertained  some doubt, from the evidence, about  the involvement of another person in the offence.  In other words, the court must have reasonable

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satisfaction from the evidence already collected  regarding two aspects. First is that the other person  has committed an offence. Second is that for such  offence that other person could as well be tried  along with the already arraigned accused."

       Yet again in Krishnappa v. State of Karnataka [(2004) 7 SCC 792],  this Court observed:

"9. In Michael Machado v. Central Bureau of  Investigation construing the words "the court may  proceed against such person" in Section 319 CrPC,  this Court held that the power is discretionary and  should be exercised only to achieve criminal  justice and that the court should not turn against  another person whenever it comes across evidence  connecting that other person also with the offence.  This Court further held that a judicial exercise is  called for, keeping a conspectus of the case,  including the stage at which the trial has already  proceeded and the quantum of evidence collected  till then, and also the amount of time which the  court had spent for collecting such evidence. The  court, while examining an application under  Section 319 CrPC, has also to bear in mind that  there is no compelling duty on the court to proceed  against other persons. In a nutshell, it means that  for exercise of discretion under Section 319 CrPC,  all relevant factors, including the one 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."

       The said dicta has been followed by this Court in Kavuluri  Vivekananda Reddy and Another v. State of A.P. and Another [(2005) 12  SCC 432] and Palanisamy Gounder and Another v. State Represented by  Inspector of Police [(2005) 12 SCC 327].

       In Rukhsana Khatoon (Smt.) v. Sakhawat Hussain and Others [(2002)  10 SCC 661], whereto our attention has been drawn by learned standing  counsel, this Court did not law down any law having universal application.   It merely opined that the court may exercise its power under Section 319 of  the Code of Criminal Procedure also in relation to such accused who had  although been named in the first information report, but was not sent up for  trial stating: "6. The learned counsel for the respondents  contended that the High Court was justified in  passing the impugned order and in support of his  contention he has relied upon the decision in  Municipal Corpn. of Delhi v. Ram Kishan Rohtagi.  In our view, there is no substance in his  contention. In that case also, after considering  Section 319 CrPC, this Court held that the said  provision gives ample power to any court to take  cognizance and add any person not being an  accused before it and try him along with other  accused, if there appears during the trial sufficient  evidence indicating his involvement in the offence.  The Court also observed that this power is really  an extraordinary power and should be used very  sparingly."

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       [See also Girish Yadav and Others v. State of M.P. (1996) 8 SCC 186,  at page 197]         The court’s power, as noticed hereinbefore, is not disputed.  The  learned Sessions Judge, however, as has been observed by the High Court,  proceeded on a wrong premise in holding that as no chargesheet was filed as  against Appellants by the police the same was not sufficient to refuse to  issue summons.  The question, which was necessary to be posed in view of  the propositions of law as noticed supra, was as to whether any case has  been made out for exercise of extraordinary jurisdiction by the court keeping  in view the fact as to whether the prosecution would be able to bring home  the charge.  If the court comes to the conclusion having regard to the  materials on record, that the prosecution ultimately may not be able to bring  home the charge as against the persons against whom processes were to be  issued, it would decline to do so.  The court must also take into  consideration the fact as to whether an appropriate case has been made out  for exercise of the extraordinary jurisdiction.

       It may be true that the court at that stage may not enter into the merit  of the matter.  Its opinion in the nature of things would be a prima facie one.   But, the court must also consider that the innocent persons may not be  prosecuted.  The court is not bound by the opinion of the investigating  officer.  It is required to apply the tests on the touchstone of the materials  brought on record.  A balance is required to be maintained.  The court must  pose unto itself a right question.  It is required to scrutinize the materials  more closely.  A power under Section 319 of the Code of Criminal  Procedure is not to be exercised in a mechanical manner.  Only because  some evidence has been brought on record, the same by itself may not be a  ground to issue processes.   

The learned Judge of the High Court by its judgment did not direct  that the processes be issued.  It merely directed the learned Trial Judge to  proceed in the matter in accordance with law.  The same evidently did not  mean that the High Court has already arrived at a conclusion that the  processes must be issued.  The High Court merely laid down a law as the  learned Trial Judge went wrong in formulating the correct question of law.   The High Court, however, did not have any occasion to consider the merit of  the matter.  In that view of the matter, we would remit the matter back to the  learned Trial Judge and direct that the question be considered afresh in the  light of the observations made hereinbefore.  As the case is pending for a  long time, we would request the learned Trial Court to consider the  desirability of disposing the matter as expeditiously as possible.  The appeals  are allowed to the aforementioned extent.