REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1366     OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 39 OF 2001

BHOLU RAM … APPELLANT

VERSUS

STATE OF PUNJAB & Anr. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J.

1. Leave granted.

2. The  present  appeal  is  filed  by  the

appellant-accused against the order passed by

the Additional Sessions Judge, Barnala on March

5, 1998 in Criminal Revision Nos. 11 and 12 of

1997 and confirmed by the High Court of Punjab

&  Haryana  on  November  26,  2006  in  Criminal

Revision Nos. 401 and 402 of 1998.

3. To appreciate the issues raised in the

present  appeal,  few  relevant  facts  may  be

stated.  

4. On August 21, 1986, First Information

Report  (FIR)  No.  87  was  lodged  against  the

appellant for commission of offences punishable

under Sections 409, 420, 467, 468 and 471 of

the Indian Penal Code (IPC).  The allegation in

the FIR was that the appellant was a Clerk in

Government  High  School,  Rurke  Kalan.  He  had

forged signature of Sher Singh-respondent No. 2

herein who was the Head Master-cum-Drawing and

Disbursing  Officer  and  embezzled  substantial

amount of more than Rs. one lakh between 1979

and 1986.  As stated in the FIR, the said fact

came to light when audit was carried out and

report was submitted. Hence, the complaint.

5. According to the appellant, during the

course  of  investigation,  signatures  of

respondent No. 2 were also taken and were sent

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for  examination  but  the  report  on  the  said

examination was never filed by the prosecution

in the proceedings. It was only in the course

of  recording  of  prosecution  evidence  that

certain  witnesses  deposed  against  respondent

No. 2 alleging that it was respondent No. 2 who

had  withdrawn  the  amount  and  signatures

purported to have been forged by the appellant

really tallied with the specimen signatures of

respondent No. 2. In view of the said fact, the

appellant on February 05, 1994 and on January

06, 1996, filed applications under Section 319

of  the  Code  of  Criminal  Procedure,  1973

(hereinafter referred to as ‘the Code’) in the

Court of Judicial Magistrate praying therein to

add respondent No. 2 as an accused and summon

him  being  Head  Master-cum-Drawing  and

Disbursing Officer who had prepared false and

forged  bills, misappropriated  the amount  and

committed fraud on the Government.

6. The  learned  Magistrate,  after

considering the evidence on record, held that

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prima  facie  case  had  been  made  out  against

respondent No. 2 and that he should also be

joined  as  accused.   The  learned  Magistrate

allowed the applications of the appellant and

issued summons to respondent No. 2 by joining

him as accused.

7. Though the order was passed on January

22, 1996, it was not challenged by respondent

No. 2.  The order, however, was challenged by

the State by filing a Revision Petition in the

Court  of Additional  Sessions Judge,  Barnala.

The learned Judge vide an order dated May 06,

1996,  dismissed  the  petition  filed  by

respondent No. 1-State.

8. After a gap of more than eight months

from the order passed by the learned Magistrate

summoning  respondent  No.  2,  he  filed  an

application  on  September  25,  1996  to

review/recall summoning order dated January 22,

1996. He also contended in a separate petition

that he could not be prosecuted in absence of

sanction  as  required  by  Section  197  of  the

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Code.  The learned Magistrate by an order dated

March  12,  1997  dismissed  the  application  of

respondent  No.  2  holding  it  to  be  not

maintainable in view of dismissal of revision

of the State by the Additional Sessions Judge.

9. Being aggrieved by the order passed by

the Judicial Magistrate, respondent No. 2 filed

two  Revision  Petitions  before  the  learned

Additional Sessions Judge.  The learned Judge

allowed the revisions of respondent No. 2 and

set  aside  the  order  dated  January  22,  1996

passed  by  the  Judicial  Magistrate  adding

respondent No. 2 as an accused and summoning

him.  The said order was passed on March 5,

1998.

10. The  appellant  challenged  both  the

orders  by  approaching  the  High  Court  by

instituting  two revision  petitions. The  High

Court,  however, dismissed  both the  revisions

and confirmed the order passed by the learned

Additional Sessions Judge.  The said order is

challenged in the present appeal.

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11. On January 19, 2007, notice was issued

by this Court.  On February 15, 2007, further

proceedings  were  stayed.   Considering  the

controversy and issues involved, the Registry

was  directed  to  place  the  matter  for  final

hearing.  Accordingly,  the  matter  was  placed

before us.

12. We have heard the learned counsel for

the parties.

13. The learned counsel for the appellant

contended that once an order was passed and

summons was issued by the Judicial Magistrate,

he had no power, authority or jurisdiction to

review the said order or recall the summons.

On that ground alone, the orders passed by the

courts below are liable to be set aside.  It

was also submitted that the order passed by the

Judicial Magistrate adding respondent No. 2 and

summoning him was in consonance with Section

319  of  the  Code  and  should  not  have  been

interfered with.  It was urged that such an

order could be passed on an application of any

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party  including  the  accused  and  the  matter

ought to have been decided on merits and the

said order could not have been disturbed by the

revisional Court. It was further submitted that

the Courts below were wrong in invoking Section

197 of the Code and in holding that sanction

was necessary.

14.  It was submitted that even on merits,

the orders passed by the Judicial Magistrate

was in consonance with law and called for no

interference.  It was,  therefore, prayed  that

the  order  passed  by  the  Additional  Sessions

Judge and confirmed by the High Court may be

set aside and the order passed by the Judicial

Magistrate be restored.

15. The learned counsel for the contesting

respondent No. 2, on the other hand, supported

the order passed by the Courts below.  It was

submitted  that the  Additional Sessions  Judge

was  satisfied  that  the  order  passed  by  the

Judicial Magistrate was not in consonance with

law and it could be recalled. Such order was

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not  an  order  of  review,  but  recalling  of

earlier  order  which  was  not  found  legal  or

lawful.  It  was  also  submitted  that  FIR  was

lodged as early as in 1986 and applications for

adding respondent No. 2 as an accused were made

by the appellant-accused in the year 1994 and

1996,  i.e.  after  about  8  to  10  years.  Such

applications,  therefore, could  not have  been

entertained by the Court. Again, the respondent

No.  2 was  admittedly Head  Master-cum-Drawing

and Disbursing Officer and no prosecution could

be launched against him without sanction from

the Government as envisaged by Section 197 of

the Code.  Since no such sanction was obtained,

no prosecution could be launched against him.

16. The  counsel  also  submitted  that  no

application under Section 319 could be filed by

an accused and since the appellant herein was

the  accused,  applications  by  him  were  not

maintainable.  The counsel urged that when the

Additional Sessions Judge allowed the revisions

filed by respondent No. 2 and the said order

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was confirmed by the High Court, this Court may

not  interfere  with  it  in  exercise  of

discretionary jurisdiction under Article 136 of

the Constitution.  It was, therefore, submitted

that the appeal may be dismissed.

17. The  learned  Government  pleader

appearing  for  respondent  No.  1  adopted  the

arguments of learned counsel for respondent No.

2 and submitted that the appeal deserves to be

dismissed.

18. Having heard the learned counsel for

the parties and in the light of the relevant

provisions  of  law  as  also  judicial

pronouncements to which our attention has been

invited by the learned counsel for the parties,

in  our  opinion,  the  appeal  deserves  to  be

allowed.

19. Section  319  of  the  Code  empowers  a

Court to proceed against any person not shown

to  be  an  accused  if  it  appears  from  the

evidence that such person has also committed an

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offence for which he can be tried together with

the accused.

20. 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 had  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 detailed 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

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the  Court  took  cognizance  of  the offence  upon  which  the  inquiry  or trial was commenced.

21. Sometimes a Magistrate while hearing a

case against one or more accused finds from the

evidence that  some  person  other  than  the

accused before him is also involved in that

very  offence.  It  is  only  proper  that  a

Magistrate  should  have  power  to  summon  by

joining such person as an accused in the case.

The primary object underlying Section 319 is

that the whole case against all the accused

should  be  tried  and  disposed  of  not  only

expeditiously but also simultaneously. Justice

and  convenience both  require that  cognizance

against the newly added accused should be taken

in the same case and in the same manner as

against the original accused. The power must be

regarded  and  conceded  as  incidental  and

ancillary to the main power to take cognizance

as part of normal process in the administration

of criminal justice.

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22. It  is  also  settled  law  that  power

under Section 319 can be exercised either on an

application made to the Court or by the Court

suo motu. It is in the discretion of the Court

to take an action under the said section and

the  Court  is  expected  to  exercise  the

discretion  judicially  and  judiciously  having

regard to the facts and circumstances of each

case.

23. In the instant case, an FIR was lodged

against the appellant in August, 1986.  But it

was during the course of trial that it came to

light that signatures of respondent No. 2 were

also taken and were sent for examination and a

report was received showing that the signatures

on  the  basis  of  which  amount  was  withdrawn

tallied with the signatures of respondent No.

2.  The said report, however, was not filed by

the prosecution. It was in these circumstances

that the appellant made applications in 1994

and  in  1996  under  Section  319  of  the  Code

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requesting  the  learned  Magistrate  to  join

respondent No. 2 as accused and to summon him.

24. The contention of the learned counsel

for respondent No. 2 is that the power under

Section 319 of the Code, cannot be exercised

belatedly by the Court. Again, such order can

be made only on the application by the Public

Prosecutor or by some person other than the

accused.  In other words, an application under

Section 319 cannot be filed by a person who is

facing the trial.

25. We  are  unable  to  uphold  the

contentions. We have quoted Section 319 of the

Code.  It  nowhere  states  that  such  an

application can be filed by a person other than

the accused. It also does not prescribe any

time limit within which such application should

be filed in the Court.

26. Let us consider few leading decisions

of this Court on interpretation and application

of the said provision.

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27. Before  three  decades,  in  Joginder

Singh & Anr. v. State of Punjab & Anr., (1979)

1  SCC  345,  a  case  was  registered  against

Joginder Singh, Ram Singh, Bhan Singh, Darshan

Singh and Ranjit Singh for committing various

offences  punishable  under  the  Indian  Penal

Code.  During  the  investigation,  the  police

found Joginder Singh and Ram Singh (appellants

before this Court) to be innocent and, hence, a

charge-sheet  was  submitted  against  the

remaining accused only. The learned Magistrate

after  holding  preliminary  inquiry,  committed

three accused to the Sessions Court for trial.

28. During trial, evidence of some of the

witnesses  was  recorded  who  implicated  the

appellants.  A  Public  Prosecutor,  therefore,

moved an application to summon the appellants

and to try them along with other accused. The

application was granted by the Sessions Court.

The  said  order  was  challenged  by  the

appellants.

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29. It  was,  inter  alia,  contended  on

behalf of the appellants that Section 319 of

the  Code  was  not  attracted  inasmuch  as  the

phrase  “any  person  not  being  the  accused”

occurring therein excluded from its operation

an accused who had been released by the police

under Section 169 of the Code and against whom

no sufficient material was found by the police

during investigation.

30. This  Court  considered  the  relevant

provisions of the Code of Criminal Procedure,

1898 (old Code), Forty-first Report of the Law

Commission, the amendment made in the present

Code  and  held  that  the  Court  could  add  any

person, not an accused before it, as an accused

and direct him to be tried along with the other

accused for the offence or offences the added

accused appears to have committed.

31. The  Court,  after  considering  the

scheme of the provision, observed;

   “A plain reading of Section 319 (1),  which  occurs  in  Chapter  XXIV dealing with general provisions as to

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inquiries  and  trials,  clearly  shows that  it  applies  to  all  the  Courts including a Sessions Court and as such a Sessions Court will have the power to  add  any  person,  not  being  the accused  before  it,  but  against  whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused,…”

32. Interpreting  the  expression  “any

person  not  being  the  accused”,  the  Court

stated;

    “As regards the contention that the phrase "any person not being the accused"  occurring  in  Section  319 excludes from its operation an accused who  has been released by the police under Section 169 of the Code and has been  shown  in  column  No.  2  of  the charge-sheet,  the  contention  has merely  to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like 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  said expression”.    (emphasis supplied) (See  also  Rakesh  v.  State  of  Haryana, (2001) 6 SCC 248

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33. In  Municipal Corporation of Delhi v.

Ram Kishan Rohtagi & Ors., (1983) 1 SCC 1, the

Food  Inspector,  noticing  adulteration  in

‘Morton Toffees’, filed a complaint against the

Company,  its  Managing  Director  as  well  as

Directors  under  the  Prevention  of  Food

Adulteration Act, 1954. The Managing Director

and  Directors  approached  the  High  Court  by

invoking Section 482 of the Code for quashing

of  proceedings  which  was  granted  and  the

proceedings  against  them  were  quashed.  The

question before this Court was whether Section

319 of the Code could be invoked once criminal

proceedings against a person were quashed. 34. Replying  the  question  in  the

affirmative  and  quoting  with  approval

observations  in  Joginder  Singh,  this  Court

said;    “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

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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. We leave the entire matter to the discretion of the court  concerned  so  that  it  may  act according to law.  We would, however, make it plain that the mere fact that the  proceedings  have  been  quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its  discretion  if  it  is  fully satisfied  that  a  case  for  taking cognizance against them has been made out  on  the  additional  evidence  led before it”.

 (emphasis supplied)

35. In  Lok  Ram  v.  Nihal  Singh  &  Anr.,

(2006) 10 SCC 192, again, a similar question

came  up  before  this  Court.  In  Lok  Ram,  one

Saroj  Kumari  was  killed  by  her  in-laws.  A

complaint  was  filed  by  the  father  of  the

deceased against the husband, brother in law

and father in law of Saroj Kumari that all of

them killed the deceased. Police registered a

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case  against  the  said  persons  for  offences

punishable  under  Sections  304-B,  498-A  read

with Section 34, IPC. The case of Lok Ram was

that he was serving in a school and at the time

of incident, he was not present. No charge-

sheet was, therefore, filed against him.

36. During the trial, however, depositions

of witnesses were recorded which revealed that

Saroj Kumari was killed by her husband. Her

brother  in  law  and  father  in  law  (Lok  Ram)

poured kerosene oil on her and she was set on

fire. Father of the deceased, hence, made an

application under Section 319 of the Code to

add Lok Ram as accused which was rejected by

the trial Court. Meanwhile, the trial proceeded

further against the other accused and they were

convicted. The High Court directed the trial

Court  to  proceed  against  Lok  Ram.  The  said

order was challenged by Lok Ram in this Court.

37. Dismissing  the  appeal,  referring  to

earlier decisions of this Court on the point

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and explaining the scope of Section 319 of the

Code, the Court stated;

    “On  a  careful  reading  of Section 319 of the Code as well as the  aforesaid  two  decisions,  it becomes clear that the trial court has  undoubted  jurisdiction  to  add any  person  not  being  the  accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the  proceeding  on  the  evidence adduced  that  the  persons  who  have not been arrayed as accused should face  the  trial.  It  is  further evident that such person even though had  initially  been  named  in  the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused  only  on  the  basis  of evidence adduced before it and not on the basis of materials available in  the  charge-sheet  or  the  case diary,  because  such  materials contained in the charge sheet or the case  diary  do  not  constitute evidence”.

38. Construing  the  provision  liberally,

the Court proceeded to state;

   “Power under Section 319 of the Code can be exercised by the Court suo  motu  or  on  an  application  by someone including  accused  already before it. If it is satisfied that

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any  person  other  than  accused  has committed  an  offence  he  is  to  be tried together with the accused. The power  is  discretionary  and  such discretion  must  be  exercised judicially  having  regard  to  the facts and circumstances of the case. 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. Under sub- section  (4)(1)(b)  of  the  aforesaid provision,  it  is  specifically  made clear that it will be presumed that newly  added  person  had  been  an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section  (4)(1)(b)  a  legal fiction  is  created  that  cognizance would be presumed to have been taken so  far  as  newly  added  accused  is concerned”.  (emphasis supplied)

39. In  Shashikant  Singh  v.  Tarkeshwar

Singh  &  Anr.,  (2002)  5  SCC  738,  during  the

pendency of trial of an accused, another person

was summoned by the trial Court under Section

319 of the Code. But by the time he could be

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brought before the Court, the trial against the

accused was over. The question was whether such

a person could be summoned and tried for the

offence for which he was summoned.  This Court

held that the words “should be tried together

with  the  accused”  were  merely  directory  and

such  a  person  could  be  tried  even  after

conclusion of trial of the main accused.

The Court stated;

    “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  the stage, the Court would consider that such a person could be fried 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 mandatory to be commenced afresh and the  witnesses  re-heard.  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

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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 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”.

40. In our opinion, therefore, the learned

Magistrate  had  power  and  jurisdiction  to

entertain applications filed by the appellant-

accused under Section 319 of the Code and to

issue summons to respondent No. 2 by adding him

as accused. The said order could not be said to

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be  illegal,  unlawful  or  otherwise

objectionable.

41. The next question is whether an order

passed by a Court could be recalled?  Before

the Courts below as also before us, the learned

counsel  for  respondent  No.  2  urged  that  an

order passed by a Magistrate could be recalled.

42. In support of the submission, reliance

was placed by the counsel on a two-Judge Bench

decision of this Court in K.M. Mathew v. State

of Kerala & Anr.,  (1992) 1 SCC 217. In that

case, the appellant was the Editor-in-Chief of

a  daily  newspaper.  A  complaint  was  filed

against him and others alleging commission of

offence punishable under Section 500 read with

Section 34, IPC. The Magistrate examined the

complainant on oath and issued summons to the

accused.  The Chief Editor appeared before the

Court and prayed for dropping of proceedings

against  him  by  recalling  the  order  on  the

ground that there was no allegation as to how

he was responsible for publication of news item

24

alleged  to  have  caused  defamation  of  the

complainant.  The Magistrate accepted the plea

and dropped the proceedings so far as Chief

Editor  was  concerned.  The  complainant

challenged the said order by filing a revision

in the High Court which was allowed. The Chief

Editor  questioned  correctness  of  the  order

passed by the High Court.

43. The  issue  before  this  Court  was

whether the Magistrate had power to recall an

order of summoning the accused.  Considering

the relevant provisions of the Code, the Court

held  that  an  order  of  summoning  an  accused

could be recalled by the Magistrate. Such order

is merely an interim order and not a judgment

and  recalling  thereof  would  not  amount  to

review.

44. The Court stated;

  “It is open to the accused to plead before the Magistrate that the process against  him  ought  not  to  have  been issued.  The  Magistrate  may  drop  the proceedings  if  he  is  satisfied  on reconsideration of the complaint that there  is  no  offence  for  which  the

25

accused  could  be  tried.  It  is  his judicial  discretion.  No  specific provision required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is  an  interim  order  and  not  a judgment.  It  can  be  varied  or recalled.  The  fact  that  the  process has already been issued is no bar to drop the proceedings if the complaint on  the  very  face  of  it  does  not disclose  any  offence  against  the accused”.        (emphasis supplied)

 45. The correctness of  K.M. Mathew  again

came up for consideration before a three-Judge

Bench  of  this  Court  in  Adalat  Prasad  v.

Rooplal Jindal & Ors.,  (2004) 7 SCC 338.  In

Adalat Prasad,  the accused, after issuance of

summons against him by the trial Magistrate,

filed an application under Section 203 of the

Code for dismissal of complaint recalling the

order of summons. After hearing the parties,

the Magistrate granted the prayer and recalled

the summons. The order of the Magistrate was

challenged by the complainant in the High Court

inter alia  on the ground that the Magistrate

had  no  jurisdiction  to  recall  the  earlier

26

order.  The High Court allowed the petition.

The accused approached this Court. 46. When  the  matter  was  placed  for

preliminary  hearing, the  learned counsel  for

the accused relied on  K.M. Mathew  wherein it

was held that it was open to the Court issuing

summons to recall the order on being satisfied

that  the  issuance  of  summons  was  not  in

accordance  with  law.  The  Court,  however,

doubted the correctness of the view taken in

K.M. Mathew in view of reference made by a two

Judge Bench to a three Judge Bench in Nilamani

Routray v. Bennett Coleman & Co. Ltd., (1998) 8

SCC 594. 47. The  larger  Bench  considered  various

provisions of the Code and held that in absence

of express provision in the Code, the Court has

no  power  to  recall  the  process  issued.  The

larger  Bench, therefore, concluded that  K.M.

Mathew was not correctly decided and overruled

it. 48.  The Court concluded;

27

   “But after taking cognizance of the  complaint  and  examining  the complainant and the witnesses if he is satisfied  that  there  is  sufficient ground to proceed with the complaint he can issue process by way of summons under  section  204  of  the  Code. Therefore  what  is  necessary  or  a condition  precedent  for  issuing process  under  section  204  is  the satisfaction of the Magistrate either by examination of the complainant and the  witnesses  or  by  the  inquiry contemplated  under  section  202  that there  is  sufficient  ground  for proceeding  with  the  complaint  hence issue the process under section 204 of the Code. In none of these stages the Code  has  provided  for  hearing  the summoned accused,  for obvious reasons because  this is only a preliminary stage and the stage of hearing of the accused  would  only  arise  at  a subsequent stage provided for in the latter  provision in the Code. It  is true as held by this Court in Mathew's case  before  issuance  of  summons  the Magistrate  should  be  satisfied  that there  is  sufficient  ground  for proceeding with the complaint but that satisfaction  is to be arrived at by the  inquiry  conducted  by  him  as contemplated  under  Sections  200  and 202, and  the only stage of dismissal of the complaint arises under section 203 of the Code  at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under section 203 of the

28

Code   for  a  reconsideration  of  the material  available  on  record  is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage”. (emphasis supplied)

49. Dealing  with  the  contention  that  an

aggrieved  party  must  have  a  remedy  if  a

Magistrate  takes  cognizance  of  an  offence

without there being any allegation against the

accused, the Court stated;

    “It is true that if a Magistrate takes cognizance of an offence, issues process  without  there  being  any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an  aggrieved  accused  can  obtain  at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review  of  an  order.  Hence  in  the absence  of  any  review  power  or inherent  power  with  the  subordinate criminal  courts,  the  remedy  lies  in invoking Section 482 of Code”.

(emphasis supplied)

50. The law laid down in Adalat Prasad was

followed  and  reiterated  by  this  Court  in

29

subsequent  cases  also  [see  Subramaniam

Sethuraman v. State of Maharashtra,  (2004) 13

SCC 324;  N.K. Sharma v. Abhimanya,  (2005) 13

SCC  213;  Everest  Advertisement v.  State

Government of NCT of Delhi,  (2007) 5 SCC

54].

51. From  the  above  discussion,  it

is  clear  and  well  settled  that  once  an

order  is  passed  by  a  competent  Court

issuing  summons  or  process,  it  cannot  be

recalled.

52. In  the  instant  case,  the

learned  Magistrate  ordered  to  join

respondent  No.  2  as  an  accused  on

applications  filed  by  the  appellant  and

summons was issued to him. A revision filed

by  the  State  against  that  order  was

dismissed by the Additional Sessions Judge.

The Judicial Magistrate, on the facts and

in  the  circumstances,  was  right  in

30

dismissing  recall  application  filed  by

respondent No. 2.  

53. The  revisional  Court,  however,

held  that  the  Magistrate  had  power  to

recall  the  earlier  order  passed  by  him.

For  coming  to  that  conclusion,  the  Court

relied  upon  K.M.  Mathew.  The  learned

Additional  Sessions  Judge  ought  to  have

considered the material fact in its proper

perspective  that  the  order  passed  by  the

learned Magistrate was legal and proper and

because of that, the revision filed against

that order by the State was also dismissed

by the revisional Court.  

54. It  was,  however,  contended  on

behalf of respondent No.2 that even if this

Court  holds  that  the  Judicial  Magistrate

had no power to recall its earlier order

and  dismissal  of  the  application  by  the

learned  Magistrate  was  legal  and  proper,

31

and that a revision petition filed by the

State against the said order was dismissed

by the Additional Sessions Judge, the Court

may  consider  an  important  fact  that  the

respondent  No.  2,  who  was  really  an

‘aggrieved  party’  had  preferred  two

revisions in the Court of Sessions. Hence,

even if it is assumed that the trial Court

did not possess the power of recalling its

order, it would not preclude the revisional

Court  from  exercising  revisional

jurisdiction and quashing and setting aside

an order passed by a subordinate Court if

it was not in accordance with law.

55. Even that ground does not impress us. It is quite possible that in a given case, a

Magistrate may take cognizance of an offence

illegally  or arbitrarily  without there  being

any  material  whatsoever.  Such  illegal  order

should not deprive the accused from contending

32

that  the  learned  Magistrate  was  wrong  and

wholly  unjustified  in  entertaining  the

complaint or taking cognizance of an offence.

In  such  cases,  however,  the  accused  is  not

without  legal  remedy.  If  the  act  of  taking

cognizance, issuance of process or joining of

an innocent person as an accused is totally

uncalled for or ex facie bad in law, it is open

to  the  aggrieved  party  to  invoke  inherent

jurisdiction of the High Court under Section

482 of the Code. If the High Court is satisfied

that the order passed by the Magistrate was

illegal, improper or arbitrary, it can exercise

inherent powers and quash criminal proceedings initiated against the party. But that power is

independent  and  has  nothing  to  do  with

recalling  of  an  earlier  order  by  the  Court

which passed it.

56. But  in  the  present  case,  even  on

merits, we are of the considered view that the

order passed by the learned Magistrate issuing

33

summons to respondent No.2 could not be said to

be unlawful or even improper.

57. When applications under Section 319 of

the  Code  were  preferred  by  the  appellant

praying to join respondent No.2 as an accused

and to issue summons, the learned Magistrate

considered  the  evidence  of  prosecution

witnesses and he was satisfied that depositions

of  witnesses  prima  facie  made  out  offence

against respondent No.2.

58. Considering  the  statements  of  PW2-

Treasury  Officer,  PW14-Senior  Assistant  and

PW11-Assistant Manager, State Bank of Patiala,

the learned Magistrate stated;

   “I have heard the learned counsel for the accused and the Ld. APP for the State and have also gone through the file of this case carefully and it  appears  that  Sher  Singh  who appeared as a prosecution witness in this case was working as a Drawing & Disbursing Officer and Ex. DX audit report discloses that as per Rule 2.2 (II)  of  Punjab  Financial  Rules Volume-I, all transactions should be entered in the cash book as soon as they occur and attested by the head of  the  office  in  token  of  check,

34

further  Rule  2.31(a)  provides  that with a view to enable the head of the office to see that all amounts drawn from the treasury have been entered in the cash book; he should obtain a list of all bills drawn by him during the previous month and trace all the amounts in the cash book. It was held that  embezzlement  pointed  by  the Audit  was  facilitated  due  to  non- observance of procedure regarding the review of the bill book/bill transit register  and  reconciliation  of  the withdrawals  form  the  treasury. Moreover,  the  evidence  led  by  the prosecution also makes it clear that there is prima-facie evidence against Sher Singh, Head Master as PW2 Satpal Mehta,  Treasury Officer  has deposed in his cross-examination that amounts from  the  accounts  were  withdrawn through  Headmaster Rureke  Kalan and in  their  register  signatures  of Headmaster have been entered and his name  is  Sher  Singh  and  they  have passed the bills after comparing the signatures  on  the  Bills  with  the specimen signatures of Sher Singh as the  same  are  in  their  record. Similarly,  PW14  Prem  Sagar,  Senior Assistnat  in  Treasury  Office  has deposed  that  Drawing  &  Disbursing Officer/Authority was Head Master of Rureke Kalan High School and his name was  Sher  Singh  and  on  the  bills signatures of Sher Singh are present which  tally  with  the  specimen signatures.  Similarly,  Prem  Chand, Assistant  Manager  of  State  Bank  of Patiala,  PW11  has  deposed  in  his cross-examination  that  DDO  of  High School, Rure Ke Kalan is Head Master and the amounts are withdrawn after

35

comparison  of  specimen  signatures with the signatures on the bills of DDO. So, from the evidence on record, it is quite clear that prima facie offence  against  Head  Master  Sher Singh  is  made  out  whose  signatures were with the treasury office and the Treasury  Officers  have  passed  the bills  after  comparing  the  specimen signatures with the signatures on the bills and there is no evidence on the record to show that the bills which are  subject matter  of embezzlement, do not bear the signatures of Sher Singh  who  was  DDO  of  Rureke  Kalan High School, so, there is prima facie offence  made  out  to  summon  Sher Singh,  Head  Master  of  Rureke  Kalan High  School  as  accused  u/s  319  of Cr.P.C.  is  hereby  allowed  and  Sher Singh, Head Master of Government High School of Rure Ke Kalan is ordered to be summoning as an accused in this case for 1.3.1996. The application of the accused is hereby allowed and is disposed of accordingly”.

59. We  may  recall  at  this  stage  that  a

revision  filed  by  the  State  (and  not  by

respondent  No.2)  against  the  order  of  the

Magistrate  was  dismissed  by  the  Assistant

Sessions Judge on May 6, 1996.

60. The  Revisional  Court  also  considered

the deposition of aforesaid witnesses and said;

36

“After  going  through  the  impugned order, I find that it was found by trial  Magistrate that  certain bills have been passed by Sher Singh who was  disbursing  officer,  and  PW  14 Prem Sagar, Assistant in the office of  Treasury  deposed  that  drawing disbursing officer was Headmaster of Rureke Kalan High School and his name was Sher Singh who was appended his signatures on the bills which tally with  the  specimen  signatures.  A similar  statement  was  suffered  by Assistant  Manager  of  State  Bank  of Patiala examined as PW11 before Trial Magistrate  and  on  account  of  this evidence read with the statement of PW2 Sat Pal Mehta, Treasury Officer the trial Magistrate found that prima facie offence is made out to summon Sher  Singh  as  an  accused  and accordingly  he  allowed  the application. In view of this, we find that  the  Court  has  exercised  his discretion supported by well reasoned order and the opinion was formed by the  Court  after  recording  evidence and in such like cases some times the real offender who has also committed the  crime  steps  into  the  shoes  of complainant in order to save himself and  in  the  instant  case  also  the evidence  spells  out  that  the  head master  of  the  school  thought  of  a clever device by registering the case against  other  accused  at  his instance”.

37

61. It was after the dismissal of revision

filed by the State that respondent No.2 moved

the Judicial Magistrate to recall the earlier

order. The learned Magistrate held that in view

of  dismissal  of  revision  by  the  Additional

Sessions Judge, an application to recall the

order was not maintainable. But the Court also

stated;

“No  doubt  summoning  order  is  on interim  order  and  not  a  judgment and  the  same  can  be  reviewed  or recalled  by  the  Magistrate. Proceedings against the accused can be dropped of the complaint on face of it does not disclose any offence against him. In the present case, my learned predecessor after going through the statements of examined prosecution  witnesses  found  that there is prima facie offence made out against the accused Sher Singh. Only  thereafter  accused/applicant She  Singh  was  summoned  vide summoning  order  dated  22.1.1996 passed  by  Sh.  Varinder  Aggarwal, PCS, the then Judicial Magistrate, 1st Class, Barnala”.

62. The Revisional court referred to K.K.

Mathew  and held that a summoning order, being

interlocutory in nature, could not be termed as

38

‘judgment’ and there was no bar in recalling

such  order.  The  Assistant  Sessions  Judge

decided the revision in 1998. The law governing

the field at that time was the law laid down in

K.K. Mathew. Adalat Prasad  had not seen the

light of the day. We, therefore, see nothing

wrong on the part of the Assistant Sessions

Judge  in considering,  following and  deciding

the case on the basis of K.K. Mathew.

63. To us, however, the Revisional Court

was not right in interfering with the order

passed by the trial Court. We have seen that

the  learned Magistrate  issued summons  taking

into account evidence led by the prosecution,

particularly,  by  PWs  2,  14  and  11.  The

Revisional Court was thus having depositions of

those  witnesses,  the  order  passed  by  the

learned  Magistrate,  the  order  made  by  the

Assistant Sessions Judge in revision instituted

by the State and also the order passed by the

Magistrate in an application to recall filed by

respondent No.2.

39

64. In  spite of the above material, the

Revisional Court interfered with the order of

the  trial  Court  issuing  summons  by  entering

into merits of the case.

65. The Court said;

       “As stated above, as per prosecution  case  during  the  period from 1979 to 1986 accused Bholu Ram was the Clerk of Govt. High School, Rureke  Kalan  while  Sher  Singh revision/petitioner  appeared  to  be the Head Master of the School during the relevant period. It appears that during that period accused Bholu Ram had  been  drawing  various  payments from the Treasury by submitting false and bogus Mills to the Treasury, but did not appear to have disbursed the amount of those bills to any person and  allegedly  mis-appropriated  the amount of those false and bogus bills for  which  17  separate  challans  in case  FIR  No.  87/86  P.S.  Tappa appeared to have been filed against him  and  he  appeared  to  be  facing prosecution  in  all  those  cases. However,  vide order  dated 22.1.1996 of the Ld. Trial Magistrate in all those  cases  Sher  Singh  revision petitioners  appeared  to  have  been summoned as an accused in those cases on the ground that various bills on the  basis  of  which  those  payments were  drawn  appeared  to  have  been signed by Sher Singh as a Drawing and Disbursing  Officer  and  he  also appeared to be liable in all those cases.  It  appears  that  Sher  Singh

40

revision petitioners has already been examined as a prosecution witness in various  cases.  Though  in  his statement recorded in the Court, he denied  having signed  various bills. It appears that those bills appeared to  have  been  signed  by  him  as  a Drawing and Disbursing Officer. Being a DDO of the School, it was the duty of Sher Singh to sign various bills for presentation in the treasury, but it  was  nevertheless  the  duty  Bholu Ram,  Clerk  to  maintain  the  record regarding  the disbursement  of those amounts.  In  case  Bholu  Ram,  Clerk allegedly  prepared  false  and  bogus bills and obtained the signatures of the  DDO  on  the  same,  be  alone appeared to be liable to account for the payment of those bills when those amounts did not appear to have been disbursed  to  various  persons  as mentioned n various Bills and Bholu ram  allegedly  misappropriated  those amounts.  The  mere  fact  that  Sher Singh signed those bills as Drawing and Disbursing Officer will not make him  criminally  liable  when  the amounts  of  the  various  bills, according  to  the  prosecution  case, were  allegedly  misappropriated  by Bholu Ram alone”.

66. In  our  considered  opinion,  the

Revisional Court was not justified in entering

into correctness or otherwise of the evidence

at  the  stage  of  issuance  of  summons  to

41

respondent  No.2.  Admittedly,  the  Judicial

Magistrate  had considered  a limited  question

whether on the basis of evidence of prosecution

witnesses,  prima facie  offence had been made

out against respondent No.2. He was, on the

basis of such evidence, was satisfied that the

case was required to be gone into and issued a

summons. To us, the Revisional Court was not

right in interfering with that order. Hence,

even  on  that  ground,  the  order  was  not  in

accordance with law.

67. The  leaned  counsel  for  respondent

No.2,  however, submitted  that the  Revisional

Court was right in any case in allowing the

revision  and in  quashing proceedings  against

the said respondent on the ground of absence of

sanction  as  required  by  Section  197  of  the

Code.

68. We express our inability to agree with

the learned counsel. It is settled law that

offences  punishable under  Sections 409,  420,

467,  468,  471  etc.  can  by  no  stretch  of

42

imagination by their very nature be regarded as

having been committed by a public servant while

‘acting or purporting to act in discharge of

official  duty’  [vide  Prakash  Singh  Badal  v.

State of Punjab, (2007) 1 SCC 1]. 69. The  Revisional  Court  was  aware  of

legal position. It was, however, held by the

Court that at the most there was negligence on

the part of respondent No.2 but there was no

criminal  intent  and  he  cannot  be  held

criminally liable. We have already held that

mens rea  can only be decided at the time of

trial and not at the stage of issuing summons.

Moreover, a point as to need or necessity of

sanction can be taken during the conduct of

trial  or  at  any  stage  of  the  proceedings.

Hence, proceedings could not have been quashed

on  the  ground  of  want  of  sanction  in  the

present case. The order of the Revisional Court

deserves to be set aside even on that ground. 70. It was also urged that no applications

by the appellant could have been entertained by

43

the trial Court after about 8 to 10 years from

the date of filing of FIR. Now, an application

under Section 319 of the Code can only be made

to a Court and the Court may exercise the power

under  the  said  Section  if  it  appears  from

evidence that any person other than the accused

had also committed an offence for which he can

be tried together with the accused. It was the

case of the appellant that it was during the

course of prosecution evidence that he came to

know that signatures of respondent No. 2 were

sent for examination, some report was received

by the prosecution which was not produced in

Court and on the basis of such evidence, the

case was made out against respondent No.2. If

in these circumstances, applications were made

and the prayer was granted, we see no infirmity

therein.

71. In our opinion, the Revisional Court,

i.e.  the  Court  of  Additional  Sessions  Judge

ought not to have interfered with the order

passed by the trial court under Section 319 of

44

the Code.  As already noted earlier, the order

of addition of respondent No. 2 as an accused

and  summoning  him  was  not  immediately

challenged by respondent No. 2.  The challenge

was by the State and it failed. After a long

time,  the  respondent  No.  2  approached  the

Revisional Court. Since the order passed by the

Judicial Magistrate was in consonance with law,

the  Additional  Sessions  Judge  should  have

refrained  from  exercising  revisional

jurisdiction.

72. We may examine the role of the State

also. We have already noted earlier that an

order  passed  by  the  Judicial  Magistrate

summoning  respondent  No.2  as  accused  was

challenged by the State by filing a revision in

the  Court  of  Sessions,  which  was  dismissed.

Even  in  this  Court,  the  State  supported

respondent No.2. An affidavit in reply is filed

by the State through Deputy Superintendent of

Police  in  March  2007,  even  before  counter

affidavit  was filed  by contesting  respondent

45

No.2.  Though  in  the  affidavit,  it  is  not

necessary  to  deal  with  law  points  and/or

decisions  rendered  by  a  Court  of  law,  the

deponent refers to and relies on  K.K. Mathew

expressly  overruled  by  a  larger  Bench  in

Adalat Prasad.  No reference at all has been

made to  Adalat Prasad.  It is respondent No.2

who,  in  his  counter,  refers  to  both  the

decisions. In the totality of the facts and

circumstances,  the submission  of the  learned

counsel  for  the  appellant  that  the  State

Authorities  were  helping  and  assisting

respondent No.2 cannot be said to be totally

ill-founded or without substance. The State, in

our  opinion,  could  have  easily  avoided  such

embarrassment.

73. For the foregoing reasons, the appeal

deserves  to  be  allowed  and  is  accordingly

allowed.  The orders passed by the Additional

Sessions Judge and the High Court are set aside

and  the  order  passed  by  the  Judicial

Magistrate,  Barnala  is  restored.   Since  the

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matter pertains to FIR of 1986, the learned

Magistrate is directed to conclude the trial

expeditiously.

74. Before parting with the matter, we may

clarify  that  we  have  not  entered  into

allegations and counter-allegations.  We have

considered  the  facts  and  circumstanced  to  a

limited  extent  to  decide  correctness  of  the

order passed by the Judicial Magistrate under

Section 319 of the Code. We make it clear that

we may not be understood to have expressed any

opinion on the merits of the matter.  As and

when the case will come up for hearing, it will

be decided strictly on its own merits without

being  inhibited  or  influenced  by  any

observations made by the trial court, by the

Additional Sessions Judge, by the High Court or

by us.

75. Ordered accordingly.

………………………………………J. (C.K. THAKKER)

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New Delhi, ………………………………………J. August 29, 2008. (D.K. JAIN)

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