IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 9 OF 2009

@ S.L.P. (Crl.) NO.6853 of 2006

Brindaban Das and others               ...Appellants

Vs.

State of West Bengal …Respondent

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. On  an  application  filed  by  the  defacto

complainant under Section 319 of the Code of

Criminal Procedure, the Additional District

and  Sessions  Judge,  Fast  Track  Court,

Jhargram,  by  his  order  dated  14.6.2006

directed the appellants to appear before the

Court on 22.6.2006 in connection with S.T.

Case  No.XXIX/February,  2006  under  Section

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302  of  the  Indian  Penal  Code  (G.R.  case

No.450 of 2002).  

3. The  complainant,  Ashok  Kumar  Pattanayak,

lodged  the  First  Information  Report  at

Gopiballabhpur  PS  on  29.11.2002  at  about

8.25 a.m. alleging that on the same date at

about  7.30/8.00  a.m.   while  his  father,

Ramesh Chandra Pattanayak, was   supervising

the work in his brick field known as Hena

Brick,  he  was  assaulted  on  the  head  from

behind with a spade (kodal),  as a result

whereof he died instantly. The driver of the

truck to whom the deceased was speaking at

the time of assault and the khalasi of the

truck, as well as other labourers, raised a

alarm.  The police also arrived at the spot

and apprehended the assailant, Laxman Murmu.

In  the  FIR  it  was  alleged  that  besides

Laxman  Murmu,  several  other  persons  could

also have been behind the incident. The said

FIR  was  written  by  Ila  Pattanayak,  the

sister of the de-facto complainant, and on

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the  basis  of  the  said  complaint,

Gopiballabhpur PS Case No.48 of 2002 dated

29.11.2002,  was  started  against  the  said

Laxman Murmu  under Section 302 IPC.

4. During the investigation of the above case,

the  appellants herein filed an application

under Section 438 of the Code of Criminal

Procedure before the Sessions Judge and such

prayer for anticipatory bail was allowed on

14.8.2003.  The appellants were directed to

appear  before  the  Sub-Judicial  Divisional

Magistrate,  Jhargram,  and  on  their

appearance before the learned Magistrate on

16.8.2003,  the appellants were released on

temporary bail with a direction to them to

bring  appropriate  orders  from  the  higher

Court. Subsequently, on an application under

Section  439  Cr.P.C.  the  Sessions  Judge,

Paschim  Midnapur,  granted  bail  to  the

appellants  on  23.9.2003.   The  de-facto

complainant  thereupon  filed  an  application

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under  Section  439(2)  Cr.  P.C.  before  the

Sessions  Judge praying for cancellation of

the bail granted to the appellants but the

same  was  rejected  on  16.12.2003.  After

completion  of  investigation  the  police

submitted  charge-sheet  against  the  accused

Laxman  Murmu.  As  there  was  no  material

against  the  appellants  herein  they  were

neither shown in the charge-sheet nor were

they  sent up  for trial  and on  the prayer

made  by  the  Investigating  Officer  the

appellants were discharged from the case by

order dated 30.6.2004.

5. Two years later on 22.6.2006 the trial Court

issued  warrants  of  arrest  against  the

appellants  for  their  alleged  refusal  to

receive  summons  which  had  been  issued  to

them earlier under Section 319 Cr.P.C. The

said order was challenged in the High Court

in  its  revisional  jurisdiction  and  it  was

submitted that once the appellants had been

discharged on the prayer made on behalf of

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the  Investigating Officer, the trial Court

erred in issuing the summons under Section

319 of the Code on the same materials.

6. The High Court came to the conclusion that

there had not been any wilful defiance of

the summons which necessitated the issuance

of  warrant  of  arrest  and  disposed  of  the

revision application with a direction to the

appellants  herein  to  surrender  before  the

Court within 3 weeks from the date of the

order and thereafter to apply for bail. The

execution  of  the  warrant  of  arrest  was

stayed for a period of four weeks for the

said purpose.

7. It  is against  the said  order of  the High

Court that the present appeal has been filed.

8. Mr.  Pradip Ghosh, learned senior advocate,

appearing for the appellants, submitted that

in  the  instant  case  there  was  no  direct

evidence against the appellants which could

have  formed  the  basis  for  issuance  of

summons  under  Section  319  Cr.P.C.  Not  a

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single  eye-witness  had  been  cited  in  the

instant  case  and  the  entire  evidence  was

hear-say  in  nature.   Mr.  Ghosh  submitted

that even the complaint had been lodged by

the  daughter  of  the  deceased  who  had  not

seen the incident and had come to the place

of  occurrence  after  the  offence  had  been

committed  on  being  informed  of  the  same.

Mr.  Ghosh  submitted  that  as  provided  in

Section 60 of the Indian Evidence Act, 1872,

oral evidence must in all cases, be direct

and  when  an  accused  is  discharged  under

Section 245 Cr.P.C., in the absence of any

fresh material, summons under Section 319 of

the  Code could  not be  issued on  the same

evidence.   It  was  submitted  that  in  the

instant  case,  nothing  new  had  surfaced

during the trial and the evidence that was

available before the Court at the stage of

Sections 244 and 245 of the Code continued

to be the only evidence available when the

application under Section 319 had been made.

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Mr. Ghosh submitted that the trial Court had

committed  an  error  in  allowing  the

application  of  the  de-facto  complaintant

under  Section  319  and  summoning  the

appellants  in  the  absence  of  any  evidence

against them within the meaning of Section

60 of the Evidence Act.

9. In this regard, Mr. Ghosh firstly referred

to the oft-repeated decision of this Court

in  the  case  of  Michael  Machado  vs.  CBI,

[2000  (3)  SCC  262]  where  the  essential

conditions for the exercise of power under

Section 319 of Cr.P.C. had been considered

and it was held that the power under Section

319  vested  in  the  Court  should  be  used

sparingly and the evidence on which the same

was  to  be  invoked  should  indicate  a

reasonable  prospect  of  conviction  of  the

persons to be summoned.  This Court went on

to  hold  that  mere  suspicion  of  the

involvement of the person concerned in the

offence was not enough, particularly when a

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large number of witnesses had been examined

and no evidence on which conviction could be

secured had been adduced on behalf of the

prosecution.   It  was  ultimately  observed

that  in  such  a  case  there  could  be  no

justification  for  proceeding  against  the

persons  summoned  under  Section  319  which

would  entail  recommencing  the  whole

proceedings against the newly-added persons

and  re-examining  the  witnesses  already

examined.

10. Mr. Ghosh also referred to the decision of

this  Court  in  Krishnappa  vs.  State  of

Karnataka,  [2004  (7)  SCC  792]  wherein  a

similar question fell for consideration and

again  a  note  of  caution  was  sounded  with

regard  to  invocation  of  the  extraordinary

and  discretionary powers under Section 319

of  the  Code.   Their  Lordships,  while

observing that a person can be summoned even

though proceedings had earlier been quashed

as far as he was concerned, held that the

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invocation  of  the  power  under  Section  319

should not have been resorted to, since the

chances of conviction on the basis of the

evidence on record was remote.  Holding that

the Trial Court was right in rejecting such

prayer, since the case against the appellant

had  been  quashed  nine  years  prior  to

issuance  of  summons  under  Section  319

Cr.P.C., this Court held that the High Court

had  erroneously  reversed  the  order  of  the

Trial  Court  even  though  the  chances  of

conviction  on  the  basis  of  the  evidence

adduced was very remote.

11. The same view was reiterated in the case of

Kuvuluri Vivekananda Reddy vs. State of A.P.

[2005  (12)  SCC  432)  where  a  similar

challenge  to  the  summons  issued  under

Section 319 of the Code was repelled on the

ground that the statement of the witnesses

examined was only general in nature on the

basis of which summons under Section 319 of

the Code ought not to have been issued. Once

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again a note of caution was sounded that the

provisions of Section 319 are required to be

used very sparingly and the summoning of the

appellants after the expiry of eight years,

on the facts and circumstances of the case

and  having  regard  to  the  nature  of  the

deposition of the witnesses, was not called

for.   

12. Mr. Ghosh finally referred to the decision

of  this  Court  in  Municipal  Corporation  of

Delhi vs. Ram Kishan Rastogi, [1983 (1) SCC

1], which is one of the earlier cases where

the scope of Section 319 had been dealt with

and  thereafter  followed  in  the  subsequent

cases,  wherein  it  had  been  observed  as

follows:-

“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  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 respondents  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.’

13. On the basis of his aforesaid submissions,

Mr. Ghosh urged that the Trial Court ought

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not  to  have  issued  summons  against  the

appellants herein under Section 319 Cr.P.C.

without  recording  satisfaction  as  to  the

sufficiency  of  the  evidence  on  record  for

securing a conviction against the appellants.

14. Appearing for the State of West Bengal, Mr.

Avijit  Bhattacharjee  referred  to  the

decision of this Court in Rajender Singh vs.

State of U.P. [2007 (7) SCC 378] where it

was  reiterated  that  although  a  person  may

not  have  been  charge-sheeted  by  the

Investigating  Agency  or  may  have  been

discharged  at  an  earlier  stage,  the  Court

could summon such person to face trial if it

appeared to the Court that an offence had

been committed by such person.  It was held

that while the decision to proceed or not to

proceed against a person under Section 319

of  the Code  was in  the discretion  of the

Trial Court, the said decision would have to

be taken after the Court applied its mind to

the  evidence  before  it.   Disagreeing  with

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the earlier views expressed by this Court,

it was held that the Court’s powers under

Section  319  Cr.P.C  could  not  be  fettered

either  by  calling  it  extraordinary  or  by

stating that it could be exercised only in

exceptional circumstances.

15. Mr.  Bhattacharjee  submitted  that  in  the

light of the aforesaid decision there could

not  be  any  controversy  that  the  Court’s

powers  under  Section  319  Cr.P.C.  was

discretionary  and  unfettered,  though

dependent  on  the  quality  of  the  evidence

adduced  by  the  prosecution.   Mr.

Bhattacharjee  submitted  that  no  case  had

been  made  out  for  interference  with  the

order of the High Court and the appeal was

liable to be dismissed.

16. The  same  submissions  were  advanced  by  Mr.

Puri appearing for the de-facto complainant,

Ashok Pattanayak, who had been impleaded as

respondent No.2 in the present appeal. Mr.

Puri referred to the decision of this Court

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in Bholu Ram vs. State of Punjab [2008 (9)

SCC  140]  wherein  it  had  been  held  that

Section 319 Cr.P.C. empowered the Court to

proceed against any person not shown to be

an accused, if it appeared from the evidence

that  such  person  had  committed  an  offence

for which he could be tried along with the

accused.  It was further observed that when

in  a  case  against  one  or  more  accused  a

Magistrate  finds from the evidence adduced

that some person other than the accused was

also involved in that very offence, it was

only proper that the Magistrate should have

power to summon by joining such person as an

accused in the case.   

17. It  was  further  observed  that  the  primary

object of Section 319 Cr.P.C. is that the

whole case against all the accused should be

tried  and  disposed  of  not  only

expeditiously, but also simultaneously.  The

power  under  Section  319  Cr.P.C.  must  be

regarded  and  considered  as  incidental  and

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ancillary  to  the  main  power  to  take

cognizance as part of the normal process in

the administration of justice and that the

same  could  be  exercised  either  on  an

application  made  to  the  Court  or  by  the

Court suo moto and it was in the discretion

of the Court to take action under the said

Section  having  regard  to  the  facts  and

circumstances of each case.  Mr. Puri also

urged that the decision of the High Court

could  not  be  faulted  and  the  appeal  was

liable to be dismissed.

18. The common thread in most matters where the

use of discretion is in issue is that in the

exercise of such discretion each case has to

be considered on its own set of facts and

circumstances.   In  matters  relating  to

invocation of powers under Section 319, the

Court is not merely required to take note of

the fact that the name of a person who has

not been named as an accused in the F.I.R.

has surfaced during the trial, but the Court

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is  also  required  to  consider  whether  such

evidence would be sufficient to convict the

person  being  summoned.   Since  issuance  of

summons under Section 319 Cr.P.C. entails a

denovo trial and a large number of witnesses

may  have  been  examined  and  their  re-

examination could prejudice the prosecution

and delay the trial, the Trial Court has to

exercise such discretion with great care and

perspicacity.  Although,  a  somewhat

discordant  note  was  struck  in  Rajender

Singh’s case (supra) the views expressed in

the majority of decisions of this Court on

the  point  subscribe  to  the  view  that  the

power  under  Section  319  Cr.P.C.  is  to  be

invoked, not as a matter of course, but in

circumstances  where the invocation of such

power  is  imperative  to  meet  the  ends  of

justice.

19. The  fulcrum   on  which  the  invocation  of

Section  319  Cr.P.C.  rests  is  whether  the

summoning  of  persons  other  than  the  named

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accused would make such a difference to the

prosecution as would enable it not only to

prove  its  case  but  to  also  secure  the

conviction of the persons summoned.

20. In the instant case, on the quality of the

evidence adduced by the prosecution as far

as  the  appellants  are  concerned,  it  is

difficult  to  hold  with  any  amount  of

certainty  that  the  same  would  in  all

probability secure a conviction against the

appellants.   The  evidence  which  seeks  to

connect  the appellants with the commission

of  the  offence  are  hearsay  in  nature.

Section 319 Cr.P.C. contemplates a situation

where  the  evidence  adduced  by  the

prosecution  not  only  implicates  a  person

other  than  the  named  accused  but  is

sufficient for the purpose of convicting the

person to whom summons is issued.  The law

in this regard was explained in Ram Kishan

Rastogi’s case (supra) and as pointed out by

Mr. Ghosh, consistently followed thereafter,

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except  for  the  note  of  discord  struck  in

Rajender Singh’s case (supra).  It is only

logical  that  there  must  be  substantive

evidence against a person in order to summon

him for trial, although, he is not named in

the charge-sheet or he has been discharged

from  the  case,  which  would  warrant  his

prosecution thereafter with a good chance of

his conviction.

21. Since  in  the  present  case,  except  for  a

statement in the F.I.R. that the complainant

strongly  believed  that  the  murder  of  her

father was pre-planned and there were many

conspirators  involved,  there  is  no  direct

evidence of the complicity of the appellants

in the incident, it would not be proper to

subject the appellants to trial by invoking

the provisions of Section 319 Cr.P.C.

22. We,  therefore,  allow  the  appeal  and  set

aside  the  order  dated  14.6.2006  passed  by

the Additional District and Sessions Judge,

F.T.C.,  Jhargram,  issuing  summons  to  the

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appellants under Section 319 Cr.P.C. and the

impugned  order  of  the  High  Court  dated

22.11.2006  directing  the  appellants  to

surrender  before  the  Trial  Court  and  to

apply for bail.

23. The appeal is accordingly allowed.

________________J. (ALTAMAS KABIR)

________________J. (MUKUNDAKAM SHARMA)

New Delhi Dated: 07.01.2009

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