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CASE NO.: Appeal (crl.)  405 of 2006

PETITIONER: Lok Ram

RESPONDENT: Nihal Singh & Anr

DATE OF JUDGMENT: 10/04/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No. 1204 of 2004)

ARIJIT PASAYAT, J.          Leave granted.

Appellant who has been directed to be impleaded as an  accused in terms of Section 319 of the Code of Criminal  Procedure, 1973 (in short the ’Code’) challenges the order  passed by learned Single Judge of the Rajasthan High Court at  Jodhpur.

Background facts are as under:

Respondent No.1-Nihal Singh’s daughters Saroj and  Kanta were married to Ishwar Singh and Bhim Singh, both  sons of Appellant, Lok Ram. Saroj died on 14.9.2001. On  2.9.2001, respondent Nihal Singh filed a complaint at the  Police Station, Fatehabad (Haryana), alleging commission of  offence punishable under Section 406 read with Section 34 of  the Indian Penal Code, 1860 (in short the ’IPC’) and moved an  application for seizure of articles purported to have been given  as dowry. In the complaint it was stated that on 14.9.2001  Saroj, daughter of complainant Nihal Singh died. When his  nephew Mangal Singh went to meet Saroj he learnt that she  had been killed by her husband Ishwar Singh, brother in law- Bhim Singh and father in law-Lok Ram. Kerosene oil was  poured on her and then she was set on fire.  Police registered a  case relating to offences punishable under Section 304(B) and  498 (A) read with Section 34 IPC. On the basis of the aforesaid  report an investigation was started. Stand of the appellant,  Lok Ram was that he was serving at a school at the alleged  time of incident. Statements of various persons were recorded.   During trial, complainant Nihal Singh moved an application  under Section 319 of the Code. By order dated 6.9.2002  learned Sessions Judge rejected the application. On  4.12.2002, trial court convicted Ishwar Singh, Bhim Singh and  their mother for commission of offences punishable under  Section 304 (B) IPC and each was sentenced to undergo  rigorous imprisonment for 7 years.  Against the order dated  6.9.2002 a revision petition was filed.  The High Court by the  impugned judgment directed the trial court to proceed against  the appellant by summoning him.   

In support of the appeal, learned counsel for the  appellant submitted that the true scope and ambit of Section  319 of the Code has not been kept in view. The trial had

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continued to a considerable extent.  The power to summon an  accused is an extra-ordinary power conferred on the court and  is to be used sparingly. Only if compelling reasons exist for  taking cognizance against a person against whom action had  not been taken earlier then only Section 319 of the Code has  to be pressed into service. The trial Court had given ample  reasons for refusal to exercise the power. The High Court  should not have interfered in the matter.

In response, learned counsel for the complainant- respondent No. 1 submitted that the trial court had not kept  the correct parameters in view and, therefore, the High Court  was justified in setting aside the order of the trial court and  directing summons to be issued to appellant.  

In Michael Machado and Anr. v. Central Bureau of  Investigation and Anr. (2000 (3) SCC 262) construing the  words "the court may proceed against such person" in Section  319 of the Code, 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 proceeded  already 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 of the Code, has also to bear in  mind that there is no compelling duty on the court 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.

The above principles were highlighted in Krishnappa v.  State of Karnataka (2004 (7) SCC 792).

The scope and ambit of Sec. 319 of the Code have been  elucidated in several decisions of this Court.  In Joginder  Singh and another v. State of Punjab and another (AIR 1979  SC 339), it was observed:

"6. A plain reading of Sec. 319 (1) which  occurs in Chapter XXIV dealing with general  provisions as to 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;\005\005."

It was further observed in paragraph 9:

"9.  As regards the contention that the phrase  ’any person not being the accused’ occurred in  Sec. 319 excludes from its operation an  accused who has been released by the police  under Sec. 169 of the Code and has been  shown in column No. 2 of the charge sheet, the

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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 Sec. 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."

In Municipal Corporation of Delhi v. Ram Kishan Rohtagi  and Ors. (1983 (1) SCC 2) after referring to the decision in  Joginder Singh’s case (supra), it was 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  un 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."

On a careful reading of Sec. 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. Of course, as evident from the decision  reported in Sohan Lal and others v. State of Rajasthan, (AIR  1990 SC 2158) the position of an accused who has been  discharged stands on a different footing. 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 any person  other than accused has committed an offence he is to be tried

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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. It is to be noted that the trial court rejected the  application only on the ground that the complainant was an  interested witness and therefore, sufficient ground did not  exist to take action against the accused persons. As noted  above though the power is an extra-ordinary and is used only  if compelling reasons exist; the factor which weighed is that  the trial court does not appear to be relevant and, therefore,  the High Court has rightly interfered in the matter. The  impugned judgment does not suffer from any infirmity.  However, we make it clear that we have not expressed any  opinion on the merits of the case.  Since the matter is pending  long the trial court is requested to complete the trial as early  as possible.

The appeal is accordingly dismissed.