Ram Vs. Nihal Singh & Anr  Insc 197 (10 April 2006)
Pasayat & S.H. Kapadia
out of S.L.P. (Crl.) No. 1204 of 2004) ARIJIT PASAYAT, J.
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.
facts are as under:
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.
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.
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 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.
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.
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.
above principles were highlighted in Krishnappa v. State of Karnataka (2004 (7) SCC 792).
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
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;." It was further observed in paragraph 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 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:-
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.
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.
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
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.
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.
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.
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.
appeal is accordingly dismissed.