Brindaban Das &
Ors. Vs. State of West Bengal  INSC 16 (7 January 2009)
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 State of West
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 2 302 of the Indian Penal Code (G.R. case No.450 of 2002).
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 3 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.
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 4 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.
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 5 the
Investigating Officer, the trial Court erred in issuing the summons under
Section 319 of the Code on the same materials.
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.
is against the said order of the High Court that the present appeal has been
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 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.
7 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.
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 8
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.
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
9 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.
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 1 0 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.
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 1 1 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
the basis of his aforesaid submissions, Mr. Ghosh urged that the Trial Court
ought 1 2 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.
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 1
3 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
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.
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 1 4 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.
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 1 5 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.
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 1 6 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.
fulcrum on which the invocation of Section 319 Cr.P.C. rests is whether the
summoning of persons other than the named 1 7 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.
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, 1 8 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
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.
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 1 9 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.
appeal is accordingly allowed.