Sarabjit Singh &
ANR. Vs. State of Punjab & ANR.  INSC 1042 (12 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 998 OF 2009
[Arising out of SLP (Crl.) No. 5781 of 2006] Sarabjit Singh & Anr.
...Appellant Versus State of Punjab & Anr. ...Respondents WITH CRIMINAL
APPEAL NO. 999 OF 2009 [Arising out of SLP (Crl.) No. 19 of 2007] 2
S.B. SINHA, J :
and/ or application of the provisions of Section 319 of the Code of Criminal
Procedure, 1973 (for short "the Code") is in question in these
appeals. They arise out of a judgment and order dated 12.10.2006 passed by a
learned Single Judge of the Punjab and Haryana High Court in Crl. Rev. No. 2073
of 2006 dismissing the revision petition filed by the appellants herein from an
order dated 28.09.2006 passed by the Additional Sessions Judge, Gurdaspur
whereby application of prosecution under Section 319 of the Code was allowed
and the appellants were summoned to face trial for offences under Section
148/302 read with Section 149 of the Indian Penal Code.
First Information Report was lodged by Balwant Singh (PW-1) alleging that while
working on the fields at about 11.30 a.m. on 02.05.2005, he found Rajwinder Singh
alias Raju being surrounded by the accused. He was attacked by them by their
respective weapons in their hands, till they became sure of his death. After
the accused left the place of occurrence, PW-1 went near Raju and made him
drink water. Sarabjit Singh and Saroop Singh, appellants herein, while standing
near the village, shouted that Raju had not died whereupon Gurdip Singh,
appellant in Criminal Appeal arising out of SLP (Crl.) No.19 of 2007, Hira
Singh and Bhagwant Masih again came near him and caused further physical
injuries to him. They thereafter fled away.
of the accused, however, in that case is that the deceased Raju was a vagabond
having numerous criminal cases registered against him and a large number of
proceedings were initiated. He was catched by a mob of villagers being fed up
with his activities. Allegations against the appellants have been levelled
because of political rivalry.
investigating officer upon completion of the investigation filed a chargesheet
against ten persons and filed a final report against the appellants herein. The
accused persons were standing their trial.
the learned Sessions Judge, Balwant Singh (PW-1) was examined. He repeated the
allegations contained in the First Information Report.
only on or on the basis of the said statements made by PW-1, an application for
summoning the appellants in terms of Section 319 of the Code was filed.
the basis of the said statements alone, the application filed by the first
informant under Section 319 of the Code was allowed, stating:
"7. In view of
the specific attribution to Gurdip Singh, Sarabjit Singh and Sarup Singh, it is
prima facie established that they were members of an unlawful assembly having
the common object to kill Rajwinder Singh and they are liable to face the trial
u/s 148, 302 read with Section 149 I.P.C.
Hence, accused Gurdip
Singh son of Sohan Singh, Sarabjit Singh son of Nazir Singh and Sarup Singh son
of Mohan Singh, residents of village Kaile Kalan be summoned through
non-bailable warrant, of arrest for 17.10.06 to face trial u/s 148, 302 read
with Section 149 I.P.C. alongwith the other accused. Singh accused Gurpreet
Singh alias Gopi is already facing the trial, therefore, there is no need to issue
process against him. With this, the application u/s 319 Cr. P.C. is disposed of
accordingly. Papers be attached with the trial file."
hereinbefore, appellants' revision application thereagainst before the High
Court was dismissed.
Jasbir Singh Malik, learned counsel appearing on behalf of the appellants,
would contend that the power of a court under Section 319 of the Code being
exceptional in nature, the courts below must be held to have committed a
manifest error in summoning the appellants for standing trial as additional
accused although they were found to be innocent during investigation.
A.K. Mehta, learned counsel appearing on behalf of respondents, on the other
hand, supported the impugned judgment.
319 of the Code reads as under:
"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 has 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
detained 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 the Court took cognizance of the offence upon which the
inquiry or trial was commenced."
extent of the power of a Sessions Judge to summon persons other than the
accused to stand trial in a pending case came up for consideration before this
Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi [(1983) 1 SCC 1].
Therein, this Court while holding that the provision confers a discretionary
jurisdiction on the court added "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".
of the aforementioned provision, in the light of the said decision, came up for
consideration before various courts from time to time.
We may take note of
some of them.
In Shashikant Singh
v. Tarkeshwar Singh [(2002) 5 SCC 738], this Court held:
7 "9. 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 that
stage, the court would consider that such a person could be tried 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 mandatorily to be commenced afresh and the witnesses reheard. 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 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
the 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."
8 It was furthermore
Magistrate is empowered to take cognizance of an offence in the manner provided
under Section 190 of the Code. Section 209 enjoins upon a Magistrate to commit
the case to the Court of Session when it appears to the Magistrate that the
offence is triable exclusively by the Court of Session. Section 193 provides
for the power of the Court of Session to take cognizance of any offence. It
uses the expression "cognizance of any offence" and not that of
"offender". These three provisions read with Section 319 make it
clear that the words "could be tried together with the accused" in
Section 319 are only for the purpose of finding out whether such a person could
be put on trial for the offence..."
In Rakesh v. State of
Haryana [(2001) 6 SCC 248], this Court held:
"13. Hence, it
is difficult to accept the contention of the learned counsel for the appellants
that the term "evidence" as used in Section 319 of the Criminal
Procedure Code would mean evidence which is tested by cross-examination. The
question of testing the evidence by cross- examination would arise only after
addition of the accused. There is no question of cross-examining the witness
prior to adding such person as accused. The section does not contemplate an
additional stage of first summoning the person and giving him an opportunity of
cross-examining the witness who has deposed against him and 9 thereafter deciding
whether such person is to be added as accused or not. The word
sub-section (1) is used in a comprehensive and broad sense which would also
include the material collected by the investigating officer and the material or
evidence which comes before the court and from which the court can prima facie
conclude that the person not arraigned before it is involved in the commission
of the crime."
In Ranjit Singh v.
State of Punjab [(1998) 7 SCC 149], this Court opined:
"20. Thus, once
the Sessions Court takes cognizance of the offence pursuant to the committal
order, the only other stage when the court is empowered to add any other person
to the array of the accused is after reaching evidence collection when powers
under Section 319 of the Code can be invoked. We are unable to find any other
power for the Sessions Court to permit addition of new person or persons to the
array of the accused. Of course it is not necessary for the court to wait until
the entire evidence is collected for exercising the said powers.
21. But then one more
question may survive. In a situation where the Sessions Judge notices from the
materials produced but before any evidence is taken, that any other person
should also have necessarily been made an accused (without which the framing of
the charge would be defective or that it might lead to a miscarriage of
justice), is the Sessions Court completely powerless to deal with such a
contingency? One such situation is cited by the learned Judges through an illustration
narrated in Kishun Singh case1 as follows: (SCC pp. 29- 30, para 15)
"[W]here two persons A and B attack and kill X and it is found from the
material placed before the Judge that the fatal blow was given by A whereas the
blow inflicted by B had fallen on a non-vital part of the body of X. If A is
not challaned by the police, the Judge may find it difficult to charge B for
the murder of X with the aid of Section 34 IPC.
If he cannot summon
A, how does he frame the charge against B?"
22. Another instance
can be this. All the materials produced by the investigating agency would
clearly show the positive involvement of a person who was not shown in the
array of the accused due to some inadvertence or omission. Should the court
wait until evidence is collected to get that person arraigned in the case?
23. Though such
situations may arise only in extremely rare cases, the Sessions Court is not
altogether powerless to deal with such situations to prevent a miscarriage of
justice. It is then open to the Sessions Court to send a report to the High
Court detailing the situation so that the High Court can in its inherent powers
or revisional powers direct the committing Magistrate to rectify the committal
order by issuing process to such left-out accused. But we hasten to add that
the said procedure need be resorted to only for rectifying or correcting such
This Court in Lok Pal
v. Nihal Singh [(2006) 10 SCC 192] observed:
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.
It was furthermore
"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
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..."
In Mohd. Shafi v.
Mohd. Rafiq & Anr. [2007 (5) SCALE 611], this Court held:
thus, a trial court seeks to take recourse to the said provision, the requisite
ingredients therefore must be fulfilled. Commission of an offence by a person
not facing trial, must, therefore, appears to the court concerned. It cannot be
ipse dixit on the part of the court. Discretion in this behalf must be
judicially exercised. It is incumbent that the court must arrive at its
satisfaction in this behalf.
*** *** ***
12. The Trial Judge,
as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was
required to arrive at his satisfaction. If he thought that the matter should
receive his due consideration only after the cross-examination of the witnesses
is over, no exception thereto could be taken far less at the instance of a
witness and when the State was not aggrieved by the same."
The decision of this
Court in Mohd. Shafi (supra), however, has been explained in Lal Suraj @ Suraj
Singh and Anr. v. State of Jharkhand [2008 (16) SCALE 276], stating:
principle of strong suspicion may be a criterion at the stage of framing of
charge as all the materials brought during investigation were required to be
taken into consideration, but, for the purpose of summoning a person, who did
not figure as accused, a different legal principle is required to be applied. A
court framing a charge would have before it all the materials on record which
were required to be proved by the prosecution. In a case where, however, the
court exercises its jurisdiction under Section 319 of the Code, the power has
to be exercised on the basis of the fresh evidence brought before the court.
There lies a fine but
attention, however, has been drawn to a Two-Judge Bench decision of this Court
in Hardeep Singh v. State of Punjab & Ors. [JT 2008 (12) SC 7] wherein
doubting the correctness of Mohd. Shafi (supra), two questions have been
referred to a larger Bench, which are as under:
"(1) When the
power under Sub-section (1) of Section 319 of the Code of addition of accused
can be exercised by a Court? Whether application under Section 319 is not
maintainable unless the cross-examination of the witness is complete? (2) What
is the test and what are the guidelines of exercising power under Sub-section
(1) of Section 319 of the Code? Whether such power can be exercised only if the
Court is satisfied that the accused summoned in all likelihood would be
Mr. Mehta would also
draw our attention to Bholu Ram v. State of Punjab & Anr. [JT 2008 (9) SC
Whereas Hardeep Singh
(supra) is not a judgment in that sense of the term; in Bholu Ram (supra) the
principal question which arose for consideration of this Court was as to
whether an order passed under Section 319 of the Code can be recalled which was
answered in the negative.
the purpose of this case, it is not necessary to proceed on the basis that the
decision in Mohd. Shafi (supra) should be applied in all fours.
have noticed hereinbefore that Mohd. Shafi (supra) has been explained in Lal
Suraj (supra) holding that a power under Section 319 of the Code can be
exercised only on the basis of fresh evidence brought before it and not on the
basis of the materials which had been collected during investigation
particularly when a final form was submitted and the same had been accepted by
the Magistrate concerned. There is no gainsaying that the power under Section
319 of the Code is an extraordinary power which in terms of the decision of
this Court in Municipal Corporation of Delhi (supra) is required to be exercised
sparingly and if compelling reasons exist for taking cognizance against whom
action has not been taken.
provision of Section 319 of the Code, on a plain reading, provides that such an
extraordinary case has been made out must appear to the court. Has the
criterion laid down by this Court in Municipal Corporation of Delhi (supra)
been satisfied is the question? Indisputably, before an additional accused can
be summoned for standing trial, the nature of the evidence should be such which
would make out grounds for exercise of extraordinary power. The materials
brought before the court must also be such which would satisfy the court that
it is one of those cases where its jurisdiction should be exercised sparingly.
15 We may notice
that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460],
this Court opined:
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..."
An order under
Section 319 of the Code, therefore, should not be passed only because the first
informant or one of the witnesses seeks to implicate other person(s).
Sufficient and cogent reasons are required to be assigned by the court so as to
satisfy the ingredients of the provisions. Mere ipse dixit would not serve the
purpose. Such an evidence must be convincing one at least for the purpose of
exercise of the extraordinary jurisdiction.
aforementioned purpose, the courts are required to apply stringent tests; one
of the tests being whether evidence on record is such which would reasonably lead
to conviction of the person sought to be summoned.
observation of this Court in Municipal Corporation of Delhi (supra) and other
decisions following the same is that mere existence of a prima facie case may
not serve the purpose. Different standards are required to be applied at
different stages. Whereas the test of prima facie case may be sufficient for
taking cognizance of an offence at the stage of framing of charge, the court
must be satisfied that there exists a strong suspicion. While framing charge in
terms of Section 227 of the Code, the court must consider the entire materials
on record to form an opinion that the evidence if unrebutted would lead to a
judgment of conviction. Whether a higher standard be set up for the purpose of
invoking the jurisdiction under Section 319 of the Code is the question. The
answer to these questions should be rendered in the affirmative. Unless a
higher standard for the purpose of forming an opinion to summon a person as an
additional accused is laid down, the ingredients thereof, viz., (i) an
extraordinary case and (ii) a case for sparingly exercise of jurisdiction,
would not be satisfied.
therefore, are of the opinion that the impugned judgment cannot be sustained
which is set aside accordingly and the matter is remitted to the learned
Sessions Judge for consideration of the matter afresh.
appeals are allowed with the aforementioned directions.