Ram Singh & Ors.
Vs. Ram Niwas & ANR.  INSC 1055 (13 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 [Arising
out of SLP (Crl.) No.6723 of 2005] Ram Singh & Ors. .....Appellants Versus
Ram Niwas & Anr. .....Respondents
S.B. Sinha, J.
and application of Section 319 of the Code of Criminal Procedure, 1973 (for
short, `the Code') is in question in this appeal which arises out of a judgment
and order dated 16th November 2005 passed by a learned Single Judge of the High
Court of Rajasthan whereby and whereunder the order dated 29th May 2003 passed
by the learned Upper District & Sessions Judge (Fast Track), Sikar,
refusing to summon the appellants herein as accused, was set aside.
First Information Report (FIR) was lodged by the 1st respondent alleging that
his wife was attacked by nine persons including the five appellants herein. His
mother was also assaulted. When his father rushed to their rescue, he was also
surrounded by them and was assaulted as a result whereof, he expired. Upon
investigation, a final form was submitted in favour of the appellants. A
charge-sheet was filed only against four persons, viz., Kishori, Jagdish,
Sarjit and Sheo.
a counter case had been filed.
application was filed on or about 01st April 1998 in terms of Section 319 of
the Code for summoning the appellants herein as accused.
Before the learned
Upper Distt. & Sessions Judge, a large number of witnesses were examined
and cross-examined on behalf of the accused persons. By reason of an order
dated 29th May 2003, the learned Upper Distt. & Sessions Judge rejected the
said application filed by the 1st respondent herein opining that no case has
been made out therefor. A criminal miscellaneous petition filed by the 1st
respondent before the High Court against the order of the learned Upper Distt.
& Sessions Judge, however, has been allowed by reason of the impugned
3 "The very
ambit of section 319 Cr.P.C. is to empower the trial court to take cognizance
against those persons who are alleged to have been involved in an offence, but
who have not been arrayed as accused by the investigating agency while filing the
charge sheet. Section 319 Cr.P.C.
comes into effect
once the evidence comes trickling in during the course of trial against the
alleged offender. In case there is prima facie case against the alleged
offenders, the Court should take cognizance against them. At the juncture of
taking cognizance, the court should not critically analyze the evidence. For
the purpose of taking cognizance, the existence of a prima facie case is
sufficient. It is only at a later stage that the trial court is called upon to
appreciate the evidence in proper perspective. Moreover, the duty of the court
is not only to protect the innocent, but also to punish the guilty. In case the
jurisdiction under section 319 Cr.P.C. is not exercised properly by the trial
Court, chances are that those who are alleged in the offence might go scot
free. The society cannot be exposed to the dangers created by those who take
law in their own hands.
Considering the fact
that the large number of witnesses have deposed against the respondents No.2 to
6, a prima-facie case does not (sic) exist against them for their involvement
in the alleged offence. Thus, in our opinion, the learned Magistrate should
have exercised the jurisdiction vested in him under section 319 Cr.P.C.
We allow this
petition and direct the learned Addl. Sessions Judge to rehear the arguments of
the learned counsel for the petitioner and the learned counsel for the State
and pass the necessary orders in accordance with section 319 Cr.P.C. within a
period of two weeks from the date 4 of the receipt of the certified copy of
this order and to expeditiously complete the trial as the trial has been
hanging fire since 1996."
Sushil Balwada, learned counsel appearing on behalf of the appellants would
submit that the involvement of the appellants having not been found by the
learned Upper Sessions Judge, the High Court committed a serious error in
passing the impugned judgment.
Sushil Kumar Jain, the learned counsel appearing on behalf of the 1st
respondent, on the other hand, urged that although a final form was filed in
favour of the appellants, the same would not mean that the application for
summoning the accused was impermissible in law.
It was urged that the
learned Upper Sessions Judge committed a serious error insofar as he failed to
take into consideration that existence of a prima facie case alone would
subserve the requirements of the said provision. It was urged that at that
stage, the learned Upper Sessions Judge should not have entered into the arena
of appreciation of evidence.
In this regard, our
attention has been drawn to the statements of various witnesses examined on
behalf of the prosecution prior to the passing of the order dated 29th May
the learned Upper Sessions Judge, the respondent no.1 herein was examined as
P.W.2 on 23rd February 1998. He alleged involvement of the appellants herein in
the incident. He had also attributed certain overt acts on their part, inter
alia, contending that they had assaulted his father with the reverse side of an
axe (farsi). One Ramesh Kumar, brother of the respondent no.1 was also examined
as P.W. 7 on 22nd January 2003.
Kanesh, son of respondent no.1, examined himself as P.W.8 on 22nd January 2003.
Naveen Kumar Singh, learned counsel appearing on behalf of the State would
submit that it was not permissible in law for the learned Upper Sessions Judge
to entertain an application under Section 319 of the Code although they had not
We do not agree.
319 of the Code reads thus :
6 "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."
application under the aforementioned provision would be maintainable not only
during pendency of an inquiry but also in the course of a trial. In the event,
it appears from the evidence that any person, not being an accused, has
committed any offence for which he could be tried together with the accused,
the court may proceed against him for the offence which he appears to have
committed. The provision of Section 319 of the Code confers an extraordinary
power upon a court to summon a person who, at the relevant time, was not being
tried as an accused, subject, of course, to fulfillment of the condition that
it appears to the court that he had committed an offence. A finding to that
effect must be premised on the evidence that had been brought on record.
the court must satisfy itself about the existence of an extraordinary situation
enabling it to exercise an extraordinary jurisdiction.
It is true that the
court is not denuded of its power to exercise the said jurisdiction only
because a person named as an accused in the FIR was not charge-sheeted as a
result whereof no cognizance has been taken against him. What is necessary for
the said purpose is that the person concerned was not being tried as an accused
before the Court at that stage.
Court in the case of Kailash v. State of Rajasthan [2008(3) SCALE 338], has
held that a glance of the provision would suggest that during the trial it has
to appear from the evidence that a person not being an accused has committed
any offence for which such person could be tried together with the accused who
are also being tried. This Court has laid emphasis on the words, `it appears
from the evidence', `any person', and `has committed any offence'. It was
further held that the power under Section 319 has to be essentially exercised
only on the basis of the evidence brought on record of the case. The
discretionary jurisdiction could, therefore, be exercised only after the legal
evidence comes on record and from that evidence it appears that the concerned
person has committed an offence.
the case of Raj Kishore Prasad v. State of Bihar & Anr. [(1996) 4 SCC 495],
this Court opined :
counsel differ however on the other question posed in Kishun Singh case [Kishun
Singh v. State of Bihar(1993) 2 SCC 16]. It was whether a Court of Session, to
which a case is committed for trial by a Magistrate, could, without itself
recording evidence, summon a person not named in the police report presented
under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along
with those named therein; if not in exercise of power conferred by Section 319
of the Code, then under any other provision? The answer given was in the
affirmative, on the basis of Section 193 of the Code, as it presently stands, providing
that once the case is committed to the Court of Session by a Magistrate, the
restriction 9 placed on the power of the Court of Session to take cognizance
of an offence as a Court of Original Jurisdiction gets lifted, thereby
investing the Court of Session unfettered jurisdiction to take cognizance of
the offence which would include the summoning of the person or persons whose
complicity in the crime can prima facie be gathered from the material available
on the record.
It is on this
reasoning that this Court sustained the order of the Court of Session (though
it ostensibly was under Section 319 CrPC terming material of investigation
before it as `evidence') summoning the unnamed accused to stand trial with the
named accused. A stage has thus been discovered, before the reaching of the
stage for exercise of power under Section 319 CrPC, on the supposition and
premise that it is pre-trial when the question of charge was being examined.
Such power of summoning the new accused has been culled out from the power
exercisable by the Court of Session under Sections 227 and 228 of the Code,
enabling it to discharge under Section 227 or charge under Section 228 the
accused persons before it and while so to summon another accused involved in
the commission of the crime, prima facie appearing from the material available
on record of the case. Thus at a stage posterior to the stage envisaged under
Section 319, the Court of Session has been held empowered to summon an accused
if a prima facie case is made out from the material available on the
the case of Rakesh & Anr. v. State of Haryana [(2001) 6 SCC 248], it was
10 "11. In
support of his contention, learned Senior Counsel Mr. Ranjit Kumar referred to
the decision of this Court in Joginder Singh v. State of Punjab (1979) 1 SCC
345. In our view, this decision nowhere lays down that before a person is added
as accused in a sessions trial case, he should be permitted to cross-examine
the witnesses whose evidence is recorded. On the contrary, it lays down that
once the Sessions Court is seized of the matter as a result of the committal
order against some accused the power under Section 319(1) can come into play
and the court can add any person, not an accused before it, as an accused and
direct him to be tried along with other accused. The Court has further observed
that the very purpose of enacting Section 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 expression `any person not being the
must, however, at this stage also place on record that this Court, in the case
of Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.
[(1983) 1 SCC 1],
opined that the power under the said provision must be exercised very sparingly
and not as a matter of course. In the case of Joginder Singh & Anr. v.
State of Punjab & Anr. [(1979) 1 SCC 345], this Court even opined that such
a power can be exercised even without there being a committal order passed
against a person. [see also Lok Ram v. Nihal Singh & Anr. [(2006) 10 SCC
192]; Shashikant Singh v. Tarkeshwar 11 Singh & Anr. [(2002) 5 SCC 738];
Michael Machado & Anr. v. Central Bureau of Investigation & Anr.
[(2000) 3 SCC 262]; Palanisamy Gounder & Anr. v. State represented by
Inspector of Police [(2005) 12 SCC 327];
Kailash Dwivedi v.
State of M.P. & Anr. [(2005) 11 SCC 182] and Mohd. Shafi v. Mohd. Rafiq
& Anr. [2007(5) SCALE 611].
High Court, in our opinion, however, has committed a serious error in
proceeding on the premise that mere existence of a prima facie case would be
sufficient to exercise the court's jurisdiction under Section 319 of the Code.
We have noticed hereinbefore the importance of the word `appears'. What is,
therefore, necessary for the court is to arrive at a satisfaction that the
evidence adduced on behalf of the prosecution, if unrebutted, would lead to
conviction of the persons sought to be added as accused in the case.
High Court furthermore committed a serious error insofar as it failed to take
into consideration that when the order dated 29th May 2003 was passed, the
learned Judge was in a position to consider the evidence brought on record
including the cross-examination of the prosecution witnesses. The High Court
did not arrive at any finding that a case has been made out for exercise of
such an extraordinary jurisdiction which, in terms of the judgments of this
Court, is required to be exercised very sparingly.
the reasons aforementioned, the impugned judgment is set aside.
The appeal is