Bholu Ram Vs. State of
Punjab & ANR.  INSC 1456 (29 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1366 OF 2008
ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 39 OF 2001 BHOLU RAM ...
C.K. THAKKER, J.
present appeal is filed by the appellant-accused against the order passed by
the Additional Sessions Judge, Barnala on March 5, 1998 in Criminal Revision
Nos. 11 and 12 of 1997 and confirmed by the High Court of Punjab 2 &
Haryana on November 26, 2006 in Criminal Revision Nos. 401 and 402 of 1998.
appreciate the issues raised in the present appeal, few relevant facts may be
August 21, 1986, First Information Report (FIR) No. 87 was lodged against the
appellant for commission of offences punishable under Sections 409, 420, 467,
468 and 471 of the Indian Penal Code (IPC). The allegation in the FIR was that
the appellant was a Clerk in Government High School, Rurke Kalan. He had forged
signature of Sher Singh-respondent No. 2 herein who was the Head
Master-cum-Drawing and Disbursing Officer and embezzled substantial amount of
more than Rs. one lakh between 1979 and 1986. As stated in the FIR, the said
fact came to light when audit was carried out and report was submitted. Hence,
to the appellant, during the course of investigation, signatures of respondent
No. 2 were also taken and were sent 3 for examination but the report on the
said examination was never filed by the prosecution in the proceedings. It was
only in the course of recording of prosecution evidence that certain witnesses
deposed against respondent No. 2 alleging that it was respondent No. 2 who had
withdrawn the amount and signatures purported to have been forged by the
appellant really tallied with the specimen signatures of respondent No. 2. In
view of the said fact, the appellant on February 05, 1994 and on January 06,
1996, filed applications under Section 319 of the Code of Criminal Procedure,
1973 (hereinafter referred to as `the Code') in the Court of Judicial
Magistrate praying therein to add respondent No. 2 as an accused and summon him
being Head Master-cum-Drawing and Disbursing Officer who had prepared false and
forged bills, misappropriated the amount and committed fraud on the Government.
learned Magistrate, after considering the evidence on record, held that 4
prima facie case had been made out against respondent No. 2 and that he should
also be joined as accused. The learned Magistrate allowed the applications of
the appellant and issued summons to respondent No. 2 by joining him as accused.
the order was passed on January 22, 1996, it was not challenged by respondent
No. 2. The order, however, was challenged by the State by filing a Revision
Petition in the Court of Additional Sessions Judge, Barnala.
The learned Judge
vide an order dated May 06, 1996, dismissed the petition filed by respondent
a gap of more than eight months from the order passed by the learned Magistrate
summoning respondent No. 2, he filed an application on September 25, 1996 to
review/recall summoning order dated January 22, 1996. He also contended in a
separate petition that he could not be prosecuted in absence of sanction as
required by Section 197 of the 5 Code. The learned Magistrate by an order
dated March 12, 1997 dismissed the application of respondent No. 2 holding it
to be not maintainable in view of dismissal of revision of the State by the
Additional Sessions Judge.
aggrieved by the order passed by the Judicial Magistrate, respondent No. 2
filed two Revision Petitions before the learned Additional Sessions Judge. The
learned Judge allowed the revisions of respondent No. 2 and set aside the order
dated January 22, 1996 passed by the Judicial Magistrate adding respondent No.
2 as an accused and summoning him. The said order was passed on March 5, 1998.
appellant challenged both the orders by approaching the High Court by
instituting two revision petitions. The High Court, however, dismissed both the
revisions and confirmed the order passed by the learned Additional Sessions
Judge. The said order is challenged in the present appeal.
January 19, 2007, notice was issued by this Court. On February 15, 2007,
further proceedings were stayed. Considering the controversy and issues
involved, the Registry was directed to place the matter for final hearing.
Accordingly, the matter was placed before us.
have heard the learned counsel for the parties.
learned counsel for the appellant contended that once an order was passed and
summons was issued by the Judicial Magistrate, he had no power, authority or
jurisdiction to review the said order or recall the summons.
On that ground alone,
the orders passed by the courts below are liable to be set aside. It was also
submitted that the order passed by the Judicial Magistrate adding respondent
No. 2 and summoning him was in consonance with Section 319 of the Code and
should not have been interfered with. It was urged that such an order could be
passed on an application of any 7 party including the accused and the matter
ought to have been decided on merits and the said order could not have been
disturbed by the revisional Court. It was further submitted that the Courts
below were wrong in invoking Section 197 of the Code and in holding that
sanction was necessary.
was submitted that even on merits, the orders passed by the Judicial Magistrate
was in consonance with law and called for no interference. It was, therefore,
prayed that the order passed by the Additional Sessions Judge and confirmed by
the High Court may be set aside and the order passed by the Judicial Magistrate
learned counsel for the contesting respondent No. 2, on the other hand,
supported the order passed by the Courts below. It was submitted that the
Additional Sessions Judge was satisfied that the order passed by the Judicial
Magistrate was not in consonance with law and it could be recalled. Such order
was 8 not an order of review, but recalling of earlier order which was not
found legal or lawful. It was also submitted that FIR was lodged as early as in
1986 and applications for adding respondent No. 2 as an accused were made by
the appellant-accused in the year 1994 and 1996, i.e. after about 8 to 10
years. Such applications, therefore, could not have been entertained by the
Court. Again, the respondent No. 2 was admittedly Head Master-cum-Drawing and
Disbursing Officer and no prosecution could be launched against him without
sanction from the Government as envisaged by Section 197 of the Code. Since no
such sanction was obtained, no prosecution could be launched against him.
counsel also submitted that no application under Section 319 could be filed by
an accused and since the appellant herein was the accused, applications by him
were not maintainable. The counsel urged that when the Additional Sessions
Judge allowed the revisions filed by respondent No. 2 and the said order 9 was
confirmed by the High Court, this Court may not interfere with it in exercise
of discretionary jurisdiction under Article 136 of the Constitution. It was,
therefore, submitted that the appeal may be dismissed.
learned Government pleader appearing for respondent No. 1 adopted the arguments
of learned counsel for respondent No. 2 and submitted that the appeal deserves
to be dismissed.
heard the learned counsel for the parties and in the light of the relevant
provisions of law as also judicial pronouncements to which our attention has
been invited by the learned counsel for the parties, in our opinion, the appeal
deserves to be allowed.
319 of the Code empowers a Court to proceed against any person not shown to be
an accused if it appears from the evidence that such person has also committed
an 10 offence for which he can be tried together with the accused.
319 of the Code reads thus;
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 had 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
detailed 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 11 the Court took cognizance of the offence upon which the
inquiry or trial was commenced.
a Magistrate while hearing a case against one or more accused finds from the
evidence that some person other than the accused before him is also involved in
that very offence. It is only proper that a Magistrate should have power to
summon by joining such person as an accused in the case.
The primary object
underlying Section 319 is that the whole case against all the accused should be
tried and disposed of not only expeditiously but also simultaneously. Justice
and convenience both require that cognizance against the newly added accused
should be taken in the same case and in the same manner as against the original
accused. The power must be regarded and conceded as incidental and ancillary to
the main power to take cognizance as part of normal process in the
administration of criminal justice.
is also settled law that power under Section 319 can be exercised either on an
application made to the Court or by the Court suo motu. It is in the discretion
of the Court to take an action under the said section and the Court is expected
to exercise the discretion judicially and judiciously having regard to the
facts and circumstances of each case.
the instant case, an FIR was lodged against the appellant in August, 1986. But
it was during the course of trial that it came to light that signatures of
respondent No. 2 were also taken and were sent for examination and a report was
received showing that the signatures on the basis of which amount was withdrawn
tallied with the signatures of respondent No. 2. The said report, however, was
not filed by the prosecution. It was in these circumstances that the appellant
made applications in 1994 and in 1996 under Section 319 of the Code 13
requesting the learned Magistrate to join respondent No. 2 as accused and to
contention of the learned counsel for respondent No. 2 is that the power under
Section 319 of the Code, cannot be exercised belatedly by the Court. Again,
such order can be made only on the application by the Public Prosecutor or by
some person other than the accused. In other words, an application under
Section 319 cannot be filed by a person who is facing the trial.
are unable to uphold the contentions. We have quoted Section 319 of the Code.
It nowhere states that such an application can be filed by a person other than
the accused. It also does not prescribe any time limit within which such
application should be filed in the Court.
us consider few leading decisions of this Court on interpretation and
application of the said provision.
three decades, in Joginder Singh & Anr. v. State of Punjab & Anr., (1979)
1 SCC 345, a case was registered against Joginder Singh, Ram Singh, Bhan Singh,
Darshan Singh and Ranjit Singh for committing various offences punishable under
the Indian Penal Code. During the investigation, the police found Joginder
Singh and Ram Singh (appellants before this Court) to be innocent and, hence, a
charge-sheet was submitted against the remaining accused only. The learned
Magistrate after holding preliminary inquiry, committed three accused to the
Sessions Court for trial.
trial, evidence of some of the witnesses was recorded who implicated the
appellants. A Public Prosecutor, therefore, moved an application to summon the
appellants and to try them along with other accused. The application was
granted by the Sessions Court.
The said order was
challenged by the appellants.
was, inter alia, contended on behalf of the appellants that Section 319 of the
Code was not attracted inasmuch as the phrase "any person not being the
accused" occurring therein excluded from its operation an accused who had
been released by the police under Section 169 of the Code and against whom no
sufficient material was found by the police during investigation.
Court considered the relevant provisions of the Code of Criminal Procedure,
1898 (old Code), Forty-first Report of the Law Commission, the amendment made
in the present Code and held that the Court could add any person, not an
accused before it, as an accused and direct him to be tried along with the
other accused for the offence or offences the added accused appears to have
Court, after considering the scheme of the provision, observed;
"A plain reading
of Section 319 (1), which occurs in Chapter XXIV dealing with general
provisions as to 16 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
the expression "any person not being the accused", the Court stated;
"As regards the
contention that the phrase "any person not being the accused" occurring
in Section 319 excludes from its operation an accused who has been released by
the police under Section 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 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 said expression". (emphasis supplied)
(See also Rakesh v. State of Haryana, (2001) 6 SCC 248 17
Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., (1983) 1 SCC
1, the Food Inspector, noticing adulteration in `Morton Toffees', filed a
complaint against the Company, its Managing Director as well as Directors under
the Prevention of Food Adulteration Act, 1954. The Managing Director and
Directors approached the High Court by invoking Section 482 of the Code for
quashing of proceedings which was granted and the proceedings against them were
quashed. The question before this Court was whether Section 319 of the Code
could be invoked once criminal proceedings against a person were quashed.
the question in the affirmative and quoting with approval observations in
Joginder Singh, this Court said;
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 18 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. 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
Lok Ram v. Nihal Singh & Anr., (2006) 10 SCC 192, again, a similar question
came up before this Court. In Lok Ram, one Saroj Kumari was killed by her in-laws.
A complaint was filed by the father of the deceased against the husband,
brother in law and father in law of Saroj Kumari that all of them killed the
deceased. Police registered a 19 case against the said persons for offences
punishable under Sections 304-B, 498-A read with Section 34, IPC. The case of
Lok Ram was that he was serving in a school and at the time of incident, he was
not present. No charge- sheet was, therefore, filed against him.
the trial, however, depositions of witnesses were recorded which revealed that
Saroj Kumari was killed by her husband. Her brother in law and father in law
(Lok Ram) poured kerosene oil on her and she was set on fire. Father of the
deceased, hence, made an application under Section 319 of the Code to add Lok
Ram as accused which was rejected by the trial Court. Meanwhile, the trial
proceeded further against the other accused and they were convicted. The High
Court directed the trial Court to proceed against Lok Ram. The said order was
challenged by Lok Ram in this Court.
the appeal, referring to earlier decisions of this Court on the point 20 and
explaining the scope of Section 319 of the Code, the Court stated;
"On a careful
reading of Section 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
the provision liberally, the Court proceeded to state;
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 21 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
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
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". (emphasis supplied)
Shashikant Singh v. Tarkeshwar Singh & Anr., (2002) 5 SCC 738, during the
pendency of trial of an accused, another person was summoned by the trial Court
under Section 319 of the Code. But by the time he could be 22 brought before
the Court, the trial against the accused was over. The question was whether
such a person could be summoned and tried for the offence for which he was
summoned. This Court held that the words "should be tried together with
the accused" were merely directory and such a person could be tried even
after conclusion of trial of the main accused.
The Court stated;
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 the stage, the Court
would consider that such a person could be fried together with the accused who
is already before the Court facing the trial.
provided in respect of such person is that, the proceedings right from the
beginning have mandatory to be commenced afresh and the witnesses re-heard. 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 23 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 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".
our opinion, therefore, the learned Magistrate had power and jurisdiction to
entertain applications filed by the appellant- accused under Section 319 of the
Code and to issue summons to respondent No. 2 by adding him as accused. The
said order could not be said to 24 be illegal, unlawful or otherwise
next question is whether an order passed by a Court could be recalled? Before
the Courts below as also before us, the learned counsel for respondent No. 2
urged that an order passed by a Magistrate could be recalled.
support of the submission, reliance was placed by the counsel on a two-Judge
Bench decision of this Court in K.M. Mathew v. State of Kerala & Anr.,
(1992) 1 SCC 217. In that case, the appellant was the Editor-in-Chief of a
daily newspaper. A complaint was filed against him and others alleging
commission of offence punishable under Section 500 read with Section 34, IPC.
The Magistrate examined the complainant on oath and issued summons to the
accused. The Chief Editor appeared before the Court and prayed for dropping of
proceedings against him by recalling the order on the ground that there was no
allegation as to how he was responsible for publication of news item 25
alleged to have caused defamation of the complainant. The Magistrate accepted
the plea and dropped the proceedings so far as Chief Editor was concerned. The
complainant challenged the said order by filing a revision in the High Court
which was allowed. The Chief Editor questioned correctness of the order passed
by the High Court.
issue before this Court was whether the Magistrate had power to recall an order
of summoning the accused. Considering the relevant provisions of the Code, the
Court held that an order of summoning an accused could be recalled by the
Magistrate. Such order is merely an interim order and not a judgment and
recalling thereof would not amount to review.
"It is open to
the accused to plead before the Magistrate that the process against him ought
not to have been issued. The Magistrate may drop the proceedings if he is
satisfied on reconsideration of the complaint that there is no offence for
which the 26 accused could be tried. It is his judicial discretion. No
specific provision required for the Magistrate to drop the proceedings or
rescind the process. The order issuing the process is an interim order and not
a judgment. It can be varied or recalled. The fact that the process has already
been issued is no bar to drop the proceedings if the complaint on the very face
of it does not disclose any offence against the accused". (emphasis
correctness of K.M. Mathew again came up for consideration before a three-Judge
Bench of this Court in Adalat Prasad v. Rooplal Jindal & Ors., (2004) 7 SCC
338. In Adalat Prasad, the accused, after issuance of summons against him by
the trial Magistrate, filed an application under Section 203 of the Code for
dismissal of complaint recalling the order of summons. After hearing the
parties, the Magistrate granted the prayer and recalled the summons. The order
of the Magistrate was challenged by the complainant in the High Court inter
alia on the ground that the Magistrate had no jurisdiction to recall the
earlier 27 order. The High Court allowed the petition.
approached this Court.
the matter was placed for preliminary hearing, the learned counsel for the
accused relied on K.M. Mathew wherein it was held that it was open to the Court
issuing summons to recall the order on being satisfied that the issuance of
summons was not in accordance with law. The Court, however, doubted the
correctness of the view taken in K.M. Mathew in view of reference made by a two
Judge Bench to a three Judge Bench in Nilamani Routray v. Bennett Coleman &
Co. Ltd., (1998) 8 SCC 594.
larger Bench considered various provisions of the Code and held that in absence
of express provision in the Code, the Court has no power to recall the process
issued. The larger Bench, therefore, concluded that K.M. Mathew was not
correctly decided and overruled it.
28 "But after
taking cognizance of the complaint and examining the complainant and the
witnesses if he is satisfied that there is sufficient ground to proceed with
the complaint he can issue process by way of summons under section 204 of the
Therefore what is
necessary or a condition precedent for issuing process under section 204 is the
satisfaction of the Magistrate either by examination of the complainant and the
witnesses or by the inquiry contemplated under section 202 that there is
sufficient ground for proceeding with the complaint hence issue the process
under section 204 of the Code. In none of these stages the Code has provided
for hearing the summoned accused, for obvious reasons because this is only a
preliminary stage and the stage of hearing of the accused would only arise at a
subsequent stage provided for in the latter provision in the Code. It is true
as held by this Court in Mathew's case before issuance of summons the
Magistrate should be satisfied that there is sufficient ground for proceeding
with the complaint but that satisfaction is to be arrived at by the inquiry
conducted by him as contemplated under Sections 200 and 202, and the only stage
of dismissal of the complaint arises under section 203 of the Code at which
stage the accused has no role to play therefore the question of the accused on
receipt of summons approaching the court and making an application for
dismissal of the complaint under section 203 of the 29 Code for a
reconsideration of the material available on record is impermissible because by
then Section 203 is already over and the Magistrate has proceeded further to
Section 204 stage". (emphasis supplied)
with the contention that an aggrieved party must have a remedy if a Magistrate
takes cognizance of an offence without there being any allegation against the
accused, the Court stated;
"It is true that
if a Magistrate takes cognizance of an offence, issues process without there
being any allegation against the accused or any material implicating the accused
or in contravention of provision of Sections 200 & 202, the order of the
Magistrate may be vitiated, but then the relief an aggrieved accused can obtain
at that stage is not by invoking section 203 of the Code because the Criminal
Procedure Code does not contemplate a review of an order. Hence in the absence
of any review power or inherent power with the subordinate criminal courts, the
remedy lies in invoking Section 482 of Code".
law laid down in Adalat Prasad was followed and reiterated by this Court in 30
subsequent cases also [see Subramaniam Sethuraman v. State of Maharashtra,
(2004) 13 SCC 324; N.K. Sharma v. Abhimanya, (2005) 13 SCC 213; Everest
Advertisement v. State Government of NCT of Delhi, (2007) 5 SCC 54].
the above discussion, it is clear and well settled that once an order is passed
by a competent Court issuing summons or process, it cannot be recalled.
the instant case, the learned Magistrate ordered to join respondent No. 2 as an
accused on applications filed by the appellant and summons was issued to him. A
revision filed by the State against that order was dismissed by the Additional
Magistrate, on the facts and in the circumstances, was right in 31 dismissing
recall application filed by respondent No. 2.
revisional Court, however, held that the Magistrate had power to recall the
earlier order passed by him.
For coming to that
conclusion, the Court relied upon K.M. Mathew. The learned Additional Sessions
Judge ought to have considered the material fact in its proper perspective that
the order passed by the learned Magistrate was legal and proper and because of
that, the revision filed against that order by the State was also dismissed by
the revisional Court.
was, however, contended on behalf of respondent No.2 that even if this Court
holds that the Judicial Magistrate had no power to recall its earlier order and
dismissal of the application by the learned Magistrate was legal and proper,
32 and that a revision petition filed by the State against the said order was
dismissed by the Additional Sessions Judge, the Court may consider an important
fact that the respondent No. 2, who was really an `aggrieved party' had
preferred two revisions in the Court of Sessions. Hence, even if it is assumed
that the trial Court did not possess the power of recalling its order, it would
not preclude the revisional Court from exercising revisional jurisdiction and
quashing and setting aside an order passed by a subordinate Court if it was not
in accordance with law.
that ground does not impress us.
It is quite possible
that in a given case, a Magistrate may take cognizance of an offence illegally
or arbitrarily without there being any material whatsoever. Such illegal order should
not deprive the accused from contending 33 that the learned Magistrate was
wrong and wholly unjustified in entertaining the complaint or taking cognizance
of an offence.
In such cases,
however, the accused is not without legal remedy. If the act of taking
cognizance, issuance of process or joining of an innocent person as an accused
is totally uncalled for or ex facie bad in law, it is open to the aggrieved
party to invoke inherent jurisdiction of the High Court under Section 482 of
the Code. If the High Court is satisfied that the order passed by the
Magistrate was illegal, improper or arbitrary, it can exercise inherent powers
and quash criminal proceedings initiated against the party. But that power is
independent and has nothing to do with recalling of an earlier order by the
Court which passed it.
in the present case, even on merits, we are of the considered view that the
order passed by the learned Magistrate issuing 34 summons to respondent No.2
could not be said to be unlawful or even improper.
applications under Section 319 of the Code were preferred by the appellant
praying to join respondent No.2 as an accused and to issue summons, the learned
Magistrate considered the evidence of prosecution witnesses and he was
satisfied that depositions of witnesses prima facie made out offence against
the statements of PW2- Treasury Officer, PW14-Senior Assistant and
PW11-Assistant Manager, State Bank of Patiala, the learned Magistrate stated;
"I have heard
the learned counsel for the accused and the Ld. APP for the State and have also
gone through the file of this case carefully and it appears that Sher Singh who
appeared as a prosecution witness in this case was working as a Drawing &
Disbursing Officer and Ex. DX audit report discloses that as per Rule 2.2 (II)
of Punjab Financial Rules Volume-I, all transactions should be entered in the
cash book as soon as they occur and attested by the head of the office in token
of check, 35 further Rule 2.31(a) provides that with a view to enable the head
of the office to see that all amounts drawn from the treasury have been entered
in the cash book; he should obtain a list of all bills drawn by him during the
previous month and trace all the amounts in the cash book. It was held that
embezzlement pointed by the Audit was facilitated due to non- observance of
procedure regarding the review of the bill book/bill transit register and
reconciliation of the withdrawals form the treasury.
evidence led by the prosecution also makes it clear that there is prima-facie
evidence against Sher Singh, Head Master as PW2 Satpal Mehta, Treasury Officer
has deposed in his cross-examination that amounts from the accounts were
withdrawn through Headmaster Rureke Kalan and in their register signatures of
Headmaster have been entered and his name is Sher Singh and they have passed
the bills after comparing the signatures on the Bills with the specimen
signatures of Sher Singh as the same are in their record.
Similarly, PW14 Prem
Sagar, Senior Assistnat in Treasury Office has deposed that Drawing &
Disbursing Officer/Authority was Head Master of Rureke Kalan High School and
his name was Sher Singh and on the bills signatures of Sher Singh are present
which tally with the specimen signatures. Similarly, Prem Chand, Assistant
Manager of State Bank of Patiala, PW11 has deposed in his cross-examination
that DDO of High School, Rure Ke Kalan is Head Master and the amounts are
withdrawn after 36 comparison of specimen signatures with the signatures on
the bills of DDO. So, from the evidence on record, it is quite clear that prima
facie offence against Head Master Sher Singh is made out whose signatures were
with the treasury office and the Treasury Officers have passed the bills after comparing
the specimen signatures with the signatures on the bills and there is no
evidence on the record to show that the bills which are subject matter of
embezzlement, do not bear the signatures of Sher Singh who was DDO of Rureke
Kalan High School, so, there is prima facie offence made out to summon Sher
Singh, Head Master of Rureke Kalan High School as accused u/s 319 of Cr.P.C. is
hereby allowed and Sher Singh, Head Master of Government High School of Rure Ke
Kalan is ordered to be summoning as an accused in this case for 1.3.1996. The
application of the accused is hereby allowed and is disposed of
may recall at this stage that a revision filed by the State (and not by
respondent No.2) against the order of the Magistrate was dismissed by the
Assistant Sessions Judge on May 6, 1996.
Revisional Court also considered the deposition of aforesaid witnesses and
37 "After going
through the impugned order, I find that it was found by trial Magistrate that
certain bills have been passed by Sher Singh who was disbursing officer, and PW
14 Prem Sagar, Assistant in the office of Treasury deposed that drawing
disbursing officer was Headmaster of Rureke Kalan High School and his name was
Sher Singh who was appended his signatures on the bills which tally with the
specimen signatures. A similar statement was suffered by Assistant Manager of
State Bank of Patiala examined as PW11 before Trial Magistrate and on account
of this evidence read with the statement of PW2 Sat Pal Mehta, Treasury Officer
the trial Magistrate found that prima facie offence is made out to summon Sher
Singh as an accused and accordingly he allowed the application. In view of
this, we find that the Court has exercised his discretion supported by well
reasoned order and the opinion was formed by the Court after recording evidence
and in such like cases some times the real offender who has also committed the
crime steps into the shoes of complainant in order to save himself and in the
instant case also the evidence spells out that the head master of the school
thought of a clever device by registering the case against other accused at his
was after the dismissal of revision filed by the State that respondent No.2
moved the Judicial Magistrate to recall the earlier order. The learned
Magistrate held that in view of dismissal of revision by the Additional
Sessions Judge, an application to recall the order was not maintainable. But
the Court also stated;
summoning order is on interim order and not a judgment and the same can be
reviewed or recalled by the Magistrate.
the accused can be dropped of the complaint on face of it does not disclose any
offence against him. In the present case, my learned predecessor after going
through the statements of examined prosecution witnesses found that there is prima
facie offence made out against the accused Sher Singh.
accused/applicant She Singh was summoned vide summoning order dated 22.1.1996
passed by Sh. Varinder Aggarwal, PCS, the then Judicial Magistrate, 1st Class,
Revisional court referred to K.K. Mathew and held that a summoning order, being
interlocutory in nature, could not be termed as 39 `judgment' and there was no
bar in recalling such order. The Assistant Sessions Judge decided the revision
in 1998. The law governing the field at that time was the law laid down in K.K.
Mathew. Adalat Prasad had not seen the light of the day. We, therefore, see
nothing wrong on the part of the Assistant Sessions Judge in considering,
following and deciding the case on the basis of K.K. Mathew.
us, however, the Revisional Court was not right in interfering with the order
passed by the trial Court. We have seen that the learned Magistrate issued
summons taking into account evidence led by the prosecution, particularly, by
PWs 2, 14 and 11. The Revisional Court was thus having depositions of those
witnesses, the order passed by the learned Magistrate, the order made by the
Assistant Sessions Judge in revision instituted by the State and also the order
passed by the Magistrate in an application to recall filed by respondent No.2.
spite of the above material, the Revisional Court interfered with the order of
the trial Court issuing summons by entering into merits of the case.
above, as per prosecution case during the period from 1979 to 1986 accused
Bholu Ram was the Clerk of Govt. High School, Rureke Kalan while Sher Singh
revision/petitioner appeared to be the Head Master of the School during the
relevant period. It appears that during that period accused Bholu Ram had been
drawing various payments from the Treasury by submitting false and bogus Mills
to the Treasury, but did not appear to have disbursed the amount of those bills
to any person and allegedly mis-appropriated the amount of those false and bogus
bills for which 17 separate challans in case FIR No. 87/86 P.S. Tappa appeared
to have been filed against him and he appeared to be facing prosecution in all
However, vide order
dated 22.1.1996 of the Ld. Trial Magistrate in all those cases Sher Singh
revision petitioners appeared to have been summoned as an accused in those
cases on the ground that various bills on the basis of which those payments
were drawn appeared to have been signed by Sher Singh as a Drawing and
Disbursing Officer and he also appeared to be liable in all those cases. It
appears that Sher Singh 41 revision petitioners has already been examined as a
prosecution witness in various cases. Though in his statement recorded in the
Court, he denied having signed various bills.
It appears that those
bills appeared to have been signed by him as a Drawing and Disbursing Officer.
Being a DDO of the School, it was the duty of Sher Singh to sign various bills
for presentation in the treasury, but it was nevertheless the duty Bholu Ram,
Clerk to maintain the record regarding the disbursement of those amounts. In
case Bholu Ram, Clerk allegedly prepared false and bogus bills and obtained the
signatures of the DDO on the same, be alone appeared to be liable to account
for the payment of those bills when those amounts did not appear to have been
disbursed to various persons as mentioned n various Bills and Bholu ram
allegedly misappropriated those amounts. The mere fact that Sher Singh signed
those bills as Drawing and Disbursing Officer will not make him criminally
liable when the amounts of the various bills, according to the prosecution
case, were allegedly misappropriated by Bholu Ram alone".
our considered opinion, the Revisional Court was not justified in entering into
correctness or otherwise of the evidence at the stage of issuance of summons
to 42 respondent No.2. Admittedly, the Judicial Magistrate had considered a
limited question whether on the basis of evidence of prosecution witnesses,
prima facie offence had been made out against respondent No.2. He was, on the
basis of such evidence, was satisfied that the case was required to be gone
into and issued a summons. To us, the Revisional Court was not right in
interfering with that order. Hence, even on that ground, the order was not in
accordance with law.
leaned counsel for respondent No.2, however, submitted that the Revisional
Court was right in any case in allowing the revision and in quashing
proceedings against the said respondent on the ground of absence of sanction as
required by Section 197 of the Code.
express our inability to agree with the learned counsel. It is settled law that
offences punishable under Sections 409, 420, 467, 468, 471 etc. can by no
stretch of 43 imagination by their very nature be regarded as having been
committed by a public servant while `acting or purporting to act in discharge
of official duty' [vide Prakash Singh Badal v. State of Punjab, (2007) 1 SCC
Revisional Court was aware of legal position. It was, however, held by the
Court that at the most there was negligence on the part of respondent No.2 but
there was no criminal intent and he cannot be held criminally liable. We have
already held that mens rea can only be decided at the time of trial and not at
the stage of issuing summons.
Moreover, a point as
to need or necessity of sanction can be taken during the conduct of trial or at
any stage of the proceedings.
could not have been quashed on the ground of want of sanction in the present
case. The order of the Revisional Court deserves to be set aside even on that
was also urged that no applications by the appellant could have been
entertained by 44 the trial Court after about 8 to 10 years from the date of
filing of FIR. Now, an application under Section 319 of the Code can only be
made to a Court and the Court may exercise the power under the said Section if
it appears from evidence that any person other than the accused had also
committed an offence for which he can be tried together with the accused. It
was the case of the appellant that it was during the course of prosecution
evidence that he came to know that signatures of respondent No. 2 were sent for
examination, some report was received by the prosecution which was not produced
in Court and on the basis of such evidence, the case was made out against
respondent No.2. If in these circumstances, applications were made and the
prayer was granted, we see no infirmity therein.
our opinion, the Revisional Court, i.e. the Court of Additional Sessions Judge
ought not to have interfered with the order passed by the trial court under
Section 319 of 45 the Code. As already noted earlier, the order of addition of
respondent No. 2 as an accused and summoning him was not immediately challenged
by respondent No. 2. The challenge was by the State and it failed. After a long
time, the respondent No. 2 approached the Revisional Court. Since the order
passed by the Judicial Magistrate was in consonance with law, the Additional
Sessions Judge should have refrained from exercising revisional jurisdiction.
may examine the role of the State also. We have already noted earlier that an
order passed by the Judicial Magistrate summoning respondent No.2 as accused
was challenged by the State by filing a revision in the Court of Sessions,
which was dismissed.
Even in this Court,
the State supported respondent No.2. An affidavit in reply is filed by the
State through Deputy Superintendent of Police in March 2007, even before
counter affidavit was filed by contesting respondent 46 No.2. Though in the
affidavit, it is not necessary to deal with law points and/or decisions
rendered by a Court of law, the deponent refers to and relies on K.K. Mathew
expressly overruled by a larger Bench in Adalat Prasad. No reference at all has
been made to Adalat Prasad. It is respondent No.2 who, in his counter, refers
to both the decisions. In the totality of the facts and circumstances, the
submission of the learned counsel for the appellant that the State Authorities
were helping and assisting respondent No.2 cannot be said to be totally
ill-founded or without substance. The State, in our opinion, could have easily
avoided such embarrassment.
the foregoing reasons, the appeal deserves to be allowed and is accordingly
allowed. The orders passed by the Additional Sessions Judge and the High Court
are set aside and the order passed by the Judicial Magistrate, Barnala is
restored. Since the 47 matter pertains to FIR of 1986, the learned Magistrate
is directed to conclude the trial expeditiously.
parting with the matter, we may clarify that we have not entered into
allegations and counter-allegations. We have considered the facts and
circumstanced to a limited extent to decide correctness of the order passed by
the Judicial Magistrate under Section 319 of the Code. We make it clear that we
may not be understood to have expressed any opinion on the merits of the
matter. As and when the case will come up for hearing, it will be decided
strictly on its own merits without being inhibited or influenced by any
observations made by the trial court, by the Additional Sessions Judge, by the
High Court or by us.
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