Lal Suraj @ Suraj
Singh & ANR. Vs. State of Jharkhand  INSC 2217 (18 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2062 OF 2008
[Arising out of SLP (Crl.) No. 1179 of 2008] Lal Suraj @ Suraj Singh & Anr.
...Appellants Versus State of Jharkhand ...Respondent
S.B. SINHA, J :
the basis of a fardbeyan of one Bihari Singh, a First Information Report was
registered against seven persons for commission of offences under Sections 147,
148, 149, 307 and 302 of the Indian Penal Code and Section 27 of the Arms Act
as well as under Section 3/4 of the Explosive Substance Act inter alia alleging
that on 24.10.2000 at around 4 p.m. when 2 he along with one Ajay Singh was
sitting in his shop near bus stand, Nagendra Choubey, Mukesh Choubey, Pradeep
Vishwakarma, Sharvan Vishwakarma, Suraj Singh, B.N. Singh and Arbind Singh came
in two vehicles and started firing. Appellant No. 1 was specifically named
In the said incident,
the complainant and Ajay Singh suffered fire arm injuries. When the people
started assembling there, accused persons fled away. The motive for commission
of the offence was said to be the murder of one Jagdev wherein the complainant
and the said Ajay Singh were accused. The first informant was taken to the
hospital and died on 25.10.2000. He gave a dying declaration which was treated
to be the First Information Report.
no chargesheet was filed against the appellants. No cognizance, therefore, was
taken against them.
commitment of the case to the Court of learned Sessions Judge, the prosecution
examined eleven witnesses. The learned Sessions Judge relied upon the evidence
of PWs 6 and 7 to allow an application for summoning the appellant in exercise
of his power under Section 319 of the Code of Criminal Procedure (for short
"Code") , holding:
3 "There cannot
be any two opinion that suspicion however strong it may be cannot take shape of
evidence and it cannot be a ground for conviction but so far issuance of
process is concerned strong suspicion can be a ground to proceed against any
person in a criminal case. In the facts of the present case when the statement
of the injured formed basis of fardbeyan, who died subsequently then value of first
statement will also be a point for consideration. The statement of PW 7 is also
said to be statement of dead person, then that statement of PW7 will also be
under the scrutiny on the touchstone of evidence. The name of above referred
two persons Suraj Singh and Arbind Singh is stated by the informant.
Thus in consideration
of the entire material on record I am of the view that the materials on record
is sufficient to proceed against above named Suraj Singh and Arbind Singh. Thus
in view of the above observation it will be proper that summons against Suraj
Singh son of Madhu Singh and Arbind Singh son of late Amarnath Singh, both
resident of village - Bandubar, P.S. Panki, Distt - Palamau be issued and are
arrayed as accused in GR. 1256/2000 corresponding to Sadar P.S. Case No.
381/2000 to face trial.
The office is
directed to open a separate record for those two persons bearing no. 209B/2004
and is further directed to issue summons against the above named two accused
persons for their trial."
filed criminal revision application thereagainst before the High Court. By
reason of the impugned judgment, the same was dismissed.
P.S. Narasimha, learned counsel appearing on behalf of the appellants, has
taken us through the evidences of PWs 6 and 7 and submitted that both the
learned Sessions Judge as also the High Court committed a serious error insofar
as they failed to take into consideration the legal principles required to be
applied while summoning an accused in exercise of the court's power under
Section 319 of the Code.
Manish Kumar Saran, learned counsel appearing on behalf of the respondent, on
the other hand, submitted that from a perusal of the judgment of the High Court
it would appear that the only contention raised therein was that no
charge-sheet having been filed against them, they could not have been summoned
by the Court in exercise of its power under Section 319 of the Code, which has
rightly been rejected by the High Court in view of the decision of this Court
in Y. Saraba Reddy v. Puthur Rami Reddy and Another [(2007) 4 SCC 773].
prosecution concededly did not file any chargesheet against the appellants.
Even in the First Information Report only the appellant No. 1 was named.
case was committed to the Court of Sessions. There cannot be any doubt or
dispute that although a person named in the First Information Report or another
who was found to be involved in the commission of the offence may be summoned
at a subsequent stage by the learned Trial Judge, legality of an order
summoning such an accused, however, would depend on the nature of evidence
brought on record by the prosecution witnesses and other relevant factors. At
that stage what is material is the evidence of prosecution witnesses and other
materials which have been brought on the record.
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 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."
319 of the Code is a special provision. It seeks to meet an extraordinary
situation. It although confers a power of wide amplitude but is required to be
exercised very sparingly.
Before an order
summoning an accused is passed, the Trial Court must form an opinion on the
basis of the evidences brought before it that a case has been made out that
such person could be tried together with the other accused.
is no dispute with the legal proposition that even if a person had not been
chargesheeted, he may come within the purview of the description of such a
person as contained in Section 319 of the Code.
In Y. Saraba Reddy
(supra), this Court did not lay down any new principle. It relied upon several
well-known decisions of this Court in Joginder Singh v. State of Punjab [(1979)
1 SCC 345], Municipal Corporation of Delhi v. Ram Kishan Rohtagi [(1983) 1 SCC
1] and Sohan Lal v. State of Rajasthan [(1990) 4 SCC 580].
We may, however,
notice that therein the High Court took an extraordinary step which was
described by this Court as a basic fallacy in its approach. It had called for
the file to satisfy itself as to whether the enquiry conducted was to be
preferred to the evidence of PW-1. In the aforementioned situation, it was
satisfaction of the investigating officer or supervising officer is to be
treated as determinative, then the very purpose of Section 319 of the Code
would be frustrated. Though it cannot always be the satisfaction of the
investigating officer which is to prevail, yet in the instant case the High
Court has not found the evidence of PW 1 to be unworthy of acceptance.
Whatever be the worth
of his evidence for the 8 purposes of Section 319 of the Code it was required
to be analysed. The conclusion that the IO's satisfaction should be given
primacy is unsustainable..."
No exception can be
taken to the said dicta.
The fact involved
herein, however, is completely different.
learned Sessions Judge as also the High Court, as indicated hereinbefore,
relied upon the deposition of Jogendra Singh (PW-6) and Karu Singh (PW-7).
Jogendra Singh in his
deposition merely stated that the appellants were sitting in the said jeep. The
vehicle, however, was being driven at a very high speed and, thus, he could not
even see as to whether people sitting therein were holding any weapon or not.
He is, therefore, not an eye- witness to the occurrence.
PW-7 in his
Occurrence had taken place on 24.10.2003 at about 4-1/2 P.M. in the evening. At
that time I was at my house. On receipt of the information of the occurrence,
we reached at the Hospital. After reaching at the Hospital, I saw that my
father and Ajay Singh were on bed. Ajay Singh had died and my father was giving
statement and his statement was being recorded by Ram Sagar Tiwari Darogaji. I
had also talk with my father. He told me that Suraj Singh, Arbind Singh, B.N.
Singh, Pradeep Vishwakarma, Shravan Vishwakarma, Nagendra Chaubey and Mukesh
Chaubey had committed the crime (occurrence with him)."
He is, thus, only
evidence worth the name, therefore, had been brought on record to arrive at a
satisfaction that there was a reasonable prospect of conviction of the appellants.
approach of the learned Sessions Judge was wholly incorrect.
The 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 10 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 clear distinction.
Ram Kishan Rohtagi (supra), this court observed:
"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.
More than this we
would not like to say anything further at this stage..."
Yuvaraj Ambar Mohite v. State of Maharashtra [2006 (10) SCALE 369], it was
observed that there is a possibility of the accused being convicted on the
basis of the evidences brought on record even if the same is taken to be
correct in its entirety.
Guriya alias Tabassum Tauquir and Others v. State of Bihar and Another [(2007)
8 SCC 224], referred to by the High Court, it was held that where there was no
new material, the discretionary jurisdiction under Section 319 of the Code can
be exercised, holding:
"12. As noted
above, PWs 1, 2 and 3 have stated about the presence of the appellants without
any definite role being ascribed to them in their evidence recorded on
16-4-2001, 8-1-2002 and 29-4-2002. If really the complainant had any grievance
about the appellants being not made accused, that could have, at the most, be
done immediately after the recording of evidence of PWs 1, 2 and 3. That has
apparently not been done. Additionally, after the charge-sheet was filed, a
protest petition was filed by the complainant which was dismissed. No explanation
whatsoever has been offered as to why the application in terms of Section 319
CrPC was not filed earlier. The Revisional Court did not deal with these
aspects and came to an abrupt conclusion that all the PWs have stated that the
appellants have committed overt acts and their names also find place in the
overt act has been attributed to the appellants by PWs 1, 2 and 3. Nothing has
been stated about the appellants by PWs 4 and 5.
There was mention of
their names in the FIR. A protest petition was filed. Same was also rejected.
These could not have
formed the basis of accepting the prayer in terms of Section 319 CrPC.
The High Court's
order, to say the least, is bereft of any foundation. It merely states that
there are materials against the petitioners before it. It also did not deal
with various aspects highlighted above."
said principle has been reiterated by this Court in Mohd. Shafi v. Mohd. Rafiq
& Anr. [AIR 2007 SC 1899] stating:
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."
again in Kailash v. State of Rajasthan & Anr. [2008 (3) SCALE 338]
Sirpurkar, J. speaking for the Bench held:
"A glance at
these provisions 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.
The key words in this
Section are "it appears from the evidence "..." any person
"..." has committed any offence". It is not, therefore, that
merely because some witnesses have mentioned the name of such person or that
there is some material against that person, the discretion under Section 319
Cr.P.C. would be used by the court. This is apart from the fact that such
person against whom such discretion is used, should be a person who could be
tried together with the accused against whom the trial is already going on.
This Court has, 13 time and again, declared that the discretion under Section
319 Cr.P.C. has to be exercised very sparingly and with caution and only when
the concerned court is satisfied that some offence has been committed by such
person. This power has to be essentially exercised only on the basis of the
evidence. It could, therefore, be used only after the legal evidence comes on
record and from that evidence it appears that the concerned person has
committed an offence. The words "it appears" are not to be read
lightly. In that the court would have to be circumspect while exercising this
power and would have to apply the caution which the language of the Section
the aforementioned legal principles to the fact of this case, we are of the
opinion that the learned Sessions Judge as also the High Court committed a
serious error in passing the impugned judgment. On the basis of the
aforementioned evidence, there was no possibility of recording a judgment of
conviction against the appellants at all.
appeal is, thus, allowed and the impugned orders are set aside.
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