Allahabad High Court
Punit Yadav vs State Of U.P. And Another on 13 September, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Court No. - 83 Case :- CRIMINAL REVISION No. - 987 of 2021 Revisionist :- Punit Yadav Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajiv Lochan Shukla,Abhishek Narayan Pandey Counsel for Opposite Party :- G.A.,Mool Chandra Maurya Hon'ble Rajeev Misra,J.
1. Heard Mr. Rajiv Lochan Shukla, learned counsel for revisionist, Mr. Prashant Kumar, learned A.G.A. along with Mr. P.K. Sahi, learned brief holder for State and Mr. M.C. Maurya, learned counsel for opposite party-2.
2. Perused the record.
3. This criminal revision has been filed challenging order dated 15.2.2021, passed by Second Additional District and Sessions Judge, Kasganj, in Sessions Trial No. 329 of 2018 (State Vs. Vineet Yadav and Others), under sections 307, 427, 506 and 325 IPC, Police Station- Sidhpura, District Kasganj, arising out of Case Crime No. 150 of 2018, under sections 307, 427, 506 and 325 IPC, Police Station- Sidhpura, District Kasganj, whereby application under section 319 Cr.P.C. filed by first informant/opposite party-2 Rajesh Kumar has been allowed. Consequently, applicant has been summoned to face trial in above mentioned case.
4. Record shows that in respect of an incident, which is alleged to have occurred on 5.7.2018, first informant/opposite party-2 Rajesh Kumar lodged a prompt F.I.R. dated 5.7.2018, which was registered as Case Crime No. 0150 of 2018 under sections 307, 427, 506 IPC, P.S. Sidhpura, District Kasganj. In the aforesaid F.I.R., as many as four persons namely, Vineet Yadav, Khavendra, Pintu and Punit Yadav have been nominated as named accused.
5. In brief prosecution story as unfolded in F.I.R dated 5.7.2018, alleges that five persons namely, Rajesh Kumar, Sandeep, Om Prakash, Babu Ram and Ram Chandra Gola were travelling in a car having Registration No. DL1ZA7581 (Tata Indigo) belonging to Ram Chandra Gola. When the car reached at the culvert near village Sunvai accused persons namely, Vineet Yadav, Khavendra, Pintu and Puneet Yadav came from the front and damaged the vehicle by using Lathi and Danda. It is also alleged that one of the named accused, Vineet Yadav fired at Ram Chandra Gola from behind on account of which, he sustained gun-shot injury on his head.
6. After registration of above mentioned F.I.R., injured Raju Sakya, Ram Chandra, Shekher and Sandeep were medically examined. Their medico legal reports are on record as Annexure-2 to the affidavit collectively. Perusal of aforesaid medical report goes to show that injured Raju Sakya has sustained injury on his left thumb, caused by blunt object, injured Ram Chandra has sustained one lacerated wound on his skull caused by fire arm, injured Shekhar has sustained two contusions and one abrasion, caused by hard and blunt object, injured Om Prakash has sustained traumatic swelling on lateral aspects of right forearm caused by hard and blunt object. Thereafter, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined first informant and other witnesses, who have supported the prosecution story, as unfolded in F.I.R. On the basis of above, as well as other material collected by Investigating Officer, during course of investigation, which is substantially adverse to named accused, Investigating Officer opined to submit a charge sheet. Accordingly, Investigating Officer submitted charge sheet dated 15.9.2019, whereby and whereunder three of the named accused namely, Vineet Yadav, Khavendra and Pintu have been charge sheeted under sections 307, 427, 506 and 325 IPC, whereas one named accused, Punit Yadav, i.e., (applicant herein) has been exculpated. Perusal of charge sheet further goes to show that as many as 17 prosecution witnesses have been nominated therein.
7. After submission of above mentioned charge sheet, cognizance was taken upon same by concerned Magistrate. Since offence complained of was triable by court of Sessions, accordingly, concerned Magistrate, committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 329 of 2018 (State Vs. Vineet Yadav and Others), under sections 307, 427, 506 and 325 IPC, Police Station- Sidhpura, District Kasganj, came to be registered.
8. Trial commenced. Charges were framed against charge sheeted accused who denied the same. Consequently, burden fell upon prosecution to establish the charges so framed by leading evidence.
9. In discharge of aforesaid burden, prosecution adduced first informant, Rajesh Kumar as P.W. 1. His statement-in-chief and examination-in-chief were recorded. After statement-in-chief/examination-in-chief of P.W.1 had been recorded, first informant/opposite party-2, who is also P.W.1, filed an application dated 2.3.2019, in terms of Section 319 Cr.P.C., praying therein, that since complicity of non charge sheeted but named accused Puneet Yadav is also established in the crime in question, as per his testimony therefore, he be also summoned under section 319 Cr.P.C. to face trial in above mentioned case.
10. While aforesaid application was pending, statement-in-chief/examination-in-chief of P.W.2 Sandeep was also recorded.
11. Application under section 319 Cr.P.C. filed by first informant/opposite party-2 was opposed by charge sheeted accused by filing objections to the same. However, copy of objection so filed has not been brought on record. Ultimately, court below by means of order dated 5.2.2021, allowed the application under section 319 Cr.P.C. and consequently, summoned revisionist Punit Yadav to face trial in above mentioned criminal case.
12. Feeling aggrieved by above, revisionist- Punit Yadav has now approached this Court by means of present criminal revision.
13. Mr. Rajiv Lochan Shukla, learned counsel for revisionist submits that order impugned in present criminal revision is manifestly illegal and without jurisdiction. Same is unsustainable in law and fact. It is then contended by learned counsel for revisionist that revisionist was nominated as one of the named accused in F.I.R. dated 5.7.2018. However, during investigation, no such material was gathered by Investigating Officer on the basis of which, complicity of present applicant was found to be established in the crime in question. Resultantly, applicant has been exculpated in the charge sheet dated 15.9.2018. He, further, submits that Investigating Officer of concerned case crime number has not yet been examined by Court below. In such circumstance, court below ought to have deferred the disposal of application under section 319 Cr.P.C. filed by first informant/opposite party-2, till statement-in-chief of Investigating Officer was recorded as he will be the best person to demonstrate as to under what circumstances, complicity of present applicant was not found to be established in the crime in question. As court below has pre-empted the disposal of application under Section 319 Cr.P.C., serious prejudice has been caused to applicant. It is lastly submitted that no cast iron case is made out for summoning present applicant as per testimonies of P.W.1 Rajesh Kumar and P.W.2 Sandeep. Nothing new has been stated by P.W.1 and P.W.2 in their deposition before Court below than what was stated in their statements under section 161 Cr.P.C. before Investigating Officer. Impugned order passed by Court below is, thus, in teeth of Constitution Bench judgement in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, as well as law laid down in S. Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 and Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706. Court below has thus failed to exercise its jurisdiction "diligently" and has summoned revisionist in a "casual and cavalier manner", inasmuch as, there is no "strong nor cogent evidence" against revisionist, which is a pre-condition for summoning a prospective accused under Section 319 Cr.P.C.
14. On the cumulative strength of above, Mr. Rajiv Lochan Shukla, learned counsel for revisionist vehemently contends that present criminal revision is liable to be allowed and impugned order be set aside.
15. Per contra, learned A.G.A. has opposed this criminal revision. Learned A.G.A. contends that statement-in-chief of P.W.1- Rajesh Kumar is alone material for deciding the application under Section 319 Cr.P.C. as he is a prosecution witnesses of fact,. as per law laid down by Constitution Bench in Hardeep Singh (Supra). However, in the present case, P.W.1 has also been cross-examined. Apart from above, P.W.2 has also deposed before court below. His examination-in-chief has also been recorded. No illegality has been committed by court below in placing reliance upon testimonies of P.W.1 and P.W.2, who have been cross-examined. Statements of P.W.1 and P.W.2- thus falls in the realm of legal evidence. Therefore court below has rightly proceeded to pass order dated 21.01.2021 by placing reliance upon same. No irregularity or illegality has been committed by court below in passing impugned order dated 21.01.2021. From perusal of testimonies of P.W.1 and P.W.2 complicity of present applicant in the crime in question is fully established. P.W.1 and P.W.2 are eye witnesses of the occurrence. P.W.2 is also an injured witness. His testimony has to be held to be more credible and reliable. As such Court below has exercised its jurisdiction "diligently" and not in a "casual and caviliar manner". Applicant has been summoned on the basis of "strong and cogent" evidence that has emerged against him during course of above mentioned sessions trial. It cannot be said at this stage that "applicants cannot be tried along with other accused" and further that "if the evidence which has been recorded up to this stage goes unrebutted would not lead to conviction of revisionist". Police report submitted by Investigating Officer is not conclusive proof of innocence of revisionist. Even though, revisionist has been exculpated by Investigating Officer, same cannot be taken as a ground to urge that revisionist cannot be subsequently summoned to face trial. Revisionist will have adequate opportunity to prove his innocence before court below during course of trial by adducing Investigating Officer as a defence witness also. No attempt has been made to draw a parallel between the statements of P.W.1 and P.W.2 as recorded under Section 161 Cr.P.C. and their depositions made before court below. No ground has been raised in the grounds of revision that P.W.1 and P.W.2 have not stated anything new in their depositions before Court below than what was stated by them in their statements under Section 161 Cr.P.C. On the aforesaid premise, it is, thus, urged by learned A.G.A. that revisionist is not entitled to any indulgence by this Court. Consequently, present criminal revision is liable to be dismissed.
16. Having heard learned counsel for revisionist, learned A.G.A. for State and upon perusal of record, this Court finds that the issue, which arises for determination in present criminal revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C As a corollary to above, whether the order impugned is within the established parameters or not.
17. Parameters regarding exercise of jurisdiction by Courts under section 319 Cr.P.C. has been considered time and again by Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638
(xiii) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805
(xiv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390
(xv) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 (xvi) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 (xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632
18. To begin with, a constitution Bench of Supreme Court in Dharam Pal (Supra) considered the provisions of Sections 193, 190, 319, 209, 173(2) and 200 to 204 Cr.P.C. and held that Sessions Judge has power to summon non charge sheeted accused after the case has been committed to Court of Sessions under section 193 Cr.P.C and for this purpose need not wait for evidence to be recorded so that non charge sheeted accused could be summoned under section 319 Cr.P.C.
19. Subsequently, in Hardeep Singh (Supra), another constitution Bench of Supreme Court considered the parameters for exercise of jurisdiction under section 319 Cr.P.C. The Constitution Bench upon consideration of various provisions of Indian Evidence Act, Code of Criminal Procedure as well as underlying principles of Section 319 Cr.P.C. framed five questions for defining the parameters for exercising jurisdiction under Section 319 Cr.P.C. Thereafter, Court held as under in paragraphs 4, 5, 6, 6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6:
"4. Reference made in Dharam Pal (Supra) came to be answered in relation to the power of a Court of Sessions to invoke Section 319 Cr.P.C. at the stage of committal of the case to a Court of Sessions. The said reference was answered by the Constitution Bench in the case of Dharam Pal & Ors. v. State of Haryana & Anr., AIR 2013 SC 3018 [hereinafter called 'Dharam Pal (CB)'], wherein it was held that a Court of Sessions can with the aid of Section 193 Cr.P.C. proceed to array any other person and summon him for being tried even if the provisions of Section 319 Cr.P.C. could not be pressed in service at the stage of committal.
5. Thus, after the reference was made by a three-Judge Bench in the present case, the powers so far as the Court of Sessions is concerned, to invoke Section 319 Cr.P.C. at the stage of committal, stood answered finally in the aforesaid background.
6. On the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this Bench:
6.1 (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
6.2 (ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?\ 6.3 (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
6.4 (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?
6.5 (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
7. In this reference what we are primarily concerned with, is the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified. To add as a corollary to the same, thirdly, the manner in which such power has to be exercised, also has to be considered.
11. Section 319 Cr.P.C. as it exists today, is quoted hereunder:
"319 Cr.P.C. -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-
(5) (a) the proceedings in respect of such person shall be commenced afresh, and the 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."
55. Accordingly, we hold that the court can exercise the power under Section 319 Cr.P.C. only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein above.
56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 Cr.P.C. i.e. provisions of Sections 200, 201, 202, etc. Cr.P.C. applicable in the case of Complaint Cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint Cases is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872, (hereinafter referred to as the 'Evidence Act') comes before the court. There does not seem to be any restriction in the provisions of Section 319 Cr.P.C. so as to preclude such evidence as coming before the court in Complaint Cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the Court, such evidence can be used only to corroborate the evidence recorded during the trial for the purpose of Section 319 Cr.P.C., if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded.
57. Thus, the application of the provisions of Section 319 Cr.P.C., at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 Cr.P.C. can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge sheet or any other person who might be an accomplice
85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial.
92. Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.
105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.
116. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C.
117. We accordingly sum up our conclusions as follows:
Questions (i) and (iii)
- What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND
- Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
Answer 117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
117.3. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question (ii)- Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
Answer 117.4. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question (iv)- What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer.
117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question (v)- Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?
Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of ?Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
20. After aforesaid Constitution Bench judgement, the issue as involved in present application again came up for consideration before Supreme Court in Babubhai Bhimabhai Bokhiria (Supra), wherein Court dealt with the issue of summoning of a non charge sheeted accused under section 319 Cr.P.C. who was alleged to be involved in the crime in question on the basis of dying declaration. The issue that arose for consideration was whether on the basis of dying declaration an inference of guilt could be drawn against non-charge sheeted accused sought to be summoned in a case, which arose out of an F.I.R. registered at Kalambaug Police Station Porbandar under Sections- 302, 201, 34, 120B, 465, 468, 471 I.P.C. and Section- 25 of Arms Act. Court took notice of paragraphs 105 and 106 of the Constitution Bench judgement in Hardeep Singh's case (Supra) and deduced as follows in paragraphs 7, 8, 9, 15, 20, 21 and 22:
"7. Before we proceed to deal with the evidence against the appellant and address whether in light of the evidence available, power under Section 319 of the Code was validly exercised, it would be expedient to understand the position of law in this regard. The issue regarding the scope and extent of powers of the court to arraign any person as an accused during the course of inquiry or trial in exercise of power under Section 319 of the Code has been set at rest by a Constitution Bench of this Court in Hardeep Singh v. State of Punjab[(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86 : (2014) 1 Scale 241] . On a review of the authorities, this Court summarised the legal position in the following words: (SCC p. 138, paras 105-06) "105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC."
8. Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher.
9. Having summarised the law on the degree of satisfaction required by the courts to summon an accused to face trial in exercise of power under Section 319 of the Code, we now proceed to consider the submissions advanced by the learned counsel.
15. In the present case, except the apprehension expressed by the deceased, the statement made by him does not relate to the cause of his death or to any circumstance of the transaction which resulted in his death. Once we hold so, the note does not satisfy the requirement of Section 32 of the Act. The note, therefore, in our opinion, is not admissible in evidence and, thus, cannot be considered as such to enable exercise of power under Section 319 of the Code.
20. Now we revert to the authority of this Court in Rattan Singh [Rattan Singhv. State of H.P., (1997) 4 SCC 161 : 1997 SCC (Cri) 525] relied on by Dr Singhvi. In the said case, the deceased immediately before she was fired at, spoke out that the accused was standing nearby with a gun. In a split second the sound of firearm shot was heard and in a trice her life snuffed off. In the said background, this Court held that the words spoken by the deceased have connection with the circumstance of transaction which resulted into death. In the case in hand, excepting apprehension, there is nothing in the note. No circumstance of any transaction resulting in the death of the deceased is found in the note. Hence, this decision in no way supports the contention of Dr Singhvi.
21. The other evidence sought to be relied for summoning the appellant is the alleged conversation between the appellant and the accused on and immediately after the day of the occurrence. But, nothing has come during the course of trial regarding the content of the conversation and from the call records alone, the appellant's complicity in the crime does not surface at all.
22. From what we have observed above, it is evident that no evidence has at all come during the trial which shows even a prima facie complicity of the appellant in the crime. In that view of the matter, the order passed by the trial court summoning the appellant, as affirmed by the High Court, cannot be allowed to stand."
21. Subsequently in Jogendra yadav (Supra), Court considered the issue as to whether a non-charge sheeted accused summoned under section 319 Cr.P.C. can claim discharge under section 227 Cr.P.C. Court referred to observations contained in paragraphs 105 and 106 of the Constitution Bench judgement in Hardeep Singh's case in paragraph 10 of the judgement and delineated the rights of an accused summoned under section 319 Cr.P.C. to claim discharge in paragraph-13 of the judgement, which reads as under:
"13. We are not unmindful of the fact that the interpretation placed by us on the scheme of Sections 319 and 227 makes Section 227 unavailable to an accused who has been added under Section 319 CrPC. We are of the view, for the reasons given above, that this must necessarily be so since a view to the contrary would render the exercise undertaken by a court under Section 319 CrPC, for summoning an accused, on the basis of a higher standard of proof totally infructuous and futile if the same court were to subsequently discharge the same accused by exercise of the power under Section 227 CrPC, on the basis of a mere prima facie view. The exercise of the power under Section 319 CrPC, must be placed on a higher pedestal. Needless to say the accused summoned under Section 319 CrPC, are entitled to invoke remedy under law against an illegal or improper exercise of the power under Section 319, but cannot have the effect of the order undone by seeking a discharge under Section 227 CrPC. If allowed to, such an action of discharge would not be in accordance with the purpose of Criminal Procedure Code in enacting Section 319 which empowers the Court to summon a person for being tried along with the other accused where it appears from the evidence that he has committed an offence."
22. Inspite of above noted judgements, issue did not come to rest, but again cropped up for consideration in Brijendra Singh (supra) wherein Court considered the observations made in paragraphs 8, 12, 13, 19, 105 and 106 of Constitution Bench judgement in Hardeep Singh (Supra) and applying the ratio as mentioned in aforesaid paragraphs widened the scope of parameters regarding exercise of jurisdiction under section 319 Cr.P.C. In this case, Court was examining the summoning of a non-charge-sheeted accused in a Sessions Trial under Sections- 147, 148, 149, 323, 448, 302/149 I.P.C. and Section- 3 and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Court went a step further. A parallel was drawn with the deposition of prosecution witnesses before court and their statements recorded under section 161 Cr.P.C. to find out whether something new has come out in their depositions or not. Having done so, Court summed up as follows in paragraphs 13, 14, 15:-
"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the I.O. at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.
15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."
23. Inspite of law having been settled by Apex Court in Constitution Bench judgement in Hardeep Singh (Supra) and two Judges Bench judgement in Brijendra Singh (Supra) which made substantial advancement in favour of prospective accused, the issue as noted above, again arose for consideration in S Mohammed Ispahani (Supra). In this case, Court was considering the summoning of non charge-sheeted accused in a case under Sections- 379, 427, 341, 379/34 read with Section 3(1) of Tamil Nadu Property Prevention of Damage and Loss Act, 1992. Court again took notice of observations made in paragraphs 19 as well as paragraphs 10 to 13 of Brijendra Singh's Case and by making departure from the settled meaning of evidence for the purpose of exercise of jurisdiction under section 319 Cr.P.C. opined that prospective accused can be summoned only when "strong and cogent evidence" occurs against him during course of trial and not in a "casual and cavalier manner". Ultimately, Court opined as follows in paragraphs 31, 32, 33, 34, 35, 36 and 37:
"31. The order of the learned Chief Metropolitan Magistrate reveals that while dismissing the application of the complainant under Section 319 CrPC, the Chief Metropolitan Magistrate was swayed by two considerations:
(a) The complainant (PW 1) in his examination-in-chief had not spoken anything with regard to the alleged conspiracy entered into between the appellants i.e. the landlords and the bailiff. Also other witnesses i.e. PWs 2, 3 and 4, who were working in the company of the de facto complainant had not spoken anything with regard to the appellants. There was no documentary evidence produced by the complainant. Therefore, the available "evidence" was not sufficient to implead the appellants/proposed accused as accused in the case.
(b) The police, after thorough investigation, had filed the charge-sheet in which the appellants were not implicated. However, the complainant never filed any protest petition at that stage.
32. Taking the aforesaid grounds as their arguments, the learned counsel for the appellants have argued that there is no "evidence" within the meaning of Section 319 CrPC. The argument advanced is that the application filed by the complainant under Section 319 CrPC was an afterthought and belated effort on the part of the complainant, which was filed much after the recording of evidence of PW 1, that too when the prosecution evidence had already been concluded.
33. As against the above, the High Court, in the impugned judgment, has been influenced by the fact that names of the appellants were mentioned in the FIR and even in the statement of witnesses recorded under Section 161 CrPC these appellants were named and such statements under Section 161 CrPC would constitute "documents". In this context, the High Court has observed that "evidence" within the meaning of Section 319 CrPC would include the aforesaid statements and, therefore, the appellants could be summoned.
34. The aforesaid reasons given by the High Court do not stand the judicial scrutiny. The High Court has not dealt with the subject-matter properly and even in the absence of strong and cogent evidence against the appellant, it has set aside the order of the Chief Metropolitan Magistrate and exercised its discretion in summoning the appellants as accused persons. No doubt, at one place the Constitution Bench observed in Hardeep Singh case [Hardeep Singh v.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that the word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. In para 105 of the judgment, however, it is observed that "only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner". This sentence gives an impression that only that evidence which has been led before the Court is to be seen and not the evidence which was collected at the stage of inquiry. However there is no contradiction between the two observations as the Court also clarified that the "evidence", on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the Court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 CrPC.
35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.
36. In view of the above, it was not open to the High Court to rely upon the statements recorded under Section 161 CrPC as independent evidence. It could only be corroborative material. In the first instance, "evidence" led before the Court had to be taken into consideration. As far as deposition of PW 1 which was given in the Court is concerned, on going through the said statement, it becomes clear that he has not alleged any conspiracy on the part of the appellant landlords. In fact, none of the witness has said so. In the absence thereof, along with the important fact that these appellant landlords were admittedly not present at the site when the alleged incident took place, we do not find any "evidence" within the meaning of Section 319 CrPC on the basis of which they could be summoned as accused persons. PW 1 and PW 4 have deposed about the incident that took place at the site and the manner in which the persons who are present allegedly behaved. In the statement of PW 4, he has alleged that "Subsequently I came to know the said people is not police officials the people was sent by landlords of the building...". That statement may not be enough for roping in the appellants/landlords to face the charge under those provisions of IPC with which others are charged. The standard of evidence mentioned in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , namely, "strong and cogent evidence", is lacking."
24. In Deepu @ Deepak (Supra), Court considered the issue regarding summoning of a charge sheeted accused, who had been discharged by trial court, in ignorance of supplementary charge sheet. Division Bench considered the observations made in paragraph 112 of Constitution Bench judgement in Hardeep Singh (Supra) and ultimately expressed its views in paragraph 7 of the judgment as under:
"7. In the matter on hand, the Sessions Court, as aforementioned, has found that the earlier order of discharge was without reference to the supplementary charge-sheet, though the supplementary charge-sheet was in existence then. Only after applying its mind judiciously to the facts of the case and on verifying the details of the supplementary charge-sheet as well as other material on record, mentioned supra, the trial court concluded that it is a fit case to proceed against the appellant-accused under Section 319 of the Code of Criminal Procedure. The said order is confirmed by the High Court. The procedure as contemplated under Section 319 CrPC as well as the procedure as laid down by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] is fully satisfied by the trial court."
25. In Dev Wati (Supra), Court considered the correctness of an order passed by the High Court, whereby it upheld the order passed by Sessions Court allowing an application under section 319 Cr.P.C. in a case under Sections- 302/34 I.P.C. Court took notice of the Constitution Bench judgement in Hardeep Singh's case. Court referred to the words "appeal" and 'proved' as interpreted by Constitution Bench, with reference to Section 319 Cr.P.C. and on basis thereof examined the veracity of order impugned. Following was determined in paragraphs- 8 and 9 of the judgement:
"8. Section 319(1) CrPC empowers the court to proceed against other persons who "appear" to be guilty of an offence, though not accused before the court. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has ruled that the word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved", and imparts a lesser degree of probability than proof. Though only a prima facie case is to be established from the evidence led before the Court, it requires much stronger evidence than a mere probability of the complicity of the persons against whom the deponent has deposed. The test that has to be applied is of a degree of satisfaction which is more than that of a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, may lead to conviction of the proposed accused. In the absence of such satisfaction, the Court should refrain from exercising the power under Section 319 CrPC. In our considered opinion, the impugned judgment has been passed by the High Court keeping the aforementioned principle in mind, though the said judgment has not been cited before the High Court.
9. On considering the deposition of PW 9, we do not find any valid ground to take a different view from that of the High Court and the Sessions Court. Additionally, though the advocate for the appellants raised certain issues on facts, the same cannot be considered at this stage, inasmuch as such factors will have to be considered by the Sessions Court while deciding the matter before it on merits."
26. In spite of law relating to summoning of a non-charge sheeted accused having been fairly settled, the issue regarding summoning of a non charge sheeted accused under section 319 Cr.P.C. to face trial for offences under Sections- 147, 448, 294B and 506 I.P.C., on the basis of statements of witnesses examined under section 161 Cr.P.C. came to be considered in Periyasamai (Supra). Here again Court took notice of paragraphs 105 and 106 of Constitution Bench judgement in Hardeep Singh's case as well as paragraph 12 of the judgement in Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644, which provides the nature of evidence, required to summon a non charge sheeted accused. Upon evaluation of statements of prosecution witnesses who had deposed before Court in the light of above Court expressed itself as follows in paragraphs 13, 14, 15 and 16:
"13. In the statements recorded under Section 161 of the Code during the course of investigation, the complainant and his witnesses have not disclosed any other name except the 11 persons named in the FIR. Thus, the complainant has sought to cast net wide so as to include numerous other persons while moving an application under Section 319 of the Code without there being primary evidence about their role in house trespass or of threatening the complainant. Large number of people will not come to the house of the complainant and would return without causing any injury as they were said to be armed with weapons like crowbar, knife and ripper, etc.
14. In the first information report or in the statements recorded under Section 161 of the Code, the names of the appellants or any other description has not been given so as to identify them. The allegations in the FIR are vague and can be used any time to include any person in the absence of description in the first information report to identify such person. There is no assertion in respect of the villages to which the additional accused belong. Therefore, there is no strong or cogent evidence to make the appellants stand the trial for the offences under Sections 147, 448, 294(b) and 506 IPC in view of the judgment inHardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] . The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.
15. The High Court has set aside the order passed by the learned Magistrate only on the basis of the statements of some of the witnesses examined by the complainant. Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the complainant is a husband and has initiated criminal proceedings against the family of his in-laws and when their names or other identity were not disclosed at the first opportunity.
16. Consequently, the order passed by the learned High Court is set aside and that of the trial court is restored and the application under Section 319 of the Code is dismissed. The appeal is allowed."
27. In Sunil Kumar Gupta (Supra), Court considered the issue regarding summoning of a prospective accused under section 319 Cr.P.C. to face trial under Sections- 498A, 304B/302 I.P.C. and Sections- ¾ Dowry Prohibition Act, on the strength of an oral dying declaration even when his name was not mentioned in F.I.R, dying declaration or the statements of P.W.1 and P.W.3. In this case also, Court noticed the observations made in paragraphs 21 to 23 and 105 to 106 by Constitution Bench in Hardeep Singh's case. Having noticed the ratio laid down in above judgment, Court proceeded to apply the principles laid down therein and ultimately decided as follows in paragraphs 13 and 14:
"13. Applying the above principles to the case in hand, in our considered view, no prima facie case is made out for summoning the appellants and to proceed against the appellants for the offence punishable under Section 302 IPC. As pointed out earlier, in the dying declaration, deceased Shilpa has only mentioned the name of Chanchal alias Babita; but she has not mentioned the names of others. In his complaint lodged before the police on the next day i.e. 20-8-2012, Sudhir Kumar Gupta PW 1 has stated that his daughter Shilpa told him that Chanchal alias Babita and all other people set her on fire after pouring kerosene. PW 1 has neither stated the names of the appellants nor attributed any overt act. Likewise, in their evidence before the court, PWs 1 and 3 have only stated that Shilpa told them that Chanchal alias Babita and all others have set fire on deceased Shilpa. Neither the complaint nor the evidence of witnesses indicates as to the role played by the appellants in the commission of the offence and which accused has committed what offence. Under such circumstances, it cannot be said that the prosecution has shown prima facie material for summoning the accused for the offence punishable under Section 302 IPC.
14. Under Section 319 CrPC, a person can be added as an accused invoking the provisions not only for the same offence for which the accused is tried but for "any offence"; but that offence shall be such that in respect of which all the accused could be tried together. It is to be seen whether the appellants could be summoned for the offence under Section 498-A IPC and under Sections 3 and 4 of the Dowry Prohibition Act. The statement of PW 1 both in the complaint and in his evidence before the court is very general stating that he had given sufficient dowry to Shilpa according to his status and that the groom side were not satisfied with the dowry and that they used to demand dowry each and every time. Insofar as the demand of dowry and the dowry harassment, there are no particulars given as to the time of demand and what was the nature of demand. The averments in the complaint and the evidence is vague and no specific demand is attributed to any of the appellants. In such circumstances, there is no justification for summoning the appellants even under Section 498-A IPC and under Sections 3 and 4 of the Dowry Prohibition Act. It is also pertinent to point out that upon completion of investigation, the investigating officer felt that no offence under Sections 498-A, 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act is made out. Charge-sheet was filed for the offence punishable only under Section 302 IPC against Chanchal alias Babita. As held in the Constitution Bench judgment in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , for summoning an accused under Section 319 CrPC it requires much stronger evidence than mere probability of his complicity which is lacking in the present case. The trial court and the High Court, in our considered view, has not examined the matter in the light of the well-settled principles and the impugned order is liable to be set aside."
28. In Rajesh and Others (Supra), Court again considered the principles governing the exercise of jurisdiction under section 319 Cr.P.C in a situation, where a person is named in F.I.R., and specific allegations are made against him yet not charge sheeted nor any protest petition having been filed in Court by first informant after submission of charge sheet. Here again Court took notice of the law laid down by Apex Court in Hardeep Singh (Supra) and Brijendra Singh (Supra) and then evaluated oral testimony of P.W.1 and P.W.2 whose testimonies did implicate the non charge sheeted accused in a case under Sections- 302, 307, 148, 149, 323, 324, 325 and 506 I.P.C. Ultimately, Court settled the issue as follows in paragraphs 6.8, 6.9, 6.10, 7 and 8:
"6.8. Considering the law laid down by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till the cross-examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.
6.9. In S. Mohammed Ispahani v. Yogendra Chandak [S. Mohammed Ispahani v.Yogendra Chandak, (2017) 16 SCC 226 : (2018) 2 SCC (Cri) 138] , SCC para 35, this Court has observed and held as under : (SCC p. 243) "35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."
6.10. Thus, even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in the FIR but not implicated in the charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.
7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that, in the facts and circumstances of the case, neither the learned trial court nor the High Court have committed any error in summoning the appellants herein to face the trial along with other co-accused. As observed hereinabove, the appellants herein were also named in the FIR. However, they were not shown as accused in the challan/charge-sheet. As observed hereinabove, nothing is on record whether at any point of time the complainant was given an opportunity to submit the protest application against non-filing of the charge-sheet against the appellants. In the deposition before the Court, PW 1 and PW 2 have specifically stated against the appellants herein and the specific role is attributed to the appellant-accused herein. Thus, the statement of PW 1 and PW 2 before the Court can be said to be "evidence" during the trial and, therefore, on the basis of the same and as held by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , the persons against whom no charge-sheet is filed can be summoned to face the trial. Therefore, we are of the opinion that no error has been committed by the courts below to summon the appellants herein to face the trial in exercise of power under Section 319 CrPC.
8. Now, so far as the submissions made on behalf of the appellants herein relying upon the orders passed by the learned Magistrate dated 1-9-2016 and 28-10-2016 that once the appellants herein were discharged by the learned Magistrate on an application submitted by the investigating officer/SHO and, therefore, thereafter it was not open to the learned Magistrate to summon the accused to face the trial in exercise of power under Section 319 CrPC is concerned, it appears that there is some misconception on the part of the appellants. At the outset, it is required to be noted that the orders dated 1-9-2016 and 28-10-2016 cannot be said to be the orders discharging the accused. If the applications submitted by the investigating officer/SHO and the orders passed thereon are considered, those were the applications to discharge/release the appellants herein from custody as at that stage the appellants were in judicial custody. Therefore, as such, those orders cannot be said to be the orders of discharge in stricto sensu. Those are the orders discharging the appellants from custody. Under the circumstances, the submission on behalf of the accused that as they were discharged by the learned Magistrate and therefore it was not open to the learned Magistrate to exercise the power under Section 319 CrPC and to summon the appellants to face the trial, cannot be accepted."
29. Inspite of above noted judgements of Apex Court, wherein parameters regarding exercise of jurisdiction under section 319 Cr.P.C. and the nature of evidence required to summon a prospective accused has been fairly crystallized, yet the necessity to refer the matter again to a Constitution Bench for re-consideration arose in Sukhpal Singh Khaira (Supra) . In aforesaid case, court was considering the summoning of a non charge-sheeted accused to face trial in a Sessions Trial under Sections- 302 read with Sections- 149 and 323 I.P.C. and Section 27 of Arms Act. Court noticed the observations made in paragraph 47 of Constitution Bench in Hardeep Singh's case but still opined that the matter requires consideration by a Constitution Bench as certain questions still remain unanswered in Hardeep Singh's case and further the parameters regarding the exercise of jurisdiction under section 319 Cr.P.C. need to be re laid down. Following was observed by the Court in paragraphs 22, 23, 24, 25, 26 and 27:
"22. It was contended that the question of law herein is unique to the present case, and the earlier judgment of Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] did not have an opportunity to cast any light about the validity of summoning orders pronounced after the passing of the judgment. They further argued that, Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , treats Section 319 in an isolated manner without taking into consideration the spirit and the mandate of the Code.
23. To strengthen the aforesaid submission, the State further contended that Section 465 CrPC was introduced to provide for a balanced mechanism under the Criminal Justice System and to stop the courts from getting into hypertechnicalities and committing serious violations. This Court in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has not considered the above principles or the issues which could possibly arise before the trial court while dealing with applications under Section 319 CrPC. The State therefore submitted that, Section 319 CrPC should not be treated as an isolated island and should instead be given a pragmatic interpretation by keeping in view the entire mandate of the Code to render complete justice.
24. Furthermore, it needs to be determined whether the trial is said to be fully concluded even if the bifurcated trial in respect of the absconded accused is still pending consideration.
25. The appellant herein contended that, the observations made in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , cannot be diluted by a Bench of this strength. We have considered the averments made by the counsel on behalf of both parties, we feel that it would be appropriate to place the same for consideration before a larger Bench. However, we are of the considered opinion that, power under Section 319 CrPC being extraordinary in nature, the trial courts should be cautious while summoning the accused to avoid complexities and to ensure fair trial. We must remind ourselves that, timely disposal of the matters furthers the interest of justice.
26. After pursuing the relevant facts and circumstances, the following substantial questions of law arise for further consideration--
26.1.(i) Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
26.2.(ii) Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
26.3.(iii) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?
27. In the light of the same, we direct the Registry to place these matters before the Hon'ble the Chief Justice of India for constitution of a Bench of appropriate strength for considering the aforesaid questions."
30. In Mani Pushpak Joshi (Supra), Court was considering correctness of an order passed by High Court refusing to set aside an order passed by trial Court allowing an application under section 319 Cr.P.C. in a case under Sections- 376(2) I.P.C. and Sections- 5/6 POCSO Act. In this case, Court noticed the observations made by Constitution Bench in Hardeep's Singh case in paragraphs 100, 105 and 106 of the judgement and paragraph 13 of the judgement in Labhuji Amratji Thakor Vs State of Gujarat, (2019) 12 SCC 644, which is regarding the nature of evidence required for summoning of a non charge sheeted accused and applying the principles laid down therein, Court ultimately resolved as follows in paragraphs 12, 13, 14, 15 and 16:
"12. In Labhuji Amratji Thakor v. State of Gujarat [Labhuji Amratji Thakor v. State of Gujarat, (2019) 12 SCC 644 : AIR 2019 SC 734] , this Court held that the Court has to consider substance of the evidence, which has come before it and has to apply the test i.e. "more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. It was held as under: (SCC p. 649, paras 13-14) "13. The High Court [Meruji Jesuji Thakore v. State of Gujarat, 2018 SCC OnLine Guj 4765] does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that the Court has power under Section 319 CrPC to proceed against any person who is not named in the FIR or in the charge-sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 CrPC. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has to apply the test i.e. 'more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction'.
14. Although, the High Court has not adverted to the test laid down by the Constitution Bench in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] nor has given any cogent reasons for exercise of power under Section 319 CrPC, but for our satisfaction, we have looked into the evidence, which has come on record before the trial court ... The observations of the trial court while rejecting the application having that the application appears to be filed with mala fide intention, has not even been adverted to by the High Court."
13. Having heard the learned counsel for the parties at some length, we find that the order summoning the appellant for the offences under Section 376(2) of the Penal Code, 1860 (for short "IPC") read with Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the Pocso Act") is not sustainable in law.
14. The prosecutrix is a small child. It is parents of the child who have taken the photographs either from the website of the school or from Facebook to introduce a person with spectacles as an accused. The initial version of the father of the prosecutrix and of the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person. But in view of statement of Gauri Vohra (PW 11), the anger was directed against the management of the school of which the appellant is a part. Even if the father of the child has basis to be angry with the management of the school but, we find that no prima facie case of any active part on the part of the appellant is made out in violating the small child. The involvement of other persons on the statement of the child of impressionable age does not inspire confidence that the appellant is liable to be proceeded under Section 319 CrPC. In fact, it is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant.
15. Obviously, the father of the child must have anger against the management of the school as his child was violated when she was studying in the school managed by the appellant but, we find that the anger of the father against the management of the school including the appellant is not sufficient to make him to stand trial for the offences punishable under Section 376(2) IPC read with Sections 5/6 of the Pocso Act.
16. The statement of the child so as to involve a person wearing spectacles as an accused does not inspire confidence disclosing more than prima facie to make him to stand trial of the offences. Therefore, we hold that the order of summoning the appellant under Section 319 CrPC is not legal. The fact, that the prosecution after investigations has found no material to charge the present appellant also cannot be ignored. The heinous crime committed should not be led into prosecuting a person only because he was part of the management of the school. We have extracted the evidence led by the prosecution only to find out if there is any prima facie case against the appellant. We are satisfied that there is no prima facie case against the appellant, which warrants his trial for the offences pending before the Court."
31. In Sugreev Kumar (Supra), Court was examining correctness of an order passed by High Court, whereby order passed by trial Court allowing an application under section 319 Cr.P.C. in a case under Sections- 302, 307, 341, 34 I.P.C. and Sections- 25, 54 and 59 Arms Act, was upheld by the High Court. In this case also, Court considered the ratio laid down by Constitution Bench in Hardeep Singh's Case in paragraphs 95, 105 and 106 and thereafter Court formulated its view as follows in paragraphs 18, 19, 20, 21, 22 and 23:
"18. Thus, the provisions contained in Section 319 CrPC sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prima facie opinion which is to be formed for exercise of this power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prima facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.
19. While applying the abovementioned principles to the facts of the present case, we are of the view that the consideration of the application under Section 319 CrPC in the orders impugned had been as if the existence of a case beyond reasonable doubt was being examined against the proposed accused persons. In other words, the trial court and the High Court have proceeded as if an infallible case was required to be shown by the prosecution in order to proceed against the proposed accused persons. That had clearly been an erroneous approach towards the prayer for proceeding against a person with reference to the evidence available on record.
20 The appellant (PW 1) has made the statement assigning specific roles to the proposed accused persons. At the stage of consideration of the application under Section 319 CrPC, of course, the trial court was to look at something more than a prima facie case but could not have gone to the extent of enquiring as to whether the matter would ultimately result in conviction of the proposed accused persons.
21. The other application moved by the prosecution after leading of further evidence in the matter has been rejected by the trial court essentially with reference to the impugned orders dated 24-7-2014 and 2-7-2018 [Sugreev Kumar v. State of Punjab, 2018 SCC OnLine P&H 1848] , which are the subject-matter of challenge in this appeal.
22. In the totality of the circumstances of this case, rather than dilating further on the evidence, suffice it would be to observe for the present purpose that the prayer of the prosecution for proceeding against other accused persons, having not been examined in the proper perspective and with due regard to the applicable principles, deserves to be restored for reconsideration of the trial court.
23. Accordingly, this appeal is allowed in part, to the extent and in the manner that the impugned orders are set aside and the applications made by the prosecution under Section 319 CrPC are restored for reconsideration of the trial court. In the interest of justice, it is made clear that we have not pronounced on the merits of the case either way and it would be expected of the trial court to reconsider the prayer of prosecution for proceeding against the proposed accused persons totally uninfluenced by any observation herein regarding facts of the case but with due regard to the evidence on record and to the law applicable."
32. In Labhuji Amratji Thakor (Supra), a three Judges Bench of Supreme Court considered correctness of an order passed by High Court, whereby order passed by trial court rejecting an application under section 319 Cr.P.C in a case under Sections- 363, 366 I.P.C. and Sections- 3/4 POCSO Act, was set aside. Again Court took notice of paragraphs 105 and 106 of judgement in Hardeep Singh's case, and then applied the principles laid down therein to the facts of the case. Upon evaluation of facts in the light of above, Court concurred with the view of the trial court by observing as under in paragraphs 10, 11 and 12:
"10. In the present case, there are not even suggestions of any act done by the appellants amounting to an offence referred to in Sections 3 and 4 of thePocso Act. Thus, there was no occasion to proceed against the appellants under the Pocso Act.
11. Now, we come back to the reasons given by the High Court in allowing the criminal revision and setting aside the order of the Pocso Judge. The judgment of the High Court runs into four paragraphs and the only reason given by the High Court for allowing the revision is contained in para 3, which is to the following effect:
"3. On going through the depositions of the victim as well as her mother, some overtact and participation on the part of Respondents 3 to 5 are clearly revealing. But, this Court is not inclined to opine either way as the said fact was not stated before the police at the time of recording of their statements. But, taking into consideration the provision of Section 319 of the Criminal Procedure Code, this Court deems it appropriate to summon them and put them to trial...."
12. The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that the Court has power under Section 319 CrPC to proceed against any person who is not named in the FIR or in the charge-sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 CrPC. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has to apply the test i.e. "more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction." Although, the High Court has not adverted to the test laid down by the Constitution Bench in Hardeep Singh[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] nor has given any cogent reasons for exercise of power under Section 319 CrPC, but for our satisfaction, we have looked into the evidence, which has come on record before the trial court as statements of PW 3 and PW 4. PW 3 is mother of the victim, who has clearly stated that her daughter has informed that she was abducted by the appellants and Natuji, who had taken her to the Morbi in the vehicle of Labhuji. The statement of the mother of the victim was a hearsay statement and could not have been relied for proceeding against the appellants. Now, coming to the statement of the victim, PW 4, she has only stated that Natuji, the accused had come along with his three friends, i.e. appellants and she was taken in the jeep to Morbi. She does not even allege complicity of the appellants in the offence. Her further statement was that she was taken to Morbi in the jeep driven by Labhuji and subsequently was taken to Modasa from Morbi in the jeep of Labhuji which also could not furnish any basis to proceed against the appellants. The mere fact that the jeep, in which she was taken to Modasa, the appellants were also present cannot be treated to be any allegation of complicity of the appellants in the offence. The observations of the trial court while rejecting the application holding that the application appears to be filed with mala fide intention, has not even been adverted to by the High Court."
33. In Shiv Prakash Mishra (Supra), Court again considered the veracity of an order passed on an application under section 482 Cr.P.C., whereby High Court refused to interfere with the order passed by trial Court declining to exercise jurisdiction under section 319 Cr.P.C. in a case arising out of Case Crime No. 328A/2013, under Sections- 148, 148, 149, 302, 307, 323 and 504 I.P.C. Again observations made by Constitution Bench in paragraphs 105 and 106 of judgement in Hardeep Singh's case as explained in paragraphs 13 of Brijendra Singh's case were noticed and on basis thereof court considered the nature of evidence required for summoning a non charge sheeted accused. It was in aforesaid background that Court examined the testimonies of P.W.1 and P.W.2 therein and summarized its views as follows in paragraphs 13, 14, 15, 16 and 17 of the judgement:
"13. In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that Respondent 2 cannot be summoned as an accused. The FIR in Case Crime No. 328-A/2013 was registered on 6-9-2013 at 1815 hours. The name of the second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the investigating officer recorded the statements of witnesses, namely, Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that Respondent 2 was not present at the place of occurrence at the time of the incident. The investigating officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which Respondent 2 was employed who had stated that Respondent 2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the investigating officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 6-9-2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the investigating officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge-sheet was filed on 19-9-2014. The supplementary charge-sheet was filed against Rahul Shukla on 15-10-2014. Though the name of the second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the investigating officer, he was not charge-sheeted. Be it noted that the appellant complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon Respondent 2 as an accused.
14. As pointed out by the trial court, PW 1 was examined on various dates from 22-10-2016 to 2-8-2017 and examined on nine hearing dates. Though, in his chief-examination on 22-10-2016, PW 1 has stated about the presence of Subhash Chandra Shukla and attributing overt act to him that he had beaten the deceased Sangam Lal Mishra with butt of home-made pistol, on 28-2-2017, PW 1 in his cross-examination stated that Subhash Chandra Shukla was on duty at that time. The relevant portion of the statement of PW 1 reads as under:
"... Subhash Chandra Shukla does not live in the house. He does service/job. At the same time in Jigna Police Station, District Mirjapur he was making bridge and due to this reason, he was on duty there...."
15. As pointed out by the trial court and the High Court, PW 1 has made contradictory statements in the course of his examination in connection with the presence of Subhash Chandra Shukla.
16. Anand Kumar Mishra (PW 2) has been examined who is stated to be the eyewitness. PW 2 has been working as Assistant Teacher (Shiksha Mitra). His duty time is from 7.00 a.m. till 12.00 noon. PW 2 though stated that he was on leave on the date of occurrence i.e. 6-9-2013, the trial court expressed doubts about his presence at the time of occurrence. Considering the fact that PW 2 is working as a teacher and that PW 2 is a co-accused in the cross-case, the trial court and the High Court expressed doubts about the evidence of PW 2 as to the presence of the second respondent. The evidence brought on record during trial does not prima facie show the complicity of Respondent 2 in the occurrence and the High Court was justified in refusing to summon Respondent 2 as an accused.
17. The High Court and the trial court concurrently held that the materials brought on record are not sufficient to summon the second respondent as an accused in the present case. No substantial ground is made out warranting interference and the appeal is liable to be dismissed."
34. In Sartaj Singh (Supra), Court was examining correctness of an order passed by the High Court, whereby High Court allowed the revision and set-aside the order passed by trial court on an application under Section 319 Cr.P.C., whereby non charge sheeted accused were summoned to face trial in a sessions case, arising out of an F.I.R. under Sections- 148, 149, 341, 323, 324, 307 and 506 I.P.C. Court noticed the Constitution Bench judgement in Hardeep Singh's case as well as the judgement in S. Mohammed Ispahani (Supra). After applying the law laid down therein, Court proceeded to deduce the nature of evidence that is required for summoning of a non charge-sheeted accused and upon evaluation, disagreed with the view expressed by High Court by drawing its disagreement as follows in paragraphs 14, 15, 16 and 17 of the judgement:
"14. Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, we are of the opinion that the learned trial court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant--injured eyewitness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the court need not wait till his cross-examination. If on the basis of the examination-in-chief of the witness the court is satisfied that there is a prima facie case against the proposed accused, the court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial.
15. At this stage, it is required to be noted that right from the beginning the appellant herein-injured eyewitness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not charge-sheeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not charge-sheeted. In any case, in the examination-in-chief of the appellant-injured eyewitness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examination-in-chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein-injured eyewitness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the court. Therefore, as such, the learned trial court was justified in directing to issue summons against the private respondents herein to face the trial.
16. Now, so far as the impugned judgment and order [Manjeet Singh v. State of Haryana, 2020 SCC OnLine P&H 2782] passed by the High Court is concerned, it appears that while quashing and setting aside the order passed by the learned trial court, the High Court has considered/observed as under: (Manjeet Singh case [Manjeet Singh v. State of Haryana, 2020 SCC OnLine P&H 2782] , SCC OnLine P&H paras 29-30) "29. No evidence except the statement of Sartaj Singh, which has already been investigated into by the DSPs concerned was relied upon by the trial court to summon, which was not sufficient for exercising power under Section 319 CrPC.
30. As per statement of Sartaj Singh, Palwinder Singh and Satkar Singh gave him lathi-blows on the head. Manjeet Singh, Amarjeet Singh, Rajwant Singh, Narvair Singh and Sukhdev Singh were holding gandasi. Manjeet Singh, Amarjeet Singh and Rajwant Singh gave him gandasi-blows on the head and face. All the injuries are stated to fall in the offence under Sections 323, 324, 326, 341 read with Section 149 IPC. In case, so many people as mentioned above were giving gandasi and lathis blows on the head, Sartaj Singh was bound to have suffered more injuries, which would not have left him alive and probably he would have been killed on the spot. He seems to have escaped with only such injuries as have invited offence only under Sections 323, 324, 326, 341 read with Section 149 IPC. Therefore, the trial court erred in exercising his jurisdiction summoning the other accused where exaggeration and implication is evident on both sides."
17. The aforesaid reasons assigned by the High Court are unsustainable in law and on facts. At this stage, the High Court was not required to appreciate the deposition of the injured eyewitness and what was required to be considered at this stage was whether there is any prima facie case and not whether on the basis of such material the proposed accused is likely to be convicted or not and/or whatever is stated by the injured eyewitness in his examination-in-chief is exaggeration or not. The aforesaid aspects are required to be considered during the trial and while appreciating the entire evidence on record."
35. In Manjeet Singh (Supra), Court was considering the correctness of an order passed by High Court dismissing the revision preferred against an order passed by Sessions Judge allowing the application under Section 319 Cr.P.C. filed in a case under Sections 363, 366, 376 IPC and Sections 3/4 Protection of Children From Sexual Offences, (POCSO) Act, 2012 Court again examined the issue relating to parameters for exercise of jurisdiction under section 319 Cr.P.C. Court took notice of the constitution Bench judgement in Hardeep Singh (Supra) and S. Mohammed Ispahani (Supra) and on basis of ratio laid down therein evolved the ambit and scope of powers of Court under section 319 Cr.P.C. in paragraphs 34 of judgement. Having done so, Court examined the testimony of P.W.1 Manjeet who is an injured witness and on basis thereof tested the veracity of orders passed by High Court as well as trial court whereby summoning of non charge sheeted accused was declined. Court upon evaluation of evidence on record disagreed with the view taken by High Court as well as trial court. Following disagreement was expressed by court in paragraphs 34, 35, 36, 37 and 38 of the judgement:
"34. The ratio of the aforesaid decisions on the scope and ambit of the powers of the Court under Section 319 CrPC can be summarized as under:
(i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the legislature under the CrPC indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law;
(iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished;
(v) where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial;
(vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it;
(vii) the court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency;
(viii) Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial;
(ix) the power under Section 319(1) CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage intended to put the process into motion;
(x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence;
(xi) the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents;
(xii) it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation;
(xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised;
(xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross-examination;
(xvi) even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses);
(xvii) while exercising the powers under Section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial.
35. Applying the law laid down in the aforesaid decisions to the facts of the case on hand we are of the opinion that the Learned trial Court as well as the High Court have materially erred in dismissing the application under Section 319 CrPC and refusing to summon the private respondents herein to face the trial in exercising the powers under Section 319 CrPC. It is required to be noted that in the FIR No. 477 all the private respondents herein who are sought to be arraigned as additional accused were specifically named with specific role attributed to them. It is specifically mentioned that while they were returning back, Mahendra XUV bearing no. HR-40A-4352 was standing on the road which belongs to Sartaj Singh and Sukhpal. Tejpal, Parab Saran Singh, Preet Samrat and Sartaj were standing. Parab Sharan was having lathi in his hand, Tejpal was having a gandsi, Sukhpal was having a danda, Sartaj was having a revolver and Preet Singh was sitting in the jeep. It is specifically mentioned in the FIR that all the aforesaid persons with common intention parked the Mahendra XUV HR-40A-4352 in a manner which blocks the entire road and they were armed with the weapons. Despite the above specific allegations, when the charge-sheet/final report came to be filed only two persons came to be charge-sheeted and the private respondents herein though named in the FIR were put/kept in column no. 2. It is the case on behalf of the private respondents herein that four different DSPs inquired into the matter and thereafter when no evidence was found against them the private respondents herein were put in column no. 2 and therefore the same is to be given much weightage rather than considering/believing the examination-in-chief of the appellant herein. Heavy reliance is placed on the case of Brijendra Singh (Supra). However none of DSPs and/or their reports, if any, are part of the charge-sheet. None of the DSPs are shown as witnesses. None of the DSPs are Investigating Officer. Even on considering the final report/charge-sheet as a whole there does not appear to be any consideration on the specific allegations qua the accused the private respondents herein who are kept in column no. 2. Entire discussion in the charge-sheet/final report is against Sartaj Singh only.
36. So far as the private respondents are concerned only thing which is stated is "During the investigation of the present case, Shri Baljinder Singh, HPS, DSP Assandh and Shri Kushalpal, HPS, DSP Indri found accused Tejpal Singh, Sukhpal Singh, sons of Gurdev Singh, Parab Sharan Singh and Preet Samrat Singh sons of Mohan Sarup Singh caste Jat Sikh, residents of Bandrala innocent and accordingly Sections 148, 149 and 341 of the IPC were deleted in the case and they were kept in column no. 2, whereas challan against accused Sartaj has been presented in the Court."
37. Now thereafter when in the examination-in-chief the appellant herein - victim - injured eye witness has specifically named the private respondents herein with specific role attributed to them, the Learned trial Court as well as the High Court ought to have summoned the private respondents herein to face the trial. At this stage it is required to be noted that so far as the appellant herein is concerned he is an injured eye-witness. As observed by this Court in the cases of State of MP v. Mansingh(2003) 10 SCC 414 (para 9); Abdul Sayeed v. State of MP (2010) 10 SCC 259; State of Uttar Pradesh v. Naresh (2011) 4 SCC 324, the evidence of an injured eye witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. As observed hereinabove while exercising the powers under Section 319 CrPC the Court has not to wait till the cross-examination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial under Section 319 CrPC.
38. Now so far as the reasoning given by the High Court while dismissing the revision application and confirming the order passed by the Learned trial Court dismissing the application under Section 319 CrPC is concerned, the High Court itself has observed that PW1 Manjeet Singh is the injured witness and therefore his presence cannot be doubted as he has received fire arm injuries along with the deceased. However, thereafter the High Court has observed that the statement of Manjeet Singh indicates over implication and that no injury has been attributed to either of the respondents except they were armed with weapons and the concerned injuries are attributed only to Sartaj Singh even for the sake of arguments someone was present with Sartaj Singh it cannot be said that they had any common intention or there was meeting of mind or knew that Sartaj would be firing. The aforesaid reasonings are not sustainable at all. At the stage of exercising the powers under Section 319 CrPC, the Court is not required to appreciate and/or enter on the merits of the allegations of the case. The High Court has lost sight of the fact that the allegations against all the accused persons right from the very beginning were for the offences under Sections 302, 307, 341, 148 & 149 IPC. The High Court has failed to appreciate the fact that for attracting the offence under Section 149 IPC only forming part of unlawful assembly is sufficient and the individual role and/or overt act is immaterial. Therefore, the reasoning given by the High Court that no injury has been attributed to either of the respondents except that they were armed with weapons and therefore, they cannot be added as accused is unsustainable. The Learned trial Court and the High Court have failed to exercise the jurisdiction and/or powers while exercising the powers under Section 319 CrPC."
36. With the aid of above, Court now proceeds to examine the correctness of impugned order dated 15.02.2021, passed by Second Additional District and Sessions Judge, Kasganj, in Sessions Trial No.329 of 2018, (State Vs. Vineet Yadav and Others), under Sections- 307, 427, 506 and 325 I.P.C., Police Station- Sidhpura, District- Kasganj, whereby revisionist has been summoned under Section 319 Cr.P.C. to face trial in above-mentioned sessions trial.
37. Before proceeding to do so, it must be noticed that following issues stand settled as per the judgements mentioned herein above and, therefore, they are not required to be dealt with.
38. The ambit and scope of powers under Section 319 Cr.P.C. now stands crystalized by Supreme Court in paragraph- 34 of the judgement in Manjeet Singh (supra).
39. The summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
40. The nature of evidence required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph- 106 of the Constitution Bench judgement in Hardeep Singh (supra) wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of prosecution witness of fact. The only requirement is that such statement discloses more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. The second test laid down therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani (supra) Court held that a non charge sheeted accused can be summoned only on the basis of "strong and cogent evidence".
41. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
42. Having noted the settled position, the Court is now required to consider whether on the testimonies of P.W.1 and P.W.2, revisionist could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier manner."
43. P.W.1 Rajesh Kumar is first informant. He is also an eye-witness of the occurrence. This witness was travelling along with others in the car which was damaged by named accused. His statement-in-chief as well as examination-in-chief have been recorded. As such his testimony falls in the realm of legal evidence. While considering an application under Section 319 Cr.P.C., Court can rely upon the statement-in-chief of a witness, vide paragraph- 92 of the Constitution Bench judgement in Hardeep Singh (supra). Therefore, no illegality has been committed by court below in relying upon statement-in-chief as well as examination-in-chief of this witness.
44. Statement-in-chief/examination-in-chief of P.W.1 Rajesh Kumar is on record as Annexure-14 to the affidavit filed in support of present revision.
45. Perusal of same goes to show that P.W.1 has categorically stated about the time, place and manner of occurrence. This witness has clearly implicated revisionist alongwith others in the crime in question. His presence at the time and place of occurrence along with others has been categorically stated by this witnesses. This witness in his deposition has clearly stated that revisionist was present at the time and place of occurrence alongwith other accused. As such, complicity of revisionist in crime in question is established. P.W.1 has also been cross-examined. However, upon perusal of examination-in-chief of P.W.1, Court does not find that any such material was culled out from this witness, on the basis of which his testimony could be discarded at this stage. Testimony of P.W.1 clearly satisfies the test as noted in paragraph- 106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Court has noticed Section 319 Cr.P.C. and has laid emphasis on the term "for which such person could be tried together with the accused". His testimony also satisfies the other test laid down in aforesaid paragraphs of above-noted judgement which is as follows: The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In view of fact that P.W.1 has been cross examined, wherein presence of revisionist at the time and place of occurrence stands established, as such, his testimony falls in the realm of "strong and cogent evidence." As such, testimony of this witness also satisfies the test laid down in S. Mohammaed Ispahani (Supra).
46. P.W.2, Sandeep is also an eye-witness of the occurrence. He was also travelling in the same car which was damaged by named accused. As such, his presence at the time and place of occurrence, cannot be doubted. This witness is also an injured witness. He has categorically detailed the manner of occurrence and how subsequently injured, Ram Chandra Gola was taken by police. Medico Legal report of this witness which is on record at page- 51 of the paper book clearly shows that this witness has sustained injuries. As such, credibility of this witness is higher. This witness has also been cross-examined by charge-sheeted accused, but they could not cull out any such statement on the basis of which, it can be said that his testimony is neither "strong nor cogent". Defence could not establish upto this stage that this injured witness has sustained injuries in another incident. As such, there is nothing on record to disbelieve this witness. The nature of evidence required for summoning an accused under Section 319 Cr.P.C. as noted herein above is also satisfied in respect of this witness also.
47. In view of above, submission urged by Mr. Rajiv Lochan Shukla, learned counsel for revisionist that court below has pre-empted the disposal of application under Section 319 Cr.P.C., inasmuch as, the Investigating Officer has not yet been examined and he was the best person to disclose the circumstances on the basis of which, revisionist was exculpated in the charge-sheet, though appears fanciful at the first flush, but is misconceived in view of law laid down by Constitution Bench in Hardeep Singh (supra).
48. The second submission urged by Mr. Rajiv Lochan Shukla, learned counsel for revisionist that nothing new has been stated by P.W.1 and P.W.2 in their depositions before Court than what was stated before Investigating Officer in their statements under section 161 Cr.P.C., the Court finds that no ground regarding above has been raised in the memo of revision. However, upon perusal of statements of P.W.1 and P.W.2 as recorded under section 161 Cr.P.C. which are on record as Annexure-4 and Annexure-8 to the affidavit, the Court finds that aforesaid witnesses in their statements as well as depositions before Court below have supported the prosecution story as unfolded in F.I.R. In their cross examination, defence has failed to cull out any such fact on the basis of which their testimonies could be discarded being unworthy of acceptance at this stage. For the conclusion drawn regarding nature of evidence of P.W.1 and P.W.2 herein above, submission urged by learned counsel for revisionist is by itself unable to dislodge the credibility and reliability of P.W.1 and P.W.2 at this stage, wherein complicity of revisionist in the crime in question stands established.
49. Apex Court in Rajesh and Others (Supra), Sugreev Kumar (Supra), Shiv Prakash Mishra (Supra) and Sartaj Singh (Supra) considered the veracity of order passed on an application under section 319 Cr.P.C. wherein prospective accused were summoned in cases under section 302, 307 IPC or both. In all the cases referred to above, Court has meticulously examined the testimonies of prosecution witnesses in each of above mentioned case in the light of tests laid down by Apex Court in Hardeep Singh (Supra) and S.Mohammed Ispahani(Supra) and after undertaking aforesaid exercise has proceeded to decide whether on the testimony of prosecution witnesses, prospective accused could be summoned or not.
50. The same procedure as adopted by Court in judgements referred to above in preceding paragraph has been applied in present case. Court has not come across any such material to conclude that Court below has not exercised its jurisdiction "diligently" and revisionist has been summoned by Court below in a "casual and caviliar manner". Deposition of P.W.1 and P.W.2 falls in the realm of "strong and cogent evidence" and satisfies the twin test laid down by Constitution Bench in paragraph 105 of the judgement in Hardeep Singh (Supra). It clearly establishes complicity of revisionist in the crime in question.
51. For the facts and reasons noted above, this Court does not find any good ground to interfere in this revision. Revision lacks merit. Same is, therefore, liable to be dismissed.
52. It is, accordingly, dismissed.
Order Date :- 13.09.2021 Arshad