Brindaban Das & Ors vs State Of West Bengal

Case No.XXIX/February, 2006 under Section 2 302 of the Indian Penal Code (G.R. case

No.450 of 2002).

3. The complainant, Ashok Kumar Pattanayak,

lodged the First Information Report at

Gopiballabhpur PS on 29.11.2002 at about

8.25 a.m. alleging that on the same date at

about 7.30/8.00 a.m. while his father,

Ramesh Chandra Pattanayak, was supervising

the work in his brick field known as Hena

Brick, he was assaulted on the head from

behind with a spade (kodal), as a result

whereof he died instantly. The driver of the

truck to whom the deceased was speaking at

the time of assault and the khalasi of the

truck, as well as other labourers, raised a

alarm. The police also arrived at the spot

and apprehended the assailant, Laxman Murmu.

In the FIR it was alleged that besides

Laxman Murmu, several other persons could

also have been behind the incident. The said

FIR was written by Ila Pattanayak, the

sister of the de-facto complainant, and on 3

the basis of the said complaint,

Gopiballabhpur PS Case No.48 of 2002 dated

29.11.2002, was started against the said

Laxman Murmu under Section 302 IPC.

4. During the investigation of the above case,

the appellants herein filed an application

under Section 438 of the Code of Criminal

Procedure before the Sessions Judge and such

prayer for anticipatory bail was allowed on

14.8.2003. The appellants were directed to

appear before the Sub-Judicial Divisional

Magistrate, Jhargram, and on their

appearance before the learned Magistrate on

16.8.2003, the appellants were released on

temporary bail with a direction to them to

bring appropriate orders from the higher

Court. Subsequently, on an application under

Section 439 Cr.P.C. the Sessions Judge,

Paschim Midnapur, granted bail to the

appellants on 23.9.2003. The de-facto

complainant thereupon filed an application 4

under Section 439(2) Cr. P.C. before the

Sessions Judge praying for cancellation of

the bail granted to the appellants but the

same was rejected on 16.12.2003. After

completion of investigation the police

submitted charge-sheet against the accused

Laxman Murmu. As there was no material

against the appellants herein they were

neither shown in the charge-sheet nor were

they sent up for trial and on the prayer

made by the Investigating Officer the

appellants were discharged from the case by

order dated 30.6.2004.

5. Two years later on 22.6.2006 the trial Court

issued warrants of arrest against the

appellants for their alleged refusal to

receive summons which had been issued to

them earlier under Section 319 Cr.P.C. The

said order was challenged in the High Court

in its revisional jurisdiction and it was

submitted that once the appellants had been

discharged on the prayer made on behalf of 5

the Investigating Officer, the trial Court

erred in issuing the summons under Section

319 of the Code on the same materials.

6. The High Court came to the conclusion that

there had not been any wilful defiance of

the summons which necessitated the issuance

of warrant of arrest and disposed of the

revision application with a direction to the

appellants herein to surrender before the

Court within 3 weeks from the date of the

order and thereafter to apply for bail. The

execution of the warrant of arrest was

stayed for a period of four weeks for the

said purpose.

7. It is against the said order of the High

Court that the present appeal has been filed.

8. Mr. Pradip Ghosh, learned senior advocate,

appearing for the appellants, submitted that

in the instant case there was no direct

evidence against the appellants which could

have formed the basis for issuance of

summons under Section 319 Cr.P.C. Not a 6

single eye-witness had been cited in the

instant case and the entire evidence was

hear-say in nature. Mr. Ghosh submitted

that even the complaint had been lodged by

the daughter of the deceased who had not

seen the incident and had come to the place

of occurrence after the offence had been

committed on being informed of the same.

Mr. Ghosh submitted that as provided in

Section 60 of the Indian Evidence Act, 1872,

oral evidence must in all cases, be direct

and when an accused is discharged under

Section 245 Cr.P.C., in the absence of any

fresh material, summons under Section 319 of

the Code could not be issued on the same

evidence. It was submitted that in the

instant case, nothing new had surfaced

during the trial and the evidence that was

available before the Court at the stage of

Sections 244 and 245 of the Code continued

to be the only evidence available when the

application under Section 319 had been made. 7

Mr. Ghosh submitted that the trial Court had

committed an error in allowing the

application of the de-facto complaintant

under Section 319 and summoning the

appellants in the absence of any evidence

against them within the meaning of Section

60 of the Evidence Act.

9. In this regard, Mr. Ghosh firstly referred

to the oft-repeated decision of this Court

in the case of Michael Machado vs. CBI,

[2000 (3) SCC 262] where the essential

conditions for the exercise of power under

Section 319 of Cr.P.C. had been considered

and it was held that the power under Section

319 vested in the Court should be used

sparingly and the evidence on which the same

was to be invoked should indicate a

reasonable prospect of conviction of the

persons to be summoned. This Court went on

to hold that mere suspicion of the

involvement of the person concerned in the

offence was not enough, particularly when a 8

large number of witnesses had been examined

and no evidence on which conviction could be

secured had been adduced on behalf of the

prosecution. It was ultimately observed

that in such a case there could be no

justification for proceeding against the

persons summoned under Section 319 which

would entail recommencing the whole

proceedings against the newly-added persons

and re-examining the witnesses already

examined.

10. Mr. Ghosh also referred to the decision of

this Court in Krishnappa vs. State of

Karnataka, [2004 (7) SCC 792] wherein a

similar question fell for consideration and

again a note of caution was sounded with

regard to invocation of the extraordinary

and discretionary powers under Section 319

of the Code. Their Lordships, while

observing that a person can be summoned even

though proceedings had earlier been quashed

as far as he was concerned, held that the 9

invocation of the power under Section 319

should not have been resorted to, since the

chances of conviction on the basis of the

evidence on record was remote. Holding that

the Trial Court was right in rejecting such

prayer, since the case against the appellant

had been quashed nine years prior to

issuance of summons under Section 319

Cr.P.C., this Court held that the High Court

had erroneously reversed the order of the

Trial Court even though the chances of

conviction on the basis of the evidence

adduced was very remote.

11. The same view was reiterated in the case of

Kuvuluri Vivekananda Reddy vs. State of A.P.

[2005 (12) SCC 432) where a similar

challenge to the summons issued under

Section 319 of the Code was repelled on the

ground that the statement of the witnesses

examined was only general in nature on the

basis of which summons under Section 319 of

the Code ought not to have been issued. Once 1 0 again a note of caution was sounded that the

provisions of Section 319 are required to be

used very sparingly and the summoning of the

appellants after the expiry of eight years,

on the facts and circumstances of the case

and having regard to the nature of the

deposition of the witnesses, was not called

for.

12. Mr. Ghosh finally referred to the decision

of this Court in Municipal Corporation of

Delhi vs. Ram Kishan Rastogi, [1983 (1) SCC

1], which is one of the earlier cases where

the scope of Section 319 had been dealt with

and thereafter followed in the subsequent

cases, wherein it had been observed as

follows:-

"In these circumstances, therefore, if

the prosecution can at any stage produce

evidence which satisfies the Court that the

other accused or those who have not been

arrayed as accused against whom proceedings

have been quashed have also committed the 1 1 offence Court can take cognizance against

them and try them along with the other

accused. But, we would hasten to add that

this is really an extraordinary power which

is conferred on the Court and should be used

very sparingly and only if compelling

reasons exist for taking cognizance against

the other person against whom action has not

been taken. More than this we would not

like to say anything further at this stage.

We leave the entire matter to the discretion

of the Court concerned so that it may act

according to law. We would, however, make

it plain that the mere fact that the

proceedings have been quashed against

respondents 2 to 5 will not prevent the

Court from exercising its discretion if it

is fully satisfied that a case for taking

cognizance against them has been made out on

the additional evidence led before it.'

13. On the basis of his aforesaid submissions,

Mr. Ghosh urged that the Trial Court ought 1 2 not to have issued summons against the

appellants herein under Section 319 Cr.P.C.

without recording satisfaction as to the

sufficiency of the evidence on record for

securing a conviction against the appellants.

14. Appearing for the State of West Bengal, Mr.

Avijit Bhattacharjee referred to the

decision of this Court in Rajender Singh vs.

State of U.P. [2007 (7) SCC 378] where it

was reiterated that although a person may

not have been charge-sheeted by the

Investigating Agency or may have been

discharged at an earlier stage, the Court

could summon such person to face trial if it

appeared to the Court that an offence had

been committed by such person. It was held

that while the decision to proceed or not to

proceed against a person under Section 319

of the Code was in the discretion of the

Trial Court, the said decision would have to

be taken after the Court applied its mind to

the evidence before it. Disagreeing with 1 3 the earlier views expressed by this Court,

it was held that the Court's powers under

Section 319 Cr.P.C could not be fettered

either by calling it extraordinary or by

stating that it could be exercised only in

exceptional circumstances.

15. Mr. Bhattacharjee submitted that in the

light of the aforesaid decision there could

not be any controversy that the Court's

powers under Section 319 Cr.P.C. was

discretionary and unfettered, though

dependent on the quality of the evidence

adduced by the prosecution. Mr.

Bhattacharjee submitted that no case had

been made out for interference with the

order of the High Court and the appeal was

liable to be dismissed.

16. The same submissions were advanced by Mr.

Puri appearing for the de-facto complainant,

Ashok Pattanayak, who had been impleaded as

respondent No.2 in the present appeal. Mr.

Puri referred to the decision of this Court 1 4 in Bholu Ram vs. State of Punjab [2008 (9)

SCC 140] wherein it had been held that

Section 319 Cr.P.C. empowered the Court to

proceed against any person not shown to be

an accused, if it appeared from the evidence

that such person had committed an offence

for which he could be tried along with the

accused. It was further observed that when

in a case against one or more accused a

Magistrate finds from the evidence adduced

that some person other than the accused was

also involved in that very offence, it was

only proper that the Magistrate should have

power to summon by joining such person as an

accused in the case.

17. It was further observed that the primary

object of Section 319 Cr.P.C. is that the

whole case against all the accused should be

tried and disposed of not only

expeditiously, but also simultaneously. The

power under Section 319 Cr.P.C. must be

regarded and considered as incidental and 1 5 ancillary to the main power to take

cognizance as part of the normal process in

the administration of justice and that the

same could be exercised either on an

application made to the Court or by the

Court suo moto and it was in the discretion

of the Court to take action under the said

Section having regard to the facts and

circumstances of each case. Mr. Puri also

urged that the decision of the High Court

could not be faulted and the appeal was

liable to be dismissed.

18. The common thread in most matters where the

use of discretion is in issue is that in the

exercise of such discretion each case has to

be considered on its own set of facts and

circumstances. In matters relating to

invocation of powers under Section 319, the

Court is not merely required to take note of

the fact that the name of a person who has

not been named as an accused in the F.I.R.

has surfaced during the trial, but the Court 1 6 is also required to consider whether such

evidence would be sufficient to convict the

person being summoned. Since issuance of

summons under Section 319 Cr.P.C. entails a

denovo trial and a large number of witnesses

may have been examined and their re-

examination could prejudice the prosecution

and delay the trial, the Trial Court has to

exercise such discretion with great care and

perspicacity. Although, a somewhat

discordant note was struck in Rajender

Singh's case (supra) the views expressed in

the majority of decisions of this Court on

the point subscribe to the view that the

power under Section 319 Cr.P.C. is to be

invoked, not as a matter of course, but in

circumstances where the invocation of such

power is imperative to meet the ends of

justice.

19. The fulcrum on which the invocation of

Section 319 Cr.P.C. rests is whether the

summoning of persons other than the named 1 7 accused would make such a difference to the

prosecution as would enable it not only to

prove its case but to also secure the

conviction of the persons summoned.

20. In the instant case, on the quality of the

evidence adduced by the prosecution as far

as the appellants are concerned, it is

difficult to hold with any amount of

certainty that the same would in all

probability secure a conviction against the

appellants. The evidence which seeks to

connect the appellants with the commission

of the offence are hearsay in nature.

Section 319 Cr.P.C. contemplates a situation

where the evidence adduced by the

prosecution not only implicates a person

other than the named accused but is

sufficient for the purpose of convicting the

person to whom summons is issued. The law

in this regard was explained in Ram Kishan

Rastogi's case (supra) and as pointed out by

Mr. Ghosh, consistently followed thereafter, 1 8 except for the note of discord struck in

Rajender Singh's case (supra). It is only

logical that there must be substantive

evidence against a person in order to summon

him for trial, although, he is not named in

the charge-sheet or he has been discharged

from the case, which would warrant his

prosecution thereafter with a good chance of

his conviction.

21. Since in the present case, except for a

statement in the F.I.R. that the complainant

strongly believed that the murder of her

father was pre-planned and there were many

conspirators involved, there is no direct

evidence of the complicity of the appellants

in the incident, it would not be proper to

subject the appellants to trial by invoking

the provisions of Section 319 Cr.P.C.

22. We, therefore, allow the appeal and set

aside the order dated 14.6.2006 passed by

the Additional District and Sessions Judge,

F.T.C., Jhargram, issuing summons to the 1 9 appellants under Section 319 Cr.P.C. and the

impugned order of the High Court dated

22.11.2006 directing the appellants to

surrender before the Trial Court and to

apply for bail.

23. The appeal is accordingly allowed.

________________J.

(ALTAMAS KABIR)

________________J.

(MUKUNDAKAM SHARMA) New Delhi Dated: 07.01.2009