Hardeep Singh vs State Of Punjab & Ors

and order passed by the High Court of Punjab & 2

Haryana, dated October 23, 2006 in Criminal

Revision Nos. 773 of 2006 and 1648 of 2006.

3. To appreciate the contentions raised

by the parties, it would be appropriate to

narrate few facts.

4. In the appeal arising out of Special

Leave Petition (Crl.) No. 166 of 2007, the case

of the prosecution is that an auction for

leasing the land was held by the Gram Panchayat

of village Indrapuri, Tehsil Samana, District

Patiala on April 21, 2004 for cultivation on

yearly basis (Eksali) for the year 2004-05. The

bid of the appellant was accepted and lease was

granted in his favour. The appellant was thus

in possession of the land.

5. According to the prosecution, on June

24, 2004, the appellant was ploughing the land.

The accused persons went there with deadly

weapons and caused injuries to the appellant as

well as other prosecution witnesses. First

Information Report (FIR) was lodged against the

accused at Police Station Sadar, Samana for 3

commission of offences punishable under

Sections 307, 326, 336 and 427 read with

Sections 120B, 148 and 149 of the Indian Penal

Code, 1860 (IPC) as also for offences

punishable under Sections 25, 27, 54 and 59 of

the Arms Act, 1959. Accused were arrested.

Vijay Preet Singh (respondent No. 2) was one of

them.

6. It is the allegation of the appellant

that Vijay Preet Singh-respondent No.2 herein

is the son of Sukhvinder Singh, Chairman of

Panchayat Samiti, Samana. The said Sukhvinder

Singh interfered with the investigation. With a

view to get the name of his son Vijay Preet

Singh deleted by exercising influence on Police

Authorities, he made an application on June 26,

2004, i.e. within two days of the incident,

lodging of FIR and arrest of Vijay Preet Singh

to Senior Superintendent of Police (SSP),

Patiala, inter alia, stating therein that Vijay

Preet Singh was resident of village

Meayalkhurd, was studying in 10+2 class and at 4

the time of occurrence he was not there but was

at his residence and was falsely implicated in

the case. He, therefore, asked the Senior

Superintendent of Police (SSP) to make an

inquiry either himself or through some senior

officer so that justice be done to Vijay Preet

Singh.

7. It also appears that Jagtar Singh-

respondent No.3 herein also made a similar

application on July 03, 2004 to Deputy

Inspector General (DIG), Patiala asserting that

in an incident dated June 24, 2004, his name

was not mentioned in the FIR, but he had been

falsely involved and he was likely to be

arrested. His name was given by some persons

due to grudge by the complainant side. There

was a cross-case also. He, therefore, prayed

that an inquiry may be conducted through an

independent officer and the applicant may not

be arrested till he is proved guilty.

8. It appears that an inquiry was

conducted by police and a report was submitted 5

by Superintendent of Police (D), Patiala to

SSP, Patiala on July 12, 2004 wherein it was

stated that respondent Nos. 2 and 3 i.e. Vijay

Preet Singh and Jagtar Singh had not committed

any offence and they were falsely implicated. A

recommendation was, therefore, made not to

initiate proceedings against both of them. Both

the persons were, therefore, discharged.

9. During the course of trial, however,

depositions of witnesses were recorded. PW2

Hardeep Singh, in his deposition, stated that

Vijay Preet Singh as also Jagtar Singh,

respondents Nos. 2 and 3 were present at the

time of incident with weapons. So far as

respondent No.2-Vijay Preet Singh is concerned,

his name was mentioned in the FIR. He

participated in the incident and was having a

weapon with him (gandasi). He was also arrested

by the police from the place of offence.

Similarly, respondent No.3-Jagtar Singh was

present with soti. He also participated in the

incident by raising lalkaras. In furtherance of 6

common object, all the accused assaulted the

complainant party and committed the offences

with which they were charged. It is on the

basis of the report submitted by Superintendent

of Police (D), Patiala to Senior Superintendent

of Police, Patiala that they were discharged.

An application was, therefore, made by the

Addl. Public Prosecutor under Section 319 of

the Code of Criminal Procedure, 1973

(hereinafter referred to as `the Code') to

include respondent Nos. 2 and 3 as accused and

to summon them for trial.

10. The Court of the Addl. Sessions Judge,

Patiala, however, by an order dated January 12,

2006 rejected the application observing that he

did not find sufficient grounds to proceed

against Vijay Preet Singh and Jagtar Singh.

11. Being aggrieved by the said order, the

appellant herein approached the High Court of

Punjab & Haryana by filing Criminal Revision

No. 773 of 2007. The High Court, however,

dismissed the Revision and confirmed the order 7

passed by the trial Court. The said order is

challenged in the present appeal.

12. In the appeal arising out of Special

Leave Petition (Crl.) No. 2051 of 2007, the

case of the appellant was that the accused

[complainant party in SLP (Crl.) No. 166 of

2007] had formed unlawful assembly and

committed offences punishable under Sections

307, 326, 336, 447, 427 read with Sections 148

and 149, Indian Penal Code (IPC) as also under

Sections 25, 27, 54 and 59 of the Arms Act,

1959. Cross FIR was, therefore, filed on the

same day i.e. on June 24, 2004.

13. According to the appellant, respondent

No.2-Kashmir Singh, son of S. Sucha Singh was

very much present but his name was not included

in the charge-sheet and as per the report

submitted by the Police Authorities, said

Kashmir Singh was innocent. During the course

of trial, however, PW5-Jagdeep Singh stated

that Kashmir Singh was also present and was one

of the members of unlawful assembly. An 8

application was, therefore, made to the trial

Court (Addl. Sessions Judge) by the Addl.

Public Prosecutor under Section 319 of the Code

to include the name of Kashmir Singh as an

accused and to issue summons to him. The prayer

was, however, rejected by the trial Court which

was challenged by the appellant herein by

filing Criminal Revision No. 1648 of 2006, but

it was also dismissed by the High Court. The

said order is challenged by the appellant in

this Court.

14. Notice in SLP (Crl) No. 166 of 2007

was issued on January 22, 2007. In the other

matter, i.e. SLP (Crl) No. 205 of 2007, notice

was issued on April 02, 2007. Both the cases

were ordered to be heard together. The Registry

was directed to list the matter for final

hearing on a non-miscellaneous day and that is

how the matters have been placed before us.

15. We have heard learned counsel for the

parties.

9

16. The learned counsel for the appellant

in the appeal arising out of SLP (Crl) No. 166

of 2007 submitted that the order passed by the

trial Court and confirmed by the High Court is

clearly erroneous and deserves to be set aside.

It was submitted that so far as Vijay Preet

Singh is concerned, he was very much present at

the time of incident with a weapon (gandasi),

his name was included in the First Information

Report (FIR) and he was also arrested by the

police from the place of offence since he

actually participated in the crime. The

Investigating Agency was, therefore, wholly

wrong in deleting his name and in reporting

that Vijay Preet Singh was not present at the

time of incident and he reached at the place of

offence after the incident was over. Such

report was made only with a view to oblige

Sukhvinder Singh, father of Vijay Preet Singh

who was Chairman of Panchayat Samiti, Samana.

Even otherwise, during the course of trial, the

prosecution evidence revealed that Vijay Preet 1

Singh was present at the time of incident. A

clear case for application of Section 319 of

the Code had been made out and the trial Court

was wrong in rejecting the application to join

Vijay Preet Singh as an accused and to issue

summons to him. Similar error was committed by

the High Court.

17. Likewise, the Investigating Agency

wrongly recommended deletion of name of Jagtar

Singh. From the examination of prosecution

witnesses, it was clear that Jagtar Singh was

also present at the time of incident with

weapon and he participated in the crime. An

application under Section 319 of the Code,

hence, ought to have been allowed.

18. It was submitted that even if name of

a particular person is not mentioned in the FIR

as an accused, he can, later on, be added as an

accused and a summons can be issued by a Court

in exercise of power under Section 319 of the

Code. It was, therefore, submitted that the

order passed by the trial Court and confirmed 1

by the High Court deserves to be set aside and

the appeal deserves to be allowed.

19. The learned counsel for respondent

Nos. 2 and 3, on the other hand, supported the

order passed by the trial Court and confirmed

by the High Court.

20. It was stated that an inquiry had been

conducted by the Investigating Agency and on

the basis of statements recorded during

investigation, it was proved that respondent

Nos.2-Vijay Preet Singh reached at the spot

after the incident was over and hence, he could

not be joined as accused though his name was

found in FIR and he was arrested by police and

accordingly report was made to delete his name.

21. So far as Jagtar Singh is concerned,

his name was not mentioned in the FIR. During

the investigation also, nobody stated that

Jagtar Singh participated in the incident and,

hence, his name was deleted.

22. According to the counsel, only at the

time of trial, with a view to falsely implicate 1

respondent Nos. 2 and 3, prosecution witnesses

had named them. The trial Court, therefore,

rightly rejected the prayer and the High Court

confirmed it. No case for interference by this

Court in exercise of discretionary jurisdiction

under Article 136 of the Constitution has been

made out and the appeal deserves to be

dismissed.

23. The learned counsel for the State also

supported the respondents and prayed for

dismissal of the appeal.

24. In the cross-appeal, learned counsel

for the appellant submitted that Kashmir Singh

was present and participated in the incident.

In the course of trial, the prosecution

witnesses expressly stated about the presence

and participation of respondent No.2-Kashmir

Singh and the action of non-issuance of summons

to respondent No.2-Kashmir Singh by the trial

Court and confirmed by the High Court is

erroneous and the appeal deserves to be

allowed.

1

25. The learned counsel for Kashmir Singh

supported the order and prayed for dismissal of

appeal. The counsel for the State also prayed

for dismissal of appeal.

26. Now, Section 319 of the Code empowers

a Court to proceed against any person if it

appears from the evidence that such person has

also committed an offence for which he can be

tried together with other accused. The said

section reads as under;

319. Power to proceed against other persons appearing to be guilty of offence.--(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused had committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detailed by such Court 1

for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then--

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

(emphasis supplied)

27. Sometimes while hearing a case against

one or more accused, it appears to a Court from

the evidence that some person other than the

accused before it is also involved in that very

offence. It is only proper that a Court should

have power to summon such person by joining him

as an accused in the case.

28. The primary object underlying Section

319 is that the whole case against all the

accused should be tried and disposed of not 1

only expeditiously but also simultaneously.

Justice and convenience both require that

cognizance against the newly added accused

should be taken in the same case and in the

same manner as against the original accused.

The power must be conceded as incidental and

ancillary to the main power to take cognizance

as part of normal process in the administration

of criminal justice.

29. Before three decades, in Joginder

Singh & Anr. v. State of Punjab & Anr., (1979)

1 SCC 345, charge sheet was submitted against

certain accused. During trial, however,

evidence of some of the witnesses was recorded

who implicated the appellants. A Public

Prosecutor, therefore, moved an application to

summon them and to try them along with other

accused. The application was granted. The order

was challenged by the appellants.

30. This Court considered the relevant

provisions of the Code of Criminal Procedure,

1898 (old Code), Forty-first Report of the Law 1

Commission, the amendment made in the present

Code and held that the Court could add any

person, not accused before it, as accused and

direct him to be tried along with the other

accused for the offence or offences the added

accused appears to have committed.

31. In Municipal Corporation of Delhi v.

Ram Kishan Rohtagi & Ors., (1983) 1 SCC 1, the

Food Inspector, noticing adulteration in

`Morton Toffees', filed a complaint against the

Company, its Managing Director as well as

Directors under the Prevention of Food

Adulteration Act, 1954. The Managing Director

and Directors approached the High Court by

invoking Section 482 of the Code for quashing

of proceedings which was granted and the

proceedings against them were quashed. The

question before this Court was whether Section

319 of the Code could be invoked once criminal

proceedings against a person were quashed.

32. Replying the question in the

affirmative and quoting with approval 1

observations in Joginder Singh, this Court held

that if it appears to the Court that any person

not being the accused before it, but against

whom there appears, during trial, sufficient

evidence indicating his involvement in the

offence, he can be summoned.

33. The Court, however, was conscious of

the extraordinary nature of the power under

Section 319 of the Code and stated;

"(W)e 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".

(emphasis supplied)

34. In Shashikant Singh v. Tarkeshwar

Singh & Anr., (2002) 5 SCC 738, during the

pendency of trial of an accused, another person

was summoned by the trial Court under Section

319 of the Code. But by the time he could be 1

brought before the Court, the trial against the

accused was over. It was held by this Court

that the words "could be tried together with

the accused" in Section 319(1) were merely

directory and if the trial against the other

accused is over, such a person who was

subsequently added as an accused, could be

tried after the conclusion of the trial of the

main accused.

35. In Michael Machado & Anr. V. Central

Bureau of Investigation & Anr., (2000) 3 SCC

262, considering the basic requirements of

Section 319 of the Code, this Court said;

"The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other 1

person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused".

36. Highlighting the underlying object of

the provision, the Court proceeded to state;

"But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty in the Court to proceed against other persons".

37. Observing that there was no reasonable

prospect of conviction of the persons sought to

be arraigned as accused, the Court held that no 2

order could be made under Section 319 of the

Code.

38. In Krishnappa v. State of Karnataka,

(2004) 7 SCC 792, applying Ram Kishan Rohtagi

and Michael Machado, the Court ruled that the

power to summon an accused is an extraordinary

power conferred on the Court and it should be

used very sparingly and only if compelling

reasons exist for taking cognizance against the

person other than the accused.

39. In Y. Saraba Reddy v. Puthur Rami

Reddy & Anr., (2007) 4 SCC 773 : (2007) 6 SCR

68, a three-Judge Bench of this Court to which

one of us was a party (D.K. Jain, J.), a

similar situation arose. In the FIR, names of

certain persons were mentioned. On an

application by those persons, the matter was

investigated by the Deputy Superintendent of

Police and the report was submitted that they

were not present at the time of incident. On

the basis of the report, their names were

deleted from the array of accused. The case was 2

then committed to the Court of Session. PW1, in

his examination involved the said persons and

an application under Section 319 of the Code

was filed for issuing summons to them. The

trial Court rejected the application primarily

on the ground that the plea of alibi was

investigated by the Deputy Superintendent of

Police and was found to be correct. The High

Court did not find infirmity in the order. The

action was challenged in this Court.

40. Allowing the appeal and setting aside

the order of the High Court, Dr. Pasayat, J.

said; "If the satisfaction of the Investigating

Officer or Supervising Officer is to be treated

as determinative, then the very purpose of

Section 319 of the Code would be frustrated.

Though it cannot always be the satisfaction of

the Investigating Officer which is to prevail,

yet in the instant case the High Court has not

found the evidence of PW-1 to be unworthy of

acceptance. Whatever be the worth of his

evidence for the purposes of Section 319 of the 2

Code it was required to be analysed. The

conclusion that the IO's satisfaction should

be given primacy is unsustainable".

(emphasis supplied)

41. In Guriya & Ors. v. State of Bihar &

Anr., (2007) 8 SCC 224, appellants were not

arrayed as accused. On the basis of prosecution

evidence, however, an application under Section

319 of the Code was filed which was allowed by

the High Court and appellants were added as

accused. Appellants questioned the legality of

the order.

42. This Court allowed the appeal, set

aside the order of the High Court and dismissed

the application filed under Section 319 of the

Code observing that there was no material

against appellants, their names were not found

in FIR, no overt act had been attributed to

them and the protest petition filed by the

complainant against them had also been

dismissed.

2

43. Very recently, in Bholu Ram v. State

of Punjab & Anr., JT 2008 (9) SC 504, we were

called upon to consider such a situation.

Referring to earlier decisions, we held that

such a course is open to a Court and power

under Section 319 of the Code can be exercised

by the Court to issue summons to a person who

was not originally shown as an accused. Such an

order cannot be said to be illegal, unlawful or

otherwise objectionable.

44. It is, however, submitted on behalf of

the accused that in the instant case, an

application was made by the Public Prosecutor

before the cross-examination of PW2-Hardeep

Singh was over. It was strenuously contended

that for application of Section 319 of the Code

and exercise of power to proceed against person

other than the person shown as an accused,

there must be an evidence before the Court and

such satisfaction can be arrived at by the

Court only upon completion of cross-

examination.

2

45. In this connection, reference was made

to a two Judge Bench decision of this Court in

Mohd. Shafi v. Mohd. Rafiq & Anr., (2007) 4 SCR

1023. In Mohd. Shafi, an FIR was lodged against

the accused alleging the commission of an

offence punishable under Section 302, IPC. The

police submitted charge-sheet against K but not

against M (appellant). At the trial, PW1 was

examined and in his examination-in-chief, he

asserted that M also participated in the

incident. An application was filed for

summoning him under Section 319 of the Code

which was rejected by the trial Court but

allowed by the High Court. M approached this

Court.

46. Allowing the appeal and setting aside

the order passed by the High Court, this Court

observed that the order passed by the High

Court was not sustainable. It was held that

satisfaction under Section 319 of the Code

could be arrived at only after cross- 2

examination of the witness is over. The Court

stated;

"The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same".

(emphasis supplied)

47. The counsel submitted that admittedly

in the instant case, cross-examination of PW2-

Hardeep Singh was not over. In the course of

cross-examination by some of the accused

persons, the learned Additional Public

Prosecutor moved the Court under Section 319 of

the Code and further cross-examination was

deferred. It was, therefore, submitted that no

order under Section 319 could be made and the

application was liable to be dismissed. 2

48. The learned counsel for the

complainant, however, placed reliance on a two

Judge Bench decision in Rakesh & Anr. V. State

of Haryana, (2001) 6 SCC 248. An identical

issue was raised there. The father of the

prosecutrix lodged an FIR alleging commission

of offences under Sections 363, 366 and 376,

IPC by Rakesh and others. According to the

complainant, his daughter was taken by three

persons due to previous enmity with the object

of committing rape. The girl was then found

with P. After the investigation, charges were

framed only against P. At the trial, however,

certain witnesses were examined and on the

basis of their evidence, the Public Prosecutor

filed an application under Section 319 of the

Code for arraying persons other than P as

additional accused. The prayer was granted. The

order was confirmed by the High Court. The

appellants approached this Court. The question

before this Court was whether the statement of

a prosecution-witness without such witness 2

having been cross-examined, constituted

`evidence' within the meaning of Section 319 of

the Code.

49. Replying the question in the

affirmative, noticing conflicting views of

different High Courts and holding that the term

`evidence' used in sub-section (1) of Section

319 of the Code is comprehensive, the Court

stated;

"Once the Sessions Court records a statement of the witness it would be part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising court's power under Section 319 Cr.P.C. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material, which would enable the sessions court to decide whether powers under Section 319 should be exercised or not. Sub- section (1) of Section 319 itself provides that in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any persons 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 50. The Court added;

"Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term 'evidence' as used in Section 319 Criminal Procedure Code would mean evidence which is tested by cross examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime".

51. Thus, once the Sessions Court records

a statement of a witness, it becomes a part of

evidence. It is true that finally at the time

of trial, the accused must be given an 2

opportunity to cross-examine the witness to

test truthfulness of such statement. But that

stage would come only after the person is added

as an accused. The Code in such situation has

afforded sufficient protection by enacting sub-

section (4).

52. When an examination-in-chief of a

witness is over, there being no cross-

examination, it would be merely prima facie

material. But it would enable the Sessions

Court to decide whether powers under Section

319 of the Code should be exercised or not.

Sub-section (1) of Section 319 itself provides

that 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.

53. In State of H.P. v. Surinder Mohan &

Ors., (2000) 2 SCC 396, this Court negatived 3

the contention that before granting pardon

under Section 306 of the Code, accused should

be permitted to cross examine such person whose

evidence is recorded by the Magistrate. The

Court held that at the time of investigation or

inquiry into an offence, the accused cannot

claim any right under law to cross-examine the

witness. The right to cross-examine arises only

at the time of trial. During the course of

investigation by the police, the question of

cross-examination by the accused does not

arise. Under Section 200 of the Code, when the

Magistrate before taking cognizance of the

offence, that is, before issuing process holds

an inquiry, the accused has no locus standi or

right to be heard, and, therefore, there is no

question of cross-examination of the witness.

54. It is thus difficult to accept the

contention of the learned counsel for the

appellants that the term 'evidence' used in

sub-section (1) of Section 319 of the Code 3

would mean evidence which is tested by cross

examination. The question of testing the

evidence by cross-examination would arise only

after addition of the accused. There is no

question of cross-examining the witness prior

to adding such person as accused. Section does

not contemplate an additional stage of first

summoning the person and giving him an

opportunity of cross-examining the witness who

has deposed against him and thereafter deciding

whether such person should or should not be

added as accused. The word "evidence" occurring

in sub-section (1) of Section 319 is used in

comprehensive and broad sense which would also

include the material collected by the

investigating officer and the evidence which

comes before the Court and from which the Court

is satisfied that person not arraigned before

it is involved in the commission of the crime.

55. Rakesh thus ruled that an application

under Section 319 of the Code is maintainable 3

even without completion of cross-examination of

a witness. If the Court is satisfied on the

basis of examination-in-chief of a witness that

a person not shown to be an accused appears to

have committed an offence, it can exercise the

power under Section 319 of the Code.

56. According to Mohd. Shafi, however, no

such order can be passed by a Court under

Section 319 unless the cross-examination of the

witness is complete.

57. Both the cases i.e. Rakesh and Mohd.

Shafi were decided by a two Judge Bench.

Whereas Rakesh was decided in 2000, Mohd.

Shafi was decided in 2007. In Mohd. Shafi,

however, the attention of the Court was not

invited to Rakesh.

58. We may only observe that it is settled

law that at the stage of issuing summons or

process, a Court has to see whether there is

prima facie case against the person sought to

be summoned or against whom process is sought

to be issued. At that stage, there is no 3

question of giving an opportunity of hearing to

such person. The entire scheme of the Code is

that an accused does not come into picture at

all till process is issued. As held by this

Court in several cases including a leading

decision in Nagavva v. Veeranna, (1976) 3 SCC

736, the accused at pre-process stage has no

locus standi and is not entitled to be heard on

the question whether the process should be

issued against him or not. It may, therefore,

be said that till summons or process is issued

against the accused, he has no right of

audience and in that case, it cannot be said

that on being satisfied on the basis of

examination-in-chief, an application under

Section 319 of the Code is not maintainable.

59. There is yet another reason which is

also very relevant and material. When a person

who is not shown as an accused is sought to be

added on the basis of evidence in exercise of

power under Section 319 of the Code, he is not

before the Court. Other accused against whom 3

the trial has commenced are very much before

the Court and generally they are represented by

an advocate/advocates. In the evidence of a

witness, when role of other person i.e. other

than the accused is described by prosecution

witnesses, normally, accused who are already on

record are not affected. Grant or rejection of

application under Section 319 would generally

not alter their position. In our considered

opinion, therefore, holding that unless the

cross-examination of a witness by accused who

were already on record is over and complete, no

power under Section 319 of the Code can be

exercised, does not appear to be sound.

60. The matter can still be looked at from

another angle. The Code has taken care by

sufficiently protecting and safeguarding the

interest of such added accused. Sub-section (4)

of Section 319 expressly provides that where

the Court exercises power under sub-section (1)

and proceeds against a person not arrayed as an 3

accused, "the proceedings in respect of such

person shall be commenced afresh, and

witnesses re-heard". Thus, after exercise of

power by the Court under Section 319(1), such

added accused would be placed in the same

position as other accused and will get all

rights an accused can get under the Code. The

proceedings against the added accused shall be

commenced afresh and witnesses will be reheard.

Their evidence, prior to addition of the

accused cannot be used against the accused who

was not there earlier. The question of

prejudice, hence, does not arise at all.

61. It was submitted on behalf of the

appellants that being a decision of two Judge

Bench, Rakesh was binding upon Mohd. Shafi and

the subsequent decision thus is per incurium.

The accused, on the other hand, submitted that

being latest in point of time, Mohd. Shafi

should be followed by this Court. 3

62. In our considered opinion, however, in

the light of conflicting decisions of co-

ordinate Benches, (both of two Hon'ble Judges),

it would be appropriate if we refer the matter

to a Bench of three Hon'ble Judges.

63. In the case on hand, in an appeal

arising out Special Leave Petition (Crl) No.

2051 of 2007 (Manjit Pal Singh v. State of

Punjab & Anr.), there was nothing against

respondent No.2-Kashmir Singh and the report

submitted by the Investigating Officer had been

accepted by the trial Court as well as by the

High Court and there is no infirmity therein.

64. Likewise, in an appeal arising out of

Special Leave Petition (Crl) No. 166 of 2007

(Hardeep Singh v. State of Punjab & Ors.),

Jagtar Singh was not charge-sheeted. Both the

Courts considered the report of the

Investigating Officer and held that the action

of non-issuing of process against Jagtar Singh

could not be held illegal or unlawful. We are

of the view that the order cannot be termed 3

unlawful or unwarranted which requires

interference.

65. As far as Vijay Preet Singh is

concerned, the matter stands on a different

footing. His name finds place in the FIR. Not

only that he was present at the place of

offence with a weapon (gandasi) but was also

arrested by the police from the scene of

offence. His name was, however, excluded and

charge sheet was not submitted in pursuance of

an application made by his father. It was the

allegation of the complainant that the said

action was taken with a view to oblige

Sukhvinder Singh, father of Vijay Preet Singh

who was Chairman of Panchayat Samiti.

66. We are further of the view that the

final report submitted by the Superintendent of

Police (D), Patiala to Senior Superintendent of

Police, Patiala on July 12, 2004 under Section

173 of the Code is also not in consonance with

law.

3

67. The said section provides for

submission of final report by the Police

Officer on completion of investigation. Sub-

sections (1) and (2) of the said section are

relevant and read thus;

173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating -

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

3

(g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

68. Sub-section (1) of Section 173 of the

Code lays down that every investigation must be

completed without unnecessary delay. Slackness

or inordinate delay on the part of the

investigating agency may result in the

disappearance of material evidence which might

otherwise be available and may prevent

effective detection of the crime. It may also

result into unnecessary detention of the

accused in custody.

69. Sub-section (2) enacts that as soon as

investigation is completed, the officer in

charge of the police station shall forward a

report to a Magistrate empowered to take

cognizance of the offence on a police report in

the form prescribed by the State Government, 4

stating (i) the names of the parties;

(ii) the nature of the information; (iii) the

names of the persons who appear to be

acquainted with the circumstances of the case;

(iv) whether any offence appears to have been

committed and, if so, by whom; (v) whether the

accused has been arrested; (vi) whether he has

been released on his bond and, if so, whether

with or without sureties; (vii) whether he has

been forwarded in custody under section 170. He

shall also communicate to the informant the

action taken by him.

70. The report contemplated by Section 173

should contain the information required by the

said provision. The Investigating Officer is

not expected to record findings of fact nor to

give clean chit by exercising power of a Court

or judicial authority. In the instant case,

however, the Superintendent of Police not only

refers to investigation made by him and the

statements recorded in the course of

investigation but records a `finding' that the 4

statements were `correct'. Vijay Preet Singh

was not present at the place of offence when

the incident took place but reached after the

occurrence was over. Thereafter police had

arrested him. Likewise, Jagtar Singh was not

present at the spot at the time of occurrence.

71. The report stated;

"However, Vijay Preet Singh is totally innocent because he came there after finalizing of the occurrence. The police had already been there after reaching him and the fight stood already finished. Moreover, Balbir Singh Dhanoa and Hardeep Singh named Jagtar Singh son of Suchha Singh resident of Fatehmajri later on. This fact is also totally wrong because the son-in-law of Joginder Singh was expired a few days earlier. He was found to be at the ceremony of taking the bones with other men and women. Except this, this fact has also come in the notice that Hardeep Singh has stated in FIR that he was taken this land on lease. He went there to cultivate but prior to the occurrence Davinder Singh party had already cultivated his corn yield and jantars in this land,w hich was already 2 feet in height. If he wanted to cultivate then he could cultivate this land alone. What was the necessity to come with these group of men. It is evident therefrom that these all men armed with their weapons came to get possession of this land forcibly after 4

making a plan. The statement which was given by Balbir Singh Dhanoa that he had deposited his gun at Verma Gun House, Model Town, Patiala on 2.6.04 has been deposited with connivance. Because Inspector Rajesh Chijjar snatched gun from Balbir Singh Dhanoa with the help of his employees. Later on Dhanoa party got the weapons forcibly from the police due to a big gathering of men. It is recommended to take legal action against Verma Gun House, Patiala".

72. We may only state that the

Investigating Officer was required to submit

report in terms of Section 173 of the Code and

nothing more. He should not record a finding

nor he can give clean chit which is a function

and power of the Magistrate who will exercise

the said power as provided in the Code.

73. Prima facie, in the light of factual

scenario, the submission on behalf of the

appellant is well-founded that name of Vijay

Preet Singh ought to have been included in the

charge sheet and the application under Section

319 of the Code deserves to be allowed. The

learned counsel for the accused, however, 4

referring to Mohd. Shafi, submitted that in the

said decision, this Court held that the

jurisdiction under Section 319 of the Code can

be exercised by the Court only if the Court is

satisfied that in all likelihood such person

would be convicted.

74. The Court in Mohd. Shafi, stated;

"From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence".

(emphasis supplied) [see also Kailash v. State of Rajasthan & Anr., JT 2008 (3) SC 279]

75. With respect, the above observations

do not appear to be in consonance with

statutory provisions or previous decisions of

this Court. We have reproduced Section 319 of 4

the Code in the earlier part of the judgment.

Bare reading of sub-section (1) leaves no room

of doubt what it requires. It states that for

addition of accused, it must appear to the

Court from the evidence that any person not

being the accused has committed any offence for

which such person should be tried along with

other accused.

76. In Joginder Singh, a three-Judge Bench

of this Court stated;

"A plain reading of Section 319(1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused..."

77. In Michael Mechdo, this Court held

that the Court must have reasonable 4

satisfaction from the evidence led that the

other person has committed an offence.

78. In Krishnappa, it was observed that

such power should be exercised if there are

compelling reasons and in Mohd. Shafi this

Court has held that such power can be exercised

only if the Court is satisfied that the accused

so summoned is in all likelihood would be

convicted. The test formulated in Mohd. Shafi

substantially curtails discretionary power of

the Court conferred by the Code under sub-

section (1) of Section 319. Even on this point,

therefore, the matter requires fresh

consideration.

79. We, therefore, refer the following two

questions for the consideration of a Bench of

three Hon'ble Judges;

(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?

4

(2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?

80. We direct the Registry to place the

matter before the Hon'ble the Chief Justice of

India for taking an appropriate action.

81. Ordered accordingly.

.........................................................J.

(C.K. THAKKER)

NEW DELHI, .........................................................J. NOVEMBER 07, 2008. (D.K. JAIN)