Jogendra Yadav vs State Of Bihar

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 343 OF 2012

JOGENDRA YADAV & ORS. ….. APPELLANTS

VERSUS

STATE OF BIHAR & ANR. ….. RESPONDENTS

JUDGMENT

S. A. BOBDE, J.

1. This is an appeal by four persons who have been added as

accused under Section 319 of the Code of Criminal Procedure,

1973 (for short 'the Cr.P.C.') in Sessions Trial No.446/2002 for

an offence under Section 302 read with Sections 149 and 323 of

the Indian Penal Code, 1860 (for short 'the IPC') and Section 27

of the Arms Act, 1959. The trial is being held in respect of the

murder of one Saryug Yadav. On 04.06.2000, FIR was lodged by

an informant under Sections 149, 302 and 323 of the IPC

against 8 accused. A charge-sheet was submitted on

23.04.2001 only against four persons. Later on, a

supplementary charge-sheet was submitted on 31.01.2003 by Signature Not Verified Digitally signed by Meenakshi Kohli Date: 2015.08.03 12:25:29 IST

which one Bhankhar Yadav was included. A final form was Reason:

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submitted excluding the four appellants herein viz. Jogendra

Yadav, Kailash Yadav, Kusum Pahalwan, Brijendra Yadav from

the array of parties. On 18.02.2003, the Magistrate accepted the

charge-sheet and the final form while taking cognizance of the

offence. The case was committed to the Court of Sessions.

2. In the course of the trial, the evidence of the widow and

two sons of the deceased were recorded. On the basis of the

evidence the Additional Sessions Judge on 05.02.2005 under

Section 319 of the Cr.P.C. issued notice to the appellants asking

them to show cause as to why they should not be added as

accused. After giving an opportunity to the appellants to file a

reply, the learned Additional Sessions Judge summoned the

appellants as accused for being added to the proceedings. It is

nobody’s case that they were not heard before such summon. In

any case after the appellants were added, they preferred an

application under Section 482 of the Cr.P.C. before the High

Court, which was pending for a long time. They finally withdrew

this application since they had got relief by way of discharge

under Section 227 of the Cr.P.C. The respondent State preferred

a Criminal Revision Application before the High Court. The High

Court set aside the Order dated 23.09.2006 in Criminal Revision

Application passed by the Additional Sessions Judge by which

the appellants were discharged. While setting aside the order,

2 the High Court made several observations on the merits of the

case as well as on the material that was taken into account

before discharging the appellants – accused. The High Court

also observed that the order by which the appellants were added

under Section 319 of the Cr.P.C. was not challenged and was

allowed to become final. This may not actually be accurate

since, as noted above, the appellants had in fact challenged the

order but had withdrawn the application under Section 482 of

the Cr.P.C.

3. The High Court also observed that the order of discharge

virtually nullifies the order under Section 319 of the Cr.P.C.

made earlier by which the accused were added. It is this last

observation which has been put in issue before us.

4. Mr. Sishir Pinaki, learned counsel for the appellants

submitted that Section 227 of the Cr.P.C. can be availed of by an

accused, even if he is added as an accused under Section 319 of

the Cr.P.C. since the effect of adding such a person is that he

becomes newly added accused who is entitled to avail of all the

remedies available to him under the Cr.P.C., in particular, the

remedy of discharge. It is, therefore, necessary to construe

Section 227 and Section 319 of the Cr.P.C.

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5. Provisions of Sections 227 and 319 of the Cr.P.C. are read

as under:

“227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

319. Power to proceed against other persons ap-

pearing 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 of-

fence 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 un- der 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 commit- ted.

(4) Where the Court proceeds against any person un- der sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, 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 cog- nizance of the offence upon which the inquiry or trial was commenced.”

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6. On a perusal of Section 319 of the Cr.P.C., it is apparent

that a person who is not an accused may be added as an

accused only when it appears from the evidence that he has

committed any offence for which he could be tried together with

the accused. The Section says that in such an eventuality, the

Court “may proceed against such person” for the offence which

he appears to have committed. In other words, a person who is

not an accused becomes liable to be added where he appears to

have committed an offence. Thereupon, the effect is that the

Court may proceed against such a person.

7. Section 227 of the Cr.P.C. on the other hand, provides that

an accused may be discharged if the Judge construes that there

is no sufficient ground for the proceedings against him. In other

words, if the Judge is of the view that there are no sufficient

grounds for the proceedings against the accused, he may be

discharged, whereupon the proceedings against him are

dropped.

8. It is apparent that both these provisions, in essence, have

the opposite effect. The power under Section 319 of the Cr.P.C.

results in the summoning and consequent commencement of the

proceedings against a person who was hitherto not an accused

and the power under Section 227 of the Cr.P.C., results in

5 termination of proceedings against the person who is an

accused.

9. It was, however, urged by learned counsel for the

appellants that in order to avail of the remedies of discharge

under Section 227 of the Cr.P.C., the only qualification

necessary is that the person should be accused. Learned

counsel submitted that there is no difference between an

accused since inception and accused who has been added as

such under Section 319 of the Cr.P.C. It is, however, not

possible to accept this submission since there is a material

difference between the two. An accused since inception is not

necessarily heard before he is added as an accused. However, a

person who is added as an accused under Section 319 of the

Cr.P.C., is necessarily heard before being so added. Often he

gets a further hearing if he challenges the summoning order

before the High Court and further. It seems incongruous and

indeed anomalous if the two sections are construed to mean that

a person who is added as an accused by the court after

considering the evidence against him can avail remedy of

discharge on the ground that there is no sufficient material

against him. Moreover, it is settled that the extraordinary power

under Section 319 of the Cr.P.C., can be exercised only if very

strong and cogent evidence occurs against a person from the

6 evidence led before the Court. It is now settled vide the

Constitution Bench decision in Hardeep Singh v. State of

Punjab and Others [(2014) 3 SCC 92] that the standard of proof

employed for summoning a person as an accused under Section

319 of the Cr.P.C., is higher than the standard of proof employed

for framing a charge against an accused. The Court observed for

the purpose of Section 319 of the Cr.P.C., that “what is,

therefore, necessary for the Court is to arrive at a satisfaction that

the evidence adduced on behalf of the prosecution, if unrebutted,

may lead to the conviction of a person sought to be added as the

accused in the case.” As regards the degree of satisfaction

necessary for framing a charge this Court observed in para 100:-

“100. However, there is a series of cases wherein this court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 of the Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further”.

The Court concluded in para 106 as follows:-

“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

7 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……..”

10. Thus it does not stand to reason that a person who is

summoned as an accused to stand trial and added as such to

the proceedings on the basis of a stricter standard of proof can

be allowed to be discharged from the proceedings on the basis of

a lesser standard of proof such as a prima facie connection with

the offence necessary for charging the accused.

11. This view is further fortified by the fact that a person is

added as an accused under Section 319 of the Cr.P.C., on the

basis of evidence; whereas an accused is discharged under

Section 227 of the Cr.P.C., on a sifting of material collected i.e.

“the record of the case and the document submitted herewith” in

order to find out whether or not there is sufficient ground for

proceeding against the accused. In fact it may be noted that the

mandate of Section 228, Cr.P.C., is that the Judge only need be

of “opinion that there is ground for presuming that the accused has

committed an offence …..” before framing a charge. In fact this

Court has held in Ajay Kumar Parmar v. State of Rajasthan

reported in (2012) 12 SCC 406 that appreciation of evidence at

the stage of Section 227 of the Cr.P.C., is not permissible (vide

8 para 17). It is, therefore, clear that an order for addition of an

accused made after considering the evidence cannot be undone

by coming to the conclusion that there is no sufficient ground

for proceeding against the accused without appreciation of

evidence.

12. 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 of the Cr.P.C. 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 of the Cr.P.C., 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 of the Cr.P.C., on the basis of a mere prima facie

view. The exercise of the power under Section 319 of the

Cr.P.C., must be placed on a higher pedestal. Needless to say

the accused summoned under Section 319 of the Cr.P.C., 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 of the Cr.P.C. If allowed to, such an action of

9 discharge would not be in accordance with the purpose of the

Cr.P.C 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. It would be apposite to refer to the principle of

purposive construction of a statute invoked by this Court in

New India Assurance Co. Ltd. v. Nusli Neville Wadia and

Anr. (2008) 3 SCC 279, which is as under:

“51…….. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a rea- sonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is ful- filled, which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obliga- tions as held by the Court inter alia in Ashoka Market- ing Ltd.

52. Barak in his exhaustive work on “Purposive Con-

struction” explains various meanings attributed to the term “purpose”. It would be in the fitness of discussion to refer to Purposive Construction in Barak’s words:

“Hart and Sachs also appear to treat ‘purpose’ as a subjective concept. I say ‘appear’ because, although Hart and Sachs claim that the interpreter should imag- ine himself or herself in the legislator’s shoes, they in- troduce two elements of objectivity: First, the inter- preter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the inter- preter should accept the non-rebuttable presumption that members of the legislative body sought to fulfil

10 their constitutional duties in good faith. This formula-

tion allows the interpreter to inquire not into the subjec- tive intent of the author, but rather the intent the author would have had, had he or she acted reasonably.”

13. Ms. Prerna Singh, learned counsel for the State also

submitted that a person who is an accused under Section 319

ought not to be given an opportunity to avail of the remedy of

discharge under Section 227 since it would be contrary to the

scheme and intent of the Cr.P.C.

14. We have no difficulty in accepting this submission for the

reasons stated above. We are also satisfied that it would not

result in any undue hardships to the accused since the remedy

before a superior court is available.

15. In the result, we see no merit in the appeal which is liable

to be dismissed.

16. The criminal appeal is dismissed in view of the above.

…......................J. [S.A. BOBDE]

…......................J. [R.K. AGRAWAL] NEW DELHI JULY 15, 2015

11 ITEM NO.103 COURT NO.12 SECTION IIA

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 343/2012

JOGENDRA YADAV & ORS. Appellant(s)

VERSUS

STATE OF BIHAR & ANR. Respondent(s)

Date : 15/07/2015 This appeal was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MR. JUSTICE R.K. AGRAWAL

For Appellant(s) Mr. Sishir Pinaki, Adv.

Mr. Shailendra Kumar, Adv.

Mr. Suryodaya Prakash Tiwari, Adv.

Mr. Amit Pawan,Adv.

For Respondent(s) Mr. Gopal Singh,Adv.

Ms. Prerna Singh, Adv.

Mr. Shekhar Prit Jha,Adv.

Dr. Richa Awasthi Dubey, Adv.

UPON hearing the counsel the Court made the following

O R D E R

The criminal appeal is dismissed in terms of the

signed reportable judgment.

(MEENAKSHI KOHLI) (JASWINDER KAUR) COURT MASTER COURT MASTER

[Signed Reportable Judgment is placed on the file]

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