Holding

Courts may issue summons under Section 319 against persons named in the FIR but not yet tried, but the power is extraordinary and must be exercised only when the court is reasonably satisfied that the prosecution can prove the charge; the High Court did not direct issuance of summons, so the matter was remitted for fresh consideration.

Summary

The appellants, Anil Singh and another, were named in an FIR for the murder of Ranjit Singh but the investigating officer filed a final report clearing them, which the magistrate accepted, and no chargesheet was filed against them. During the trial, witness testimony implicated the appellants, leading the prosecution to seek summons under Section 319 of the CrPC. The Sessions Judge dismissed the application, citing doubts about the appellants' identity, but the High Court, on a Section 482 petition, quashed the dismissal and directed the trial court to proceed, without expressly ordering the issuance of summons. The Sessions Judge then proceeded on the mistaken premise that the High Court had directed the issuance of processes. On appeal, the Supreme Court held that while courts have jurisdiction to issue summons under Section 319 against persons named in the FIR but not yet tried, this is an extraordinary power that must be exercised cautiously and only when the court is reasonably satisfied that the prosecution can prove the charge. The Court clarified that the High Court’s direction was merely to proceed in accordance with law and did not mandate the issuance of summons. Consequently, the matter was remitted to the trial judge to reconsider the application afresh, and the appeals were partly allowed.

Issues considered

What is the scope and standard for exercising the extraordinary power under Section 319 CrPC to summon a person not previously sent up for trial?
Did the High Court's direction amount to an order directing the trial court to issue summons under Section 319?
Whether the trial court was justified in dismissing the prosecution's application for summons on the ground of doubtful identity of the appellants.

Legislation cited

Code of Criminal Procedure, 1973s. 319, s. 482

Subjects

Section 319 CrPCextraordinary jurisdictionsummonscriminal procedurefirst information reportidentity of accusedhigh court directionissuance of processdiscretion

Judgment

A ANIL SINGH AND ANR.
v.
STATE OF BIHAR AND ORS.

OCTOBER 19, 2006

B (S.B. SINHA AND DAL VEER BHANDARI, JJ.]

Code of Criminal Procedure, 1973--Section 319-Power to summon
person as accused, against whom action not taken earlier-Nature and
C scope of-Rejection of application for issuance of summons against persons
named in FIR but not sent up for trial upon investigation-Order quashed
by High Court directing trial court to proceed in the matter-Trial court
proceeding on the basis that direction was to issue process-On appeal held:
Courts have power to summon such persons-Being an extra-ordinary power,
it is to be done cautiously-Courts should arrive at a reasonable satisfaction
D that the prosecution would be able to prove charges against whom the
processes are to be issued-Some evidence brought on record cannot be a
ground to issue processes-Direction to the trial court was merely to proceed
in the matter and not that processes be issued-Thus, matter remitted back
to the trial judge to consider afresh.

E Appellants were named in the first information report. However, upon
investigation, Investigating Officer submitted a final form and the Magistrate
accepted the same. During trial some evidence came against the appellant.
Prosecution filed an application under section 319 Cr.P.C. Sessions Judge
dismissed the application since there was doubt regarding the identity of the
F appellants. Informant filed application under section 482 Cr.P.C. High Court
quashed the order and directed the trial court to proceed with the matter. In
pursuance thereof, Sessions Judge proceeded on the basis that the High Court
had issued direction upon it to issue processes. Hence the present appeals.

Partly allowing the appeal, the Court
G
HELD: I.I. The jurisdiction of the court to issue processes against a
person who has not been sent up for trial is not disputed. Processes can also
be issued against such persons who although were named in the first
information report, but were not sent up for trial upon investigation. The

H 504
ANIL SINGH v. STATE OF BIHAR 505
jurisdiction of the court is limited. While it can exercise an extraordinary A
power, it is required to be done cautiously. The court while issuing the
processes should arrive at a reasonable satisfaction that the prosecution would
be able to prove the charges against whom the processes are sought to be
issued. If the court comes to the conclusion having regard to the materials
on record, that the prosecution ultimately may not be able to bring home the B
charge as against the persons against whom processes were to be issued, it
would decline to do so. 1510-B-D; 512-D-EI

1.2. It may be true that the court at that stage may not enter into the
merit of the matter. Its opinion in the nature of things would be a prima facie
one. But, the court must also consider that innocent persons may not be C
prosecuted. The court is not bound by the opinion of the investigating officer.
It is required to apply the tests on the touchstone of the materials brought on
record. A balance is required to be maintained. The court must pose unto
itself a right question. It is required to scrutinize the materials more closely.
A power under Section 319 Cr.P.C. is not to be exercised in a mechanical
manner. Only because some evidence has been brought on record, the same D
by itself may not be a ground to issue processes. (512-E-G I

1.3. Sessions Judge, as observed by the High Court, proceeded on a
wrong premise in holding that as no chargesheet was filed as against
appellants by the police the same was not sufficient to refuse to issue summons.
The question which was necessary to be posed was as to whether any case E
has been made out for exercise of extraordinary jurisdiction by the court
keeping in view the fact as to whether the prosecution would be able to bring
home the charge. (512-C-D)

1.4. High Court did not direct that the processes be issued. It merely F
directed the trial judge to proceed in the matter in accordance with law. The
same evidently did not mean that High Court has already arrived at a
conclusion that the processes must be issued. High Court merely laid down
a law as the trial judge went wrong in formulating the correct question of
law. High Court did not have any occasion to consider the merit of the matter.
Thus, the matter is remitted back to the trial judge to consider the question G
afresh. [512-H; 513-A-Cf

Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., ( 19831
1SCC1; Kishun Singh and Ors. v. State of Bihar, (1993( 2 SCC 16; Michael
Machado and Anr. v. Central Bureau ofInvestigation and Anr., [2000( 3 SCC
262; Krishnappa v. State of Karnataka, (2004) 7 sec792; Kavuluri H
506 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A Vivekananda Reddy and Anr. v. State of A.P. and Anr., 120051 12 SCC 432;
l'a/anisamy Gounder and Anr. v. State Represented by Inspector of Police,
12005112 SCC 327; Rukhsana Khatoon (Smt.) v. Sakhawat Hussain and Ors.,
120021 10 SCC 661 and Girish Yadav and Ors. v. State of M.P., If 99618 SCC
186, relied on.

B CRIMINAL APPELLATE JURJSDICTION: Criminal Appeal No. I082 of
2006.

From the Final Judgment and Order dated 8.7.2004 of the High Court of
Judicature at Patna in Criminal Misc. No. 33544 of 2001.

C Jaideep Gupta, Satyakam, Nikhil Nayyar, Chandra Bhushan Prasad and
Jagj it Singh Chhabra for the Appellants.

Gopal Singh, ShakiI Ahmed Syed and Anil K. Chopra for the Respondents.

The Judgment of the Court was delivered by
D
S.B. SINHA, J. Leave granted.

These appeals are directed against a judgment and order dated 8.7.2004
passed by a learned Single Judge of the Patna High Court in Criminal
Miscellaneous No. 33544 of 2001 whereby and whereunder an application
E filed under Section 482 of the Code of Criminal Procedure on behalf of
Respondent Np. 2 herein has been allowed.

The question revolves round interpretation of Section 319 of the Code
of Criminal Procedure. Respondent No. 2 herein lodged a first information
F report inter alia against Appellants alleging that in an incident which took
place at 8.30 a.m. on I6.7.1997, one Ranjit Singh (deceased) S/o Dileswara
Singh was shot from behind as a result whereof he sustained bullet injuries.
In the first information report, Appellants herein were specifically named.
Upon an investigation, the Superintendent of Police having come to the
conclusion that they had been falsely implicated, a final form was filed in their
G favour. The said final form as against Appellants was accepted by the learned
Magistrate. However, as a chargesheet was filed against the other accused,
cognizance was taken against them.

Before the learned Sessions Judge, the prosecution examined three
witnesses including the first informant. They, in their deposition, stated that
H Respondents herein with the chargesheeted accused took part in commission
ANIL SINGH v. STATE OF BIHAR [S. B. SINHA, J.) 507

of the offence of murder of Ranj it Singh. A
Navin Kumar Singh (PW-I) in his evidence stated:

"Ranjit Singh, Prahlad Singh were there. They were sitting on the
shop of Mahender Yadav. Ranjit and Prahlad went to the shop of
Uchit Lal Mahto for taking tea. The witnesses state that at first B
Prahlad Singh went to take tea. After some time, Ranjit was also going
to the shop of Uchit Lal for taking tea. Ranjit was going from the shop
of Mahender and when he reached at Pakki road, Pancha Mahto, Anil
Singh, Biltu Mahto, Siyavar Singh reached there from the North side.
Anil Singh was having a country-made Pistol in his hand."
c
Prahalad Singh (PW-2) in his deposition stated:

"As Ranjit reached the road from the North, Anil Singh, Siyavar
Singh, Pancha Mahto, Biltu Mahto came towards Ranjit. Anil Singh
fired from the country-made Pistol from behind. On receiving the
bullet shot, Ranjit fell on the road and died there." D
In cross-examination, he, however, stated:

"I 0. There are four persons by the name of Anil Singh in my village,
Anil Singh s/o Sita Sharan, Anil S/o Upendra, Anil Singh s/o Ram
Bujhavan, Anil Singh S/o Yuga! Singh, they are all of my caste. I have E
acquaintance with them. The house of Anil Singh s/o Sitasharan
Singh is at a distance of'!. K.M. from my house. The house of Mahtos
is at a distance from my house. I recognize the faces of all the persons
of Mahto Tola. I do not know the names of every one. I know about
100 persons of Mahto Tola by name .....
F
20. After coming out of the shop of Uchit Lal, I ran towards East,
West. I was injured of my own. I recognize Sanjivan and Hari Narain.
Both of them are my uncles. Ranjit Singh was also my uncle in
relation. I have no relationship with Anil Singh s/o Sita Sharan Singh.
The house of Anil Singh is in my Tola..... G
28. I know Biltu Mahto for the past many days. He was not a leader
of the Communist Party."

Harsh Narain Singh (PW-3), however, stated:

"3. Anil, Biltu, Siyavar, Pancha Mahto were coming from North. Anil H
508 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A came near Ranjit and shot him dead by the Revolver. On being hit by
Revolver, Ranjit died on the road. Siyavar Singh, Biltu Mahto, Pancha
Mahto, asked to kill Prahalad. Pancha Mahto got ready to kill Prahalad
by the knife and gave a blow on his stomach. When Prahalad stopped
him, then his left hand was cut. Prahalad threw the bench and ran
away. I recognize the accused Pancho Mahto who is present. I can
B recognize on being seen. There was no opposition."

The prosecution thereafter filed an application for summoning Appellants
purported to be in terms of Section 319 of the Code of Criminal Procedure.
By a judgment and order dated 22.9.200 I, the Second Addi. Sessions Judge
C dismissed the said application inter alia holding that Appellants have been
found to be innocent as there was doubt as regards their identity.

On an application filed under Section 482 of the Code of Criminal
Procedure by the informant, the High Court, however, opined:

"In the present case, the Opposite Parties I to 3 were named in the
D first information report and in the case diary there were sufficient
materials against them, even then the final fom1 was submitted by the
Investigating Officer which was accepted by the learned Magistrate
without observing the mandatory provisions of law. Now at the stage
of trial some evidence has come against them and, as such, the order
E passed by the learned trial court is wholly without jurisdiction. The
finding of the learned trial court that identity of the Opposite Parties
I to 3 cannot be established as their parentage is not given is against
the materials on record as in the first information report and also in
the charge-sheet the parentage of the Opposite Parties I to 3 have
been given. In the deposition the parentage of the Opposite Parties
F I to 3 has also been stated by the prosecution witnesses. As such,
the petition filed by the prosecution under Section 319 of the Code
should not have been dismissed on this ground. As far as the
submission made by the learned counsel appearing on behalf of
Opposite Parties I and 2 that rightly or wrongly they were made
G accused by an earlier order, which was quashed by this Hon 'ble
Court, therefore, they cannot be summoned under Section 319 of the
Code is concerned, I must say that this argument has no leg to stand.
Once the order dated 16.8.1998 that status of the Opposite Parties was
not as an accused and, as such, they can be summoned under Section
319 of the Code.
H
ANIL SINGH v. STATE OF BIHAR [S.B. SINHA, J.] 509

One consideration of the entire materials and arguments advanced A
on behalf of the parties 1 am of the view that the order impugned is
without jurisdiction. The order impugned dated 22.9.2001 passed by
the llnd Additional Sessions Judge, Madhubani is quashed. The trial
court is directed to proceed in the matter in accordance with law."

Appellants are, thus, before us. B
Mr. Jaideep Gupta, learned senior counsel appearing on behalf of
Appellants, would submit that although there is no bar in law in issuing
summons to an accused, who had been named in the first information report
but had not been sent up for trial, by the court in exercise of its jurisdiction
under Section 319 of the Code of Criminal Procedure, the power of the court C
being extraordinary in nature is required to be exercised very sparingly. It was
contended that the learned Sessions Judge at the later stage of the proceeding
proceeded on the basis that the High Court had issued a direction upon it
to issue processes and, thus, the processes have since been directed to be
issued. D
Mr. Gopal Singh, learned standing counsel appearing on behalf of
Respondent-State, on the other hand, would contend that the High Court
cannot be said to have committed any error in passing the impugned judgment
having regard to the evidences brought on records.
E
Section 319 of the Code of Criminal Procedure reads, thus:

"319. Power to proceed against other persons appearing to be
guilty of offence. ( 1) Where, in the course of any inquiry into, or trial
of, an offence, it appears from the evidence that any person not being
the accused has committed any offence for which such person could F
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. G
(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 H
510 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

!\ (I) 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
B if such person had been an accused person when the court took
cognizance of the offence upon which the inquiry or trial was
commenced."

As noticed, the jurisdiction of the court to issue processes against a
person who has not been sent up for trial is not disputed. Processes can also
C be issued against such persons who although were named in the first
information report, but were not sent up for trial upon investigation.

The jurisdiction of the court indisputably is limited. While it can exercise
an extraordinary power, it is required to be done cautiously. The court while
issuing the processes should arrive at a reasonable satisfaction that the
D prosecution would be able to prove the charges against whom the processes
are sought to be issued.

The law in this behalf has been laid down in Municipal Corporation
of Delhi v. Ram Kishan Rohtagi and Ors.. [ 1983] I SCC I in the following
terms:
E
"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 cognisance
against the other person against whom action has not been taken."

F [See also Kishun Singh and Ors. v. State of Bihar, [1993] 2 SCC 16]

In Michael Machado and Anr. v. Central Bureau of Investigation and
Anr.. [2000] 3 SCC 262, this Court opined:

"11. The basic requirements for invoking the above section is that it
G 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, has 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
H words, the court must have reasonable satisfaction from the evidence
ANILSINGHv. STATEOFBIHAR[S.B. SINHA,.1.J 511

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

. Yet again in Krishnappa v. State of Karnataka, [2004] 7 SCC 792, this
Court observed:
B
"9. In Michael Machado v. Central Bureau of Investigation construing
the words "the court may proceed against such person" in Section
319 CrPC, this Court held that the power is discretionary and should

. be exercised only to achieve criminal justice and that the court should
not turn against another person whenever it comes across evidence
connecting that other person also with the offence. This Court further C
held that a judicial exercise is called for, keeping a conspectus of the
case, including the stage at which the trial has already proceeded and
the quantum of evidence collected till then, and also the amount of
time which the court had spent for collecting such evidence. The
I
court, while examining an application under Section 319 CrPC, has also D
to bear in mind that there is no compelling duty on the court to
proceed against other persons. In a nutshell, it means that for exercise
of discretion under Section 319 CrPC, all relevant factors, including
the one noticed above, have to be kept in view and an order is not
required to be made mechanically merely on the ground that some
evidence had come on record implicating the person sought to be E
added as an accused."

The said dicta has been followed by this Court in Kavuluri Vivekananda
Reddy and Anr. v. State ofA.P. and Anr., [2005] 12 SCC 432 and Pa/anisamy
Gounder and Anr. v. State Represented by Inspector ofPolice, [2005] 12 SCC
327. F

In Rukhsana Khatoon (Smt.) v. Sakhawat Hussain and Ors., [2002] 10
SCC 661, whereto our attention has been drawn by learned standing counsel,
this Court did not law down any lay having universal application. It merely
opined that the court may exercise its power under Section 319 of the Code G
of Criminal Procedure also in relation to such accused who had although been
named in the first information report, but was not sent up for trial stating:

"6. The learned counsel for the respondents contended that the High
Court was justified in passing the impugned order and in support of
...,-. his contention he has relied upon the decision in Municipal Corpn. H
512 SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A of Delhi v. Ram Kishan Rohtagi. In our view, there is no substance
in his contention. In that case also, after considering Section 319
CrPC, this Court held that the said provision gives ample power to any
court to take cognizance and add any person not being an accused
before it and try him along with other accused, if there appears during
· the trial sufficient evidence indicating his involvement in the offence.
B The Court also observed that this power is really an extraordinary
power and should be used very sparingly."

[See also Girish Yadav and Ors. v. State of M.P., [1996] 8 SCC 186, at
page 197] .
c The court's power, as noticed hereinbefore, is not disputed. The learned
Sessions Judge, however, as has been observed by the High Court, proceeded
on a wrong premise in holding that as no chargesheet was filed as against
Appellants by the police the same was not sufficient to refuse to issue
summons. The question, which was necessary to be posed in view of the
propositions of law as noticed supra, was as to whether any case has been
made out for exercise of extraordinary jurisdiction by the court keeping in
view the fact as to whether the prosecution would be able to bring home the
charge. If the court comes to the conclusion having regard to the materials
on record, that the prosecution ultimately may not be able to bring home the
charge as against the persons against whom processes were to be issued, it
E would decline to do so. The court must also take into consideration the fact
as to whether an appropriate case has been made out for exercise of the
extraordinary jurisdiction.

It may be true that the court at that stage may not enter into the merit
F of the matter. Its opinion in the nature of things would be a prima facie one.
But, the court must also consider that the innocent persons may not be
prosecuted. The court is not bound by the opinion of the investigating
officer. It is required to apply the tests on the touchstone of the materials
brought on record. A balance is required to be maintained. The court must
pose unto itself a right question. It is required to scrutinize the materials more
G closely. A power under Section 319 of the Code of Criminal Procedure is not
to be exercised in a mechanical manner. Only because some evidence has
been brought on record, the same by itself may not be a ground to issue
processes.

The learned Judge of the High Court by its judgment did not direct that
H
ANIL SINGH v. STATE OF BIHAR (S.B. SINHA. J.] 513
the processes be issued. It merely directed the learned Trial Judge to proceed A
in the matter in accordance with law. The same evidently did not mean that
the High Court has already arrived at a conclusion that the processes must
be issued. The High Court merely laid down a law as the learned Trial Judge
went wrong in formulating the correct question of law. The High Court,
however, did not have any occasion to consider the merit of the matter. In B
that view of the matter, we would remit the matter back to the learned Trial
Judge and direct that the question be considered afresh in the light of the
observations made hereinbeforc. As the case is pending for a long time, we
would request the learned Trial Court to consider the desirability of disposing
the matter as expeditiously as possible. The appeals are allowed to the
aforementioned extent. c
N.J. Appeals partly allowed .

..