Holding

An order of issuance of summons under CrPC s.319 cannot be recalled; the magistrate had jurisdiction to add the headmaster as an accused and no sanction under s.197 is required, so the revision orders were set aside and the magistrate’s order restored.

Summary

The appellant, Bholu Ram, a clerk in a government school, was charged with forgery and cheating under IPC sections 409, 420, 467, 468 and 471. During trial he applied under CrPC s.319 to add the headmaster, Sher Singh, as an accused and the magistrate issued summons. The headmaster sought to recall the summons on the ground that no sanction under s.197 was obtained and that the magistrate lacked power to recall a summons. The Additional Sessions Judge and the High Court set aside the magistrate's order. The Supreme Court held that a magistrate’s order issuing summons under s.319 cannot be recalled; any challenge must be through the inherent jurisdiction of the High Court under s.482. The magistrate had proper jurisdiction to add the headmaster as an accused, and no sanction under s.197 is required for the offences alleged. Consequently, the appellate court set aside the revision orders and restored the magistrate’s summons order.

Issues considered

The power of a court to recall an order of issuance of summons under CrPC s.319.
Whether an accused can file an application under s.319 to add another person as accused and whether any time limit applies.
The requirement of sanction under CrPC s.197 for offences under IPC ss.409, 420, 467, 468, 471 committed by a public servant.
The scope of revisional jurisdiction of the Additional Sessions Judge and High Court to set aside a magistrate’s s.319 order.
The effect of K.K. Mathew and Ada/at Prasad decisions on the recall of summons.
The availability of inherent jurisdiction under s.482 to quash criminal proceedings.

Legislation cited

Code of Criminal Procedure, 1973s. 197, s. 200, s. 202, s. 203, s. 204, s. 319, s. 482
Indian Penal Code, 1860s. 409, s. 420, s. 467, s. 468, s. 471

Subjects

Section 319summonsrecall of orderrevisional jurisdictioninherent jurisdictionSection 197sanctionpublic servantIPC offences 409 420 467 468 471addition of accusedCriminal Procedure

Judgment

[2008] 12 S.C.R. 959

~
BHOLU RAM A
v.
STATE OF PUNJAB & ANR.
(Criminal Appeal No. 1366 of 2008)
AUGUST 29, 2008
B
[C.K. THAKKER AND D.K. JAIN, JJ.]
.. ~ ~~

Code of Criminal Procedure, 1973:
ss. 319, 197 and 482 - Recalling order of issuance of
summons against person other than accused -·Permissibility c
of- Held: Order passed by competent court issuing summons
cannot be recalled - Aggrieli'ed party can challenge the order
by invoking in{lerent jurisdiction of High Court u/s. 482 - On
facts, Revisional Court and High Court not justified in recalling
summoning order passed by Magistrate against Head Master- D
cum-Drawing and Disbursing Officer other than accused-clerk
in Government School - Accused in a complaint alleging
forgery and cheating, filed application to add respondent as
accused and summon him - Magistrate had power and
;urisdiction to entertain the applications - It issued summons E
on being satisfied that depositions of prosecution witnesses
prima facie made out offence against respondent - Revisional .
Court erred in entering into correctness of the evidence at the
stage of issuance of summons to respondent - Proceedings
could not have been quashed on the ground of want of F
sanction - Application to issue summons could be filed by
any person including accused and the court could entertain
such application filed belatedly - Thus, orders of Revisional
Court and High Court set aside and that of Magistrate restored.·
s. 319 - Summoning of person other than accused - G
Power of court - Nature and scope of - Discussed.
Penal Code, 1860 - ss. 409, 420, 467, 468, 471 -
Offences under- Requirement of sanction uls. 197 Cr.PC. -
959 H
960 SUPREME COURT REPORTS [2008] 12 S.C.R.

A Held: Offences u/ss. 409, 420, 467, 468, 471 cannot be
regarded as having been committed by a public servant while
'acting or purporting to act in discharge of official duty,' thus,
sanction is not required - On facts, complaint alleging forgery
and cheating against accused-clerk in Government school -
g Issuance of summons against Head Master other than
accused - Quashing of, by Revisional Court on the ground of
absence of sanction but holding that at the most there was
negligence on the part of Head master but no criminal intent
- Held: Not correct - Mens rea can only be decided at the
c time of trial and not at the stage of issuing summons - Need
or necessity of sanction can be taken during the conduct of
trial or at any stage of the proceedings - Code of Criminal
Procedure, 1973 - s. 197.
Administrative law - State authorities - Role of - On
D facts, complaint alleging forgery and cheating against
accused-clerk in Government school - Issuance of summons
against Head Master other than accused - Challenge to, by
State before Sessions Court - Before Supreme Court also
State supporting the Head master - Propriety of - Held: Not
E proper.
First Information Report was lodged against the
appellant u/ss. 409, 420, 467, 468 and 471 IPC. It was
alleged that the appellant-Clerk in Government School
forged signature of respondent No. 2-Head Master-cum-
F Drawing and Disbursing Officer and embezzled
substantial amount. During investigation, signatures of
respondent No. 2 were also taken but prosecution never
filed the report. Witnesses deposed that respondent No.
2 had withdrawn the amount and ·signatures purported
G to have been forged by appellant tallied with the
specimen signatures of respondent No. 2. Thereafter,
appellant filed applications u/s. 319 Cr.P.C. to add
respondent No. 2 as accused and summon him. The.
Magistrate allowed the application. Respondent No. 2 was
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 961

--'r
issued summons. Aggrieved, respondent No. 1-State filed A
Revision Petition which was dismissed. Thereafter,
respondent No. 2 filed application to review/recall
summoning order on the ground that he could not be
prosecuted in absence of sanction required by s. 197 of
the Code. The Magistrate dismissed the c;ipplication in B
view of dismissal of revision petition filed by State.
~
However, Additional Sessions Judge allowed the revision
petitions filed by the respondent No, 2 and set aside the
order adding respondent No. 2 as an accused and
summoning him. High Court upheld-the order. Hence the c
present appeal.
Allowing the appeal, the Court
HELD: 1.1 Section 319 Cr.P.C., 1973 empowers a
Court to proceed against any person not shown tc;> be an
accused if it appears from the evidence that such person
D
has also committed an offence for which he can be tried
...
together with the accu~ed. It is only proper that a
Magistrate should have power to summon by joining such
person as an accused in the case. The primary object
underlying s. 319 is that the whole case against all the E
accused should be tried and disposed of not only
expeditious~y but also simultaneously. Justice and
convenience both require that cognizance against the
newly aqded accused should be taken in the same case
and in the same manner as against the original accused. F
~
The power must be regarded and conceded as incidental
and ancillary to the main power to take cognizance as
part of normal process in the administration of criminal
justice. [Paras 19 and 21] [970,G-H; ~71,G-H; 972,A]
G
) 1.2 The power under Section 319 can be exercised
either on an application made to the Court or by the Court
suo motu. It is in the discretion of the Court to take an
action under the said section and the Court is expected
to exercise the discretion judicially and judiciously having
H
962 SUPREME COURT REPORTS [2008] 12 S.C.R.

A regard to the facts and circumstances of each case. [Para
22] [972, 8-C]
1.3 Section 319 of the Code nowhere states that such
an application can be filed by a person other than the
accused. It also does not prescribe any time limit within
B which such application should be filed in the Court. [Para
25] (972,G-H]
1.4 In the instant case, the Magistrate had power
a.nd jurisdiction to entertain applications filed by the
c appellant-accused u/s.319 of the Code and to issue
summons fo respondent No. 2 by adding him as accused.
The said order could not be said to be illegal, unlawful or
otherwise objectionable. The submission that the power
u/s.319 of the Code, cannot be exercised belatedly by the
Court, and that an application u/s.319 cannot be filed by
D
a person who is facing the trial, cannot .be accepted. It
was the case of the appellant that it was during the course
of prosecution evidence that ·he came to know that
signatures of respondent No. 2 were sent for examination,
some report was received by the prose<;:ution which was
E not produced in Court and on the basis of such evidence,
the. case was made out against respondent No.2. If in
these circumstances, applications were made and the
prayer was granted, there is no infirmity therein. [Paras
24, 40 and 70] [998,G-H; 972,F; 990,A-B]
F
· Joginder Singh and Anr. v. State of Punjab and Anr. 1979
(1) SCC 345; Municipal Corporation of Delhi v.' Ram Kishan
Rohtagi and Ors. 1983 (1) SCC 1; Lok Ram v. Nihal Singh
and Anr. 2006 (10) SCC 192; Shashikant Singh v. Tarkeshwar
G· Singh and Anr. 2002 (5) SCC 738 - referred to.

2.1 Once an order is passed by a competent Court
issuing summons or process, it cannot be recalled. [Para
51] [982,E]
2.2 It is quite possible that in a given ca~e, a
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 963

~
Magistrate may take cognizance of an offence illegally or A
arbitrarily without there being any material whatsoever.
Such illegal order should not deprive the accused from
contending that the Magistrate was wrong and wholly
unjustified in entertaining the complaint or taking
cognizance of an offence. In such cases, however, the B
accused is not without legal remedy. If the act of taking
.4 cognizance, issuance of process or joining of an innocent
person as an accused is totally uncalled for or ex facie
bad in law, it is open to the aggrieved party to invoke
inherent jurisdiction of High Court u/s 482 of the Code. If c
High Court is satisfied that the orqer passed by the
Magistrate was illegal, improper or arbitrary, it can exercise
inherent powers and quash criminal proceedings initiated
against the party. But that power is independent and has
nothing to do with recalling of an earlier order by the
D
Court which passed it. [Para 55] [983,D-G]
2.3 The submission of the respondent no. 2 that even if
"' it is assumed that the trial court did not possess the power
of recalling its order, the Court may consider an important
fact that the respondent No. 2, who was really an 'aggrieved E
party' had preferred revisions in the Court of Sessions and
it would not preclude the revisional Court from exercising
revisional jurisdiction and quashing and setting aside an order
passed by subordinate Court if it was not in accordance with
law, cannot be accepted. [Para 54] [983,A-C] F
,A
2.4 In the instant case, even on merits, the order
passed by the Magistrate issuing summons to respondent
No.2 could not be said to be unlawful or even improper.
When applications u/s. 319 of the ·Code were preferred
by the appellant praying to join respondent No.2 as an G
)
accused and to issue summons, the Magistrate
considered the evidence of prosecution witnesses and
he was satisfied that depositions of witnesses prima facie
made out offence against respondent No.2. [Paras 56 and
57] [983,G-H; 984,A-B] H
964 SUPREME COUl~T REPORTS [2008] 12 S.C.R.

A 2.5 The Revisional Court ought not to have interfered
with the order passed by the trial court u/s 319 of the
Code. Since the order passed by the Judicial Magistrate
was in consonance with law, the· Additional Sessions
Judge should have refrained from exercising revisional
B jurisdiction. The orders passed by the Additional Sessions
Judge and the High Court are set aside and. the order
passed by the Judicial Magisfrate is restored. Since the
matter pertains to' FIR of 1986, the Magistrate is directed
to conclude the trial expeditiously. [Paras 71 and 73]
C [990,~-D;. 991,B]
2;6 The Revisional Court referred to *K.K. Mathew's
case and held that a summoning order, being interlocutory
in nature, could not be termed as 'judgmenf and there
was no bar in recalling such order. The Additional
D. Session.s Judge decided the revision in 1998. The law
governing the field at that time was the law laid down in
K. K. Mathew. **Ada/at Prasad's case had not seen the light
6f the day. Therefore, there is nothing wrong on the part
of the Additional Sessions Judge in considering,
E following and deciding the case on the basis of K.K.
Mathew. However, Revisional Court was not right in·
interfering with the order passed by the trial court. The.
Magistrate issued summons taking into account evidence
led by the prosecution. The ~evisional Court was having
F depositions of those witnesses, the order passed by the
Magistrate, the order made by the Additional Sessions _.___
Judge in revision instituted by the State and also the
otder·passed by the Magistrate in an application to recall
filed by respondent no. 2. lnspite of the above material,
G Revisional Court interfered with the order of the trial
Court. It was not justified in entering into correctness or t
otherwise of the evidence at the stage of issuance of
summons to respondent No.2. Hence, the order was not
in accordance with law. [Paras 62, 63, 64 and 66] [987 ,A-
E; 988,G; 989,B]
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 965

*K.K. Mathew v. State of Kera/a and Anr. 1992 (1) SCC A .
217; **Ada/at Prasad v. Roop/al Jindal and Ors. 2004 (7)
SCC 338; Nilamani Routray v. Bennett Coleman and Co.
Ltd. 1998 (8) SCC 594; Subramaniam Sethuraman v. State
of Maharashtra, (2004) 13 SCC 324; N. K. Sharma v.
Abhimanya (2005) 13 SCC 213; Everest Advertisement v. B
State Government of NCT of Delhi 2007 (5) SCC 54- referred
to.
3. The offences punishable u/ss 409, 420, 467, 468,
471 IPC can by no stretch of imagination by their very
nature be regarded as having been committed by a public C
servant while 'acting or purporting to act in discharge of
official duty'. The Revisional Court was aware of legal
position. It was, however, held by the Court that at the
most there was negligence on the part of respondent
No.2 but there was no criminal intent and he cannot be D
held criminally liable. Mens rea can only be decided at the
time of trial and not at the stage of issuing summons.
Moreover, a point as to need or necessity of sanction can
be taken during the conduct of trial or at any stage of the
proceedings. Hence, proceedings could not have been E
quashed on the ground of want of sanction in the instant
case. [Paras 68 and 69] [989,C-D; 989,E-F]
Prakash Singh Badal v. State of Punjab (2007) 1 SCC
1 - referred to.
F
4. As regard the role of the State, an order passed by
the Judicial Magistrate summoning respondent No.2 as
accused was challenged by the State by filing a revision
in the Court of Session, which was dismissed. Even in this
Court, the State supported respondent No.2. An affidavit
) in reply was filed by the State even before counter affidavit G
was filed by contesting respondent No.2. Though in the
affidavit, it is not necessary to deal with law points and/or
decisions rendered by a Court of law, the deponent refers
to and relies on K.K. Mathew expressly overruled by a larger
H
966 SUPREME COURT REPORTS [2008] 12 S.C.R.

A Bench in Ada/at Prasad. No reference at all has been made
to Ada/at Prasad. It is respondent No.2 who, in his counter,
refers to both the decisions. In the totality of the facts and
circumstances, the submission of the appellant that the
Stat~ Authorities were helping· and ·assisting respondent
B No.2 cannot be said to be totally ill-founded or without
substance: The State, could have easily avoided such
embarrassment. [Para 72] [990,E-H; 991,A]
Case Law Reference
1979 (1) sec 345 Referred to. 27
c
1983 (1) sec 1 Referred· to. 33
2006 (10) sec 192 Referred to. 35
2002 (5) sec 738 Referred to. 39
D 1992 (1) sec 211 Referred to. 42
2004 (7) sec 338 Referred to. 45
1998 (8) sec 594 Referred to. 46
2004 (13) sec 324 Referred to. 50 ~
E 2005 (13) sec 213 Referred to. 50
2001 (5) sec 54 Referred to. 50
2001 (1) sec 1 Referred to. 68
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
F No. 1366 of 2008
From the final Judgment and Order dated 27.11.2006 of
the High Court of Punjab and Haryana at Chandigarh 'in Criminal
Revision No. 401 of 1998
G Rishi Malhotra for the Appellant.
Seeraj Bagga, Kuldip Singh, P.N. Puri, Dhiraj and Reeta
Dewan for the Respondents.,
The Judgment of the Court was delivered by
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 967
[C.K. THAKKER, J.]
--i
C.K. THAKKER, J. 1. Leave granted. A
2. The present appeal is filed by the appellant-accused
against the order passed by the Additional Sessions Judge,
Barnala on March 5, 19~8 in Criminal Revision Nos. 11 and 12
of 1997 and confirmed by the High Court of Punjab & Haryana

.
_,)
on November 26, 2006 in Criminal Revision Nos. 401 and 402
of 1998.
B

3. To appreciate the issues raised in the j;)resent appeal,
few relevant facts may be stated.
4. On August 21, 1986, First Information Report (FIR) No. c
87 was lodged against the appellant for commission of offences
punishable under Sections 409, 420, 467, 468 and 471 of the
Indian Penal Code (IPC). The allegation in the FIR was that the
appellant was a Clerk in Government Hign School, Rurke Kalan.
He had forged signature of Sher Singh-respondent No. 2 herein D
who was the Head Master-cum-Drawing and Disbursing Officer
and embezzled substantial amount of more than Rs. one lakh
between 1979 and 1986. As stated in the FIR, the said fact
came to light when audit was carried out and report was
submitted. Hence, the complaint. E
5. According to the appeilant, during the course of
investigation, signatures of respondent No. 2 were also taken
and were sent for examination but the report on the said
examination was never filed by the prosecution in the
proceedings. It was only in the course of recording of F
~+-
prosecution evidence that certain witnesses deposed against
respondent No. 2 alleging that it was respondent No. 2 who
had withdrawn the amount and signatures purported to have
been forged by the appellant really tallied with the specimen
)
signatures of respondent No. 2. In view of the said fact, the G
appellant on February 05, 1994 and on January 06, 1996, filed
applications under Section 319 of the Code of. Criminal
Procedure, 1973 (hereinafter referred to as 'the Code') in the
Court of Judicial Magistrate praying therein to add .r:.,espondent
No. 2 as an accused and summon him being Head Master- H
968 SUPREME COURT REPORTS [2008] 12 S.C.R.

A cum-Drawing and Disbursing Officer who had prepared false
and forged bills, misappropriated the amount and committed
fraud on the Government.
6. The learned Magistrate, after considering the evidence
on record, held that prima facie case had been made out against
B respondent No. 2 and that he should also be joined as accused.
The learned Magistrate allowed the applications of the appellant "-- ~
and issued summons to respondent No. 2 by joining him as
accused.
c 7. Though the order was passed on January 22, 1996, it
was not challenged by respondent No. 2. The order, however,
was challenged by the Sta.te by filing a Revision Petition in the
Court of Additional Sessions Judge, Barnala. The learned Judge
vide an order dated May 06, 1996, dismissed the petition filed
D by respondent No. 1-State. ,
8. After a gap of more than eight months from the order
passed by the learned Magistrate summoning respondent No.
2, he filed an application on September 25, 1996 to. review/
recall summoning order dated January 22, 1996. He also
E contended in a separate petition that he could not be prosecuted
in absence of sanction as required by Section 197 of the Code.
The learned Magistrate by an order dated March 12, 1997
dismissed the application of respondent No. 2 holding it to be
not maintainable in view of dismissal of revision of the State by
F the Additional Sessions Judge.
9. Being aggrieved by the order passed by the Judicial
Magistrate, respondent No. 2 filed two Revision Petitions before
the learned Additional Sessions Judge. The learned Judge
allowed the revisions of respondent No. 2 and set aside the
G order dated January 22, 1996 passed by the Judicial Magistrate
adding respondent No. 2 as an accused and summoning him.
The said order was passed on March 5, 1998.
"
10. "The
.
appellant challenged both the orders by
approaching the High Court by instituting two revision petitions.
H
BHOLU RAM v. STATE Or PUNJAB & ANR. 969
[C.K. THAKKER, J.]
I

The High Court, however, dismissed both the revisions and A
confirmed the order passed by the learned Additional Sessions
Judge. The said order is challenged in the present appeal.
11. On January 19, 2007, notice was issued by this Court.
On February 15, 2007, further proceedings were stayed. ,
Considering the controversy and issues involved, the Registry 8
was directed to place the matter for final hearing. Accordingly,
the matter was placed before us.
12. We have heard the learned counsel for the parties.
13. The learned counsel for the appellant contended that i C
once an order was passed and summons was issued by the
Judicial Magistrate, he had no power, authority or jurisdiction to
. review the said order or recall the summons. On that ground
alone, the orders passed by the courts below are liable to be
set aside. It was also submitted that the order passed by the ,D
Judicial Magistrate adding respondent No. 2 and summoning
) him was in consonance with Section 319 of the Code and
should not have been interfered with. It was urged that such an
order could be passed on an application of any party including
the accused and the matter ought to have been decided on E
merits and the said order could not have been disturbed by the
revisional Court. It was further submitted that the Courts below
were wrong in invoking Section 197 of the Code and in holding
that sanction was necessary.
14. It was submitted that even on merits, the orders passed F
by the Judicial Magistrate was in consonance with law and '
called for no interference. It was, therefore, prayed that the
order passed by the Additional Sessions Judge and confirmed
by the High Court may be set aside and the order passed by
the Judicial Magistrate be restored. G
)

15. The learned counsel for the contesting respondent
No. 2, on the other hand, supported the order passed by the
Courts below. It was submitted that the Additional Sessions
Judge was satisfied that the order passed by the Judicial· H
970 SUPREME COURT REPORTS [2008] 12 S.C.R.

""/--
A Magistrate was not in consonance with lav1 and it could be
recalled. Such order was not an order of review, but recalling
of earlier order which was not found legal or lawful. It was also
submitted that FIR was lodged as early as in 1986 and
applications for adding respondent No. 2 as an accused were
8 made by the appellant-accused in the year 1994 and 1996, i.e.
after about 8 to 10 years. Such applications, therefore, could
not have been entertained by the Court. Again, the respondent "---""<
No. 2 was admittedly Head Master-cum-Drawing and Disbursing
Officer and no prosecution could be launched against him
c without sanction from the Government as envisaged by Section
197 of the Code. Since no such sanction was obtained, no
prosecution could be launched against him.
16. The counsel also submitted that no application under
Section 319 could be filed by an accused and since the
D appellant herein was the accused, applications by him were
not maintainable. The counsel urged that when the Additional
Sessions Judge allowed the revisions filed by respondent No. --(
2 and the said order was confirmed by the High Court, this
Court may not interfere with it in exercise of discretionary
E jurisdiction under Article 136 of the Constitution. It was, therefore,
submitted that the appeal may be dismissed.
17. The learned Government pleader appearing for
respondent No. 1 adopted the arguments of learned counsel
for respondent No. 2 and submitted that the appeal deserves
F to be dismissed. I

18. Having heard the learned counsel for the parties and "'-
in the light of the relevant provisions of law as also judicial
pronouncements to which our attention has been invited by the
learned cot.:nsel for the parties, in our opinion, the appeal
G
deserves to be allowed. (

19. Section 319 of the Code empowers a Court to proceed
against any person not shown to be an ac.cused if it appears
from the evidence that such person has a!so committed an
H offence for which he can be Uied together with the accused.
BHOLU RAM v. STATE OF PUNJAB & ANR. 971
[C.K. THAKKER, J.]

20. Section 319 of the Code reads thus; A
· 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 ttie . 1

evidence that any person ·not being the. accused had
comm_itted ariy offence for which such· per~;oh could be ·B
~- ._,/ tried together With the. accused, the Court may proceed
ag·ainst such person for the offence which tie appea.rs to
have committed.
(2) Where such person is not attending the Court he may 'c
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
for the purpose of the inquiry into, or trial of, the offence D
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 , E
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. F
21. Sometimes a Magistrate while hearing a case against
one or more accused finds from the evidence that some person ,
other than the accused before him is also involved in that very
offence. It is only proper that a Magistrate should have power , G
to summon by joining such person as an accused in the case.
The primary object underlying Section 319 is that the whole
case against all the accused should be tried and disposed of '
not only expeditiously but also simultaneously. Justice and
convenience both require that cognizance against the newly ' H
972 SUPREME COURT REPORTS [2008] 12 S.C.R.

].-...
A added accused should be taken in the same case and in the
v
same manner as against the original accused. The power must ~

be regarded and conceded as incidental and ancillary to the
main power to take cognizance as part of normal process in
the administration of criminal justiGe.
B 22. It is also settled law that power under Section 319 can
be exercised either on an application made to the Court or by \......- ,.
the Court suo motu. It is in the discretion of the Court to take
an action under the said section and the Court is expected to
exercise the discretion judicially and judiciously having regard
c to the facts and circumstances of each case.

23. In the instant case, an FIR was lodged against the
appellant in August, 1986. But it was during the course of trial
that it came to light that signatures of respondent No. 2 were
also taken and were sent for examination and a report was
D
received showing that the signatures on the basis of which
amount was withdrawn tallied with the signatures of respondent
No. 2. The said report, however, was not filed by the prosecution.
It was in these circumstances that the appellant made
applications in 1994 and in 1996 under Section 319 of the
E Code requesting the learned Magistrate to join respondent No.
2 as accused and to summon him.

24. The contention of the learned counsel for respondent
No. 2 is that the power under Section 319 of the Code, cannot
F be exercised belatedly by the Court. Again, such order can be
made only on the application by the Public Prosecutor or by ~'
some p~rson other than the accused. In other words, an
application under Section 319 cannot be filed by a person who
is facing the trial.
G 25. We are unable to uphold the contentions. We have
(
quoted Section 319 of the Code. It nowhere· states that such an
application can be filed by a person other than the accused. It
also does not prescribe any time limit within which such
application should be filed in the Court.
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 973
[C.K. THAKKER, J.]

26. Let us consider few leading decisions of this Court on A
interpretation and application of the said provision.
27. Before three decades, in Joginder Singh & Anr. v.
State of Punjab & Anr., (1979) 1 SCC 345, a case was
registered against Joginder Singh, Ram Singh, Bhan Singh,
Darshan Singh and Ranjit Singh for committing various offences · B
,. - punishable under the Indian Penal Code. During the
investigation, the police found Joginder Singh and Ram Singh
(appellants before this Court) to be innocent and, hence, a
charge-sheet was submitted against the remaining accused
only. The learned Magistrate after holding preliminary inquiry, C
committed three accused to the Sessions Court for trial.
28. During trial, evidence of some of the witnesses was
recorded who implicated the appellants. A Public. Prosecutor,
therefore, moved an application to summon the appellants and D
to try them along with other accl:lsed. The application was
granted by the Sessions Court. The said order was challenged
by the appellants.
29. It was, inter a/ia, contended on behalf of the appellants
that Section 319 of the Code was not attracted inasmuch as E
the phrase "any person not being the accused" occurring therein
excluded from its operation an accused who had been released
by the police under Section 169 of the Code and against whom
no sufficient material was found by the police during
investigation. F
30. This Court considered the relevant provisions of the
Code of Criminal Procedure, 1898 (old Code), Forty-first
Report of the Law Commission, the amendment made in the
present Code and held that the Court could add any person,
not an accused before it, as an accused and direct him to be G
tried along with the other accused for the offence or offences
the added accused appears to have committed.
31. The Court, after considering the scheme of the
provision, observed;
H
974 SUPREME COURT REPORTS [2008] 12 S.C.R.

A "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
8 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, ... "

32. Interpreting the expression "any person not being the
C accused", the Court stated;

"As regards the contention that the phrase "any person
not being the accused" occurring in Section 319 excludes
from its· operation an accused who has been released by
the police under Section 169 of the Code and has been
D
shown in column No. 2 of the charge-sheet, the contention
has merely to.be stat~d to be rejected. The said expression
clearly covers any person who is not being tried already -(

by the Court and the very purpose of enacting such a
provision like Section 319(1) clearly shows that even
E persons who have been dropped by the police during
investigation but against whom evidence showing their
involvement in the offence comes before the Criminal Court
are Included in the said expression".

F (emphasis supplied)
. (See also Rakesh v. State of Haryana, (2001) 6 SCC
248
33. In Municipal Corporation of Delhi v. Ram Kishan
G 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
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 975
[C.K. THAKKER, J.]

was granted and the proceedings against them were quashed.; A
The question before this Court was whether Section 319 of the
Code could be invoked once criminal proceedings against a
person were quashed.
34. Replying the question in the affirmative and quoting
with approval observations in Joginder Singh, this Court said; · 8
,- J "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 c
quashed have also committed the offence the 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
0
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 'E
the proceedings have been quashed against respondent
Nos. 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". ·F
(emphasis supplied)
35. In Lok Ram v. Nihal Singh & Anr., (2006) 10 SCC
192, again, a similar question came up before this Court. In
Lok Ram, one Saroj Kumari was killed by her in-laws. A G
complaint was filed by the father of the deceased against the
husband, brother in law and father in law of Saroj Kumari that
all of them killed the deceased. Police registered a case against
the said persons for offences punishable under Sections 304-
. B, 498-A read with Section 34, IPC. The case of Lok Ram was H
976 SUPREME COURT REPORTS [2008] 12 S.C.R.

A that he was seNing in a school and at the time of incident, he
was not present. No charge-sheet was, therefore, filed against
him.
36. During the trial, however, depositions of witnesses
were recorded which revealed that Saroj Kumari was killed by.
B her husband. Her brother in law and father if:1 law (Lok Ram)
poured kerosene oil on her and she was set on fire. Father of '---,
the deceased, hence,; made an application under Section 319
of the Code to add Lok Ram as accused which was rejected
by the trial Court. Meanwhile, the trial proceeded further against
c the other accused and they were convicted. The High Court
directed the trial Court to proceed against Lok Ram. The said
order was challenged by Lok Ram in this Court.
37. Dismissing the appeal, referring to earlier decisions
of this Court on the point and explaining the scope of Section
D
319 of the Code, the Court stated;
"On a careful reading of Section 319 of the Code as well
as the aforesaid two decisions, it becomes clear that the
trial court has undoubted jurisdiction to add any person
E not being the accused before it to face the trial along with
other accused persons, if the Court is satisfied at any
stage of the proceeding on the evidence adduced that the
persons who have not been arrayed as accused should
face the trial. It is further evident that such person even
F though had initially been named in the F.l.R. as an accused,
but not charge sheeted, can also be added to face the ~
trial. The trial court can take such a step to add such
persons as accused only on the basis of evidence adduced
before it and not on the basis of materials available in the
charge-sheet or the case diary, because such materials
G
contained in the charge sheet or the case diary do not <:
constitute evidence".
38. Construing the provision liberally, the Court proceeded
to state;
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 977
[C.K. THAKKER, J.]

"Power under Section 319 of the Code can be exercised A
by the Court suo motu or on an application by someone
including accused already before it. If it is satisfied that
any person other than accused has committed an offence
he is to be tried together with the accused. The power is
discretionary and such discretion must be exercised 8
judicially having regard to the facts and circumstances of
i.--'
the case. Undisputedly, it is an extraordinary power which
is conferred on the Court and should be used very sparingly
and only if compelling reasons exist for taking action
against a person against whom action had not been taken c
earlier. The word 'evidence' in Section 319 contemplates
that evidence of witnesses given in Court. Under sub-
section (4)(1 )(b) of the aforesaid provision, it is specifically
made clear that it will be presumed that newly added
person had been an accused person when the Court took
D
cognizance of the offence upon which the inquiry or trial
was commenced. That would show that by virtue of sub-
;.
section (4)(1)(b) a legal fiction is created that cognizance
would be presumed to have been taken so far as newly
added accused is concerned".
E
(emphasis supplied)

39. 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 brought before the F
-~
Court, the trial against the accused was over. The question was
whether such a person could be summoned and tried for the
offence for which he was summoned. This Court held that the
words "should be tried together with the accused" were merely
directory and such a person could be tried even after conclusion G
")
of trial of the main accused.

The Court stated;

"The intention of the provision here is that where in the
course of any enquiry into, or trial of, an offence, it appears H
978 SUPREME COURT REPORTS [2008] 12 S.C.R.

A to the court from the evidence that any person not being_
the accused has committed any offence, the Court may
proceed against him for the offence which he appears to
have committed. At the stage, the Court would consider
that such a person co·u1d be tried together with the accused
. who is already ·before.,,,the Court facing the trial. The -.
safeguard provided in respect of such person is that,_ the·
proceedings right from the beginning have mandatory t.o
be commenced afresh and the witnesses re-heard. In
short, there has to be a de nova trial against him. The
c provision of de novo trial is mandatory. It vitally affects the
rights of a person so brought before the Court. It would not
be sufficient to only tender the witnesses for the cross-
examination of such a person. They have to be examined
afresh. Fresh examination in chief and not only their
presentation for the purpose of the cross-examination of
D
the newly added accused is the mandate of Section 319(4).
The words 'could be tried together with the accused' in
Section 319(1), appear to be only directory. 'Could be'
cannot under these circumstances be held to be 'must
be'. The provision cannot be interpreted to mean that since
E the trial in respect of a person who was before the Court
has concluded with the result that the newly added person
cannot be tried together with the accused who was before
the Court when order under Section 319(1) was passed,
the order would become ineffective and inoperative,
F nullifying the opinion earlier formed by the Court on the
basis of evidence before it that the newly added person
appears to have committed the offence resulting in an
order for his being brought before the Court".
G 40. In our opinion, therefore, the learned Magistrate had
power and jurisdiction to entertain applications filed by the
appellant-accused under Section 319 .of the Code and to issL:e
summons to respondent No. 2 by adding him as accused. The
said order could not be said to be illegal, unlawful or otherwise
objectionable. ·
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 979
[C.K. THAKKER, J.]
-.\
41. The next question is whether an order passed by a fa.
Court could be recalled? Before the Courts below as also before
us, the learned counsel for respondent No. 2 urged that an
order passed by a Magistrate could be recalled.
42. In support of the submission, reliance was placed by
the counsel on a two-Judge Bench decision of this Court in B
).__.) K.M. Mathew v. State of Kera/a & Anr, (1992) 1 SCC 217. In
that case, the appellant was the Editor-in-Chief of a daily
newspaper. A complaint was filed against him and others
alleging commission of offence punishable under Section 500
read with Section 34, IPC. The Magistrate examined the c
complainant on oath and issued summons to the accused. The
Chief Editor appeared before the Court and prayed for dropping
of proceedings against him by recalling the order on the ground
that there was no allegation as to how he was responsible for
publication of news item alle~ed to have caused defamation of D
the complainant. The Magistrate accepted the plea and dropped
> the proceedings so far as Chief Editor was concerned. The
complainant challenged the said order by filing a revision in the
High Court which was allowed. The Chief Editor questioned
correctness of the order passed by the High Court. E
43. The issue before this Court was whether the Magistrate
had power to recall an order of summoning the accused.
Considering the relevant provisions of the Code, the Court held
that an order of summoning an accused could be recalled by
the Magistrate. Such order is merely an interim order and not F
--+
a judgment and recalling thereof would not amount to review.
44. The Court stated;
"It is open to the accused to plead before the Magistrate
that the process against him ought not to have been issued. G
)
The Magistrate may drop the proceedings if he is satisfied
on reconsideration of the complaint that there is no offence
for which the accused could be tried. It is his judicial
discretion. No specific provision required for the Magistrate
to drop the proceedings or rescind the process. The order H
980 SUPREME COURT REPORTS [2008] 12 S.C.R.

A issuing the process is an interim order and not a
iudgment. It can be varied or recalled. The fact that the
process has already been issued is no bar to drop the
proceedings if the complaint on the very face of it does
not disclose any offence against the accused".
B (emphasis supplied)
45. The correctness of K.M. Mathew again came up for.
consideration before a three-Judge Bench of this Court in Ada/at
Prasad v. Roop/al Jindal & Ors., (2004) 7 SCC 338. In Ada/at
c Prasad, the accused, after issuance of summons against him
by the trial Magistrate, filed an application under Section 203
of the Code for dismissal of complaint recalling the order of
summons. After hearing the parties, the Magistrate granted the
prayer and recalled the summons. The order of the Magistrate
was challenged by the complainant in the High Court inter alia
0
on the ground that the Magistrate had no jurisdiction to recall
the earlier order. The High Court allowed the petition. The
accused approached this Court.
46. When the matter was placed for preliminary hearing.
E the learned counsel for the accused relied on K. M. Mathew
wherein it was held that it was open to the Court issuing
summons to recall the order on being satisfied that the issuance
of summons was not in accordance with law. The Court,
however, doubted the correctness of the view taken in K. M.
- F Mathew in view of reference made by a two Judge Bench to a
three Judge Bench in Nilamani Routray v. Bennett Coleman h.

& co. Ltd., (1998) 8 sec 594.
47. The larger Bench considered various provisions of
the Code and held that in absence of express provision in the
G Code, the Court has no power to recall the process issued. The
<
larger Bench, therefore, concluded that K.M. Mathew was not
correctly decided and overruled it.
48. The Court conc!uded;
H "But after taking cognizance of the complaint and
BHOLU RAM v. STATE OF PUNJAB & ANR. 981
[C.K. THAKKER, J.]

examining the complainant and the witnesses if he is A
satisfied that there is sufficient ground to proceed with the
complaint he can issue process by way of summons under
section 204 of the Code. Therefore what is necessary or
a condition precedent for issuing process under section
204 is the satisfaction of the Magistrate either by B
exami.nation of the complainant and the witnesses or by
..J. __,
the inquiry contemplated under section 202 that there is
sufficient ground for proceeding with the complaint hence
issue the process under section 204 of the Code. In none
of these stages the Code has provided for hearing the
summoned accused, for obvious reasons because this
c
is only a preliminary stage and the stage of hearing of
the accused would only arise at a subsequent stage
provided for in the latter provision in the Code. It is true
as held by this Court in Mathew's case before issuance
of summons the Magistrate should be satisfied that there D
is sufficient ground for proceeding with the complaint but
,)
that satisfaction is to be arrived at by the inquiry conducted
by him as contemplated under Sections 200 and 202,
and the only stage of dismissal of the complaint arises
under section 203 of the Code at which stage the accused E
has no role to play therefore the question of the accused
on receipt of summons approaching the court and making
an application for dismissal of the complaint under section
203 of the Code for a reconsideration of the material
available on record is impermissible because by then F
---1 Section 203 is already over and the Magistrate has
proceeded further to Section 204 stage".
(emphasis supplied)
49. Dealing with the contention that an aggrieved party
G
must have a remedy if a Magistrate takes cognizance of an
offence without there being any allegation against the accused,
the Court stated;
"It is true that if a Magistrate takes cognizance of an
offence, issues process without there being any allegation H
982 SUPREME COURT REPORTS [2008] 12 S.C.R.

I--
A . against the accused or any material implicating the
accused or in contravention of provision of Sections 200
& 202, the order of the Magistrate may be vitiated, but
then the relief an aggrieved accused can obtain at that
stage is not by invoking section 203 of the Code t}ecause
B the Criminal Procedure Code does not contemplate a
review of an order. Hence in the absence of any review
"-~-
power or inherent power with the subordinate criminal
courts, the remedy lies in invoking Section 482 of Code".
(emphasis supplied)
c
50. The law laid down in Ada/at Prasad was followed and
reiterated by this ·Court in subsequent cases also [see
Subramaniam Sethuraman v. State of Maharashtra, (2004)
13 SCC 324; N.K. Sharma v. Abhimanya, (2005) 13 SCC
213; Everest Advertisement v. State· Government of NCT of
D
Delhi, (2007) 5 sec 54].
51. From the above discussion, it is clear and well settled ..,
that once· an order is passed by a competent Court issuing
,.__
summons or process, it cannot be recalled. ),

E 52. In the instant case, the learned Magistrate ordered to
join respondent No. 2 as an accused on applications filed by
the appellant and summons was issued to him. A revision filed
by the State against t_hat order was dismissed by the Additional
Sessions Judge. The Judicial Magistrate, on the facts and in
F the circumstances, was right in dismissing recall application
1--
filed by respondent No. 2.
53. The revisional Court, however, held that the Magistrate
had power to recall the earlier order passed by him. For coming
to that conclusion, the Court relied upon K.M. Mathew. The
G
learned Additional Sessions Judge ought to have considered ~-

the material fact in its proper perspective that the order passed
by the learned Magistrate was legal and proper and because
of that, the revision filed against that order by the State was
also dismissed by the revisional Court.
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 983
[C.K. THAKKER, J.]

54. It was, however, contended on behalf of respondent A
No.2 that even if this Court holds that the Judicial Magistrate
had no power to recall its earlier order and dismissal of the
application by the learned Magistrate was leg·a1 and proper,
and that a revision petition filed by the State against the said
order was dismissed by the Additional Sessions Judge, the B
Court may consider an important fact that the respondent No.
2, who was really an 'aggrieved ·party' had preferred two
revisions in the Court of Sessions. Hence, even if it is assumed
that the trial Court did not possess the power of recalling its
order, it would not preclude the revisional Court from exercising c
revisional jurisdiction and quashing and setting aside an order
passed by a subordinate Court if it was not in accordance with
law.
55. Even that ground does not impress us. It is quite
possible that in a given case, a Magistrate may take cognizance D
of an offence illegally or arbitrarily without there being any
>· material whatsoever. Such illegal order should not deprive the
accused from contending that the learned Magistrate was wrong
and wholly unjustified in entertaining the complaint or taking
cognizance of an offence. In such cases, however, the accused E
is not without legal remedy. If the act of taking cognizance,
issuance of process or joining of an innocent person as an
accused is totally uncalled for or ex facie bad in law, it is open
to the aggrieved party to invoke inherent jurisdiction of the High
Court under Section 482 of the Code. If the High Court is F
satisfied that the order passed by the Magistrate was illegal,
improper or arbitrary, it can exercise inherent powers and quash
criminal proceedings initiated against the party. But that power
is independent and has nothing to do with recalling of an earlier
order by the Court which passed it.
G
56. But in the present case, even on merits, we are of the
considered view that the order passed by the learned Magistrate
issuing summons to respondent No.2 could not be said to be
unlawful or even improper.
984 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 57. When applications under Section 319 of the Code
were preferred by the appellant praying to join respondent No.2
as an accused and to issue summons, the learned Magistrate
considered the evidence of prosecution witnesses and he was
satisfied that depositions of witnesses prima facie made out '\
B offence against respondent No.2. ··~

58. Considering the statements of PW2-Treasury Officer, "--
PW14-Senior Assistant and PW11-Assistant Manager, State
Bank of Patiala, the learned Magistrate stated;

c "I have heard the learned counsel for the accused and the
Ld. APP for the State and have also gone through the file
of this case carefully and it appears that Sher Singh who
appeared as a prosecution witness in this case was
working as a Drawing & Disbursing Officer and Ex. DX
audit report discloses that as per Rule 2.2(11) of Punjab
D
Financial Rules Volume-I, all transactions should be
entered in the cash book as soon. as they occur and
attested by the head of the office in token of check, further
Rule 2.31 (a) provides that with a view to enable the head
of the office to see that all amounts drawn from the treasury
E. ···-··
have been entered in the cash book; he should obtain a
list of aii bills drawn by him during the previous month and
trace all the amounts in the cash book. It was held that
embezzlement pointed by the Audit was facilitated due to
non-observance of procedure regarding the review of the
F bill book/bill transit register and reconciliation of the
L
withdrawals form the treasury. Moreover, the evidence led
· by the prosecution also makes it clear that there is prima-
facie evidence against Sher Singh, Head Master as PW2
Satpal Mehta, Treasury Officer has deposed in his cross-
G ext;1m ination ·that amounts from the accounts were
withdrawn through Headmaster Rureke Kalan and in their
register signatures of Headmaster have been entered and
his name is Sher Singh and they have passed the bills
after comparing the signatures on the Bills with the
1-l
I I
specimen signatures of Sher Singh as the same are in
BHOLU RAM v. STATE OF PUNJAB & ANR. 985
[C.K. THAKKER, J.]
-4
their record. Similarly, PW14 Prem Sagar, Senior Assistant A
in Treasury Office has deposed that Drawing & Disbursing
Officer/Authority was Head Master of Rureke Kalan High
School and his name was Sher Singh and on the bills
signatures of Sher Singh are present which tally with the
. specimen signatures. Similarly, Prem Chand, Assistant B
Manager of State Bank of Patiala, PW11 has deposed in
>-.....I his cross-examination that DDO of High School, Rure Ke
Kalan is Head Master and the amounts are withdrawn
after comparison of specimen signatures with the
signatures on the bills of DDO. So, from the evidence on y
record, it is quite clear that prima facie offence against
Head Master Sher Singh is made out whose signatures
were with the treasury office and the Treasury Officers
have passed the bills after comparing the specimen
signatures with the signatures on the pills and there is no
evidence on the record to show that the bills which are
o
subject matter of embezzlement, do not bear the signatures
J of Sher Singh who was DDO of Rureke Kalan High S<;hool,
so, there is prima facie offence made out to summon
Sher Singh, Head Master of Rureke Kalan High School
as accused u/s 319 of Cr. P. C. is hereby allowed and Sher E
I

Singh, Head Master of Government High School of Rure
Ke Kalan is ordered to be summoning as an accused in
this case for 1.3.1996. The application of the accused is
hereby allowed and is disposed of accordingly".
F
~
59. We may recall at this stage that a revision filed by the
State (and not by respondent No.2) against the order of the
Magistrate was dismissed by the Additional Sessions Judge
on May 6, 1996.
60. The Revisional Court also considered the deposition G
.... of aforesaid witnesses and said;
"After going through the impugned order, I find that it was
found by trial Magistrate that certain bills have been passed
by Sher Singh who was disbursing officer, and PW 14 I

H
986 SUPREME COURT REPO~RTS [2008] 12 S.C.R

A Prem Sagar, Assistant in the offic.e of Treasury deposed
that drawing disbursing officer was Headmaster of Rureke
Kalan High School and his name was Sher Singh who
was appended -his signatures on the bills which tally with
the specimen signatures. A similar statement was suffered
B by Assistant Manager of State Bank of Patiala examined
as PW11 before Trial Magistrate and bn ~ccount of this
evidence read with the statement of PW2 Sat Pal Mehta,
Treasury Officer the trial Magistrate found that prima facie
offence is made out to summon Sher Singh as an accused
and accordingly he allowed the application. In view of this,
we· find that the Court has exercised his dis·cretion
supported by well reasoned order and the opinion was
formed by the Court after recording evidence and in such
like cases some times the real offender who. has also
committed the crime steps into the shoes ofcomplainant
D
in order to save himself and in the instant case also the
evidence spells ·out that the head ma$tec of the sch9ol
thought of a clever device by registering the case against
other accused at his instance".
E 61. It was ·after the dismissal ~f re_yision filed by the State
that respondent No.2 moved the Judicial Magistrate to recall.
the earlier order. The learned Magistrate held that in view of
dismissal of revision by the Additional Sessions Judge, an
application to recall the order was not maintainable. But the
F Court also stated; ·· ·

"No doubt summoning order is on interim order and not a
· ji,ldgment and the same can be reviewed or recalled by
the Magistrate. Proceedings against the accuse.d can be
dropped of th~ .complaint on face of it does not disclose
G any offence against him. In the present case, my learned
predecessor after going through the statements of
examined prosecution witnesses found that there is prima
facie offence made out against tbe'accused Sher Singh.
Only thereafter accused/applicant She Singh was
summoned vide summoning order _dated 22.1.1996
BHOLU RAM v. STATE OF PUNJAB & ANR. 987'
[C.K. THAKKER, J.]

passed by Sh. Varinder Aggarwal, PCS, the then Judicial1 A
MagistratE?.. 1st Class, Barna la".
62. The RevisiOnal court referred to K.K. Mathew and held
that a summoning order, being interlocutory in nature, could not
be termed as 'judgment' and there was no bar in recalling such,
order. The Additional Sessions Judge decided the revision in 8
1998. The law governing the field at that time was the law laid ,
down in K.K. Mathew. Ada/at Prasad had not seen the light of I

the day. We, therefore, see nothing wrong on the part of the
Additio~nal Sessions Judge in considering, following and ,
deciding the case on the basis of K.K. Mathew. C
63. To us, however, the Revisional Court was not right in
interfering with the order passed by the trial Court. We have '
seen that the learned Magistrate issued summons taking into ,
account evidence led by the prosecution, particularly, by PWs
0
2, 14 and 11. The Revisional Court was thus having depositions ·
of those witnesses, the order passed by the learned Magistrate,
the order made by the Additional Sessions Judge in revision '
instituted by the State and also the order passed by the ,
Magistrate in an application to recall filed by respondent No.2.
E
64. In spite of the above material, the Revisional Court
interfered with the order of the trial Court issuing summons by '
entering into merits of the case.
65. The Court said;
'F
"As stated above, as per prosecution case during the
period from 1979 to 1986 accused Bholu Ram was the
Clerk of Govt. High School, Rureke Kalan while Sher Singh 1

revision/petitioner appeared to be the Head Master of the
School during the relevant period. It appears that during 'G
that period accused Bholu Ram had been drawing various
payments from the Treasury by submitting false and bogus
Mills to the Treasury, but did not appear to have disbursed '
the amount of those bills to any person and allegedly mis-
appropriated the amount of those false and bogus bills for .H
988 SUPREME COURT REPORTS [2008] 12 S.C.R.

t--
A which 17 separate challans in case FIR No. 87/86 P.S.
Tappa appeared to have been filed against him and he
appeared to be facing prosecution in all those cases.
However, vide order dated 22.1.1996 of the Ld. Trial
Magistrate in all those cases Sher Singh revision
B petitioners appeared to have been summoned as an
accused in those cases on the ground that various bills on \..._....•'\
the basis of which those payments were drawn appeared
to have been signed by Sher Singh as a Drawing and
Disbursing·Officer and he also appeared to be liable in all
t
c those cases. It appears that Sher Singh revision petitioners '
has already been examined as a prosecution witness in
various cases. Though in his statement recorded in the
Court, he denied having signed various bills. It appears
that those bills appeared to have be~n signed by him as
a Drawing and Disbursing Officer. Being a ODO of the
D
School, it was the duty of Sher Singh to sign various bills
for presentation in the treasury, but it was nevertheless the .....
duty Bholu Ram, Clerk to maintain the record regarding
the disbursement of those amounts. In case Bholu Ram,
Clerk allegedly prepared false and bogus bills and
E obtained the signatures of the ODO on the same, be alone
~

appeared to be liable to account for the payment of those
bills when those amounts did not appear to have been
disbursed to various persons as mentioned n various Bills
and Bholu ram allegedly misappropriated those amounts.
F The mere fact that Sher Singh signed those bills as Drawing ,L
and Disbursing Officer will not make him criminally liable
when the amounts of the various bills, according to the
prosecution case, were allegedly misappropriated by
Bholu Ram alone".
G
66. In our considered opinion, the Revisional Court was ~

not justified in entering into correctness or otheiwise of the
evidence at the stage of issuance of summons to respondent
No.2. Admittedly, the J•Jdicial Magistrate had considered a ·
· limited question whether on the basis of ev!dence of prosecution
H
BHOLU RAM v. STATE OF PUNJAB & ANR. 989
[C.K. THAKKER, J.]

witnesses, prima facie offence had been made out against · A
respondent No.2. He was, on the basis of such evidence, was
satisfied that the case was required to be gone into and issu~d
a summons. To us, the Revisional Court was not right in
interfering with that order. Hence, even on that ground, the order
was not in accordance with law. B
67. The leaned counsel for respondent No.2, however,
submitted that the Revisional Court was right in any case In
allowing the revision and in quashing proceedings against the
said respondent on the ground ,of absence of sanction as
required by Section 197 of the Code. C
68. We express our inability to agree with the learned
counsel. It is settled law that offences punishable under Sectioris
409, 420, 467, 468, 471 etc. can by no stretch of imagination
by their very nature be regarded as having been committed by
0
a public servant while 'acting or purporting to act in dischar9e
of official duty' [vide Prakash Singh Badal v. State of Punjab,
c2001) 1 sec 1].
69. The Revisional Court was aware of legal position. lt1

was, however, held by the Court that at the most there w'-'s E
negligence on the part of respondent No.2 but there was no
criminal intent and he cannot be held criminally liable. We have
already held that mens rea can only be decided at the time of
trial and not at the stage of issuing summons. Moreover, a poifl'lt
as to need or necessity of sanction can be taken during the F
conduct of trial or at any stage of the proceedings. Hence,
proceedings could not have been quashed on the ground of
want of sanction in the present case. The order of the Revisional
Court deserves to be set aside even on that ground.
70. It was also urged that no applications by the appellant G
-;
could have been entertained by the trial Court after about 8 to
10 years from the date of filing of FIR. Now, an application
under Section 319 of the Code can only be made to a Cour:t
and the Court may exercise the power under the said Section
if it appears from evidence that any person other than the H
990 SUPREME COURT REPORTS [2008] 12 S.C.R.

A accused had also committed an offence for which he can be
tried together with the accused. It was the case of the appellant
that it was during the course of prosecution evidence that he
came to know that signatures of respondent No. 2 were sent for
. examination, some report was received by the prosecution
B .: which was not produced in Court and on the basis of such
evidence, the case was made out against respondent No.2. If
in these circumstances, applications were made and the prayer
was granted, we see no infirmity therein.
71. In our opinion, the Revisional Court, i.e. the Court of
C Additional Sessions Judge ought not to have interfered with
the order passed by the trial court under Section 319 of the
Code. As already noted earlier, the order of addition of
respondent No. 2 as an accused and summoning him was not
·immediately challenged by respondent No. 2. The challenge
D was by the State and it failed. After a long time, the respondent
No. 2 approached the Revisional Court. Since the order passed
by the Judicial Magistrate was in consonance with law, the
Additional S~ssions Judge should have refrair.ed from
exercising revisional jurisdiction.
E 72. We may examine the role of the State also. \Ne have
already noted earlier that an order passed by the Judicial .
Mag·istrate summoning respondent No.2 as accused was
challenged by the State by filiqg a revision in the Court of
Sessions, which was dismissed. Even in this Court, the. State
F supported respondent No.2. An affidaviUn reply is filed by the
State through Deputy Superintendent of Police in March 2007,
·· even before counter affidavit was filed by contesting respondent
No.2'. Though in the affidavit, it is not necessary to deal with law
points and/or decisions rendered by a Court of law, the deponent
G refers to and relies on K.K. Mathew expressly overruled by a
1
larger Bench in Ada/at Prasad. No reference at all has been
. m8de to Ada/at Prasad. It is respondent No.2 who, in his counter,
refers to ~oth the decisions. In the totality of the facts and
tirctimstances, the submission of the learned counsel for the
H . appi;311ant that the State Authorities were helping and asslsting
BHOLU RAM v. STATE OF PUNJAB & ANR. 991
[C .K. THAKKER, J.]

respondent No.2 cannot be said to be totally ill-founded or A
without substance. The State , in our opinion , could have easily
avoided such embarrassment.
73. For the foregoing reasons , the appeal deserves to be
allowed and is accordingly allowed. The orders passed by the
Additional Sessions Judge and the High Court are set aside 8
and the order passed by the Judicial Magistrate, Barnala is
restored . Since the matter pertains to FIR of 1986, the learned
Magistrate is directed to conclude the trial expeditiously.
74. Before parting with the matter, we may clarify that we c
have not entered into allegations and counter-allegations. We
have considered the facts and circumstanced to a limited extent
to decide correctness of the order passed by the Judicial
Magistrate under Section 319 of the Code. We make it clear
that we may not be understood to have expressed any opinion
0
on the merits of the matter. As and when the case will come up
for hearing, it will be decided· strictly on its own merits without
being inhibited or influenced by any observations made by the
trial court, by the Additional Sessions Judge, by the High Court
or by us.
E
75. Ordered accordingly.
N.J . Appeal allowed.