Supreme Court of India
BRINDABAN DAS AND ORS.versusSTATE OF WEST BENGAL
- Citation
- 2009 INSC 9
- Decided
- 7 January 2009
- Disposal
- Appeal(s) allowed
- Bench
- ALTAMAS KABIR
Holding
Section 319 CrPC can be invoked only when the evidence against the person to be summoned is sufficient to likely secure a conviction; in the present case, the evidence was insufficient, rendering the summons and subsequent orders invalid.
Summary
The case arose from a murder FIR filed on 29‑11‑2002 in which, besides the named assailant Laxman Murmu, the complainant alleged that several other persons might have been involved. The appellants were granted anticipatory bail, later discharged from the case on 30‑6‑2004, and were not named in the charge‑sheet. Two years after their discharge, the trial court issued summons under Section 319 of the Code of Criminal Procedure (CrPC) and, upon alleged non‑compliance, issued arrest warrants. The High Court stayed the warrants and directed the appellants to surrender and apply for bail. The Supreme Court examined whether the trial court could invoke Section 319 without a satisfactory assessment of the evidence’s ability to secure a conviction, emphasizing that the power is extraordinary and must be exercised only when the evidence shows a reasonable prospect of conviction. Finding the evidence against the appellants to be purely hearsay and insufficient, the Court set aside both the trial‑court summons and the High Court’s order, allowing the appeal.
Issues considered
- Whether a court may issue summons under Section 319 CrPC against persons who have been discharged earlier when the evidence does not demonstrate a reasonable prospect of conviction.
- Whether the High Court erred in staying the arrest warrants and directing the appellants to surrender and seek bail.
Legislation cited
- Code of Criminal Procedure, 1973s. 244, s. 245, s. 319, s. 438, s. 439
- Indian Evidence Act, 1872s. 60
- Indian Penal Code, 1860s. 302
Subjects
Section 319 CrPCdiscretionary powersummons of non‑accusedhearsay evidenceconviction probabilitycriminal procedurebaildischarge from casejudicial discretion
Judgment
[2009] 1 S.C.R. 87
BRINDABAN DAS AND ORS. A
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 9 of 2009)
JANUARY 7, 2009
8
[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
s.319 - Power of trial court to proceed against other c
persons appearing to be guilty of offence - Persons not
named in FIR, nor mentioned in charge-sheet, nor sent up for
trial, but after two years of their discharge from the case, trial
court issuing warrants of arrest against them - Held: In order
to invoke power uls 319, court is not merely required to take D
note of the fact that name of a person has surfaced during trial
but it has also to consider whether the evidence would be
sufficient to convict him - In the instant case, on the evidence
adduced as regards the persons summoned uls 319, it cannot
be said with any amount of certainty that the same would in
E
all probability secure conviction against them -· Order of trial
court issuing warrants of arrest, and of High Court staying
execution of warrants and directing the addresees to surrender
and then seek bail are set aside.
An F.l.R. alleging murder of the father of the F
complainant was lodged on 29.11.2002 on the allegations
that besides the assailant several other persons could
have been behind the incident. The appellants applied for
and were granted bail. The appellants were neither shown
in the charge-sheet nor were they sent up for trial, on the G
other hand, by an order dated 30.6.2004, they were
. .., discharged from the case, Later, on an application filed
uls 319 Cr.P.C by the complainant, the trial court, ·on
22.6.2006, issued warrants of arrest against the appellants
87 H
88 SUPREME COURT REPORTS [2009) 1 S.C.R.
A for their alleged refusal to receive summons which had
been issued to them earlier u/s 319 Cr.P.C. The High
Court in its revisional jurisdiction stayed execution of the
warrants holding that there was no willful defiance of the
summons to necessitate issuance of warrants, and
B directed the appellants to surrender before the court
within three weeks and thereafter to apply for bail.
In the instant appeal, it was contended for the
appellants that there was no direct evidence against them
which could have formed the basis for issuance of
c summons u/s 319 Cr.P.C. and the entire case was hear-
say in nature, that the trial court ought not to have issued
summons u/s 319 Cr.P.C. without recording satisfaction
as to the sufficiency of evidence on record for securing
conviction against the appellants.
D
Allowing the appeal, the Court
HELD: 1.1. In matters relating to invocation of powers
u/s 319 Cr.P.C., the Court is not merely required to take
E note of the fact that the name of a person who has not
been named as an accused in the F.l.R. has surfaced
during the trial, but it has also to consider whether such
evidence would be sufficient to convict the person being
summoned. Since issuance of summons u/s 319 Cr.P.C.
entails a denovo trial and a large number of witnesses
F may have to be examined and their re-examination could
prejudice the prosecution and delay the trial, the trial
court has to exercise such discretion with great care and
perspicacity. [Para 18) [96-F-H; 97-A]
G 1.2. The power u/s 319 Cr.P.C. is to be invoked, not
as a matter of course, but in circumstances where the
invocation of such power is imperative to meet the ends
of justice. The fulcrum on which the Invocation of Section
319 Cr.P.C. rests is whether the summoning of persons
H other than the named accused would make such a
BRINDABAN DAS AND ORS v. STATE OF WEST 89
BENGAL
difference to the prosecution as would enable it not only A
to prove its case but also to secure conviction of the
persons summoned. [Paras 18 and 19] [97-B-C] ·
Municipal Corporation of Delhi vs. Ram Kishan Rastogi,
1983 (1) SCC 1; Michael Machado vs. CBI, 2000 (3) SCC B
262; Krishnappa vs. State of Kamataka, 2004 (7) SCC 792
and Kuvuluri Vivekananda Reddy vs. State of A.P. 2005 (12)
._ sec 432, relied on.
Rajender Singh vs. State of U.P. 2007 (7) SCC 378 and
Bholu Ram vs. State of Punjab 2008 (9) SCC 140, referred C
to.
1.3. In the instant case, on the quality of the evidence
adduced by the prosecution as far as the appellants are
concerned, it is difficult to hold with any amount of D
certainty that the same would in all probability secure a
conviction against the appellants. The evidence which
seeks to connect the appellants with the commission of
the offence are hearsay in nature. Except for a statement
in the F.l.R. that the complainant strongly believed that the
E
murder of her father was pre-planned and there were
many conspirators involved, there is no direct evidence
of complicity of the appellants in the incident and,
therefore, it would not be proper to subject them to trial
by invoking the provisions of s. 319 Cr.P.C. The order
passed by the trial court issuing summons to the
F
appellants u/s 319 Cr.P.C. and the order of the High Court
directing them to surrender before the trial court and to
apply for bail are set aside. [Para 20 and 22] [97-H;
98-A-C]
G
Case Law Reference:
2000 (3) sec 262 relied on Para 9
2004 (7) sec 192 relied on Para 10
2005 (12) sec 432 relied on Para 11 H
90 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 1983 (1) sec 1 relied on Para 12 -+
2001 (7) sec 378 referred to Para 14
2008 (9) sec 140 referred to Para 16
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B No. 9 of 2009.
From the Judgment and Order dated 22.11.2006 of the
High Court of Calcutta at Calcutta in C.R.R. No. 2058 of 2006.
c Pradip Ghosh, P.S. Narasima, Pijush K. Roy, Amit De and
G. Ramakrishna Prasad for the Appellants.
Avijit Bhattacharjee, Saumya Kundu, H.K. Puri. V.M.
Chauhan, S.K. Puri and Priya Puri for the Respondents.
D The Judgment of the Court was delivered by
Al TAMAS KABIR, J. 1. Leave granted.
2. On an application filed by the defacto complainant under
Section 319 of the Code of Criminal Procedure, the Additional
E District and Sessions Judge, Fast Track Court, Jhargram, by
his order dated 14.6.2006 directed the appellants to appear
before the Court on 22.6.2006 in connection with S.T. Case
No.XXIX/February, 2006 under Section 302 of the Indian Penal
Code (G.R. case No.450 of2002).
F
3. The complainant, Ashok Kumar Pattanayak, lodged the
First Information Report at Gopiballabhpur PS on 29.11.2002
at about 8.25 a.m. alleging that on the same date at about 7.30/
8.00 a.m. while his father, Ramesh Chandra Pattanayak, was
G supervising the work in his brick field known as Hena Brick, he
was assaulted on the head from behind with a spade (kodal),
as a result whereof he died instantly. The driver of the truck to
whom the deceased was speaking at the time of assault and
the khalasi of the truck, as well as other labourers, raised a
H alarm. The police also arrived at the spot and apprehended the
"
BRINDABAN DAS AND ORS v. STATE OF WEST 91
BENGAL [ALTAMAS KABIR, J.]
~ assailant, Laxman Murmu. In the FIR it was alleged that A
.... besides Laxman Murmu, several other persons could also have
been behind the incident. The said FIR was written by Ila
Pattanayak, the sister of the de-facto complainant, and on the
basis of the said complaint, Gopiballabhpur PS Case No.48
of 2002 dated 29.11.2002, was started against the said B
Laxman Murmu under Section 302 IPC.
. 4. During the investigation of the above case, the
appellants herein filed an application under Section 438 of the
Code of Criminal Procedure before the Sessions Judge and
such prayer for anticipatory bail was allowed on 14.8.2003. The
c
appellants were directed to appear before the Sub-Judicial
Divisional Magistrate, Jhargram, and on their appearance
before the learned Magistrate on 16.8.2003, the appellants
., were released on temporary bail with a direction to them to
•, bring appropriate orders from the higher Court. Subsequently, D
on an application under Section 439 Cr.P.C. the Sessions
Judge, Paschim Midnapur, granted bail to the appellants on
23.9.2003. The de-facto complainant thereupon filed an
application under Section 439(2) Cr. P.C. before the Sessions
Judge praying for cancellation of the bail granted to the E
appellants but the same was rejected on 16.12.2003. After
completion of investigation the police submitted charge-sheet
against the accused Laxman Murmu. As there was no material
• against the appellant~ herein they were neither shown in the
charge-sheet nor were they sent up for trial and on the prayer F
made by the Investigating Officer the appellants were
discharged from the case by order dated 30.6.2004.
· 5. Two years later on 22.6. 2006 the trial Court issued
warrants of arrest against the appellants for their alleged refusal
-~ G
to receive summons which had been issued to them earlier
·~ under Section 3.19 Cr.P.C. The said order was challenged in
the High Court in its revisional jurisdiction and it was submitted
that once the appellants had been discharged on the prayer
made on behalf of the Investigating Officer, the trial Court erred
H
92 SUPREME COURT REPORTS (2009] 1 S.C.R.
A in issuing the summons under Section 319 of the Code on the
same materials.
6. The High Court came to the conclusion that there had
not been any wilful defiance of the summons which necessitated
the issuance of warrant of arrest and disposed of the revision
8
application with a direction to the appellants herein to surrender
before the Court within 3 weeks from the date of the order and
thereafter to apply for bail. The execution of the warrant of arrest ...
was stayed for a period of four weeks for the said purpose.
C 7. It is against the said order of the High Court that the
present appeal has been filed.
8. Mr. Pradip Ghosh, learned senior advocate, appearing
for the appellants, submitted that in the instant case there was
0 no direct evidence against the appellants which could have
formed the basis for issuance of summons under Section 319
Cr.P.C. Not a single eye-witness had been cited in the instant
case and the entire evidence was hear-say in nature. Mr. Ghosh
submitted that even the complaint had been lodged by the
E daughter of the deceased who had not seen the incident and
had come to the place of occurrence after the offence had been
committed on being informed of the same. Mr. Ghosh submitted
that as provided in Section 60 of the Indian Evidence Act, 1872,
oral evidence must in all cases, be direct and when an accused
is discharged under Section 245 Cr.P.C., in the absence of any
F fresh material, summons under Section 319 of the Code could
not be issued on the same evidence. It was submitted that in
the instant case, nothing new had surfaced during the trial and
the evidence that was available before the Court at the stage
of Sections 244 and 245 of the Code continued to be the only
G evidence available when the application under Section 319 had
been made. Mr. Ghosh submitted that the trial Court had
committed an error in allowing the application of the de-facto
complaintant under Section 319 and summoning the appellants
in the absence of any evidence against them within the meaning
H of Section 60 of the Evidence Act.
BRINDABAN DAS AND ORS v. STATE OF WEST 93
BENGAL [ALTAMAS KABIR, J.]
9. In this regard, Mr. Ghosh firstly referred to the oft- A
repeated decision of this Court in the case of Mic/1ae/
Machado vs. CBI, [2000 (3) SCC 262] where the essential
conditions for the exercise of power under Section 319 of
Cr.P.C. had been considered and it was held that the power
under Section 319 vested in the Court should be used B
sparingly and the evidence on which the same was to be
~
invoked should indicate a reasonable prospect of conviction of
the persons to be summoned. This Court went on to hold that
mere suspicion of the involvement of the person concerned in
the offence was not enough, particularly when a large number c
of witnesses had been examined and no evidence on which
conviction could be secured had been adduced on behalf of
the prosecution. It was ultimately observed that in such a case
there could be no justification for proceeding against the
persons summoned under Section 319 which would entail
D
• recommencing the whole proceedings against the newly-added
persons and re-examining the witnesses already examined.
10. Mr. Ghosh also referred to the decision of this Court
in Krishnappa vs. State of Kamataka, [2004 (7) SCC 792]
wherein a similar question fell for consideration and again a E
note of caution was sounded with regard to invocation of the
extraordinary and discretionary powers under Section 319 of
the Code. Their Lordships, while observing that a person can
be summoned even though proceedings had earlier been
quashed as far as he was concerned, held that the invocation F
of the power under Section 319 should not have been resorted
to, since the chances of conviction on the basis of the evidence
on record was remote. Holding that the Trial Court was right in
rejecting such prayer, since the case against the appellant had
been quashed nine years prior to issuance of summons under G
Section 319 Cr.P.C., this Court held that the High Court had
erroneously reversed the order of the Trial Court even though
the chances of conviction on the basis of the evidence adduced
was very remote.
H
94 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 11. The same view was reiterated in the case of Kuvuluri
Vive)<ananda Reddy vs. State of A.P. [2005 (12) SCC 432)
where a similar challenge to the summons issued under
Section 319 of the Code was repelled on the ground that the
statement of the witnesses examined was only general in
B nature on the basis of which summons under Section 319 of
the Code ought not to have been issued. Once again a note of
caution was sounded that the provisions of Section 319 are
required to be used very sparingly and the summoning of the
.
appellants after the expiry of eight years, on the facts and
c circumstances of the case and having regard to the nature of
the deposition of the witnesses, was not called for.
12. Mr. Ghosh finally referred to the decision of this Court
in Municipal Corporation of Delhi vs. Ram Kishan Rastogi,
[1983 (1) sec 1], which is one of the earlier cases where the
'D scope of Section 319 had been dealt with and thereafter
followed in the subsequent cases, wherein it had been observed
as follows:-
"In these circumstances, therefore, if the prosecution
E can at any stage produce evidence which satisfies the
Court that the other accused or those who have not been
arrayed as accused against whom proceedings have been
quashed have also committed the offence Court can take
cognizance against them and try them along with the other
F accused. But, we would hasten to add that this is really an
extraordinary power which is conferred on the Court and
should be used very sparingly and only if compelling
reasons exist for taking cognizance against the other
person against whom action has not been taken. More
than this we would not like to say anything further at this
G
stage. We leave the entire matter to the discretion of the
Court concerned so that it may act according to law. We
would, however, make it plain that the mere fact that the
proceedings have been quashed against respondents 2
to 5 will not prevent the Court from exercising its discretion
H
BRINDABAN DAS AND ORS v. STATE OF WEST 95
BENGAL [ALTAMAS KABIR, J.]
,_ if it is fully satisfied that a case for taking cognizance A
against them has been made out on the additional
evidence led before it.'
13. On the basis of his aforesaid submissions, Mr. Ghosh
urged that the Trial Court ought not to have issued summons B
against the appellants herein under Section 319 Cr.P.C. without
recording satisfaction as to the sufficiency of the evidence on
~
record for securing a conviction against the appellants.
14. Appearing for the State of West Bengal, Mr. Avijit
Bhattacharjee referred to the decision of this Court in Rajender c
Singh vs. State of U.P. [2007 (7) SCC 378] where it was
reiterated that although a person may not have been charge-
sheeted by the Investigating Agency or may have been
discharged at an earlier stage, the Court could summon such
person to face trial if it appeared to the Court that an offence D
· had been committed by such person. It was held that while the
decision to proceed or not to proceed against a person under
Section 319 of the Code was in the discretion of the Trial Court,
the said decision would have to be taken after the Court applied
its mind to the evidence before it. Disagreeing with the earlier E
views expressed by this Court, it was held that the Court's
powers under Section 319 Cr.P.C could not be fettered either
by calling it extraordinary or by stating that it could be exercised
- only in exceptional circumstances.
15. Mr. Bhattacharjee submitted that in the light of the F
aforesaid decision there could not be any controversy that the
Court's powers under Section 319 Cr.P.C. was discretionary
and unfettered, though dependent on the quality of the evidence
adduced by the prosecution. Mr. Bhattacharjee submitted that
no case had been made out for interference with the order of G
the High Court and the appeal was liable to be dismissed.
16. The same submissions were advance~ by Mr. Puri
appearing for the de-facto complainant, Ashok Pattanayak, who
had been impleaded as respondent No.2 in the present appeal. H
96 SUPREME COURT REPORTS (2009] 1 S.C.R.
A Mr. Puri referred to the decision of this Court in Bholu Ram
vs. State of Punjab [2008 (9) SCC 140] wherein it had been
held that Section 319 Cr.P.C. empowered the Court to proceed
against any person not shown to be an accused, if it appeared
from the evidence that such person had committed an offence
B for which he could be tried along with the accused. It was further
observed that when in a case against one or more accused a
Magistrate finds from the evidence adduced that some person ...
other than the accused was also involved in that very offence,
it was only proper that the Magistrate should have power to
c summon by joining such person as an accused in the case.
17. It was further observed that the primary object of
Section 319 Cr.P.C. is that the whole case against all the
accused should be tried and disposed of not only expeditiously,
but also simultaneously. The power under Section 319 Cr.P.C.
D must be regarded and considered as incidental and ancillary
to the main power to take cognizance as part of the normal
process in the administration of justice and that the same could
be exercised either on an application made to the Court or by
the Court suo moto and it was in the discretion of the Court to
E take action under the said Section having regard to the facts
and circumstances of each case. Mr. Puri also urged that the
decision of the High Court could not be faulted and the appeal
was liable to be dismissed.
F 18. The common thread in most matters where the use of
discretion is in issue is that in the exercise of such discretion
each case has to be considered on its own set of facts and
circumstances. In matters relating to invocation of powers under
Section 319, the Court is not merely required to take note of
G the fact that the name of a person who has not been named
as an accused in the F.1.R. has surfaced during the trial, but the
Court is also required to consider whether such evidence would
be sufficient to convict the person being summoned. Since
issuance of summons under Section 319 Cr.P.C. entails a
denovo trial and a large number of witnesses may have been
H
BRINDABAN DAS AND ORS v. STATE OF WEST 97
BENGAL [AlTAMAS KABIR, J.]
examined and their re-examination could prejudice the A
prosecution and delay the trial, the Trial Court has to exercise
such discretion with great care and perspicacity. Although, a
somewhat discordant note was struck in Rajender Singh's case
(supra) the views expressed in the majority of decisions of this
Court on the point subscribe to the view that the power under B
Section 319 Cr.P.C. is to be invoked, not as a matter of course,
but in circumstances where the invocation of such power is
• imperative to m_eet the ends of justice .
19. The fulcrum on which the invocation of Section 319
Cr.P.C. rests is whether the summoning of persons ether than
c
the named accused would make such a difference to the
prosecution as would enable it not only to prove its case but to
also secure the conviction of the persons summoned.
20. In the instant case, on the quality of the evidence D
adduced by the prosecution as far as the appellants are
concerned, it is difficult to hold with any amount of certainty that
the same would in all probability secure a conviction against
the appellants. The evidence which seeks to connect the
appellants with the commission of the offence are hearsay in E
nature. Section 319 Cr.P.C. contemplates a situation where the
evidence adduced by the prosecution not only implicates a
person other than the named accused but is sufficient for the
purpose of convicting the person to whom summons is issued.
The law in this regard was explained in Ram Kishan Rastogi's F
case (i>upra) and as pointed out by Mr. Ghosh, consistently
followed thereafter, except for the note of discord struck in
Rajender Singh's case (supra). It is only logical that there must
be substantive evidence against a person in order to summon
him for trial, although, he is not named in the charge-sheet or
G
he has been discharged from the case, which would warrant
his prosecution thereafter with a good chance of his conviction.
21. Since in the present case, except for a statement in
the F.l.R. that the complainant strongly believed that the murder
H
98 SUPREME COURT REPORTS [2009] 1 S.C.R.
A of her father was pre-planned and there were many
conspirators involved, there is no direct evidence of the
complicity of the appellants in the incident, it would not be proper
to subject the appellants to trial by invoking the provisions of
Section 319 Cr.P.C.
B
22. We, therefore, allow the appeal and set aside the order
dated 14.6.2006 passed by the Additional District and
Sessions Judge, F.T.C., Jhargram, issuing summons to the
appellants under Section 319 Cr.P.C. and the impugned order
C of the High Court dated 22.11.2006 directing the appellants to
surrender before the Trial Court and to apply for bail.
23. The appeal is accordingly allowed.
R.P. Appeal allowed.
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