Holding

The Sessions Judge was justified in exercising its jurisdiction under s.319 CrPC; the dying declaration and accompanying evidence disclosed a prima facie offence of abetment of suicide, so the appellants could be summoned as additional accused.

Issues considered

Whether the Sessions Judge was justified in exercising power under Section 319 of the Code of Criminal Procedure to summon additional accused despite the absence of a charge‑sheet against them.
Whether the evidence, including the dying declaration, established a prima facie case of abetment of suicide under Section 306 of the Indian Penal Code, thereby permitting the addition of the appellants as accused.

Legislation cited

Code of Criminal Procedure, 1973s. 319
Indian Penal Code, 1860s. 120-B, s. 306, s. 420, s. 456, s. 509

Subjects

suicideabetment of suicidedying declarationSection 319 CrPCadditional accusedprima facie evidencecross‑examination

Judgment

[2009] 11 S.C.R. 1015

HARBHAJAN SINGH AND ANR. A
v.
STATE OF PUNJAB AND ANR.
(Criminal Appeal No. 1351 of 2009)

JULY 29, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.)

Code of Criminal Procedure, 1973 - s.319 - Exercise of
power under - Suicide - Dying declaration - Charge-sheet
against appellant no.2's brother - Application u/s.319 - C
Appellants summoned by Sessions Judge as additional

- accused - Justification of - Held: On facts, justified - In the
dying declaration, not only appellant no.2's brother but the
appellants too were named as persons responsible for death
of the deceased - May be the appellants were not charge- D
;. sheeted, but the same, by itself, was not sufficient ground for
the Sessions Judge to decline to exercise its jurisdictien to
add appellants as accused for trying them for offences which
appeared to it to have been committed by them -: It was not
possible to conclude that the evidence made available before E
the Sessions Judge, even if given face Value and taken to be
correct in its entirety, did not disclose commission of offence
or on basis thereof judgment of conviction could not be
~ recorded at all-· Penal Code, 1860 - s.306.

A young girl committed suicide by consuming F
'sulphos' tablets. She made a dying declaration. In regard
to the incident, an FIR was lodged under ss. 306150914201
120-8/456 IPC and charge-sheet submitted against 'S', the
brother of appellant no.2.
G
Respondent no.2, the father of the deceased, filed
, ....,..~ application under s.319 CrPC for summoning the
:ip~ellants as additional accused in connection with the
said FIR on the allegation that the appellants alongwith
1015 H
1016 SUPREME COURT REPORTS [2009] 11 S.C.R.

A 'S' used to harass the deceased and black-mailed her by
throwing some obscene photographs of hers before her
house as well as in front of the house of her uncle in order
to defame her and in order to pressurize her to marry 'S'.
Placing reliance upon the statement made by respondent
B no.2 as also the said dying declaration, the Sessions
Judge allowed the application. Revision petition filed by
the appellants was dismissed by the High Court.
,l.
In appeal to this Court, it was contended that the •
High Court had committed serious error insofar as it
c failed to take into consideration that the ingredients of
s.306 IPC was not fulfilled inasmuch as the immediate
cause for committing suicide being throwing obscene
photographs of the deceased having been attributed to ...
'S' alone, the appellants could not have been summoned
D by the courts below as additional accused.

Dismissing the appeal, the Court
• -
HELD: 1.1. In the present case, the deceased made
a dying declaration. In the said dying declaration not only
E
'S' but also the appellants were named as the persons
who were responsible for her death. Correctness of the
said dying declaration at this stage is not and cannot be
questioned. It may be true that the appellants were not
~
charge-sheeted but only because no charge-sheet has
F been submitted against certain persons, the same by
itself, would not be a sufficient ground for the court at a
later stage, namely, upon consideration of the evidence
adduced before it by the prosecution to decline to
exercise its jurisdiction to add other persons as accused
G for trying them for offences which appear to it to have
been committed by them. The dying declaration together ),

with statements made by the prosecution witnesses
show commission of an offence. Appellants took side of
'S'. They not only asked the deceased to marry him but
H even threatened her as also her parents that in case of
HARBHAJAN SINGH AND ANR. v. STATE OF 1017
PUNJAB AND ANR.
-,..i
refusal, she would be 'defamed'. It is not possible, A
keeping in view the nature of evidence which was made
~'
available before the Sessions Judge, to arrive at a
conclusion that the said evidence, even if given face
value and taken to be correct in its entirety; had not
disclosed commission of an offence or on the basis B
thereof a judgment of conviction cannot be recorded at
all. Appellants had raised certain defences. The same
,. ultimately may or may not be accepted. But, indisputably,
~
at this stage, the evidence adduced discloses some
offence. [Para 9) [1021-G-H; 1022-A-F] c
1.2. If judicious discretion exercised by the Court had
led it to pass an order under Section 319 of the Code, the
• High Court exercising a revisional jurisdiction would
interfere therewith, inter alia, in a case where legal
principles laid down by this Court had not been satisfied. D
t
The decision of this Court in the case of Mohd. Shafi is
not an authority for the proposition that in each and every
case the Court must wait till the cross-examination is
over. Keeping in view the materials available on record
as also the nature of the order passed by the Sessions E
Judge, no interference with the impugned judgment is
called for in the peculiar facts and circumstances of the
case. [Paras 14 and 15) [1025-D-G]
-"'
Mohd. Shafi v. Mohd. Rafiq & Anr. (2007) 4 SCR 1023; F
Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.
(1983) 1 SCC 1; Joginder Singh & Anr. v. State of Punjab &
Anr. (1979) 1 SCC 345; Lok Ram v. Nihal Singh & Anr.
(2006) 10 SCC 192; Shashikant Singh v. Tarkeshwar Singh
& Anr. (2002) 5 SCC 738; Kai/ash v. State of Rajasthan &
G
Anr. 2008(3) SCALE 338; Sarabjit Singh & Anr. v. State of
...-"'- Punjab & Anr. 2009 (8) SCALE 175; Hardeep Singh v. State
of Punjab & Ors. JT 2008(12) SC 7 and Rakesh & Anr. v.
State of Haryana (2001) 6 SCC 248, referred to.
H
1018 SUPREME COURT REPORTS [2009) 11 S.C.R.

A Case Law Reference: "'-'

(2007) 4 SCR 1023 referred to Para 7
(1983) 1 sec 1 referred to Para 10
(1979) 1 sec 345 referred to Para 10
B
(2006) 10 sec 192 referred to Para 10
(2002) 5 sec 738 referred to Para 10 ;i..

2008(3) SCALE 338 referred to Para 10 •
c
2009 (8) SCALE 175 referred to Para 10
JT 2008(12) SC 7 referred to Para 12
(2001) s sec 248 referred to Para 13 --
D CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1351 of 2009.
·~
,,

From the Judgment & Order dated 19.3.2008 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Revision
E No. 1916 of 2006.
Satinder S. Gulati, Kamaldeep Gulati for the Appellants.

H.S. Munjral, Kuldip Singh, Parmanand Bhardwaj for the
Respondents. "·
F
The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Appellants are before us aggrieved by and dissatisfied
G with the judgment and order dated 19th March 2008 passed
by a learned Single Judge of the High Court of Punjab &
:i.
Haryana at Chandigarh whereby and whereunder the revision
application filed by them questioning the legality and/or validity
of the order dated 11th September 2006 passed by the learned
H
HARBHAJAN SINGH AND ANR: v. STATE OF 1019
PUNJAB AND ANR. [S.B. SINHA, J.]

Addi. Sessions Judge, Jalandhar allowing an application under A
Section 319 of the Code of Criminal Procedure (for short, 'the
Code') filed by the complainant (respondent ;10.2 herein)
summoning them as additional accused in connection with FIR
No.45 dated 13th March 2005 under Sections 306/509/420/
120-B/456 of the Indian Penal Code, was dismissed. B
3. Appellants and one Sarabjit Singh used to live together.
Sarabjit Singh is the brother of the appellant no. 2. He used to
~ follow the deceased Rajni despite protests made by her. He
. ~
gave a proposal of marriage to her which was not accepted.
Appellants also asked her to marry Sarabjit, but she refused. c
She was threatened of being blackmailed stating that some
obscene photographs of hers would be shown to others. On

- 12th. March 2005 Sarabjit Singh threw some obscene
photographs of the deceased at her house as well as at the
house of her paternal uncle - Kamaljeet. He telephoned the D
) deceased that her father and uncle must have receive~ the gift
sent by him. She thereafter committed suicide by consuming
'sulphos' tablets.

4. A First Information Report was lodged. However, the E
charge-sheet was submitted only against Sarabjit Singh.
Witnesses were examined before the learned Addi. Sessions
Judge. They categorically stated that not only Sarabjit Singh but
also the appellants, when informed that the deceased did not
.i.
want to marry Sarabjit, threatened that they would 'defame'
F
Rajni. According to the said witnesses, they had gone to the
house of Harbhajan Singh - appellant no.1 a week prior to her
death in that connection. It was categorically stated that the
deceased consumed 'sulphos' tablets as Sarabjit and the
appellants used to harass her. In cross-examination, the
complainant - Subhash Chander furthermore stated that his G
sons had informed him that they had received a telephonic
~-.j message from Sarabjit Singh as to whether they had received
the gift sent by him to them.

5. The learned Addi. Sessions Judge passed the said H
1020 SUPREME COURT REPORTS [2009] 11 S.C.R.

A order dated 11th September 2006 summoning the appellants
as additional accused in the said case, stating:

"I have heard the learned Addi. P.P. for the state as well
as perused the documents in the file, as well as statement
made by Subhash Chander father of Rajni before the
B police as well as his statement recorded in the Court and
also the statement of Rajni deceased at the time of her
death given to the police. Rajni as well as her father have
named both Harbhajan Singh and Rajnit Kaur as active ...
participants in the commission of the offence of abetting "
c her suicide alongwith accused Sarbjit Singh @ Sabhi. All
three of them have black mailed her by throwing her nude
photographs bef.ore her house as well as in front of the

D
house of her uncle in order to defame her and in order to
pressurize her to marry Sarbjit Singh @ Sabhi. There is
sufficient material to proceed against the accused. A lady
-
at the time of her death will never tell a lie. The very fact ~
that she has named all the three persons in the abetment
of her suicide carries conviction. In view of the above said
facts I allow the application and order that Harbharaj Singh
E son of Sarwan Singh and Ranjit Kaur w/o Harbhajan Singh
both residents of E-104, Upkar Nagar (Jaimal Nagar),
P.S. Division No.8, Jalandhar be summoned as accused
to face trial alongwith accused Sarbjit Singh @ Sabhi as
their summoning is essential in the interest of justice and
F for the just and proper decision of the case. They be "
summoned for 28.9.06."

6. The High Court, by reason of the impugned judgment,
has dismissed the revision application filed by the appellants
herein, stating:
G
" .... However, Subhash Chander has specifically stated
that they had met the petitioners even one week before the ),

death of the deceased. In all, Subhash Chander stated that
they had met the petitioners three times. If the petitioners
H were reiterating their threat to defame the deceased,
HARBHAJAN SINGH AND ANR. v. STATE OF 1021
PUNJAB AND ANR. [S.B. SINHA, J.]

..... throwing of obscene photographs of the deceased at her A
house even by Sarabjit Singh alone, would not exonerate
the petitioners at this stage because it was in continuation
of the series of acts of the petitioners themselves as well.
Here it would not be out of place to notice that even the
deceased in her statement (dying declaration) specifically B
stated that the petitioners and Sarabjit Singh are
responsible for her suicide. In view of the aforesaid, it
,. cannot be said that there is no prima facie for proceeding
against the petitioners. The impugned order does not
.. suffer from any illegality or error of jurisdiction." c
7. Mr. Satinder S. Gulati, the learned counsel appearing
on behalf of the appellants would submit that the learned Addi.
Sessions Judge as also the High Court committed a serious
error insofar as they failed to take into consideration that the
ingredients of Section 306 of the Indian Penal Code having not D

... f been fulfilled inasmuch as the immediate cause for committing
suicide being throwing of nude photographs of the deceased
having been attributed to Sarabjit Singh alone, the appellants
could not have been summoned as additional accused. The
learned counsel, in this behalf, would strongly rely upon the E
decision of this Court in the case of Mohd. Shafi v. Mohd.
=
Rafiq & Anr. (2007) 4 SCR 1023 2007(5) SCALE 611.

Our attention has further been drawn to the fact that
;.
correctness of decision in the case of Mohd. Shafi (supra) F
insofar as it was held that order summoning the accused may
be passed only upon cross-examining the witnesses, having
been doubted, has been referred to a three-Judge Bench.

8. The learned counsel appearing on behalf of the
respondents, on the other hand, would support the impugned G
judgment.
.,,.-·"-
9. In this case, the deceased made a dying declaration.
In the said dying declaration not only Sarabjit Singh but also
the appellants herein were named as the persons who were H
1022 SUPREME COURT REPORTS [2009] 11 S.C.R.

A responsible for her death. Correctness of the said dying .._.
declaration at this stage is not and cannot be questioned. It may
be true that the appellants were not charge-sheeted but it is
now well settled, by reason of various decisions of this Court, •
that only because no charge-sheet has been submitted against
B certain persons, the same by itself, would not be a sufficient
ground for the court at a later stage, namely, upon consideration
of the evidence adduced before it by the prosecution to decline
to exercise its jurisdiction to add other persons as accused for
trying them for offences which appear to it to have been •
c committed by them. "
The dying declaration together with statements made by
the prosecution witnesses show commission of an offence.
Appellants took side of Sarabjit Singh. They not only asked the
deceased to marry him but even threatened her as also her
D parents that in case of refusal, she would be 'defamed'.

It is not possible, keeping in view the nature of evidence ~

which was made available before the learned Addi. Sessions
Judge, to arrive at a conclusion that the said evidence, even if
E given face value and taken to be correct in its entirety; had not
disclosed commission of an offence or on the basis thereof a
judgment of conviction cannot be recorded at all.

Appellants had raised certain defences. The same
ultimately may or may not be accepted. But, indisputably, at this ,I,
F stage, the evidence adduced discloses some offence.

10. In the case of Municipal Corporation of Delhi v. Ram
Kishan Rohtagi & Ors. (1983) 1 SCC 1, it has been held as
under:
G
"19. 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
quashed have also committed the offence the Court can
H
HARBHAJAN SINGH AND ANR. v. STATE OF 1023
PUNJAB AND ANR. [S.B. SINHA, J.]
-...I
take cognizance against them and try them along with the A
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
compelling reasons exist for taking cognizance against the
other person against whom action has not been taken. B
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
the proceedings have been quashed against respondents
2 to 5 will not prevent the court from exercising its discretion
c
if it is fully satisfied that a case for taking cognizance
against them has been made out on the additional
evidence led before it."

[See also Joginder Singh & Anr. v. State of Punjab & Anr. D
~
(1979) 1 SCC 345; Lok Ram v. Nihal Singh & Anr. (2006) 10
SCC 192; Shashikant Singh v. Tarkeshwar Singh & Anr.
(2002) 5 SCC 738; Kai/ash v. State of Rajasthan & Anr.
2008(3) SCALE 338 and Sarabjit Singh & Anr. v. State of
Punjab & Anr. 2009 (8) SCALE 175]. E

11. In the case of Mohd. Shafi (supra), an application under
Section 319 of the Code was filed by a witness. He was not
Ao the complainant. He had no locus standi to file the application.
In that case, the trial Judge had refused to pass an order on
F
the application filed by the complainant under Section 319 of
the Code stating that the matter would be considered only after
the cross-examination of the witnesses is over. The State was
not aggrieved by that order and in that situation this Court
refused to interfere with the inference that such an order by the
G
High Court at that stage was not held to be correct.
....... 12. Our attention, however, has been drawn to a decision
of this Court in the case of Hardeep Singh v. State of Punjab
& Ors. JT 2008(12) SC 7 wherein the following questions·have
been referred for consideration by a larger Bench by an order H
1024 SUPREME COURT REPORTS [2009] 11 S.C.R.

...._.
A dated 07th November 2008 :
"79. We, therefore, refer the following two questions for the
consideration of a Bench of three Hon'ble Judges:

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

(2) What is the test and what are the guidelines of
c
exercising power under sub-section ( 1) of Section
319 of the Code? Whether such power can be
exercised only if the Court is satisfied that the
accused summoned in all likelihood would be
convicted?"
D
+
13. We would assume that in all cases the court may not
wait till cross-examination is over for the purpose of exercising
its jurisdiction. In the aforementioned decision, the learned
Judges had referred to a judgment of this Court in the case of
E Rakesh & Anr. v. State of Haryana (2001) 6 SCC 248 wherein
it was held that even without cross-examination on the basis
of a prima facie material which would enable the Sessions
Court to decide whether the power under Section 319 of the
,I
Code should be exerdsed or not stating that at that stage
F evidence as used in Section 319 of the Code would not mean
evidence which is tested by cross-examination.

14. Even if what is contended by the learned counsel is
correct, it is not for us to go into the said question at this stage;
herein cross-examination of the witnesses had taken place. The
G
Court had taken into consideration the materials available to it
for the purpose of arriving at a satisfaction that a case for } ..,,
exercise of jurisdiction under Section 319 of the Code was
made out. Only because the correctness of a portion of the
judgment in the case of Mohd. Shafi (supra) has been doubted
H
HARBHAJAN SINGH AND ANR. v. STATE OF 1025
PUNJAB AND ANR. [S.B. SINHA, J.]
:~

by another bench, the same would not mean that we should A
wait for the decision of the larger bench, particularly when the
same instead of assisting the appellants runs counter to their
contention.

We may, however, incidentally place on record that in
B
Mohd. Shafi (supra), the trial Court refused to exercise its
discretion and postponed passing of an order till cross-
examination was over. If at that stage, the Court was not
satisfied about existence of any other material which would
satisfy it to exercise the jurisdiction which as per the decision C
of this Court in the case of Municipal Corporation of Delhi v.
Ram Kishan Rohtagi & Ors. (supra) should be used very
sparingly, this Court should not have passed a favourable order
at that stage itself. It was merely held that the High Court should
not have interfered with as the said provision conferred an
f extraordinary power. Each case must be decided .on its own D
facts.

If a judicious discretion exercised by the Court had led it
to pass an order under Section 3~9 of the Code, the High
Court exercising a revisional jurisdiction would interfere E
therewith, inter alia, in a case where legal principles laid down
by this Court had not been satisfied. The decision of this Court
in the case of Mohd. Shafi (supra), therefore, in our opinion, is

- not an authority for the proposition that in each and every case
the Court must wait till the ·cross-examination is over. F
15. Keeping in view the materials available on record as
also the nature of the order passed by the learned Sessions
Judge we are of the opinion that no interference with the
impugned judgment is called for in the peculiar fa9ts and
circumstances of the case. G

16. For the reasons aforementioned, the appeal is
dismissed.

B.B.B. Appeal dismissed.
H