Supreme Court of India
RAM SINGH & ORS.versusRAM NIWAS & ANR.
- Citation
- 2009 INSC 807
- Decided
- 13 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The court must be satisfied that unrebutted prosecution evidence would lead to conviction before exercising the power under Section 319, and a mere prima facie case is insufficient.
Summary
The case arose from an FIR alleging assault and homicide in which the appellants were not named in the charge-sheet. The complainant filed an application under Section 319 of the Code of Criminal Procedure, 1973 to have the appellants summoned as accused; the trial judge rejected it, but the High Court set aside that order, holding that a prima facie case was sufficient. The appellants appealed to the Supreme Court, contending that the High Court erred in its approach. The Supreme Court held that the extraordinary jurisdiction under Section 319 can be exercised only when the court is satisfied that, if the prosecution evidence remains unrebutted, it would inevitably lead to conviction of the person to be added as accused. Accordingly, the Court set aside the High Court judgment and allowed the appeal, emphasizing that the power must be exercised sparingly and not on the basis of a mere prima facie case.
Issues considered
- Whether a mere prima facie case is sufficient to invoke the court's jurisdiction under Section 319 CrPC.
- What standard of satisfaction is required for a court to exercise the extraordinary power under Section 319 CrPC.
Legislation cited
Subjects
Section 319Criminal ProcedureAddition of accusedPrima facie caseExtraordinary jurisdictionEvidenceConvictionAppellate review
Judgment
[2009) 8 S.C.R. 878
'{
A RAM SINGH & ORS.
v.
RAM NIWAS & ANR.
(Criminal Appeal No.1014 of 2009)
MAY 13, 200;.'
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
c Section 319 - Power to proceed against other persons
appearing to be guilty of offence - Scope and applicability
of.
The question involved in the appeal relates to the
~
scope and application of Section 319 Cr.P.C.
D
Allowing the appeal, the Court
HELD: 1.1. The High Court, however, has committed
a serious error in proceeding on the premise that mere
E existence of a prima facie case would be sufficient to
exercise the court's jurisdiction under Section 319 Cr.P.C.
It is necessary for the court to arrive at a satisfaction that -/
the evidence adduced on behalf of the prosecution, if ~.
unrebutted, would lead to conviction of the persons ,,
sought to be added as accused in the case. [Para 17)
F [887-F-H]
1.2. The High Court furthermore committed a serious
error insofar as it failed to take into consideration that
wheri the order dated 29th May 2003 was passed, the
G Judge was in a position to consider the evidence brought
l
on record including the cross-examination of the
prosecution witnesses. The High Court did not arrive at
any finding that a case has been made out for exercise
of such an extraordinary jurisdiction which, is required
H 878
"J RAM SINGH & ORS. v. RAM NIWAS & ANR. 879
I to be exercised very sparingly. (Para 18] (888-A-B] A
Kai/ash v. State of Rajasthan 2008(3) SCALE 338; Raj
Kishore Prasad v. State of Bihar & Anr. (1996) 4 SCC 495;
Rakesh & Anr. v. State of Haryana (2001) 6 SCC 248;
Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.
B
(1983) 1 SCC 1; Joginder Singh & Anr. v. State of Punjab &
Anr. (1979) 1 SCC 345; Lok Ram v. Nihal Singh & Anr.
i
(2006) 10 SCC 192; Shashikant Singh v. Tarkeshwar Singh
& Anr. (2002) 5 SCC 738; Michael Machado & Anr. v.
Central Bureau of Investigation & Anr. (2000) 3 SCC 262;
Palanisamy Gounder & Anr. v. State represented by Inspector c
of Police (2005) 12 SCC 327; Kai/ash Dwivedi v. State of M.P.
& Anr. (2005) 11 SCC 182 and Mohd. Shafi v. Mohd. Rafiq
& Anr. 2007(5) SCALE 611, referred to .
...,
Case Law Reference : D
-<t
" 2008(3) SCALE 338 referred to Para 13
(1996) 4 sec 495 referred to Para 14
(2001) 6 sec 248 referred to Para 15
E
(1983) 1 sec 1 referred to Para 16
~
• (1979) 1 sec 345 referred to Para 16
(2006) 1o sec 192 referred to Para 16
F
(2002) 5 sec 738 referred to Para 16
(2000) 3 sec 262 referred to Para 16
2005) 12 sec 321 referred to Para 16
(2005) 11 sec 182
~,
. 2007(5) SCALE 611
referred to
referred to
Para 16
Para 16
G
<
1
l H
..
880 SUPREME COURT REPORTS [2009) 8 S.G.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal •\"
No. 1014 of 2009.
From the Judgment & Order dated 16.11.2005 of the High
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in S.B.
B Criminal Misc. Petition No. 758 of 2003.
Dr. Sushi! Balwada, Satbir Pillania, Sushi! Kumar Jain,
Puneet Jain, Pratibha Jain, Naveen Singh and Aruneshwar +
Gupta appearing for the parties.
c The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. Scope and application of Section 319 of the Code of
D Criminal Procedure, 1973 (for short, 'the Code') is in question r
in this appeal which arises out of a judgment and order dated
16th November 2005 passed by a learned Single Judge of the
High Court of Rajasthan whereby and whereunder the order
dated 29th May 2003 passed by the learned Upper District &
E Sessions Judge (Fast Track), Sikar, refusing to summon the
appellants herein as accused, was set aside.
1
3. A First Information Report (FIR) was lodged by the 1st
respondent alleging that his wife was attacked by nine persons
..
F including the five appellants herein. His mother was also
assaulted. When his father rushed to their rescue, he was also
surrounded by them and was assaulted as a result whereof, he
expired. Upon investigation, a final form was submitted in favour
of the appellants. A charge-sheet was filed only against four
persons, viz., Kishori, Jagdish, Sarjit and Sheo.
G
4. Indisputably, a counter case had been filed. "
5. An application was filed on or about 01st April 1998 in
terms of Section 319 of the Code for summoning the appellants
H -,
RAM SINGH & ORS. v. RAM NIWAS & ANR. 881
[S.B. SINHA, J.]
/ herein as accused. A
Before the learned Upper Distt. & Sessions Judge, a large
number of witnesses were examined and cross-examined on
behalf of the accused persons. By reason of an order dated
29th May 2003, the learned Upper Distt. & Sessions Judge B
rejected the said application filed by the 1st respondent herein
opining that no case has been made out therefor. A criminal
miscellaneous petition filed by the 1st respondent before the
High Court against the order of the learned Upper Distt. &
Sessions Judge, however, has been allowed by reason of the c
impugned judgment, stating:
"The very ambit of section 319 Cr.P.C. is to empower the
trial court to take cognizance against those persons who
--; are alleged to have been involved in an offence, but who
D
have not been arrayed as accused by the investigating
agency while filing the charge sheet. Section 319 Cr.P.C.
comes into effect once the evidence comes trickling in
during the course of trial against the alleged offender. In
case there is prima facie case against the alleged
offenders, the Court should take cognizance against them. E
At the juncture of taking cognizance, the court should not
critically analyze the evidence. For the purpose of taking
~" cognizance, the existence of a prima facie case is
sufficient. It is only at a later s!age that !he trial court is
called upon to appreciate the evidence in proper F
perspective. Moreover, ~he duty of the court is not only to
protect the innocent, but also to punish the guilty. In case
the jurisdiction under section 319 Cr.P.C. is not exercised
properly by the trial Court, chances are that those who are
alleged in the offence might go scot free. The society G
-;<
• cannot be exposed to the dangers created by those who
take law in their own hands.
Considering the fact that the large number of
witnesses have deposed against the respondents No.2 to H
882 SUPREME COURT REPORTS [2009] 8 S.C.R.
,
A 6, a prima-facie case does not (sic) exist against them for (
'
their involvement in the alleged offence. Thus, in our
opinion, the learned Magistrate should have exercised the
jurisdiction vested in him under section 319 Cr.P.C.
B We allow this petition and direct the learned Addi.
Sessions Judge to rehear the arguments of the learned
counsel for the petitioner and the learned counsel for the
State and pass the necessary orders in accordance with
section 319 Cr.P.C. within a period of two weeks from the
c date of the receipt of the certified copy of this order and
to expeditiously complete the trial as the trial has been
hanging fire since 1996."
6. Dr. Sushil Balwada, learned counsel appearing on
behalf of the appellants would submit that the involvement of
D the appellants having not been found by the learned Upper
Sessions Judge, the High Court committed a serious error in
passin!~ the impugned judgment.
7. Mr. Sushil Kumar Jain, the learned counsel appearing
E on behalf of the 1st respondent, on the other hand, urged that
~
although a final form was filed in favour of the appellants, the
same would not mean that the application for summoning the 'I
accused was impermissible in law. •
F It was urged that the learned Upper Sessions Judge
committed a serious error insofar as he failed to take into
consideration that existence of a prima facie case alone would
subserve the requirements of the said provision. It was urged
that at that stage, the learned Upper Sessions Judge should
G not have entered into the arena of appreciation of evidence.
In this regard, our attention has been drawn to the '
statements of various witnesses examined on behalf of the
prosecution prior to the passing of the order dated 29th May
H 2003.
RAM SINGH & ORS. v. RAM NIWAS & ANR. 883
[S.B. SINHA, J.]
.,
1
A
8. Before the learned Upper Sessions Judge, the
respondent no.1 herein was examined as P.W.2 on 23rd
February 1998. He alleged involvement of the appellants herein
in the incident. He had also attributed certain overt acts on their
part, inter afia, contending that they had assaulted his father
with the reverse side of an axe (farsr). One Ramesh Kumar, B
brother of the respondent no.1 was also examined as P.W. 7
i on 22nd January 2003. Similarly, one Kanesh, son of
respondent no.1, examined himself as P.W.8 on 22nd January
.., 2003 .
c
9. Mr. Naveen Kumar Singh, learned counsel appearing
on behalf of the State would submit that it was not permissible
in law for the learned Upper Sessions Judge to entertain an
application under Section 319 of the Code although they had
·1 not been charge-sheeted.
D
We do not agree.
10. Section 319 of the Code reads thus :
"319. Power to proceed against other persons appearing E
to be guilty of offence.-(1) Where, in the course of any
~: inquiry into, or trial of, an offence, it appears from the
, evidence that any person not being the accused has
committed any offence for which such person could be
tried together with the accused, the Court may proceed F
against such person for the offence which he appears to
have committed.
(2) Where such person is not attending the Court he
may be arrested or summoned, as the circumstances of G
l the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not
under arrest or upon a summons, may be detained by
such Court for the purpose of the inquiry into, or trial of, H
884 SUPREME COURT REPORTS [2009) 8 S.C.R.
A the offence which he appears to have committed. 'I(
(4) Where the Court proceeds against any person
under sub-section (1) then-
B (a) the proceedings in respect of such person shall
be commenced afresh, and witnesses re-heard;
~-
(b) subject to the provisions of clause (a), the case
c
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."
11. An application under the aforementioned provision
would be maintainable not only during pendency of an inquiry
D but also in the course of a trial. In the event, it appears from
the evidence that any person, not being an accused, has
committed any offence for which he could be tried together with
the accused, the court may proceed against him for the offence
which he appears to have committed. The provision of Section
E 319 of the Code confers an extraordinary power upon a court
to summon a person who, at the relevant time, was not being
tried as an accused, subject, of course, to fulfillment of the -(
condition that it appears to the court that he had committed an
offence. A finding to that effect must be premised on the
F evidence that had been brought on record.
12. Indisputably, the court must satisfy itself about the
existence of an extraordinary situation enabling it to exercise
an extraordinary jurisdiction. It is true that the court is not
G denuded of its power to exercise the said jurisdiction only
because a person named as an accused in the FIR was not
charge-sheeted as a result whereof no cognizance has been
taken against him. What is necessary for the said purpose is
that the person concerned was not being tried as an accused
H
before the Court at that stage.
RAM SINGH & ORS. v. RAM NIWAS & ANR. 885
[S.B. SINHA, J.]
} 13. This Court in the case of Kai/ash v. State of Rajasthan A
. [2008(3) SCALE 338], has held that a glance of the provision
would suggest that during the trial it has to appear from the
evidence that a person not being an accused has committed
·any offence for which such person could be tried together with
the accused who are also being tried. This Court has laid B
emphasis on the words, 'it appears from the evidence', 'any
i person', and 'has committed any offence'. It was further held
that the power under Section 319 has to be essentially
exercised only on the basis of the evidence brought on record
of the case. The discretionary jurisdiction could, therefore, be c
exercised only after the legal evidence comes on record and
from that evidence it appears that the concerned person has
committed an offence.
14. In the case of Raj Kishore Prasad v. State of Bihar &
D
Anr. [(1996) 4 SCC 495], this Court opined :
"14. Learned counsel differ however on the other question
posed in Kishun Singh case [Kishun Singh v. State of
Bihar (1993) 2 SCC 16]. It was whether a Court of
Session, to which a case is committed for trial by a E
Magistrate, could, without itself recording evidence,
't summon· a person not named in the police report
presented under Section 173 of the Code of Criminal
Procedure, 1973, to stand trial along with those named
therein; if not in exercise of power conferred by Section F
319 of the Code, then under any other provision? The
answer given was in the affirmative, on the basis of Section
193 of the Code, as it presently stands, providing that once
the case is committed to the Court of Session by a
Magistrate, the restriction placed on the power of the Court G
\( of Session to take cognizance of an offence as a Court of
~
Original Jurisdiction gets lifted, thereby investing the Court
' of Session unfettered jurisdiction to take cognizance of the
offence which would include the summoning of the person
H
886 SUPREME COURT REPORTS [2009] 8 S.C.R.
A or persons whose complicity in the crime can prima facie •<
be gathered from the material available on the record. It
is on this reasoning that this Court sustained the order of
the Court of Session (though it ostensibly was under
Section 319 CrPC terming material of investigation before
B it as 'evidence') summoning the unnamed accused to
stand trial with the named accused. A stage has thus been
discovered, before the reaching of the stage for exercise
t
of power under Section 319 CrPC, on the supposition and
premise that it is pre-trial when the question of charge was
c being examined. Such power of summoning the new
accused has been culled out from the power exercisable
by the Court of Session under Sections 227 and 228 of
the Code, enabling it to discharge under Section 227 or
charge under Section 228 the accused persons before it
and while so to summon another accused involved in the
D
commission of the crime, prima facie appearing from the
material available on record of the case. Thus at a stage
posterior to the stage envisaged under Section 319, the
Court of Session has been held empowered to summon
an accused if a prima facie case is made out from the
E material available on the record."
15. In the case of Rakesh & Anr. v. State of Haryana -I
((2001) 6 sec 248], it was held :
F "11. In support of his contention, learned Senior Counsel
Mr. Ranjit Kumar referred to the decision of this Court in
Joginder Singh v. State of Punjab (1979) 1 SCC 345. In
our view, this decision nowhere lays down that before a
person is added as accused in a sessions trial case, he
G should be permitted to cross-examine the witnesses
whose evidence is recorded. On the contrary, it lays down
that once the Sessions Court is seized of the matter as a
J/
.
result of the committal order against some accused the
power under Section 319(1) can come into play and the
H court can add any person, not an accused before it, as an
I
RAM SINGH & ORS. v. RAM NIWAS & ANR. 887
[S.B. SINHA, J.)
i., : 1I
accused and direct him to be tried along with other A
..
.,
accused. The Court has further observed that the very
purpose of enacting Section 319(1) clearly shows that
even 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 B
are included in the expression 'any person not being the
accused'."
16. We must, however, at this stage also place on record
that this Court, in the case of Municipal Corporation of Delhi c
v. Ram Kishan Rohtagi & Ors. [(1983) 1 SCC 1], opined that
the power under the said provision must be exercised very
sparingly and not as a matter of course. In the case of Joginder
Singh & Anr. v. State of Punjab & Anr. [(1979) 1 SCC 345],
this Court even opined that such a power can be exercised
D
even without there being a committal order passed against a
person. [see also Lok Ram v. Nihal Singh & Anr. [(2006) 10
SCC 192); Shashikant Singh v. Tarkeshwar Singh & Anr.
[(2002) 5 SCC 738); Michael Machado & Anr. v. Central
Bureau of Investigation & Anr. [(2000) 3 SCC 262);
Palanisamy Gounder & Anr. v. State represented by Inspector E
of Police [(2005) 12 SCC 327); Kai/ash Dwivedi v. State of
~ M.P. & Anr. [(2005) 11 SCC 182) and Mohd. Shafi v. Mohd.
,, I Rafiq & Anr. [2007(5) SCALE 611).
17. The High Court, in our opinion, however, has F
committed a serious error in proceeding on the premise that
mere existence of a prima facie case would be sufficient to
exercise the court's jurisdiction under Section 319 of the Code.
We have noticed hereinbefore the. importance of the word
'appears'. What is, therefore, necessary for the court is to arrive G
'w: at a satisfaction that the evidence adduced on behalf of the
prosecution, if unrebutted, would lead to conviction of the
persons sought to be added as accused in the case.
.,
H
888 SUPREME COURT REPORTS [2009] 8 S.C.R.
A 18. The High Court furthermore committed a serious error
insofar as it failed to take into consideration that when the order
dated 29th May 2003 was passed, the learned Judge was in
a position to consider the evidence brought on record including
the cross-examination of the prosecution witnesses. The High
B Court did not arrive at any finding that a case has been made
out for exercise of such an extraordinary jurisdiction which, in
terms of the judgments of this Court, is required to be
exercised very sparingly.
C 19. For the reasons aforementioned, the impugned
judgment is set aside. The appeal is allowed.
G.N. Appeal allowed.
f
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