SANDEEP KUMARversusSTATE OF HARYANA & ANR

1210               [2023] 9COURT
                SUPREME     S.C.R. REPORTS
                                   1210 : 2023 INSC 654
                                                     [2023] 9 S.C.R.


 A                             SANDEEP KUMAR
                                         v.
                      THE STATE OF HARYANA & ANR.
                        (Criminal Appeal No. 2195 of 2023)
 B                                JULY 28, 2023
          [C. T. RAVIKUMAR AND SUDHANSHU DHULIA, JJ.]
              Code of Criminal Procedure, 1973 – s.319 – The appellant-
       informant (PW-9) moved an application u/s. 319 before the Trial
       Court to summon three additional accused persons, R, K and P,
 C
       who were named in FIR but not in the charge-sheet and they were
       identified by the appellant as assailants in his examination-in-chief
       during trial – The trial Court allowed the application and summoned
       the three accused persons – However, the High Court set aside the
       said order in revision – The revision was allowed for the reasons
 D     that R was found innocent during investigation and that he never
       used the weapon and had actually fled from the spot – On appeal,
       held: Observations of the High Court were factually incorrect as
       can be seen from the examination-in-chief of PW-9 that the revisionist
       had fled the scene only after the commission of the crime by an
       “unlawful assembly” – For attracting the offence u/s. 149 IPC, one
 E
       simply has to be a part of an unlawful assembly, any specific
       individual role or act is not material – High Court committed grave
       error – The reasoning given by the High Court, cannot be accepted
       at the stage of consideration of application u/s 319 Cr.PC – The
       merits of the evidence has to be appreciated only during the trial
 F     and not at the stage of s. 319 – Order of High Court set aside –
       Appeal allowed – Penal Code,1860 – ss. 458, 460, 323, 302, 148,
       149 and 285 – Arms Act, 1959 – s. 25.
              Code of Criminal Procedure, 1973 – s.319 – At the stage of
       summoning an accused, there has to be a prima facie satisfaction of
 G     the Court – In the instant case, the evidence which was there before
       the Court was of an eye witness who has clearly stated before the
       Court that a crime has been committed, inter alia, by the revisionist –
       The Court need not cross-examine this witness – It can stop the
       trial at that stage itself if such application had been moved u/s.
       319.
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                                        1210
   SANDEEP KUMAR v. THE STATE OF HARYANA & ANR.                              1211


      Hardeep Singh v. State of Punjab and Others (2014) 3                   A
      SCC 92 : [2004] SCR 913 – relied on.
      Manjeet Singh v. State of Haryana & Ors. 2021 SCC
      OnLine SC 632; Yunis alias Kariya v. State of Madhya
      Pradesh AIR 2003 SC 539 – referred to.
                        Case Law Reference                                   B

AIR 2003 SC 539                   referred to              Para 4
[2004] SCR 913                    relied on                Para 4
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.2195 of 2023.                                                             C
      From the Judgment and Order dated 02.03.2022 of the High Court
of Punjab & Haryana at Chandigarh in CRR No.452 of 2021.
      Ram Naresh Yadav, Suryavir, Advs. for the Appellant.
     Vishal Mahajan, DAG, Dr. Monika Gusain, Shreeyash Uday Lalit,           D
Abhinav Aggarwal, Ishaan George, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      SUDHANSHU DHULIA, J.
      Leave granted.                                                         E
      2. Heard Shri Ram Naresh Yadav learned Counsel for the
appellant/complainant, Shri Vishal Mahajan, Deputy Advocate General
for the State/Respondent No.1 and Shri Shreeyash U. Lalit learned
Counsel for Respondent No.2.
       3. The appellant before this Court was the informant in the case      F
and was a prosecution witness (PW-9), in Sessions Trial No.8/2018,
which is being held before the Additional Sessions Judge, Sirsa, Haryana,
under Sections 458, 460, 323, 302, 148, 149 and 285 of IPC, 1860 read
with Section 25 of Arms Act, 1959. The incident is of 12:30 mid night
dated 07.09.2017 which occurred at Sirsa, Haryana. The First Information
                                                                             G
Report reveals that there were in total fifteen assailants which had broke
open the complainant’s house, in the middle of the night and had come in
order to assault the inmates of the house. Out of these assailants seven
have been named who were armed with lathi and three of the named
assailants/accused namely Ramesh Gandhi, Kalu Jakhar and Pawan
were armed with gun and pistols respectively. Police after investigation     H
1212             SUPREME COURT REPORTS                            [2023] 9 S.C.R.


 A     had filed chargesheet against nine persons, but not against Ramesh
       Gandhi, Kalu Jakhar or Pawan whose names were placed in column 2
       of the chargesheet. After the trial had commenced and the complainant
       was being examined as PW-9, he disclosed the entire event as an eye
       witness in his examination-in-chief, where he has unambiguously assigned
       the roles to these three assailants as well, who were named in the FIR
 B
       but not made accused in the chargesheet, that is, Ramesh Gandhi
       (respondent No.2), Kalu Jakhar and Pawan.
             4. Immediately thereafter an application was moved before the
       Court by the Appellant under Section 319 Code of Criminal Procedure,
       for summoning these three persons Ramesh Gandhi, Kalu Jakhar and
 C     Pawan as accused so that they may also face the trial. This application
       as we have already stated was allowed, but the order was set aside by
       the High Court in Revision.
               Before we examine the scope of Section 319 of Code of Criminal
       Procedure, it would be relevant to go through the statement given by
 D     PW-9, complainant, in his examination in chief as that forms the basis
       for summoning the three persons. PW-9 states in his examination-in-
       chief that on 07.09.2017, he along with his younger brother Pradeep
       Kumar and his cousin Bijender was sleeping in the court yard of their
       house, after having dinner. His father, Hanuman (deceased), was also
 E     sleeping in the court yard. The main gate of the house was bolted. His
       uncle Subhash, Jaibir and Raj Kumar were also sleeping in their houses.
       At about 12:30 i.e. in the middle of the night fifteen persons entered their
       house having ‘lathi’ and ‘danda’ in their hands, from the adjacent room
       by breaking the chain. Two were having pistols in their hand which could
       be seen in the light of the bulb. He then goes on to say that while Ramesh
 F     Gandhi was having a gun, Kalu Jakhar and Pawan were armed with
       pistols and remaining were having lathis and dandas. They first exhorted
       and then started beating all of them and threatened that today they will
       teach them a lesson, for selling liquor. When they were inflicting blows
       on the three of them his father Hanuman came to their rescue, to whom
 G     Subhash gave a blow from his lathi. He then states that all the accused
       were inflicting injuries on his father, and when they finally left the house,
       they left after firing from their weapons. These are the essential details
       of his slightly longer narration.
             Section 319 of Cr.PC reads as under:
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   SANDEEP KUMAR v. THE STATE OF HARYANA & ANR.                                1213
             [SUDHANSHU DHULIA, J.]

          “319. Power to proceed against other persons appearing               A
          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            B
          Court may proceed against such person for the offence
          which he appears to have committed.
          (2) Where such person is not attending the Court, he may
          be arrested or summoned, as the circumstances of the case
          may require, for the purpose aforesaid.                              C
          (3) Any person attending the Court, although not under
          arrest or upon a summons, may be detained by such Court
          for the purpose of the inquiry into, or trial of, the offence
          which he appears to have committed.
          (4) Where the Court proceeds against any person under                D
          sub-section (1) then—
          (a) the proceedings in respect of such person shall be
          commenced afresh, and the witnesses re-heard;
          (b) subject to the provisions of clause (a), the case may
                                                                               E
          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.”
       Sub-section (1) of Section 319 leaves it to the judicial discretion
of the Court, where the trial is proceeding to summon a person as an
                                                                               F
accused (who is so far not an accused in trial), if evidence has appeared
before the Court that such a person has committed an offence for which
he should be tried together with the other accused. This judicial discretion
is extremely limited by the circumstances which have been stated in
sub-section (1) of Section 319. We have already referred to the statement
given by PW-9, (an eye-witness) in his examination-in-chief. To our            G
mind the Court had no alternative here but to summon the accused persons,
considering that now it had an evidence before it in the form of the
statement of PW-9.
      Pursuant to the summoning order out of the three accused who
have been summoned only one of them, i.e., Ramesh Gandhi who is                H
1214            SUPREME COURT REPORTS                          [2023] 9 S.C.R.


 A     Respondent No. 2 had filed a Revision before the Punjab & Haryana
       High Court which was allowed by order dated 02.03.2022
              In our considered opinion the High Court has not appreciated the
       matter in the true perspective of Section 319 Cr.P.C. The revision of
       Shri Ramesh Gandhi (one of the three accused who were summoned),
 B     was allowed for the reasons that he was found innocent during
       investigation and that he never used the gun and had actually fled from
       the spot. These observations are even factually incorrect, from what we
       have just seen in the examination-in-chief of PW-9, the revisionist had
       fled the scene only after the commission of the crime by an “unlawful
       assembly”. In his statement (PW-9), it has further come that while leaving
 C     the house firing was also done. Further, totally uncalled for presumption
       has been made by the High Court in favour of the revisionist, declaring
       him to be innocent.
             The High Court has reasoned as follows :-
                 “The petitioner was found innocent during investigation.
 D
                 It could not even be established on record whether the
                 petitioner was attributed any injury and even as per the
                 version of the complainant himself, the petitioner had
                 allegedly fled away from the spot. Thus, the material on
                 record, does not make it a fit case to summon the petitioner
 E               as an additional accused.
             The matter can be looked from another angle. It is the case of
             the complainant that the petitioner armed with a gun had come
             to the place of occurrence along with other co-accused.
             However, it does not seem to the common prudence that a
 F           person coming with a premediated mind at the spot with a
             gun, would flee without even firing or attempt a shot. This
             clearly points towards a false implication of the petitioner.”
             In our opinion, whereas the trial court was absolutely correct to
       have summoned the accused based on the evidence of PW-9, the High
       Court committed a grave error in allowing the revision of the accused.
 G
       Under the facts and circumstances of the case and on the powers of the
       Court under Section 319 and based on the evidence of PW-9, it was
       absolutely necessary for the trial court to have summoned the three
       accused, including the revisionist.

 H
   SANDEEP KUMAR v. THE STATE OF HARYANA & ANR.                             1215
             [SUDHANSHU DHULIA, J.]

       The reasoning given by the High Court, cannot be accepted at the     A
stage of consideration of application under Section 319 Cr.PC. The merits
of the evidence has to be appreciated only during the trial, by cross
examination of the witnesses and scrutiny of the Court. This is not to be
done at the stage of Section 319, though this is precisely what the High
Court has done in the present case. Moreover, the High Court did not
                                                                            B
appreciate the important fact that the charges being faced by the accused
were under Sections 458, 460, 323, 285, 302, 148 and 149 of IPC. Thus,
one of the charges being Section 149, which is of being a member of an
unlawful assembly, for attracting the offence under Section 149 IPC,
one simply has to be a part of an unlawful assembly. Any specific
individual role or act is not material. [See : 2021 SCC OnLine SC 632-      C
Manjeet Singh v. State of Haryana & Ors., Para 38].
      A plain reading of Section 149 IPC (read with Section 141 IPC),
makes it clear that no overt act needs to be assigned to a member of an
unlawful assembly. “Even if no overt act is imputed to a particular
person when the charge is under Section 149 IPC, the presence of            D
the accused as part of an unlawful assembly is sufficient for
conviction”. [See : Yunis alias Kariya v. State of Madhya Pradesh,
AIR 2003 SC 539]
       The entire purpose of criminal trial is to go to the truth of the
matter. Once there is satisfaction of the Court that there is evidence      E
before it that an accused has committed an offence, the court can proceed
against such a person. At the stage of summoning an accused, there has
to be a prima facie satisfaction of the Court. The evidence which was
there before the Court was of an eye witness who has clearly stated
before the Court that a crime has been committed, inter alia, by the
revisionist. The Court need not cross-examine this witness. It can stop     F
the trial at that stage itself if such application had been moved under
Section 319. The detail examination of the witness and other witnesses
is a subject matter of the trial which has to begin afresh. The scope and
ambit of Section 319 CrPC has been discussed and dealt with in detail in
the Constitution Bench judgment of Hardeep Singh v. State of Punjab         G
and Others reported in (2014) 3 SCC 92 where it said:
         “12. Section 319 CrPC springs out of the doctrine judex
         damnatur cum nocens absolvitur (Judge is condemned
         when guilty is acquitted) and this doctrine must be used as
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1216            SUPREME COURT REPORTS                          [2023] 9 S.C.R.


 A              a beacon light while explaining the ambit and the spirit
                underlying the enactment of Section 319 Cr. PC.
                13. It is the duty of the court to do justice by punishing the
                real culprit. Where the investigating agency for any reason
                does not array one of the real culprits as an accused, the
 B              court is not powerless in calling the said accused to face
                trial.”
             5. In Hardeep Singh (supra), this court further said that the Court
       only has to see at the state of Section 319, whether a prima facie case
       is made out although the degree of satisfaction has to be much higher.
 C              “95. At the time of taking cognizance, the court has to see
                whether a prima facie case is made out to proceed against
                the accused. Under Section 319 CrPC, though the test of
                prima facie case is the same, the degree of satisfaction
                that is required is much stricter. A two-Judge Bench of this
 D              Court in Vikas v. State of Rajasthan, held that on the
                objective satisfaction of the court a person may be
                “arrested” or “summoned”, as the circumstances of the
                case may require, if it appears from the evidence that any
                such person not being the accused has committed an
                offence for which such person could be tried together with
 E              the already arraigned accused persons.
             In Para 106 it stated as under:
                Thus, we hold that though only a prima facie case is to be
                established from the evidence led before the court, not
 F              necessarily tested on the anvil of cross-examination, it
                requires much stronger evidence than mere probability of
                his complicity. The test that has to be applied is one which
                is more than prima facie case as exercised at the time of
                framing of charge, but short of satisfaction to an extent
                that the evidence, if goes unrebutted, would lead to
 G              conviction. In the absence of such satisfaction, the court
                should refrain from exercising power under Section 319
                CrPC. In Section 319 CrPC the purpose of providing if “it
                appears from the evidence that any person not being the
                accused has committed any offence” it is clear from the
                words “for which such person could be tried together with
 H
   SANDEEP KUMAR v. THE STATE OF HARYANA & ANR.                              1217
             [SUDHANSHU DHULIA, J.]

           the accused”. The words used are not “for which such              A
           person could be convicted”. There is, therefore, no scope
           for the court acting under Section 319 CrPC to form any
           opinion as to the guilt of the accused.”
       In our considered opinion, the prosecution had fully made out its
case for summoning the three as accused under Section 319, Cr.PC, so         B
that they may also face trial.
       6. Under these circumstances, the appeal is allowed and the order
of the High Court dated 02.03.2022, is hereby set aside. It is further
directed that the trial shall proceed now in accordance with law, as
expeditiously as possible.                                                   C

Ankit Gyan                                                 Appeal allowed.
(Assisted by : Aarsh Choudhary, LCRA)



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