Court can exercise power u/s319CrPC even based on statement made in Chief-examination­ of witness:SC

The accused can be summoned on the basis of even examination­in­chief of the witness and the Court need not wait till his cross-­examination. If on the basis of the examination-­in-­chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial. (Para 7)

Sartaj Singh vs. State of Haryana & Anr. Etc.

Criminal Appeal Nos. 298-299 of 2021

15th March 2021

The divisional bench of the Supreme Court consisting of Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R.Shah quashed the impugned judgment and set aside the order passed by the High Court on 28.08.2020 in revision application bearing CRR No. 3238 of 2018 and CRMM No. 55631 of 2018 and restored the order passed by the learned Trial Court summoning the private respondent under section 319 Cr.P.C. to face the trial.

On 27.08.2016, the appellant was attacked by the private respondent and other accused persons(total 10-12). All of them were equipped with Gandasi and lathies and gave several blows upon him, and he became unconscious and fell on the ground. He took his revolver and fired at all these persons in self-defense, and they started running away.

Based on the statement of the appellant FIR no. 447 of 2016 was lodged for the offenses under Section 148, 149, 341, 232, 324, 307, and 506 IPC. In the report submitted by the DSP, Assandh, it is found that only four persons were involved in the dispute, and the respondents named were found not to be involved. Thereafter, the Investigating Officer filed the charge-sheet against other accused, but not against the private respondents.

The appellant filed an application before the learned Trial Court under Section 319 CrPC for the summoning of the additional accused (private respondents). On order dated 21.04.2018 trial court allowed this application on the basis of evidence recorded. Which was further quashed by the High Court on the grounds that:

No evidence except the statement of Sartaj Singh, which has already been investigated into by the concerned DSPs was relied upon by the trial Court to summon, which was not sufficient for exercising power under Section 319 Cr. P.C. (para 8)

When the private respondent filed two separate petitions against the order of the trial court.

Learned Senior Advocate Shri R. Basant on the behalf of the appellant side has contended that (i) the order of the learned trial court in-regard with the application under section 319 CrPC was based on evidence on record, both documentary and oral and that's why the High Court is not justified and setting aside the order summoning the private respondents (ii) the High Court has acted beyond the scope and ambit of Section 319 CrPC (iii) the names of the private respondents were specifically mentioned in the FIR and even disclosed in the statement of appellant during evidence and therefore, the trial court was justified in summoning the private respondents while exercising his powers under Section 319 CrPC (iv) the reasons assigned by the High Court behind quashing this order are not sustainable in law and on facts (v) the statement of only one person is no ground not to summon the additional accused in exercise of powers under Section 319 CrPC (vi) As no stay was imposed on the revision petition of the respondent, the learned trial court proceeded further with the trail and 18 witnesses came to be examined and the trail was at the near end and therefore, the High Court is not justified in quashing and set aside the well-reasoned order passed by the learned trial court.

Learned AAG Haryana Shri Anil Kaushik also supported the learned counsel's contentions appearing on behalf of the appellant.

But, learned counsel appearing on behalf of the private respondents has opposed the present appeals and contented that (i) the power of Section 319 CrPC can only be exercised in extraordinary cases. Therefore, it is not to be exercised because the Trial Court believes that some other persons may also be guilty of committing that offense (ii) in the chief examination. The appellant has reiterated what was stated in FIR. No evidence was found against the private respondents in the report submitted by the DSP, Assandh. Hence, no new evidence was placed on record. Therefore, it does not satisfy the test for adjudication for an application under Section 319 CrPC (iii) FIR No. 477 was registered against the appellant and his accomplices, belatedly a cross-case in the same FIR was got registered by the police on the statement of the appellant in which he made a concocted story of firing bullets in self-defense (iv) only evidence against the private respondents is appellant. As per the original FIR, he himself is accused of killing Amarjeet Singh and grievously hurting Manjeet Singh. Hence, the High Court's judgment completely justified (v) the deposition of P.W.7 Bhupinder Singh in the cross-examination does not support the appellant. Therefore, it appears that the appellant has concocted the entire story in his testimony.

After hearing the parties at length, the question arises in front of the Court are:

(i) What is the stage at which power under Section 319 CrPC can be exercised?

(ii) Whether the word “evidence” used in Section 319(1) CrPC could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination­in­chief of the witness concerned?

(iii) Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?”

To reach a conclusion, the court referred to certain case laws, Hardeep Singh v. State of Punjab, Sukhpal Singh Khaira v. State of Punjab, S. Mohammed Ispahani v. Yogendra Chandak, Rajesh v. State of Haryana, and various provision of IPC and CrPC. The Court noted that:

- The court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.

- Power under Section 319 CrPC can be exercised at the stage of completion of examination­ in ­chief, and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence. (Para 92 of Hardeep Singh Judgment)

- The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. (Para 84 of Hardeep Singh Judgment)

- Though only a prima facie case is to be established from the evidence led before the court, not 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 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” is clear from the words “for which such person could be tried together with the accused”. The words used are not “for which such 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. (Para 106 of Hardeep Singh Judgment)

- Power under Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC. (Para 116 of Hardeep Singh Judgment)

Concluding, the court held:

The Trial Court was justified in summoning the private respondents based on the appellant's statement, as observed in numerous cases above. The accused can be summoned even based on examination-in-chief. If the court satisfies a prima facie case against the proposed, it may exercise its power under Section 319 CrPC to call the accused for trial proceedings. And the reasons assigned by the High Court are unsustainable in law and on facts; therefore, the impugned judgment and order passed by the High Court dated 28.08.2020 is hereby quashed and set aside.

Subsequently, allowed the appeals.

To view/download judgment: Sartaj Singh vs. State of Haryana & Anr. Etc.

Swadheen Singh