BRIJENDRA SINGH & ORS.versusSTATE OF RAJASTHAN

                            [2017] 3 S.C.R. 374


A                      BRIJENDRA SINGH & ORS ..
                                     v.
                         STATE OF RAJASTHAN
                     (Criminal Appeal No. 763 of2017)
B                             APRIL 27, 2017
              [A. K. SIKRI AND ASHOK BHUSHAN, JJ.)
            Code of Criminal Procedure, 1973 - s.319 - Power of court
     (o summon accused not arraigned as accused- Exercise of - When
C - Held: Prima facie opinion which is to be formed requires stronger
     and cogent evidence than mere probability of his complicity - Degree
     of satisfaction is to be more than the degree which is warranted at
     the time offraming of the charges against others in respect of whom
     chargesheet was filed - Power is not to be exercised in a casual or -.
    a cavalier manner - On facts, trial court acted in a casual and
D cavalier manner in passing the summoning order against the
    appellants - Documentary and other evidence collected during the
     investigation, showed that appellants plea of alibi was correct -
    Evidence recorded during trial was nothing more than the statements
     which was already there uls. 161 Cr.P.C. recorded at the time of
E investigation of the case - Trial court was duty bound to see while
  · forming prima facie opinion and to see as to whether 'much stronger
    evidence than mere possibility of the appellants' complicity came
    on record - There was no satisfaction of this nature - High Court
    too ignored the said material- Thus, the order of summoning the .
    appellants u/s. 319 set aside.
F
            Allowing the appeal, the Court
        HELD: 1.1 The powers of the court to proceed und-er
  Section 319 Cr.P.C. even against those persons who are not
  ~rraigned as accused, cannot be disputed. This provision is meant
  to achieve the objective that real culprit should not get away - '
G _unpunished. Section 3.19 Cr.P.C., which is an enabling provision
  empowering the Court to take· appropriate steps for proceeding
  against any perso.n, not being an accused, can be exercised at
  any time after the charge-sheet is filed and before the
  pronouncement.of the judgment, except during (he stage of.
H
                                    374.
        BRJJENDRA SINGH & ORS. v. STATE OF RAJASTHAN                      375

•
    Section 207/208 Cr.P.C., the committal etc., which is only a pre- A
    trial stage intended to put the process into motion. [Paras 9,.
    10)(381-H; 383-B-C]
            1.2 The principles enunciated in Hardeep Singh 's case are
     recapitulated. The power under Section 319 Cr.P.C. can be
     exercised by the trial court, once it finds that there is some B
     'evidence' against such a person on the basis of which evidence it
     can be gathered that he appears to be guilty of offence. The
     'evidence' means the material that is brought before the court
     during trial. Insofar as the material/evidence collected by the IO
     at the stage of inquiry is concerned, it can be utilised for
     corroboration and to support the evidence recorded by the court C
     to invoke the power under Section 319. No doubt, such eVidence
     that has surfaced in examination-in-chief, without cross-
     examination of witnesses, can also be taken into consideration.
      However, since it is a discretionary power given to the court
      under Section 319 Cr.P.C. and is also an extram;dinary one, same D
      has to be exercised sparingly and only in those cases where the
      circumstances of the case so warrants. The degree 'Of satisfaction
      is more than the degree which is warranted at the time of framing
      of the charges against others in respect of whom chargesheet
      was filed. Only where strong and cogent evidence occurs against
      a person from the evidence led before the court that such power E
    · should be exercised. It is not to be exercised in a casual or a
      cavalier manner. The prima facie opinion which is to be formed
      requires stronger evidence than mere probability of his complicity.
       [Para 13)(385-B-G]                        ·
            1.3 When the said principles with their application are F
     translated to the facts of this case, an impression is gathered that
     the trial court acted in a casual and cavalier manner in passing
     the summoning order against the appeUaitts: The police
     investigation revealed that the statements of these persons
     regarding the presence of the' appellants at the place of occurrence·· G :
     was doubtful and did not inspire confidence, in view· of the
      documentary and other evidence collected during the
      investigation, which depicted another story and clinchingly
      showed that appellants plea ·of alibi was correct. This record was -
    . before the trial court. Notwithstanding the same, the trial court ·
                   ·                          ·                             If
376            SUPREME COURT REPORTS                       [2017] 3 S.C.R.


A went by the deposition of complainant and some other persons in
  their examination-in-chief, with no other material to support their
  so-called verbal/ocular version. Thus, the 'evidence' recorded
  during trial was nothing more than the statements which was
  already there u/s.161 Cr.P._C. recorded at the time of investigation
  of the case. No doubt, the trial court would be competent io
B
  exercise its power even on the basis, of such statements recorded
  before it in examination-in-chief. However, in a case like the
  instant where plethora of evidence was collected by the IO during
  investigation which suggested otherwise, the trial court was at
  least duty bound to look into the same while forming prima facie
C opinion and to see as to whether 'much stronger evidence than
  mere possibility of their (i.e. appellants) complicity has come on
  record. There is no satisfaction of this nature. Even it is presumed
  that the trial court was not apprised of the same at the time when
  it passed the order, the High Court too blissfully ignored the
D said material. Except reproducing the discussion contained in
  the order of the trial court and expressing agreement therewith,
  nothing more was done. Such orders cannot stand judicial
  scrutiny. The order of summoning the appellants under Section
  319 Cr.P.C. is set aside. [Paras 14, 15 and 16](385-F; 386-A-Fl
            Hardeep Singh v. State of Punjab & Ors. (2014) 2 SCR
E           1 : (2014) 3 sec 92 - relied on.
                             Case Law Reference
            [2014) 2 SCR 1           relied on               Paras 14, 15
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F     No. 763 of2017.
            From the Judgment and Order dated 11.01.2016 by the High Court
      of Judicature for Rajasthan at Jaipur Bench, Jaipur in S. B. Criminal
      RevisionPetitionNo.1355/2015.
          Sushi! Kumar Jain, Sr. Adv., Abhinav Gupta, Ms. Priyal Jain,
ff- Ms. Pratibha Jain, Advs. for the Appellants.
            Ram Naresh Yadav, Milind Kumar, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            A. K. SIKRI, J. 1. The appellants herein, three in number, have
      been summoned by the Court of Special Judge, SC/ST Act, which is in
H
    BRIJENDRA SINGH & ORS. v. STATE OF RAJASTHAN                            377
                   [A. K. SlKRI, J.]

seisin of the trial in respect of FIR No. 53 of2000, wherein charges for A
offences under Sections 147, 148, 149, 323,448, 302/149 of Indian Penal
Code (IPC) as well as under Sections 3 and 3(2)(V) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
(SC/ST Act) have been framed. The appellants were not arraigned as
accused in the chargesheet. The charges were framed against those B
who were accused in the chargesheet and prosecution evidence is being
recorded. The appellants are summoned as additional accused persons
under Section 319 of Code of Criminal Procedure, 1973 (Cr.P.C.) to
face the trial along with other accused persons. The trial court has
passed the Order dated 06.10.2015 on an application filed by the
complajnant Harkesh Meena under Section 319 of Cr.P.C. This order C
was challenged by the appellants before the High Court. However, the
 High Court has dismissed the revision petition preferred by the appellants
 on 11.01.2016.
      2. Factual details pertaining to the FIR and registration of case
against other persons as well as filing of the application by the complainant D
under Section 319 of Cr.P.C. and the orders therein are as under:
        On the basis of a written complaint, FIR No. 53 of 2000 was
registeredat 10:30pmon29.04.2000underSections 147, 148, 149,323,
448, 302/149 IPC as well as under Sections 3 and 3(2)(V) of SC/ST
Act. In this complaint, the complainant had stated that at about 3:00 pm E
on 29.04.2000 when he was at his Khejra well, making his cattle drink
water, certain persons including appellants who belong to his village came
there armed with axe, lathi sabbal (iron rod) and knives in their hands,
with intention to kill the complainant. On seeing them, the complainant
ran from that place and came to his uncle's (Nathu) house and cried
loudly. His uncle was sleeping in front of the house and Lakhpat was F
sleeping under Neem tree. As soon as he came into the thatch, Pratap
Singh inflicted lathi blow on him from behind which hit on his back. The
complainant ran into the house of Bharatlal. Brijendra Singh inflicted
sabbal at the head of his uncle Nathu who was sleeping at that time and ,
Pratap hit his uncle with axe above the ear. Thereafter, all these accused G
persons started inflicting lathi sticks. Lakhpat tried to run in order to
rescue himself. These persons gave beating to him as well, with lathi
 sticks. When the complainant's elder brother went to rescue them, these
 accused persons gave lathi sticks blow to him as well. In the meantime,
 their wives, wives of their sons had also come. Rishi, son of Ramu
                                                                             H
378             SUPREME COURT REPORTS                          [2017] 3 S.C.R.


A Brahmin ofTalabka and Bhanu, nephew of Jagdish Singh of Jaipur were
  also along with them. Because of the beating by the accused persons,
  complainant's uncle Nathu died on the spot. Thereafter, accused persons
  fled away. The incident was witnessed by a number of villagers. In the
  FIR, the appellants were also named as accused persons.
B            3. FIR was registered and the matter was investigated by the
      Investigating Officer (IO)." During the investigation, the appellants were
      also interrogated. They had stated that they are residing at Jaipur and at
      the time of incident, they were in Jaipur. Thus, plea of alibi was taken
      by these persons. Appellant No.1 and 2 are in police service and at
C     relevant time they were posted at Jaipur. Appellant No.2 Jagdish has
      lost his leg while on traffic police duty. Appellant No.3 Bhanu is the
      appellant's sister's son and claimed that he was also at Jaipur. The
      police after investigation and considering the evidence with regard to
      the alibi of the appellants Brijendra, Jagdish (who lost his leg while
      discharging traffic police duty) and Bhanu, did not find any sufficient
D     and reliable evidence against the appellants and, therefore, did not file
      any challan against them and kept the investigation pending under Section
      178(3) Cr.P.C. When the trial court by its Order dated 06.09.2000,
      without any challan being submitted by the police, directed cognizance
                                                     \
      of the matter, the appellants filed the S.B. Cri1,11inal Revision No. 505/
      2000 before the High Court and the High Court vide its Order dated
E     16.04.2009 allowed the Revision and set aside the Order dated 06.09.2000
      of the trial court. The High Court, however, made it clear that the said
 .J   Order dated 16.04.2009 shall be without prejudice to the powers of the
      Sessions Court to add any person in the array of accused under Section
      319 Cr.P.C.
F          4. During the period when S.B. Criminal Revision No. 505 of
  · 2000 was pending before the High Court, the police came to the conclusion
    that the appellants were not involved in the incident. The police after
    investigation, prepared the Final Report of closure of the case against
    the appellants which was approved by the SP. In this manner, after
G completing the investigation, the police filed the Challan only against
    other accused persons, namely, Bhanwar Singh, Pratap Singh and
    Shambhu Singh.
         5. Though, at the time of filing of the Challan, the police kept
  investigation pending, subsequently it came to the conclusion that the
H appellants were not involved and the final report of closure of the case
    BRIJENDRA SINGH & ORS. v. STATE OF RAJASTHAN                                379
                   [A. K. SIKRI, J.]

against the appellants was filed. The trial court framed charges against A
the aforesaid three accused persons and the trial proceeded, though it
has been delayed abnormally as more than 15 years have been passed.
Be that as it may, the prosecution examined 23 witnesses including PW-
1 Bharat Lal, PW"2 Kamla, PW-3 Lakhpat, PW-4 Harkesh and PW-5
Amritlal sometime in.the year 2009. On 26.03.2014 i.e. after five years
                                                                         B
of examination of the aforesaid witnesses, complainant filed application
under Section 319 ofCr.P.C. Itis this application which has been allowed
by the Special Judge and the said order has been affirmed by the High
Court.
       6. Mr. Sushi! Kumar Jain, learned senior counsel appearing for
the appellant, submitted that the appellant had obtained information from C
the authorities under the Right to Information Act about the status of the
investigation that was carried out by the Investigating Officet culminating
into filing of the final report. He drew our attention to the letter dated
 19.02.2016 that was received by the appellant in response to his query
underthe Right to Information Act wherein the information was supplied D
to the appellant along with requisite documents that were collected during
the investigation. The details of these documents are as under:
      {i) Duty Certificate No. 2407 dated 04.05.2000 signed by the
         Assistant Inspector General of Police (Training), Jaipur,
         Rajasthan, certifying that Brijendra Singh, Junior Driver, was         E
         present on duty on 29.04.2000.
      (ii) Medical Certificate No. 13365 dated 28.04.2000 issued by the
          Medical Officer, Primary Medical Centre, Moti Kotla, Jaipur,
          certifying that Jagdish Singh was suffering from ..... (illegible)
          disease on 24.04.2000 and was advised five days rest.                  F
       (iii) Letter dated 17.02.2002 signed by the Police Superintendent,
           District Karauli, addressed to the Circle Officer, Circle -
           Kailadevi, giving the sanction under Section 173(9) of the Cr.P.C.
           to end investigation in Cr.No. 53/2K, Police Station, Sapotra,
           and submit the report in the Court.                                  G
       (iv) Statement of Rajendra Prasad, Deputy Inspector General of
          Police, Police Head Office, Jaipur, recorded under Section 161
          Cr.P.C. on 07.12.2000, wherein he stated that on 29.04.2000,
          he was working on the post of Assistant Inspector General of ·
          Police (Training), Jaipur, Rajasthan and Brijendfa S.ingh; H
380      SUPREME COURT REPORTS                          [2017] 3 S.C.R.


A       Constable, was his driver who was present on duty on that day.
        Log book of the vehicle was also produced to show the presence
        ofBrijendra Singh.
      (v)Statement recorded under Section 161 Cr.P.C. ofSmt. Shashi
         Rajawat, Medical Officer Jn-charge, Government Ayurvedic
B        Hospital, Nahati Ka Naka, wherein she had stated that as per
         the record one Bhanu Pratap Singh had come to the hospital on
         26.4.2000, suffering from sickness as he was having loose
         motions and was vomiting as well. He was treated by the said
         Medical Officer and was also prescribed medicines on a slip
         written by her. She verified the prescription.
c
      (vi)Statement of Mr. Naveel Kasliwal of Jain Medical Store,
         Opposite Government Hospital, Moti Katia, Jaipur, recorded
         under Section 161 Cr.P.C., wherein stated that the said Medical
         Store was owned by him. He verified that the medical slip of
         the Government Hospital had been written by Sudhir Sharma
D        on 29.04.2000 and based thereupon he had given the medicines.
      (vii) Statement ofSudhir Sharma, Medical Officer, Government
         Hospital, Moti Katia, Jaipur, recorded under Section 161 Cr.P.C.,
         wherein he stated that from 22.02.2000 to 04.05.2000, his duty
         was at Vidhan Sabha from 3.00 p.m. to 7.00 p.m. and in the
E        morning from 8.00 a.m. till 12.00 noon at the Government
         Hospital. He further stated that on 29.04.2000, a patient named
         Jagdish Singh, who was suffering from malaria fever, had come
         and was prescribed medicines by him on the slip, which are
         medicines of the Government Hospital. He verified that the
F        slip was written by him, containing the prescription. Three
         days medicines were given to the patient. On 02.05.2000, again
         two days medicines for the patient were prescribed on the said
         slip.
      (viii)Statement ofShri Mahendra Singh Tanwar, who was working
G        as a driver at the Government District Mahila Hospital,
         Sanganeri Gate, Jaipur, r_ecorded under Section 161 Cr.P.C.
         He stated that son of his elder brother, Bhanu Pratap Singh,
         who was a student, was unwell fo; 15 to 20 days in the month
         of April, 2000. For this purpose, he was given treatment in
         private hospital but no improvement was found and, therefore,
H
    BRIJENDRA SINGH & ORS. v. STATE OF RAJASTHAN                             381
                   [A. K. SIKRJ, J.]

         he was taken to Ayurvedic Hospital on 26.04.2000 for A
         treatment. He was suffering from loose motions and cough
         for which he was prescribed three days medicines and the
         medicines were repeated again on 29.04.2000 for further three
         days.
        7. Mr. Jain, learned senior counsel, submitted that it is on the basis B
of the aforesaid documents and statements of various persons, recorded
during investigation, the Investigating Officer was convinced that these
three appellants were in Jaipur at the time of the incident and, therefore,
could not have been present at the place of incident, i.e. Karauli, which
is at a distance of 176 kms. approximately, from Jaipur. Submission of
Mr. Jain was that merely on the basis of the statement of the complainant, C
which was there before the Investigating Officer as well at the time of
investigation, the Special Judge could not have allowed the application
under Section 319 Cr.P.C. as no further or new material was produced
before the Court which could indicate the involvement of the appellants.
Learned counsel submitted that for exercising the powers under Section D
319 Cr.P.C., which was discretionary and extraordinary in nature, the
 trial court should have convinced itself that there is strong and cogent
 evidence indicating that the appellants may be guilty of committing the
 offence. This condition, according to him, was not satisfied. He further
 submitted that the High Court also did not examine the matter from the
 aforesaid perspective and merely went by the fact that the witnesses E
 have deposed about the involvement of the appellants in their deposition
 before the Court.
       8. Learned counsel for the respondents, on the other hand, argued
that the trial court has rightly exercised its power on the basis of
depositions of the witnesses before it, which were in the form of F
'evidence' to the effect that the appellants may have committed the
offence in question. It was argued that provisions of Section 319 Cr.P.C.
were not meant for this purpose only and the exercise of power by the
trial court cannot be treated as unwarranted. It was so observed by the
High Court also while dismissing the revision petition and observing that G
no illegality or perversity was found in the orders of the trial court.
       9. Powers of the Court to proceed under Section 319 Cr.P.C.
 even against those persons who are not arraigned as accused, cannot be
 disputed. This provision is meant to achieve the objective that real culprit
 should not get away unpunished. A Constitution Bench of this Court in H
382          SUPREME COURT REPORTS                            [2017] 3 S.C.R.


A Hardeep Singh v. State ofPunjab & Ors., (2014) 3 SCC 92, explained
  the aforesaid purpose behind this provision in the following manner:
           "8. The· constitutional mandate under Articles 20 and 21 of the
         · Constitution oflndia provides a protective umbrella for the smooth.
           administration ofjustice making adequate provisions to ensure a
B          fair and efficacious trial so that the accused does not get prejudiced
           after the law has been put into motion to try him for the offence
           but at the same time also gives equal protection to victims and to
           society at large to ensure that the guilty does not get away from
           the clutches of law. For the empowerment of the courts to ensure
           that the criminal administration ofjustice works properly, the law
c         was appropriately codified and modified by the legislature under
           CrPC indicating as to how the courts should proceed in order to
          ultimately find out the truth so that an innocent does not get
           punished but at the same time, the guilty are brought to book under
           the law. It is these ideals as enshrined under the Constitution and
D          our laws that have led to several decisions, whereby inncvating
           methods and progressive tools have been forged to find C'Ut the
           real truth and to ensure that the guilty does not go unpuni&hed.
                    xx                xx                xx
         12. Section 319 CrPC springs out of the doctrine judex damnatur
E        cum nocens absolvitur (Judge is condemned when guilty is
         acquitted) and this doctrine must be used as a beacon light while
         explaining the ambit and the spirit underlying the enactment of
         Section 319 CrPC.
         13. It is the duty of the court to do justice by punishing the real
F        c.ulprit. Where the investigating agency for any reason does not
         array one of the real culprits as an accused, the court is not
         powerless in calling the said accused to face trial. The question
         remains under what circumstances and at what stage should the
         court exercise its power as contemplated in Section 319 CrPC?
G                   xx                xx                xx
         19. The court is the sole repository of justice and a duty is cast
         upon it to uphold the rule of law and, therefore, it will be
         inappropriate to deny the existence of such powers with the courts
         in our criminal justice system where it is not uncommon that the
H
    BRIJENDRA SINGH & ORS. v. STATE OF RAJASTHAN                            383
                   [A. K. SIKRI, J.]

      real accused, at times, get away by manipulating the investigating A
      and/or the prosecuting agency. The desire to avoid trial is so strong
      that an accused makes efforts at times to get himself absolved
      even at the stage of investigation or .inquiry even though he may ..
      be connected with the commission of the offence."
        10. It also goes without saying that Section 319 Cr.P.C., which is B
an enabling provision empowering the Court to take appropriate steps
for proceeding against any person, not being an accused, can be exercised
at any time after the charge-sheet is filed and before the pronouncement
of the judgment, except during the stage of Section 207 /208 Cr.P.C., the
committal etc., which is only a pre-trial stage intended to put the process
into motion.                                                                C
        11. In Hardeep Singh 's case, the Constitution Bench has also
settled the controversy on the issue as to whether the word 'ev~dence'
used in Section 319(1) Cr.P.C. has been used in a comprehensive sense
and indicates the evidence collected during investigation or the word
 'evidence' is limited to the evidence recorded during trial. It is held that D
it is that material, after cognizance is taken by the Court, that is available
to it while making an inquiry into or trying an offence, which the court
can utilise or take into consideration for supporting reasons to summon
any person on the basis of evidence adduced before the Court. The
word 'evidence ' has to be understood in its wider sense, both at the E
stage of trial and even at the stage of inquiry. It means that the power to
proceed against any person after summoning him can be exercised on
the basis of any such material as brought forth before it. At the same
time, this Court cautioned that the duty and obligation of the Court
becomes more onerous to invoke such powers consciously on such
material after evidence has been led during trial. The Court also clarified F
that 'evidence' under Section 319 Cr.P.C. could even be examination-
in-chief and the Court is not required to wait till such evidence is tested
on cross-examination, as 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 trial in the offence.                      G
       12. The moot question, however, is the degree of satisfaction that
is required for invoking the powers under Section 319 Cr.P.C. and the
related question is as to in what situationsthis power should be exercised
in respect of a person named in the FIR but not charge-sheeted._ These
two aspects were also specifically dealt with by the Constitution Bench H
384         SUPREME COURT REPORTS                            [2017] 3 S.C.R.


A in Hardeep Singh~ case and answered in the following manner:
          "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 re~uired is much stricter.
B       · A two-Judge Bench of this Court in Vikas v. State of
          Rajastltan [(2014) 3 SCC 321] , 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
c         be tried together with the already arraigned accused persons.
                    xx                xx                xx
         105. Power under Section 319 CrPC is a discretionary and an
         extraordinary power. It is to be exercised sparingly and only in
D        those cases where the circumstances of the case so warrant. It is
         not to be exercised because the Magistrate or the SessionL Judge
         is of the opinion that some other person may also be guilty of
         committing that offence. Only where strong and cogent evidence
         occurs against a person from the evidence led before the court
         that such power should be exercised and not in a casual and cavalier
 E       manner.
          I 06. Thus, we hold that 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 reguires much stronger
          evidence than mere probability of his complicity. The test that has
 F        to be aruilied 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 3 I9 CrPC. In Section
 G        3 I 9 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 accuser!'. The words used are not "for which
          such person could be convicted". There is, therefore, no scope
          for the comi acting under Section 3 I9 CrPC to form any opinion
 H
     BRIJENDRA SINGH & ORS. v. STATE OF RAJASTHAN                           385
                    [A. K. SIKRI, J.]

       as to the guilt of the accused.                                      A
                                                  (emphasis supplied)"
      13. In order to answer the question, some of the principles
enunciated in H4rdeep Singh 's case m11y be recapitulated:
         Power under Section 319 Cr.P.C. can be exercised by the trial B
court at any stage during the trial, i.e., before the conclusion of trial, to
summon any person as an accused and face the trial in the ongoing
case, once the trial court finds that there is some 'evidence' against
such a person on the basis of which evidence it can be gathered that he
appears to be guilty of offence. The' evidence' herein means the material
that is brought before the Court during trial. Insofar as the material/ c
evidence collected by the IO at the stage of inquiry is concerned, it can
be utilised for corroboration and to support the evidence recorded by the
Court to invoke the power under Section 319 Cr.P.C. No doubt, such
evidence that has surfaced in examination-in-chief, without cross-
examination of witnesses, can also be taken into consideration. However, D
since it is a discretionary power given to the Court under Section 319
Cr.P.C. and is also an extraordinary one, same has to be exercised
sparingly and only in those cases where the circumstances of the case
so warrants. The degree of satisfaction is more than the degree which
is warranted at the time of framing of the charges against others in
respect of whom chargesheet was filed. Only where strong and cogent E
evidence occurs against a person from the evidence led before the Court
 that such power should be exercised. It is not to be exercised in a
casual or a cavalier manner. The prima facie opinion which is to be
 formed requires stronger evidence than mere probability of his complicity.
         14. When we translate the aforesaid principles with their application F
  to the facts of this case, we gather an impression that the trial court
. acted in a casual and cavalier manner in passing the summoning order
  against the appellants. The appellants were named in the FIR.
  Investigation was carried out by the police. On the basis of material
  collected during investigation, which has been referred to by us above, G
  the IO found that these appellants were in Jaipur city when the incident
  took place in Kanaur, at a distance of 175 kms. The complainant and
  others who supported the version in the FIR regarding alleged presence
  of the appellants at the place ofincident natl also made statements under
  Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the
                                                                              H
386                SUPREME COURT REPORTS                   (2017] 3 S.C.R.


A police investigation revealed that the statements of these persons
  regarding the presence of the appellants at the place of occurrence was
  doubtful and did not inspire confidence, in view of the documentary and
  other evidence collected during the investigation, which depicted another
  story and clinchingly showed that appellants plea of alibi was correct.
B        15. This record was before the trial court. Notwithstanding the
  same, the trial court went by the deposition of complainant and some
  other persons in their examination-in-chief, with no other material to
  support their so-called verbal/ocular version. Thus, the 'evidence'
  recorded during trial was nothing more than the statements which was
  already there under Section 161 Cr.P.C. recorded at the time of
C investigation of the case. No doubt, the trial court would be competent
  to exercise its power even on the basis of such statements recorded
  before it in examination-in-chief. However, in a case like the present
  where plethora of evidence was collected by the IO during investigation
  which suggested otherwise, the trial court was at least duty bound to
D look into the same while forming prima facie opinion and to see as to
  whether 'much stronger evidence than mere possibility of their (i.e.
  appellants) complicity has come on record. There is no satisfaction of
  this nature. Even if we presume that the trial court was not apprised of
  the same at the time when it passed the order (as the appellants were
  not on the scene at that time), what is more troubling is that even when
E this material on record was specifically brought to the notice of the High
  Court in the Revision Petition filed by the appellants, the High Court too
  blissfully ignored the said material. Except reproducing the discussion
  contained in the order of the trial court and expressing agreement
  therewith, nothing more has been done. Such orders cannot stand judicial
F scrutiny.
            16. As a consequence, this appeal is allowed setting aside the
      order of summoning the appellants under Section 319 Cr.P. C.


 -    Nidhi Jain                                               Appeal allowed.