Supreme Court of India
KAILASHversusSTATE OF RAJASTHAN & ANR.
- Citation
- 2008 INSC 283
- Decided
- 3 March 2008
- Disposal
- Case Allowed
- Bench
- S B SINHA
Holding
The Supreme Court held that the trial court correctly exercised its discretion under Section 319 CrPC and that the High Court erred in directing a rehearing without independently satisfying the evidential test, thus setting aside the High Court order.
Summary
An FIR was lodged against several persons, including the appellant Kailash, for offences under various IPC sections, but Kailash was not named in the charge‑sheet. During trial the complainant moved an application under Section 319 of the Code of Criminal Procedure seeking to join Kailash as an accused. The trial court rejected the application, finding no material in the FIR or evidence that Kailash had an axe or caused the injuries, and noting that witnesses had altered their testimony at trial. The complainant appealed to the High Court, which, relying on a reported decision, directed the trial court to rehear the Section 319 application. The Supreme Court held that the trial court had properly exercised its discretion, that the High Court failed to independently examine whether the evidence satisfied the "it appears from the evidence" test, and therefore set aside the High Court order and restored the trial court's decision. The appeal was allowed.
Issues considered
- Whether the discretion under Section 319 CrPC to join a non‑accused person as an accused can be exercised when the evidence merely mentions the person without satisfying the 'it appears from the evidence' requirement.
- Whether the High Court was justified in directing a rehearing of the Section 319 application without independently assessing the sufficiency of the evidence.
- What standard of evidence is required for a court to conclude that a person 'has committed any offence' under Section 319 CrPC.
Legislation cited
Subjects
Section 319 CrPCdiscretionary poweraddition of accusedevidence assessmentcriminal procedurerevision jurisdictionappeal
Judgment
[2008] 3 S.C.R. 702
A KAI LASH
v.
STATE OF RAJASTHAN & ANR.
(Criminal Appeal No. 416 of 2008)
MARCH 3, 2008
8
(S.B. SINHA AND V.S. SIRPURKAR, JJ.)
..
Code of Criminal Procedure, 1973:
•
s.319 - Application to proceed against 'other person' as
c an accused - Rejected by trial court - Revision before High
Court - Meanwhile five of accused again$t whom trial was
going on, acquitted of all charges ....; Remaining three found
guilty only uls 323 !PC and given benefit of s.4 of Parole Act-
High Court directing trial court to re-hear application uls 319-
D Held: Trial court had properly considered the evidence and
concluded that there was no possibility of convicting the said
'other person' - High Court merely relied on reported decision
- It should have examined independently as to whether there
was evidence not only to connect said 'other person' with the
E crime but it was sufficient to satisfy the requirement, "it appears
that such person has committed. the crime" - No such effort
was made by High Court - Judgment of High Court set aside.
Words and Phrases:
••
F Expressions "it appears from the evidence", "any person",
"has committed any offence" - Occurring in s.319 Cr.PC. -
Connotation of
An FIR was lodged against several persons including
the appellant for offences punishable u/ss.147, 148, 341,
G 452, 24/149, 323, 324/149 and 308/149 IPC. However, the
appellant was not arraigned in the charge-sheet. During
the course of the trial, the complainant filed an application ,~
u/s 319 Cr.P.C. stating that in view of the evidence and the
material on record, the appellant was required to be joined
H 702
KAI LASH v. STATE OF RAJASTHAN & ANR. 703
>•
as an accused in the case. The trial court rejected the A
application holding that there was nothing in the FIR or in
the evidence on record to connect the appellant with the
crime and t~at the witnesses made improvement in their
evidence. The complainant filed a revision petition before
the H.igh Court. During the pendency of the revision, the B
trial court acquitted five of the accused of all the charges.
¥ It, however, found the remaining three accused guilty u/s
• 323 IPC but gave them the benefit of s.4 of the Parole Act.
The instant appeal: was filed against the order of the High
·1
Court directing the trial court to re-hear 'the application
filed under s.319 IPC.
c
Allowing the appeal, the Court
HELD: 1.1 Section 319 Cr.P.C. indicates that during
the trial it has to appear from the evidence that a person not
being an accused has committed any offence for which D
such person- could be tried together with the accused who
are also being tried. The key words in the section are "it
appears from the evidence" ... "any person" ... "has
committed any offence". It is not, therefore, that merely
because some witnesses have mentioned the name of E
such person or that there is some material against that
person, the discretion under Section 319 Cr.P.C. would
be used by the court. This is apart from the fact that the
• • person against whom such discretion is used, should be
one who could be tried together with the a~cused against F
whom the trial is already going on. [Para 9] [708-F-H;
709-A]
1.2 This CouH: has, time and again, emphasized that
the discretion under Section 319 Cr.P.C. has to be
exercised very sp~ringly and with caution and only when G
the .court is satisfied that some offence has been
~~
committed by such person. This power has to be
essentially exercised only on the basis of the evidence. It
could, therefore, be used only when it appears from the
evidence on record that the said person has committed H
704 SUPREME COURT REPORTS (2008] 3 S.C.R.
•
•
A an offence. The words "it appears" are not to be read
lightly. In that the court would have to be circumspect
while exercising this power and would have to apply the
caution which the language of the section demands.
[Para 9) {709-A, B, CJ
B Mohd. Shafi v. Mohd. Rafiq & Anr. JT 2007 (5) SC 562;
Municipal Corporation of Delhi v. Ram Krishan Rohtagi & '" ~
Ors.(1983) 1 SCC 1; Krishnappa v. State of Karnataka (2004)
7 SCC 792 and Michael Machado v. Central Bureau of
Investigation (2000) 3 SCC 262 - relied on.
c 1.3 In the instant case, the trial court properly
considered the evidence of injured witnesses and found
that none of them had stated that the appellant ha,d an
axe in his hand and that he caused any injury to PW 1
with the axe. The court found that the witnesses had
D
improved their version only at the stage of trial. The trial
court recorded a finding that there was no possibility of
convicting the appellant on the basis of the evidence led
before it. The High Court has not made any such effort.
Basically, the High Court merely relied on the reported
E decision*. The High Court should have applied itself
independently to the question as to whether there was
any material in the evidence not only to connect the
appellant but whether it was sufficient to justify the .. ~
words "it appears from the evidence that any person ' ...
F has committed any offence". No such effort has been
made in the impugned judgment. The judgment of the
High Court is erroneous and is, therefore, set aside.
[Para 12-13) [710-G; 711-A, C, D, F, G; 712-A, B]
*Shashi Kant Singh v. Tarkeshwar Singh & Anr. JT 2002
G
(4) SC 386 - distinguished.
CRIMINAL APPELLATE JURISDICTION : Criminal ,,.
Appeal No. 416 of 2008
From the final Judgment and Order dated 14.11.2005 of
H
KAILASH v. STATE OF RAJASTHAN & ANR. 705
[V.S. SIRPURKAR, J.]
f
the High Court of Judicature at Rajasthan in S.S. Criminal A
Revision Petition No. 416 of 2004.
Nilofar Qureshi, Vipin Kumar, Mumtaz Ahmad and
Shankar Divate for the Appellant.
Milind Kumar, Aruneshwar Gupta and Pratibha Jain for the B
Respondents.
"." The Judgment of the Court was delivered by
"
V.S. SIRPURKAR, J. 1. Leave granted.
2. Aggrieved by the order passed by the High Court in c
Criminal Revision, the accused comes up before this Court by
w9y of this appeal.
3. By its impugned order, the High Court allowed the
Revision and directed the Trial Court to re-hear the application D
filed under Section 319 of the Code of Criminal Procedure by
applying its judicious mind and to pass the appropriate order
according to law.
4. The following facts will be necessary for our purpose.
On 12.11.2003 a written report came to be made at Police E
Stati.on Neem-ka-Thana, District Sikar, Rajasthan by one
Rohitas Kumar, contending therein that while he was having his
dinner at his home, he was attacked by Ram Pr~sad Kailash,
-...." •
~
.... Pawan Kumar, Krishan Kumar, Chameli .and Manju. It was
asserted therein that Chemely and Manju also assaulted his F
wife Maya Devi. On the basis of this report offences were
registered under Sections 147, 148, 341, 452, 24/149, 323,
324/149 and 308/149 IPC. The investigation proceeded and a
charge-sheet came to be filed. However, in that charge-sheet
the present appellant Kailash was not arrayed as an accused. G
During the course of trial when the prosecution witnesses were
examined, the complainant moved an application under Section
'-' r f 319 Cr.P.C. However, that application came to be rejected. In
that application, the complainant alleged that the present
appellant Kailash was bound to be joined as an accused as it
H
706 SUPREME COURT REPORTS ' (2008] 3 S.C.R.
A was clear from the records and the evidence that there was
enough material against him.
5. This application was opposed by the other accused
persons on the ground that there was no material against Kai lash
and, therefore, there was no basis for taking cognizance on the
8 basis of the application made by the complainant. The State
supported the application contending that the witnesses had
stated that Kailash had held an axe in his hand that he had hit
on the hand and head of Rohitas. The injury on the head of
Rohitas was proved from the medical report and that Rohitas,
C Ram Singh Ramavtar and Maya Devi had also involved Kailash
in their statements before the police under Section 161 Cr.P.C.
6. The learned Sessions Judge took stock of the evidence
which was led during the trial and came to the conclusion that
D there was nothing in the First Information Report (Exh.P-1) to
suggest that Kailash was having an axe in his hand and that he
had caused the injury on the head or finger of the injured Rohitas.
He also found that in the statements of the witnesses including
injured Rohitas, Ram Singh, Ramavtarand Maya Devi, nobody
had stated that Kailash was having an axe in his hand and he
E caused any injury to Rohitas with axe. He found that Rohitas, in·
his police statement, has stated to have been hit with a lathi.
The Sessions Judge also observed that even if Kailash was
presumed to be present at the place of occurrence, it was not
proved that he took part in the assault and there was no .-
F justification for taking any cognizance against him. He found
that Rohitas (PW1) in his statement had improved upon his
evidence before the court and had added that Kai1ash inflicted
axe blow on his hand and head, however, his injuries suggested
-
that they were caused by a blunt weapon. It was also found by .
G the learned Sessions Judge that even Ramavtar (PW3) had
deposed that nobody struck Rohitas with an axe before him.
Even Maya (PW-4) had also not stated in her statement about
Kailash to have inflicted injuries to Rohitas with an axe. Although
these witnesses had stated in their evidence that Kailash was
" ..
H having an axe in his hand, the Sessions Judge found that they
KAILASH v. STATE OF RAJASTHAN & ANR. 707
[V.S. SIRPURKAR, J.]
•
* have made improvement in their evidence. He accordingly A
dismissed the application by his order dated 24.4.2004.
7. It was this order of the Sessions Judge which was
challenged by way of a R~vision Petition. The Revision remained
on pending and in the: meantime, however, the other five
accused~ against whom the prosecution was going on, were
B
~
.. acquitted of the charges·under Sections 147, 148, 452, 324 or
324/149, 325 or 325/149, 308/149 and 341 of the lndianPemal
Code. Only three accused came to be convicted for offences
under Section 323 IPC, they were accused Krishna Kumar,
Smt.Manju Devi and Chameli. They were, however, not awarded c
with any punishment and were given the benefit of Section 4 of
the Parole Act. Very strangely, the trial was not stayed during
the pendency of the Revision Petition before the High Court.
8. Learned counsel appearing on behalf of the appellant
D
pointed out that the High Court, while exercising its revisional
' jurisdiction, has patently erred in relying on the observations
made by the Sessions Judge in his acquittal judgment. According
to the learned counsel, the High Court has not applied itself as
to the correctness of the discretion exercised by the Trial Court
in not summoning the accused. It was pointed out that merely t
because some witnesses in their evidence had involved
Kailash, that by itself would not be sufficient to exercise the
... powers under Section 319 Cr.P.C. As against this the learned
. counsel for the respondents supported the order and pointed
out that there were some observations made by the learned F
Sessions Judge in his judgment while acquitting the other
accused persons. On these rival submissions it is to be seen
as to whether the High Court was right in allowing the Revision
and directing the Sessions Judge to reconsider the application
under Section 319 Cr.P.C. afresh. G
9. The powers under Section 319 Cr.P.C. to proceed
. ':~ against any person who is not the accused are couched in the
following words:
"319 Power to proceed against other persons H
708 SUPREME COURT REPORTS [2008] 3 S.C.R.
•
A appearing 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
B 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.
D (4) Where the court proceeds against any person under
sub-section (1) then - '
(a) the proceedings in respect of such person shall be
commenced afresh, and witnesses re-heard;
E (b) subject to the provisions of clause (a), the case 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.
A glance at these provisions would suggest that during
F 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. The key words in this Section are "it appears from
the evidence" ..... "any person" ...."has committed any offence".
G It is not, therefore, that merely because some witnesses have
mentioned the name of such person or that there is some
material against that person, the discretion under Section 319
••
Cr.P.C. would be used by the court. This is apart from the fact
that such person against whom such discretion is used, should
H be a person who could be tried together with the accused against
'
KAI LASH v. STATE OF RAJASTHAN & ANR. 709
[V.S. SIRPURKAR, J.]
whom the trial is already going on. This Court has, time and A
again, declared that the discretion under Section 319 Cr.P.C.
has to be exercised very sparingly and with caution and only
when the concerned court is satisfied that some offence has
been committed by such person. This power has to be
essentially exercised only on the basis of the evidence. !t could, B
therefore, be used only after the legal evidence comes on record
.. and from that evidence it appears that the concerned person
- has committed an offence. The words "it appears" are not to be
read lightly. In that the court would have to be circumspect while
exercising this power and would have to apply the caution which c
the language of the Section demands.
10. In a reported decision in Mohd. Shafi v. Mohd. Rafiq
& Anr. [JT 2007 (5) SC 562), to which one of us (Sinha, J.) was
a party, this Court had observed in para 7 as under:
D
"Before, thus, a trial court seeks to take recourse to the
said provision, the requisite ingredients therefore must
be fulfilled. Commission of an offence by a person not
facing trial, must, therefore, appears to the cou·rt concerned.
It cannot be ipse dixit on the part of the court. Discretion
in this behalf must be judicially exercised. It is ir:icumbent E
that the court must arrive at its satisfaction in this behalf."
In the above case this Court referred to the decision
•• reported in Municipal Corporation of Delhi v. Ram Krishan
Rohtagi & Ors. [(1983) 1 SCC 1) and highlighted the following F
remarks made in para 19 therein which are to the following effect:
"19 .... 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 G
person against whom action has not been taken ..... "
. <:::.,
It was further stated in para 13:
" .... it is evident that before a court exercises its
discretionary jurisdiction in terms of Section 319 of the H
710 SUPREME COURT REPORTS [2008] 3 S.C.R.
A . Code of Criminal Procedure, it must arrived at the
satisfaction that there exists a possibility that the accused
so summoned in all likelihood would be convicted. Such
satisfaction can be arrived at inter alia upon completion
of the cross-examination of the said witness. For the said
B purpose, the court concerned may also like to consider
other evidence." (Emphasis supplied).
11. In Krishnappa v. State of Karnataka [(2004) 7 SCC
..
792] this Court, while relying on another reported decision in
Michael Machado v. Central Bureau of Investigation [(2000)
C 3 sec 262] went on to hold that the power under Section 319,
Cr.P.C. is discretionary and should be exercised only to achieve
criminal justice and that the court should not turn against another
person whenever it comes across evidence connecting that
other person also with the offence. The Court further observed:
D
" ... a judicial exercise is called for, keeping in conspectus
of the case, including the stage at which the trial has
already proceeded with the quantum of evidence collected
till then, and also the amount of time which the court had
· spent for collecting such evidence."
E
The Court further observed:
"The Court, while examining an application under Section
319 Cr.P.C., has also to bear in mind that there is no
compelling duty on the court to proceed against other ••
F persons. In a nutshell, it means that for exercise of discretion
under.Section 319 Cr.P.C., all relevant factors, including
the one noticed above, have to be kept in view and an
order is not required to be made mechanically merely on
the ground that some evidence had come on record •
G implicating the person sought to be added as an accused."
12. Turning to the present case, we find that the Trial Court
had properly considered the evidence of injured Rohitas, Ram •' ..
Singh, Ramavtar and Maya Devi and had found that none of the
H witnesses had stated that Kailash was having an axe in his hand
KAILASH v. STATE OF RAJASTHAN & ANR. 711
[VS. SIRPURKAR, J.)
" and that he caused any injury to Rohitas with the axe. In that.the A
court found that the witnesses had improved their version only
at the stage of trial. The court even went to the extent of saying
that even if Kailash was presumed to be present at the spot,
that by itself could not prove that he took part in the assault. The
Trial Court had also very specifically noted the improvement B
made by Rohitash (PW-1) in stating that Kailash inflicted axe
.. blow on his hand and head which claim was belied by the
• medical report recording his injuries. Same was the situation
regarding the evidence of Ramavatar (PW3) as also Maya
(PW4). The trial court found that all these witnesses were giving c
improved versions during their evidence in the court. Thus, it
was clear that the Trial Court had come to a conclusion that
there was no possibility of convicting Kailash, the present
appellant on the basis of the evidence led before it.
13. On this backdrop when we see the order p~ssed by D
, the High Court, there does not appear to be any such effort on
the part of the High Court. Basically, the High Court merely relied
on the reported decision in Shashi Kant Singh v. Tarkeshwar
Singh & Anr. [JT 2002 (4) SC 386] where the question was
entirely different. There the question was as to whether if the E
trial itself was over, could the revisional court direct the said
person against whom the Trial Court had refused to exercise
discretion under Section 319 Cr.P.C. to be tried afresh. In the
. .. present case also the conclusion of the trial was irrelevant in so
far as the trial of the appellant is concerned. That by itself was F
no reason to try him with the aid of Section 319 Cr.P.C. The
High Court should have applied itself independently to the
ques.tion as to whether there was any material in the evidence
not only to connect the appellant but whether it was sufficient to
justify the words "it appears that such person has committed
G
the crime". We do not see any such effort in the judgment of the
" High Court. On the other hand, the High Court has commented
·' ... on the language of the judgment by the Trial Court while
acquitting the other accused. That is an irrelevant consideration.
Merely because the Sessions Judge commented upon the
H
712 SUPREME COURT REPORTS [2008] 3 S.C.R.
A present appellant not being a party accused, that by itself did
not justify the interference that there was evidence against him
and the evidence was of such nature as would justify his being
added as an accused much less under.Section 319 Cr.P.C.
We are, therefore, quite convinced that the judgment of the High
B Court is erroneous and must be set aside.
14. In the result the appeal is allowed, the judgment of the
High Court is set aside and the judgment of the Trial Court is •
restored.
C R.P.. Appeal allowed.
.. .
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 319 CrPC"Sign in to search