Supreme Court of India
LAL SURAJ @ SURAJ SINGH & ANR.versusSTATE OF JHARKHAND
- Citation
- 2008 INSC 1472
- Decided
- 18 December 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Section 319 CrPC may be invoked only when fresh, reliable evidence demonstrates that the person could be tried together with the accused; mere suspicion or hearsay is insufficient, rendering the summons invalid.
Summary
The case arose from an FIR that named seven persons for offences under the IPC, Arms Act and Explosive Substances Act, but only one appellant was specifically named. No charge‑sheet was filed against two other alleged participants, Suraj Singh and Arbind Singh. The Sessions Judge, relying on the testimony of PW‑6 (a non‑eye‑witness) and PW‑7 (a hearsay witness), summoned the two appellants under Section 319 of the Criminal Procedure Code, a decision affirmed by the High Court. On appeal, the Supreme Court held that Section 319 is a special provision to be exercised sparingly and only on the basis of fresh, reliable evidence showing that the person could be tried together with the accused. The Court found the evidence of PW‑6 and PW‑7 insufficient and therefore set aside the summons. The appeal was allowed and the orders of the lower courts were vacated.
Issues considered
- Whether the Sessions Judge and the High Court were justified in summoning the appellants under Section 319 CrPC on the basis of the evidence of PW‑6 and PW‑7.
- Whether the absence of a charge‑sheet and the reliance on hearsay and non‑eye‑witness testimony satisfy the requirement of fresh evidence under Section 319.
Legislation cited
Subjects
Section 319 CrPCsummoning non‑accusedhearsay evidencestrong suspicioncriminal procedurediscretionary powercharge sheet
Judgment
[2008] 17 S.C.R. 1059
~
LAL SURAJ @ SURAJ SINGH & ANR. A
\I.
STATE OF JHARKHAND
, "- (Criminal Appeal No. 2062 of 2008)
.DECEMBER 18, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
Code of Criminal Procedure, 1973 - s. 319 -
Summoning of other persons appearing to be guilty of offence
...I under - Power of - Held: Is wide but is to be exercised very c
sparingly - Before summoning an accused, trial court must
form opinion on basis of evidences brought before it that case
'• has been made out that such person could be tried together
with the other accused - Person not charge sheeted, may
come within the purview of description of person as contained
- in s.319- On facts, appellants were not charge sheeted and
also not named in FIR - Deposition of prosecution witnesses
relied upon by courts below while allowing the application to
o,
summon appellants not reliable - No substantial evidence on
'"'\ record to make out a case against appellants - Thus, order
of courts below set aside. E
The question which arose for consideration in this
appeal was whether the courts below relying on evidence
of prosecution witnesses were justified in allowing the
application for summoning the appellants in exercise of
his power uls. 319 of the Code of Criminal Procedure, F
1973.
;.
-~ Allowing the appeal, the Court
HELD: 1.1. Section 319 Cr.P.C. is a special provision.
It seeks to meet an extraordinary situation. It although
confers a power of wide amplitude but is required to be G '
exercised very sparingly. Before an order summoning an
accused is passed, the trial court must form an opinion
on the basis of the evidences brought before it that a
'., ~ case has been made out that such person could be tried
-
"
1059 H
•
1060 SUPREME COURT REPORTS [2008] 17 S.C.R.
.....
A together with the other accused. Even if a person had not
been charge sheeted, he may come within the purview
of the description of such a person as contained in s. 319
of the Code. [Paras 11 and 12] [1065-8-D]
. '
1.2. The principle of strong suspicion may be a
B criterion at the stage of framing of charge as all the
materials brought during investigation were required to
be taken into consideration, but, for the purpose of
summoning a person, who did not figure as accused, a
different legal principle is required to be applied. A court
~A 1
framing a charge would have before it all the materials on
c record which were required to be proved by the
prosecution .. In a case where, however, the court ,
exercises its jurisdiction under Section 319 of the Code, "
the power has to be exercised on the basis of the fresh
evidence brought before the court. There lies a fine but
D clear distinction. [Par:~ 15] [1066-G-H; 1067-A-B]
2.1. The prosecution concededly did not file any
chargesheet against the appellants. Even in the First
Information Report only the appellant No. 1 was. named.
The case was committed to the Court of Sessions. There
r t-
E cannot be any doubt or dispute that although a person
named in the First Information Report-or another who
was found to be involved in the commission of the
offence may be summoned at a subsequent stage by the .,
trial judge, legality of an order summoning such an .,
F accused, however, would depend on the nature of
evidence brought on __ record by the prosecution
witnesses and other relevant factors. [Paras 8 and 9] , ""
~-
[1064-A-C]
2.2. The Sessions Judge as also the High Court relied
upon the deposi_tlon of PW-6 and PW-7. PW-6 is not an
G
eye-witness to the occurrence. PW-7 is only hearsay
witness. No evid~nce worth the name had been brought
on record to arrive at a satisfaction that there was a
reasonable prospect of conviction of the appellants. The f--
approach of the Sessions Judge was wholly incorrect.
H [Paras 13 and 14] [1066-B, F, G]
- '"
•
LAL SURAJ@ SURAJ SINGH & ANR. v. STATE OF 1061
JHARKHAND
2.3. Applying the legal principles to the fact of the A
case, Sessions Judge as also the High Court committed ,
a serious error in passing the impugned judgment. On the ·
basis of the aforementioned evidence, there was no
possibility of recording a judgment of conviction against •
the appellants at all. Thus, the impugned order are set B
aside. [Para 21] [1069-E-F]
Municipal Corporation of Delhi v. Ram Kishan Rohtagi
(1983) 1 SCC 1; Yuvaraj Ambar Mohite v. State of,
Maharashtra (2006) 1O SCALE 369; Guriya alias Tabassum
' Tauquir and Others v. State of Bihar and Another (2007) 8 1 c
SCC 224; Mohd. Shafi v. Mohd. Rafiq & Anr. AIR (2007) SC
189 and Kai/ash v. State of Rajasthan & Anr. (2008) 3
SCALE 338, Relied on.
Y. Saraba Reddy v. Puthur Rami Reddy and Another
(2007) 4 SCC 773, Distinguished. D
Joginder Singh v. State of Punjab (1979) 1 SCC 345 and
Sohan Lal v. State of Rajasthan (1990) 4 SCC 580, Referred
to.
Case Law Reference:
(2001) 4 sec 113 Referred to. Para 7 E
(1979) 1 sec 345 Referred to. Para 12
(1983) 1 sec 1 Referred to. Para 12
(1990) 4 sec 580 Referred to. Para 12 I
(1983) 1 sec 1 Referred to Para 16
(2006,) 10 SCALE 369 Referred to
F
Para 17
(2001) 8 sec 224 Referred to Para 18
AIR (2007) SC 189 Referred to Para 19 '
(2008) 3 SCALE 338 Referred to Para 20
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 'G
No. 2062 of 2008.
From the final Judgment and Order dated 19.12.2007 of
the High Court of Jharkhand at Ranchi in Crl. M.P. No. 1188 of
2005.
P.S. Narasimha, M.S. Madhu Sharan,_ S. Ch911dra Shekhar H
1062 SUPREME COURT REPORTS [2008) 17 S.C.R.
A and L. Roshmani for the Appellants.
/
Manish Kumar Saran for the Respondent.
The Judgment of the Court was delivered by :>.,
S.B. SINHA, J. 1. Leave granted.
B 2. On the ba~is of a fardbeyan of one Bihari Singh, a First
Information Report was registered against seven persons for
commission of offe'nces under Sections 147, 148, 149, 307
and 302 of the Indian Penal Code and Section 27 of the Arms .:
Act as well as under Section 3/4 of the Explosive Substance \_ ,..,
c Act inter alia alleging that on 24.10.2000 at around 4 p.m. when ..._}---
he along with· one Ajay Singh was sitting in his shop near bus .;,...
stand, Nagendra Choubey, Mukesh Choubey, Pradeep '
Vishwakarma, Sharvan Vishwakarma, Suraj Singh, B.N. Singh
and Arbind Singh came in two vehicles and started firing.
Appellant No. 1 was specifically named therein. In the said
D incident, the complainant and Ajay Singh suffered fire arm '
injuries. Wh~ the people started assembling there, accused
persons fled away. The motive for commission of the offence
was said to be the murder of one Jagdev wherein the ..,.
complainant and the said Ajay Singh were accused. The first
E informant was taken to the hospital and died on 25.10.2000.
He gave a dying declaration which was treated to be the First
Information Report.
3. Indisputably, no chargesheet was filed against the
appellants. No cognizance, therefore, was taken against them.
F 4. Upon commitment of the case to the Court of learned
Sessions Judge, the prosecution examined eleven witnesses.
The learned Sessions Judge relied upon the evidence of PWs
6 and 7 to allow an application for summoning the appellant in
I·- --
exercise of his power under Section 319 of the Code of
G Criminal Procedure (for short "Code") , holding:
"There cannot be any two opinion that suspicion however
strong it may be cannot take shape of evidence and it y -"-
cannot be a ground for conviction but so far issuance of r---..
process is concerned strong suspicion can be a ground ,;
H to proceed against any person in a criminal case. In the
'
LAL SURAJ@ SURAJ SINGH & ANR. v. STATE OF 1063
JHARKHAND [S.B. SINHA, J.]
facts of the present case when the statement of the injured A
formed basis of fardbeyan, who died subsequently then
value of first statement will also be a point for
consideration. The statement of PW 7 is also said to be
statement of dead person, then that statement of PW7 will
also be under the scrutiny on the touchstone of evidence. 8
The name of above referred two persons Suraj Singh and'
Arbind Singh is stated by the informant.
Thus in consideration of the entire material on record I am 1
of the view that the materials on record is sufficient to ,
proceed against above named Suraj Singh and Arbind · c
Singh. Thus in view of the above observation it will be,
proper that summons against Suraj Singh son of Madhu
Singh and Arbind Singh son of late Amarnath Singh, both
resident of village - Bandubar, P.S. Panki, Distt - Palamau
be issued and are arrayed as accused in GR. 1256/2000 '
corresponding to Sadar P.S. Case No. 381/2000 to face ' D
trial.
The office is directed to open a separate record for those
two persons bearing no. 2098/2004 and is further directed
to issue summons against the above named two accused
persons for their trial." E
5. Appellants filed criminal revision application
thereagainst before the High Court. By reason of the impugned ,
judgment, the same was dismissed.
6. Mr. P.S. Narasimha, learned counsel appearing on F
behalf of the appellants, has taken us through the evidences of
PWs 6 and 7 and submitted that both the learned Sessions
Judge as also the High Court committed a serious error insofar
as they failed to take into consideration the legal principles
required to be applied while summoning an accused in exercise
of the court's power under Section 319 of the Code. G
7. Mr. Manish Kumar Saran, learned counsel appearing on
behalf of the respondent, on the other hand, submitted that from
a perusal of the judgment of the High Court it would appear that
the only contention raised therein was that no charge-sheet
having been filed against them, they could not have been H
1064 SUPREME COURT REPORTS [2008] 17 S.C.R.
A summoned by the Court in exercise of its-power under Section
319 of the Code, which has rightly been rejected by the High
Court in view of the decision of this Court in Y. Saraba Reddy >.,
v. Puthur ~ami Reddy and Another ((2007) 4 SCC 773].
8. The prosecution concededly did not file any chargesheet
B against the appellants. Even in the First Information Report only
the appellant No. 1 was named.
9. The case was committed to the Court of Sessions.
There cannot be any doubt or dispute that although a person
named in the First Information Report or another who was found \""'
c to be involved in the commission of the offence may be
summoned at a subsequent stage by the learned Trial Judge;
~-
legality of an order summoning such an accused, however,
would depend on the nature of evidence brought on record by
the prosecution witnesses and other relevant factors. At that
D stage what is material is the evidence of prosecution witnesses
and other materials which have been brought on the record.
10. Section 319 of the Code reads, thus:
"319 Power to proceed against other persons appearing
to be guilty of offence. (1) Where, in the course of any
E 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 against
such person for the offence which he appears to have
committed.
F
(2) Where such person is not attending the court he may ......
be arrested or summoned, as the circumstances of the j-
case may require, for the purpose aforesaid.
(3) Any person attending the court although not under arrest
G 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 )-'
Sub-section (1) then - ......
H (a) the proceedings in respect of such person shall be
LAL SURAJ @ SURAJ SINGH & ANR. v. STATE OF 1065
JHARKHAND [S.B. SINHA, J.]
commenced afresh, and witnesses re-heard; A
(b) subject to the provisions of Clause (a), the c~se 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. Section 319 of the Code is a special provision. It seeks 8
to meet an extraordinary situation. It although confers a power
of wide amplitude but is required to be exercised very sparingly.
Before an order summoning an accused is passed, the
Trial Court must form an opinion on the basis of the evidences C
brought before it that a case has been made out that such
person could be tried together with the other accused.
12. There is no dispute with the legal proposition that even
if a person had not been chargesheeted, he may come within
the purview of the description of such a person as contained D
in Section 319 of the Code.
In Y. Saraba Reddy (supra), this Court did not lay down
any new principle. It relied upon several well-known decisions
of this Court in Joginder Singh v. State of Punjab [(1979) 1
SCC 345], Municipal Corporation of Delhi v. Ram Kishan E
Rohtagi [(1983) 1 SCC 1] and Sohan Lal v. State of Rajasthan
[(1990) 4 sec 580J.
We may, however, notice that therein the High Court took
an extraordinary step which was described by this Court as a
basic fallacy in its approach. It had called for the file to satisfy
itself as to whether the enquiry conducted was to be preferred F
to the evidence of PW-1. In the aforementioned situation, it was
observed:
" ... lf the satisfaction of the investigating officer or
supervising officer is to be treated as determinative, then
the very purpose of s'ection 319 of the Code would be G
frustrated. Though it cannot always be the satisfaction of
the investigating officer which is to prevail, yet in the instant
case the High Court has not found the evidence of PW 1
to be unworthy of acceptance. Whatever be the worth of
H
1066 SUPREME COURT REPORTS (2008] 17 S.C.R.
A his evidence for' the purposes of Section 319 of the Code
it was required to be analysed. The conclusion that the IO's
satisfaction should be given primacy is unsustainable ... "
No exception can be taken to the said dicta.
The fact involved herein, however, is completely different.
8
13. The learned Sessions Judge as also the High Court,
as indicated hereinbefore, relied upon the deposition of
Jogendra Singh (PW-6) and Karu Singh (PW-7).
Jogendra Singh in his deposition merely stated that the
C C;lppellants were sitting in the said jeep. The vehicle, however, \·""
was being driven at a very high speed and, thus, he could not
even see as to whether people sitting therein were holding any
weapon or not. He is, therefore, not ·an eye-witness to the
occurrence.
PW-7 in his deposition stated:
D
"1. Occurrence had taken place on 24.10.2003 at about
4-1/2 RM. in the evening. At that time I was at my house.
On receipt of the information of the occurrence, we
reached_at the Hospital. After reaching at the Hospital, I
saw that my father and Ajay Singh were on bed. Ajay Singh
had died and my father was giving statement and his
statement was being recorded by Ram Sagar Tiwari
Darogaji:, I had also talk with my father. He told me that
Suraj Singh, Arbind Singh, B.N. Singh, Pradeep
Vishwakarma, Shravan Vishwakarma, Nagendra Chaubey
F and Mukesh Chaubey had committed the crime
(occurrence.with him)."
He is, thus, only hearsay witness.
14. No evidence worth the name, therefore, had been
G brought on record to'arrive at a satisfaction that there was a
reasonable prospect of conviction of the appellants.
15. The approach of the learned Sessions Judge was
wholly incorrect. The principle of strong suspicion may be a
criterion at the stage of framing of pharge as all the materials
H brought during investigation were required to be taken into
LAL SURAJ@ SURAJ SINGH & ANR. v. STATE.OF 1067
JHARKHAND [S.B. SINHA, J.]
consideration, but, for the purpose of summoning a person, who A
did not figure as accused, a different legal principle is required
,J to be applied. A court framing a charge would have before it
all the materials on record which were required to be proved
by the prosecution. In a case where, however, the court
exercises its jurisdiction under Section 319 of the Code, the B
power has to be exercised on the basis of the fresh evidence
brought before the court. There lies a fine but clear distinction.
16. In Ram Kishan Rohtagi (supra), this court observed:
... ; "19. In these circumstances, therefore, if the prosecution
can at any stage produce evidence which satisfies the court c
that the other accused or those who have not been arrayed
as accused against whom proceedings have been
quashed have also committed the offence the Court can
take cognizance against them and try them along with the
other accused. But, we would hasten to add that this is D
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 person against whom action has not been taken.
More than this we would not like to say anything further at
this stage.••
II
E I
17. In Yuvaraj Ambar Mohite v. State of Maharashtra
[2006 (10) SCALE 369], it was observed that there is a
possibility of the accused being convicted on the basis of the
evidences brought on record even if the same is taken to be
correct in its entirety. F
18. In Guriya alias Tabassum Tauquir and Others v. State
···~
of Bihar and Another [(2007) 8 SCC 224], referred to by the
High Court, it was held that where there was no new material,
the discretionary jurisdiction under Section 319 of the Code can
be exercised, holding: G
"12. As noted above, PWs 1, 2 and 3 have stated about
the presence of the appellants without any definite role
~
being ascribed to them in their evidence recorded on 16-
4-2001, 8-1-2002 and 29-4-2002. If really the complainant
H
1068 SUPREME COURT REPORTS [2008] 17 S.C.R.
A had any grievance about the appellants being not made
accused, that could have, at the most, be done immediately
after the recording of evidence of PWs 1, 2 and 3. That
has apparently not been done. Additionally, after the
charge-sheet was filed, a protest petition was filed by the
B complainant which was dismissed. No explanation
whatsoever has been offered as to why the application in
terms of Section 319 CrPC was not filed earlier. The
Revisional Court did not deal with these aspects and came
to an abrupt conclusion that all the PWs have stated that
the appellants have committed overt acts and their names
c also find place in the protest petition. Undisputedly, no
overt act has been attributed to the appellants by PWs 1,
2 and 3. Nothing has been stated about the appellants by
PWs 4 and 5. There was mention of their names in the FIR.
A protest petition was filed. Same was also rejected. These
D could not have formed the basis of accepting the prayer
_in terms of Section 319 CrPC. The High Court's order, to
say the least, is bereft of any foundation. It .merely states
that there are materials against the petitioners before it. It )
also did not deal with various aspects highlighted above."
E 19. The said principle has been reiterated by this Court in
Mohd. Shafi v. Mohd. Rafiq & Anr. [AIR 2007 SC 1899] stating:
"6. Before, thus, a trial court seeks to take recourse to the
said provision, the requisite ingredients therefore must be
fulfilled. Commission of an 0ffence by a person not facing
F trial, must, therefore, appears to the court concerned. It
cannot be ipse dixit on the part of the court. Discretion in
this behalf must be judicially exercised. It is incumbent that
the court must arrive at its satisfaction in this behalf."
20. Yet again in Kai/ash v. State of Rajasthan & Anr. [2008
G (3) SCALE 338] Sirpurkar, J. speaking for the Bench held:
"A glance at these provisions 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
H are also being tried. The key words in this Section are "it
LAL SURAJ@ SURAJ SINGH & ANR. v. STATE OF 1069
JHARKHAND [S.B. SINHA, J.]
•
appears from the evidence " ... " any person " ... " has A
committed any offence". 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 B
person against whom such discretion is used, should be
a person who could be tried together with the accused
against whom the trial is already going on. This Court has,
time and 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 C
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 after the
legal evidence comes on record and from that evidence it
appears that the concerned person has committed an D
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."
21. Applying the aforementioned legal principles to the fact E
of this case, 'We are of the opinion that the learned Sessions
.. Judge as also the High Court committed a serious error in
passing the impugned judgment. On the basis of the
aforementioned evidence, there was no possibility of recording
a judgment of conviction against the appellants at all. F
22. The appeal is, thus, allowed and the impugned orders
are set aside.
N.J. Appeal allowed.
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