N. MANOGAR & ANR.versusTHE INSPECTOR OF POLICE & ORS.

          [2024] 2 S.C.R. 685 : 2024 INSC 130

                   N. Manogar & Anr.
                           v.
             The Inspector of Police & Ors.
              Criminal Appeal No. 1333 of 2024
                       16 February 2024
  [Vikram Nath and Satish Chandra Sharma, JJ.]

                    Issue for Consideration
Whether the High Court was justified in setting aside the order
passed by the trial court whereunder, the trial court rejected the
application filed by the complainant u/s. 216/319 CrPC seeking
the summoning of, and the impleadment of the appellants as
accused persons in connection with the case u/ss. 452, 294(b),
323 and 506(1) IPC.

                           Headnotes
Code of Criminal Procedure, 1973 – ss. 216/319 – Discretionary
powers under – Exercise of, by the High Court – Application
by the complainant u/s. 216/319 seeking the summoning of,
and the impleadment of the appellants as accused persons
in connection with the case u/ss. 452, 294(b), 323 and 506(1)
IPC – Rejected by the trial court, however, allowed by the High
Court – Correctness:
Held: Trial court’s order was well reasoned and did not suffer
from any perversity – High Court impleaded the appellants’ as
accused persons in the underlying proceedings on the satisfaction
of a prima-facie finding that the materials on record sufficient to
proceed against the appellants – High Court failed to appreciate
that the discretionary powers u/s. 319 CrPC ought to have been
used sparingly where circumstances of the case so warrant –
Moreover, the materials on record could not be said to have
satisfied the threshold envisaged, that more than a prima facie
case, as exercised at the time of framing of charge but short of
evidence that if left unrebutted would lead to conviction – Thus,
the impugned order set aside. [Paras 9, 10, 11]

                        Case Law Cited
     Hardeep Singh v State of Punjab & Ors., [2014] 2 SCR
     1 : (2014) 3 SCC 92 - relied on.
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            Jogendra Yadav v. State of Bihar, [2015] 9 SCR 69 :
            (2015) 9 SCC 244; Jitendra Nath Mishra v. State of
            Uttar Pradesh, [2023] 7 SCR 642 : (2023) 7 SCC 344;
            Sagar v. State of Uttar Pradesh & Anr., (2022) 6 SCC
            389 – referred to.

                                 List of Acts
       Code of Criminal Procedure, 1973; Penal Code,1860.

                              List of Keywords
       Discretionary powers; Approach adopted by the High Court;
       Summoning; Impleadment; Reasoned order; Perversity; Prima-
       facie finding.

                             Case Arising From
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1333
       of 2024
       Arising out of Special Leave Petition (Crl.) No(s). 8696 of 2021
       From the Judgment and Order dated 13.09.2021 of the High Court
       of Judicature at Madras in CRLRC No. 133 of 2020
                          Appearances for Parties
       S. Nagamuthu, Sr. Adv., M.P. Parthiban, Ms. Priyaranjani Nagamuthu,
       R. Sudhakaran, T. Hari Hara Sudhan, Ms. Shalini Mishra, Bilal
       Mansoor, Shreyas Kaushal, P.V.K. Deivendran, Advs. for the
       Appellants.
       V. Krishnamurthy, Sr. AAG., D. Kumanan, Ms. Deepa S., Veshal
       Tyagi, Chandan Kumar, Madhu Prakash, P. Soma Sundaram, Advs.
       for the Respondents.
                 Judgment / Order of the Supreme Court

                                      Order
1.     Leave granted.
2.     The present appeal has been filed by the Appellant(s) assailing
       the correctness of a decision of the Madras High Court (the “High
       Court”) dated 13.09.2021, setting aside an order dated 24.10.2019
       passed by the Ld. XIV Metropolitan Magistrate, Egmore, Chennai (the
[2024] 2 S.C.R.                                                          687

          N. Manogar & Anr. v. The Inspector of Police & Ors.


     “Trial Court”) whereunder, the Trial Court rejected the application
     instituted by the Complainant under Section 216 read with Section
     319 of the Code of Criminal Procedure, 1973 (the “CrPC”) seeking
     (i) the summoning of; and (ii) the impleadment of the Appellant(s)
     as accused person(s) in connection with Case Crime No. 7243 of
     2018 under Section(s) 452, 294(b), 323 and 506(1) of the Indian
     Penal Code, 1860 (the “IPC”) (the “Impugned Order”).
3.   The brief fact(s) culled out of the record are as follows:
     3.1. Pursuant to an order of the High Court dated 24.01.2018,
          Respondent No. 1 registered a First Information Report (“FIR”)
          dated 20.04.2018 under Section(s) 448, 294(b), 323 and 506(1)
          of the IPC pursuant to a complaint lodged by Respondent No. 2
          i.e., the Complainant whereunder it was alleged that, Respondent
          No. 3 came to the Complainant’s home asking about one Vidhul
          i.e., the Complainant’s son. Upon being told that Viduhl was the
          Complainant’ son Respondent No. 3 slapped the Complainant,
          pushed her on the sofa, made vulgar comments and thereafter
          dragged Vidhul out of the bathroom and physically assaulted
          him up until he fell unconscious. Subsequently, Respondent No.
          3 extended threat(s) to the Complainant. Pertinently, it was also
          stated in the FIR that Respondent No. 3 was accompanied by
          her husband and another ‘boy’, however no role was ascribed
          to aforesaid person(s).
     3.2. A chargesheet came to be filed before the Trial Court by
          Respondent No. 1 against Respondent No. 3 under Section(s)
          294(b), 323, 506(1) and 448 IPC. Subsequently the charge
          under Section 448 IPC came to be altered to Section 452 IPC.
          Pertinently, the Complainant, other eyewitnesses and the doctor
          who examined the injured victim(s) only named; and ascribed
          a role to Respondent No. 3 in their statement(s) under Section
          161 CrPC before the investigating authorities.
     3.3. An application dated 27.01.2019 under Section 482 CrPC
          came to be preferred by the Complainant before the High Court
          seeking re-investigation qua the FIR. At this stage, for first time,
          the Complainant individually (a) named (i) Appellant No. 1 i.e.,
          Respondent No. 3’s husband; and (ii) Appellant No. 2 i.e., a
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            relative of Respondent No. 3; and (b) ascribed a particular
            role qua the alleged incident to them i.e., that the Appellant(s)
            trespassed into the Complainant’s home, hurled vulgar abuses
            and also threatened to kill the Complainant’s son. It was also
            stated that although the Complainant allegedly named the
            aforesaid person(s), the same was not recorded in the FIR
            (“Re-Investigation Application”). The High Court vide an order
            dated 05.02.2019 in the Re-Investigation Application, observed
            that the investigation had concluded; and a chargesheet had be
            filed by the investigating authorities. Accordingly, the High Court
            granted the Complainant liberty to prefer an application under
            Section(s) 319 read with 216 of the CrPC before the Trial Court
            seeking impleadment of the Appellants qua the proceedings
            emanating from the FIR. Further, the Trial Court was directed
            to consider the application of the Complainant under Section(s)
            319 read with 216 of the CrPC and implead the Appellant(s)
            as accused person(s) during the examination of witnesses (if
            necessary) (the “Re-Investigation Order”).
       3.4. Pursuant to the Re-Investigation Order, an application dated
            19.03.2019 under Section(s) 319 read with 216 of the CrPC
            came to be preferred by the Complainant before the Trial Court
            whereunder it was stated that (i) despite naming the Appellants,
            the FIR only came to be lodged against Respondent No. 3
            i.e., allegedly the names of the Appellants were omitted by
            the investigating authorities; (ii) the statement(s) recorded by
            investigating authority under Section 161 of the CrPC were
            mechanically recorded and purposely did not disclose to names
            of the Appellants; (iii) that the prosecution witnesses (“PWs”)
            Nos. 1-5 have named the Appellants’ during their examination-
            in-chief before the Trial Court; and have also ascribed a specific
            role to the Appellants’ (the “Underlying Application”).
       3.5. Vide an order dated 06.05.2019, the Trial Court partly allowed
            the aforesaid application i.e., impleaded Appellant No. 1 as an
            accused person in the proceedings emanating from the FIR
            observing inter alia that Appellant No. 1 i.e., a policeman ought
            to have prevented an offence from taking place and accordingly,
            his omission would necessarily amount to abetment, however,
[2024] 2 S.C.R.                                                           689

          N. Manogar & Anr. v. The Inspector of Police & Ors.


           the Trial Court rejected the prayer qua the impleadment of
           Appellant No. 2 as an accused on the ground that no reason(s)
           have been attributed as to how the Complainant; and other PWs’
           have been able to identify the unknown ‘boy’ as Appellant No. 2.
     3.6. Aggrieved by the aforesaid order, revision petition(s) were
          filed by Appellant No. 1 and Respondent No.2 before the High
          Court. Vide an order dated 10.06.2019, the revision petition(s)
          came to be allowed by the High Court on the ground that the
          Appellants’ were not issued notice in the Underlying Application
          and accordingly, the Underlying Application could not be decided
          without affording the Appellants’ an opportunity of hearing
          as mandated by this Court in Jogendra Yadav vs. State of
          Bihar, (2015) 9 SCC 244. Thus, the High Court remanded the
          Underlying Application back to be considered afresh by the
          Trial Court in line with our decision in Hardeep Singh v State
          of Punjab & Ors., (2014) 3 SCC 92 (the “Remand Order”).
     3.7. Pursuant to the Remand Order, the Trial Court vide an order
          dated 24.10.2019 dismissed the Underlying Application
          observing inter alia that there is no evidence qua the involvement
          of the Appellants to justify impleading the Appellants as accused
          person(s) in light of the fact that no specific allegation(s) had
          been levelled by the Complainant in either the underlying
          complaint; or before PW-6 i.e., the doctor treating the victim(s)
          immediately after the alleged offence (the “Underlying Order”).
     3.8. Aggrieved by the Underlying Order, the Complainant filed
          a criminal revision petition before the High Court. Vide the
          Impugned Order, the High Court held inter alia that the
          allegation(s) in the underlying complaint; and statement(s)
          recorded under Section 161 CrPC disclose that the Appellants
          were present with Respondent No. 3 at the time of the
          commission of the alleged offence; and accordingly trespassed
          into the home of the Complainant. Additionally, the High Court
          observed that the standard to be adopted by the Trial Court
          at the stage of invoking its’ powers under Section 319 CrPC
          would be a prima facie satisfaction that that the accused person
          has committed the alleged offence. Accordingly, in view of the
          aforesaid, the High Court (i) allowed the criminal revision petition;
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            (ii) set aside the Underlying Order; and (ii) directed the Trial
            Court to implead the Appellants as Accused No. 2 and Accused
            No. 3 respectively, in the CC No. 7243 of 2018 before the Trial
            Court (the “Underlying Proceedings”).
4.     Mr. S. Nagamuthu, learned senior counsel appearing on behalf of the
       Appellants has submitted before us that the High Court has exercised
       jurisdiction under Section 319 of the CrPC and erroneously reversed
       the Trial Court Order without appreciating (i) that the allegation qua
       the Appellants are vague and omnibus; (ii) that there is no evidence
       on record to suggest the involvement of the Appellants in the alleged
       offence; and (iii) the dicta laid down by this Court in Hardeep Singh
       (Supra).
5.     On the other hand, the learned counsel(s) appearing on behalf of the
       Respondent(s) have vehemently opposed the aforesaid contention;
       and submitted that the High Court has rightly appreciated the
       allegations disclosed in the underlying complaint, the statement(s)
       recorded under Section 161 CrPC and the examination-in-chief of
       the PWs to conclude that the evidence on record underscored the
       involvement of the Petitioners in the commission of a crime and
       accordingly, the Impugned Order could not be faulted on account
       of any perversity in view of our decision in Jitendra Nath Mishra
       v. State of Uttar Pradesh, (2023) 7 SCC 344.
6.     We have heard the learned counsel(s) appearing on behalf of the
       parties and perused the materials on record.
7.     The principles of law governing the exercise of jurisdiction under
       Section 319 of the CrPC are well established. Notably, a constitution
       bench of this Court in Hardeep Singh (Supra) observed as under:
            “105. Power Under Section 319 Code of Criminal Procedure
            is a discretionary and an extraordinary power. It is to
            be exercised sparingly and only in those cases where
            the circumstances of the case so warrant. It is not to be
            exercised because the magistrate or the sessions 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 laid
            before the court that such power should be exercised and
[2024] 2 S.C.R.                                                         691

          N. Manogar & Anr. v. The Inspector of Police & Ors.


           not in a casual and cavalier manner.
           106. Thus we hold that though only a prima facie case is
           to be established from the evidence laid before the court,
           not necessarily tested on the anvil of cross-examination,
           it requires much strong evidence that near 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
           Code of Criminal Procedure.”
8.   The aforesaid position was reiterated by this Court in Sagar v.
     State of Uttar Pradesh & Anr., (2022) 6 SCC 389 wherein it was
     opined that:
           “9. The Constitution Bench has given a caution that power
           Under Section 319 of the Code is a discretionary and
           extraordinary power which should be exercised sparingly
           and only in those cases where the circumstances of the
           case so warrant and the crucial test as notice above has
           to be applied is one which is more that 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….”
9.   In the present case, the High Court overturned the Trial Court Order;
     and accordingly impleaded the Appellants’ as accused person(s) in
     the Underlying Proceedings on the satisfaction of a prima-facie finding
     that the materials on record i.e., (i) vague allegations emanating from
     the underlying complaint; (ii) the Complainant’s statement under
     Section 161 of the CrPC; and (iii) the Complainant’s examination-
     in-chief, are sufficient to proceed against the Appellant(s).
10. In our considered view, the approach adopted by the High Court
    was not in consonance with this Court’s opinion in Hardeep Singh
    (Supra). The High Court failed to appreciate that the discretionary
    powers under Section 319 of the CrPC ought to have been used
    sparingly where circumstances of the case so warrant. In the present
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       case, the Trial Court Order was well reasoned and did not suffer
       from any perversity. Moreover, the materials on record could not be
       said to have satisfied the threshold envisaged under Hardeep Singh
       (Supra) i.e., more than a prima facie case, as exercised at the time
       of framing of charge but short of evidence that if left unrebutted
       would lead to conviction.
11. Consequently, this appeal stands allowed and the Impugned Order
    is set aside. Pending application(s), if any, stand disposed of.


       Headnotes prepared by: Nidhi Jain                 Result of the case:
                                                            Appeal allowed.