SUGREEV KUMARversusSTATE OF PUNJAB & ORS.

208                      [2019]REPORTS
               SUPREME COURT    4 S.C.R. 208                [2019] 4 S.C.R.


A                             SUGREEV KUMAR
                                        v.
                         STATE OF PUNJAB & ORS.
                        (Criminal Appeal No. 509 of 2019)
B                            MARCH 15, 2019
                    [ABHAY MANOHAR SAPRE AND
                      DINESH MAHESHWARI, JJ.]
            Code of Criminal Procedure, 1973:
             s. 319 – Application under – In a criminal proceeding trying
C
      three accused for offences u/ss. 302, 307, 341 r/w s.34 IPC and u/
      ss. 25, 54 and 59 of Arms Act, 1959 – For summoning eight persons
      to face trial, on the basis of testimony of a witness whereby he had
      deposed that eleven persons were involved in the crime – Trial court
      summoned one person and dismissed the application qua seven
D     persons – High Court affirmed the order of trial court – On appeal,
      held: Section 319 empowers summoning of any person on the basis
      of any relevant evidence – However, the power being discretionary,
      is to be exercised sparingly – The test to be applied is the one which
      is more than a prima facie case as examined at the time of framing
      charge, but not of satisfaction to the extent that the evidence if goes
E
      uncontroverted, would lead to the conviction of the accused – In
      the present case, consideration of the application had been as if
      the existence of a case beyond reasonable doubt was being examined
      against the proposed accused – This was clearly an erroneous
      approach – Impugned order is set aside and application is restored
F     to be re-examined by the trial court.
            Partly allowing the appeal, the Court
            HELD: 1. The provisions contained in Section 319 CrPC
      are to achieve the objective that the real culprit should not get
      away unpunished. By virtue of these provisions, the Court is
G     empowered to proceed against any person not shown as an
      accused, if it appears from evidence that such person has
      committed any offence for which, he could be tried together with
      the other accused persons. [Para 10][214-F, G]

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                                       208
      SUGREEV KUMAR v. STATE OF PUNJAB & ORS.                         209


       2. The provisions contained in Section 319 CrPC sanction       A
the summoning of any person on the basis of any relevant evidence
as available on record. However, it being a discretionary power
and an extraordinary one, is to be exercised sparingly and only
when cogent evidence is available. The prime facie opinion which
is to be formed for exercise of this power requires stronger
                                                                      B
evidence than mere probability of complicity of a person. The
test to be applied is the one which is more than a prime facie case
as examined at the time of framing charge but not of satisfaction
to the extent that the evidence, if goes uncontroverted, would
lead to the conviction of the accused. [Para 12][216-F, G]
      3. In the present case, the consideration of the application    C
under Section 319 CrPC had been as if the existence of a case
beyond reasonable doubt was being examined against the
proposed accused persons. The Trial Court and the High Court
have proceeded as if an infallible case was required to be shown
by the prosecution in order to proceed against the proposed           D
accused persons. That had clearly been an erroneous approach
towards the prayer for proceeding against a person with reference
to the evidence available on record. [Para 13][216-H, 217-A, B]
      4. The appellant (PW-1) has made the statement assigning
specific roles to the proposed accused persons. At the stage of       E
consideration of the application under Section 319 CrPC, the trial
court was to look at something more than a prima facie case but
could not have gone to the extent of enquiring as to whether the
matter would ultimately result in conviction of the proposed
accused persons. [Para 14][217-B-C]
                                                                      F
      5. In the totality of the circumstances of the present case,
the prayer of the prosecution for proceeding against other accused
persons, having not been examined in the proper prospective
and with due regard to the applicable principles, deserves to be
restored for reconsideration of the trial court. [Para 16]
[217-D, E]                                                            G
      Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :
      [2014] 2 SCR 1 – followed.
      Brijendra Singh & Ors. v. State of Rajasthan (2017) 7
      SCC 706 : [ 2017] 3 SCR 374 – referred to.
                                                                      H
210            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A                              Case Law Reference
            [2014] 2 SCR 1              followed                 Para 6
            [2017] 3 SCR 374            referred to              Para 6
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
B     509 of 2019.
            From the Judgment and Order dated 02.07.2018 by the High Court
      of Punjab and Haryana at Chandigarh in CRR No. 2626 of 2014
            Raj Bahadur Srot, Ashok Kumar Gupta II, Advs. for the Appellant.
            R. Basant, Sr. Adv., Jagjit Singh Chhabra, Saksham Maheshwari,
C
      Pradeep Kumar Arya, Kapl Dhaka, Rana Kunal, Chander Shekhar Ashri,
      Amit K. Nain, Gagandeep Sharma, Alind Srivasatava, Ms. Priyanshu
      Kamra, Ms. Charitarth Palli, Shubham Bhalla, Saurabh Ajay Gupta,
      Nishant Bishnoi, Ms. Srishti Prabhakar, Advs. for the Respondents.
            The Judgment of the Court was delivered by
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            DINESH MAHESHWARI J. 1. Leave Granted.
             2. In this appeal, the complainant-appellant has called in question
      the judgement and order dated 02.07.2018 in Criminal Revision Application
      No. 2626 of 2014 whereby, the High Court of Punjab and Haryana at
E     Chandigarh, has upheld the order dated 24.07.2014 as passed by the
      Additional Sessions Judge, Fazilka in S.C. No. 9 of 14.01.2014 on an
      application filed under Section 319 of the Code of Criminal Procedure
      (‘CrPC’) seeking summoning of additional accused persons to stand the
      trial.

F           2.1 The sessions case aforesaid is pending trial for the offences
      under Sections 302, 307, 341, 34 of the Indian Penal Code (‘IPC’) and
      Sections 25, 54 and 59 of the Arms Act. By the said order dated
      24.07.2014 on the application under Section 319 CrPC, the Trial Court,
      while partly granting the prayer of the prosecution to summon one of the
      accused Sonu son of Jaipal to face the trial, has dismissed the prayer for
G     summoning the other 7 persons namely, Krishan Dev, Vikash son of
      Krishan Dev, Rajan, Mukesh @ Jungli, Devinder @ Veeru, Surinder
      Mahal and Prithvi Raj.
            3. The background aspects, so far relevant for the present purpose,
      could be noticed, in brief, as follows:
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       SUGREEV KUMAR v. STATE OF PUNJAB & ORS.                                211
               [DINESH MAHESHWARI, J.]

        3.1 The prosecution case is that on 29.08.2013, the appellant         A
accompanied by his father, brother and other associates, proceeded to
reclaim possession of their land from the erstwhile tenants in compliance
with the directions issued by the Court of Assistant Collector Grade-I;
that on reaching the site at about 3:30 p.m., they found that the concerned
revenue officers were not present and while they were making their
                                                                              B
way back to the village in search of the revenue officers, 3-4 cars
intercepted them and about 10-12 persons emerged from the said vehicles,
some of them being the alleged tenants, who were armed with pistols,
rifles, swords, dangs, sotas, and 12 bore gun; and that after a heated
exchange of words, the appellant, his family members and their associates
were attacked by the accused which resulted in the demise of the              C
appellant’s father and brother while the others sustained varying injuries
with the appellant receiving three bullet injuries.
       3.2 For the incident in question, FIR came to be filed against 11
persons for the offences under Sections 302, 307, 341, 148 and 149 IPC
as also Sections 27, 54 and 59 of the Arms Act. However, after                D
investigation, only 3 persons, namely, Vikram Gilla, Gurmit Singh and
Sunil Kumar, were charge-sheeted.
        3.3 In trial, the appellant was examined by the prosecution as
PW-1, who asserted in relation to the incident in question, inter alia, as
under:-                                                                       E
      “…….After alighting from the Car Vikas raised Alarm that
      they be taught lesson for taking possession of their land. Then
      Vikram fired from his rifle on my father which hit him. Then
      my brother Sandeep alighted from the Jeep and Vikram with
      his rifle fired two shots at him which hit on the left side of his      F
      chest and waist. Krishan again raised Lalkara and instigated
      Sonu why are you standing and asked him to kill all sons of
      Hanuman. Then Sonu fired three shots from his revolver out
      of which two fires on my chest near the heart and one near
      the left shoulder. Vikram again fired shot from his gun on my
      father which hit him on his waist. Then all the accused started         G
      indiscriminating firing with their revolver, 12 bore gun and
      pistols and the fires hit with the vehicles, Mahi Ram, Budh
      Ram, my father and Sham Lal our servant. Thereafter we
      raised Raula of MAR DITTA MAR DITTA. Then accused tried
      to run away on their vehicles but Innova did not start and              H
212             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A            they left the Innova then along with 12 bore rifle and ran
             away from the spot in another vehicles.....(sic)”
             3.4 In his cross-examination, the appellant deposed that Krishan
      Dev, Vikas, Sonu, Rajan, Mukesh @ Jungli, Devinder @ Veeru, Surinder
      Mahal and Pirthi Raj were declared innocent after investigation by the
B     police, but volunteered to state that they were wrongly declared innocent.
             3.5 Pending further cross-examination of the appellant, an
      application under Section 319 CrPC was filed by the prosecution to
      summon the aforesaid 8 persons to face trial on the basis of the testimony
      of the appellant (PW-1), wherein, he had asserted that all of them were
C     present at the crime scene; and had assaulted and injured the appellant,
      his family members and associates on exhortation by Krishan Dev, which
      resulted in the demise of his father and brother. Hence, it was submitted
      that there was sufficient material on record to summon all the aforesaid
      persons to face the trial in this case.
D            4. In its impugned order dated 24.07.2014, the Trial Court referred
      to certain inconsistencies in the testimony of the appellant as compared
      to his statement under Section 161 CrPC and the FIR; and found no
      case for summoning 7 of the aforesaid persons but considered it just and
      proper to summon Sonu son of Jaipal, who had allegedly fired three
      shots from his firearm, which hit the appellant.
E
             5. Against the order aforesaid, the appellant filed a criminal revision
      petition, being CRR No. 2626 of 2014, before the High Court of Punjab
      and Haryana at Chandigarh which was dismissed by the impugned order
      dated 02.07.2018. It is mentioned in paragraph 4 of the order impugned
      that the learned counsel for the petitioner had confined the relief only
F     qua the respondent Nos. 2 and 3, Krishan Dev and Vikas son of Krishan
      Dev. The High Court upheld the order of the Trial Court while observing
      as under:
             “11. In this case, statements of complainant and witnesses is
             same, which were recorded by the police during investigation.
G            Learned trial Court has observed in its order that Vikas was
             attributed lalkara to the effect that complainant party be
             taught lesson for taking possession of the disputed land while
             Sugreev (PW) had admitted in his cross-examination that
             possession of the disputed land had not yet been taken by
             them. This shows that respondents, Krishna Dev and Vikas
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       SUGREEV KUMAR v. STATE OF PUNJAB & ORS.                               213
               [DINESH MAHESHWARI, J.]

      were arrayed as accused because of enmity between the                  A
      parties and the police during investigation had collected the
      evidence which prove that both these respondents were far
      away from the place of occurrence.
      12. Hon’ble Apex Court in the case Brijendra Singh (supra)
      has observed that for summoning the additional accused                 B
      under Section 319 Cr.P.C. degree of satisfaction is much
      stricter. Power under Section 319 Cr.P.C. is discretionary and
      extraordinary power which is to be exercised sparingly and
      only in those cases where circumstances of the case so
      warrants and strong and cogent evidence occurs against a
      person from the evidence led before the Court and not in a             C
      casual and cavalier manner. ….”
       6. Assailing the order aforesaid, the learned counsel for the
appellant has strenuously argued that the High Court as also the Trial
Court have failed to consider the fact that respondent No. 2 Krishan
Dev and respondent No. 3 Vikas are the main perpetrators of the crime;       D
and had planned everything in advance for executing the crime and to
escape from the law. Learned counsel would submit that the exhortation
(lalkara) was a previously planned one as the possession of the land
was to be handed over to the appellant and his family members; that the
Innova car, which is registered in the name of respondent No. 2, was         E
recovered from the scene of the crime; and that the report submitted by
the police is based on the statement of witnesses at the instance of the
respondents Nos. 2 and 3, where some of them are related to respondent
No. 2 and while the others are his acquaintances. Learned counsel would
submit that with the evidence available on record, a clear case for
proceeding against the aforesaid persons alongwith the charge-sheeted        F
accused is made out. Learned counsel for the appellant has referred to
and relied upon the decisions in Hardeep Singh v. State of Punjab :
(2014) 3 SCC 92 and Brijendra Singh & Ors v. State of Rajasthan:
(2017) 7 SCC 706.
       7. Per contra, learned counsel for the respondents have duly          G
supported the orders impugned and have submitted that no case for
interference is made out as the discretionary powers of the Court under
section 319 of CrPC are to be exercised sparingly and, in this case, the
Trial Court and the High Court, after having thoroughly examined the
record, found no substance in the application so moved. More specifically,   H
214             SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A     learned counsel for respondent No. 6 has pointed out that before the
      High Court, the appellant had given up the challenge qua this respondent.
      Learned counsel would submit that the impugned order has been passed
      after due consideration of the material on record; that his name was
      neither reflected in the FIR nor in the statement under Section 161 CrPC;
      that after police investigation, nothing incriminating was found against
B
      him and even the Trial Court has found no cogent evidence against him.
              8. During the course of submissions, it has been pointed out that
      since after passing of the orders impugned, further evidence of the
      prosecution was recorded in the trial and thereafter, another application
      under Section 319 CrPC was moved for summoning of the aforesaid 7
C     persons but the same was also rejected by the Trial Court on 28.09.2018.
      It has also been submitted that practically, the entire prosecution evidence
      in the matter is over.
             9. Having given anxious consideration to the rival submissions
      and having examined the record with reference to the law applicable,
D     we are clearly of the view that the disposal of applications moved in this
      matter under Section 319 CrPC cannot be approved; and in the given
      set of facts and circumstances, it appears just and proper that the Trial
      Court should re-examine the entire matter with reference to the principles
      applicable to the case, in order to take a decision afresh as to whether
E     the persons above-named or any of them deserve to be tried together
      with the other accused persons.
            10. It remains trite that the provisions contained in Section 319
      CrPC are to achieve the objective that the real culprit should not get
      away unpunished. By virtue of these provisions, the Court is empowered
F     to proceed against any person not shown as an accused, if it appears
      from evidence that such person has committed any offence for which,
      he could be tried together with the other accused persons. In Hardeep
      Singh (supra), the Constitution Bench of this Court has explained the
      purpose behind this provision, inter alia, in the following:

G           “12. Section 319 Code of Criminal Procedure springs out of
            the doctrine judex damnatur 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 Code of
            Criminal Procedure.
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       SUGREEV KUMAR v. STATE OF PUNJAB & ORS.                            215
               [DINESH MAHESHWARI, J.]

       13. It is the duty of the court to do justice by punishing the     A
      real culprit. 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
                                                                          B
      in Section 319 CrPC?
      ***                       ***                      ***
      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         C
      courts in our criminal justice system where it is not uncommon
      that the real accused, at times, get away by manipulating the
      investigating 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         D
      of the offence.”
      11. As regards the degree of satisfaction required for invoking
the powers under Section 319 CrPC, the Constitution Bench has laid
down the principles as follows:
                                                                          E
      “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
      required is much stricter. A two-Judge Bench of this Court in
      Vikas v. State of Rajasthan, held that on the objective             F
      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 be tried together with the already arraigned accused          G
      persons.
      ***                       ***                      ***
      105. Power under Section 319 CrPC is a discretionary and
      an extraordinary power. It is to be exercised sparingly and
                                                                          H
216             SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A           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 led before the court that such power should be
B
            exercised and 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 led before the court, not
            necessarily tested on the anvil of cross-examination, it requires
            much stronger evidence than mere probability of his
C           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
D           exercising power under Section 319 CrPC. In Section 319
            CrPC the purpose of providing if “it appears from the evidence
            that any person not being the accused has committed any
            offence” is clear from the words “for which such person could
            be tried together with the accused.” The words used are not
            “for which such person could be convicted”. There is,
E           therefore, no scope for the court acting under Section 319
            CrPC to form any opinion as to the guilt of the accused.”
             12. Thus, the provisions contained in Section 319 CrPC sanction
      the summoning of any person on the basis of any relevant evidence as
      available on record. However, it being a discretionary power and an
F     extraordinary one, is to be exercised sparingly and only when cogent
      evidence is available. The prime facie opinion which is to be formed for
      exercise of this power requires stronger evidence than mere probability
      of complicity of a person. The test to be applied is the one which is more
      than a prime facie case as examined at the time of framing charge but
G     not of satisfaction to the extent that the evidence, if goes uncontroverted,
      would lead to the conviction of the accused.
              13. While applying the above-mentioned principles to the facts of
      the present case, we are of the view that the consideration of the
      application under Section 319 CrPC in the orders impugned had been as
H     if the existence of a case beyond reasonable doubt was being examined
        SUGREEV KUMAR v. STATE OF PUNJAB & ORS.                                  217
                [DINESH MAHESHWARI, J.]

against the proposed accused persons. In other words, the Trial Court            A
and the High Court have proceeded as if an infallible case was required
to be shown by the prosecution in order to proceed against the proposed
accused persons. That had clearly been an erroneous approach towards
the prayer for proceeding against a person with reference to the evidence
available on record.
                                                                                 B
       14. The appellant (PW-1) has made the statement assigning
specific roles to the proposed accused persons. At the stage of
consideration of the application under Section 319 CrPC, of course, the
Trial Court was to look at something more than a prima facie case but
could not have gone to the extent of enquiring as to whether the matter
would ultimately result in conviction of the proposed accused persons.           C

       15. The other application moved by the prosecution after leading
of further evidence in the matter has been rejected by the Trial Court
essentially with reference to the impugned orders dated 24.07.2014 and
02.07.2018, which are the subject matter of challenge in this appeal.
                                                                                 D
       16. In the totality of the circumstances of this case, rather than
dilating further on the evidence, suffice it would be to observe for the
present purpose that the prayer of the prosecution for proceeding against
other accused persons, having not been examined in the proper
prospective and with due regard to the applicable principles, deserves to
be restored for reconsideration of the Trial Court.                              E

       17. Accordingly, this appeal is allowed in part, to the extent and in
the manner that the impugned orders are set aside and the applications
made by the prosecution under Section 319 CrPC are restored for
reconsideration of the Trial Court. In the interest of justice, it is made
clear that we have not pronounced on the merits of the case either way           F
and it would be expected of the Trial Court to reconsider the prayer of
prosecution for proceeding against the proposed accused persons totally
uninfluenced by any observation herein regarding facts of the case but
with due regard to the evidence on record and to the law applicable.
                                                                                 G
Kalpana K. Tripathy                                     Appeal partly allowed.




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