SUGREEV KUMAR versus STATE OF PUNJAB & ORS. on 15 March 2019

[2019] 4 S.C.R. 208

SUPREME COURT REPORTS

[2019] 4 S.C.R.

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SUGREEV KUMAR

v.

STATE OF PUNJAB & ORS.

(Criminal Appeal No. 509 of 2019)

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MARCH 15, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Code of Criminal Procedure, 1973:

s. 319 – Application under – In a criminal proceeding tryingCthree 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 personsto face trial, on the basis of testimony of a witness whereby he haddeposed that eleven persons were involved in the crime – Trial courtsummoned one person and dismissed the application qua sevenDpersons – High Court affirmed the order of trial court – On appeal,held: Section 319 empowers summoning of any person on the basisof any relevant evidence – However, the power being discretionary,is to be exercised sparingly – The test to be applied is the one whichis more than a prima facie case as examined at the time of framingcharge, but not of satisfaction to the extent that the evidence if goesEuncontroverted, would lead to the conviction of the accused – Inthe present case, consideration of the application had been as ifthe existence of a case beyond reasonable doubt was being examinedagainst the proposed accused – This was clearly an erroneousapproach – Impugned order is set aside and application is restoredFto be re-examined by the trial court.

Partly allowing the appeal, the Court

HELD: 1. The provisions contained in Section 319 CrPCare to achieve the objective that the real culprit should not getaway unpunished. By virtue of these provisions, the Court isGempowered to proceed against any person not shown as anaccused, if it appears from evidence that such person hascommitted any offence for which, he could be tried together withthe other accused persons. [Para 10][214-F, G]

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2. The provisions contained in Section 319 CrPC sanctionthe summoning of any person on the basis of any relevant evidenceas available on record. However, it being a discretionary powerand an extraordinary one, is to be exercised sparingly and onlywhen cogent evidence is available. The prime facie opinion whichis to be formed for exercise of this power requires strongerevidence than mere probability of complicity of a person. Thetest to be applied is the one which is more than a prime facie caseas examined at the time of framing charge but not of satisfactionto the extent that the evidence, if goes uncontroverted, wouldlead to the conviction of the accused. [Para 12][216-F, G]

3. In the present case, the consideration of the applicationunder Section 319 CrPC had been as if the existence of a casebeyond reasonable doubt was being examined against theproposed accused persons. The Trial Court and the High Courthave proceeded as if an infallible case was required to be shownby the prosecution in order to proceed against the proposedaccused persons. That had clearly been an erroneous approachtowards the prayer for proceeding against a person with referenceto the evidence available on record. [Para 13][216-H, 217-A, B]

4. The appellant (PW-1) has made the statement assigningspecific roles to the proposed accused persons. At the stage ofconsideration of the application under Section 319 CrPC, the trialcourt was to look at something more than a prima facie case butcould not have gone to the extent of enquiring as to whether thematter would ultimately result in conviction of the proposedaccused persons. [Para 14][217-B-C]

5. In the totality of the circumstances of the present case,the prayer of the prosecution for proceeding against other accusedpersons, having not been examined in the proper prospectiveand with due regard to the applicable principles, deserves to berestored for reconsideration of the trial court. [Para 16][217-D, E]

Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :[2014] 2 SCR 1 – followed.

Brijendra Singh & Ors. v. State of Rajasthan (2017) 7SCC 706 : [ 2017] 3 SCR 374 – referred to.

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[2019] 4 S.C.R.

ACase Law Reference

[2014] 2 SCR 1followed

Para 6Para 6

[2017] 3 SCR 374referred to

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.B509 of 2019.

From the Judgment and Order dated 02.07.2018 by the High Courtof 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,CPradeep Kumar Arya, Kapl Dhaka, Rana Kunal, Chander Shekhar Ashri,Amit K. Nain, Gagandeep Sharma, Alind Srivasatava, Ms. PriyanshuKamra, Ms. Charitarth Palli, Shubham Bhalla, Saurabh Ajay Gupta,Nishant Bishnoi, Ms. Srishti Prabhakar, Advs. for the Respondents.

The Judgment of the Court was delivered byD

DINESH MAHESHWARI J. 1. Leave Granted.

2. In this appeal, the complainant-appellant has called in questionthe judgement and order dated 02.07.2018 in Criminal Revision ApplicationNo. 2626 of 2014 whereby, the High Court of Punjab and Haryana atEChandigarh, has upheld the order dated 24.07.2014 as passed by theAdditional Sessions Judge, Fazilka in S.C. No. 9 of 14.01.2014 on anapplication filed under Section 319 of the Code of Criminal Procedure(‘CrPC’) seeking summoning of additional accused persons to stand thetrial.

F2.1 The sessions case aforesaid is pending trial for the offencesunderSections 302, 307, 341, 34 of the Indian Penal Code (‘IPC’) andSections 25, 54 and 59 of the Arms Act. By the said order dated24.07.2014 on the application under Section 319 CrPC, the Trial Court,while partly granting the prayer of the prosecution to summon one of theaccused Sonu son of Jaipal to face the trial, has dismissed the prayer forGsummoning the other 7 persons namely, Krishan Dev, Vikash son ofKrishan Dev, Rajan, Mukesh @ Jungli, Devinder @ Veeru, SurinderMahal 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.[DINESH MAHESHWARI, J.]

3.1 The prosecution case is that on 29.08.2013, the appellantaccompanied by his father, brother and other associates, proceeded toreclaim possession of their land from the erstwhile tenants in compliancewith 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 concernedrevenue officers were not present and while they were making theirway back to the village in search of the revenue officers, 3-4 carsintercepted 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 heatedexchange of words, the appellant, his family members and their associateswere attacked by the accused which resulted in the demise of theappellant’s father and brother while the others sustained varying injurieswith the appellant receiving three bullet injuries.

3.2 For the incident in question, FIR came to be filed against 11persons for the offences under Sections 302, 307, 341, 148 and 149 IPCas also Sections 27, 54 and 59 of the Arms Act. However, afterinvestigation, only 3 persons, namely, Vikram Gilla, Gurmit Singh andSunil Kumar, were charge-sheeted.

3.3 In trial, the appellant was examined by the prosecution asPW-1, who asserted in relation to the incident in question, inter alia, asunder:-

“…….After alighting from the Car Vikas raised Alarm thatthey be taught lesson for taking possession of their land. ThenVikram fired from his rifle on my father which hit him. Thenmy brother Sandeep alighted from the Jeep and Vikram withhis rifle fired two shots at him which hit on the left side of hischest and waist. Krishan again raised Lalkara and instigatedSonu why are you standing and asked him to kill all sons ofHanuman. Then Sonu fired three shots from his revolver outof which two fires on my chest near the heart and one nearthe left shoulder. Vikram again fired shot from his gun on myfather which hit him on his waist. Then all the accused startedindiscriminating firing with their revolver, 12 bore gun andpistols and the fires hit with the vehicles, Mahi Ram, BudhRam, my father and Sham Lal our servant. Thereafter weraised Raula of MAR DITTA MAR DITTA. Then accused triedto run away on their vehicles but Innova did not start and A

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Athey left the Innova then along with 12 bore rifle and ranaway from the spot in another vehicles.....(sic)”

3.4 In his cross-examination, the appellant deposed that KrishanDev, Vikas, Sonu, Rajan, Mukesh @ Jungli, Devinder @ Veeru, SurinderMahal and Pirthi Raj were declared innocent after investigation by theBpolice, but volunteered to state that they were wrongly declared innocent.

3.5 Pending further cross-examination of the appellant, anapplication under Section 319 CrPC was filed by the prosecution tosummon the aforesaid 8 persons to face trial on the basis of the testimonyof the appellant (PW-1), wherein, he had asserted that all of them werepresent at the crime scene; and had assaulted and injured the appellant,his family members and associates on exhortation by Krishan Dev, whichresulted in the demise of his father and brother. Hence, it was submittedthat there was sufficient material on record to summon all the aforesaidpersons to face the trial in this case.

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4. In its impugned order dated 24.07.2014, the Trial Court referredto certain inconsistencies in the testimony of the appellant as comparedto his statement under Section 161 CrPC and the FIR; and found nocase for summoning 7 of the aforesaid persons but considered it just andproper to summon Sonu son of Jaipal, who had allegedly fired threeshots from his firearm, which hit the appellant.

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5. Against the order aforesaid, the appellant filed a criminal revisionpetition, being CRR No. 2626 of 2014, before the High Court of Punjaband Haryana at Chandigarh which was dismissed by the impugned orderdated 02.07.2018. It is mentioned in paragraph 4 of the order impugnedthat the learned counsel for the petitioner had confined the relief onlyFqua the respondent Nos. 2 and 3, Krishan Dev and Vikas son of KrishanDev. The High Court upheld the order of the Trial Court while observingas under:

“11. In this case, statements of complainant and witnesses issame, which were recorded by the police during investigation.Learned trial Court has observed in its order that Vikas wasattributed lalkara to the effect that complainant party betaught lesson for taking possession of the disputed land whileSugreev (PW) had admitted in his cross-examination thatpossession of the disputed land had not yet been taken bythem. This shows that respondents, Krishna Dev and Vikas G

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were arrayed as accused because of enmity between theparties and the police during investigation had collected theevidence which prove that both these respondents were faraway from the place of occurrence.

12. Hon’ble Apex Court in the case Brijendra Singh (supra)has observed that for summoning the additional accusedunder Section 319 Cr.P.C. degree of satisfaction is muchstricter. Power under Section 319 Cr.P.C. is discretionary andextraordinary power which is to be exercised sparingly andonly in those cases where circumstances of the case sowarrants and strong and cogent evidence occurs against aperson from the evidence led before the Court and not in acasual and cavalier manner. ….”

6. Assailing the order aforesaid, the learned counsel for theappellant has strenuously argued that the High Court as also the TrialCourt have failed to consider the fact that respondent No. 2 KrishanDev and respondent No. 3 Vikas are the main perpetrators of the crime;and had planned everything in advance for executing the crime and toescape from the law. Learned counsel would submit that the exhortation(lalkara) was a previously planned one as the possession of the landwas to be handed over to the appellant and his family members; that theInnova car, which is registered in the name of respondent No. 2, wasrecovered from the scene of the crime; and that the report submitted bythe police is based on the statement of witnesses at the instance of therespondents Nos. 2 and 3, where some of them are related to respondentNo. 2 and while the others are his acquaintances. Learned counsel wouldsubmit that with the evidence available on record, a clear case forproceeding against the aforesaid persons alongwith the charge-sheetedaccused is made out. Learned counsel for the appellant has referred toand 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 dulysupported the orders impugned and have submitted that no case forinterference is made out as the discretionary powers of the Court undersection 319 of CrPC are to be exercised sparingly and, in this case, theTrial Court and the High Court, after having thoroughly examined therecord, found no substance in the application so moved. More specifically, A

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Alearned counsel for respondent No. 6 has pointed out that before theHigh Court, the appellant had given up the challenge qua this respondent.Learned counsel would submit that the impugned order has been passedafter due consideration of the material on record; that his name wasneither reflected in the FIR nor in the statement under Section 161 CrPC;that after police investigation, nothing incriminating was found againstBhim and even the Trial Court has found no cogent evidence against him.

8. During the course of submissions, it has been pointed out thatsince after passing of the orders impugned, further evidence of theprosecution was recorded in the trial and thereafter, another applicationunder Section 319 CrPC was moved for summoning of the aforesaid 7Cpersons but the same was also rejected by the Trial Court on 28.09.2018.It has also been submitted that practically, the entire prosecution evidencein the matter is over.

9. Having given anxious consideration to the rival submissionsand having examined the record with reference to the law applicable,Dwe are clearly of the view that the disposal of applications moved in thismatter under Section 319 CrPC cannot be approved; and in the givenset of facts and circumstances, it appears just and proper that the TrialCourt should re-examine the entire matter with reference to the principlesapplicable to the case, in order to take a decision afresh as to whetherEthe persons above-named or any of them deserve to be tried togetherwith the other accused persons.

10. It remains trite that the provisions contained in Section 319CrPC are to achieve the objective that the real culprit should not getaway unpunished. By virtue of these provisions, the Court is empoweredFto proceed against any person not shown as an accused, if it appearsfrom evidence that such person has committed any offence for which,he could be tried together with the other accused persons. In HardeepSingh (supra), the Constitution Bench of this Court has explained thepurpose behind this provision, inter alia, in the following:

G“12. Section 319 Code of Criminal Procedure springs out ofthe doctrine judex damnatur cum nocens absolvitur (judge iscondemned when guilty is acquitted) and this doctrine mustbe used as a beacon light while explaining the ambit and thespirit underlying the enactment of Section 319 Code ofCriminal Procedure.

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SUGREEV KUMAR v. STATE OF PUNJAB & ORS.[DINESH MAHESHWARI, J.]

13. It is the duty of the court to do justice by punishing thereal culprit. Where the investigating agency for any reasondoes not array one of the real culprits as an accused, thecourt is not powerless in calling the said accused to facetrial. The question remains under what circumstances and atwhat stage should the court exercise its power as contemplatedin Section 319 CrPC?

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19. The court is the sole repository of justice and a duty iscast upon it to uphold the rule of law and, therefore, it will beinappropriate to deny the existence of such powers with thecourts in our criminal justice system where it is not uncommonthat the real accused, at times, get away by manipulating theinvestigating and/or the prosecuting agency. The desire toavoid trial is so strong that an accused makes efforts at timesto get himself absolved even at the stage of investigation orinquiry even though he may be connected with the commissionof the offence.”

11. As regards the degree of satisfaction required for invokingthe powers under Section 319 CrPC, the Constitution Bench has laiddown the principles as follows:

“95. At the time of taking cognizance, the court has to seewhether a prima facie case is made out to proceed againstthe accused. Under Section 319 CrPC, though the test of primafacie case is the same, the degree of satisfaction that isrequired is much stricter. A two-Judge Bench of this Court inVikas v. State of Rajasthan, held that on the objectivesatisfaction of the court a person may be “arrested” or“summoned”, as the circumstances of the case may require, ifit appears from the evidence that any such person not beingthe accused has committed an offence for which such personcould be tried together with the already arraigned accusedpersons.

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105. Power under Section 319 CrPC is a discretionary andan extraordinary power. It is to be exercised sparingly and A

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only in those cases where the circumstances of the case sowarrant. It is not to be exercised because the Magistrate orthe Sessions Judge is of the opinion that some other personmay also be guilty of committing that offence. Only wherestrong and cogent evidence occurs against a person from theevidence led before the court that such power should beexercised and not in a casual and cavalier manner.

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106. Thus, we hold that though only a prima facie case is tobe established from the evidence led before the court, notnecessarily tested on the anvil of cross-examination, it requiresmuch stronger evidence than mere probability of hiscomplicity. The test that has to be applied is one which ismore than prima facie case as exercised at the time of framingof charge, but short of satisfaction to an extent that theevidence, if goes unrebutted, would lead to conviction. In theabsence of such satisfaction, the court should refrain fromexercising power under Section 319 CrPC. In Section 319CrPC the purpose of providing if “it appears from the evidencethat any person not being the accused has committed anyoffence” is clear from the words “for which such person couldbe tried together with the accused.” The words used are not“for which such person could be convicted”. There is,therefore, no scope for the court acting under Section 319CrPC to form any opinion as to the guilt of the accused.”

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12. Thus, the provisions contained in Section 319 CrPC sanctionthe summoning of any person on the basis of any relevant evidence asavailable on record. However, it being a discretionary power and anFextraordinary one, is to be exercised sparingly and only when cogentevidence is available. The prime facie opinion which is to be formed forexercise of this power requires stronger evidence than mere probabilityof complicity of a person. The test to be applied is the one which is morethan a prime facie case as examined at the time of framing charge butGnot 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 ofthe present case, we are of the view that the consideration of theapplication under Section 319 CrPC in the orders impugned had been asHif the existence of a case beyond reasonable doubt was being examined against the proposed accused persons. In other words, the Trial Courtand the High Court have proceeded as if an infallible case was requiredto be shown by the prosecution in order to proceed against the proposedaccused persons. That had clearly been an erroneous approach towardsthe prayer for proceeding against a person with reference to the evidenceavailable on record.

14. The appellant (PW-1) has made the statement assigningspecific roles to the proposed accused persons. At the stage ofconsideration of the application under Section 319 CrPC, of course, theTrial Court was to look at something more than a prima facie case butcould not have gone to the extent of enquiring as to whether the matterwould ultimately result in conviction of the proposed accused persons.

15. The other application moved by the prosecution after leadingof further evidence in the matter has been rejected by the Trial Courtessentially with reference to the impugned orders dated 24.07.2014 and02.07.2018, which are the subject matter of challenge in this appeal.

16. In the totality of the circumstances of this case, rather thandilating further on the evidence, suffice it would be to observe for thepresent purpose that the prayer of the prosecution for proceeding againstother accused persons, having not been examined in the properprospective and with due regard to the applicable principles, deserves tobe restored for reconsideration of the Trial Court.

17. Accordingly, this appeal is allowed in part, to the extent and inthe manner that the impugned orders are set aside and the applicationsmade by the prosecution under Section 319 CrPC are restored forreconsideration of the Trial Court. In the interest of justice, it is madeclear that we have not pronounced on the merits of the case either wayand it would be expected of the Trial Court to reconsider the prayer ofprosecution for proceeding against the proposed accused persons totallyuninfluenced by any observation herein regarding facts of the case butwith due regard to the evidence on record and to the law applicable.

Kalpana K. Tripathy

Appeal partly allowed.

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