SANDEEP KUMAR versus STATE OF HARYANA & ANR on 28 July 2023

SUPREME COURT REPORTS[2023] 9 S.C.R. 1210 : 2023 INSC 654

[2023] 9 S.C.R.

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SANDEEP KUMAR

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THE STATE OF HARYANA & ANR.

(Criminal Appeal No. 2195 of 2023)

BJULY 28, 2023

[C. T. RAVIKUMAR AND SUDHANSHU DHULIA, JJ.]

Code of Criminal Procedure, 1973 – s.319 – The appellant-informant (PW-9) moved an application u/s. 319 before the TrialCourt to summon three additional accused persons, R, K and P,Cwho were named in FIR but not in the charge-sheet and they wereidentified by the appellant as assailants in his examination-in-chiefduring trial – The trial Court allowed the application and summonedthe three accused persons – However, the High Court set aside thesaid order in revision – The revision was allowed for the reasonsDthat R was found innocent during investigation and that he neverused the weapon and had actually fled from the spot – On appeal,held: Observations of the High Court were factually incorrect ascan be seen from the examination-in-chief of PW-9 that the revisionisthad fled the scene only after the commission of the crime by an“unlawful assembly” – For attracting the offence u/s. 149 IPC, oneEsimply has to be a part of an unlawful assembly, any specificindividual role or act is not material – High Court committed graveerror – The reasoning given by the High Court, cannot be acceptedat the stage of consideration of application u/s 319 Cr.PC – Themerits of the evidence has to be appreciated only during the trialFand not at the stage of s. 319 – Order of High Court set aside –Appeal allowed – Penal Code,1860 – ss. 458, 460, 323, 302, 148,149 and 285 – Arms Act, 1959 – s. 25.

Code of Criminal Procedure, 1973 – s.319 – At the stage ofsummoning an accused, there has to be a prima facie satisfaction ofGthe Court – In the instant case, the evidence which was there beforethe Court was of an eye witness who has clearly stated before theCourt that a crime has been committed, inter alia, by the revisionist –The Court need not cross-examine this witness – It can stop thetrial at that stage itself if such application had been moved u/s.319.H

Hardeep Singh v. State of Punjab and Others (2014) 3SCC 92 : [2004] SCR 913 – relied on.

Manjeet Singh v. State of Haryana & Ors. 2021 SCCOnLine SC 632; Yunis alias Kariya v. State of MadhyaPradesh AIR 2003 SC 539 – referred to.

Case Law Reference

AIR 2003 SC 539referred toPara 4[2004] SCR 913relied onPara 4

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.2195 of 2023.

From the Judgment and Order dated 02.03.2022 of the High Courtof Punjab & Haryana at Chandigarh in CRR No.452 of 2021.

Ram Naresh Yadav, Suryavir, Advs. for the Appellant.

Vishal Mahajan, DAG, Dr. Monika Gusain, Shreeyash Uday Lalit,Abhinav Aggarwal, Ishaan George, Advs. for the Respondents.

The Judgment of the Court was delivered by SUDHANSHU DHULIA, J.

Leave granted.

2. Heard Shri Ram Naresh Yadav learned Counsel for theappellant/complainant, Shri Vishal Mahajan, Deputy Advocate Generalfor the State/Respondent No.1 and Shri Shreeyash U. Lalit learnedCounsel for Respondent No.2.

3. The appellant before this Court was the informant in the caseand was a prosecution witness (PW-9), in Sessions Trial No.8/2018,which is being held before the Additional Sessions Judge, Sirsa, Haryana,under Sections 458, 460, 323, 302, 148, 149 and 285 of IPC, 1860 readwith Section 25 of Arms Act, 1959. The incident is of 12:30 mid nightdated 07.09.2017 which occurred at Sirsa, Haryana. The First InformationReport reveals that there were in total fifteen assailants which had brokeopen the complainant’s house, in the middle of the night and had come inorder to assault the inmates of the house. Out of these assailants sevenhave been named who were armed with lathi and three of the namedassailants/accused namely Ramesh Gandhi, Kalu Jakhar and Pawanwere armed with gun and pistols respectively. Police after investigation A

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Ahad filed chargesheet against nine persons, but not against RameshGandhi, Kalu Jakhar or Pawan whose names were placed in column 2of the chargesheet. After the trial had commenced and the complainantwas being examined as PW-9, he disclosed the entire event as an eyewitness in his examination-in-chief, where he has unambiguously assignedthe roles to these three assailants as well, who were named in the FIRBbut not made accused in the chargesheet, that is, Ramesh Gandhi(respondent No.2), Kalu Jakhar and Pawan.

4. Immediately thereafter an application was moved before theCourt by the Appellant under Section 319 Code of Criminal Procedure,for summoning these three persons Ramesh Gandhi, Kalu Jakhar andCPawan as accused so that they may also face the trial. This applicationas we have already stated was allowed, but the order was set aside bythe High Court in Revision.

Before we examine the scope of Section 319 of Code of CriminalProcedure, it would be relevant to go through the statement given byDPW-9, complainant, in his examination in chief as that forms the basisfor summoning the three persons. PW-9 states in his examination-in-chief that on 07.09.2017, he along with his younger brother PradeepKumar and his cousin Bijender was sleeping in the court yard of theirhouse, after having dinner. His father, Hanuman (deceased), was alsoEsleeping in the court yard. The main gate of the house was bolted. Hisuncle Subhash, Jaibir and Raj Kumar were also sleeping in their houses.At about 12:30 i.e. in the middle of the night fifteen persons entered theirhouse having ‘lathi’ and ‘danda’ in their hands, from the adjacent roomby breaking the chain. Two were having pistols in their hand which couldbe seen in the light of the bulb. He then goes on to say that while RameshFGandhi was having a gun, Kalu Jakhar and Pawan were armed withpistols and remaining were having lathis and dandas. They first exhortedand then started beating all of them and threatened that today they willteach them a lesson, for selling liquor. When they were inflicting blowson the three of them his father Hanuman came to their rescue, to whomGSubhash gave a blow from his lathi. He then states that all the accusedwere inflicting injuries on his father, and when they finally left the house,they left after firing from their weapons. These are the essential detailsof his slightly longer narration.

Section 319 of Cr.PC reads as under:

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SANDEEP KUMAR v. THE STATE OF HARYANA & ANR.[SUDHANSHU DHULIA, J.]

“319. Power to proceed against other persons appearingto be guilty of offence.—

(1) Where, in the course of any inquiry into, or trial of, anoffence, it appears from the evidence that any person notbeing the accused has committed any offence for whichsuch person could be tried together with the accused, theCourt may proceed against such person for the offencewhich he appears to have committed.

(2) Where such person is not attending the Court, he maybe arrested or summoned, as the circumstances of the casemay require, for the purpose aforesaid.

(3) Any person attending the Court, although not underarrest or upon a summons, may be detained by such Courtfor the purpose of the inquiry into, or trial of, the offencewhich he appears to have committed.

(4) Where the Court proceeds against any person undersub-section (1) then—

(a) the proceedings in respect of such person shall becommenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case mayproceed as if such person had been an accused personwhen the Court took cognizance of the offence upon whichthe inquiry or trial was commenced.”

Sub-section (1) of Section 319 leaves it to the judicial discretionof the Court, where the trial is proceeding to summon a person as anaccused (who is so far not an accused in trial), if evidence has appearedbefore the Court that such a person has committed an offence for whichhe should be tried together with the other accused. This judicial discretionis extremely limited by the circumstances which have been stated insub-section (1) of Section 319. We have already referred to the statementgiven by PW-9, (an eye-witness) in his examination-in-chief. To ourmind the Court had no alternative here but to summon the accused persons,considering that now it had an evidence before it in the form of thestatement of PW-9.

Pursuant to the summoning order out of the three accused whohave been summoned only one of them, i.e., Ramesh Gandhi who is A

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ARespondent No. 2 had filed a Revision before the Punjab & HaryanaHigh Court which was allowed by order dated 02.03.2022

In our considered opinion the High Court has not appreciated thematter in the true perspective of Section 319 Cr.P.C. The revision ofShri Ramesh Gandhi (one of the three accused who were summoned),Bwas allowed for the reasons that he was found innocent duringinvestigation and that he never used the gun and had actually fled fromthe spot. These observations are even factually incorrect, from what wehave just seen in the examination-in-chief of PW-9, the revisionist hadfled the scene only after the commission of the crime by an “unlawfulassembly”. In his statement (PW-9), it has further come that while leavingCthe house firing was also done. Further, totally uncalled for presumptionhas been made by the High Court in favour of the revisionist, declaringhim to be innocent.

The High Court has reasoned as follows :- “The petitioner was found innocent during investigation.DIt could not even be established on record whether thepetitioner was attributed any injury and even as per theversion of the complainant himself, the petitioner hadallegedly fled away from the spot. Thus, the material onrecord, does not make it a fit case to summon the petitionerEas an additional accused.

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The matter can be looked from another angle. It is the case ofthe complainant that the petitioner armed with a gun had cometo the place of occurrence along with other co-accused.However, it does not seem to the common prudence that aFperson coming with a premediated mind at the spot with agun, would flee without even firing or attempt a shot. Thisclearly points towards a false implication of the petitioner.”

In our opinion, whereas the trial court was absolutely correct tohave summoned the accused based on the evidence of PW-9, the HighCourt committed a grave error in allowing the revision of the accused.GUnder the facts and circumstances of the case and on the powers of theCourt under Section 319 and based on the evidence of PW-9, it wasabsolutely necessary for the trial court to have summoned the threeaccused, including the revisionist.

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The reasoning given by the High Court, cannot be accepted at thestage of consideration of application under Section 319 Cr.PC. The meritsof the evidence has to be appreciated only during the trial, by crossexamination of the witnesses and scrutiny of the Court. This is not to bedone at the stage of Section 319, though this is precisely what the HighCourt has done in the present case. Moreover, the High Court did notappreciate the important fact that the charges being faced by the accusedwere under Sections 458, 460, 323, 285, 302, 148 and 149 of IPC. Thus,one of the charges being Section 149, which is of being a member of anunlawful assembly, for attracting the offence under Section 149 IPC,one simply has to be a part of an unlawful assembly. Any specificindividual role or act is not material. [See : 2021 SCC OnLine SC 632-Manjeet Singh v. State of Haryana & Ors., Para 38].

A plain reading of Section 149 IPC (read with Section 141 IPC),makes it clear that no overt act needs to be assigned to a member of anunlawful assembly. “Even if no overt act is imputed to a particularperson when the charge is under Section 149 IPC, the presence ofthe accused as part of an unlawful assembly is sufficient forconviction”. [See : Yunis alias Kariyav. State of Madhya Pradesh,AIR 2003 SC 539]

The entire purpose of criminal trial is to go to the truth of thematter. Once there is satisfaction of the Court that there is evidencebefore it that an accused has committed an offence, the court can proceedagainst such a person. At the stage of summoning an accused, there hasto be a prima facie satisfaction of the Court. The evidence which wasthere before the Court was of an eye witness who has clearly statedbefore the Court that a crime has been committed, inter alia, by therevisionist. The Court need not cross-examine this witness. It can stopthe trial at that stage itself if such application had been moved underSection 319. The detail examination of the witness and other witnessesis a subject matter of the trial which has to begin afresh. The scope andambit of Section 319 CrPC has been discussed and dealt with in detail inthe Constitution Bench judgment of Hardeep Singh v. State of Punjaband Others reported in (2014) 3 SCC 92 where it said:

“12. Section 319 CrPC springs out of the doctrine judexdamnatur cum nocens absolvitur (Judge is condemnedwhen guilty is acquitted) and this doctrine must be used as AB

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a beacon light while explaining the ambit and the spiritunderlying the enactment of Section 319 Cr. PC.

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.”

5. In Hardeep Singh (supra), this court further said that the Court only has to see at the state of Section 319, whether a prima facie caseis made out although the degree of satisfaction has to be much higher.

“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 ofprima facie case is the same, the degree of satisfactionthat is required is much stricter. A two-Judge Bench of thisCourt in Vikas v. State of Rajasthan, held that on theobjective satisfaction of the court a person may be“arrested” or “summoned”, as the circumstances of thecase may require, if it appears from the evidence that anysuch person not being the accused has committed anoffence for which such person could be tried together withthe already arraigned accused persons.

In Para 106 it stated as under:

Thus, we hold that though only a prima facie case is to beestablished from the evidence led before the court, notnecessarily tested on the anvil of cross-examination, itrequires much stronger evidence than mere probability ofhis complicity. The test that has to be applied is one whichis more than prima facie case as exercised at the time offraming of charge, but short of satisfaction to an extentthat the evidence, if goes unrebutted, would lead toconviction. In the absence of such satisfaction, the courtshould refrain from exercising power under Section 319CrPC. In Section 319 CrPC the purpose of providing if “itappears from the evidence that any person not being theaccused has committed any offence” it is clear from thewords “for which such person could be tried together with SANDEEP KUMAR v. THE STATE OF HARYANA & ANR.[SUDHANSHU DHULIA, J.]

the accused”. The words used are not “for which suchperson could be convicted”. There is, therefore, no scopefor the court acting under Section 319 CrPC to form anyopinion as to the guilt of the accused.”

In our considered opinion, the prosecution had fully made out itscase for summoning the three as accused under Section 319, Cr.PC, sothat they may also face trial.

6. Under these circumstances, the appeal is allowed and the orderof the High Court dated 02.03.2022, is hereby set aside. It is furtherdirected that the trial shall proceed now in accordance with law, asexpeditiously as possible.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeal allowed.

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