2023 INSC 654 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2195 OF 2023

(ARISING OUT OF SLP (CRL) NO.6537 OF 2022)

SANDEEP KUMAR …APPELLANT

VERSUS

THE STATE OF HARYANA & ANR. …RESPONDENTS

J U D G M E N T

Sudhanshu Dhulia, J.

Leave granted.

2.Heard Shri Ram Naresh Yadav learned Counsel for the

appellant/complainant, Shri Vishal Mahajan, Deputy

Advocate General for the State/Respondent No.1 and Shri

Shreeyash U. Lalit learned Counsel for Respondent No.2.

3.The appellant before this Court was the informant in

the case and 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,

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323, 302, 148, 149 and 285 of IPC, 1860 read with Section

25 of Arms Act, 1959. The incident is of 12:30 mid night

dated 07.09.2017 which occurred at Sirsa, Haryana. The

First Information Report reveals that there were in total

fifteen assailants which had broke open the complainant’s

house, in the middle of the night and had come in order to

assault the inmates of the house. Out of these assailants

seven have been named who were armed with lathi and

three of the named assailants/accused namely Ramesh

Gandhi, Kalu Jakhar and Pawan were armed with gun and

pistols respectively. Police after investigation had filed

chargesheet against nine persons, but not against Ramesh

Gandhi, Kalu Jakhar or Pawan whose names were placed in

column 2 of the chargesheet. After the trial had commenced

and the complainant was being examined as PW-9, he

disclosed the entire event as an eye witness in his

examination-in-chief, where he has unambiguously assigned

the roles to these three assailants as well, who were named

in the FIR but not made accused in the chargesheet, that is,

Ramesh Gandhi (respondent No.2), Kalu Jakhar and Pawan.

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4.Immediately thereafter an application was moved

before the Court by the Appellant under Section 319 Code of

Criminal Procedure, for summoning these three persons

Ramesh Gandhi, Kalu Jakhar and Pawan as accused so

that they may also face the trial. This application as we

have already stated was allowed, but the order was set aside

by the High Court in Revision.

Before we examine the scope of Section 319 of Code of

Criminal Procedure, it would be relevant to go through the

statement given by PW-9, complainant, in his examination

in chief as that forms the basis for summoning the three

persons. PW-9 states in his examination-in-chief that on

07.09.2017, he along with his younger brother Pradeep

Kumar and his cousin Bijender was sleeping in the court

yard of their house, after having dinner. His father,

Hanuman (deceased), was also sleeping in the court yard.

The main gate of the house was bolted. His uncle 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 their house having ‘lathi’ and ‘danda’ in their hands,

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from the adjacent room by breaking the chain. Two were

having pistols in their hand which could be seen in the light

of the bulb. He then goes on to say that while Ramesh

Gandhi was having a gun, Kalu Jakhar and Pawan were

armed with pistols and remaining were having lathis and

dandas. They first exhorted and then started beating all of

them and threatened that today they will teach them a

lesson, for selling liquor. When they were inflicting blows on

the three of them his father Hanuman came to their rescue,

to whom Subhash gave a blow from his lathi. He then states

that all the accused were inflicting injuries on his father,

and when they finally left the house, they left after firing

from their weapons. These are the essential details of his

slightly longer narration.

Section 319 of Cr.PC reads as under:

“319. Power to proceed against other

persons appearing to be guilty of

offence.—

(1) Where, in the course of any 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

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offence which he appears to have

committed.

(2) Where such person is not attending the

Court, he may be arrested or summoned,

as the circumstances of the case may

require, for the purpose aforesaid.

(3) Any person attending the Court,

although not under arrest 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—

(a) the proceedings in respect of such

person shall be commenced afresh, and

the witnesses re-heard;

(b) subject to the provisions of clause (a),

the case 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.”

Sub-section (1) of Section 319 leaves it to the judicial

discretion of the Court, where the trial is proceeding to

summon a person as an accused (who is so far not an

accused in trial), if evidence has appeared before the Court

that such a person has committed an offence for which he

should be tried together with the other accused. This

judicial discretion is extremely limited by the circumstances

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which have been stated in sub-section (1) of Section 319.

We have already referred to the statement given by PW-9,

(an eye-witness) in his examination-in-chief. To our mind

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 the statement of PW-9.

Pursuant to the summoning order out of the three

accused who have been summoned only one of them, i.e.,

Ramesh Gandhi who is Respondent No. 2 had filed a

Revision before the Punjab & Haryana High Court which

was allowed by order dated 02.03.2022

In our considered opinion the High Court has not

appreciated the matter in the true perspective of Section

319 Cr.P.C. The revision of Shri Ramesh Gandhi (one of the

three accused who were summoned), was allowed for the

reasons that he was found innocent during investigation

and that he never used the gun and had actually fled from

the spot. These observations are even factually incorrect,

from what we have just seen in the examination-in-chief of

PW-9, the revisionist had fled the scene only after the

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commission of the crime by an “unlawful assembly”. In his

statement (PW-9), it has further come that while leaving the

house firing was also done. Further, totally uncalled for

presumption has been made by the High Court in favour of

the revisionist, declaring him to be innocent.

The High Court has reasoned as follows :-

“The petitioner was found innocent during

investigation. It could not even be

established on record whether the petitioner

was attributed any injury and even as per

the version of the complainant himself, the

petitioner had allegedly fled away from the

spot. Thus, the material on record, does not

make it a fit case to summon the petitioner

as an additional accused.

The matter can be looked from another

angle. It is the case of the complainant that

the petitioner armed with a gun had come to

the place of occurrence along with other co-

accused. However, it does not seem to the

common prudence that a person coming

with a premediated mind at the spot with a

gun, would flee without even firing or

attempt a shot. This clearly points towards

a false implication of the petitioner.”

In our opinion, whereas the trial court was absolutely

correct to have summoned the accused based on the

evidence of PW-9, the High Court committed a grave error in

allowing the revision of the accused. Under the facts and

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circumstances of the case and on the powers of the Court

under Section 319 and based on the evidence of PW-9, it

was absolutely necessary for the trial court to have

summoned the three accused, including the revisionist.

The reasoning given by the High Court, cannot be

accepted at the stage of consideration of application under

Section 319 Cr.PC. The merits of the evidence has to be

appreciated only during the trial, by cross examination of

the witnesses and scrutiny of the Court. This is not to be

done at the stage of Section 319, though this is precisely

what the High Court has done in the present case.

Moreover, the High Court did not appreciate the important

fact that the charges being faced by the accused were 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 an unlawful assembly, for attracting the

offence under Section 149 IPC, one simply has to be a part

of an unlawful assembly. Any specific individual role or act

is not material. [See : 2021 SCC OnLine SC 632-Manjeet

Singh v. State of Haryana & Ors., Para 38].

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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 an unlawful assembly. “Even if no

overt act is imputed to a particular person when the charge is

under Section 149 IPC, the presence of the accused as part of

an unlawful assembly is sufficient for conviction”. [See :

Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003

SC 539]

The entire purpose of criminal trial is to go to the

truth of the matter. Once there is satisfaction of the Court

that there is evidence before it that an accused has

committed an offence, the court can proceed against such a

person. At the stage of summoning an accused, there has to

be a prima facie satisfaction of the Court. The evidence

which was there before the Court was of an eye witness who

has clearly stated before the Court that a crime has been

committed, inter alia, by the revisionist. The Court need not

cross-examine this witness. It can stop the trial at that

stage itself if such application had been moved under

Section 319. The detail examination of the witness and

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other witnesses is a subject matter of the trial which has to

begin afresh. The scope and ambit of Section 319 CrPC has

been discussed and dealt with in detail in the Constitution

Bench judgment of Hardeep Singh v. State of Punjab and

Others reported in (2014) 3 SCC 92 where it said:

“12. Section 319 CrPC 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

Cr. PC.

13. It is the duty of the court to do justice

by punishing the 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.”

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 case is made out although the degree

of satisfaction has to be much higher.

“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

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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

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 persons.

In Para 106 it stated as under:

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

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 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” it 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,

therefore, no scope for the court acting

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under Section 319 CrPC to form any

opinion as to the guilt of the accused.”

In our considered opinion, the prosecution had fully

made out its case for summoning the three as accused

under Section 319, Cr.PC, so that they may also face trial.

6.Under these circumstances, the appeal is allowed and

the order of the High Court dated 02.03.2022, is hereby set

aside. It is further directed that the trial shall proceed now

in accordance with law, as expeditiously as possible.

……..............................J.

[C.T. RAVIKUMAR]

.

…….............................J.

[SUDHANSHU DHULIA]

New Delhi,

July 28, 2023.