Supreme court on Friday by a two judge bench presided by Justice C T Ravikumar and Justice Sudhanshu Dhulia reiterated the scope of section 319 of Criminal Procedure Code, 1973 dealing with power to proceed against other persons appearing to be guilty of offence in Sandeep Kumar v. State of Haryana and Anr. (2023) INSC 654.
Facts of the Case
Sandeep Kumar, the appellant herein, is the complainant in the sessions case registered with Additional Sessions Court of Sirsa, Haryana, impugns the judgment of Punjab and Haryana High Court wherein through a revision order one of the accused secured relief against section 319 CrPC application moved by appellant in trial court.
It is a case where 15 assailants unlawfully broke open the house of the appellant and beat him and his relatives including his father armed with lathy, even gun and pistols, and the charges in chargesheet presented by police have framed the accused persons under sections 148, 149, 285, 302, 325, 458 and 460 of the Indian Penal Code, 1860 and Section 25 of Arms Act of 1959.
But the police during presentation of chargesheet have placed the names of three persons Ramesh Gandhi, Khalu Jakhar and Pawan, who had been armed with gun and pistols respectively, which he fired lastly according to appellant , in column 2 of the chargesheet.
Appellant who is the prosecution witness PW13 in the case as an eye witness during his examination –in-chief had admitted in the court of the involvement of the excluded three persons in detail and moved an application under Section 319 of CrPC. The trial court allowed the application and summoning order was issued but on a revision petition by one of the accused namely Ramesh Gandhi was revisioned and disposed off.
Provision of Law
Section 319 CrPC reads as follows:
“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 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.”
Observations of the High Court
“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 statement of the complainant that the petitioner armed with a gun had come to the place of occurrence along with other coaccused. However, it does not seem to the common prudence that a person coming with a premeditated mind at the spot with a gun, would flee without even firing or attempting a shot. This clearly points towards a false implication of the petitioner.”
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.
Observations of the Supreme Court
Supreme court opined that:
1.observation of high court was factually incorrect which could be understood from the examination-in-chief of the complainant/appellant. The revisionist has fled from the scene only after commission of crime by an unlawful assembly. Before leaving the house firing was also done by the revisionist as per statement of appellant.
2. 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.
3.Under the facts and 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.
4.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
5.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
Apex Court by citing Manjeet Singh v. State of Haryana and Ors, (2021)SCC 632 stated that for attracting an offence under Section 149 of IPC one simply has to be a part of the unlawful assembly and any specific individual role or act was immaterial.
In Yunis alias Kariya v. State of Madhya Pradesh, AIR (2003) SCC 539 stated that “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”.
The court went on to say that at the stage of summoning of accused there has to be a prima facie satisfaction of court based on the evidence before it. In this case the statement of eye witness was sufficient and it can stop trial and start detailed examination of the witnesses afresh.
Scope and Ambit of s.319 CrPC
The scope and ambit of section 319 of CrPC was explained by apex court citing constitution bench judgment of Hardeep Singh v. State of Punjab and Ors. (2009) 16 SCC 785 : (2010) 2. SCC (Cri) 355 which gave importance to the doctrine of ‘Judex damnatur cum nocens absolvitur’ meaning Judge is condemned when guilty is acquitted, as the beacon light to explain ambit of 319 CrPC. While considering S. 319 CrPC the degree of satisfaction required to arraign somenone as accused must be stricter .
In para 106 it states 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.”
Hence the court went on to set aside the High court revision order by allowing the appeal with a direction to proceed with the trial in accordance with law expeditiously.
Reference: CRIMINAL APPEAL NO. 2195 OF 2023 (ARISING OUT OF SLP (CRL) NO.6537 OF 2022)
