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Supreme Court of India
P. SATHASIVAM, CJI., B.S. CHAUHAN, RANJANA PRAKASH DESAI, RANJAN GOGOI & S.A. BOBDE, JJ.
Hardeep Singh & Others – Appellants
Versus
State of Punjab & Others – Respondents
CRIMINAL APPEAL NO. 1750 OF 2008 With CRIMINAL APPEAL NO. 1751 of 2008 With SPECIAL LEAVE PETITION (CRL.) NO. 9184 of 2008 With SPECIAL LEAVE PETITION (CRL.) NO. 7209 of 2010 With SPECIAL LEAVE PETITION (CRL.) NO. 5724 of 2009 With SPECIAL LEAVE PETITION (CRL.) NO. 5975 of 2009 With SPECIAL LEAVE PETITION (CRL.) NO. 9040 of 2010 With SPECIAL LEAVE PETITION (CRL.) NO. 5331 of 2009 With SPECIAL LEAVE PETITION (CRL.) NO. 9157 of 2009 With SPECIAL LEAVE PETITION (CRL.) NOS. 4503-4504 of 2012
Decided On : 10-01-2014
AIR 2013 SC 3018 - Relied upon
(b) Constitution of India - Articles 20 and 21 - Mandate - Protection of accused from prejudice by ensuring fair and efficacious trial - Also to the victim and society that no guilty should escape punishment - Section 319 Cr PC has been incorporated to achieve this end of justice. (Paras 7 and 8)
(c) Code of Criminal Procedure, 1973 - Section 319 - Court duty bound to punish real culprit - Investigating agency not arraying one of the real culprits - Court is not powerless - It can summon that accused for trial under section 319 - Power u/s 319 can be exercised only by courts as defined in CrPC that is a Court of Sessions or a Court of Magistrate and not by any officer not acting as a court. (Paras 12 and 14)
(d) Code of Criminal Procedure, 1973 - Section 319 - Person to be proceeded against - Necessarily not an accused already facing trial, either a person named in Column 2 of the chargesheet or a person whose name has been disclosed in any material before the court but not investigated, and a person whose complicity may be indicated and connected with the commission of the offence. (Para 15)
(e) Interpretation of statute - Penal statutes - Duty of Court - Legislature cannot be presumed to have imagined all circumstances - Therefore Courts are duty bound to give full effect to the words used by legislature so as to encompass any situation which they may have to tackle while proceeding to try an offence. (Para 16)
(f) Code of Criminal Procedure, 1073 - Section 193 - Power to take cognizance at stage of committal - Opening non-obstante clause - Means that power to take cognizance is not restricted by section 193 - Court can exercise that power u/s 319 Cr PC which is an enabling provision - Stage of committal is neither stage of investigation, nor trial. (Paras 19 to 21)
AIR 2013 SC 3018 - Relied upon
(1993) 2 SCC 16; AIR 1998 SC 3148; (1920) ILR 43 Mad 511 - Referred
(g) Administration of Justice - Criminal Justice - Trial - Means determination of issues adjudging the guilt or innocence of accused - He has to be aware of what is the case against him - This is done at the stage of framing of charge - Therefore 'trial' commences only on charges being framed - View that in a criminal case trial commences on cognizance being taken held erroneous. (Para 35)
AIR 1967 SC 1167; AIR 1983 SC 439; AIR 1996 SC 1931; AIR 2004 SC 1890; AIR 1957 SC 389; AIR 1979 SC 94; AIR 1980 SC 962; AIR 1996 SC 1340; AIR 1997 SC 1539; AIR 1996 SC 1931; 1 Ind Cas 228; (1914) I.L.R. 38 Mad. 585; (1936) 38 Bom.L.R. 1189; (1922) I.L.R. 3 Lah. 115; (1924) I.L.R. 6 Lah. 176; (1934) 35 Cr.L. J. 1261 - Referred
(h) Code of Criminal procedure, 1973 - Section 2(g) - Inquiry - Means inquiry by Court after filing of charge sheet - Held before actual commencement of trial. (Para 36)
(i) Words and Phrases - Course - As occurring in section 319, CrPC - Ordinarily conveys a meaning of a continuous progress from one point to the next in time - Conveys the idea of a period of time or duration, and not a fixed point of time. (Para 37)
AIR 1989 SC 836; AIR 1953 SC 333 - Relied upon
(j) Interpretation of statute - "A Verbis Legis Non Est Recedendum" - From the words of law, there must be no departure - An interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided - It cannot be assumed that legislature committed a mistake - In case of plain and unambiguous language court cannot go behind the language and add or subtract a word - Statute requires to be interpreted without doing any violence to the language used therein - No word in a statute has to be construed as surplusage - An interpretation which renders a provision an otiose should be avoided. (Paras 39 to 41)
AIR 1965 SC 1457; AIR 1966 SC 529; AIR 1993 SC 1014; AIR 1997 SC 1006; AIR 1997 SC 1511; AIR 1998 SC 74; AIR 1998 SC 703; AIR 2013 SC 30 - Relied upon
(k) Code of Criminal Procedure, 1973 - Section 319 - Power under Section 319(1) Cr.P.C. - Can be exercised at any time after filing of charge-sheet and before pronouncement of judgment - Can be exercised when the stage of inquiry or trial is reached - Cannot be exercised during the stage of Section 207 to 209 Cr.P.C. when judicial application of mind is not required - After the case is committed u/s 209, bar of section 193 gets lifted - Court gets complete and unfettered original jurisdiction to take cognizance of offence and summon persons - Court can exercise power u/s 319 Cr.P.C. only after the trial proceeds and commences with recording of the evidence. (Paras 43 to 50)
AIR 1996 SC 1931; AIR 2001 SC 2747; AIR 1998 SC 3148; (1993) 2 SCC 16; AIR 2013 SC 3018 - Relied upon
(l) Code of Criminal Procedure, 1973 - Section 319 - Power can be exercised only on the basis of evidence adduced during trial - Evidence in a complaint case can be used only to corroborate the evidence recorded during the trial and not for the purpose of section 319. (Paras 52 and 53)
(m) Interpretation of statute - Means and include - Use of "means and include" indicates that the definition 'is a hard and fast definition' - No meaning can be assigned to the expression other than that which is put down in the definition. (Para 57)
AIR 1989 SC 335; (1990) 3 SCC 682; AIR 1995 SC 1395; AIR 2008 SC 968; (2008) 8 SCC 369; (2003) 1 SCC 433 - Relied upon
(2004) 13 SCC 9 - Referred
(n) Indian Evidence Act, 1872 - Section 3 - Evidence - The definition is exhaustive. (Para 58)
AIR 2011 SC 760; AIR 2004 SC 355; AIR 1997 SC 331; AIR 2004 SC 2943; AIR 1975 SC 1252; AIR 1976 SC 294; AIR 1986 SC 250 - Relied upon
(o) Code of Criminal Procedure, 1973 - Section 319 - Word 'Evidence' occurring in section 319 - As regards statements means evidence made before the Court - As regards documents means the documents produced before the court - Material collected during investigfation will not constitute evidence for the purpose of section 319. (Para 71)
AIR 2006 SC 1892; AIR 1964 SC 949; JT 2013 (3) SC 328; AIR 2008 SC 95; (1993) 2 SCC 16; AIR 1996 SC 1931; (2009) 2 SCC 696; AIR 2007 SC 2786 - Relied upon
(p) Code of Criminal Procedure, 1973 - Section 319 - Material for exercise of power under - Evidence coming before court during trial can only form basis for exercise of power u/s 319 - Materials coming to it after taking cognizance and before trial, i.e., during inquiry, are not strictly evidence - Can be used only for corroboration and to support the evidence during trial. (Paras 77 and 80)
(q) Code of Criminal Procedure, 1973 - Section 319 - Examination-in-chief of prosecution witnesses - Is evidence, though rebuttable - Such evidence prima facie necessitating bringing other person to trial - Can be basis for proceeding u/s 319 - Not necessary to wait till cross-examination is over (Paras 83 to 85)
AIR 2001 SC 2521; AIR 1998 SC 3148; AIR 2007 SC 1899; (2009) 13 SCC 608 - Relied upon
Crl. Appeal No. 1750 of 2008 - Distinguished
(r) Code of Criminal Procedure, 1973 - Section 319 - Word 'appear' - Meaning - Seems - "Clear to the comprehension", or a phrase near to, if not synonymous with "proved" - It imparts a lesser degree of probability than proof - Material brought before court should prima facie connect the person to be added to the offence - Degree of satisfaction however is stricter (Paras 86, 87 and 93)
AIR 1963 SC 1094; (2009) 14 SCC 25; 2013 (11) SCALE 23; AIR 2007 SC 2786; AIR 2007 SC 1899; AIR 2009 SC 2792; AIR 2009 SC 1248; AIR 2000 SC 1127 - Relied upon
(s) Code of Criminal Procedure, 1973 - Section 319 - Conditions for exercise of power - Prima facie case established from evidence le before court - Cross examination not necessary - Satisfaction more than prima facie but short of the evidence leading to conviction - Court is not required to form an opinion as to guilt of the person concerned. (Para 99)
AIR 1977 SC 1489; AIR 1989 SC 2045; (1989) 1 SCC 715; (1996) 11 SCC 439; AIR 2000 SC 2583; AIR 2002 SC 564; AIR 1979 SC 366; AIR 2001 SC 1375; AIR 1990 SC 1962; AIR 1997 SC 2041; AIR 1977 SC 2018; (2005) 12 SCC 327 - Relied upon
(t) Code of Criminal Procedure, 1973 - Section 319 - Power under - Under what situation can be exercised - Against a person not subjected to investigation - Against person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken - Against a person who has been discharged - However, in the last case no proceedings can be commenced directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C. (Para 109)
AIR 1979 SC 339; (2013) 6 SCC 384; AIR 2010 SC 518; AIR 2013 SC 3018; (1990) 4 SCC 580; AIR 1983 SC 67 - Relied upon
Facts of the case:
This reference arises from conflict between Rakesh v. State of Haryana, AIR 2001 SC 2521; and Mohd. Shafi v. Mohd. Rafiq, AIR 2007 SC 1899.
The reference was desired to be resolved by a three-Judge Bench which felt that the same should be resolved by a Constitution Bench consisting of at least five Judges.
In this reference the Bench was primarily concerned with, is the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified, and, thirdly, the manner in which such power has to be exercised, also has to be considered.
Finding of the Court:
Power u/s 319 CrPC can be exercised during trial on the basis of evidence brought before the court and against a person not subjected to investigation, or person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken or a person who has been discharged subject to the provisions of Section 300(5) read with Section 398 Cr.P.C.
Result : Reference disposed.
Crux of the Judgment on Section 319 CrPC:
Stage for Exercise: Power under Section 319 CrPC can be exercised during "inquiry" (pre-trial stage post-charge-sheet, e.g., under Sections 200-202 or 398 CrPC) or "trial" (post-charge framing), but not during pre-trial preparation like Sections 207-209 CrPC; after committal, Sessions Court gains original jurisdiction under Section 193 CrPC. (!) (!) (!) (!) (!)
Scope of "Evidence": "Evidence" under Section 319(1) primarily means evidence recorded during trial (oral statements permitted by court or documents produced/inspected per Evidence Act Section 3); investigation materials (e.g., charge-sheet, case diary) are not evidence but can corroborate trial evidence or support inquiry-stage summoning of Column 2 persons; exhaustive definition applies, excluding unproved materials. (!) (!) (!) (!) (!) (!)
Examination-in-Chief Sufficiency: Power exercisable on examination-in-chief alone (prima facie evidence, rebuttable); no need to await cross-examination, as summoned person gets fresh trial under Section 319(4) with full rights. (!) (!) (!) (!)
Degree of Satisfaction: Stricter than prima facie case for charge-framing (Sections 227/228 etc.); requires strong/cogent evidence (more than probability, short of conviction certainty) prima facie connecting the person to offence, exercised sparingly/discretionarily to avoid delay or fishing; "appears" means "seems" (lesser than proof). (!) (!) (!)
Persons Covered: Extends to (i) not named in FIR, (ii) named in FIR but not charge-sheeted/Column 2, or (iii) discharged; for discharged persons, comply with Section 300(5) r/w 398 CrPC inquiry first before invoking Section 319. (!) (!) (!)
Overall Purpose: Ensures real culprits face trial for justice, empowering courts (Sessions/Magistrate) only, not investigation agencies; proceedings restart afresh for added person (witnesses re-heard). (!) (!) (!) (!)
Judgment :-
Dr. B.S. Chauhan, J.
1. This reference before us arises out of a variety of views having been expressed by this Court and several High Courts of the country on the scope and extent of the powers of the courts under the criminal justice system to arraign any person as an accused during the course of inquiry or trial as contemplated under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’).
2. The initial reference was made by a two-Judge Bench vide order dated 7.11.2008 in the leading case of Hardeep Singh (Crl. Appeal No. 1750 of 2008) where noticing the conflict between the judgments in the case of Rakesh v. State of Haryana, AIR 2001 SC 2521; and a two- Judge Bench decision in the case of Mohd. Shafi v. Mohd. Rafiq & Anr., AIR 2007 SC 1899, a doubt was expressed about the correctness of the view in the case of Mohd. Shafi (Supra). The doubts as categorised in paragraphs 75 and 78 of the reference order led to the framing of two questions by the said Bench which are reproduced hereunder:
“(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?
(2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?
3. The reference was desired to be resolved by a three-Judge Bench whereafter the same came up for consideration and vide order dated 8.12.2011, the Court opined that in view of the reference made in the case of Dharam Pal & Ors. v. State of Haryana & Anr., (2004) 13 SCC 9, the issues involved being identical in nature, the same should be resolved by a Constitution Bench consisting of at least five Judges.
The Bench felt that since a three-Judge Bench has already referred the matter of Dharam Pal (Supra) to a Constitution Bench, then in that event it would be appropriate that such overlapping issues should also be resolved by a Bench of similar strength.
4. Reference made in the case of Dharam Pal (Supra) came to be answered in relation to the power of a Court of Sessions to invoke Section 319 Cr.P.C. at the stage of committal of the case to a Court of Sessions. The said reference was answered by the Constitution Bench in the case of Dharam Pal & Ors. v. State of Haryana & Anr., AIR 2013 SC 3018 [hereinafter called ‘Dharam Pal (CB)’], wherein it was held that a Court of Sessions can with the aid of Section 193 Cr.P.C. proceed to array any other person and summon him for being tried even if the provisions of Section 319 Cr.P.C. could not be pressed in service at the stage of committal.
Thus, after the reference was made by a three-Judge Bench in the present case, the powers so far as the Court of Sessions is concerned, to invoke Section 319 Cr.P.C. at the stage of committal, stood answered finally in the aforesaid background.
5. On the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this Bench:
?(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exer
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