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2008 (11) TMI 717 - SC - Indian LawsApplication u/s 319 of the CrPC to include respondent Nos. 2 and 3 as accused and to summon them for trial - Unlawful Assembly - Commission of offences punishable u/s 307 326 336 and 427 r/w Sections 120B 148 and 149 of the IPC as also for offences punishable u/s 25 27 54 and 59 of the Arms Act - Accused were arrested - Vijay Preet Singh (respondent No. 2) was one of them - respondent Nos. 2 and 3 i.e. Vijay Preet Singh and Jagtar Singh - Addl. Sessions Judge rejected the application observing that he did not find sufficient grounds to proceed against Vijay Preet Singh and Jagtar Singh - High Court however dismissed the Revision and confirmed the order passed by the trial Court. HELD THAT - In the instant case however the Superintendent of Police not only refers to investigation made by him and the statements recorded in the course of investigation but records a finding that the statements were correct . Vijay Preet Singh was not present at the place of offence when the incident took place but reached after the occurrence was over. Thereafter police had arrested him. Likewise Jagtar Singh was not present at the spot at the time of occurrence. Likewise in an appeal arising out of Special Leave Petition (Hardeep Singh v. State of Punjab Ors.) Jagtar Singh was not charge-sheeted. Both the Courts considered the report of the IO and held that the action of non-issuing of process against Jagtar Singh could not be held illegal or unlawful. We are of the view that the order cannot be termed unlawful or unwarranted which requires interference. As far as Vijay Preet Singh is concerned the matter stands on a different footing. His name finds place in the FIR. Not only that he was present at the place of offence with a weapon (gandasi) but was also arrested by the police from the scene of offence. His name was however excluded and charge sheet was not submitted in pursuance of an application made by his father. It was the allegation of the complainant that the said action was taken with a view to oblige Sukhvinder Singh father of Vijay Preet Singh who was Chairman of Panchayat Samiti. Prima facie in the light of factual scenario the submission on behalf of the appellant is well-founded that name of Vijay Preet Singh ought to have been included in the charge sheet and the application u/s 319 of the Code deserves to be allowed. The ld counsel for the accused however referring to Mohd. Shafi submitted that in the said decision this Court held that the jurisdiction u/s 319 of the Code can be exercised by the Court only if the Court is satisfied that in all likelihood such person would be convicted. Following the judgement in the case of Mohd. Shafi 2007 (4) TMI 735 - SUPREME COURT We have reproduced Section 319 of the Code in the earlier part of the judgment. Bare reading of sub-section (1) leaves no room of doubt what it requires. It states that for addition of accused it must appear to the Court from the evidence that any person not being the accused has committed any offence for which such person should be tried along with other accused. The test formulated in Mohd. Shafi substantially curtails discretionary power of the Court conferred by the Code under sub- section (1) of Section 319. Even on this point therefore the matter requires fresh consideration. We therefore refer the following two questions for the consideration of a Bench of three Hon ble Judges; (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 u/s 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? We direct the Registry to place the matter before the Hon ble the Chief Justice of India for taking an appropriate action. Ordered accordingly.
Issues Involved:
1. Legality of the High Court's order dismissing the application under Section 319 of the Code of Criminal Procedure, 1973. 2. Whether the application under Section 319 is maintainable without the completion of cross-examination. 3. Guidelines for exercising the power under Section 319 of the Code. 4. The correctness of the Investigating Officer's final report under Section 173 of the Code. Issue-wise Detailed Analysis: 1. Legality of the High Court's Order Dismissing the Application under Section 319: The Supreme Court examined the High Court's dismissal of the application under Section 319 of the Code, which sought to include Vijay Preet Singh and Jagtar Singh as accused. The trial court had earlier rejected the application, and the High Court confirmed this decision. The Supreme Court noted that Vijay Preet Singh was named in the FIR and was arrested at the scene with a weapon, but his name was excluded from the charge sheet due to alleged influence by his father, Sukhvinder Singh. The Court found that the final report by the Superintendent of Police, which stated that Vijay Preet Singh was not present at the time of the incident, was not in consonance with the law. The Court held that the exclusion of Vijay Preet Singh from the charge sheet was prima facie unjustified, and the application under Section 319 deserved to be allowed. 2. Maintainability of Application under Section 319 Without Completion of Cross-Examination: The Court addressed conflicting decisions regarding whether an application under Section 319 can be entertained without the completion of cross-examination. In Rakesh & Anr. v. State of Haryana, it was held that the term 'evidence' in Section 319 is comprehensive and includes the examination-in-chief of a witness. Conversely, Mohd. Shafi v. Mohd. Rafiq & Anr. held that such an application is only maintainable after cross-examination is complete. The Supreme Court found that the term 'evidence' in Section 319 should be interpreted broadly to include examination-in-chief, allowing the court to act on prima facie material without waiting for cross-examination. The Court emphasized that the added accused would have the opportunity for a fresh trial and cross-examination under sub-section (4) of Section 319, thus protecting their rights. 3. Guidelines for Exercising Power under Section 319: The Court reviewed the guidelines for exercising power under Section 319, noting that the provision allows a court to summon a person not initially accused if evidence suggests their involvement in the crime. The Court cited Joginder Singh & Anr. v. State of Punjab & Anr., which allows the addition of an accused based on sufficient evidence during the trial. The Court also referred to Michael Machado & Anr. v. Central Bureau of Investigation & Anr., emphasizing that the court must have reasonable satisfaction from the evidence. The Court disagreed with the view in Mohd. Shafi that the power under Section 319 can only be exercised if the court is satisfied that the accused in all likelihood would be convicted, finding this interpretation too restrictive. 4. Correctness of the Investigating Officer's Final Report under Section 173: The Supreme Court criticized the final report submitted by the Superintendent of Police under Section 173, which gave a clean chit to Vijay Preet Singh and Jagtar Singh. The Court stated that the Investigating Officer should not record findings or give clean chits, as these are judicial functions reserved for the magistrate. The report should only contain the information required by Section 173, without overstepping into judicial territory. Conclusion: The Supreme Court found that the High Court and trial court erred in dismissing the application under Section 319. The Court held that an application under Section 319 is maintainable based on prima facie evidence from examination-in-chief, without waiting for cross-examination. The Court also clarified that the power under Section 319 should be exercised with reasonable satisfaction from the evidence, not necessarily requiring a likelihood of conviction. The matter was referred to a larger bench to resolve the conflicting interpretations of Section 319. The Registry was directed to place the matter before the Chief Justice of India for appropriate action.
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