2001 JTR(SC) 1296
2002 AIR(SC) 2342 ; 2002 AIR(SCW) 2493 ; 2002 1 ALD(Cri)(SC) 724 ; 2002 AllLJ 1516 ; 2002 AllMR(Cri)(SC) 2027 ; 2002 1 CCR(SC) 203 ; 2002 2 Crimes(SC) 55 ; 2002 CrLJ 2969 ; 2002 1 EastCrC(SC) 183 ; 2001 10 JT 548 ; 2002 4 RCR(Cri) 199 ; 2002 10 SCC 661 ; 2004 SCC(Cri) 1153 ; 2002 KHC 1629 ; 2002 2 Supreme 580
2002(2) Supreme 580
SUPREME COURT OF INDIA
M.B. Shah & R.P. Sethi, JJ.
Smt. Rukhsana Khatoon -Appellant
versus
Sakhawat Hussain & Ors. -Respondents
Criminal Appeal No. 965 of 2001
(Arising out of SLP (Crl.) No. 1521 of 2001)
Decided on 18-9-2001
IMPORTANT POINT
Power under Section 319 Cr.P.C. is an extra-ordinary power and should be used very sparingly.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.319
INDIAN PENAL CODE : S.148, S.302, S.149, S.147
(A) The Indian Penal Code sections 147, 148, 149, and 302, read with Section 319 of the Code of Criminal Procedure, govern the liability for unlawful assembly, use of criminal force in prosecution of an common object, murder, and the power of a court to summon additional accused during trial. In this appeal, the High Court held that Section 319 Cr.P.C. cannot be invoked to summon accused persons who were not charge-sheeted when the FIR names them, a position challenged as illegal and erroneous. The present case involves an FIR alleging that accused persons used criminal force and an unlawful assembly to cause death, and the sessions courts invocation of Section 319 to try them despite their absence from the charge sheet.
(B) Section 319 Cr.P.C. empowers a court to summon any person as an accused if they appear to have committed an offence, even if not previously named in the FIR, subject to the courts discretion. Sections 147, 148, and 149 address liability in unlawful assembly and use of criminal force, while Section 302 defines murder. The core legal principle is that a court exercising trial jurisdiction can apply Section 319 to add persons whose involvement is supported by evidence, and the High Courts interference is limited and not a matter of discretion open to challenge when the trial court correctly exercises its powers.
Facts of the case:
An FIR was lodged stating that the complainant, while traveling with relatives, was threatened by accused persons who used criminal force to prevent them from aiding another individual. One victim died due to gunshot injuries, and the investigating officers report named only one accused. During the trial, the sessions court allowed an application to summon the remaining accused persons mentioned in the FIR, but the High Court set aside this order, holding that Section 319 could not be invoked when accused persons were not charge-sheeted.
Findings of Court:
The High Court was found to have erred in interpreting Section 319, as this provision enables a court to summon and try additional accused persons during trial if sufficient evidence indicates their involvement, regardless of whether they were charge-sheeted. The sessions court acted within its powers, and the impugned order lacked legal foundation.
Issues:
Whether Section 319 Cr.P.C. permits a court to summon accused persons who were not included in the charge sheet but are mentioned in the FIR and supported by evidence.
Ratio Decidendi:
Section 319 Cr.P.C. grants inherent power to any court to take cognizance of and try any person as an accused during trial if sufficient evidence indicates their culpability, and this power is not restricted by whether the person has been charge-sheeted; thus, the High Courts order was illegal and erroneous.
Result:
The appeal is allowed, the impugned order is set aside, and the trial court is directed to proceed with the case in accordance with law.
(A) The Indian Penal Code sections 147, 148, 149, and 302, read with Section 319 of the Code of Criminal Procedure, govern the liability for unlawful assembly, use of criminal force in prosecution of an common object, murder, and the power of a court to summon additional accused during trial. In this appeal, the High Court held that Section 319 Cr.P.C. cannot be invoked to summon accused persons who were not charge-sheeted when the FIR names them, a position challenged as illegal and erroneous. The present case involves an FIR alleging that accused persons used criminal force and an unlawful assembly to cause death, and the sessions courts invocation of Section 319 to try them despite their absence from the charge sheet.
(B) Section 319 Cr.P.C. empowers a court to summon any person as an accused if they appear to have committed an offence, even if not previously named in the FIR, subject to the courts discretion. Sections 147, 148, and 149 address liability in unlawful assembly and use of criminal force, while Section 302 defines murder. The core legal principle is that a court exercising trial jurisdiction can apply Section 319 to add persons whose involvement is supported by evidence, and the High Courts interference is limited and not a matter of discretion open to challenge when the trial court correctly exercises its powers.
Facts of the case:
An FIR was lodged stating that the complainant, while traveling with relatives, was threatened by accused persons who used criminal force to prevent them from aiding another individual. One victim died due to gunshot injuries, and the investigating officers report named only one accused. During the trial, the sessions court allowed an application to summon the remaining accused persons mentioned in the FIR, but the High Court set aside this order, holding that Section 319 could not be invoked when accused persons were not charge-sheeted.
Findings of Court:
The High Court was found to have erred in interpreting Section 319, as this provision enables a court to summon and try additional accused persons during trial if sufficient evidence indicates their involvement, regardless of whether they were charge-sheeted. The sessions court acted within its powers, and the impugned order lacked legal foundation.
Issues:
Whether Section 319 Cr.P.C. permits a court to summon accused persons who were not included in the charge sheet but are mentioned in the FIR and supported by evidence.
Ratio Decidendi:
Section 319 Cr.P.C. grants inherent power to any court to take cognizance of and try any person as an accused during trial if sufficient evidence indicates their culpability, and this power is not restricted by whether the person has been charge-sheeted; thus, the High Courts order was illegal and erroneous.
Result:
The appeal is allowed, the impugned order is set aside, and the trial court is directed to proceed with the case in accordance with law.
ORDER
Leave granted.
2. Heard the learned counsel for the parties.
3. By the judgment and order dated 2nd February, 2001, the High Court of Allahabad allowed the criminal revision No. 263 of 2001 filed by respondent nos. 1 to 4 and set aside the order passed by the sessions court summoning and arraigning them as accused under Section 319 of Cr.P.C. That order is challenged by filing this appeal.
4. It is apparent from the record that the complainant lodged a report with police station Kotwali Thakurdwara, Moradabad on 5.5.1998 that at about 6.30 p.m., he along with his nephew Afroj, Kamal Singh and his son Alam was going towards his house from bus stand and when they reached near the house of Netram, son of Dharm Vir, all of a sudden accused named therein, came there and caught Afroj and threatened to kill him for giving evidence against them. Afroj was witness in a case under section 302 IPC against the accused persons. Accused Sakhawat exhorted "saale ko goli mar do and hence, the complainant and others tried to save Afroj. At that time, the accused persons pulled out country made pistol towards them and threatened to shot down if they approached nearby. They stopped out of fear. Meanwhile, accused caught the hands of Afroj and Luvkush shot at Afroj, resultantly Afroj died on the spot. However, after investigation of the case, the investigating officer challaned only Luvkush and excluded the names of other persons. During the trial, an application under section 319 Cr.P.C. was filed before the learned sessions judge stating that the names of above four accused persons find mention in the FIR and the evidence of PW1 Mohd. Alam, son of Abdul Wahid and PW2 Kamal Singh corroborates the role of those persons in the alleged incident. The learned sessions judge allowed the application and ordered summoning of all the above accused persons to stand trial under sections 147, 148, 149 and 302 IPC. By the impugned order, the High Court set aside the said order by holding that section 319 cannot be invoked by the court when a person named as an accused in FIR is not charge-sheeted.
5. In our view, the impugned order is, on the face of it, illegal and erroneous. It is against the provisions of section 319 Cr.P.C. and the decisions rendered by this Court interpreting the same. In Kishun Singh and Others v. State of Bihar [JT 1993 (1) SC 173], this Court considered a case where an FIR was lodged naming 20 persons including the two appellants as assailants of the deceased who died in the occurrence. After investigation, police submitted its report under Section 173 Cr.P.C. showing 18 persons other than the two appellants as offenders. The magistrate committed those 18 persons named in the report to the Court of Session under Section 209 Cr.P.C. to stand trial. Before Sessions Court, an application under Section 319 of the Code was filed praying that remaining two accused be summoned and arraigned as accused. The Sessions Court impleaded them as co-accused. That order was finally challenged before this Court and the Court dismissed the appeal by holding that section 319 can be invoked both by the court having original jurisdiction as well as the court to which the case has been committed or transferred for trial. Similar is the view taken in Girish Yadav and Others v. State of M.P. [JT 1996(3) SC 615].
6. The learned counsel for the respondents contended that the High Court was justified in passing the impugned order and in support of his contention, he was relied upon the decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others [AIR 1983 SC 67]. In our view, there is no substance in his contention. In that case also, after considering Section 319 Cr.P.C., this Court held that the said provision gives ample power to any court to take cognizance and add any person not being an accused before it and try him along with other accused, if there appears during the trial sufficient evidence indicating his involvement in the offence. The court also observed that this power is really an extra ordinary power and should be used very sparingly.
7. Considering the facts as stated above, in our view, it cannot be said that the sessions court committed any illegality or irregularity in summoning the respondents as accused. Hence, this appeal is allowed and the impugned order passed by the High Court is set aside. The trial court to proceed with the matter in accordance with law.
Appeal allowed.
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