Belated filing of the appeal or not filing the appeal at a relevant time cannot be a ground not to direct the summons under Section 319 Cr.PC, when this Court found that prima facie case is made out against the accused

 

The Hon’ble Supreme Court allowed the petition of the appellant/complainant and directed the trial Court to proceed with the application of the complainant under Section 319 of Code of Criminal Procedure, 1973 i.e to summon the private respondents/additional accused.

The complainant, feeling  aggrieved by the impugned judgment and order of the High Court and trial Court rejecting the application under section 319 Cr.PC,  preferred an appeal before Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah.

SUBMISSIONS OF THE PRIVATE RESPONDENT WERE

•             It was submitted that the names of additional accused were placed in column 2 of the chargesheet by the investigating officer, after the inquiry was conducted by four High rank officials. The  inquiry was conducted at the instance of the original complainant. Therefore the inquiry and investigation done by the official should be considered instead of deposition of the appellant.

The Court reiterated with the decision of Hardeep Singh that Section 319 Cr.PC allows the Court to proceed against any person who is not an accused in a case. In exercise of power U/S 319, the summon need not necessarily be issued against an accused person already facing trial. He can either be a person in column 2 of the  chargesheet filed under Section 173 Cr.PC or a person disclosed in any material before the Court that is to  be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of offence.

 

 

• During investigation,  having found no evidence against the accused,  kept their name in coloumn 2 in the chargesheet, the same required to be considered having greater value than the deposition of the complainant and some other persons in their examination-in-chief.

The Supreme Court observed that none of the name of DSPs are shown as witnesses and their report are not part of the chargesheet. They were not investigating officers. During investigation accused were found innocent but kept their name in coloumn 2. But during examination-in-chief the appellant as injured eye witness specifically named the private respondent with specific role attributed to them, then that has to be considered as having greater evidentiary value.

•             Though a common judgment and order was passed by the High Court , on a criminal appeal petition filed by a cross case complainant/ main accused,  the appellant did not appeal against the said judgment and order and therefore the Apex  Court may not exercise the power under Article 136.

The Apex Court viewed that when it is found that the learned trial Court as well as the High Court failed to consider the application  under Section 319 Cr.PC for summoning  the private respondents as additional accused, belated filing of the appeal or not filing the appeal at a relevant time cannot be a ground not to direct the summons when this Court found that  prima facie case is made out against the private respondents and they are to be summoned to face the trial.

• That after the  impugned judgment and order of the High Court, there was much progress in the trial and therefore at that stage, power under Section 319 may not be exercised.

The Supreme Court reiterated to the view laid down in the case Hardeep Singh that the power under Section 319 can be exercised at any stage before the final conclusion of the trial. The power, in this case, could be  exercised at any stage from commencing of the trial and recording of evidence/deposition and before the conclusion of the trial. The learned trial court has erred by not allowing the application under Section 319 at the stage when cross-examination was going on.

VIEWS OF SUPREME COURT

After hearing the counsels of respective parties, the Court observed that the reasoning given by the High Court dismissing the revision application, confirming the order passed by the Learned trial court was unsustainable. The High Court observed that the appellant is the injured eye witness and therefore his presence cannot be doubted as he received fire arm injuries along with deceased. The statement of appellant indicates over implication and that no injury has been attributed to either of the respondents except they were armed with weapons and the concerned injuries are attributed only  to the accused  even for the sake of arguments someone was present with accused it cannot be said that they had any common intention or there was meeting of mind or knew that the accused would be firing.

The Supreme Court reversed the  reasoning of  the High Court and observed  that the Court has lost sight of the fact that an FIR was lodged against the accused  for the offences under Sections 302, 307,341,148 and 149, IPC and the High Court has failed to appreciate the fact that for attracting the offence under Section 149 IPC only forming part of unlawful assembly is sufficient and the individual role and/or overt act is immaterial. Therefore the reasoning given by the High court that no injury has been attributed to either of the respondents, except they were armed with weapons, they cannot be added as accused, is unsustainable.

The appellant, as injured eye witness, has specifically named the private respondents with specific role attributed to them in the commission of offence, the trial Court and the High Court ought to have summoned the private respondents. Taking note of its earlier decisions in cases of State of MP vs. Mansingh (2003) 10 SCC 414 (para 9), Abdul Sayeed vs. State of MP (2010) 10 SCC 259; State of Uttar Pradesh vs. Naresh (2011) 4 SCC 324, the Court said, the evidence of an injured eye witness has greater evidential value unless compelling reasons exist their statements are not to be discarded lighty.

 

Hence on the basis of above stated reasons, the Hon’ble Supreme Court quashed and set aside the impugned order and judgement of the High Court and learned trial Court  as being unsustainable and allowed the application of complainant under Section 319.

FACT:

The complainant and his cousin brother were attacked by a group of armed men/accused while they were returning in their car, where his cousin died on the spot and the complainant was injured. 

The deceased’s father lodged an FIR against five  assailants for the offences under Sections 302, 307, 341, 148 and  149 IPC at a Police Station. After inquiry and investigation one assailant, Sartaj Singh was named as main accused where as the other four assailants’ name were  kept in column no. 2.  

The case was committed to the Court of Sessions wherein the appellant as witness made a deposition and reiterated the allegations made in the FIR. During the cross-examination he gave an application under Section 319, on behalf of complainant, for summoning four other assailants/additional accused  before the Additional Sessions Judge,  but the same was dismissed. 

Being aggrieved, the victim/appellant preferred revision application before the High Court but the Court dismissed his application under the said section. So the complainant preferred appeal in the Supreme Court. It is pertinent to note that the appellant’s counsel heavily relied on the recent case of Sartaj Singh vs. State of Haryana (2021) the man who attacked the appellant in the present case.

It is important to note here that Sartaj Singh also filed a  cross case filed against the appellant and five other persons for inflicting injury on his person before the learned trial Court. 

After investigation five accused kept in column  no. 2. He  made an application under Section 319 for summoning four other accused in his cross case( one accused died). 

After considering the statements of complainant and other eye witnesses allowed the application. Being aggrieved, four accused filed a revision application before the High Court. 

The High Court quashed and set aside the order passed by the learned trial Court. Then Sartaj Singh, being aggrieved preferred an appeal which the Supreme Court in  Sartaj Singh vs. State of Haryana (2021) passed an order in his favour by quashing and dismissing order of the High Court by upholding learned trial Court order and consequently allowed his application under section 319  considering the views in the case of  Hardeep Singh vs. State of Panjab (2014) 3 SCC 92 regarding  the scope and ambit of power of court   Click here .

Case:

Manjeet Singh vs State of Haryana & Ors ( Criminal Appeal No. 875 of 2021

DOJ: 24.08.2021