SUPREME COURT HOLDS MERITS OF EVIDENCE CANNOT BE APPRECIATED AT THE STAGE OF SUMMONING OTHER ACCUSED PERSONS UNDER SECTION 319 CRPC

Introduction:

In the case of Sandeep Kumar Vs. The State of Haryana & Anr, in Criminal Appeal No. 2195 of 2023, a two Judge Bench of the Supreme Court comprising of Justice Sudhanshu Dhulia and Justice C T Ravikumar passed a Judgement dated 28-07-2023 and observed that merits of evidence have to be appreciated only at the stage of a trial, by cross-examination of witnesses and scrutiny of the Court and not at the stage of deciding an application filed under Section 319 of the Code of Criminal Procedure 1973 (CrPC) (Power to proceed against other persons appearing to be guilty of offence)[1].

Facts:

i) According to the First Information Report (FIR) bearing no. 114 dated 08-09-2017, fifteen (15) offenders entered into the house of one, Sandeep Kumar, the Complainant herein, which is located in Sirsa, Haryana, in the middle of the night around 12:30 a.m. on 07-09-2017 and assaulted the inhabitants.

ii) The attackers were armed with Lathis, as well as rifles and handguns. Seven of the assailants used lathi, while three of the named assailants, Ramesh Gandhi, Kalu Jakhar, and Pawan, used firearms and handguns, respectively.

iii) Following the inquiry, the Police submitted a Chargesheet before Ld. Additional Sessions Judge, Sirsa (Trial Court) that did not mention the names of Ramesh Gandhi, Kalu Jakhar, or Pawan, but only nine other persons. However, the Column 2 of the Chargesheet included the names of the aforementioned three assailants i.e. Ramesh Gandhi, Kalu Jakhar, and Pawan.

iv) Following the start of the trial proceedings, the Complainant was summoned and examined as Prosecution Witness (PW)-9, where he disclosed the entire event in the capacity of an eyewitness in his examination-in-chief, i.e., he unambiguously assigned the roles to the three assailants, Ramesh Gandhi, Kalu Jakhar, and Pawan, who were named in the FIR but not charged in the Charge sheet.

v) In his examination-in-chief, PW-9 claimed that on 07-09-2017, PW-9, his younger brother, Pradeep Kumar, and his cousin Bijender were sleeping in their house’s courtyard after supper. The Complainant’s father, Hanuman (Deceased), was also resting in the same courtyard.

vi) The main gate of the Complainant’s house was locked. The Complainant’s uncle Subhash was also sleeping in the Complainant’s house. At around 12:30 a.m. on 07-09-2017, fifteen people broke into the Complainant’s house chain with ‘lathi’ and ‘danda’ in their hands. Two of them were holding handguns, which were visible in the light of the lamp.

vii) The Complainant claimed that Ramesh Gandhi held a gun, Kalu Jakhar and Pawan were armed with pistols, and the rest were armed with lathis and dandas and they began striking the Complainant, the Deceased and others in the house. In the said altercation, the Accused persons inflicted harm on the Deceased and while leaving the house, they fired their firearms.

viii) During the pendency of the Trial Court proceeding, the Complainant filed an Application under Section 319 of the CrPC before the Trial Court seeking summoning of Ramesh Gandhi, Kalu Jakhar, and Pawan as Accused parties so that they might stand trial as well. The said Application was allowed by the Trial Court vide Order dated 07-03-2020.

ix) Aggrieved by the Trial Court Order dated 07-03-2020, the Accused- Ramesh Gandhi filed a Criminal Revision bearing CRR-452-2021 (O&M) before the Hon’ble High Court of Punjab and Haryana, which reversed the Trial Court Order, vide Order dated 02-03-2022. The High Court held that “The Complainant claims that the petitioner, equipped with a gun, arrived at the scene of the crime with other co-Accused. However, it does not appear to be common sense that a person arriving in the area with a gun would depart without even shooting or trying a shot. This suggests that the petitioner made a misleading implication.”

Supreme Court Observations

Aggrieved by the High Court Order dated 02-03-2022, the Complainant filed Criminal Appeal No. 2195 of 2023 before the Hon’ble Supreme Court. The Apex Court passed an Order dated 28-07-2023 and made the following observations-

1) That as per PW-9’s statement, the Accused-Ramesh Gandhi fled the crime scene only after the crime was committed by an “unlawful assembly.” Further, gunshots were fired by the Accused, when he was leaving the residence. However, the High Court erred in not appreciating the evidence of PW-9, and creating an unwarranted presumption in favour of the Accused, thereby holding the Accused innocent on the ground that during the investigation, it could not be established that the Accused used any gun or inflicted harm against the Deceased.

2) Thus, the High Court failed to consider the case from the viewpoint of Section 319 Cr.P.C. i.e., the Accused-Ramesh Gandhi was summoned by the Trial Court based on the crucial evidence of the eye-witness, PW-9.

3) Further, the reasoning given by the High Court as stated above, cannot be considered at the time of deciding an application under Section 319 CrPC. “At the stage of summoning an accused, there has to be a prima facie satisfaction of the Court.” Accordingly, the Trial Court had prima facie satisfaction of involvement of the Accused in the crime based on PW-9’s testimony, based on which the Accused was summoned under Section 319 CrPC. The merits of evidence can be looked into only during trial, by conducting cross-examination of witness and scrutiny of the same by the Court and not at the stage of deciding an application under Section 319 CrPC., which in fact the High Court did. The Bench further held that “If an application under Section 319 is filed, it has the authority to halt the trial at that point. The extensive examination of the witness and ten other witnesses is a subject of the trial that must be restarted.”

4) Furthermore, the High Court overlooked the crucial fact that the Accused was charged under Sections 458 of the Indian Penal Code, 1860 (IPC) (Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint), 460 of IPC (All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them), 323 of IPC (Punishment for voluntarily causing hurt), 285 of IPC (Negligent conduct with respect to fire or combustible mat­ter), 302 (Punishment for murder), 148 of IPC (Rioting, armed with deadly weapon), and 149 of IPC (Every member of unlawful assembly guilty of offence commit­ted in prosecution of common object). For triggering the offence under Section 149 of IPC, an accused only has to be a member of an unlawful assembly and any exact role or act is irrelevant.

5) Hence, the Trial Court rightly allowed the Section 319 CrPC Application to summon the Accused owing to the prime facie evidence of involvement of the Accused in committing the offence(s).

Conclusion-

Based on the aforesaid observations, the Supreme Court held that the Trial Court rightly summoned the Accused after analysing the testimony of PW-9 and the High Court erred in holding the Accused innocent at the stage of deciding the Application under Section 319 CrPC itself. Thus, the Appeal filed by the Complainant was allowed and the Trial Court Order dated 07-03-2020 was upheld and the High Court Order dated 02-03-2022 was set aside.

Vakiti Prahalad Reddy

Associate

The Indian Lawyer

 

[1] Section 319 CrPC: 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 a fresh, 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.