JOGENDRA YADAV & ORS. Vs. STATE OF BIHAR & ANR.
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 319 - Power to proceed against other persons appearing to be guilty of offence
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 343 of 2012, Judgment Date: Jul 15, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 343 OF 2012
JOGENDRA YADAV & ORS. ….. APPELLANTS
VERSUS
STATE OF BIHAR & ANR. ….. RESPONDENTS
J U D G M E N T
S. A. BOBDE, J.
1. This is an appeal by four persons who have been added as accused
under Section 319 of the Code of Criminal Procedure, 1973 (for short 'the
Cr.P.C.') in Sessions Trial No.446/2002 for an offence under Section 302
read with Sections 149 and 323 of the Indian Penal Code, 1860 (for short
'the IPC') and Section 27 of the Arms Act, 1959. The trial is being held
in respect of the murder of one Saryug Yadav. On 04.06.2000, FIR was
lodged by an informant under Sections 149, 302 and 323 of the IPC against 8
accused. A charge-sheet was submitted on 23.04.2001 only against four
persons. Later on, a supplementary charge-sheet was submitted on
31.01.2003 by which one Bhankhar Yadav was included. A final form was
submitted excluding the four appellants herein viz. Jogendra Yadav, Kailash
Yadav, Kusum Pahalwan, Brijendra Yadav from the array of parties. On
18.02.2003, the Magistrate accepted the charge-sheet and the final form
while taking cognizance of the offence. The case was committed to the
Court of Sessions.
2. In the course of the trial, the evidence of the widow and two sons of
the deceased were recorded. On the basis of the evidence the Additional
Sessions Judge on 05.02.2005 under Section 319 of the Cr.P.C. issued notice
to the appellants asking them to show cause as to why they should not be
added as accused. After giving an opportunity to the appellants to file a
reply, the learned Additional Sessions Judge summoned the appellants as
accused for being added to the proceedings. It is nobody’s case that they
were not heard before such summon. In any case after the appellants were
added, they preferred an application under Section 482 of the Cr.P.C.
before the High Court, which was pending for a long time. They finally
withdrew this application since they had got relief by way of discharge
under Section 227 of the Cr.P.C. The respondent State preferred a Criminal
Revision Application before the High Court. The High Court set aside the
Order dated 23.09.2006 in Criminal Revision Application passed by the
Additional Sessions Judge by which the appellants were discharged. While
setting aside the order, the High Court made several observations on the
merits of the case as well as on the material that was taken into account
before discharging the appellants – accused. The High Court also observed
that the order by which the appellants were added under Section 319 of the
Cr.P.C. was not challenged and was allowed to become final. This may not
actually be accurate since, as noted above, the appellants had in fact
challenged the order but had withdrawn the application under Section 482 of
the Cr.P.C.
3. The High Court also observed that the order of discharge virtually
nullifies the order under Section 319 of the Cr.P.C. made earlier by which
the accused were added. It is this last observation which has been put in
issue before us.
4. Mr. Sishir Pinaki, learned counsel for the appellants submitted that
Section 227 of the Cr.P.C. can be availed of by an accused, even if he is
added as an accused under Section 319 of the Cr.P.C. since the effect of
adding such a person is that he becomes newly added accused who is entitled
to avail of all the remedies available to him under the Cr.P.C., in
particular, the remedy of discharge. It is, therefore, necessary to
construe Section 227 and Section 319 of the Cr.P.C.
5. Provisions of Sections 227 and 319 of the Cr.P.C. are read as under:
“227. Discharge.- If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers that there
is not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.
319. 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.”
6. On a perusal of Section 319 of the Cr.P.C., it is apparent that a
person who is not an accused may be added as an accused only when it
appears from the evidence that he has committed any offence for which he
could be tried together with the accused. The Section says that in such an
eventuality, the Court “may proceed against such person” for the offence
which he appears to have committed. In other words, a person who is not an
accused becomes liable to be added where he appears to have committed an
offence. Thereupon, the effect is that the Court may proceed against such
a person.
7. Section 227 of the Cr.P.C. on the other hand, provides that an
accused may be discharged if the Judge construes that there is no
sufficient ground for the proceedings against him. In other words, if the
Judge is of the view that there are no sufficient grounds for the
proceedings against the accused, he may be discharged, whereupon the
proceedings against him are dropped.
8. It is apparent that both these provisions, in essence, have the
opposite effect. The power under Section 319 of the Cr.P.C. results in the
summoning and consequent commencement of the proceedings against a person
who was hitherto not an accused and the power under Section 227 of the
Cr.P.C., results in termination of proceedings against the person who is
an accused.
9. It was, however, urged by learned counsel for the appellants that in
order to avail of the remedies of discharge under Section 227 of the
Cr.P.C., the only qualification necessary is that the person should be
accused. Learned counsel submitted that there is no difference between an
accused since inception and accused who has been added as such under
Section 319 of the Cr.P.C. It is, however, not possible to accept this
submission since there is a material difference between the two. An
accused since inception is not necessarily heard before he is added as an
accused. However, a person who is added as an accused under Section 319 of
the Cr.P.C., is necessarily heard before being so added. Often he gets a
further hearing if he challenges the summoning order before the High Court
and further. It seems incongruous and indeed anomalous if the two sections
are construed to mean that a person who is added as an accused by the court
after considering the evidence against him can avail remedy of discharge on
the ground that there is no sufficient material against him. Moreover, it
is settled that the extraordinary power under Section 319 of the Cr.P.C.,
can be exercised only if very strong and cogent evidence occurs against a
person from the evidence led before the Court. It is now settled vide the
Constitution Bench decision in Hardeep Singh v. State of Punjab and Others
[(2014) 3 SCC 92] that the standard of proof employed for summoning a
person as an accused under Section 319 of the Cr.P.C., is higher than the
standard of proof employed for framing a charge against an accused. The
Court observed for the purpose of Section 319 of the Cr.P.C., that “what
is, therefore, necessary for the Court is to arrive at a satisfaction that
the evidence adduced on behalf of the prosecution, if unrebutted, may lead
to the conviction of a person sought to be added as the accused in the
case.” As regards the degree of satisfaction necessary for framing a
charge this Court observed in para 100:-
“100. However, there is a series of cases wherein this court while dealing
with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 of the
Cr.P.C., has consistently held that the court at the stage of framing of
the charge has to apply its mind to the question whether or not there is
any ground for presuming the commission of an offence by the accused. The
court has to see as to whether the material brought on record reasonably
connect the accused with the offence. Nothing more is required to be
enquired into. While dealing with the aforesaid provisions, the test of
prima facie case is to be applied. The court has to find out whether the
materials offered by the prosecution to be adduced as evidence are
sufficient for the court to proceed against the accused further”.
The Court concluded in para 106 as follows:-
“106. Thus, we hold that though only a prima facie case is to be
established from the evidence led before the court, not necessarily tested
on the anvil of cross-examination, it requires much stronger evidence than
mere probability of his complicity. The test that has to be applied is one
which is more than prima facie case as exercised at the time of framing of
charge, but short of satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction……..”
10. Thus it does not stand to reason that a person who is summoned as an
accused to stand trial and added as such to the proceedings on the basis of
a stricter standard of proof can be allowed to be discharged from the
proceedings on the basis of a lesser standard of proof such as a prima
facie connection with the offence necessary for charging the accused.
11. This view is further fortified by the fact that a person is added as
an accused under Section 319 of the Cr.P.C., on the basis of evidence;
whereas an accused is discharged under Section 227 of the Cr.P.C., on a
sifting of material collected i.e. “the record of the case and the document
submitted herewith” in order to find out whether or not there is sufficient
ground for proceeding against the accused. In fact it may be noted that the
mandate of Section 228, Cr.P.C., is that the Judge only need be of “opinion
that there is ground for presuming that the accused has committed an
offence …..” before framing a charge. In fact this Court has held in Ajay
Kumar Parmar v. State of Rajasthan reported in (2012) 12 SCC 406 that
appreciation of evidence at the stage of Section 227 of the Cr.P.C., is not
permissible (vide para 17). It is, therefore, clear that an order for
addition of an accused made after considering the evidence cannot be undone
by coming to the conclusion that there is no sufficient ground for
proceeding against the accused without appreciation of evidence.
12. We are not unmindful of the fact that the interpretation placed by us
on the scheme of Sections 319 and 227 makes Section 227 unavailable to an
accused who has been added under Section 319 of the Cr.P.C. We are of the
view, for the reasons given above that this must necessarily be so since a
view to the contrary would render the exercise undertaken by a Court under
Section 319 of the Cr.P.C., for summoning an accused, on the basis of a
higher standard of proof totally infructuous and futile if the same court
were to subsequently discharge the same accused by exercise of the power
under Section 227 of the Cr.P.C., on the basis of a mere prima facie view.
The exercise of the power under Section 319 of the Cr.P.C., must be placed
on a higher pedestal. Needless to say the accused summoned under Section
319 of the Cr.P.C., are entitled to invoke remedy under law against an
illegal or improper exercise of the power under Section 319, but cannot
have the effect of the order undone by seeking a discharge under Section
227 of the Cr.P.C. If allowed to, such an action of discharge would not be
in accordance with the purpose of the Cr.P.C in enacting Section 319 which
empowers the Court to summon a person for being tried along with the other
accused where it appears from the evidence that he has committed an
offence. It would be apposite to refer to the principle of purposive
construction of a statute invoked by this Court in New India Assurance Co.
Ltd. v. Nusli Neville Wadia and Anr. (2008) 3 SCC 279, which is as under:
“51…….. With a view to read the provisions of the Act in a proper and
effective manner, we are of the opinion that literal interpretation, if
given, may give rise to an anomaly or absurdity which must be avoided. So
as to enable a superior court to interpret a statute in a reasonable
manner, the court must place itself in the chair of a reasonable
legislator/author. So done, the rules of purposive construction have to be
resorted to which would require the construction of the Act in such a
manner so as to see that the object of the Act is fulfilled, which in turn
would lead the beneficiary under the statutory scheme to fulfil its
constitutional obligations as held by the Court inter alia in Ashoka
Marketing Ltd.
52. Barak in his exhaustive work on “Purposive Construction” explains
various meanings attributed to the term “purpose”. It would be in the
fitness of discussion to refer to Purposive Construction in Barak’s words:
“Hart and Sachs also appear to treat ‘purpose’ as a subjective
concept. I say ‘appear’ because, although Hart and Sachs claim that the
interpreter should imagine himself or herself in the legislator’s shoes,
they introduce two elements of objectivity: First, the interpreter should
assume that the legislature is composed of reasonable people seeking to
achieve reasonable goals in a reasonable manner; and second, the
interpreter should accept the non-rebuttable presumption that members of
the legislative body sought to fulfil their constitutional duties in good
faith. This formulation allows the interpreter to inquire not into the
subjective intent of the author, but rather the intent the author would
have had, had he or she acted reasonably.”
13. Ms. Prerna Singh, learned counsel for the State also submitted that a
person who is an accused under Section 319 ought not to be given an
opportunity to avail of the remedy of discharge under Section 227 since it
would be contrary to the scheme and intent of the Cr.P.C.
14. We have no difficulty in accepting this submission for the reasons
stated above. We are also satisfied that it would not result in any undue
hardships to the accused since the remedy before a superior court is
available.
15. In the result, we see no merit in the appeal which is liable to be
dismissed.
16. The criminal appeal is dismissed in view of the above.
…......................J.
[S.A. BOBDE]
…......................J.
[R.K. AGRAWAL]
NEW DELHI
JULY 15, 2015
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