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