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Mohd. Shafi v. Mohd. Rafiq And Another
Factual and Procedural Background
An FIR dated 10-11-2005 was lodged by Rafiq (Respondent 1 and later PW-1) alleging offences under Sections 307/324 of the Indian Penal Code against the present appellant. After the victim succumbed to injuries, the matter was converted to one under Section 302 IPC. The police, however, filed a charge-sheet only against one Karimullah @ Aarif, leaving the appellant out of the array of accused.
During trial, PW-1 deposed in chief that the appellant had participated in the crime. Basing itself solely on this deposition, PW-1 moved an application under Section 319 of the Code of Criminal Procedure, 1973 seeking to summon the appellant as an accused. The learned Sessions Judge dismissed the application at that stage, noting inconsistencies between PW-1’s deposition and his earlier statement under Section 161 CrPC.
PW-1 then invoked the High Court’s inherent jurisdiction under Section 482 CrPC. The High Court allowed the application and directed summoning of the appellant. Aggrieved, the appellant appealed to the Supreme Court.
Legal Issues Presented
- Whether the High Court, at the instance of a prosecution witness, could invoke its inherent powers under Section 482 CrPC to overrule the Sessions Judge’s refusal to summon an additional accused under Section 319 CrPC.
- What threshold of satisfaction is required for a trial court to exercise its discretionary power under Section 319 CrPC to summon a person not originally charge-sheeted.
Arguments of the Parties
Appellant’s Arguments
- The Sessions Judge had exercised a discretionary power under Section 319 CrPC and rightly postponed consideration until completion of cross-examination; such discretion should not have been disturbed.
- As the impugned order did not affect substantive rights, even a revision was impermissible, much less a petition under Section 482 CrPC filed by a mere witness.
Respondent’s Arguments
- The appellant was named in the FIR and implicated during police investigation under Section 161 CrPC; therefore the High Court was justified in ensuring his presence as an accused.
- The witness’s deposition disclosed an “overt act” by the appellant, satisfying the conditions of Section 319 CrPC.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1 | Section 319 CrPC confers an extraordinary power that must be used sparingly and only on compelling evidence. | Reinforced the view that a trial court must reach a high level of satisfaction, based on evidence, before summoning an additional accused. |
| Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 12 SCC 512 | The court must be satisfied that there is a likelihood of conviction before invoking Section 319 CrPC. | Used to emphasise that such satisfaction may be reached only after cross-examination and evaluation of all available evidence. |
Court's Reasoning and Analysis
The Supreme Court underscored that Section 319 CrPC demands judicial satisfaction that the person sought to be added as an accused is likely to be convicted. Such satisfaction usually requires completion of cross-examination and appraisal of the entire evidentiary record, not merely the witness’s chief-examination.
The trial court’s decision to defer summoning until further stages was therefore a legitimate exercise of discretion. Moreover, PW-1, being only a witness, lacked standing to invoke the High Court’s inherent jurisdiction. The impugned Sessions Court order was neither final nor one that prejudiced any party’s rights, rendering even a revision non-maintainable. Consequently, the High Court’s intervention under Section 482 CrPC was deemed improper.
Holding and Implications
APPEAL ALLOWED; High Court order set aside.
Immediate Effect: The appellant will not be summoned under Section 319 CrPC at this stage; the trial before the Sessions Judge continues unaffected. Broader Implication: The judgment reaffirms that discretionary powers under Section 319 CrPC must be exercised only after rigorous judicial scrutiny, and that witnesses lack locus standi to directly seek such intervention through Section 482 CrPC.
S.B Sinha, J.— Leave granted.
2. A first information report was lodged against the appellant herein by one Rafiq on 10-11-2005 alleging commission of an offence under Sections 307/324 IPC. In view of the death of the injured, the case was converted to one under Section 302 IPC. The police submitted a charge-sheet only against one Karimullah @ Aarif. No charge-sheet was submitted as against the appellant herein. After the matter was taken up for hearing before the learned trial Judge, Respondent 1 examined himself as PW 1. In his examination-in-chief, he alleged that the incident had taken place in his presence and the appellant had taken part in the incident. An application was filed for summoning the appellant herein under Section 319 of the Code of Criminal Procedure only on the basis thereof. The learned Sessions Judge refused to accede to the said prayer stating:
“File is taken up. Statement has been perused in regard to the application under Section 319 CrPC. On perusal of the statement of the witness PW 1 Rafiq, uptil now, witness's chief examination is only done. The witness had stated that the incident has taken place in his presence and has further stated to reach the spot on hearing the noise. On going through statement given under Section 161 CrPC of the witness, it is found to be recorded in Paper 1 dated 10-11-2005 that he reached the spot after the incident as stated by this witness. And accused Karimullah is said to be the incident doer. Hence, the application is not acceptable at this stage. The application under Section 319 CrPC is being dismissed at this stage.”
3. Respondent 1 filed an application before the High Court of Judicature at Allahabad under Section 482 CrPC against the said order and by reason of the impugned order, the same has been allowed. The appellant is, thus, before us.
4. Contention of the learned counsel appearing for the appellant before us is that keeping in view the fact that the learned Sessions Judge had refused to exercise his discretionary jurisdiction at that stage of the trial, the impugned judgment cannot be sustained.
5. Learned counsel appearing on behalf of the respondent, on the other hand, submitted that in view of the fact that the appellant was named in the FIR and the witnesses in their examination before the police under Section 161 CrPC alleged some overt act against him, the impugned judgment should not be interfered with.
6. Section 319 of the Code of Criminal Procedure reads thus:
“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 afresh, and witnesses reheard;
(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.”
7. Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefor must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.
8. As interpretation of the abovementioned provision is now covered by some decisions of this Court, we need not state ingredients at this stage.
9. In MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1 a Division Bench of this Court while holding that even if a person had not been sent for trial by the police, the trial court would be entitled to invoke its jurisdiction after taking evidence, stating:
“19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law.”
(emphasis supplied)
This aspect of the matter has also recently been considered in Yuvaraj Ambar Mohite v. State of Maharashtra (2006) 12 SCC 512, (2006) 10 Scale 369.
10. Respondent 1 states that he was merely a witness. He had no say in the matter. We thus fail to understand as to how, at his instance, and, that too, at that stage, the High Court could entertain an application under Section 482 CrPC. The judgment and Order dated 26-8-2006 passed by the learned Sessions Judge was not even an interim order affecting the rights of the parties. Even revision application thereagainst could not have been maintained at that stage.
11. The trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same.
12. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed.
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