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Harbhajan Singh And Another v. State Of Punjab And Another
Factual and Procedural Background
Harbhajan Singh (Appellant 1) and Ranjit Kaur (Appellant 2) lived with Sarabjit Singh, the brother of Appellant 2. Sarabjit Singh persistently followed Rajni (the deceased) and, along with the appellants, pressured her to marry him. They allegedly threatened to “defame” her by circulating obscene photographs.
On 12 March 2005 Sarabjit Singh threw obscene photographs at Rajni’s home and at her uncle’s residence, later telephoning to confirm delivery. Rajni consumed “sulphos” tablets and died, leaving a dying declaration naming Sarabjit Singh and both appellants as responsible for her suicide.
FIR No. 45 dated 13 March 2005 was registered under Sections 306/509/420/120-B/456 IPC, but the police charge-sheeted only Sarabjit Singh. During trial, prosecution witnesses testified that the appellants had threatened to defame Rajni if she refused marriage.
Invoking Section 319 CrPC, the complainant sought to summon the appellants as additional accused. The Additional Sessions Judge allowed the application on 11 September 2006. The appellants’ revision before the High Court of Punjab & Haryana was dismissed on 19 March 2008. They appealed to the Supreme Court, which delivered the present judgment.
Legal Issues Presented
- Whether, on the evidence then available, the trial court rightly exercised its power under Section 319 CrPC to summon the appellants as additional accused despite their absence from the police charge-sheet.
- Whether the court must invariably postpone the exercise of Section 319 CrPC power until prosecution witnesses have been cross-examined, in light of Mohd. Shafi v. Mohd. Rafiq (2007).
- Whether the ingredients of Section 306 IPC (abetment of suicide) were prima facie satisfied against the appellants, given that the immediate act of throwing photographs was attributed to Sarabjit Singh alone.
Arguments of the Parties
Appellants’ Arguments
- The essential ingredients of Section 306 IPC were not fulfilled against them; only Sarabjit Singh had thrown obscene photographs.
- An order under Section 319 CrPC can be passed only after witnesses are cross-examined, as allegedly held in Mohd. Shafi v. Mohd. Rafiq (2007) 14 SCC 544.
- The correctness of Mohd. Shafi has been referred to a larger Bench, suggesting that the summoning order should await that determination.
Respondents’ Arguments
- The High Court’s order was correct; the dying declaration and witness statements supplied ample prima facie material to summon the appellants.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohd. Shafi v. Mohd. Rafiq (2007) 14 SCC 544 | Suggested need to complete cross-examination before exercising Section 319 power. | Distinguished; Court held it is not authority for mandating cross-examination in every case, and that the present case involved completed cross-examination. |
| MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1 | Court may add non-charge-sheeted persons as accused if later evidence justifies it; power to be used sparingly. | Relied upon to affirm that the trial court could summon the appellants once sufficient evidence emerged. |
| Joginder Singh v. State of Punjab (1979) 1 SCC 345 | Affirms court’s power under Section 319 CrPC to summon additional accused. | Cited as part of the consistent jurisprudence supporting such power. |
| Lok Ram v. Nihal Singh (2006) 10 SCC 192 | Same principle as Joginder Singh regarding Section 319. | Reinforced the legal basis for the summoning order. |
| Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738 | Scope of Section 319 CrPC. | Referenced to support the existence of jurisdiction to add accused. |
| Kailash v. State of Rajasthan (2008) 14 SCC 51 | Scope and limits of Section 319 jurisdiction. | Cited in the same line of authorities endorsing the power. |
| Sarabjit Singh v. State of Punjab (2009) 16 SCC 46 | Further precedent on Section 319 CrPC. | Served to illustrate consistency in allowing addition of accused where evidence warrants. |
| Hardeep Singh v. State of Punjab (2009) 16 SCC 785 | Two questions on timing and standard for Section 319 referred to larger Bench. | Discussed; Court assumed that waiting for cross-examination is not always required. |
| Rakesh v. State of Haryana (2001) 6 SCC 248 | Prima facie material can justify Section 319 action even without cross-examination. | Quoted to show that “evidence” in Section 319 need not be tested by cross-examination. |
Court's Reasoning and Analysis
The Supreme Court first noted that Rajni’s dying declaration explicitly named both appellants and Sarabjit Singh as responsible for her suicide. At the Section 319 stage, the correctness of that declaration could not be challenged.
The Court reiterated settled law that non-submission of a charge-sheet against a person does not bar the trial court from summoning such person if subsequent evidence reveals involvement. It relied on MCD v. Ram Kishan Rohtagi and related cases to reinforce this principle.
Addressing the appellant’s reliance on Mohd. Shafi, the Court observed that:
- In Mohd. Shafi the application was filed by a witness with no locus, and the trial judge had chosen to defer consideration; the case did not establish a universal rule that cross-examination must be completed.
- Cross-examination of witnesses had, in fact, taken place in the present matter, satisfying even the appellants’ preferred standard.
- The reference to a larger Bench in Hardeep Singh did not oblige the Court to postpone decision, especially as the existing jurisprudence supported the impugned orders.
Considering the dying declaration and corroborative witness testimony that the appellants threatened to defame the deceased if she refused marriage, the Court concluded that there was sufficient prima facie material showing their participation in abetment of suicide. Consequently, the Additional Sessions Judge’s exercise of power under Section 319 CrPC was a sound, judicious use of discretion, and the High Court rightly refused to interfere in revision.
Holding and Implications
APPEAL DISMISSED.
Immediate effect: the appellants must face trial as additional accused alongside Sarabjit Singh for offences under FIR No. 45/2005. The judgment reaffirms the trial court’s authority to summon non-charge-sheeted persons under Section 319 CrPC when prima facie evidence—such as a dying declaration and supporting testimony—emerges, and clarifies that cross-examination need not invariably precede such action. No new doctrinal precedent was created, but existing principles governing Section 319 were reinforced.
S.B Sinha, J.— Leave granted. The appellants are before us aggrieved by and dissatisfied with the judgment and order dated 19-3-2008 passed by a learned Single Judge of the High Court of Punjab and Haryana at Chandigarh whereby and whereunder the revision application filed by them questioning the legality and/or validity of the order dated 11-9-2006 passed by the learned Additional Sessions Judge, Jalandhar allowing an application under Section 319 of the Code of Criminal Procedure (for short “the Code”) filed by the complainant (Respondent 2 herein) summoning them as additional accused in connection with FIR No. 45 dated 13-3-2005 under Sections 306/509/420/120-B/456 of the Penal Code, 1860, was dismissed.
2. The appellants and one Sarabjit Singh used to live together. Sarabjit Singh is the brother of Appellant 2. He used to follow the deceased, Rajni despite protests made by her. He gave a proposal of marriage to her which was not accepted. The appellants also asked her to marry Sarabjit, but she refused. She was threatened of being blackmailed stating that some obscene photographs of hers would be shown to others.
3. On 12-3-2005 Sarabjit Singh threw some obscene photographs of the deceased at her house as well as at the house of her paternal uncle, Kamaljeet. He telephoned the deceased that her father and uncle must have received the gift sent by him. She thereafter committed suicide by consuming “sulphos” tablets.
4. A first information report was lodged. However, the charge-sheet was submitted only against Sarabjit Singh. Witnesses were examined before the learned Additional Sessions Judge. They categorically stated that not only Sarabjit Singh but also the appellants, when informed that the deceased did not want to marry Sarabjit, threatened that they would “defame” Rajni. According to the said witnesses, they had gone to the house of Harbhajan Singh, Appellant 1 a week prior to her death in that connection. It was categorically stated that the deceased consumed “sulphos” tablets as Sarabjit and the appellants used to harass her. In the cross-examination, the complainant, Subhash Chander furthermore stated that his sons had informed him that they had received a telephonic message from Sarabjit Singh as to whether they had received the gift sent by him to them.
5. The learned Additional Sessions Judge passed the said order dated 11-9-2006 summoning the appellants as additional accused in the said case, stating:
“I have heard the learned Additional Public Prosecutor for the State as well as perused the documents in the file, as well as the statement made by Subhash Chander, father of Rajni before the police as well as his statement recorded in the court and also the statement of Rajni, deceased at the time of her death given to the police. Rajni as well as her father have named both Harbhajan Singh and Rajnit Kaur as active participants in the commission of the offence of abetting her suicide along with accused Sarabjit Singh alias Sabhi. All three of them have blackmailed her by throwing her nude photographs before her house as well as in front of the house of her uncle in order to defame her and in order to pressurise her to marry Sarabjit Singh alias Sabhi. There is sufficient material to proceed against the accused. A lady at the time of her death will never tell a lie. The very fact that she has named all the three persons in the abetment of her suicide carries conviction. In view of the abovesaid facts I allow the application and order that Harbhajan Singh, son of Sarwan Singh and Ranjit Kaur, w/o Harbhajan Singh both residents of E-104, Upkar Nagar (Jaimal Nagar), PS Division No. 8, Jalandhar be summoned as accused to face trial along with accused Sarabjit Singh alias Sabhi as their summoning is essential in the interest of justice and for the just and proper decision of the case. They be summoned for 28-9-2006.”
6. The High Court, by reason of the impugned judgment, has dismissed the revision application filed by the appellants herein, stating:
“… However, Subhash Chander has specifically stated that they had met the petitioners even one week before the death of the deceased. In all, Subhash Chander stated that they had met the petitioners three times. If the petitioners were reiterating their threat to defame the deceased, throwing of obscene photographs of the deceased at her house even by Sarabjit Singh alone, would not exonerate the petitioners at this stage because it was in continuation of the series of acts of the petitioners themselves as well. Here it would not be out of place to notice that even the deceased in her statement (dying declaration) specifically stated that the petitioners and Sarabjit Singh are responsible for her suicide. In view of the aforesaid, it cannot be said that there is no prima facie (sic material) for proceeding against the petitioners. The impugned order does not suffer from any illegality or error of jurisdiction.”
7. Mr Satinder S. Gulati, the learned counsel appearing on behalf of the appellants would submit that the learned Additional Sessions Judge as also the High Court committed a serious error insofar as they failed to take into consideration that the ingredients of Section 306 of the Penal Code having not been fulfilled inasmuch as the immediate cause for committing suicide being throwing of nude photographs of the deceased having been attributed to Sarabjit Singh alone, the appellants could not have been summoned as additional accused. The learned counsel, in this behalf, would strongly rely upon the decision of this Court in Mohd. Shafi v. Mohd. Rafiq (2007) 14 SCC 544, (2007) 4 SCR 1023, (2007) 5 Scale 611.
8. Our attention has further been drawn to the fact that correctness of the decision in Mohd. Shafi (2007) 14 SCC 544, (2007) 4 SCR 1023, (2007) 5 Scale 611 insofar as it was held that the order summoning the accused may be passed only upon cross-examining the witnesses, having been doubted, has been referred to a three-Judge Bench. The learned counsel appearing on behalf of the respondents, on the other hand, would support the impugned judgment.
9. In this case, the deceased made a dying declaration. In the said dying declaration not only Sarabjit Singh but also the appellants herein were named as the persons who were responsible for her death. Correctness of the said dying declaration at this stage is not and cannot be questioned. It may be true that the appellants were not charge-sheeted but it is now well settled, by reason of various decisions of this Court, that only because no charge-sheet has been submitted against certain persons, the same by itself, would not be a sufficient ground for the court at a later stage, namely, upon consideration of the evidence adduced before it by the prosecution to decline to exercise its jurisdiction to add other persons as accused for trying them for the offences which appear to it to have been committed by them.
10. The dying declaration together with the statements made by the prosecution witnesses show commission of an offence. The appellants took the side of Sarabjit Singh. They not only asked the deceased to marry him but even threatened her as also her parents that in case of refusal, she would be “defamed”. It is not possible, keeping in view the nature of evidence which was made available before the learned Additional Sessions Judge, to arrive at a conclusion that the said evidence, even if given face value and taken to be correct in its entirety; had not disclosed commission of an offence or on the basis thereof a judgment of conviction cannot be recorded at all. The appellants had raised certain defences. The same ultimately may or may not be accepted. But, indisputably, at this stage, the evidence adduced discloses some offence.
11. In MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1 it has been held as under:
“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. We would, however, make it plain that the mere fact that the proceedings have been quashed against Respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.”
(See also Joginder Singh v. State of Punjab (1979) 1 SCC 345; Lok Ram v. Nihal Singh (2006) 10 SCC 192; Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738; Kailash v. State of Rajasthan (2008) 14 SCC 51, (2008) 3 Scale 338 and Sarabjit Singh v. State of Punjab (2009) 16 SCC 46, (2009) 8 Scale 175.)
12. In Mohd. Shafi (2007) 14 SCC 544, (2007) 4 SCR 1023, (2007) 5 Scale 611, an application under Section 319 of the Code was filed by a witness. He was not the complainant. He had no locus standi to file the application. In that case, the trial Judge had refused to pass an order on the application filed by the complainant under Section 319 of the Code stating that the matter would be considered only after the cross-examination of the witnesses is over. The State was not aggrieved by that order and in that situation this Court refused to interfere with the inference that such an order by the High Court at that stage was not held to be correct.
13. Our attention, however, has been drawn to a decision of this Court in Hardeep Singh v. State of Punjab (2009) 16 SCC 785, JT (2008) 12 SC 7 wherein the following questions have been referred for consideration by a larger Bench by an order dated 7-11-2008:
“79. We, therefore, refer the following two questions for the consideration of a Bench of three Hon'ble Judges:
(1) When the power under sub-section (1) of Section 319 of the Code of addition of an accused can be exercised by a court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?
(2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the court is satisfied that the accused summoned in all likelihood would be convicted?”
We would assume that in all cases the court may not wait till cross-examination is over for the purpose of exercising its jurisdiction.
14. In the aforementioned decision in Hardeep Singh (2009) 16 SCC 785, JT (2008) 12 SC 7, the learned Judges had referred to a judgment of this Court in Rakesh v. State of Haryana (2001) 6 SCC 248 wherein it was held that even without cross-examination on the basis of a prima facie material which would enable the Sessions Court to decide whether the power under Section 319 of the Code should be exercised or not stating that at that stage evidence as used in Section 319 of the Code would not mean evidence which is tested by cross-examination.
15. Even if what is contended by the learned counsel is correct, it is not for us to go into the said question at this stage; herein cross-examination of the witnesses had taken place. The Court had taken into consideration the materials available to it for the purpose of arriving at a satisfaction that a case for exercise of jurisdiction under Section 319 of the Code was made out. Only because the correctness of a portion of the judgment in Mohd. Shafi (2007) 14 SCC 544, (2007) 4 SCR 1023, (2007) 5 Scale 611 has been doubted by another Bench, the same would not mean that we should wait for the decision of the larger Bench, particularly when the same instead of assisting the appellants runs counter to their contention.
16. We may, however, incidentally place on record that in Mohd. Shafi (2007) 14 SCC 544, (2007) 4 SCR 1023, (2007) 5 Scale 611, the trial court refused to exercise its discretion and postponed passing of an order till cross-examination was over. If at that stage, the Court was not satisfied about the existence of any other material which would satisfy it to exercise the jurisdiction which as per the decision of this Court in MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1 should be used very sparingly, this Court should not have passed a favourable order at that stage itself. It was merely held that the High Court should not have interfered as the said provision conferred an extraordinary power. Each case must be decided on its own facts.
17. If a judicious discretion exercised by the Court had led it to pass an order under Section 319 of the Code, the High Court exercising a revisional jurisdiction would interfere therewith, inter alia, in a case where legal principles laid down by this Court had not been satisfied. The decision of this Court in Mohd. Shafi (2007) 14 SCC 544, (2007) 4 SCR 1023, (2007) 5 Scale 611, therefore, in our opinion, is not an authority for the proposition that in each and every case the court must wait till the cross-examination is over.
18. Keeping in view the materials available on record as also the nature of the order passed by the learned Sessions Judge, we are of the opinion that no interference with the impugned judgment is called for in the peculiar facts and circumstances of the case. For the reasons aforementioned, the appeal is dismissed.
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