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2008 (11) TMI 717 - SUPREME COURTApplication u/s 319 of the CrPC to include respondent Nos. 2 and 3 as accused and to summon them for trial - Unlawful Assembly - Commission of offences punishable u/s 307, 326, 336 and 427 r/w Sections 120B, 148 and 149 of the IPC as also for offences punishable u/s 25, 27, 54 and 59 of the Arms Act - Accused were arrested - Vijay Preet Singh (respondent No. 2) was one of them - respondent Nos. 2 and 3 i.e. Vijay Preet Singh and Jagtar Singh - Addl. Sessions Judge, rejected the application observing that he did not find sufficient grounds to proceed against Vijay Preet Singh and Jagtar Singh - High Court, however, dismissed the Revision and confirmed the order passed by the trial Court. HELD THAT:- In the instant case, however, the Superintendent of Police not only refers to investigation made by him and the statements recorded in the course of investigation but records a `finding' that the statements were `correct'. Vijay Preet Singh was not present at the place of offence when the incident took place but reached after the occurrence was over. Thereafter police had arrested him. Likewise, Jagtar Singh was not present at the spot at the time of occurrence. Likewise, in an appeal arising out of Special Leave Petition (Hardeep Singh v. State of Punjab & Ors.), Jagtar Singh was not charge-sheeted. Both the Courts considered the report of the IO and held that the action of non-issuing of process against Jagtar Singh could not be held illegal or unlawful. We are of the view that the order cannot be termed unlawful or unwarranted which requires interference. As far as Vijay Preet Singh is concerned, the matter stands on a different footing. His name finds place in the FIR. Not only that he was present at the place of offence with a weapon (gandasi) but was also arrested by the police from the scene of offence. His name was, however, excluded and charge sheet was not submitted in pursuance of an application made by his father. It was the allegation of the complainant that the said action was taken with a view to oblige Sukhvinder Singh, father of Vijay Preet Singh who was Chairman of Panchayat Samiti. Prima facie, in the light of factual scenario, the submission on behalf of the appellant is well-founded that name of Vijay Preet Singh ought to have been included in the charge sheet and the application u/s 319 of the Code deserves to be allowed. The ld counsel for the accused, however, referring to Mohd. Shafi, submitted that in the said decision, this Court held that the jurisdiction u/s 319 of the Code can be exercised by the Court only if the Court is satisfied that in all likelihood such person would be convicted. Following the judgement in the case of Mohd. Shafi [2007 (4) TMI 735 - SUPREME COURT], We have reproduced Section 319 of the Code in the earlier part of the judgment. Bare reading of sub-section (1) leaves no room of doubt what it requires. It states that for addition of accused, it must appear to the Court from the evidence that any person not being the accused has committed any offence for which such person should be tried along with other accused. The test formulated in Mohd. Shafi substantially curtails discretionary power of the Court conferred by the Code under sub- section (1) of Section 319. Even on this point, therefore, the matter requires fresh consideration. 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 accused can be exercised by a Court? Whether application u/s 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 direct the Registry to place the matter before the Hon'ble the Chief Justice of India for taking an appropriate action. Ordered accordingly.
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