TMI Blog2009 (5) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... gnizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction u/s 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to the learned Sessions Judge for consideration of the matter afresh. The appeals are allowed with the aforementioned directions. - S.B. Sinha And P. Sathasivam, JJ. JUDGMENT S.B. SINHA, 1. Leave granted. 2. Interpretation and/ or application of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the specific attribution to Gurdip Singh, Sarabjit Singh and Sarup Singh, it is prima facie established that they were members of an unlawful assembly having the common object to kill Rajwinder Singh and they are liable to face the trial u/s 148, 302 read with Section 149 I.P.C. Hence, accused Gurdip Singh son of Sohan Singh, Sarabjit Singh son of Nazir Singh and Sarup Singh son of Mohan Singh, residents of village Kaile Kalan be summoned through non-bailable warrant, of arrest for 17.10.06 to face trial u/s 148, 302 read with Section 149 I.P.C. alongwith the other accused. Singh accused Gurpreet Singh alias Gopi is already facing the trial, therefore, there is no need to issue process against him. With this, the application u/s 319 Cr. P.C. is disposed of accordingly. Papers be attached with the trial file. As indicated hereinbefore, appellants revision application thereagainst before the High Court was dismissed. 9. Mr. Jasbir Singh Malik, learned counsel appearing on behalf of the appellants, would contend that the power of a court under Section 319 of the Code being exceptional in nature, the courts below must be held to have committed a manifest error in sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the crossexamination of the newly added accused is the mandate of Section 319(4). The words could be tried together with the accused in Section 319(1), appear to be only directory. Could be cannot under these circumstances be held to be must be . The provision cannot be inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Punjab [(1998) 7 SCC 149], this Court opined: 20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers. 21. But then one more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to a miscarriage of justice), is the Sessions Court completely powerless to deal with such a contingency? One such situation is cited by the learned Judges through an illustration narrated in Kishun Singh case1 as follows: (SCC pp. 29- 30, para 15) [W]here two persons A and B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpelling reasons exist for taking cognizance against the other person against whom action has not been taken In Mohd. Shafi v. Mohd. Rafiq Anr. [2007 (5) SCALE 611], this Court held: 7. Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appears 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. *** *** *** 12. 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. The decision of this Court in Mohd. Shafi (supra), however, has been explained in Lal Suraj @ Suraj Singh and Anr. v. State of Jharkhand [2008 (16) SCALE 276], stating: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi (supra) is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken. 17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined: Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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