{"id":209123,"date":"2006-10-19T00:00:00","date_gmt":"2006-10-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anil-singh-anr-vs-state-of-bihar-ors-on-19-october-2006"},"modified":"2016-03-10T19:40:19","modified_gmt":"2016-03-10T14:10:19","slug":"anil-singh-anr-vs-state-of-bihar-ors-on-19-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anil-singh-anr-vs-state-of-bihar-ors-on-19-october-2006","title":{"rendered":"Anil Singh & Anr vs State Of Bihar & Ors on 19 October, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Anil Singh & Anr vs State Of Bihar & Ors on 19 October, 2006<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Dalveer Bhandari<\/div>\n
           CASE NO.:\nAppeal (crl.)  1082 of 2006\n\nPETITIONER:\nAnil Singh & Anr\n\nRESPONDENT:\nState of Bihar & Ors\n\nDATE OF JUDGMENT: 19\/10\/2006\n\nBENCH:\nS.B. Sinha & Dalveer Bhandari\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of S.L.P. (CRL) No. 5802 of 2004]
\nWITH
\nCRIMINAL APPEAL NO. 1083OF 2006
\n[Arising out of S.L.P. (CRL) No. 1590 of 2005]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
 \tLeave granted.\n<\/p>\n
 \tThese appeals are directed against a judgment and order dated
\n8.7.2004 passed by a learned Single Judge of the Patna High Court in
\nCriminal Miscellaneous No. 33544 of 2001 whereby and whereunder an
\napplication filed under Section 482 of the Code of Criminal Procedure on
\nbehalf of Respondent No. 2 herein has been allowed.\n<\/p>\n
 \tThe question revolves round interpretation of Section 319 of the Code
\nof Criminal Procedure.  Respondent No. 2 herein lodged a first information
\nreport inter alia against Appellants alleging that in an incident which took
\nplace at 8.30 a.m. on 16.7.1997, one Ranjit Singh (deceased) S\/o Dileswara
\nSingh was shot from behind as a result whereof he sustained bullet injuries.
\nIn the first information report, Appellants herein were specifically named.
\nUpon an investigation, the Superintendent of Police having come to the
\nconclusion that they had been falsely implicated, a final form was filed in
\ntheir favour.  The said final form as against Appellants was accepted by the
\nlearned Magistrate.  However, as a chargesheet was filed against the other
\naccused, cognizance was taken against them.\n<\/p>\n
 \tBefore the learned Sessions Judge, the prosecution examined three
\nwitnesses including the first informant.  They, in their deposition, stated that
\nRespondents herein with the chargesheeted accused took part in commission
\nof the offence of murder of Ranjit Singh.\n<\/p>\n
 \tNavin Kumar Singh (PW-1) in his evidence stated:\n<\/p>\n
“Ranjit Singh, Prahlad Singh were there.  They
\nwere sitting on the shop of Mahender Yadav.
\nRanjit and Prahlad went to the shop of Uchit Lal
\nMahto for taking tea.  The witnesses state that at
\nfirst Prahlad Singh went to take tea.  After some
\ntime, Ranjit was also going to the shop of Uchit
\nLal for taking tea.  Ranjit was going from the shop
\nof Mahender and when he reached at Pakki road,
\nPancha Mahto, Anil Singh, Biltu Mahto, Siyavar
\nSingh reached there from the North side.  Anil
\nSingh was having a country-made Pistol in his
\nhand.”\n<\/p>\n
 \tPrahalad Singh (PW-2) in his deposition stated:\n<\/p>\n
“As Ranjit reached the road from the North, Anil
\nSingh, Siyavar Singh, Pancha Mahto, Biltu Mahto
\ncame towards Ranjit.  Anil Singh fired from the
\ncountry-made Pistol from behind.  On receiving
\nthe bullet shot, Ranjit fell on the road and died
\nthere.”\n<\/p>\n
 \tIn cross-examination, he, however, stated:\n<\/p>\n
“10.\tThere are four persons by the name of Anil
\nSingh in my village, Anil Singh s\/o Sita Sharan,
\nAnil S\/o Upendra, Anil Singh s\/o Ram Bujhavan,
\nAnil Singh S\/o Yugal Singh, they are all of my
\ncaste.  I have acquaintance with them.  The house
\nof Anil Singh s\/o Sitasharan Singh is at a distance
\nof < K.M. from my house.  The house of Mahtos
\nis at a distance from my house.  I recognize the
\nfaces of all the persons of Mahto Tola.  I do not
\nknow the names of every one.  I know about 100
\npersons of Mahto Tola by name<\/p>\n
20.\tAfter coming out of the shop of Uchit Lal, I
\nran towards East, West.  I was injured of my own.
\nI recognize Sanjivan and Hari Narain.  Both of
\nthem are my uncles.  Ranjit Singh was also my
\nuncle in relation.  I have no relationship with Anil
\nSingh s\/o Sita Sharan Singh.  The house of Anil
\nSingh is in my Tola<\/p>\n
28.\tI know Biltu Mahto for the past many days.
\nHe was not a leader of the Communist Party.”\n<\/p>\n
 \tHarsh Narain Singh (PW-3), however, stated:\n<\/p>\n
“3.\tAnil, Biltu, Siyavar, Pancha Mahto were
\ncoming from North.  Anil came near Ranjit and
\nshot him dead by the Revolver.  On being hit by
\nRevolver, Ranjit died on the road.  Siyavar Singh,
\nBiltu Mahto, Pancha Mahto, asked to kill Prahalad.
\nPancha Mahto got ready to kill Prahalad by the
\nknife and gave a blow on his stomach.  When
\nPrahalad stopped him, then his left hand was cut.
\nPrahalad threw the bench and ran away.  I
\nrecognize the accused Pancho Mahto who is
\npresent.  I can recognize on being seen.  There was
\nno opposition.”\n<\/p>\n
 \tThe prosecution thereafter filed an application for summoning
\nAppellants purported to be in terms of Section 319 of the Code of Criminal
\nProcedure.  By a judgment and order dated 22.9.2001, the Second Addl.
\nSessions Judge dismissed the said application inter alia holding that
\nAppellants have been found to be innocent as there was doubt as regards
\ntheir identity.\n<\/p>\n
 \tOn an application filed under Section 482 of the Code of Criminal
\nProcedure by the informant, the High Court, however, opined:\n<\/p>\n
“In the present case, the Opposite Parties 1 to 3
\nwere named in the first information report and in
\nthe case diary there were sufficient materials
\nagainst them, even then the final form was
\nsubmitted by the Investigating Officer which was
\naccepted by the learned Magistrate without
\nobserving the mandatory provisions of law.  Now
\nat the stage of trial some evidence has come
\nagainst them and, as such, the order passed by the
\nlearned trial court is wholly without jurisdiction.
\nThe finding of the learned trial court that identity
\nof the Opposite Parties 1 to 3 cannot be established
\nas their parentage is not given is against the
\nmaterials on record as in the first information
\nreport and also in the charge-sheet the parentage of
\nthe Opposite Parties 1 to 3 have been given.  In the
\ndeposition the parentage of the Opposite Parties 1
\nto 3 has also been stated by the prosecution
\nwitnesses.  As such, the petition filed by the
\nprosecution under Section 319 of the Code should
\nnot have been dismissed on this ground.  As far as
\nthe submission made by the learned counsel
\nappearing on behalf of Opposite Parties 1 and 2
\nthat rightly or wrongly they were made accused by
\nan earlier order, which was quashed by this
\nHon’ble Court, therefore, they cannot be
\nsummoned under Section 319 of the Code is
\nconcerned, I must say that this argument has no leg
\nto stand.  Once the order dated 16.8.1998 that
\nstatus of the Opposite Parties was not as an
\naccused and, as such, they can be summoned under
\nSection 319 of the Code.\n<\/p>\n
 \tOne consideration of the entire materials and
\narguments advanced on behalf of the parties I am
\nof the view that the order impugned is without
\njurisdiction.  The order impugned dated 22.9.2001
\npassed by the IInd Additional Sessions Judge,
\nMadhubani is quashed.  The trial court is directed
\nto proceed in the matter in accordance with law.”\n<\/p>\n
  \tAppellants are, thus, before us.\n<\/p>\n
 \tMr. Jaideep Gupta, learned senior counsel appearing on behalf of
\nAppellants, would submit that although there is no bar in law in issuing
\nsummons to an accused, who had been named in the first information report
\nbut had not been sent up for trial, by the court in exercise of its jurisdiction
\nunder Section 319 of the Code of Criminal Procedure, the power of the court
\nbeing extraordinary in nature is required to be exercised very sparingly.  It
\nwas contended that the learned Sessions Judge at the later stage of the
\nproceeding proceeded on the basis that the High Court had issued a direction
\nupon it to issue processes and, thus, the processes have since been directed
\nto be issued.\n<\/p>\n
 \tMr. Gopal Singh, learned standing counsel appearing on behalf of
\nRespondent  State, on the other hand, would contend that the High Court
\ncannot be said to have committed any error in passing the impugned
\njudgment having regard to the evidences brought on records.\n<\/p>\n
 \tSection 319 of the Code of Criminal Procedure reads, thus:\n<\/p>\n
 “319. Power to proceed against other persons
\nappearing to be guilty of offence.(1) Where, in
\nthe course of any inquiry into, or trial of, an
\noffence, it appears from the evidence that any
\nperson not being the accused has committed any
\noffence for which such person could be tried
\ntogether with the accused, the court may proceed
\nagainst such person for the offence which he
\nappears to have committed.\n<\/p>\n
(2) Where such person is not attending the court,
\nhe may be arrested or summoned, as the
\ncircumstances of the case may require, for the
\npurpose aforesaid.\n<\/p>\n
(3) Any person attending the court, although not
\nunder arrest or upon a summons, may be detained
\nby such court for the purpose of the inquiry into, or
\ntrial of, the offence which he appears to have
\ncommitted.\n<\/p>\n
(4) Where the court proceeds against any person
\nunder sub-section (1) then\n<\/p>\n
(a) the proceedings in respect of such person shall
\nbe commenced afresh, and witnesses re-heard;\n<\/p>\n
(b) subject to the provisions of clause (a), the case
\nmay proceed as if such person had been an accused
\nperson when the court took cognizance of the
\noffence upon which the inquiry or trial was
\ncommenced.”\n<\/p>\n
\tAs noticed, the jurisdiction of the court to issue processes against a
\nperson who has not been sent up for trial is not disputed.  Processes can also
\nbe issued against such persons who although were named in the first
\ninformation report, but were not sent up for trial upon investigation.\n<\/p>\n
 \tThe jurisdiction of the court indisputably is limited.  While it can
\nexercise an extraordinary power, it is required to be done cautiously.  The
\ncourt while issuing the processes should arrive at a reasonable satisfaction
\nthat the prosecution would be able to prove the charges against whom the
\nprocesses are sought to be issued.\n<\/p>\n
\tThe law in this behalf has been laid down in Municipal Corporation of
\nDelhi v. Ram Kishan Rohtagi and Others<\/a> [(1983) 1 SCC 1] in the following
\nterms:\n<\/p>\n
“But, we would hasten to add that this is really an
\nextraordinary power which is conferred on the
\ncourt and should be used very sparingly and only if
\ncompelling reasons exist for taking cognisance
\nagainst the other person against whom action has
\nnot been taken.”\n<\/p>\n
 [See also Kishun Singh and Others v. State of Bihar (1993) 2 SCC 16]<\/p>\n
\tIn Michael Machado and Another v. Central Bureau of Investigation
\nand Another<\/a> [(2000) 3 SCC 262], this Court opined:
\n“11. The basic requirements for invoking the
\nabove section is that it should appear to the court
\nfrom the evidence collected during trial or in the
\ninquiry that some other person, who is not
\narraigned as an accused in that case, has
\ncommitted an offence for which that person could
\nbe tried together with the accused already
\narraigned. It is not enough that the court
\nentertained  some doubt, from the evidence, about
\nthe involvement of another person in the offence.
\nIn other words, the court must have reasonable
\nsatisfaction from the evidence already collected
\nregarding two aspects. First is that the other person
\nhas committed an offence. Second is that for such
\noffence that other person could as well be tried
\nalong with the already arraigned accused.”\n<\/p>\n
 \tYet again in Krishnappa v. State of Karnataka<\/a> [(2004) 7 SCC 792],
\nthis Court observed:\n<\/p>\n
“9. In Michael Machado v. Central Bureau of
\nInvestigation<\/a> construing the words “the court may
\nproceed against such person” in Section 319 CrPC,
\nthis Court held that the power is discretionary and
\nshould be exercised only to achieve criminal
\njustice and that the court should not turn against
\nanother person whenever it comes across evidence
\nconnecting that other person also with the offence.
\nThis Court further held that a judicial exercise is
\ncalled for, keeping a conspectus of the case,
\nincluding the stage at which the trial has already
\nproceeded and the quantum of evidence collected
\ntill then, and also the amount of time which the
\ncourt had spent for collecting such evidence. The
\ncourt, while examining an application under
\nSection 319 CrPC, has also to bear in mind that
\nthere is no compelling duty on the court to proceed
\nagainst other persons. In a nutshell, it means that
\nfor exercise of discretion under Section 319 CrPC,
\nall relevant factors, including the one noticed
\nabove, have to be kept in view and an order is not
\nrequired to be made mechanically merely on the
\nground that some evidence had come on record
\nimplicating the person sought to be added as an
\naccused.”\n<\/p>\n
\tThe said dicta has been followed by this Court in Kavuluri
\nVivekananda Reddy and Another v. State of A.P. and Another [(2005) 12
\nSCC 432] and Palanisamy Gounder and Another v. State Represented by
\nInspector of Police [(2005) 12 SCC 327].\n<\/p>\n
\tIn Rukhsana Khatoon (Smt.) v. Sakhawat Hussain and Others [(2002)
\n10 SCC 661], whereto our attention has been drawn by learned standing
\ncounsel, this Court did not law down any law having universal application.
\nIt merely opined that the court may exercise its power under Section 319 of
\nthe Code of Criminal Procedure also in relation to such accused who had
\nalthough been named in the first information report, but was not sent up for
\ntrial stating:\n<\/p>\n
“6. The learned counsel for the respondents
\ncontended that the High Court was justified in
\npassing the impugned order and in support of his
\ncontention he has relied upon the decision in
\nMunicipal Corpn. of Delhi v. Ram Kishan Rohtagi.
\nIn<\/a> our view, there is no substance in his
\ncontention. In that case also, after considering
\nSection 319 CrPC, this Court held that the said
\nprovision gives ample power to any court to take
\ncognizance and add any person not being an
\naccused before it and try him along with other
\naccused, if there appears during the trial sufficient
\nevidence indicating his involvement in the offence.
\nThe Court also observed that this power is really
\nan extraordinary power and should be used very
\nsparingly.”\n<\/p>\n
 \t[See also Girish Yadav and Others v. State of M.P. (1996) 8 SCC 186,
\nat page 197]
\n \tThe court’s power, as noticed hereinbefore, is not disputed.  The
\nlearned Sessions Judge, however, as has been observed by the High Court,
\nproceeded on a wrong premise in holding that as no chargesheet was filed as
\nagainst Appellants by the police the same was not sufficient to refuse to
\nissue summons.  The question, which was necessary to be posed in view of
\nthe propositions of law as noticed supra, was as to whether any case has
\nbeen made out for exercise of extraordinary jurisdiction by the court keeping
\nin view the fact as to whether the prosecution would be able to bring home
\nthe charge.  If the court comes to the conclusion having regard to the
\nmaterials on record, that the prosecution ultimately may not be able to bring
\nhome the charge as against the persons against whom processes were to be
\nissued, it would decline to do so.  The court must also take into
\nconsideration the fact as to whether an appropriate case has been made out
\nfor exercise of the extraordinary jurisdiction.\n<\/p>\n
 \tIt may be true that the court at that stage may not enter into the merit
\nof the matter.  Its opinion in the nature of things would be a prima facie one.
\nBut, the court must also consider that the innocent persons may not be
\nprosecuted.  The court is not bound by the opinion of the investigating
\nofficer.  It is required to apply the tests on the touchstone of the materials
\nbrought on record.  A balance is required to be maintained.  The court must
\npose unto itself a right question.  It is required to scrutinize the materials
\nmore closely.  A power under Section 319 of the Code of Criminal
\nProcedure is not to be exercised in a mechanical manner.  Only because
\nsome evidence has been brought on record, the same by itself may not be a
\nground to issue processes.\n<\/p>\n
The learned Judge of the High Court by its judgment did not direct
\nthat the processes be issued.  It merely directed the learned Trial Judge to
\nproceed in the matter in accordance with law.  The same evidently did not
\nmean that the High Court has already arrived at a conclusion that the
\nprocesses must be issued.  The High Court merely laid down a law as the
\nlearned Trial Judge went wrong in formulating the correct question of law.
\nThe High Court, however, did not have any occasion to consider the merit of
\nthe matter.  In that view of the matter, we would remit the matter back to the
\nlearned Trial Judge and direct that the question be considered afresh in the
\nlight of the observations made hereinbefore.  As the case is pending for a
\nlong time, we would request the learned Trial Court to consider the
\ndesirability of disposing the matter as expeditiously as possible.  The appeals
\nare allowed to the aforementioned extent.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Anil Singh & Anr vs State Of Bihar & Ors on 19 October, 2006 Author: S.B. Sinha Bench: S.B. Sinha, Dalveer Bhandari CASE NO.: Appeal (crl.) 1082 of 2006 PETITIONER: Anil Singh & Anr RESPONDENT: State of Bihar & Ors DATE OF JUDGMENT: 19\/10\/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-209123","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAnil Singh & Anr vs State Of Bihar & Ors on 19 October, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/anil-singh-anr-vs-state-of-bihar-ors-on-19-october-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anil Singh & Anr vs State Of Bihar & Ors on 19 October, 2006 - 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