Freedom at last

Quashing simply means cancelling. Under criminal procedure code, a petitioner can seek quashing of First Information Report (FIR) or summoning order or criminal complaint or any other order against which the alternate remedy of appeal or revision does not lie. Non-Resident Indians (NRI) are more concerned with quashing of either First Information Report (FIR) or summoning order or criminal complaint or order declaring Non-Resident Indians (NRI) as proclaimed offender.

A quashing petition is filed under section 482 of the Criminal Procedure Code. Law relating to quashing of First Information Report (FIR) which is also applicable in other cases was clearly laid down in Bhajan Lal’s case which is as following:-

State Of Haryana vs Bhajan Lal (1992 AIR 604)

In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide, myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the ac- cused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or ‘complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Non-Resident Indians (NRI) generally file quashing petition in cases where the allegations relate to dowry (section 498 – A), misappropriation of dowry articles by in-laws (section 406), fraud and cheating (where the case is actually civil in nature) or where a person has been declared proclaimed offender. Such question petitions are routinely allowed by the High Courts within whose jurisdiction the case arises.

A quashing petition can be filed at any stage after registration of First Information Report (FIR) or initiation of criminal complaint. There are certain judgements which say that First Information Report (FIR) cannot be quashed before filing the challan, there are other judgements which say that First Information Report (FIR) cannot be quashed after filing the challan and there are still judgements which say that First Information Report (FIR) cannot be quashed after framing of charges by the trial court. However the Supreme Court is clear that First Information Report (FIR) or summoning order can be quashed at any stage of trial if otherwise grounds are made out for quashing.

Important judgments which are applicable in quashing of FIR/ Criminal Complaint cases are as following:-

Hardeep Singh v. State of Punjab (SC) 2014(3) SCC 92

SUPREME COURT OF INDIA
Before :- P. Sathasivam, C.J.I., B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S.A. Bobde, JJ.

JUDGMENT
B.S. Chauhan, J. – This reference before us arises out of a variety of views having been expressed by this Court and several High Courts of the country on the scope and extent of the powers of the courts under the criminal justice system to arraign any person as an accused during the course of inquiry or trial as contemplated under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’).

2. The initial reference was made by a two-Judge Bench vide order dated 7.11.2008 in the leading case of Hardeep Singh (Crl. Appeal No. 1750 of 2008) where noticing the conflict between the judgments in the case of Rakesh v. State of Haryana, 2001(3) RCR (Criminal) 681 ; and a two-Judge Bench decision in the case of Mohd. Shafi v. Mohd. Rafiq & Anr., 2007(2) RCR (Criminal) 762 : 2007(2) Recent Apex Judgments (R.A.J.) 534 , a doubt was expressed about the correctness of the view in the case of Mohd. Shafi (Supra). The doubts as categorised in paragraphs 75 and 78 of the reference order led to the framing of two questions by the said Bench which are reproduced hereunder :

(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 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?

3. The reference was desired to be resolved by a three-Judge Bench whereafter the same came up for consideration and vide order dated 8.12.2011, the Court opined that in view of the reference made in the case of Dharam Pal & Ors. v. State of Haryana & Anr., 2006(2) RCR (Criminal) 75 : (2004)13 SCC 9, the issues involved being identical in nature, the same should be resolved by a Constitution Bench consisting of at least five Judges. The Bench felt that since a three-Judge Bench has already referred the matter of Dharam Pal (Supra) to a Constitution Bench, then in that event it would be appropriate that such overlapping issues should also be resolved by a Bench of similar strength.

4. Reference made in the case of Dharam Pal (Supra) came to be answered in relation to the power of a Court of Sessions to invoke Section 319 Cr.P.C. at the stage of committal of the case to a Court of Sessions. The said reference was answered by the Constitution Bench in the case of Dharam Pal & Ors. v. State of Haryana & Anr., 2013(3) RCR (Criminal) 787 : 2013(4) Recent Apex Judgments (R.A.J.) 381 [hereinafter called `Dharam Pal (CB)’], wherein it was held that a Court of Sessions can with the aid of Section 193 Cr.P.C. proceed to array any other person and summon him for being tried even if the provisions of Section 319 Cr.P.C. could not be pressed in service at the stage of committal.

Thus, after the reference was made by a three-Judge Bench in the present case, the powers so far as the Court of Sessions is concerned, to invoke Section 319 Cr.P.C. at the stage of committal, stood answered finally in the aforesaid background.

5. On the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this Bench :

(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

(ii) Whether the word “evidence” used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

(iii) Whether the word “evidence” used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?

(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
6. In this reference what we are primarily concerned with, is the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified. To add as a corollary to the same, thirdly, the manner in which such power has to be exercised, also has to be considered.

7. The Constitutional mandate under Articles 20 and 21 of the Constitution of India, 1950 (hereinafter referred to as the `Constitution’) provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to the society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under the Cr.P.C. indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty.

8. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Cr.P.C.

9. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the above mentioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is subject matter of trial.

10. In order to answer the aforesaid questions posed, it will be appropriate to refer to Section 351 of the Criminal Procedure Code, 1898 (hereinafter referred to as `Old Code’), where an analogous provision existed, empowering the court to summon any person other than the accused if he is found to be connected with the commission of the offence. However, when the new Cr.P.C. was being drafted, regard was had to 41st Report of the Law Commission where in the paragraphs 24.80 and 24.81 recommendations were made to make this provision more comprehensive. The said recommendations read :

“24.80 It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is proper that Magistrate should have the power to call and join him in proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in Section 351 for summoning such a person if he is not present in court. Such a provision would make Section 351 fairly comprehensive, and we think it proper to expressly provide for that situation.

24.81 Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in Section 190, and are apparently exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrates own information under Section 190(1), or only in the manner in which cognizance was first taken of the offence against the accused. The question is important, because the methods of inquiry and trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is that the whole case against all known suspects should be proceeded with expeditiously and convenience requires that cognizance against the newly added accused should be taken in the same manner against the other accused. We, therefore, propose to recast Section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must he reheard in the presence of the newly added accused.”
11. Section 319 Cr.P.C. as it exists today, is quoted hereunder :

“319 Cr.P.C. – 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 the witnesses re-heard;

(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.”
12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.

It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.?

The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of Cr.P.C. and the judgments that have been relied on for the said purpose. The controversy centers around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.

13. It would be necessary to put on record that the power conferred under Section 319 Cr.P.C. is only on the court.

This has to be understood in the context that Section 319 Cr.P.C. empowers only the court to proceed against such person. The word “court” in our hierarchy of criminal courts has been defined under Section 6 Cr.P.C., which includes the Courts of Sessions, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Sessions is defined in Section 9 Cr.P.C. and the Courts of Judicial Magistrates has been defined under Section 11 thereof. The Courts of Metropolitan Magistrates has been defined under Section 16 Cr.P.C. The courts which can try offences committed under the Indian Penal Code, 1860 or any offence under any other law, have been specified under Section 26 Cr.P.C. read with First Schedule. The explanatory note (2) under the heading of “Classification of Offences” under the First Schedule specifies the expression `magistrate of first class’ and `any magistrate’ to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates.

14. It is at this stage the comparison of the words used under Section 319 Cr.P.C. has to be understood distinctively from the word used under Section 2(g) defining an inquiry other than the trial by a magistrate or a court. Here the legislature has used two words, namely the magistrate or court, whereas under Section 319 Cr.P.C., as indicated above, only the word “court” has been recited. This has been done by the legislature to emphasise that the power under Section 319 Cr.P.C. is exercisable only by the court and not by any officer not acting as a court. Thus, the magistrate not functioning or exercising powers as a court can make an inquiry in particular proceeding other than a trial but the material so collected would not be by a court during the course of an inquiry or a trial. The conclusion therefore, in short, is that in order to invoke the power under Section 319 Cr.P.C., it is only a Court of Sessions or a Court of Magistrate performing the duties as a court under the Cr.P.C. that can utilise the material before it for the purpose of the said Section.

15. Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge-sheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.

16. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution.

17. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.

18. Coming to the stage at which power under Section 319 Cr.P.C. can be exercised, in Dharam Pal (Supra), this Court had noticed the conflict in the decisions of Kishun Singh & Ors. v. State of Bihar, 1993(1) RCR (Criminal) 647 : (1993)2 SCC 16 and Ranjit Singh v. State of Punjab, 1998(4) RCR (Criminal) 552 , and referred the matter to the Constitution Bench. However, while referring the matter to a Constitution Bench, this Court affirmed the judgment in Kishun Singh (Supra) and doubted the correctness of the judgment in Ranjit Singh (Supra). In Ranjit Singh (Supra), this Court observed that from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 Cr.P.C., that court can deal with only the accused referred to in Section 209 Cr.P.C. and there is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused, while in Kishun Singh (Supra), this Court came to the conclusion that even the Sessions Court has power under Section 193 Cr.P.C. to take cognizance of the offence and summon other persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record and need not wait till the stage of Section 319 Cr.P.C. is reached. This Court in Dharam Pal (Supra) held that the effect of Ranjit Singh (Supra) would be that in less serious offences triable by a Magistrate, the said Court would have the power to proceed against those who are mentioned in Column 2 of the charge-sheet, if on the basis of material on record, the Magistrate disagrees with the conclusion reached by the police, but, as far as serious offences triable by the Court of Sessions are concerned, that court will have to wait till the stage of Section 319 Cr.P.C. is reached.

19. At the very outset, we may explain that the issue that was being considered by this Court in Dharam Pal (CB), was the exercise of such power at the stage of committal of a case and the court held that even if Section 319 Cr.P.C. could not be invoked at that stage, Section 193 Cr.P.C. could be invoked for the said purpose. We are not delving into the said issue which had been answered by the five-Judge Bench of this Court. However, we may clarify that the opening words of Section 193 Cr.P.C. categorically recite that the power of the Court of Sessions to take cognizance would commence only after committal of the case by a magistrate. The said provision opens with a non-obstante clause “except as otherwise expressly provided by this code or by any other law for the time being in force”. The Section therefore is clarified by the said opening words which clearly means that if there is any other provision under Cr.P.C., expressly making a provision for exercise of powers by the court to take cognizance, then the same would apply and the provisions of Section 193 Cr.P.C. would not be applicable.

20. In our opinion, Section 319 Cr.P.C. is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt by this Court in Dharam Pal (CB).

21. In Elachuri Venkatachinnayya & Ors. v. King-Emperor (1920) ILR 43 Mad 511, this Court held that an inquiry is a stage before the committal to a higher court. In fact, from a careful reading of the judgments under reference i.e. Ranjit Singh (Supra) and Kishun Singh (Supra), it emerges that there is no dispute even in these two cases that the stage of committal is neither an inquiry nor a trial, for in both the cases, the real dispute was whether Section 193 Cr.P.C. can be invoked at the time of committal to summon an accused to face trial who is not already an accused. It can safely be said that both the cases are in harmony as to the said stage neither being a stage of inquiry nor a trial.

22. Once the aforesaid stand is clarified in relation to the stage of committal before the Court of Sessions, the answer to the question posed now, stands focussed only on the stage at which such powers can be exercised by the court other than the stage of committal and the material on the basis whereof such powers can be invoked by the court.

Question No.(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

23. The stage of inquiry and trial upon cognizance being taken of an offence, has been considered by a large number of decisions of this Court and that it may be useful to extract the same hereunder for proper appreciation of the stage of invoking of the powers under Section 319 Cr.P.C. to understand the meaning that can be attributed to the word `inquiry’ and `trial’ as used under the Section.

24. In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, this Court held :

“…once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.”
25. The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g) Cr.P.C., which defines an inquiry as follows :

“2(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.”
26. In State of U.P. v. Lakshmi Brahman & Anr., AIR 1983 SC 439, this Court held that from the stage of filing of charge-sheet to ensuring the compliance of provision of Section 207 Cr.P.C., the court is only at the stage of inquiry and no trial can be said to have commenced. The above view has been held to be per incurium in Raj Kishore Prasad v. State of Bihar & Anr., 1996(2) RCR (Criminal) 804 , wherein this Court while observing that Section 319 (1) Cr.P.C. operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of Section 209 Cr.P.C., the court is neither at the stage of inquiry nor at the stage of trial. Even at the stage of ensuring compliance of Sections 207 and 208 Cr.P.C., it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the Magistrate is required to do is to make the case ready to be heard by the Court of Sessions.

27. Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. In Moly & Anr. v. State of Kerala, 2004(2) RCR (Criminal) 389 , this Court observed that though the word `trial’ is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry must always be a forerunner to the trial. A three-Judge Bench of this Court in The State of Bihar v. Ram Naresh Pandey & Anr., AIR 1957 SC 389 held :

“The words `tried’ and `trial’ appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words `tried’ and `trial’ have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration.”

(Emphasis added)

28. In Ratilal Bhanji Mithani v. State of Maharashtra & Ors., AIR 1979 SC 94, this Court held :

“Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry. After the framing of charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end.”

(Emphasis added)

29. In V.C. Shukla v. State through C.B.I., AIR 1980 SC 962, this Court held :

“…The proceedings starting with Section 238 of the Code including any discharge or framing of charges under Section 239 or 240 amount to a trial…”
30. In Union of India & Ors. v. Major General Madan Lal Yadav (Retd.), 1996(2) RCR (Criminal) 103 : 1996(2) S.C.T. 347 , a three-Judge Bench while dealing with the proceedings in General Court Martial under the provisions of the Army Act 1950, applied legal maxim “nullus commodum capere potest de injuria sua propria” (no one can take advantage of his own wrong), and referred to various dictionary meanings of the word `trial’ and came to the conclusion :

“It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.

(Emphasis supplied)

xxx xxx

Our conclusion further gets fortified by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV “Conditions requisite for initiation of proceedings” containing Sections 190 to 210, Chapter XVIII containing Sections 225 to 235 and dealing with “trial before a Court of Sessions” pursuant to committal order under Section 209 and in Chapter XIX “trial of warrant cases by Magistrates” containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the offence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the offence and taking further steps to conduct the trial.”

(Emphasis supplied)

31. In “Common Cause”, A Registered Society thr. its Director v. Union of India & Ors., AIR 1997 SC 1539, this Court while dealing with the issue held :

“(i) In case of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned cases.

(ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973, while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the concerned accused under Section 246 of the Code of Criminal Procedure, 1973.

(iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make.”

(Emphasis added)

32. In Raj Kishore Prasad (Supra), this Court said that as soon as the prosecutor is present before the court and that court hears the parties on framing of charges and discharge, trial is said to have commenced and that there is no intermediate stage between committal of case and framing of charge.

33. In In Re: Narayanaswamy Naidu v. Unknown, 1 Ind Cas 228, a Full Bench of the Madras High Court held that “Trial begins when the accused is charged and called on to answer and then the question before the Court is whether the accused is to be acquitted or convicted and not whether the complaint is to be dismissed or the accused discharged.” A similar view has been taken by Madras High Court subsequently in Sriramulu v. Veerasalingam, (1914) I.L.R. 38 Mad. 585.

34. However, the Bombay High Court in Dagdu Govindshet Wani v. Punja Vedu Wani, (1936) 38 Bom.L.R. 1189 referring to Sriramulu (Supra) held :

“There is no doubt that the Court did take the view that in a warrant case the trial only commences from the framing of the charge ..But, according to my experience of the administration of criminal justice in this Presidency, which is not inconsiderable, the Courts here have always accepted the definition of trial which has been given in Gomer Sirda v. Queen-Empress, (1898) I.L.R. 25 Cal. 863, that is to say, trial has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and, defence, if the accused be defended, present in Court for the hearing of the case.”
A similar view has been taken by the Lahore High Court in Sahib Din v. The Crown, (1922) I.L.R. 3 Lah. 115, wherein it was held that for the purposes of Section 350 of the Code, a trial cannot be said to commence only when a charge is framed. The trial covers the whole of the proceedings in a warrant case. This case was followed in Fakhruddin v. The Crown, (1924) I.L.R. 6 Lah. 176; and in Labhsing v. Emperor, (1934)35 Cr.L. J. 1261.

35. In view of the above, the law can be summarised to the effect that as `trial’ means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the `trial’ commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.

36. Section 2(g) Cr.P.C. and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under Cr.P.C. by the Magistrate or the court. The word `inquiry’ is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial.

37. Even the word “course” occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the entire wide range of the process of the pre-trial and the trial stage. The word “course” therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry upto the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word “course” ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time; duration and not a fixed point of time. (See: Commissioner of Income-tax, New Delhi (Now Rajasthan) v. M/s. East West Import & Export (P) Ltd. (Now known as Asian Distributors Ltd.) Jaipur, AIR 1989 SC 836).

38. In a somewhat similar manner, it has been attributed to word “course” the meaning of being a gradual and continuous flow advanced by journey or passage from one place to another with reference to period of time when the movement is in progress. (See: State of Travancore-Cochin & Ors. v. Shanmugha Vilas Cashewnut Factory, Quilon, AIR 1953 SC 333).

39. To say that powers under Section 319 Cr.P.C. can be exercised only during trial would be reducing the impact of the word `inquiry’ by the court. It is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim “A Verbis Legis Non Est Recedendum” which means, “from the words of law, there must be no departure” has to be kept in mind.

40. The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot re-write, recast or reframe the legislation for the reason that it has no power to legislate.

41. No word in a statute has to be construed as surplusage. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the Statute. By construction, a provision should not be reduced to a “dead letter” or “useless lumber”. An interpretation which renders a provision an otiose should be avoided otherwise it would mean that in enacting such a provision, the legislature was involved in “an exercise in futility” and the product came as a “purposeless piece” of legislation and that the provision had been enacted without any purpose and the entire exercise to enact such a provision was “most unwarranted besides being uncharitable.” (Vide: Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC 1457; The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529; M.V. Elisabeth & Ors. v. Harwan Investment & Trading Pvt. Ltd. Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, AIR 1993 SC 1014; Sultana Begum v. Prem Chand Jain, 1997(2) RCR (Civil) 8 ; State of Bihar & Ors. etc.etc. v. Bihar Distillery Ltd. etc. etc., AIR 1997 SC 1511; Institute of Chartered Accountants of India v. M/s. Price Waterhouse & Anr., AIR 1998 SC 74; and The South Central Railway Employees Co-operative Credit Society Employees Union, Secundrabad v. The Registrar of Co-operative Societies & Ors., 1998(1) S.C.T 703 ).

42. This Court in Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., 2013(1) S.C.T. 537 , after placing reliance on various earlier judgments of this Court held :

“The Court has to keep in mind the fact that, while interpreting the provisions of a Statute, it can neither add, nor subtract even a single word… A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause.under the garb of interpreting the provision, the Court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation.”
Thus, by no means it can be said that provisions of Section 319 Cr.P.C. cannot be pressed into service during the course of `inquiry’. The word `inquiry’ is not surpulsage in the said provision.

43. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) Cr.P.C. can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 Cr.P.C., committal etc., which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind.

44. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance of Sections 207 and 208 Cr.P.C., and committing the matter if it is exclusively triable by Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 Cr.P.C. is forbidden, by express provision of Section 319 Cr.P.C., to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Sessions.

45. It may be pertinent to refer to the decision in the case of Raj Kishore Prasad (supra) where, in order to avoid any delay in trial, the court emphasised that such a power should be exercised keeping in view the context in which the words “inquiry” and “trial” have been used under Section 319 Cr.P.C. and came to the conclusion that such a power is not available at the pre-trial stage and should be invoked only at the stage of inquiry or after evidence is recorded.

46. A two-Judge Bench of this Court in M/s. SWIL Ltd. v. State of Delhi & Anr., 2001(3) RCR (Criminal) 826 , held that once the process has been issued, power under Section 319 Cr.P.C. cannot be exercised as at that stage, since it is neither an inquiry nor a trial. In Ranjit Singh (Supra), the Court held :

“So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code, that court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused. 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”
47. In Kishun Singh (Supra), the Court while considering the provision of the old Code, the Law Commission’s Recommendation and the provisions in the Cr.P.C., held that Section 319 Cr.P.C. is an improved provision upon the earlier one. It has removed the difficulty of taking cognizance as cognizance against the added person would be deemed to have been taken as originally against the other co-accused. Therefore, on Magistrate committing the case under Section 209 Cr.P.C. to the Court of Sessions, the bar of Section 193 Cr.P.C. gets lifted thereby investing the Court of Sessions complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record, though who is not an accused before the court.

48. In Dharam Pal (CB), the Constitution Bench approved the decision in Kishun Singh (Supra) that the Sessions Judge has original power to summon accused holding that “the Sessions Judge was entitled to issue summons under Section 193 Code of Criminal Procedure upon the case being committed to him by the Magistrate. The key words in Section 193 are that “no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.” The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said Section”

49. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 Cr.P.C. cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB). The dispute therein was resolved visualising a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 Cr.P.C. is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 Cr.P.C. confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it.

50. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Cr.P.C.

Accordingly, we hold that the court can exercise the power under Section 319 Cr.P.C. only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein above.

51. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 Cr.P.C. i.e. provisions of Sections 200, 201, 202, etc. Cr.P.C. applicable in the case of Complaint Cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint Cases is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872, (hereinafter referred to as the `Evidence Act’) comes before the court. There does not seem to be any restriction in the provisions of Section 319 Cr.P.C. so as to preclude such evidence as coming before the court in Complaint Cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the Court, such evidence can be used only to corroborate the evidence recorded during the trial for the purpose of Section 319 Cr.P.C., if so required.

52. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded.

53. Thus, the application of the provisions of Section 319 Cr.P.C., at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 Cr.P.C. can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge sheet or any other person who might be an accomplice.

Question No. (iii) : Whether the word “evidence” used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial?

54. To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 Cr.P.C., the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that comes up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 Cr.P.C. indicate that the material has to be “where ….it appears from the evidence” before the court.

55. Before we answer this issue, let us examine the meaning of the word `evidence’. According to Section 3 of the Evidence Act, `evidence’ means and includes :

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court, such statements are called documentary evidence;
56. According to Tomlin’s Law Dictionary, Evidence is “the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writing or records.” Bentham defines `evidence’ as “any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact-a persuasion either affirmative or dis-affirmative of its existence. Of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact.” According to Wigmore on Evidence, evidence represents “any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked.”

57. The provision and the above-mentioned definitions clearly suggest that it is an exhaustive definition. Wherever the words “means and include” are used, it is an indication of the fact that the definition `is a hard and fast definition’, and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expression. (Vide: M/s. Mahalakshmi Oil Mills v. State of A.P., AIR 1989 SC 335; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh & Ors., (1990) 3 SCC 682; P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., AIR 1995 SC 1395; Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner & Ors., 2007(3) S.C.T. 243 : 2007(4) Recent Apex Judgments (R.A.J.) 450 ; and Ponds India Ltd. (merged with H.L. Limited) v. Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369).

58. In Feroze N. Dotivala v. P.M. Wadhwani & Ors., 2002(2) RCR (Rent) 702 : (2003)1 SCC 433, dealing with a similar issue, this Court observed as under :

“Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the word as defined.”
We, therefore proceed to examine the matter further on the premise that the definition of word “evidence” under the Evidence Act is exhaustive.

59. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., 2011(1) RCR (Civil) 873 :2011(1) Recent Apex Judgments (R.A.J.) 463 , while dealing with the issue this Court held :

“18. The word “evidence” is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word “evidence” given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.”
60. In relation to a Civil Case, this court in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., 2004(1) RCR (Civil) 259 , held that the examination of a witness would include evidence-in-chief, cross-examination or re-examination. In Omkar Namdeo Jadhao & Ors. v. Second Additional Sessions Judge Buldana & Anr., AIR 1997 SC 331; and Ram Swaroop & Ors. v. State of Rajasthan, AIR 2004 SC 2943, this Court held that statements recorded under Section 161 Cr.P.C. during the investigation are not evidence. Such statements can be used at the trial only for contradictions or omissions when the witness is examined in the court.

(See also: Podda Narayana & Ors. v. State of A.P., AIR 1975 SC 1252; Sat Paul v. Delhi Administration, AIR 1976 SC 294; and State (Delhi Administration) v. Laxman Kumar & Ors., 1986(1) RCR (Criminal) 184 ).

61. In Lok Ram v. Nihal Singh & Anr., 2006(2) RCR (Criminal) 707 , it was held that it is evident that a person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added as an accused to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge- sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence.

62. The majority view of the Constitution Bench in Ramnarayan Mor & Anr. v. The State of Maharashtra, AIR 1964 SC 949 has been as under :

“9. It was urged in the alternative by counsel for the appellants that even if the expression “evidence” may include documents, such documents would only be those which are duly proved at the enquiry for commitment, because what may be used in a trial, civil or criminal, to support the judgment of a Court is evidence duly proved according to law. But by the Evidence Act which applies to the trial of all criminal cases, the expression “evidence” is defined in Section 3 as meaning and including all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry and documents produced for the inspection of the Court. There is no restriction in this definition to documents which are duly proved by evidence.”

(Emphasis added)

63. Similarly, this Court in Sunil Mehta & Anr. v. State of Gujarat & Anr., 2013(3) RCR (Criminal) 238 : 2013(3) Recent Apex Judgments (R.A.J.) 702 : JT 2013(3) SC 328, held that “It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Cr.P.C. is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.”

64. In Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr., 2007(4) RCR (Criminal) 497 : 2007(5) Recent Apex Judgments (R.A.J.) 352 , this Court held that in exercise of the powers under Section 319 Cr.P.C., the court can add a new accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary.

65. In Kishun Singh (Supra), this Court held :

“11. On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power (under Section 319(1)), it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. Therefore, stricto sensu, Section 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution.

12. But then it must be conceded that Section 319 covers the post-cognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision..”
66. A similar view has been taken by this Court in Raj Kishore Prasad (Supra), wherein it was held that in order to apply Section 319 Cr.P.C., it is essential that the need to proceed against the person other than the accused appearing to be guilty of offence arises only on evidence recorded in the course of an inquiry or trial.

67. In Lal Suraj @ Suraj Singh & Anr. v. State of Jharkhand, 2009(1) RCR (Criminal) 504 : (2009)2 SCC 696, a two-Judge Bench of this Court held that “a court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 Cr.P.C., the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.”

68. A similar view has been reiterated by this Court in Rajendra Singh v. State of U.P. & Anr., 2007(3) RCR (Criminal) 1022 : 2007(4) Recent Apex Judgments (R.A.J.) 305 , observing that court should not exercise the power under Section 319 Cr.P.C. on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. The word `evidence’ in Section 319 Cr.P.C. contemplates the evidence of witnesses given in the court.

69. Ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached. A bare perusal of Section 227 Cr.P.C. would show that the legislature has used the terms “record of the case” and the “documents submitted therewith”. It is in this context that the word `evidence’ as appearing in Section 319 Cr.P.C. has to be read and understood. The material collected at the stage of investigation can at best be used for a limited purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict the statements of the witnesses recorded before the court. Therefore, for the exercise of power under Section 319 Cr.P.C., the use of word `evidence’ means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319 Cr.P.C.

70. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial.

71. It is, therefore, clear that the word “evidence” in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.

72. The inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. It is the duty of the court to do so and therefore the power to perform this duty is provided under the Cr.P.C.

73. The unveiling of facts other than the material collected during investigation before the magistrate or court before trial actually commences is part of the process of inquiry. Such facts when recorded during trial are evidence. It is evidence only on the basis whereof trial can be held, but can the same definition be extended for any other material collected during inquiry by the magistrate or court for the purpose of Section 319 Cr.P.C.?

74. An inquiry can be conducted by the magistrate or court at any stage during the proceedings before the court. This power is preserved with the court and has to be read and understood accordingly. The outcome of any such exercise should not be an impediment in the speedy trial of the case.

75. Though the facts so received by the magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 Cr.P.C. it is an information of complicity. Such material therefore, can be used even though not an evidence in stricto sensuo, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved.

76. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material alongwith the charge-sheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge-sheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges.

77. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused.

78. This would harmonise such material with the word `evidence’ as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court.

79. The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.

80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The `evidence’ is thus, limited to the evidence recorded during trial.

Q.(ii) Does the word `evidence’ in Section 319 Cr.P.C. means as arising in Examination-in-Chief or also together with Cross- Examination?

81. The second question referred to herein is in relation to the word `evidence` as used under Section 319 Cr.P.C., which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination-in-chief. In Rakesh (Supra), it was held that “It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court’s power under Section 319 Cr.P.C. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not.” In Ranjit Singh (Supra), this Court held that “it is not necessary for the court to wait until the entire evidence is collected,” for exercising the said power. In Mohd. Shafi (Supra), it was held that the pre-requisite for exercise of power under Section 319 Cr.P.C. was the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross examination is over and that there would be no illegality in doing so. A similar view has been taken by a two-Judge Bench in the case of Harbhajan Singh & Anr. v. State of Punjab & Anr. 2009(3) RCR (Criminal) 916 : 2009(5) Recent Apex Judgments (R.A.J.) 19 : (2009)13 SCC 608. This Court in Hardeep Singh (Supra) seems to have misread the judgment in Mohd. Shafi (Supra), as it construed that the said judgment laid down that for the exercise of power under Section 319 Cr.P.C., the court has to necessarily wait till the witness is cross examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 Cr.P.C.

82. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.

83. As held in Mohd. Shafi (Supra) and Harbhajan Singh (Supra), all that is required for the exercise of the power under Section 319 Cr.P.C. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The pre-requisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straight-jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-in-Chief, it can exercise the power under Section 319 Cr.P.C. and can proceed against such other person(s). It is essential to note that the Section also uses the words `such person could be tried’ instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section 4 of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of Examination- in-Chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by Cross Examination, undoubtedly in itself, is an evidence.

84. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness(s) prior to passing of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(s) is obliterating the role of persons already facing trial. More so, Section 299 Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein.

85. Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.

Q. (iv) What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C.?

86. Section 319(1) Cr.P.C. empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court.

The word “appear” means “clear to the comprehension”, or a phrase near to, if not synonymous with “proved”. It imparts a lesser degree of probability than proof.

87. In Pyare Lal Bhargava v. The State of Rajasthan, AIR 1963 SC 1094, a four-Judge Bench of this Court was concerned with the meaning of the word `appear’. The court held that the appropriate meaning of the word `appears’ is `seems’. It imports a lesser degree of probability than proof. In Ram Singh & Ors. v. Ram Niwas & Anr., 2009(3) RCR (Criminal) 501 : 2009(4) Recent Apex Judgments (R.A.J.) 261 : (2009)14 SCC 25, a two-Judge Bench of this Court was again required to examine the importance of the word `appear’ as appearing in the Section. The Court held that for the fulfillment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as an accused in the case.

88. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two- Judge Bench of this Court in Vikas v. State of Rajasthan, 2013(4) RCR (Criminal) 948 : 2013(6) Recent Apex Judgments (R.A.J.) 356 : 2013(11) SCALE 23, held that on the objective satisfaction of the court a person may be `arrested’ or `summoned’, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

89. In Rajendra Singh (Supra), the Court observed :

“Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is “may” and not “shall”. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression “appears” indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not.”
90. In Mohd. Shafi (Supra), this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.

91. In Sarabjit Singh & Anr. v. State of Punjab & Anr., 2009(3) RCR (Criminal) 388 : 2009(4) Recent Apex Judgments (R.A.J.) 144 , while explaining the scope of Section 319 Cr.P.C., a two-Judge Bench of this Court observed :

“….For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned…..Whereas the test of prima facie case may be sufficient for taking cognizance 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 under Section 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 (sic sparing) exercise of jurisdiction, would not be satisfied.”

(Emphasis added)

92. In Brindaban Das & Ors. v. State of West Bengal, 2009(1) RCR (Criminal) 672 : 2009(1) Recent Apex Judgments (R.A.J.) 400 , a two-Judge Bench of this Court took a similar view observing that the court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.

A similar view has been re-iterated by this Court in Michael Machado & Anr. v. Central Bureau of Investigation & Ors., 2000(2) RCR (Criminal) 75 .

93. However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The Court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further. (Vide: State of Karnataka v. L. Munishwamy & Ors., AIR 1977 SC 1489; All India Bank Officers’ Confederation etc. v. Union of India & Ors., AIR 1989 SC 2045; Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715; State of M.P. v. Dr. Krishna Chandra Saksena, 1997(1) RCR (Criminal) 556 : (1996) 11 SCC 439; and State of M.P. v. Mohan Lal Soni, 2000(3) RCR (Criminal) 452 ).

94. In Dilawar Babu Kurane v. State of Maharashtra, 2002(1) RCR (Criminal) 451 , this Court while dealing with the provisions of Sections 227 and 228 Cr.P.C., placed a very heavy reliance on the earlier judgment of this Court in Union of India v. Prafulla Kumar Samal & Anr., AIR 1979 SC 366 and held that while considering the question of framing the charges, the court may weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before this Court disclose grave suspicion against the accused which has not been properly explained. In such an eventuality, the court is justified in framing the charges and proceeding with the trial. The court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but court should not make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial.

95. In Suresh v. State of Maharashtra, 2001(2) RCR (Criminal) 278 , this Court after taking note of the earlier judgments in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, 1991(1) RCR (Criminal) 89 and State of Maharashtra v. Priya Sharan Maharaj, 1997(2) RCR (Criminal) 634 , held as under :

“9…..at the stage of Sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.” (Emphasis supplied)
96. Similarly in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, while dealing with the issue, this Court held :

“…..If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial……”
97. In Palanisamy Gounder & Anr. v. State, represented by Inspector of Police, 2006(2) RCR (Criminal) 235 : (2005) 12 SCC 327, this Court deprecated the practice of invoking the power under Section 319 Cr.P.C. just to conduct a fishing inquiry, as in that case, the trial court exercised that power just to find out the real truth, though there was no valid ground to proceed against the person summoned by the court.

98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if `it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not `for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not charge-sheeted or has been discharged?

100. In Joginder Singh & Anr. v. State of Punjab & Anr., AIR 1979 SC 339, a three-Judge Bench of this Court held that as regards the contention that the phrase “any person not being the accused” occurring in Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police under Section 169 Cr.P.C. and has been shown in Column 2 of the charge-sheet, the contention has merely to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319 (1) Cr.P.C. clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression.

101. In Anju Chaudhary v. State of U.P. & Anr., 2013(1) RCR (Criminal) 686 : 2013(1) Recent Apex Judgments (R.A.J.) 46 : (2013)6 SCC 384, a two-Judge Bench of this Court held that even in the cases where report under Section 173(2) Cr.P.C. is filed in the court and investigation records the name of a person in Column 2, or even does not name the person as an accused at all, the court in exercise of its powers vested under Section 319 Cr.P.C. can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law.

102. In Suman v. State of Rajasthan & Anr., 2009(4) RCR (Criminal) 908 : 2009(6) Recent Apex Judgments (R.A.J.) 365 , a two-Judge Bench of this Court observed that there is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint, but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence, the court finds that such person has committed an offence for which he could be tried together with the other accused. In Lal Suraj (supra), a two-Judge Bench held that there is no dispute with the legal proposition that even if a person had not been charge-sheeted, he may come within the purview of the description of such a person as contained in Section 319 Cr.P.C. A similar view had been taken in Lok Ram (Supra), wherein it was held that a person, though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial.

103. Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the charge-sheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Cr.P.C. can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled.

104. However, there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation; the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The Court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 Cr.P.C. without resorting to the provision of Section 319 Cr.P.C. directly.

105. In Sohan Lal & Ors. v. State of Rajasthan, 1990(3) RCR (Criminal) 610 : (1990)4 SCC 580, a two-Judge Bench of this Court held that once an accused has been discharged, the procedure for enquiry envisaged under Section 398 Cr.P.C. cannot be circumvented by prescribing to procedure under Section 319 Cr.P.C.

106. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., 1983(1) RCR (Criminal) 73 , this Court held that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them under Section 319 Cr.P.C. and try them along with the other accused.

107. Power under Section 398 Cr.P.C. is in the nature of revisional power which can be exercised only by the High Court or the Sessions Judge, as the case may be. According to Section 300 (5) Cr.P.C., a person discharged under Section 258 Cr.P.C. shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. Further, Section 398 Cr.P.C. provides that the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make an inquiry into the case against any person who has already been discharged.

108. Both these provisions contemplate an inquiry to be conducted before any person, who has already been discharged, is asked to again face trial if some evidence appears against him. As held earlier, Section 319 Cr.P.C. can also be invoked at the stage of inquiry. We do not see any reason why inquiry as contemplated by Section 300(5) Cr.P.C. and Section 398 Cr.P.C. cannot be an inquiry under Section 319 Cr.P.C. Accordingly, a person discharged can also be arraigned again as an accused but only after an inquiry as contemplated by Sections 300(5) and 398 Cr.P.C. If during or after such inquiry, there appears to be an evidence against such person, power under Section 319 Cr.P.C. can be exercised. We may clarify that the word `trial’ under Section 319 Cr.P.C. would be eclipsed by virtue of above provisions and the same cannot be invoked so far as a person discharged is concerned, but no more.

109. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C.?

110. We accordingly sum up our conclusions as follows :

Question Nos. 1 & III
Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?

AND

Q.III Whether the word “evidence” used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial?

A. In Dharam Pal’s case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till `evidence’ under Section 319 Cr.P.C. becomes available for summoning an additional accused. ? Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet. In view of the above position the word `evidence’ in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question No. II

Q.II Whether the word “evidence” used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question No. IV

Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial – therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question No. V

Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?

A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.

The matters be placed before the appropriate Bench for final disposal in accordance with law explained hereinabove.

.

Harmanpreet Singh Ahluwalia v. State of Punjab, (SC) 2009(7) SCC 712

SUPREME COURT OF INDIA
Before :- S.B. Sinha and Dr. Mukundakam Sharma, JJ.

JUDGMENT
S.B. Sinha, J. – Leave granted.

2. Appellants are before us aggrieved by and dissatisfied with a judgment and order dated 13.12.2007 passed by a learned single judge of the Punjab and Haryana High Court in Criminal Miscellaneous No. M-40020 of 2007 dismissing an application praying for quashing FIR No. 141 dated 30.5.2006 under Section 406/420 of the Indian Penal Code (for short, “Indian Penal Code”) in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure (for short, “the Code”)

3. The basic fact of the matter is not in dispute.

Appellant No. 1 is the husband of the respondent No. 3. The other appellants are his parents.

Respondent No. 3 was married with one Ravinder Singh Jaspal in Canada in the year 1995. A son was born out of the said wedlock on or about 25.8.1996. As disputes and differences arose between them, respondent No. 3 filed an affidavit for grant of divorce on or about 30.9.1998. In the said proceedings, a decree for divorce was granted by a Canadian court on or about 22.4.2000.

Almost immediately thereafter, that is, on 21.5.2000, respondent No. 3 and appellant No. 1 got married at Jalandhar as per Sikh rites.

After a month’s stay in India, respondent No. 3 left for Canada. On or about 6.3.2001, respondent No. 3 gave birth to a female child in Canada. Appellant No. 1 went to Canada on the sponsorship of respondent No. 3 on 14.4.2001. He got an employment there as a driver.

Disputes and differences arose between the appellant No. 1 and the respondent No. 3 in the year 2003. Allegedly, she left with all her belongings and withdrew Canadian $ 24500 from the joint account of the parties.

It is neither denied nor disputed that she had been contacting lawyers with regard to her matrimonial disputes and even cancelled the sponsorship of the application for grant of permanent residence of appellant No. 1 as also his family.

In those circumstances, Appellant No. 1 initiated a divorce proceedings before the Ontario Court of Justice, inter alia, stating :

“On 28th August, 2003, when the applicant had gone to work, the respondent left the matrimonial home to live with her parents. She took with her all her personal effects, jewelleries and withdrew $23,000.00 from their joint bank account.

The respondent is threatening to hurt herself and get the applicant involved with the police to deport him from Canada.

The applicant is afraid and believes, that if she is allowed to come back to his home, she may hurt herself or may hurt the applicant.

The respondent wants the applicant to be deported and may do anything to cause physical violence.

Inderpal Singh is the father of the respondent, Paramjit Kaur and the father in law of the applicant.

Surinder Singh is the brother of the respondent, Paramjit Kaur and the brother-in-law of the applicant.”
However, differences between them were sorted out and respondent No. 3 affirmed an affidavit on or about 30.9.2003 admitting her mistake, stating :

“On September 20, 2003, I decided to return to the house of my husband without advising him that I was coming back. My husband is reluctant and fearful to have me back in the house. I have promised my husband that I would not harass him any more and that I am very sorry for all the problems that I have created for him.

I am making this affidavit to satisfy the concerns and fear of my husband, HARMANPREET SINGH AHLUWALIA with respect to my motive of returning to his house. Harmanpreet Singh Ahluwalia fears that I have voluntarily returned to him cause more damage and problems for him. I have, however, returned to my husband because I have realised that I had made a big mistake by taking the steps mentioned above and I am truly remorseful for my actions.”
On or about 5.2.2006, parents of appellant No. 1 visited Canada as appellant No. 2 developed a heart problem.

Disputes and differences again arose between the parties in the year 2006 as a result whereof they started living separately with effect from 29.3.2006.

It is only thereafter, the father of the respondent No. 3, namely Inter Pal Singh, a retired Police Inspector and permanent resident of Canada, while on a trip to India, lodged a complaint against the appellants under Section 406/420 Indian Penal Code on or about 21.4.2006 along with an affidavit of respondent No. 3 inter alia alleging that the appellants demanded dowry and misappropriated the dowry articles.

It was furthermore alleged :

“11. That the marriage of Harmanpreet Singh was conducted with my daughter with preplanned ulterior and mala fide motive in order to deceive and misappropriate and misuse the dowry articles which were entrusted to the accused as mentioned above and had got pre-planned, ulterior and mala fide motive. At the time of living home, the aforesaid Harmanpreet Singh also withdrawn the amount from the bank from the joint account.”
In view of separation between appellant No. 1 and respondent No. 3, appellant filed a second divorce petition on or about 1.5.2006 in the Superior Court of Brampton, Ontario seeking divorce and custody of the child.

Indisputably, an FIR bearing No. 141 dated 30.5.2006 was registered under Section 406/420 Indian Penal Code at Division No. 4, Jalandhar.

The Superintendent of Police, Jalandhar made an enquiry with regard to the aforementioned matter. He submitted a report on or about 30.3.2007, the concluding portion whereof reads as under :

“From the investigation conducted till now, I have reached to this conclusion that although the marriage of Paramjit Kaur daughter of Inderpal Singh and Harmanpreet Singh Ahluwalia son of Sh. Harbhajan Singh had been solemnized at Hotel Raj Mahal, Jalandhar, but the misunderstanding/ altercation between them had been developed after their reaching in Canada. This fact has also been proved/clarified here that during the period from the year 2000 upto the year 2005, both of them (husband-wife) had been living amicably but later on again misunderstanding developed between them due to calling of his parents by Harmanpreet Singh to Canada. But the allegations leveled by the plaintiff in the suit/case are baseless and devoid of facts which has not been proved and neither there are solid proof available in this regard.”
He made recommendations for cancellation of the said suit/case, stating :

“From the enquiry till now made into the case registered under FIR No. 141 dated 30.5.2006 under Section 406/420 Indian Penal Code at P.S. Division No. 4, Jalandhar, the allegations leveled by the plaintiff have not been proved and neither the offence has been found to be done. If approved, then S.H.O. P.S. Division No.4 Jalandhar may be advised to submit the cancellation report of this suit case.”
4. However, despite the same, a charge-sheet was issued. In the mean time, divorce application filed by the appellant in Canada, were allowed by the Ontario Superior Court of Justice by its order dated 19.10.2007.

On receipt of the summons, appellants filed an application under Section 482 of the Code which by reason of the impugned judgment has been dismissed.

5. Mr. Rajiv K. Garg, learned counsel appearing on behalf of the appellants would submit :

i. Having regard to the factual backdrop of the matter, it is evident that the Jalandhar Court had no territorial jurisdiction to make an investigation into the matter.

ii. The proceedings initiated against the appellant amounts to an abuse of the process of law as the FIR was deliberately filed at Jalandhar although the offences, if any, had taken place only at Ontario in Canada.
6. Mr. Vineet Dhanda, learned counsel appearing on behalf of the respondent, on the other hand, urged :

i. That the appellants have committed criminal breach of trust in respect of the articles which were given in dowry.

ii. Appellant No. 1 married respondent No. 3 only for the purpose of going to Canada and, thus, an offence under Section 420 of Indian Penal Code must also be held to have been committed.
7. The allegations made in the FIR show that the appellant Nos. 2 and 3 could go to Canada on joint sponsorship of the appellant No. 1 as also the respondent No. 3. It is only at Canada that alleged demand of a sum of Rs. 5 lakhs was made on the premise that they intended to buy some property. In the FIR, it was alleged that she left her residence for attending her duties at about 0630 hrs in the morning on 29.3.2006 leaving behind her husband as also two kids aged 5 and 9 years. However, when she returned home around 1700 hrs, she found some articles missing. She was admittedly informed by the concerned police officers telephonically as regards the filing of divorce petition by the appellant and, thus, she should not bother him anymore. It is only thereafter the first informant Inder Pal Singh came to India and lodged the FIR. He is a retired police officer. In his report, he alleged:

“9. That at the time of departure, the accused were fully made aware of the fact that all the articles of dowry mentioned above constitutes the Streedhan of the daughter of the applicant namely Paramjit Kaur and are meant for the exclusive use and the same should be given to her for her personal use whenever she demands the same from them from time to time. After whole incident my daughter Smt. Paramjit Kaur is living under depression and cruelty.

10. That when I demanded the dowry articles and Streedhan property, the above mentioned persons refused to return the dowry articles.”
8. Parties admittedly live at Ontario in Canada. Offence, if any, had been committed in Canada. FIR, however, has been lodged at Jalandhar only after the divorce application was filed. No allegation has been made in the FIR that appellants at the time of marriage or thereafter demanded any dowry. The demand of a sum of Rs. 5 lakhs allegedly was made only in Canada and that too after the appellant Nos. 2 and 3 arrived in Canada in March 2006, i.e., almost after a period of five years from the date of marriage. We have noticed hereinbefore the opinion of the Superintendent of Police. He recommended ‘cancellation’ of the FIR for one reason or the other. However, the said recommendation had not been accepted. A charge-sheet has been filed.

9. Mr. Dhanda submits that the jurisdiction of a High Court under Section 482 of the Code should be used in exceptional cases and very sparingly. According to the learned counsel, allegation of mala fide against the first informant cannot be a ground for quashing a criminal proceeding after a charge-sheet has been filed. Strong reliance in this behalf has been placed on State of Karnataka v. M. Devendrappa, 2002(1) RCR(Criminal) 480 : [2002(3) SCC 89].

In the aforesaid judgment, this Court was considering a case of quashing of a criminal proceeding for commission of offence punishable under Section 465, 468, 471 and 420 read with Section 120B of the Indian Penal Code. Respondents therein were excise officials. This Court held :

“9. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. {See : Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305] and Raghubir Saran (Dr) v. State of Bihar [AIR 1964 SC 1]}. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.”
Recently in R. Kalyani v. Janak C. Mehta & Ors. [(2009)1 SCC 516], this Court opined :

“15. Propositions of law which emerge from the said decisions are :

(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.”
We must, however, also notice that in State of Haryana & Ors. v. Bhajan Lal, 1993(1) RCR(Crl.) 383 : [1992 Supp (1) SCC 335], this Court inter alia laid down the law in the following terms :

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.”
Sub-Para (7) of the said Para reads as under :

“(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
Does this case come within the purview of the aforementioned dicta is the question.

10. Parties were married in May 2000. Disputes between the parties arose for the first time in the year 2003. Respondent No. 3, however, on an application filed by the appellant No. 1 apprehending danger to his life, categorically admitted her fault and guilt. Even at that point of time no allegations of cheating and/or non-return of the Stridhan were made. It is only after a period of three years when the disputes and differences between the parties wrecked up once again and on filing of an application for divorce, the father of the respondent No.3 came from Canada to Jalandhar to lodge FIR. The facts pleaded in the application for quashing of FIR before the High Court are not denied or disputed. In fact, most of the documents relied on by the appellant are annexed to the counter affidavit filed on behalf of the respondent No.3 herself. We, therefore, do not have to consider any document which the appellant intends to place before us by way of defence. It is also not a case where this court has to undertake a difficult task of appreciating the evidence brought on record by the parties.

Mr. Dhanda’s submission that the marriage between the appellant No.1 and respondent No. 3 was solemnized only for the purpose of getting the family settled at Canada is far fetched. For the purpose of constituting an offence for criminal breach of trust and/or cheating, the ingredients thereof as contained in Section 405 and 415 respectively must be borne out from the records.

11. Criminal breach of trust is defined in Section 405 of Indian Penal Code. The ingredients of an offence of the criminal breach of trust are :

“1. Entrusting any person with property or with any dominion over property.

2. That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation –

(i) of any direction of law prescribing the mode in which such trust is to be discharged, or

(ii) of any legal contract made touching the discharge of such trust.”
Section 415 of the Indian Penal Code defines cheating as under :

“Section 415.-Cheating-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’.”
An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied :

“i) deception of a person either by making a false or misleading representation or by other action or omission;

(ii) fraudulently or dishonestly inducing any person to deliver any property; or

(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.”
12. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.

13. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract.

In Ajay Mitra v. State of M.P., 2003(1) RCR(Criminal) 674 : (2003)3 SCC 11, this Court held :

15. Section 420 Indian Penal Code says that-

“whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person … shall be punished with imprisonment …”.
Cheating has been defined in Section 415 Indian Penal Code and it says that :

“415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’.”

16. A guilty intention is an essential ingredient of the offence of cheating. In other words “mens rea” on the part of the accused must be established before he can be convicted of an offence of cheating. (See Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 574]. In Mahadeo Prasad v. State of W. B. [AIR 1954 SC 724] it was held as follows : (AIR paras 4-5)

Where the charge against the accused is under Section 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established.”
In Hira Lal Hari Lal Bhagwati v. CBI, 2003(3) RCR(Criminal) 273 : 2004(1) Apex Criminal 274 : [(2003)5 SCC 257], this Court held :

“40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption.”

{See also Indian Oil Corporation v. NEPC India Ltd. & Ors., 2006(3) RCR(Criminal) 740 : 2006(2) Apex Criminal 637 : [(2006) 6 SCC 736]}

In Vir Prakash Sharma v. Anil Kumar Agarwal, 2007(3) RCR(Criminal) 960 : 2007(4) RAJ 254 : [(2007)7 SCC 373]., noticing, inter alia, the aforementioned decision, this Court held :

“8. The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case.”

It was furthermore opined :

“13. The ingredients of Section 420 of the Penal Code are as follows :

(i) Deception of any persons;

(ii) Fraudulently or dishonestly inducing any person to deliver any property; or

(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.

14. What has been alleged in the complaint petition as also the statement of the complainant and his witnesses relate to his subsequent conduct. The date when such statements were allegedly made by the appellant had not been disclosed by the witnesses of the complainant. It is really absurd to opine that any such statement would be made by the appellant before all of them at the same time and that too in his own district. They, thus, appear to be wholly unnatural.

15. In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any intention on the part of the appellant herein to commit an offence under Section 417 of the Penal Code.

16. Furthermore, admittedly, their residences are in different districts. Whereas the appellant is a resident of the district of Ajamgarh, the respondent is a resident of the district of Rampur. Cheques were admittedly issued by the appellant at his place. There is nothing on record to show that any part of the cause of action arose within the jurisdiction of the court concerned. Even if such statements had been made, the same admittedly have been made only at the place where the appellant resides. The learned Magistrate, therefore, had no jurisdiction to issue the summons.”
The said principle has been reiterated in All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr. [2007(12) SCALE 391], stating :

“For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.”

(See also Sharon Michael & ors. vs. State of Tamil Nadu & Anr., 2009(1) RCR(Crl.) 759 : 2009(1) RAJ 484 : [2009(1) SCALE 627]

14. It is, therefore, evident that the element of wrongful intention should ordinarily exist from the inception of the contract. FIR does not satisfy the aforementioned test. So far as the allegation in regard to criminal breach of trust is concerned, it related to the dowry articles. No allegation has been made that the appellants are guilty of commission of offence punishable under Section 3 and/or 4 of the Dowry Prohibition Act. If any dowry has been given, the same would attract the provisions of the special act in preference to the general statute. Furthermore, if any article is given by way of dowry, the question of entrustment thereof for or on behalf of the bride would not arise.
Allegations made in the FIR merely disclose that at the time of leaving the house, appellants had taken with them certain articles. The said articles ought to be in lawful possession of the respondent No. 3. The offence of theft might have been committed. But when they are in joint possession, even no offence of theft would also be made out.

Furthermore, the larger part of offence, if any, has been committed only in Canada. Why the father of respondent No. 3 had to come from Canada to Jalandhar to lodge an FIR is difficult to comprehend. Respondent No. 3 and the first informant do not say that the inquiry report submitted by the Superintendent of Police on the representation made by the appellant No. 2 was incorrect. It has also not been stated that as to on what material, the charge-sheet had been submitted. We, in the peculiar facts and circumstances of this case, have absolutely no doubt in our mind that the allegations contained in the FIR had been made with an ulterior motive to harass the appellants. Continuance of the criminal proceeding against them would, therefore, amount to abuse of process of the court.

In All Carogo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr. [2007(12) SCALE 391], this Court held :

“For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.”
{See also V.Y. Jose & Anr. v. State of Gujarat & Anr., 2009(1) RCR(Criminal) 869 : 2009(1) RAJ 543 : [2008 (16) SCALE 167]}

In Hira Lal & Ors. v. State of U.P. & Ors. [2009(5) SCALE 418], this Court held:

“10. The parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 of the Code are well known. One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide.”
15. Upon taking a holistic view of the matter vis-a-vis the statutory provisions, we are of the opinion that the appellants had made out an exceptional case to invoke the inherent jurisdiction of the High Court under Section 482 of the Code. It was, in our opinion, obligatory on the part of the High Court to exercise its discretionary jurisdiction to prevent the abuse of process of the court.

16. For the aforementioned reasons, the impugned judgment and order of the High Court is set aside. The appeal is allowed.

Appeal allowed.

Ajay Mitra v. State of M.P., (SC) 2003(1) RCR.(Criminal) 674

SUPREME COURT OF INDIA
Before :- S. Rajendra Babu, Brijesh Kumar and G.P. Mathur, JJ.

JUDGMENT
G.P. Mathur, J. – Leave granted.

2. These appeals by special leave are directed against the judgment and order dated January 16, 2002 of High Court of Madhya Pradesh, by which three Petitions filed by the appellants under Section 482 Criminal Procedure Code were dismissed.

3. M/s. Cadbury Schweppes Beverages India Private Ltd. entered into three identical Bottling Agreements with the complainant, Sanjiva Bottling Company Private Limited on March 1, 1996 pursuant to a Master Trademark License entered into by associate companies of Cadbury Schweppes plc. United Kingdom and Cadbury Schweppes Beverages India Private Limited. In terms of these three agreements, M/s. Sanjiva Bottling Company was authorised to manufacture and sell certain specified beverages under specified trademarks owned by Cadbury Schweppes plc. U.K. or its associate companies. The agreements contained identical clauses with regard to their respective terms and conditions and provided that they shall continue for an initial term of five years and for further successive period of five years, unless terminated by either party by giving to the other not less than 12 calender months notice in writing to terminate the agreement. On July 29, 1999, Atlantic Industries (a wholly owned indirect subsidiary of The Coca-Cola Export Corporation, U.S.A.) purchased about 3500 trademarks in 155 countries from Cadbury Schweppes plc., upon which the bottling agreements between Cadbury Schweppes Beverages India Pvt. Ltd. and Sanjiva Bottling Company were duly assigned to Atlantic Industries and an information regarding the same was given to Sanjiva Bottling Company in writing. On February 14, 2000, Atlantic Industries gave notice in writing to the complainant, Sanjiva Bottling Company that the bottling agreements shall not be renewed after their expiry on February 28, 2001.

4. Sanjiva Bottling Company through its Director, Rajiv Mehta filed a criminal complaint against 11 accused including the appellants in the Court of Judicial Magistrate, First Class, Bhopal on July 24, 2000 for their prosecution under Section 420 read with Section 511 Indian Penal Code. The accused No. 1 arrayed in the complaint is Cadbury Schweppes Beverages India Pvt. Ltd. (A-1) and accused Nos. 2 to 5 are Chairman, Managing Director and Finance Director etc. of the said Company. Besides them, Coca Cola India (A- 6), Alex Von Behr, President and Chief Executive Officer (A-7), Nitin Dalvi, Vice-President, Strategic Business, Planning and Information Service (A-8) and Samip Shah, Vice-President, Business Development of Coca Cola India, (A-8) Ajay Mitra, Regional Operational Director, Hindustan Coca Cola Beverages Pvt. Ltd. (A-10) and Steve M. Whaley, Vice-President and General Tax Counsel, Atlantic Industries (A-11) have been arrayed as accused Nos. 6 to 11. The case set up in the complaint is that the complainant is engaged in the business of bottling soft drinks since 1983 at Bhopal. The complainant was approached by A-1 in 1995 to discontinue its competing brand ‘Sprint’ and a Memorandum of Understanding was signed on October 9, 1995. Thereafter, an agreement was entered into between the complainant and A-1 on March 1, 1996 by which the complainant became one of the bottlers of A-1, made investments in the bottling plant and also promoted the sales of A-1 in its area. By a letter dated July 29, 1999, A-1 informed the complainant that the brands Schweppes, Crush and Canada Dry and associated brands in India would be acquired by a member of the Coca Cola group of companies. A-1 had 19 bottlers in the year 1997 but Coca Cola India (A-6) had reduced them to 7 and is installing its own bottling plants in different places. The case of the complainant further is that by the letter dated February 14, 2000, A-6 informed the complainant that they would not renew the agreements on their expiry on February 28, 2001. In paras 47 and 48 of the complaint, it is alleged that A-6 is adopting all sorts of unfair trade practices and that it has made wrongful gain of over Rs. 100 crores. In para 50, it is alleged that A-1 and A-6 have not replied properly to the letters of the complainant and the accused have, therefore, cheated the complainant by making false representation.

5. The learned Magistrate before whom the complaint was filed passed an order under Section 156(3) Criminal Procedure Code on July 27, 2000 directing the police to investigate the offence as the same was cognizable offence. The police thereafter submitted a report on October 31, 2000 which reads as under :

“After the entire inquiry it appears that the Cadbury Schweppes Company and Coca Cola Company have violated the terms and conditions of Business Agreement, as a result, the complainant has suffered financial loss. The complainant was kept in darkness and supplied confusing information, consequently, Complainant suffered economic loss. Prima facie a case of business competition and violation of Agreements is made out and the complainant is advised to approach the Civil Court.”
6. After consideration of the report the learned Magistrate was of the opinion that the police had not submitted the same in accordance with Section 173(2) Criminal Procedure Code and also in the proforma prescribed in the Rules framed by the State Government as the same had been submitted on plain paper. The SHO, PS Govindpura was accordingly directed on November 16, 2000 to submit a report in the prescribed proforma.

7. On January 11, 2001, the Police submitted a report that on the basis of the complaint, Case Crime No. 5 of 2001, Case Crime No. 13 of 2001 and Case Crime No. 18 of 2001 has been registered under Sections 420, 120-B, 34 Indian Penal Code. On the same date, the learned Magistrate passed an order that the Police had registered the offence and investigation is being carried on and, therefore, the complainant should make available Hindi translation of the documents and fixed January 30, 2001 as the next date. Thereafter, the appellants filed three Criminal Miscellaneous Petitions under Section 482 Criminal Procedure Code before the High Court for quashing of the F.I.R. and the proceedings of the case before the learned Magistrate. After hearing the parties, the High Court held that the investigation had not yet commenced in connection with the F.I.Rs. which had been registered at the Police Station and, therefore, the Petitions were pre-mature and accordingly all the three Petitions were rejected.

8. Shri F.S. Nariman, learned senior counsel for the appellants has submitted that M/s. Cadbury Schweppes Beverages India Pvt. Ltd. (A-1) had entered into bottling agreements with the complainant Sanjiva Bottling Company on March 1, 1996 and the said agreements were to continue for a term of five years. It also contained a clause that either party could terminate the agreement at the end of initial term by giving to the other side not less than 12 calender months notice in writing. Subsequent to the execution of the agreement, Atlantic Industries (a wholly owned indirect subsidiary of The Coca-Cola Export Corporation, U.S.A.) purchased the trademarks from Cadbury Schweppes plc. on July 29, 1999, upon which the bottling agreements between the complainant, Sanjiva Bottling Company were duly assigned to Atlantic Industries and information regarding the same was also given to the complainant. Atlantic Industries thereafter gave notice to the complainant on February 14, 2000 not to renew the bottling agreements which were to expire on February 28, 2001 and the agreements with the complainant came to end on the said date. The learned counsel has further submitted that there is absolutely no allegation in the complaint that the appellants (A-7 to A-11) had at any time made any kind of mis-representation to the complainant or had asked it to do or omit to do anything and as such no offence under Section 420 Indian Penal Code is made out against them. It has thus been urged that the allegations made in the complaint, even if the accepted at their face value, do not disclose commission of any offence by the appellants and, therefore, the proceedings of the complaint case and also the F.I.Rs. lodged against the appellants are liable to be quashed.

9. The learned Advocate General for the State of Madhya Pradesh has submitted that as per the order of the learned Magistrate dated July 27, 2000, the Police had submitted a report that prima facie it was a case of violation of agreement for which the complainant could seek relief from the Civil Court. However, in view of subsequent order passed by the learned Magistrate on November 16, 2000 a case had been registered at the Police Station and the matter was being investigated.

10. Shri Sushil Kumar, learned senior counsel for the complainant has submitted that the allegations made in the complaint disclose commission of an offence under Section 420 Indian Penal Code by the accused persons and a case has been registered at the Police Station and investigation is being carried out. Learned counsel has further submitted that the High Court rightly took the view that the Petitions filed by the appellants for quashing of the proceedings were pre-mature and the said order does not suffer from any error of law.

11. We have given our careful consideration to the submissions made by learned counsel for the parties. It may be stated at the very outset that the main allegation made in the complaint is against M/s. Cadbury Schweppes Beverages India Pvt. Ltd. (A-1). It is stated in para 5 of the complaint that the Technical Directors of A-1 approached the complainant and a Memorandum of Understanding was signed on October 9, 1995 and the complainant was asked to discontinue competing brand ‘Sprint’ within six months of the introduction of ‘Canada Dry’ and it was also asked to carry out certain jobs at its bottling plant. The complainant thereafter modernised its bottling plant as per the requirement and satisfaction of A-1. Thereafter, the bottling agreements were executed between the complainant and A-1 on March 1, 1996. Coca Cola India (A-6) came into picture for the first time when Atlantic Industries (a wholly owned indirect subsidiary of The Coca-Cola Export Corporation, U.S.A.) purchased 3500 trademarks in 155 countries from Cadbury Schweppes plc. on July 29, 1999, upon which the bottling agreements between A-1 and the complainant was assigned to Atlantic Industries. A-1 also informed the complainant in writing on July 29, 1999 that the brands Schweppes, Crush and Canada Dry and associated brands in India will be acquired by a Member of the Coca Cola Group of Companies and the bottling agreements will be assigned to Atlantic Industries. Clause 19 of the Agreement which was executed between the complainant and A-1 on March 1, 1996 reads as under :-

“This Agreement shall come into operation on the Effective Date and subject to the terms herein contained shall continue for a term of 5 (five) years therefrom (the “Initial Term”) and thereafter provided that the Company has complied with the conditions set out below shall continue in force for further successive periods of 5 (five) years unless and until terminated by either party giving to the other not less than twelve calender months notice in writing to terminate the same expiring at the end of the Initial Term or any such subsequent period, the said conditions being :

(i) that the Company has complied with its obligations during (as the case may be) the Initial Term or the relevant subsequent period (including without limitation its obligations pursuant to Sub-clause (7.1), and

(ii) prior agreement of the parties in writing on the Base Plan to come into effect at the start of such subsequent period and as to the levels of Annual Minimum Aggregate Sales which shall apply during such subsequent period.”
12. Thereafter on February 14, 2000 a notice was given jointly by Atlantic Industries, Canada Dry Corporation Limited and Cadbury Schweppes Beverages Ltd. to the complainant, Sanjiva Bottling Company and it reads as under :

“We refer to Agreements (to include any addenda entered into subsequently) entered into between yourselves (“the Company”) in relation to the production, sale and distribution of “Crush”, “Canada Dry”, “Schweppes”, and “Sport Cola” Products with an Effective Date of 01 March, 1996 (“called the Agreement”). All defined terms used in the Agreement shall have the same meaning prescribed in this letter, save as expressly stated otherwise.

Please take this letter as the required 12 months notice, pursuant to Clause 19 of our intention to renew this Agreement on expiry on 28th February, 2001 (“the Expiry Date”). We would, however, require that you continue to fully carry out all obligations under the terms of your Agreement until the Expiry Date.”
13. The agreements executed between the complainant and A-1 on March 1, 1996 were for a period of five years. Though the same could continue for a further successive period of five years, but either party to the agreement had a right to terminate the same expiring at the end of the initial term by giving not less than 12 calender months notice in writing. The initial period of five years would have come to an end on February 28, 2001 but on February 14, 2000, notice was given to the complainant that the said agreements would not be renewed after expiry of the initial period i.e. after February 28, 2001. Even when the agreement were executed in March, 1996, the complainant was fully aware that the same may not be renewed further after expiry of the initial term of five years.

14. According to the allegations made in the complaint, it was the Technical Directors of A-1 who had approached the complainant and a Memorandum of Understanding was signed on October 9, 1995. The modernisation of the bottling plant was done by the complainant as per the requirement and satisfaction of A-1 and thereafter the agreements were executed between them (Complainant and A-1) on March 1, 1996 in pursuance whereof the complainant claims to have spent considerable amount of money in improvement of the bottling plant. In fact there is absolutely no reference to A-6 to A-11 in the complaint except that A-6 is installing its own bottling plants and that A-6 gave notice to the complainant not to renew the agreements after expiry of the initial term. In paras 33 and 34 of the complaint, the entire allegations are made against A-1 and it is said that A-1 was actuated by dishonest intention to cheat the complainant and that A-1 has committed the offence of cheating. In para 47 of the complaint it has been alleged that A-6 is adopting all sorts of unfair trade practices.

15. Section 420 Indian Penal Code says that “Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person………. shall be punished with imprisonment ……….” Cheating has been defined in Section 415 Indian Penal Code and it says that “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”

16. A guilty intention is an essential ingredient of the offence of cheating. In other words ‘mens rea’ on the part of the accused must be established before he can be convicted of an offence of cheating. (See Jeswantrai Manilal Akhaney v. The State of Bombay, AIR 1956 Supreme Court 575). In Mahadeo Prasad v. State of West Bengal, AIR 1954 Supreme Court 724, it was held as follows :

“Where the charge against the accused in under Section 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant or part with the goods then a case of cheating would be established.”
17. In Hari Prasad Chamaria v. Bishun Kumar Surekha & Ors., AIR 1974 Supreme Court 301, it was held that unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money it would not amount to an offence under Section 420 Indian Penal Code and it may only amount to breach of contract. In G.V. Rao v. L.H.V. Prasad & Ors., 2000(2) RCR(Crl.) 290 (SC) : 2000(3) SCC 693, it was reiterated that guilty intention is an essential ingredient of the offence of cheating and, therefore, to secure conviction ‘mens rea’ on the part of the accused must be established. It has been further held that in order to constitute the offence of cheating the intention to deceive should be in existence at the time when the inducement was offered.

18. So far as the present appellants are concerned, they came into picture much later in July 1999, when various trade marks and brands of A-1 were purchased by A-6. The appellants were not at all in picture at the time when the complainant claims to have spent money in improvement of its bottling plant on the basis of the agreement executed with Cadbury Schweppes Beverages India Pvt. Ltd. (A-1). Since the appellants were not in picture at all at the time when the complainant alleges to have spent money in improving the bottling plant, neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No offence of cheating can, therefore, be said to have been committed by the appellants on account of the fact that a notice was given to the complainant that the bottling agreements will not be renewed any further after expiry of the initial term. Thus, even if the allegations made in the complaint are accepted to be absolutely true and correct, the appellants cannot be said to have committed any offence of cheating as provided in section 420 Indian Penal Code.

19. The High Court has held that the Petitions filed by the appellants for quashing the complaint and the F.I.Rs. registered against them are pre-mature. The question which arises is that where the complaint or the F.I.R. does not disclose commission of a cognizable offence, whether the same can be quashed at the initial stage ? This question was examined by this Court in State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., AIR 1982 Supreme Court 949 and it was held that the First Information Report which does not allege or disclose that the essential requirements of the penal provisions are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. It is surely not within the province of the police to investigate into a Report (F.I.R.) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases. It was further held that an investigation can be quashed if no cognizable offence is disclosed by the F.I.R. The same question has been considered in State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., 1991(3) RCR(Crl.) 383 (SC) and after considering all the earlier decisions, the category of cases, in which the Court can exercise its extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 Criminal Procedure Code either to prevent abuse of the process of any Court or to secure the ends of justice, were summarised in para 108 of the Report and sub-paras 1 to 3 thereof are being reproduced hereinbelow :

“1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying in the F.I.R. to do not disclose a cognizable offence, justifying an investigation by police under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.”
20. As mentioned earlier, the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute any offence as against the appellants. Therefore, the complaint filed by the respondent and the F.I.Rs. registered in pursuance thereof are liable to be quashed. Trisuns Chemical Industry v. Rajesh Agarwal & Ors., 1999(4) RCR(Crl.) 223 (SC) : 1999(8) SCC 686 cited by learned counsel for the complainant is clearly distinguishable as in the said case the allegation in the complaint was that the complainant had paid in advance a price higher than the market price for purchasing “toasted soyabean extracts” but the accused sent the commodity which was of most inferior and substandard quality due to which the complainant suffered a loss of Rs. 17 lakhs. In view of the allegation made in the complaint, the matter required investigation and the proceedings could not have been quashed on the ground that the dispute was of a civil nature.

21. In the result, the appeals are allowed. The impugned judgment and order dated January 16, 2002 of the High Court is set aside and the complaint filed by the Respondent No. 2 and the F.I.Rs. registered in pursuance thereof as Case Crime Nos. 5 of 2001, 13 of 2001 and 18 of 2001, as against the appellants, are quashed.

Appeals allowed.

Read more on how to quash order declaring a person Proclaimed Offender (PO).