BRINDABAN DAS AND ORS. v. STATE OF WEST BENGAL

Citation: [2009] 1 S.C.R. 87

Court: Supreme Court of India

Bench: ALTAMAS KABIR, MARKANDEY KATJU

Case summary

BRINDABAN DAS AND ORS. v. STATE OF WEST BENGAL.pdf

Judgment text

[2009] 1 S. C. R. 87 BRINDABAN DAS AND ORS. v. STATE OF WEST BENGAL (Criminal Appeal No. 9 of 2009) JANUARY 7, 2009 8 [ALTAMAS KABIR AND MARKANDEY KATJU, JJ. ] CODE OF CRIMINAL PROCEDURE, 1973: s.

319 - Power of trial court to proceed against other persons appearing to be guilty of offence - Persons not named in FIR, nor mentioned in charge-sheet, nor sent up for trial, but after two years of their discharge from the case, trial court issuing warrants of arrest against them - Held: In order to invoke power uls 319, court is not merely required to take note of the fact that name of a person has surfaced during trial but it has also to consider whether the evidence would be sufficient to convict him - In the instant case, on the evidence adduced as regards the persons summoned uls 319, it cannot be said with any amount of certainty that the same would in all probability secure conviction against them -· Order of trial court issuing warrants of arrest, and of High Court staying execution of warrants and directing the addresees to surrender and then seek bail are set aside. An F. l. R. alleging murder of the father of the complainant was lodged on 29. 11.

2002 on the allegations that besides the assailant several other persons could have been behind the incident. The appellants applied for and were granted bail. The appellants were neither shown in the charge-sheet nor were they sent up for trial, on the other hand, by an order dated 30. 6. 2004, they were ... , discharged from the case, Later, on an application filed uls 319 Cr. P. C by the complainant, the trial court, ·on 22. 6. 2006, issued warrants of arrest against the appellants for their alleged refusal to receive summons which had been issued to them earlier u/s 319 Cr. P. C. The High Court in its revisional jurisdiction stayed execution of the warrants holding that there was no willful defiance of the summons to necessitate issuance of warrants, and directed the appellants to surrender before the court within three weeks and thereafter to apply for bail.

In the instant appeal, it was contended for the appellants that there was no direct evidence against them which could have formed the basis for issuance of summons u/s 319 Cr. P. C. and the entire case was hearsay in nature, that the trial court ought not to have issued summons u/s 319 Cr. P. C. without recording satisfaction as to the sufficiency of evidence on record for securing conviction against the appellants. Allowing the appeal, the Court HELD: 1. 1. In matters relating to invocation of powers u/s 319 Cr. P. C. , the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the F. l. R. has surfaced during the trial, but it has also to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons u/s 319 Cr. P. C.

entails a denovo trial and a large number of witnesses may have to be 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. [Para 18) [96-F-H; 97-A] 1. 2. The power u/s 319 Cr. P. C. is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice. The fulcrum on which the Invocation of Section 319 Cr. P. C. rests is whether the summoning of persons other than the named accused would make such a BENGAL difference to the prosecution as would enable it not only to prove its case but also to secure conviction of the persons summoned. [Paras 18 and 19] [97-B-C] · Municipal Corporation of Delhi vs. Ram Kishan Rastogi, 1983 (1) SCC 1; Michael Machado vs. CBI, 2000 (3) SCC 262; Krishnappa vs. State of Kamataka, 2004 (7) SCC 792 and Kuvuluri Vivekananda Reddy vs. State of A. P. 2005 (12) .

_ sec 432, relied on. Rajender Singh vs. State of U. P. 2007 (7) SCC 378 and Bholu Ram vs. State of Punjab 2008 (9) SCC 140, referred to. 1. 3. In the instant case, on the quality of the evidence adduced by the prosecution as far as the appellants are concerned, it is difficult to hold with any amount of certainty that the same would in all probability secure a conviction against the appellants. The evidence which seeks to connect the appellants with the commission of the offence are hearsay in nature. Except for a statement in the F. l. R. that the complainant strongly believed that the murder of her father was pre-planned and there were many conspirators involved, there is no direct evidence of complicity of the appellants in the incident and, therefore, it would not be proper to subject them to trial by invoking the provisions of s. 319 Cr. P. C. The order passed by the trial court issuing summons to the appellants u/s 319 Cr. P. C.

and the order of the High Court directing them to surrender before the trial court and to apply for bail are set aside. [Para 20 and 22] [97-H; 98-A-C] Case Law Reference: 2000 (3) sec 262 relied on Para 9 2004 (7) sec 192 relied on Para 10 2005 (12) sec 432 relied on Para 11 1983 (1) sec 1 relied on Para 12 -+ 2001 (7) sec 378 referred to Para 14 2008 (9) sec 140 referred to Para 16 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 9 of 2009. From the Judgment and Order dated 22. 11. 2006 of the High Court of Calcutta at Calcutta in C. R. R. No. 2058 of 2006. Pradip Ghosh, P. S. Narasima, Pijush K. Roy, Amit De and G. Ramakrishna Prasad for the Appellants. Avijit Bhattacharjee, Saumya Kundu, H. K. Puri. V. M. Chauhan, S. K. Puri and Priya Puri for the Respondents. The Judgment of the Court was delivered by AlTAMAS KABIR, J. 1. Leave granted. 2.

On an application filed by the defacto complainant under Section 319 of the Code of Criminal Procedure, the Additional District and Sessions Judge, Fast Track Court, Jhargram, by his order dated 14. 6. 2006 directed the appellants to appear before the Court on 22. 6. 2006 in connection with S. T. Case No. XXIX/February, 2006 under Section 302 of the Indian Penal Code (G. R. case No. 450 of2002). 3. The complainant, Ashok Kumar Pattanayak, lodged the First Information Report at Gopiballabhpur PS on 29. 11. 2002 at about 8. 25 a. m. alleging that on the same date at about 7. 30/ 8. 00 a. m. while his father, Ramesh Chandra Pattanayak, was supervising the work in his brick field known as Hena Brick, he was assaulted on the head from behind with a spade (kodal), as a result whereof he died instantly. The driver of the truck to whom the deceased was speaking at the time of assault and the khalasi of the truck, as well as other labourers, raised a alarm.

The police also arrived at the spot and apprehended the " ~ assailant, Laxman Murmu. In the FIR it was alleged that .... besides Laxman Murmu, several other persons could also have been behind the incident. The said FIR was written by Ila Pattanayak, the sister of the de-facto complainant, and on the basis of the said complaint, Gopiballabhpur PS Case No. 48 of 2002 dated 29. 11. 2002, was started against the said Laxman Murmu under Section 302 IPC. .. 4. During the investigation of the above case, the appellants herein filed an application under Section 438 of the Code of Criminal Procedure before the Sessions Judge and such prayer for anticipatory bail was allowed on 14. 8. 2003. The appellants were directed to appear before the Sub-Judicial Divisional Magistrate, Jhargram, and on their appearance before the learned Magistrate on 16. 8. 2003, the appellants . , were released on temporary bail with a direction to them to •, bring appropriate orders from the higher Court.

Subsequently, on an application under Section 439 Cr. P. C. the Sessions Judge, Paschim Midnapur, granted bail to the appellants on 23. 9. 2003. The de-facto complainant thereupon filed an application under Section 439(2) Cr. P. C. before the Sessions Judge praying for cancellation of the bail granted to the appellants but the same was rejected on 16. 12. 2003. After completion of investigation the police submitted charge-sheet against the accused Laxman Murmu. As there was no material • against the appellant~ herein they were neither shown in the charge-sheet nor were they sent up for trial and on the prayer made by the Investigating Officer the appellants were discharged from the case by order dated 30. 6. 2004. ·5. Two years later on 22. 6.. 2006 the trial Court issued warrants of arrest against the appellants for their alleged refusal -~ to receive summons which had been issued to them earlier ·~ under Section 3. 19 Cr. P. C.

The said order was challenged in the High Court in its revisional jurisdiction and it was submitted that once the appellants had been discharged on the prayer made on behalf of the Investigating Officer, the trial Court erred in issuing the summons under Section 319 of the Code on the same materials. 6. The High Court came to the conclusion that there had not been any wilful defiance of the summons which necessitated the issuance of warrant of arrest and disposed of the revision 8 application with a direction to the appellants herein to surrender before the Court within 3 weeks from the date of the order and ... thereafter to apply for bail. The execution of the warrant of arrest was stayed for a period of four weeks for the said purpose. 7. It is against the said order of the High Court that the present appeal has been filed. 8. Mr.

Pradip Ghosh, learned senior advocate, appearing for the appellants, submitted that in the instant case there was no direct evidence against the appellants which could have 0 formed the basis for issuance of summons under Section 319 Cr. P. C. Not a single eye-witness had been cited in the instant case and the entire evidence was hear-say in nature. Mr. Ghosh submitted that even the complaint had been lodged by the daughter of the deceased who had not seen the incident and had come to the place of occurrence after the offence had been committed on being informed of the same. Mr. Ghosh submitted that as provided in Section 60 of the Indian Evidence Act, 1872, oral evidence must in all cases, be direct and when an accused is discharged under Section 245 Cr. P. C. , in the absence of any fresh material, summons under Section 319 of the Code could not be issued on the same evidence.

It was submitted that in the instant case, nothing new had surfaced during the trial and the evidence that was available before the Court at the stage of Sections 244 and 245 of the Code continued to be the only evidence available when the application under Section 319 had been made. Mr. Ghosh submitted that the trial Court had committed an error in allowing the application of the de-facto complaintant under Section 319 and summoning the appellants in the absence of any evidence against them within the meaning of Section 60 of the Evidence Act. 9. In this regard, Mr. Ghosh firstly referred to the oftrepeated decision of this Court in the case of Mic/1ae/ Machado vs. CBI, [2000 (3) SCC 262] where the essential conditions for the exercise of power under Section 319 of Cr. P. C.

had been considered and it was held that the power under Section 319 vested in the Court should be used sparingly and the evidence on which the same was to be invoked should indicate a reasonable prospect of conviction of ~ the persons to be summoned. This Court went on to hold that mere suspicion of the involvement of the person concerned in the offence was not enough, particularly when a large number of witnesses had been examined and no evidence on which conviction could be secured had been adduced on behalf of the prosecution. It was ultimately observed that in such a case there could be no justification for proceeding against the persons summoned under Section 319 which would entail • recommencing the whole proceedings against the newly-added persons and re-examining the witnesses already examined. 10. Mr. Ghosh also referred to the decision of this Court in Krishnappa vs.

State of Kamataka, [2004 (7) SCC 792] wherein a similar question fell for consideration and again note of caution was sounded with regard to invocation of the extraordinary and discretionary powers under Section 319 of the Code. Their Lordships, while observing that a person can be summoned even though proceedings had earlier been quashed as far as he was concerned, held that the invocation of the power under Section 319 should not have been resorted to, since the chances of conviction on the basis of the evidence on record was remote. Holding that the Trial Court was right in rejecting such prayer, since the case against the appellant had been quashed nine years prior to issuance of summons under Section 319 Cr. P. C. , this Court held that the High Court had erroneously reversed the order of the Trial Court even though the chances of conviction on the basis of the evidence adduced was very remote. 11.

The same view was reiterated in the case of Kuvuluri Vive) upra) and as pointed out by Mr. Ghosh, consistently followed thereafter, except for the note of discord struck in Rajender Singh's case (supra). It is only logical that there must be substantive evidence against a person in order to summon him for trial, although, he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction. 21. Since in the present case, except for a statement in the F. l. R. that the complainant strongly believed that the murder of her father was pre-planned and there were many conspirators involved, there is no direct evidence of the complicity of the appellants in the incident, it would not be proper to subject the appellants to trial by invoking the provisions of Section 319 Cr. P. C. 22. We, therefore, allow the appeal and set aside the order dated 14. 6.

2006 passed by the Additional District and Sessions Judge, F. T. C. , Jhargram, issuing summons to the appellants under Section 319 Cr. P. C. and the impugned order of the High Court dated 22. 11. 2006 directing the appellants to surrender before the Trial Court and to apply for bail. 23. The appeal is accordingly allowed. R. P. Appeal allowed.