Appeal against dismissal of Hon’ble high Court order
2. The present appeal, preferred by the complainant-father (“the appellant”) of the deceased Dharminder Singh, assails the judgment dated 21 November 2023 of the High Court of Punjab and Haryana at Chandigarh (“the High Court”) allowing Criminal Miscellaneous Petition No. 31120 of 2022 under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”). By the impugned judgment the High Court set aside an order dated 04 July 2022 passed by the Additional Sessions Judge, Sangrur (“the Trial Court”) summoning Varinder Singh (hereinafter “respondent no. 2”) to face trial under Section 306 read with Section 34 of the Indian Penal Code, 1860 (“IPC”) in First Information Report No. 51 of 2016 registered at Police Station Amargarh, District Sangrur, Punjab.
Facts
3. The facts giving rise to the present appeal are as follows:
3.1 On 13 March 2016 an acid attack was allegedly committed upon Dharminder Singh by ten persons. That occurrence was recorded as FIR No. 30 of 2016 under Sections 323, 324, 341, 506, 148, 149 and 326-A IPC; respondent no.2 was not named therein.
3.2 On 10 May 2016 at around 8.30 am in the morning, Dharminder Singh and his paternal uncle Jagdev Singh were standing near their abadi land on Jagowal Road when Gurmail Singh, respondent no. 2, Santokh Singh and Iqbal Singh, accompanied by an unidentified person, allegedly stopped their white car and taunted the deceased, stating that he and his family “should die of shame” for not having taken action against the acid-attack assailants.
3.3 The deceased returned home in distress, locked himself in a room, and left the house alone at about 04:00 p.m. When he did not return by evening, a search party found his bicycle, clothing and footwear near the Hussainpur canal. On 13 May 2016 his body was recovered from the canal head at village Salar. The appellant lodged a complaint the same day; FIR No. 51 of 2016 (“the FIR in question”) was registered under Sections 306/34 IPC, naming, inter alia, respondent no. 2.
3.4 During investigation the police accepted the plea of alibi advanced by respondent no. 2, who produced, among other things, a parking-lot slip, outpatient records, a medicine bill and CCTV footage from PGI Chandigarh timed 06:30 a.m. onward on 10 May 2016. Endorsing these materials, the investigating officer filed a report under Section 173 (2) CrPC on 02 August 2016 classifying respondent no. 2 as “innocent”. Consequently, only the remaining accused were committed to the Court of Session.
3.5 On an application by the Public Prosecutor the Trial Court, by order dated 20 January 2017, summoned respondent no. 2 under Section 193 of CrPC. Therefore, Respondent no. 2 successfully challenged that order before the High Court. By the impugned order dated 24 November 2021 the High Court quashed the summoning on the ground that there had been no committal order qua respondent no. 2, while granting liberty to invoke Section 319 CrPC if credible evidence emerged during trial.
3.6 During the trial, on 08 March 2022 the appellant testified as PW-1, narrating the confrontation of 10th May 2016 and hence attributing direct participation to respondent no. 2. The Public Prosecutor relying on the statement of PW-1 as well as on the statement of Jagdev Singh recorded under Section 161 CrPC moved an application under Section 319 CrPC to summon respondent no. 2.
3.7 By order dated 04 July 2022 the Trial Court allowed the application, observing that PW-1’s sworn testimony, corroborated by Jagdev Singh’s statement, disclosed a prima-facie case and that the plea of alibi was a matter for trial. Respondent no. 2 was directed to appear on 02 August 2022 to stand trial alongside the existing accused for the offence under Section 306 IPC.
3.8 Respondent no. 2 approached the High Court under Section 482 CrPC, asserting that the Trial Court had disregarded what he described as “scientific and documentary proof” of his whereabouts in Chandigarh at the relevant time and insisting that only substantially stronger evidence could justify his addition to the array of accused. The High Court, persuaded with the submission, was of the view that the Trial Court ought to have weighed the investigation record, including the parking slip, CCTV footage and associated inquiries, set aside the summoning order on 21 November 2023, concluding that the material adduced fell short of the rigor demanded for invoking Section 319 CrPC.
4. The appellant has approached this Court contending, inter alia, that the High Court misapplied the threshold for exercise of power under Section 319 CrPC, prematurely evaluated an untested alibi and disregarded direct eyewitness evidence. It is in these circumstances that the matter now engages our consideration.
Analysis
7. Having considered the arguments and submissions of the parties and having examined the material on record, the issue that falls for consideration before us is whether the evidence led justified the Trial Court’s exercise of power under Section 319 CrPC to summon respondent no. 2, and whether the High Court was right in setting that order aside at the threshold.
Section 319 Cr.P.C is an exception to the general rule that the accused shall face trial only through final report
8. We shall first examine the scope of Section 319 (1) of the CrPC which has been reproduced hereunder:
“319. 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.”
The provision enables a criminal Court, once seized of the matter, to bring before it any individual whose complicity becomes apparent from the evidence that emerges in Court. It is an exception to the general rule that an accused stands trial only upon charge-sheet and committal; its object is to ensure that the trial does not proceed without a participant who, on the material now available, appears to share criminal liability. The power is extraordinary and therefore to be exercised with circumspection, yet it is neither illusory nor deferential to investigative conclusions: once live evidence evinces a prima-facie case stronger than mere suspicion, the Court must act.
9. The Constitution Bench of this Court in Hardeep Singh v. State of Punjab – (2014) 3 SCC 92, observed that Section 319 CrPC is designed to ensure that every participant in a crime is brought before the Court and its provisions are therefore to be interpreted constructively and purposively, so that the true offender does not slip through procedural gaps. The relevant paras of the judgement are hereunder:
“8 & 9“
10. Hence, in our considered opinion, the power under Section 319 CrPC is triggered not by conjecture but by “evidence” that surfaces in Court. In the present case, narrated in detail how, on the morning of 10 May 2016, respondent no. 2, together with others, stopped a car, confronted the deceased and, in the Punjabi vernacular, told him that he and his family ought to drown themselves for failing to retaliate. PW-1 further described the immediate impact of those words: the deceased broke down, secluded himself, and a few hours later left home never to return alive.
11. The primary argument of Respondent no. 2 rests on his alibi. An alibi, however, is a plea in the nature of a defence; the burden to establish it rests squarely on the accused. Here, the documents relied upon, parking chit, chemist’s receipt, OPD card, CCTV clip, have yet to be formally proved. Until that exercise is undertaken, they remain untested pieces of paper. To treat them as conclusive at the threshold would invert the established order of criminal proceedings, requiring the Court to pronounce upon a defence before the prosecution is allowed to lead its full evidence. Even assuming the documents will eventually be proved, their face value does not eclipse the prosecution version. The parking slip is timed at 06:30 a.m.; the chemist’s bill and CCTV images are from 12:09 p.m. The confrontation is alleged at 08:30 a.m. A road journey from Jagowal to Chandigarh of roughly ninety kilometres in a private vehicle can comfortably be accomplished within the intervening window. More importantly, abetment to suicide is not an offence committed at a single moment. It may consist of a build-up of psychological pressure culminating in self-destruction, and the law punishes that build-up wherever and whenever it occurs.
12. Learned counsel for the respondents urged that the police, having once accepted the alibi, were the best judges of its authenticity and that their conclusion should not be lightly brushed aside. The submission overlooks the scheme of the CrPC. Once cognizance is taken and trial commences, the investigating agency’s view yields to the Court’s independent assessment. If, in the midst of that trial, evidence implicating a new participant surfaces, the Court is duty-bound to act on it. Section 319 CrPC would be rendered otiose if an Investigating Officer’s earlier opinion could freeze the array of accused for all time.
FIR is threshold of a case and it is the appearance of involvement
13. It was next argued that PW-1’s deposition merely reproduces the FIR. We are unable to agree. A first information report is only an initial version; a statement under oath, recorded in Court, is substantive evidence. Indeed, it is difficult to conceive of what stronger material could be demanded at the summoning stage short of a confession. The threshold is not proof beyond reasonable doubt; it is the appearance of involvement which is apparent from evidence adduced in the proceeding. That threshold was satisfied here.
Trial court should decide the facts of offence under section 306 IPC based on Mahendra Awase vs. State of Madhya Pradesh [2025 SCC OnLine SC 107]
14. We believe that the High Court, in interfering under Section 482 CrPC, placed decisive reliance on the investigation dossier and characterised the 10 May 2016 episode as mere “teasing”. Such a description underplays both the content and the effect of the words spoken. If the allegations is true, telling a physically challenged man that he and his family should die, and doing so in the immediate aftermath of a grievous acid attack, is not banter. Sensitivity to the social context, where honour and shame weigh heavily, was called for. The offence, no doubt, will have to be established at the trial. The Trial Court will also decide whether on facts the offence is established, keeping in view the law laid down by this Court in Mahendra Awase vs. State of Madhya Pradesh [2025 SCC OnLine SC 107] and other judgments interpreting Section 306 IPC.
15. Having regard to the purpose of Section 319 CrPC, we see no infirmity in the order of the Trial Court. On the contrary, non-summoning of respondent no. 2 would have risked a truncated trial and a possible failure of justice. The High Court, by elevating unproved defence documents above sworn testimony, adopted an approach that was neither consistent with the text of Section 319 CrPC nor consonant with the realities of a case involving a vulnerable victim. The Court’s intervention, in effect, foreclosed the prosecution from testing the alibi and deprived the Trial Court of jurisdiction expressly conferred upon it.
Party
Harjinder Singh versus The State of Punjab & Anr – Criminal Appeal No. of 2025 SLP (crl) no. 1891 of 2024 – 2025 INSC 634 – May 06, 2025 Hon’ble Mr. Justice Vikram Nath and Hon’ble Mr. Justice K.V. Viswanathan.
