ANIL SINGH AND ANR. versus STATE OF BIHAR AND ORS.

Citation: [2006] SUPP. 7 S.C.R. 504 · Decided: 19-10-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed

Judgment (excerpt)

A 
B 
ANIL SINGH AND ANR. 
v. 
STATE OF BIHAR AND ORS. 
OCTOBER 19, 2006 
(S.B. SINHA AND DAL VEER BHANDARI, JJ.] 
Code of Criminal Procedure, 1973--Section 319-Power to summon 
person as accused, against whom action not taken earlier-Nature and 
C scope of-Rejection of application for issuance of summons against persons 
named in FIR but not sent up for trial upon investigation-Order quashed 
by High Court directing trial court to proceed in the matter-Trial court 
proceeding on the basis that direction was to issue process-On appeal held: 
Courts have power to summon such persons-Being an extra-ordinary power, 
it is to be done cautiously-Courts should arrive at a reasonable satisfaction 
D that the prosecution would be able to prove charges against whom the 
processes are to be issued-Some evidence brought on record cannot be a 
ground to issue processes-Direction to the trial court was merely to proceed 
in the matter and not that processes be issued-Thus, matter remitted back 
to the trial judge to consider afresh. 
E 
Appellants were named in the first information report. However, upon 
investigation, Investigating Officer submitted a final form and the Magistrate 
accepted the same. During trial some evidence came against the appellant. 
Prosecution filed an application under section 319 Cr.P.C. Sessions Judge 
dismissed the application since there was doubt regarding the identity of the 
F appellants. Informant filed application under section 482 Cr.P.C. High Court 
quashed the order and directed the trial court to proceed with the matter. In 
pursuance thereof, Sessions Judge proceeded on the basis that the High Court 
had issued direction upon it to issue processes. Hence the present appeals. 
G 
H 
Partly allowing the appeal, the Court 
HELD: I.I. The jurisdiction of the court to issue processes against a 
person who has not been sent up for trial is not disputed. Processes can also 
be issued against such persons who although were named in the first 
information report, but were not sent up for trial upon investigation. The 
504 
ANIL SINGH v. STATE OF BIHAR 
505 
jurisdiction of the court is limited. While it can exercise an extraordinary A 
power, it is required to be done cautiously. The court while issuing the 
processes should arrive at a reasonable satisfaction that the prosecution would 
be able to prove the charges against whom the processes are sought to be 
issued. If the court comes to the conclusion having regard to the materials 
on record, that the prosecution ultimately may not be able to bring home the B 
charge as against the persons against whom processes were to be issued, it 
would decline to do so. 1510-B-D; 512-D-EI 
1.2. It may be true that the court at that stage may not enter into the 
merit of the matter. Its opinion in the nature of things would be a prima facie 
one. But, the court must also consider that innocent persons may not be C 
prosecuted. The court is not bound by the opinion of the investigating officer. 
It is required to apply the tests on the touchstone of the materials brought on 
record. A balance is required to be maintained. The court must pose unto 
itself a right question. It is required to scrutinize the materials more closely. 
A power under Section 319 Cr.P.C. is not to be exercised in a mechanical 
manner. Only because some evidence has been brought on record, the same D 
by itself may not be a ground to issue processes. (512-E-G I 
1.3. Sessions Judge, as observed by the High Court, proceeded on a 
wrong premise in holding that as no chargesheet was filed as against 
appellants by the police the same was not sufficient to refuse to issue summons. 
The question which was necessary to be posed was as to whether any case E 
has been made out for exercise of extraordinary jurisdiction by the court 
keeping in view the fact as to whether the prosecution would be able to bring 
home the charge. (512-C-D) 
1.4. High Court did not direct that the processes be issued. It merely F 
directed the trial judge to proceed in the matter in accordance with law. The 
same evidently did not mean that High Court has already arrived at a 
conclusion that the processes must be issued. High Court merely laid down 
a law as the trial judge went wrong in formulating the correct question of 
law. High Court did not have any occasion to consider the merit of the matter. 
Thus, the matter is remitted back to the trial judge to consider the question G 
afresh. [512-H; 513-A-Cf 
Muni

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