MOHD. SHAFI versus MOHD. RAFIQ & ANR.

Citation: [2007] 4 S.C.R. 1023 · Decided: 09-04-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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MOHD.SHAFI 
A 
v. 
MOHD. RAFIQ & ANR. 
APRIL 9, 2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Code of Criminal Procedure, 1973: 
s.319-Person not arrayed as accused-Power to summon-Duty of 
Court-Held: ls to arrive at satisfaction that there exists a possibility that C 
the accused so summoned is in all likelihood would be convicted-Such 
satisfaction cafl be arrived at upon completion of cross-examination of 
witnesses. 
An FIR was lodged against the appellant alleging the commission of D 
offence u/ss. 307/324 IPC. The injured died and the case was converted to 
one u/s. 302 IPC. The police submitted charge sheet against one 'K' and not 
against appellant. Before the trial judge, respondent No. 1 was examined as 
PW-1. In his examination-in-Chief, he alleged that the incident had taken place 
in his presence and the appellant had taken part in the incident. An application 
was filed for summoning the appellant under :;.319 Cr.P.C. Sessions Judge E 
dismissed the application. Respondent No.l filed an application under s.482 
Cr.P.C., against the said order which was allowed. 
In appeal to this Court, appellant contended that keeping in view the 
fact that the Sessions Judge had refused to exercise his discretionary 
jurisdiction at that stage of the trial, the impugned judgment cannot be F 
sustained. 
Respondent contended that in view of the fact that the appellant was 
named in the FIR and the witnesses in their examination before the police 
under s.161 Cr.P.C. alleged some overt act against him, the impugned G 
judgment should not be interfered with. 
• 
Allowing the appeal, the Court 
HELD: 1. Before the trial Court seeks to take recourse to s.319 Cr.P.C., 
1023 
H 
1024 
SUPREME COURT REPORTS 
(2007] 4 S.C.R. 
A the requisite ingredients must be fulfilled. Commission of an offence by a 
person not facing trial, must, appear to the court concerned. It cannot be ipse 
dixit on the part of the court. Discretion in this behalf must be judicially 
exercised. It is incumbent that the Court must arrive at its satisfaction in 
this behalf. [Para 7) (1026-F] 
B 
2. Respondent No. 1 states that he was merely a witness. He had/no say 
in the matter. Therefore, it is not understandable as to how, at his instance, 
and, that too, at that stage, the High Court could entertain an application under 
s.482 Cr.P.C. The judgment passed by the Sessfons Judge was not even an 
interim order affecting the rights of the parties. Even revision application 
C thereagainst was not maintainable at that stage. [Para 11) [1027-E] 
Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., (1983] 
1SCC1 and Yuvrag Ambar Mohite v. State of Maharashtra, (2006) 10 Scale 
369, referred to. 
D 
3. The trial Judge, in terms of s.319 was required to arrive at this 
·satisfaction. If he thought that the matter should receive his due consideration 
only after cross-examination of the witnesses is over, no exception thereto 
could be taken far less at the instance of witness and when the State was not 
aggrieved by the same. [Para 12] (1027-F) 
E 
4. Before a court exercises its discretionary jurisdiction in terms of 
F 
Code of Criminal Procedure, it must arrive at the satisfaction that there exists 
a possibility that the accused so summoned is in all likelihood would be 
convicted. Such satisfaction can be arrived at upon completion of the cross-
examination of the said witness. For the said purpose, the Court concerned 
may also like to consider other evidence. Therefore, the High Court has 
committed an error in passing the impugned judgment. 
[Para 13) (1027-H; 1028-A) 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 530 of 
2007 
G 
From the Judgment and Order dated 25.09.2006 of the High Court of 
Judicature at Allahabad in Criminal Misc. Petition No. l l 468 of 2006. 
H 
Kunwar C.M. Khan and Aftab Ali Khan, for the Appellant. 
Ashok Kumar Singh and Sanjay Misra, for the Respondents. 
The Judgment of the Court was delivered by 
f ,... 
MOHD. SHAFI v. MOHD. RAFIQ [S.S. SINHA, J.] 
1025 
S.B. SINHA, J. 1. Leave granted. 
A 
2. A First Infonnation Report was lodged against the appellant herein 
by one Rafiq on 10.11.2005 alleging commission of an offence under Section 
307 /324 IPC. In view of the death of the injured, the case was converted to 
one under Section 302 IPC. The police submitted a chargesheet only against 
one Karimullah @ Aarif. No chargesheet was submitted as against the B 
appellant herein. After the matter was t

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