RAJESH & ORS. versus STATE OF HARYANA

Citation: [2019] 8 S.C.R. 187 · Decided: 01-05-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed

Cited by 4 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
187
    RAJESH & ORS.
v.
 STATE OF HARYANA
(Criminal Appeal No. 813 of 2019)
MAY 01, 2019
  [L. NAGESWARA RAO AND M.R. SHAH, JJ.]
Code of Criminal Procedure, 1973: s.319 – Scope and ambit
of power of Magistrate under s.319 – Prosecution case was that on
the fateful day, the accused persons, ten in number, arrived at the
place where the complainant (PW-1), his son (PW-2) and victim-
deceased were present – Accused persons were armed with swords,
pistols, hockeys, iron bars and gandasi etc. and they attacked PW-
2 and the victim-deceased and inflicted injuries with their respective
weapons – When PW-1 raised alarm, accused persons fled away
from place of occurrence  – The injured were rushed to hospital
where the deceased succumbed to injuries – Investigating officer
submitted report against four accused only – According to him, the
appellants were not present at the place of occurrence – Thereafter
Investigating Agency conducted further investigation wherein also
it found that the appellants were not present at the place of
occurrence rather they were found on different places – Magistrate
directed release of the appellants – Trial proceeded against other
accused – Application filed by PW-1 under s.319 to summon the
appellants categorically stating that the appellants were present at
the time of the incident – Trial court summoned the appellant to
face trial for the offences under ss.148, 149, 323, 325, 302, 307
and 506 of IPC – Revision petition challenging the order of trial
court dismissed by High Court – On appeal, held: PW-1-first
informant had specifically named ten persons as accused, including
the appellants in the FIR – However, they were not shown as accused
in the challan/charge-sheet – There was nothing on record to show
that PW-1 was given an opportunity to submit the protest application
against non-filing of the charge-sheet against the appellants – In
the deposition before the Court, P.W.1 and P.W.2 specifically stated
against the appellants and the specific role was attributed to them –
Thus, the statements of P.W.1 and P.W.2 before the Court could be
[2019]  8 S.C.R. 187
   187
A
B
C
D
E
F
G
H
188
SUPREME COURT REPORTS
[2019] 8 S.C.R.
said to be “evidence” during the trial and, therefore, on the basis
of the same the persons against whom no charge-sheet was filed
could be summoned to face the trial – Therefore, no error was
committed by the Courts below to summon the appellants to face the
trial in exercise of power under s.319.
Code of Criminal Procedure, 1973: s.319 – Investigating
Agency conducted investigation wherein it found that the appellants
were not present at the place of occurrence – As the appellants
were in custody, SHO filed applications before the Magistrate on
1.9.2016 and 28.10.2016 submitting that after investigation since
no evidence was found against the appellants, therefore, they may
be discharged/released – Magistrate directed release of the
appellants – Application filed by complainant under s.319 to
summon the appellants categorically stating that the appellants were
present at the time of the incident – Trial court summoned the
appellants to face trial – Submission that once the appellants were
discharged by the Magistrate on an application submitted by the
Investigating Officer/SHO, therefore, thereafter it was not open to
the Magistrate to summon the accused to face the trial in exercise
of power under s.319 – Held: The submission is not tenable – Orders
dated 01.09.2016 and 28.10.2016 cannot be said to be the orders
discharging the accused – If the applications submitted by the
Investigating Officer/SHO and the orders passed thereon are
considered, those were the applications to discharge/release the
appellants from custody as at that stage the appellants were in
judicial custody – Therefore, as such, those orders cannot be said
to be the orders of discharge in stricto sensu – Those were the orders
discharging the appellants from custody – Under the circumstances,
the submission on behalf of the accused that as they were discharged
by the Magistrate and therefore it was not open to the Magistrate to
exercise the power under s.319 of the CrPC and to summon the
appellants to face the trial, cannot be accepted.
Code of Criminal Procedure, 1973: Closure report –
Procedure to be followed before accepting closure report – Held:
Before accepting the closure report, the Magistrate is bound to issue
notice to the complainant/original informant and the complainant/

Excerpt shown. Read the full judgment & AI analysis in Lexace.