RAJESH & Ors. v. STATE OF HARYANA

HELD: 1. During the trial, the depositions of P.W.1 and P.W.2 were recorded. In the deposition, they specifically stated the overacts by the appellants and the role played by them and categorically stated that at the time of the incident/commission of the offence, the appellants were also present and they participated in the commission of the offence. That, thereafter, on the application submitted by the original complainant submitted under Section 319 of the CrPC, the Magistrate found a prima facie case against the appellants and summoned the appellants to face the trial along with other co-accused. The said order was confirmed by the High Court. [Para 6.1] [197-D-F]

#2. Before accepting the closure report, the Magistrate is bound to issue notice to the complainant and give an opportunity to submit the protest application. Even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial Court to summon other persons as well who were named in the FIR but not implicated in the charge- sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 of the CrPC and even those persons named in the FIR but not implicated in the charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused. Nothing is on record whether at any point of time the complainant 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 is attributed to the accused- appellants. Thus, the statement of P.W.1 and P.W.2 before the Court can be said to be “evidence” during the trial and, therefore, on the basis of the same the persons against whom no charge- A B C D E F G H 190 SUPREME COURT REPORTS [2019] 8 S.C.R. sheet is filed can 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 Section 319 of the CrPC. The 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. [Paras 6.1, 7.10, 8, 9] [197-B; 209-E-F; 210-A-C, E-F] Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2 SCR 1 – followed.