2007 Supreme(SC) 1035

2007(5) Supreme 753
Supreme Court of India
(From Allahabad High Court)
G.P. Mathur & P.K. Balasubramanyan, JJ.
Rajendra Singh — Petitioner
versus
State of U.P. & Anr — Respondent
Appeal (Crl.) 1019 of 2007
(Arising out of Special Leave Petition (Crl.) No.3182 of 2006)
Decided on : 06-08-2007

important points
If the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned u/s 319, Cr. P.C. to face trial even though he may not have been charge sheeted by the investigating agency or may have been discharged at an earlier stage.
A statement under Section 161 Cr.P.C. is not a substantive piece of evidence.
Burden of establishing the plea of alibi lies squarely upon the maker of the plea.

Headnote:Code of Criminal Procedure, 1973– Section 319 – If the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge sheeted by the investigating agency or may have been discharged at an earlier stage. (Para 5)

       (1983) 1 SCC 1; (1979) 1 SCC 345; (1993) 2 SCC 16 – Relied upon.

       Code of Criminal Procedure, 1973– Section 161 r/w section 162(1), Proviso – A statement under Section 161 Cr.P.C. is not a substantive piece of evidence – Such statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso – Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence for exercising its discretionary power u/s 482. (Para 6)

       Code of Criminal Procedure, 1973– Section 482 r/w section 103, Evidence Act – Respondent No.2 setting up a plea of alibi in his petition u/s 482, Cr. P.C. – Burden of establishing that plea of alibi lay squarely upon him – This could be done by leading evidence in the trial and not by filing some affidavits – Even what was filed were not affidavits but copies of two or three affidavits given by some persons before the Superintendent of Police, Allahabad – Thus, there being absolutely no legal evidence in support of the plea of alibi of the respondent no.2, High Court manifestly erred in relying on the same and quashing the proceeding s u/s 482, Cr. P.C. (Para 7)

       AIR 1956 SC 460; AIR 1972 SC 109; AIR 1981 SC 1021 – Relied upon.

       Code of Criminal Procedure, 1973 – Section 482 r/w section 161 and section 103, Evidence Act – Statements of witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration – That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. – Also, mere fact that trial of the co-accused has concluded cannot have any nullifying effect on the trial of the respondent – The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. (Para 10)

       (2002) 5 SCC 738 – Relied upon.

       Facts of the case :

       In the morning hours between 6.30 a.m. and 7.00 a.m. on 15.12.1995, three persons, viz., the wife, son and brother-in-law of Nigam Singh were murdered. An FIR of the incident was lodged by Nigam Singh at 8.10 a.m. on 15.12.1995 at P.S. George Town, Allahabad. Four persons, viz., Kapil Dev Singh (respondent No. 2), Suresh Singh, Sukhpal Singh and Kamlesh Singh were put up for trial. The present incident took place on 16.3.2002 when the trial of the aforesaid tripple murder case was going on. According to the case of the prosecution, the accused of the tripple murder case were putting pressure on Nigam Singh not to give evidence in the said case. It is alleged that at about 6.00 p.m. on 16.3.2002, the first informant Rajendra Singh (appellant) and his brother Ajay Singh were returning after getting their field harvested. At that time, Nigam Singh also arrived there on a scooter. The accused in the present case, viz., Kapil Dev Singh (respondent No. 2) and Daya Singh stopped him and asked him not to give evidence in the tripple murder case. Nigam Singh, however, did not agree to their suggestion not to give evidence and tried to move ahead on his scooter. Kapil Dev Singh then instigated his brother Daya Singh, who fired upon Nigam Singh from a country-made pistol. In spite of receiving the gun shot injury, Nigam Singh managed to escape from there and informed about the incident to his family members. Meanwhile, the first informant, Rajendra Singh, and his elder brother Ajay Singh also reached there. However, Nigam Singh succumbed to his injuries shortly thereafter. Thereafter, Rajendra Singh lodged an FIR of the incident at 8.30 p.m. on 16.3.2002 at P.S. Pipri. The police after investigation submitted charge-sheet only against Daya Singh and not against Kapil Dev Singh. In the trial before the learned Sessions Judge, Allahabad, the statement of the first informant, Rajendra Singh was recorded where he specifically stated about the presence of Kapil Dev Singh and the role played by him in the incident. The prosecution then moved an application for summoning Kapil Dev Singh under Section 319 Cr.P.C. The learned Sessions Judge held that Kapil Dev Singh is named in the FIR and the first informant Rajendra Singh in his statement had corroborated the version given in the FIR and had assigned the role of exhortation to him and after taking note of the relevant law on the subject, allowed the application by the order dated 26.5.2005 and directed that Kapil Dev Singh be summoned to face the trial.

       Kapil Dev Singh then filed a petition under Section 482 Cr.P.C. for quashing the aforesaid order before the High Court which was allowed.

       Findings of the Court:

       High Court relied on inadmissible material and passed an unsustainable order.

       Result : Appeal allowed, matter remitted back to High Court.