Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 940

SUPREME COURT OF INDIA
B.V. Nagarathna, Ujjal Bhuyan, JJ.
Yashodhan Singh & Ors. – Appellants
Versus
The State of Uttar Pradesh & Anr. – Respondents
Criminal Appeal No. 2186 of 2023 (@ Special Leave Petition (Crl.) No. 6262 of 2023)
Decided On : 18-07-2023

Advocates Appeared:
Mr. S. Nagamuthu, Sr. Advocate, Mr. Ram Kishor Singh Yadav, Advocate, Mr. Kaushal Yadav, Advocate, Mr. Nandlal Kumar Mishra, Advocate, Dr. Ajay Kumar, Advocate, Dr. Sushil Balwada, Advocate, Mr. Vivekanand Rana, Advocate, Mr. Pramod Kumar, Advocate, Mr. Srilok Nath Rath, Advocate and Ms. Reena Rao, Advocate, for the Appellant; Mr. Ratnakar Dash, Sr. Advocate, Mr. Shashank Shekhar Singh, Advocate, Mr. Yatharth Singh, Advocate and Ms. Amrita Panda, Advocate, for the Respondent.

IMPORTANT POINTS
(1) Summoning of additional accused to face trial – Power exercised under Section 190 of Cr.P.C. is quite distinct from power exercised by Trial Court/Sessions Court under Section 319 of Cr.P.C. – Power under Section 319(1) Cr.P.C. can be exercised at any time after charge-sheet is filed before pronouncement of Judgment, except during stage of Sections 207/208 Cr.P.C., committal, etc.
(2) Principle of natural justice and opportunity of hearing a person summoned under Section 319 Cr.P.C. are not at all contemplated.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 319 – Summoning of additional accused to face trial – Exercise of power under Section 319 Cr.P.C. is not at initial stage where cognizance is taken of offence and summoning order is passed before committal of matter to Sessions Court – Power exercised under Section 190 of Cr.P.C. is quite distinct from power exercised by Trial Court/Sessions Court under Section 319 of Cr.P.C. – Power under Section 319(1) Cr.P.C. can be exercised at any time after charge-sheet is filed before pronouncement of Judgment, except during stage of Sections 207/208 Cr.P.C., committal, etc. – Section 319 Cr.P.C. is an empowering provision particularly where complainant is circumspect in proceeding against several persons, but court is of the opinion that there appears to be some evidence pointing to complicity of some other persons as well – Any material brought before court even prior to trial can be read within meaning of expression “evidence” for the purpose of Section 319 Cr.P.C. (Paras 21 and 22)
(B) Criminal Procedure Code, 1973 – Sections 227 and 319 – Summoning of additional accused to face trial – Test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that evidence, if goes unrebutted, would lead to conviction – Such satisfaction is sine qua non for exercise of power under Section 319 Cr.P.C. – Ultimately, exercise of power is for trial of such persons summoned together with accused already on trial and not for conviction with accused – At that stage, court need not form any definite opinion as to guilt of accused – However, a person who has already been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge-sheeted – Principles of natural justice cannot be applied in strait-jacket formula and they would depend upon facts of each case and object and purpose to be achieved under a provision of law – Principle of natural justice and opportunity of hearing a person summoned under Section 319 Cr.P.C. are not at all contemplated – Such a right of inquiry would accrue only to a person who is already discharged in very same proceeding prior to commencement of trial – There is no finality attached to Section 319 Cr.P.C. – It only indicates commencement of trial qua added accused – A person who is summoned in exercise of power under Section 319 Cr.P.C. cannot hijack trial so to say and deviate from its focus and take it to a tangent in order to bolster his own case in a bid to escape trial – Lateral entry of a person summoned in exercise of power under Section 319 Cr.P.C. is only to face trial along with other accused. (Paras 22, 23, 25, 32, 33 and 34)
Facts of the case:
Complainant-Respondent got registered FIR under Sections 147, 148, 149, 302, 452 307, 504 of Indian Penal Code against the appellants. charge sheet was filed against the accused persons but names of appellants were not mentioned in it. Complainant filed an application before Additional Sessions Judge Court No.1, Hathras in Case Crime No.186 of 2018 under Section 319 Cr.P.C. to summon the appellants herein on the basis of his evidence pursuant to which the Additional Sessions Judge passed an Order dated 23.09.2022 summoning the accused to join the trial.
Findings of Court:
Principle of hearing a person who is summoned cannot be read into Section 319 Cr.P.C. Such a procedure is not at all contemplated therein.
Result : Appeal dismissed.

Judgement Key Points

Certainly. Based on the provided legal document, the key points are as follows:

The exercise of power under Section 190 of Cr.P.C. for summoning additional accused is distinct from the power exercised under Section 319 of Cr.P.C. (!)
The power under Section 319(1) Cr.P.C. can be exercised at any time after the filing of the charge-sheet but before the pronouncement of judgment, excluding stages such as Sections 207/208 Cr.P.C., and during committal proceedings (!)
Principles of natural justice and the opportunity of hearing are not applicable to a person summoned under Section 319 Cr.P.C., unless the person has already been discharged in the same proceeding prior to trial (!) (!) (!) (!) (!) (!) (!) (!)
The primary purpose of Section 319 Cr.P.C. is to proceed with the trial of persons based on evidence that emerges during the course of the trial, not to conduct a mini-trial or a separate inquiry before adding someone as an accused (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The satisfaction required to invoke Section 319(1) Cr.P.C. must be more than a prima facie case but less than the level needed for conviction; it requires stronger evidence than mere probability of involvement (!) (!) (!)
A person not named in the FIR or charge-sheet, or who has been discharged, can only be summoned under Section 319 Cr.P.C. if there is evidence suggesting their involvement in the offence during the course of the trial (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The right to be heard before being added as an accused under Section 319 Cr.P.C. is generally not mandated, as the provision is aimed at proceeding with the trial based on evidence, not conducting a preliminary inquiry or mini-trial (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The procedure for summoning a person under Section 319 is to verify their involvement based on evidence, and the court must assess whether there is sufficient material to proceed, without necessarily providing a prior hearing (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The exercise of power under Section 319 Cr.P.C. is not intended to disrupt the trial process or to allow the summoned person to seek discharge in the same manner as under Section 227 Cr.P.C. (!) (!) (!) (!) (!)
The order for summoning must be based on the evidence available and the satisfaction of the court regarding the involvement of the person, and it must be passed before the conclusion of the trial or the pronouncement of sentence if a conviction exists (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

These points collectively emphasize that the primary function of Section 319 Cr.P.C. is to facilitate the trial of all involved parties based on evidence that indicates their participation, without the necessity of prior hearing or mini-trials, and that the power is to be exercised judiciously based on the strength of evidence, not as a tool to prolong or complicate the trial process.

JUDGMENT

1. Leave granted.

2. This appeal arises out of an Order dated 03.01.2023 passed by the High Court at Allahabad in Criminal Revision No.4235 of 2022.

3. Briefly stated, the facts of the case according to the Complainant-Respondent No.2 herein are that he got registered an FIR bearing No.186/2018 on 09.06.2018 at around 21.45 at P.S. Hathras Junction District Hathras Uttar Pradesh under Sections 147, 148, 149, 302, 452 307, 504 of the Indian Penal Code (for short, "IPC") against the appellants herein alleging that appellant Nos. 1-7 (summoned accused) went to the Complainant-Respondent No.2s house and started hurling abuses and firing, which consequently resulted in the Complainants injuries and the death of his two brothers. A charge sheet was filed against the accused persons but the names of the appellants were not mentioned in it as their role was still under investigation.

4. The Complainant filed an application before the Additional Sessions Judge Court No.1, Hathras in Case Crime No.186 of 2018 under Section 319 Cr.P.C. to summon the appellants herein on the basis of his evidence pursuant to which the Additional Sessions Judge passed an Order dated 23.09.2022 summoning the accused to join the trial.

5. Aggrieved by the said Order of the Additional Sessions Judge Court No.1, Hathras, the appellants approached the High Court of Judicature at Allahabad by way of Criminal Revision No.4235 of 2022. The High Court by way of the impugned Order dated 03.01.2023 dismissed the same and affirmed the Order passed by the Additional Sessions Judge Court No.1, Hathras in Case Crime No.186 of 2018 dated 23.09.2022, to summon the appellants.

6. Hence, this appeal.

7. We have heard Shri S. Nagamuthu, learned senior counsel for the appellants and Dr. Sushil Balwada, learned counsel for appellant Nos. 1, 3 and 4; Shri Ratnakar Dash, learned senior counsel for the State and Shri Yatharth Singh, learned counsel for the complainant, at length.

8. Vide Order dated 08.05.2023, this Court issued notice and the matter was directed to be listed in the second week of July, 2023. For the sake of immediate reference, the said Order is extracted as under -

"We have heard Mr. S. Nagamuthu, learned senior counsel appearing for the petitioners.

Delay condoned.

This is a case where by the impugned order the High Court has dismissed the revision challenging the order passed under Section 319 of the Cr.P.C. summoning the petitioners.

In the course of his submission, Mr. Nagamuthu drew our attention to the judgment of this Court in the case of Jogendra Yadav and Ors. vs. State of Bihar and Anr. , reported in (2015) 9 SCC 244. Therein, he pointed out that this Court has found that since a person who is added under Section 319 Cr.P.C. is necessarily heard before he was so added and often gets a further hearing if he challenges the summoning order he cannot avail the remedy of discharge.

This Court may not have been inclined to interfere with the impugned order but would have been inclined to reserve the remedy of seeking discharge, if so advised at the appropriate stage.

We have the benefit of hearing Mr. Yatharth Singh, learned counsel appearing on behalf of the respondent no.2-complaint on caveat.

We are of the view that this aspect must be gone into if the court is to take a view which is at variance with the view taken in the judgment of Jogendra Yadav and Ors. (supra).

Issue notice.

The petitioners may serve dasti also to the standing counsel for the State of Uttar Pradesh.

List the matter in the second week of July 2023."

On a reading of the same, it is evident that this Court was inclined to issue notice to the respondent(s) having regard to the submission made by Shri S. Nagamuthu, learned senior counsel in the context of the judgment of this Court in the case of Jogendra Yadav and Ors. vs. State of Bihar and Anr., reported in (2015) 9 SCC 244 (Jogendra Yadav).

9. Shri S. Nagamuthu, learned senior counsel, at the outset submitted that paragraph 9 of Jogendra Yadav