Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 407

SUPREME COURT OF INDIA
Pamidighantam Sri Narasimha, Aravind Kumar, JJ.
Shankar – Appellant
Versus
The State Of Uttar Pradesh & Ors. – Respondents
Criminal Appeal No. 2367 OF 2024 (@ S.L.P. (CRL.) NO. 5530 OF 2023)
Vishal Singh - Appellant
Versus
The State Of Uttar Pradesh & Ors. –Respondents
Criminal Appeal No. 2368 of 2024(@ S.L.P. (CRL.) No. 6321 OF 2024) (Diary No. 29192 of 2023)
Decided On : 02-05-2024

Advocates appeared:
For the Petitioner(s): Ms. Preetika Dwivedi, AOR Mr. Abhisek Mohanty, Adv.
For the Respondent(s): Mr. Yasharth Kant, AOR Mr. Jitendra Kumar Tripathi, Adv. Mr. Ankit Goel, AOR Mr. Dhawal Uniyal, Adv. Mr. Nikhil Sharma, Adv.

IMPORTANT POINT
Summoning of additional accused to face trial – Degree of satisfaction that is required to exercise power under Section 319 Cr.P.C. is much stricter, considering that it is a discretionary and an extra-ordinary power.

Headnote:
Criminal Procedure Code, 1973 – Section 319 – Summoning of additional accused to face trial – Trial for offence under Section 302 IPC – Evidence before trial court should be such that if it goes unrebutted, then it should result in conviction of person who is sought to be summoned – Degree of satisfaction that is required to exercise power under Section 319 Cr.P.C. is much stricter, considering that it is a discretionary and an extra-ordinary power – Only when evidence is strong and reliable, can the power be exercised – It requires much stronger evidence than mere probability of his complicity – In present case, mother of deceased, is the only witness who has named appellants – In FIR, she has taken name of appellants as having played a role in commission of crime owing to past enmity between two families – However, in her Section 161, Cr.P.C. statement, she has stated that appellants were not involved and that she named them without collecting full information – Two other witness, in their Section 161, Cr.P.C. statements have also stated that appellants had no role whatsoever in commission of crime – Even in charge-sheet, which was filed after investigation, name of appellants has not been mentioned as accused – There are no other witnesses who have deposed against appellants – There is no documentary evidence that prosecution had collected against appellants – There is absolutely no role that is attributed to appellants – Higher degree of satisfaction that is required for exercising power under Section 319 Cr.P.C. is not met in present case – Trial Court committed serious error in allowing application under Section 319 and issuing summons to appellants – High Court should have exercised its jurisdiction under Section 482 of Cr.P.C. and quashed order – Impugned orders set aside. (Paras 16, 17, 17.1, 17.2, 17.3, 24, 25 and 26)
Facts of the case:
Issue that arises for consideration is whether there is sufficient material against Appellant prompting Trial Court to pass a summoning order under Section 319 Cr.P.C.
Findings of Court:
Impugned order dated 04.04.2023 passed by High Court of Judicature at Allahabad in Application under Section 482 No. 30221 of 2017 and order dated 24.08.2017 passed by Additional District and Sessions Judge under Section 319 Cr.P.C. are hereby set aside.
Result : Appeals allowed.

1. Leave granted.

2. The present appeals arise out of a decision of the High Court of Judicature at Allahabad dated 04.04.2023 in Application under Section 482 No. 30221 of 2017, whereby the High Court refused to quash a summoning order dated 24.08.2017 passed under Section 319 of the Cr.P.C. by the Additional District & Sessions Judge, Kanpur Dehat, where the Appellants herein were directed to face a trial for offence under Section 302 IPC. Both the Appellants being identically placed, their appeals are being dealt with together.

3. The issue that arises for our consideration is whether there is sufficient material against the Appellant prompting the Trial Court to pass a summoning order under Section 319 Cr.P.C. The principles of law being settled by the judgments of the constitutional benches of this Court, this question hinges upon the facts of the present case, which is as follows:

4. Facts and investigation: On 10.05.2011, the first informant (PW-1), who is the mother of the deceased, got an FIR lodged at P.S. Ghatampur, informing that her son was found dead near a tubewell in the wheat field of a fellow villager. In her statement, she alleged that her son was murdered by the present appellants, the father of the appellants, along with two others, due to certain old enmity existing between the two families.

5. The following day, the investigation officer recorded a statement of PW-1 under Section 161 Cr.P.C. In this statement she also stated that the deceased was quarrelsome, had a habit of picking up fights with other villagers and had a few criminal cases going on against them. Previously, he had also picked up fights with the father of the appellants. She stated that on 08.05.2011, Mahendra Singh, a gangster of the same village, came on a bike and asked the deceased to accompany him, on the pretext that Mahendra Singh would pay back a sum of Rs. 8,000 which he had borrowed from PW-1, and also that he would help the deceased arrive at a compromise with Accused No. 1 (father of the appellants) and Accused No. 3. Accordingly, the deceased left on the motorcycle of Mahendra Singh. She stated that Accused Nos. 1-3 were standing at a distance noticing the developments. She stated with conviction that Accused Nos. 1-3 along with Mahendra Singh killed the deceased. In this statement, PW-1 stated that the appellants were not involved and that she wrote their name in her first information statement incorrectly and without collecting full information. Two other persons (witness), Rajau Sengar and Karan Singh, in their Section 161 statements reiterated the statement of PW-1. Even they stated that the present appellants had no role whatsoever in the commission of the crime.

6. After conducting the investigation, the IO filed a chargesheet on 22.06.2011, where the present appellants were not named as accused. There were only four named accused in the chargesheet, however, Mahendra Singh who was arrayed as Accused No. 4 was absconding. It was categorically stated in the chargesheet that after investigation, it came to light that the naming of the present appellants was false.

7. Trial: On 20.05.2016, PW-1 was examined where she stated that “My old enmity with accused Bacha Singh has been going in for the last 11 years and on the basis of suspicion, I had written the names of Shankar and Vishal in the FIR.” However, at a later stage of her examination, she stated that “It is wrong to suggest that because of old enmity, I have wrongly written the names of Bacha Singh and his sons in the FIR”. Apart from PW-1, none of the other 5 witness, spoke about the complicity of the appellants in the commission of the offence.

8. Trial Court: Pursuant to the statement made by PW-1 in her examination in chief, the Assistant Public Prosecutor, on 31.07.2017, filed an application under Section 319 of the Cr.P.C. to summon the appellants herein to face the trial.

9. The Ld. Trial Court, on 24.08.2017, allowed the application filed by the APP after noting cer