1. Murder case — FIR naming multiple accused — Police exoneration of some — Trial Court summoning of exonerated persons under Section 319, CrPC based on witness depositions. (Para 2 , 3 )
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2025 Supreme(SC) 575
SUPREME COURT OF INDIA
Sudhanshu Dhulia, K. Vinod Chandran, JJ.
Akhilesh – Appellants
Versus
State of Uttar Pradesh & Ors. – Respondents
Criminal Appeal No. 1758 of 2025 [@ Special Leave Petition (Criminal) No. 12824 of 2024]
Decided On : 28-03-2025
Important Points
IMPORTANT POINT
Summoning of additional accused to face trial – Murder case – A person not named in FIR or a person though named in FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from evidence it appears that such person can be tried along with accused already facing trial.
Summoning of additional accused to face trial – Murder case – A person not named in FIR or a person though named in FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from evidence it appears that such person can be tried along with accused already facing trial.
Subject
Criminal Law - Criminal Procedure
Act Referred
Headnote
Criminal Procedure Code, 1973 – Section 319[Section 358 of BNSS, 2023] – Summoning of additional accused to face trial – Murder case – A person not named in FIR or a person though named in FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from evidence it appears that such person can be tried along with accused already facing trial – In present case, respondents were named in FIR but they were not named in charge-sheet as accused – After recording depositions of PWs which inspired confidence of Trial Court, respondents were summoned to face trial under Section 319 Cr.P.C. – Within a few hours of incident, FIR was lodged and eyewitnesses have also deposed before Court, regarding presence of these two persons at the spot – No reason why respondents should not face the trial – Impugned order of High Court set aside and Trial Court’s order restored. (Paras 9, 10, 11, 12 and 13)
Facts of the case:
Appellant has challenged the order dated 08.07.2024 passed by the High Court of Judicature at Allahabad where criminal revision filed by respondent no.2 (Krishna Pal Singh) and respondent no.3 (Sanju @ Sanjay) was allowed and Trial Court’s order dated 07.07.2023, summoning respondents under Section 319 of Code of Criminal Procedure, 1973 was set aside.
Findings of Court:
High Court erred in setting aside the well-reasoned order of Trial Court by giving undue weightage to Section 161 CrPC statements of some witnesses. When Trial Court, on strength of testimonies of PW-1 and PW-2, has summoned respondent nos.2 and 3 to face Trial, then this decision of Trial Court does not merit interference in the light of evidence before Court.
Result : Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
For the Petitioner(s): Mr. Divyesh Pratap Singh, AOR
For the Respondent(s): Ms. Sakshi Kakkar, AOR Mr. Chand Qureshi, AOR
For the Petitioner(s): Mr. Divyesh Pratap Singh, AOR
For the Respondent(s): Ms. Sakshi Kakkar, AOR Mr. Chand Qureshi, AOR
Table of Contents
2. Challenge to summoning order — Contention that witness credibility is doubtful and witnesses were not present at the spot. (Para 11 )
3. Trial Court correctly summoned accused based on eyewitness depositions; credibility of witnesses is a matter for trial, not for the stage of summoning. (Para 8 , 9 , 11 , 12 )
4. Power under Section 319, CrPC allows summoning persons not charge-sheeted based on evidence in examination-in-chief, without waiting for cross-examination. (Para 10 )
5. Appeal allowed — High Court order set aside — Trial Court's summoning order restored. (Para 13 )
6. When can a court exercise power under Section 319 CrPC to summon a person?
A court can summon any person appearing to be guilty of an offence who can be tried together with the accused, even if they were not named in the FIR, were named but not charge-sheeted, or were discharged, provided evidence surfaces during the trial or inquiry. (Para 10 )
7. Is it necessary to wait for the cross-examination of a witness before summoning a person under Section 319 CrPC?
No, the court can exercise its power under Section 319 CrPC based on the statement made during the examination-in-chief of a witness without waiting for the evidence to be tested by cross-examination. (Para 10 )
8. How should the court treat the credibility of witnesses at the stage of summoning under Section 319 CrPC?
Issues regarding the credibility of witnesses or their presence at the spot are matters to be determined during the trial and should not prevent the court from summoning an accused if the depositions inspire confidence. (Para 11 )
ORDER :
1. Leave granted.
2. The appellant before this Court has challenged the order dated 08.07.2024 passed by the High Court of Judicature at Allahabad where criminal revision filed by respondent no.2 (Krishna Pal Singh) and respondent no.3 (Sanju @ Sanjay) was allowed and the Trial Court’s order dated 07.07.2023, summoning the above respondents under Section 319 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’), was set aside.
3. The brief facts of the case are as follows:
(a) On 15.11.2021, the appellant filed an FIR (No.349/2021) at P.S Dataganj, Badaun (Uttar Pradesh) under Sections 302, 504 and 506 of IPC, alleging that four persons, namely Gajendra, Mahendrapal, Krishnapal (respondent no. 2) and Sanju (respondent no. 3) shot his father (deceased) dead due to a dispute over the boundary of an agricultural field.
(b) The chargesheet was filed under Sections 302, 504 and 506 of IPC against Gajendra and Mahendrapal, while a final report was filed in relation to Respondent nos. 2 and 3.
(c) Based on the depositions of PW-1 and PW-2, who stated that respondent nos.2 and 3 were amongst the assailants, the Trial Court, by its order dated 07.07.2023, exercised its powers under S.319 CrPC and summoned respondent nos.2 and 3 to face the trial. This order of the Trial court was challenged before the High Court in revision.
(d) Vide impugned order dated 08.07.2024, the High Court has allowed the criminal revision filed by respondent nos.2 and 3, setting aside the Trial Court’s order dated 07.07.2023. Aggrieved by the same, the appellant- complainant is before us.
4. We heard both sides and perused the material on record.
5. The Post-Mortem of the deceased was conducted on 16.11.2021 i.e. the day after the incident. In the Post-Mortem report, there is mention of three gunshot entry wounds corresponding to three gunshot exit wounds. There is no doubt that the deceased was shot dead in broad daylight on 15.11.2021. The FIR, which was lodged based on information given by appellant, mentions that four persons, including respondent nos.2 and 3, fired upon the deceased, and ran away when one Santosh Kumar and Prithviraj raised an alarm.
6. During the trial, the appellant was examined as PW-1. He deposed that the deceased and one of the accused (Gajendra) had some quarrel over the boundary of their agricultural field. He further deposed that when the deceased was returning from the field on his motorcycle, the four accused, including respondent nos.2 and 3, surrounded and opened fire on the deceased. As per PW-1, he had seen the incident from a distance.
7. PW-2 (Prithviraj), who is a cousin of the deceased, was mentioned as an eyewitness in the FIR. He too deposed that on that fateful day he was at his field which is near the spot of the incident and saw the four accused, including respondent nos.2 and 3, fire on the deceased.
8. Based on the above depositions, it is our considered opinion that the Trial Court rightly summoned respondent nos.2 and 3 under Section 319 CrPC to face the trial. In its summoning order, Trial Court further noted that one Santosh, who was also named in the FIR as an eyewitness, had stated in his Section 161 CrPC statement that all four persons named in the FIR were present at the spot. The Trial Court observed that the police erred in exonerating Krishnapal and Sanju @ Sanjay (respondent nos.2 and 3, respectively) because some witnesses in their Section 161 CrPC statements said that these two were present at the Shiv temple of the village in connection with a funeral of another villager, on the day of the incident.
9. Within a few hours of the incident, the FIR was lodged in which respondent nos.2 and 3 have been named as accused and the eyewitnesses have also deposed before the Court, regarding the presence of these two persons at the spot. Under these circumstances, we see no reason why respondent nos.2 and 3 should not face the trial.
10. This Court in Rajesh v. State of Haryana, (2019) 6 SC
