2025 Supreme(SC) 2002

SUPREME COURT OF INDIA
Sanjay Karol, Nongmeikapam Kotiswar Singh, JJ.
Neeraj Kumar @ Neeraj Yadav – Appellant
Versus
State of U.P. & Ors. – Respondents
Criminal Appeal No. 5229 of 2025 (Arising out of SLP(Crl.) No. 7518 of 2025)
Decided On : 04-12-2025

IMPORTANT POINTS
(1) Summoning of additional accused to face trial – While statement recorded under Section 161 Cr.P.C. is not substantive evidence in itself, it may be used to corroborate evidence recorded by Court to invoke power under Section 319 Cr.P.C.
(2) Dying declaration – Law does not require that a declarant, at the time of making statement, to be under shadow of death or expectation that death is imminent.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 319 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 358] – Summoning of additional accused to face trial – Section 319 Cr.P.C. is an enabling one, empowering Court, during course of inquiry or trial, to proceed against any person not already arraigned as accused, if, from evidence adduced before it, such person appears to have committed offence – Its object is to ensure that no guilty person escapes process of law – It casts duty upon Court to ensure that real offender does not go unpunished, for only then can concept of fair and complete trial be realised – Power conferred under this Section is extraordinary and discretionary in nature, intended to be exercised sparingly and with due circumspection – While invoking it, Court must be satisfied that evidence appearing against person sought to be summoned is such that it prima facie necessitates bringing such person to face trial – Degree of satisfaction required is higher than that warranted at the stage of framing of charge, yet short of satisfaction necessary to record conviction – Such satisfaction must rest on cogent and credible material brought on record during trial, and not based on conjectures or speculations. (Paras 6 and 7)

(B) Criminal Procedure Code, 1973 – Section 319 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 358] – Summoning of additional accused to face trial – Dismissal of application by Courts below – Murder case – Under this Section Court possesses power to summon persons not named in charge-sheet to face trial, if evidence on record so warrants – While iappellant did not specifically mention in FIR that husband of deceased had fired at instigation of respondents, as conveyed by his niece, however, FIR is not an encyclopaedia that must contain every minute detail of incident, since its primary purpose is to set criminal law in motion – Deposition of minor daughter of deceased, prima facie has considerable evidentiary value, given the fact that she is allegedly an eyewitness to occurrence – At the stage of deciding application under Section 319 Cr.P.C., Court is not required to test credibility or weigh probative value of evidence as would be done at end of trial for determining conviction or otherwise of accused – What Court has to consider at this stage is whether material on record reasonably indicates involvement of proposed accused so as to exercise extraordinary power – While statement recorded under Section 161 Cr.P.C. is not substantive evidence in itself, it may be used to corroborate evidence recorded by Court to invoke power under Section 319 Cr.P.C. – Objections raised by respondents, including alleged tutoring of minor witness, omission of their names in FIR, inconsistencies in statements of deceased and lack of contemporaneous medical certification, are all premature and cannot be conclusively decided at the stage of exercising power under Section 319 Cr.P.C. – Impugned judgment and order of High Court, set aside. (Paras 7.2, 10, 11, 12, 17 and 19)

(C) Indian Evidence Act, 1872 – Section 32 [Section 26 of BSA] – Dying declaration – Statement made by a deceased person, as to cause of his death or to circumstances of transaction which resulted in his death, to a Police Officer and recorded under Section 161 Cr.P.C., shall be relevant and admissible under Section 32(1) of Evidence Act, notwithstanding express bar provided in Section 162 Cr.P.C. – Such a statement, upon death of declarant, assumes character of a dying declaration – Dying declaration need not necessarily be recorded in presence of a Magistrate and lack of Doctor's certification as to fitness of declarant’s state of mind would not ipso facto render dying declaration unacceptable – Law does not require that a declarant, at the time of making statement, to be under shadow of death or expectation that death is imminent. (Paras 14 and 16)

Facts of the case:

Present appeal arises out of impugned judgment and order dated 22nd April 2024 passed by High Court of Judicature at Allahabad in Criminal Revision No. 4729 of 2023, which affirmed Order dated 3rd August 2023 passed by Court of Additional District and Sessions Judge, Buland Shahar whereby application filed by prosecution under Section 319 of Code of Criminal Procedure, 1973, praying for summoning additional accused (Respondent Nos.2 to 4 herein) in Sessions Trial No.1151 of 2021 arising out of Case Crime No.187 of 2021, was dismissed.

Findings of Court:

All observations made herein are only for the purpose of deciding application under Section 319 Cr.P.C. to summon respondents as additional accused and should not be construed as remarks on the merits of the matter.

Result : Appeal allowed.