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SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, JJ.
SHIV PRAKASH MISHRA – Appellant
VERSUS
STATE OF UTTAR PRADESH AND ANOTHER – Respondents
CRIMINAL APPEAL NO. 1105 2019 (Arising out of SLP(Crl.) No.2168 of 2019)
Decided On : 23-07-2019
Criminal Procedure Code, 1973 – Section 319 – Summoning of additional accused to face trial – Power under Section 319 Cr.P.C. can be exercised by trial court at any stage during trial to summon any person as an accused to face trial if it appears from evidence that such person has committed any offence for which such person could be tried together with accused – Standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than standard of proof employed for framing a charge against accused person – Power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly – Witnesses have stated that respondent No.2 was not present at place of occurrence at the time of the incident – Though name of second respondent was mentioned in FIR, during investigation, it was found that second respondent was not present in place of incident and on the basis of findings of Investigating Officer, he was not charge sheeted – Having regard to contradictory statements of witnesses and other circumstances, High Court and trial court concurrently held that materials brought on record are not sufficient to summon second respondent as an accused in present case – No substantial ground is made out warranting interference – Appeal dismissed. (Paras 8, 9, 10, 12, 15 and 16)
Facts of the Case:
Instant appeal arises out of the order dated 04.12.2018 passed by High Court of Judicature at Allahabad by which High Court has affirmed order passed by trial court thereby declining to summon second respondent under Section 319 Cr.P.C. as an accused.
Findings of Court:
Trial court and the High Court rightly held that respondent No.2 cannot be summoned as an accused. Name of second respondent is no doubt mentioned in FIR and overt act is attributed to him. It is clear from the record that during course of investigation, Investigating Officer recorded statements of witnesses who have stated that respondent No.2 was not present at place of occurrence at the time of incident.
Result : Appeal dismissed.
JUDGMENT
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the order dated 04.12.2018 passed by the High Court of Judicature at Allahabad in Application No.36010 of 2018 in and by which the High Court has affirmed the order passed by the trial court thereby declining to summon the second respondent Subhash Chandra Shukla under Section 319 Cr.P.C. as an accused.
3. Brief facts which led to filing of this appeal are as under:-
As per the complaint lodged by complainant-Shiv Prakash Mishra (PW-1), on 06.09.2013 at about 09.00 am, respondent No.2-Subhash Chandra Shukla along with other accused viz. Sashendra Shukla, Devender Shukla, Lakshmi Kant Shukla and Rahul Shukla formed themselves into an unlawful assembly and came to the house of complainant and started abusing him due to old enmity. The elder brothers of the complainant namely Sangam Lal Mishra and Sunil Kumar Mishra who were living in the opposite house came out and tried to forbade the accused from abusing. On this, accused Sashendra Shukla fired from the pistol in his hand with intention to kill Sunil Kumar Mishra. Other accused beat Sangam Lal Mishra with lathi and dandas while the second respondent is alleged to have strongly attacked the deceased Sangam Lal Mishra on his head with the butt of home made pistol (katta). Deceased Sangam Lal Mishra and Sunil Kumar Mishra sustained injuries and fell down. During treatment, Sangam Lal Mishra succumbed to injuries. The incident was witnessed by PW-2-Anand Kumar Mishra, Dev Narain Mishra and the complainant. Shiv Kumar Mishra-complainant (PW-1) lodged the complaint before the Police Station, Meja at 18.15 hours on the same day i.e. 06.09.2013. Based on the complaint, FIR No.275/2013 was registered in Case Crime No.328A/2013 against five accused persons viz. Subhash Chandra Shukla, Sashendra Shukla, Rahul Shukla, Lakshmi Kant Shukla and Devender Shukla under Sections 147, 148, 149, 302, 307, 323 and 504 IPC. Investigation of the case was taken up by the police of the concerned police station. As per the government order, the investigation of the case was transferred to C.B.C.I.D. C.B.C.I.D. which took up the investigation, examined number of persons at the office of second respondent and filed charge sheet No.13/2014 on 19.09.2014 only against three accused persons namely Sashendra Shukla, Devender Shukla and Laxmi Kant Shukla. Upon further investigation, subsequently on 15.10.2014, a supplementary charge sheet No.13A/2014 was filed against accused Rahul Shukla.
4. Case was committed to the Sessions Court and charges were framed in Sessions Trial No.1329/2014. The trial was commenced in or about August, 2016. The witnesses namely Shiv Prakash Mishra (PW-1), Anand Kumar Mishra (PW-2) and Sunil Kumar Mishra (PW-3) were examined. On 03.10.2017, PW-1-Shiv Prakash Mishra filed a petition under Section 319 Cr.P.C. to implead the second respondent-Subhash Chandra Shukla as an accused. The trial court vide order dated 28.08.2018 dismissed the application filed under Section 319 Cr.P.C. observing that there are contradictions in the statement of Shiv Prakash Mishra (PW-1) and the statement of Anand Kumar Mishra (PW-2) as to the role of the second respondent. The trial court held that the presence of the proposed accused Subhash Chandra Shukla at the place of work at District Mirzapur has been verified and the same has also been corroborated with the statement of the complainant and presence of the second respondent in the scene of occurrence is highly doubtful. The trial court placed reliance upon Brijendra Singh and others v. State of Rajasthan (2017) 7 SCC 706. The revision petition preferred by the complainant before the High Court was also dismissed on the ground that there are no materials on record to summon respondent No.2 as an accused. Being aggrieved, the complainant is before us.
5. The learned counsel for the appellant-complainant has submitted that the complainant has clearly named all the five accused persons and th
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