1. Challenge to a summoning order under Section 319, Cr. PC, for offences under the Indian Penal Code and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. (Para 1 , 2 , 3 )
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2023 Supreme(SC) 559
SUPREME COURT OF INDIA
Dipankar Datta, Pankaj Mithal, JJ.
Jitendra Nath Mishra – Appellant
Versus
State of U.P. & Anr. – Respondents
Criminal Appeal No. 978 of 2022
Decided On : 02-06-2023
Advocates appeared:
For the Appellant(s) : Mr. Girijesh Pandey, Adv. Ms. Alpana Pandey, Adv. Mr. Ajay Kumar Tiwari, Adv. Mr. Ramjee Pandey, AOR
For the Respondent(s): Mr. Ankur Prakash, AOR
For the Appellant(s) : Mr. Girijesh Pandey, Adv. Ms. Alpana Pandey, Adv. Mr. Ajay Kumar Tiwari, Adv. Mr. Ramjee Pandey, AOR
For the Respondent(s): Mr. Ankur Prakash, AOR
IMPORTANT POINT
Summoning of additional accused to face trial – What is essential for exercise of power under Section 319, Cr. PC is that evidence on record must show involvement of a person in commission of a crime and that the person who has not been arraigned as accused, should face trial together with accused already arraigned.
Headnote:
Criminal Procedure Code, 1973 – Section 319 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 – Section 14A(1) – Summoning of additional accused to face trial – What is essential for exercise of power under Section 319, Cr. PC is that evidence on record must show involvement of a person in commission of a crime and that the person who has not been arraigned as accused, should face trial together with accused already arraigned – However, court holding trial, if it intends to exercise power conferred by Section 319, Cr. PC, must not act mechanically merely on the ground that some evidence has come on record implicating the person sought to be summoned – Its satisfaction preceding order thereunder must be more than prima facie as formed at stage of a charge being framed and short of satisfaction to an extent that evidence, if unrebutted, would lead to conviction – Once it is conceded that appellant is a sibling of co-accused and he is named as one of assailants, material for forming requisite satisfaction cannot be said to be non-existent – Special Court formed requisite satisfaction prior to summoning appellant to face trial with co-accused – Impugned order of High Court affirming it cannot be faulted. (Paras 9, 10, 11 and 13)
Facts of the case:
Present appeal, by special leave, takes exception to an order dated 1st June, 2022 of Allahabad High Court. Impugned order dismissed an appeal filed by the appellant under Section 14A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989. Under challenge in appeal was a summoning order dated 16th October, 2021 passed by relevant Special Court under 1989 Act, in exercise of power conferred on him by Section 319, Code of Criminal Procedure.
Findings of Court:
In so far as the points regarding delay in registration of FIR, material contradiction in the versions of the complainant and his wife, absence of any public witness as well as circumstances that the complainant and his wife were known to the appellant since 2015 are concerned, same are left open to be urged by appellant in course of the proceedings before Special Court.
Result : Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Appellant challenged the summoning order citing FIR delay, witness contradictions, and false implication; State argued the order was based on sufficient oral evidence. (Para 4 , 5 , 6 )
3. The court found that oral evidence from witnesses naming the appellant, combined with the FIR's reference to a brother, justified the summoning order. (Para 8 , 10 )
4. Power under Section 319, Cr. PC requires satisfaction more than prima facie but less than that required for conviction, based on evidence showing involvement in the crime. (Para 9 )
5. Appeal dismissed; summoning order upheld; trial to be expedited without being influenced by the current proceedings. (Para 11 , 13 , 14 )
6. What is the legal standard for exercising power under Section 319, Cr. PC?
The court must be satisfied that the evidence on record shows the involvement of a person in the commission of a crime. This satisfaction must be more than prima facie (as formed at the charge stage) but short of the satisfaction that the evidence, if unrebutted, would lead to conviction. (Para 9 )
7. Can a person be summoned under Section 319, Cr. PC if they were not named in the FIR?
Yes. The fact that a person was not named in the FIR is not decisive. If evidence adduced during the trial, such as oral testimony, implicates the person and provides the court with the requisite satisfaction of their involvement, they can be summoned to face trial. (Para 10 )
8. How are contradictions in witness testimony or FIR delays treated during a Section 319 proceeding?
Issues such as material contradictions in witness versions, delays in registering the FIR, or the absence of public witnesses are matters of defense. These points are to be urged and considered by the trial court during the proceedings rather than serving as grounds to quash the summoning order. (Para 12 )
JUDGMENT
Dipankar Datta, J.
1. This appeal, by special leave, takes exception to an order dated 1st June, 2022 of the Allahabad High Court. The impugned order dismissed an appeal filed by the appellant under Section 14A(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (hereafter ‘1989 Act’). Under challenge in the appeal was a summoning order dated 16th October, 2021 passed by the relevant Special Court under the 1989 Act, in exercise of power conferred on him by Section 319, Code of Criminal Procedure (hereafter, ‘Cr. PC’).
2. A First Information Report (hereafter ‘FIR’) came to be registered by the Khalilabad Police Station, District Sant Kabir Nagar, under Sections 419, 420, 323, 406 and 506, Indian Penal Code and 3(1)(r) & (s) of the 1989 Act on the basis of information furnished by the complainant. Accusations were levelled against (1) Dharmendra Nath Mishra (hereafter ‘Dharmendra’); (2) brother of Dharmendra; and (3) an ‘unknown person’ of having assaulted and abused the complainant and his wife, amounting to commission of offences punishable under the aforesaid provisions. Investigation of the FIR culminated in a charge-sheet under Section 173(2) of the Cr. PC being filed, wherein Dharmendra was shown as the sole accused. The Special Court constituted under the 1989 Act took cognisance of the offence and framed charges against Dharmendra, whereafter the trial commenced. In course thereof, the complainant and his wife deposed as PW-1 & PW-2 respectively. According to them, Dharmendra and the appellant together with an unknown person had assaulted them apart from hurling caste related abuses.
3. At this stage, the Special Court passed the order dated 16.10.2021 summoning the appellant for trial along with Dharmendra for offences punishable under Sections 323, 504 and 506, IPC and 3(1)(r) & (s) of the 1989 Act. The said order dated 16th October, 2021 was unsuccessfully challenged by the appellant before the High Court which, by its order dated 1st June, 2022, dismissed the appeal of the appellant under Section 14A(1) of the 1989 Act as noted above.
4. Mr. Pandey, learned counsel appearing for the appellant contended as follows:
(i) The FIR is grossly delayed. Although the incident of assault and abuse giving rise to the FIR allegedly happened on 30th September, 2017, the complainant lodged the complaint as late as on 28th February, 2018. There is no cogent explanation for such belated lodging of complaint and this is an indicator that the contents of the FIR are absolutely false.
(ii) There are material contradictions in the versions of PW-1 & PW- 2. While PW-1 deposed that Dharmendra, his brother (i.e., the appellant) and an unknown person were travelling in a car when they stopped PW-1 and his family members whereafter the alleged incident of assault and abuse took place, PW-2 deposed that the accused persons (Dharmendra, the appellant and an unknown person) arrived at the place of occurrence riding two motorcycles. Therefore, the depositions of PW-1 & PW-2 are absolutely unreliable and untrustworthy.
(iii) It is to be found in the versions of PW-1 & PW-2 that since 2015, they personally knew the appellant; hence, not naming the appellant in the FIR and instead disclosing that the brother of Dharmendra too had involved himself in the alleged assault and abuse and taking the name of the appellant as a co-accused only in course of recording of evidence is a clear embellishment, which has been made with a view to harass the appellant by dragging him to face an unnecessary trial.
(iv) The appellant and Dharmendra are siblings no doubt; but they have three other siblings. If indeed the appellant was one of several co-accused, it defies reason as to why the complainant knowing the appellant quite well would not name him and vaguely allege that the brother of Dharmendra too had assaulted and abused the complainant.
(v) Falsity of the versions of PW-1 & PW-2 would be manifest if one were to read their
