J U D G M E N T
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,
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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
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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
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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 certain previous decisions of this
Court where it was held that if the evidence tendered in the course
of trial shows that any person not named as an accused has a role
to play in the commission of the offence, then he could be
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summoned to face trial even though he may not have been charge
sheeted.
10. High Court: The above order passed by the Trial Court was
challenged by the Appellants before the High Court by filing a
petition under Section 482 Cr.P.C. This petition came to be
dismissed by the High Court by its order dated 04.04.2023. While
dismissing the petition, the High Court noted that at the stage of
Section 482, the Court is only supposed to see if there exists a
prima-facie case. It is this order of the High Court which is
impugned before us.
11. Issue: The only question arising in the present appeal is
whether the power under Section 319 Cr.P.C. has been properly
exercised in light of the facts of the present case and evidence on
record.
12. Analysis: We have heard Ld. counsel for appellants, Ms.
Preetika Dwivedi and Ld. counsel for the Respondent State Mr.
Ankit Goel.
13. At the outset, we may note that the four accused who were
charge-sheeted, have passed away. As against them, the trail has
abated. The learned counsel for the Respondent State has argued
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that even if the trial has abated against existing accused, there is
no bar in summoning the appellants and starting the trial afresh1.
This position of law is well-settled and the learned counsel for the
appellant has also not disputed the same.
14. In this background, we will examine the legality of the
summoning order under Section 319 Cr.P.C. on its own footing.
Section 319 of the Cr.P.C. is as follows:
“319. Power to proceed against other persons
appearing to be guilty of offence
(1) Where, in the course of any inquiry into, or trial
of, an offence, it appears from the evidence that any
person not being the accused has committed any
offence for which such person could be tried
together with the accused, the Court may proceed
against such person for the offence which he
appears to have committed.
(2) ….
(3) ….
(4) ….”
15. Having taken note of the provision, we will note the principles
laid down by a Constitution Bench of this Court in Hardeep Singh
v. State of Punjab, (2014) 3 SCC 92, for criminal courts to follow
while exercising power under Section 319 Cr.P.C.:
“94. In Pyare Lal Bhargava v. State of Rajasthan,
AIR 1963 SC 1094, a four-Judge Bench of this
1 Gurmail Singh v. State of UP, (2022) 10 SCC 684.
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Court was concerned with the meaning of the word
“appear”. The Court held that the appropriate
meaning of the word “appears” is “seems”. It
imports a lesser degree of probability than proof.
In Ram Singh v. Ram Niwas, (2009) 14 SCC 25, a
two-Judge Bench of this Court was again required
to examine the importance of the word “appear” as
appearing in the section. The Court held that for the
fulfilment of the condition that it appears to the
court that a person had committed an offence, the
court must satisfy itself about the existence of an
exceptional circumstance enabling it to exercise an
extraordinary jurisdiction. What is, therefore,
necessary for the court is to arrive at a satisfaction
that the evidence adduced on behalf of the
prosecution, if unrebutted, may lead to conviction
of the persons sought to be added as the accused
in the case.
95. At the time of taking cognizance, the court has
to see whether a prima facie case is made out to
proceed against the accused. Under Section 319
CrPC, though the test of prima facie case is the
same, the degree of satisfaction that is required is
much stricter…
105. Power under Section 319 CrPC is a
discretionary and an extraordinary power. It is to
be exercised sparingly and only in those cases
where the circumstances of the case so warrant. It
is not to be exercised because the Magistrate or the
Sessions Judge is of the opinion that some other
person may also be guilty of committing that
offence. Only where strong and cogent evidence
occurs against a person from the evidence led
before the court that such power should be
exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie
case is to be established from the evidence led
before the court, not necessarily tested on the anvil
of cross-examination, it requires much stronger
evidence than mere probability of his complicity.
The test that has to be applied is one which is more
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than prima facie case as exercised at the time of
framing of charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted, would
lead to conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under Section 319 CrPC…..”
16. The degree of satisfaction required to exercise power under
Section 319 Cr.P.C. is well settled after the above-referred decision.
The evidence before the trial court should be such that if it goes
unrebutted, then it should result in the conviction of the person
who is sought to be summoned. As is evident from the abovereferred decision, the 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 the evidence is strong and reliable, can the power be
exercised. It requires much stronger evidence than mere
probability of his complicity.
17. In this background, we will examine the evidence on record
which prompted the trial court to exercise the power under Section
319 Cr.P.C. PW-1, who is the mother of the deceased, is the only
witness who has named the appellants.
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17.1 In the first information statement, she has taken the name
of the appellants as having played a role in the commission of the
crime owing to the past enmity between the two families. The
relevant portion of this statement is as follows:
“I am quite sure that my son Vijay Singh has
been jointly murdered by Bachha Singh s/o Mohan
Singh, Shankar s/o Bacha Singh, Vishal s/o Bacha
Singh- residents of Raha and Sanjay s/o Munna
Singh, Kallu Singh s/o Munna Singh-residents of
Jalala, Police Station Ghatampur. We have an old
existing enmity with these people.”
17.2 However, in her Section 161 statement, she has stated that
the appellants were not involved and that she named them without
collecting full information. Two other witness, Rajau Sengar and
Karan Singh, in their Section 161 statements have also stated that
the appellants had no role whatsoever in the commission of the
crime. Relevant portion of PW-1’s statement under Section 161
Cr.P.C., is as follows:-
“…I had lent Rs. 8000 to Mahendra Singh long ago
after selling Lahi. Vijay Singh had asked Mahendra
Singh many times to repay the borrowed money but
he did not give it back. Coming under the guise of
this assurance, Vijay Singh left on Mahendra’s
motorcycle. Sanjay Singh and Kallu Singh sons of
Munna Singh and Bacha Singh s/o Mohan Singh
were also standing at some distance outside the
house. They also lured my son Vijay Singh and
accompanied Vijay Singh and Mahendra Singh and
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all four of them killed my son Vijay Singh and threw
the dead body in the field near the tubewell of
Mahendra Pratap Singh Bhadoria. The names of
Shankar Singh and Vishal Singhs sons of Bachha
Singh, which I have written in the FIR, have been
written by me falsely without collecting full
information. My son Vijay Singh was murdered by
Mahendra Singh s/o Chandrapal Singh Sachan of
village Laukaha, Bacha Singh s/o Mohan Singh of
village Raha and Sanjay Singh and Kallu Singh s/o
Munna Singh of village Jalala. Shankar and Vishal
sons of Bacha Singh were not involved in my son’s
murder.”
(emphasis supplied)
17.3 Even in the chargesheet, which was filed after investigation,
the name of the appellants has not been mentioned as accused.
17.4 It is only in her deposition before the trial court that PW-1
has once again named the appellants. However, she has also
stated that she has named them only on the basis of suspicion.
The relevant portion of her deposition before the Trial Court is as
follows:
“In my report, I made Bachha Singh, Shankar, Vishal,
Kallu Singh and Mahendra Sachan accused. I had
an old enmity with these people.”
In her cross-examination, PW-1 stated as follows:-
“There were two-three outstation cases and two-three
local cases from the village were pending against my
son Vijay Singh, which are closed now. The said
cases were closed/concluded during the lifetime of
Vijay Singh. My old enmity with accused Bacha
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Singh has been going on for the last 11 years and on
the basis of suspicion, I had written the names of
Shankar and Vishal in the FIR.”
18. It is evident from the above that the appellants were named
in the first information statement, however, in the statement under
Section 161 Cr.P.C, PW-1 clarified that the names of appellants
were written in the FIR falsely and without full information. She
has also stated that the appellants were not involved in the murder
of her son. Even in the charge sheet, the names of the appellants
were not mentioned as accused. It is only in her deposition before
the Trial Court the names of the accused resurfaces again.
19. None of the other witnesses, being PW’s-2, 3, 4, 5 and 6 have
deposed anything about the appellants.
20. On 31.07.2017, i.e. almost a year after the deposition of PW1, the prosecution chose to file an application under Section 319
Cr.P.C. to the following effect:-
“It is most respectfully submitted that in the above
mentioned case, the first informant Mrs. Sheela Singh
had written the names of Shankar Singh and Vishal
Singh in the First Information Report and the names
of Shankar Singh and Vishal Singh have also been
mentioned by her in her examination in chief also.
For this reason, it is necessary to summon Shankar
Singh and Vishal Singh for trial in the said case.
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Therefore, the Hon’ble court is requested to kindly
pass an order thereby summoning accused Shankar
Singh and Vishal Singh sons of Bachha Singh for trial
in the said case.
Yours faithfully,
Sd/-illegible
31.7.2017”
21. At the first place, PW-1 has named the appellants in the FIR
despite not being an eyewitness to the offence. In her statement
under Section 161, she sought to clarify the position by recording
that her family had a long-standing enmity with appellants’ family.
She also stated that the names of the appellants were mentioned
and written by her “falsely without collecting full information.” She
categorically stated that the appellants are not involved in the
murder of her son.
22. When we contrast this statement with her deposition given
five years later, we do not see a drastic change in the stand of
PW-1. Even in her chief examination, she had stated that she had
an old enmity with the family of the accused. However, in her cross
examination, she clarified that as the enmity with the appellants
family was going on for the last eleven years, names of the
appellants were mentioned in the FIR on the basis of suspicion.
Therefore, the change of circumstance which the prosecution
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seeks to contend on the basis of PW-1’s deposition does not satisfy
the requirement of Section 319 at all.
23. Having considered the matter in detail, we are of the opinion
that PW-1, not being an eye-witness, her deposition is not
sufficient enough to invoke the extra-ordinary jurisdiction under
Section 319 to summon the appellants.
24. There are no other witnesses who have deposed against the
appellants. There is no documentary evidence that the prosecution
had collected against the appellants. There is absolutely no role
that is attributed to the appellants. We are of the opinion that the
deposition of PW-1 is also in line and consistent with her statement
under Section 161. When these factors are looked in a holistic
manner, it would be clear that the higher degree of satisfaction
that is required for exercising power under Section 319 Cr.P.C. is
not met in the present case.
25. For the reasons stated above we are of the opinion that the
Trial Court committed a serious error in allowing the application
under Section 319 and issuing summons to the appellants. The
High Court should have exercised its jurisdiction under Section
482 and quashed the order. The High Court having failed to quash
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the order of summons dated 24.08.2017, we are inclined to allow
these appeals and set-aside the order passed by the Trial Court
dated 24.08.2017 and the also the judgment of the High Court
dated 04.04.2023 dismissing the petition under Section 482.
26. For the reasons stated above, the present appeals are
allowed, and the impugned order dated 04.04.2023 passed by the
High Court of Judicature at Allahabad in Application under
Section 482 No. 30221 of 2017 and the order dated 24.08.2017
passed by the Additional District and Sessions Judge, Court No.
5, Kanpur Dehat, in S.T. No. 434 of 2011 in Application Paper No.
83Kha under Section 319 Cr.P.C. are hereby set aside.
………………………………….J.
[PAMIDIGHANTAM SRI NARASIMHA]
………………………………….J.
[ARAVIND KUMAR]
NEW DELHI;
MAY 02, 2024.