SHIV PRAKASH MISHRA versus STATE OF UTTAR PRADESH AND ANOTHER

[2019] 10 S.C.R. 541

SHIV PRAKASH MISHRA

STATE OF UTTAR PRADESH AND ANOTHER

(Criminal Appeal No.1105 of 2019)

JULY 23, 2019

[R. BANUMATHI AND A.S. BOPANNA, JJ.]

Code of Criminal Procedure, 1973– s.319 – Power under –Exercise of – Complaint lodged that respondent no.2-SCS alongwith other accused viz. SaS, DS, LKS and RS formed themselvesinto an unlawful assembly and came to the house of the appellant-complainant and started abusing him due to old enmity – Elderbrothers of the appellant, SLM and SKM tried to forbade the accusedfrom abusing – On this, accused SaS fired from the pistol withintention to kill SKM – Second respondent was alleged to haveattacked SLM on his head with the butt of home made pistol – SLMsuccumbed to injuries – Charge sheet filed only against threeaccused persons namely SaS, DS and LKS – Upon furtherinvestigation, supplementary charge sheet filed against accused RS–Appellant filed petition u/s.319, CrPC to implead the secondrespondent as an accused – Dismissed – Revision petition beforethe High Court – Dismissed – On appeal, held: Power u/s.319 CrPCcan be exercised by the trial court at any stage during trial to summonany person as an accused to face the trial if it appears from theevidence that such person has committed any offence for whichsuch person could be tried together with the accused – Standard ofproof employed for summoning person as an accused personu/s.319 Cr.P.C. is higher than the standard of proof employed forframing charge against the accused person – Power u/s.319 Cr.P.C.should be exercised sparingly – In the instant case, though the nameof second respondent was mentioned in the FIR, during investigation,it was found that he was not present at the place of incident and onthe basis of said findings of the IO, he was not charge sheeted –Appellant did not file any protest petition then and there – Further,though, in his chief-examination the appellant stated about thepresence of the second respondent, however, in cross-examinationhe stated that the second respondent was on duty at that time –

AAppellant made contradictory statements – Evidence brought onrecord does not prima facie show the complicity of respondent no.2in the occurrence – Courts below were right in refusing to summonhim as an accused – No substantial ground made out warrantinginterference – Penal Code, 1860 – ss.147, 148, 149, 302, 307, 323and 504 .B

Dismissing the appeal, the Court

HELD:1.1 The power under Section 319, Cr.P.C. can beexercised by the trial court at any stage during trial to summonany person as an accused to face the trial if it appears from theCevidence that such person has committed any offence for whichsuch person could be tried together with the accused. The stan-dard of proof employed for summoning person as an accusedperson under Section 319 Cr.P.C. is higher than the standard ofproof employed for framing charge against the accused person.The power under Section 319 Cr.P.C. should be exercised spar-Dingly. [Paras 8, 9] [547-C-D]1.2 Having regard to the contradictory statements of thewitnesses and other circumstances, the trial court and the HighCourt rightly held that respondent No.2 cannot be summoned asan accused. The FIR was registered on 06.09.2013 at 18.15 hours.EThe name of second respondent is no doubt mentioned in theFIR and overt act is attributed to him. During the course ofinvestigation, the Investigating Officer recorded the statementsof witnesses who stated that respondent No.2 was not present atthe place of occurrence at the time of the incident. TheFInvestigating Officer also recorded the statement of one SKGand SG working in the same office in which respondent No.2 wasemployed who had stated that respondent No.2 was in the officeat the time of incident. Accordingly, the name of respondent No.2was dropped when the first charge sheet was filed on 19.09.2014.The supplementary charge sheet was filed against RS onG15.10.2014. Though the name of second respondent wasmentioned in the FIR, during investigation, it was thus foundthat the second respondent was not present in the place of incidentand on the basis of the findings of the Investigating Officer, hewas not charge sheeted. The appellant has not filed any protest

petition then and there. The courts below were right in refusingto summon respondent No.2 as an accused. Though, in his chief-examination on 22.10.2016, PW-1 stated about the presence ofthe second respondent and attributing overt act to him that hehad beaten the deceased SLM with butt of home made pistol, on28.02.2017, PW-1 in his cross-examination stated that respondentNo.2 was on duty at that time. [Paras 12, 13] [548-H; 549-A-H]

1.3 The evidence brought on record during trial does notprima facie show the complicity of respondent No.2 in theoccurrence and the High Court was justified in refusing to summonrespondent No.2 as an accused. The High Court and the trialcourt concurrently held that the materials brought on record arenot sufficient to summon the second respondent as an accused inthe present case. No substantial ground is made out warrantinginterference. The trial court shall proceed with the trial in S.T.No.26 of 2015 in accordance with law. The findings of SupremeCourt in this appeal and the High Court in the revision shall beconstrued only for the purpose of consideration of the appeal andrevision respectively and the same shall not be construed asexpression of opinion on the merits of the main case.[Paras 14-16] [550-D-F]

Hardeep Singh v. State of Punjab and Others(2014) 3 SCC 92 : [2014] 2 SCR 1 – followed.

Brijendra Singh and Others v. State of Rajasthan(2017) 7 SCC 706 : [2017] 3 SCR 374; Kailash v.State of Rajasthan and Another(2008) 14 SCC 51 :[2008] 3 SCR 702 – relied on.

Case Law Reference

[2017] 3 SCR 374[2014] 2 SCR 1[2008] 3 SCR 702

relied on followed relied on

Para 4Para 6Para 9

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1105 of 2019

From the Judgment and Order dated 04.12.2018 of the High Courtof Judicature at Allahabad in Application U/s 482 No. 36010 of 2018

AArvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad, KunalYadav, Ms. Neena Shukla, Advs. for the Appellant.

Ardhendumauli Kumar Prasad, Nikilesh R., Aakash Choudhary,Manish Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered byB

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the order dated 04.12.2018 passed bythe High Court of Judicature at Allahabad in Application No.36010 ofC2018 in and by which the High Court has affirmed the order passed bythe trial court thereby declining to summon the second respondent SubhashChandra 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 MishraD(PW-1), on 06.09.2013 at about 09.00 am, respondent No.2-SubhashChandra Shukla along with other accused viz. Sashendra Shukla,Devender Shukla, Lakshmi Kant Shukla and Rahul Shukla formedthemselves into an unlawful assembly and came to the house ofcomplainant and started abusing him due to old enmity. The elder brothersEof the complainant namely Sangam Lal Mishra and Sunil Kumar Mishrawho were living in the opposite house came out and tried to forbade theaccused from abusing. On this, accused Sashendra Shukla fired fromthe pistol in his hand with intention to kill Sunil Kumar Mishra. Otheraccused beat Sangam Lal Mishra with lathi and dandas while the secondrespondent is alleged to have strongly attacked the deceased SangamFLal Mishra on his head with the butt of home made pistol (katta).Deceased Sangam Lal Mishra and Sunil Kumar Mishra sustained injuriesand fell down. During treatment, Sangam Lal Mishra succumbed toinjuries. The incident was witnessed by PW-2-Anand Kumar Mishra,Dev Narain Mishra and the complainant. Shiv Kumar Mishra-Gcomplainant (PW-1) lodged the complaint before the Police Station, Mejaat 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 againstfive accused persons viz. Subhash Chandra Shukla, Sashendra Shukla,Rahul Shukla, Lakshmi Kant Shukla and Devender Shukla under Sections147, 148, 149, 302, 307, 323 and 504 IPC. Investigation of the case wasH

taken up by the police of the concerned police station. As per thegovernment order, the investigation of the case was transferred toC.B.C.I.D. C.B.C.I.D. which took up the investigation, examined numberof persons at the office of second respondent and filed charge sheetNo.13/2014 on 19.09.2014 only against three accused persons namelySashendra Shukla, Devender Shukla and Laxmi Kant Shukla. Uponfurther investigation, subsequently on 15.10.2014, supplementary chargesheet No.13A/2014 was filed against accused Rahul Shukla.

4. Case was committed to the Sessions Court and charges wereframed in Sessions Trial No.1329/2014. The trial was commenced in orabout 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 apetition under Section 319 Cr.P.C. to implead the second respondent-Subhash Chandra Shukla as an accused. The trial court vide orderdated 28.08.2018 dismissed the application filed under Section 319 Cr.P.C.observing that there are contradictions in the statement of Shiv PrakashMishra (PW-1) and the statement of Anand Kumar Mishra (PW-2) asto the role of the second respondent. The trial court held that the presenceof the proposed accused Subhash Chandra Shukla at the place of workat District Mirzapur has been verified and the same has also beencorroborated with the statement of the complainant and presence of thesecond respondent in the scene of occurrence is highly doubtful. Thetrial court placed reliance upon Brijendra Singh and others v. State ofRajasthan(2017) 7 SCC 706. The revision petition preferred by thecomplainant before the High Court was also dismissed on the groundthat there are no materials on record to summon respondent No.2 as anaccused. Being aggrieved, the complainant is before us.5. The learned counsel for the appellant-complainant has submittedthat the complainant has clearly named all the five accused persons andthe name of second respondent is clearly mentioned in the FIR in CaseCrime No.328A/2013. It was submitted that despite there being positivedirect version of the prosecution witnesses with regard to the attack byrespondent No.2 on the person of deceased, the Investigating Officerhas expunged his name from the charge sheet on the basis of the statementof the accused who is working as Junior Engineer in the office of SetuNigam, Mirzapur. It was submitted that the High Court erred in notconsidering the statement of witnesses PWs 1 to 3 who in their evidence

Ahas specifically attributed the overt act to respondent No.2. It wascontended that the High Court failed to appreciate that the distance ofplace where the second respondent was working was only about 30Kms. and while so, the High Court erred in placing reliance upon BijendraSingh.

B6. The learned counsel appearing for the first respondent-State ofUttar Pradesh has submitted that after proper investigation, C.B.C.I.D.has filed the charge sheet against three accused persons namely SashendraShukla, Devender Shukla and Laxmi Kant Shukla on 19.09.2014 andsupplementary charge sheet was filed against Rahul Shukla on15.10.2014. The learned counsel submitted that during the investigation,Cfrom the examination of number of witnesses employed in the office ofrespondent No.2, the Investigating Officer found that respondent No.2was not involved in the incident and therefore, charge sheet was filedagainst other accused and case against the second respondent wasdropped. Placing reliance upon Hardeep Singh v. State of Punjab

Dand others(2014) 3 SCC 92 and Brijendra Singh v. State ofRajasthan(2017) 7 SCC 706, it was submitted that thepower underSection 319 Cr.P.C. has to be exercised sparingly only on the existenceof compelling reasons. It was further submitted that an order underSection 319 Cr.P.C. would not be made merely on the ground that some

evidence has come on record implicating the person sought to beEsummoned.

7. We have carefully considered the submissions and perused theimpugned order and other materials on record.

8. Before considering the merits of the contention, it is necessaryto refer to Section 319 Cr.P.C. which reads as under:-F

“319. Power to proceed against other persons appearing tobe guilty of offence. – (1)Where, in the course of any inquiryinto, or trial of, an offence, it appears from the evidence that anyperson not being the accused has committed any offence for whichGsuch person could be tried together with the accused, the Courtmay proceed against such person for the offence which he appearsto have committed.

(4) Where the Court proceeds against any person under sub-section (1), then-

(a)the proceedings in respect of such person shall becommenced fresh, and the witnesses re- heard;

(b)subject to the provisions of clause (a), the case mayproceed as if such person had been an accused personwhen the Court took cognizance of the offence upon whichthe inquiry or trial was commenced.”

By reading of Section 319 Cr.P.C., it is clear that the power underSection 319 Cr.P.C. can be exercised by the trial court at any stageduring trial to summon any person as an accused to face the trial if itappears from the evidence that such person has committed any offencefor which such person could be tried together with the accused.

9. The standard of proof employed for summoning person as anaccused person under Section 319 Cr.P.C. is higher than the standard ofproof employed for framing charge against the accused person. Thepower under Section 319 Cr.P.C. should be exercised sparingly. As heldin Kailash v. State of Rajasthan and another(2008) 14 SCC 51,“the power of summoning an additional accused under Section 319Cr.P.C. should be exercised sparingly. The key words in Sectionare “it appears from the evidence”….”any person”….”hascommitted any offence”. It is not, therefore, that merely becausesome witnesses have mentioned the name of such person or thatthere is some material against that person, the discretion underSection 319 Cr.P.C. would be used by the court.”

10. As held by the Constitution Bench in para (105) in HardeepSingh, the power under Section 319 Cr.P.C. is discretionary and is to beexercised sparingly which reads as under:-

“105. Power under Section 319 CrPC is discretionary and anextraordinary power. It is to be exercised sparingly and only inthose cases where the circumstances of the case so warrant. It isnot to be exercised because the Magistrate or the Sessions Judgeis of the opinion that some other person may also be guilty ofcommitting that offence. Only where strong and cogent evidenceoccurs against person from the evidence led before the court

that such power should be exercised and not in casual and cavaliermanner.

106. Thus, we hold that though only prima facie case is to beestablished from the evidence led before the court, not necessarilytested on the anvil of cross-examination, it requires much strongerevidence than mere probability of his complicity. The test that hasto be applied is one which is more than prima facie case asexercised at the time of framing of charge, but short of satisfactionto an extent that the evidence, if goes unrebutted, would lead toconviction. In the absence of such satisfaction, the court shouldrefrain from exercising power under Section 319 CrPC. In Section319 CrPC the purpose of providing if “it appears from the evidencethat any person not being the accused has committed any offence”is clear from the words “for which such person could be triedtogether with the accused”. The words used are not “for whichsuch person could be convicted”. There is, therefore, no scopefor the court acting under Section 319 CrPC to form any opinionas to the guilt of the accused.”

11. The above view was followed in Brijendra Singh as under:-

“13. In order to answer the question, some of the principlesenunciated in Hardeep Singh case (2014) 3 SCC 92 may berecapitulated: ….. However, since it is discretionary power givento the court under Section 319 CrPC and is also an extraordinaryone, same has to be exercised sparingly and only in those caseswhere the circumstances of the case so warrant. The degree ofsatisfaction is more than the degree which is warranted at thetime of framing of the charges against others in respect of whomcharge-sheet was filed. Only where strong and cogent evidenceoccurs against person from the evidence led before the courtthat such power should be exercised. It is not to be exercised in acasual or cavalier manner. The prima facie opinion which is tobe formed requires stronger evidence than mere probability of hiscomplicity.”

12. In the light of the above principles, considering the presentcase, having regard to the contradictory statements of the witnessesand other circumstances, in our view, the trial court and the High Courtrightly held that respondent No.2 cannot be summoned as an accused.

The FIR in Case Crime No.328A/2013 was registered on 06.09.2013 at18.15 hours. The name of second respondent is no doubt mentioned inthe FIR and overt act is attributed to him. It is clear from the record thatduring the course of investigation, the Investigating Officer recorded thestatements of witnesses namely Rajesh Kumar, Nizamuddin, NandKishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and otherseven witnesses who have stated that respondent No.2 was not presentat the place of occurrence at the time of the incident. The InvestigatingOfficer has also recorded the statement of one Shiv Kumar Gupta andSandeep Gupta who are working in the same office in which respondentNo.2 was employed who had stated that respondent No.2 was in theoffice at the time of incident. Based on the statements recorded fromthe witnesses, the Investigating Officer found that the second respondentwas posted on the post of Junior Engineer in the Bridge ConstructionUnit of Bridge Corporation, Lucknow and he usually resided there andon 06.09.2013, he was present at his workplace and discharging hisofficial duties. Based on the materials collected during the investigation,the Investigating Officer recorded the finding that on the date and timeof incident, Subhash Chandra Shukla was not present at the place ofoccurrence. Accordingly, the name of Subhash Chandra Shukla wasdropped when the first charge sheet was filed on 19.09.2014. Thesupplementary charge sheet was filed against Rahul Shukla on15.10.2014. Though the name of second respondent was mentioned inthe FIR, during investigation, it was thus found that the second respondentwas not present in the place of incident and on the basis of the findingsof the Investigating Officer, he was not charge sheeted. Be it noted thatthe appellant-complainant has not filed any protest petition then and there.During investigation, when it was found that the accused was not presentat the place of incident, the courts below were right in refusing to summonrespondent No.2 as an accused.

13. As pointed out by the trial court, PW-1 was examined onvarious dates from 22.10.2016 to 02.08.2017 and examined on ninehearing dates. Though, in his chief-examination on 22.10.2016, PW-1has stated about the presence of Subhash Chandra Shukla and attributingovert act to him that he had beaten the deceased Sangam Lal Mishrawith butt of home made pistol, on 28.02.2017, PW-1 in his cross-examination stated that Subhash Chandra Shukla was on duty at thattime. The relevant portion of the statement of PW-1 reads as under:-

CDEF

A“…..Subhash Chandra Shukla does not live in the house. Hedoes service/job. At the same time in Jigna Police Station DistrictMirjapur he was making bridge and due to this reason, he was onduty there…..”

As pointed out by the trial court and the High Court, PW-1 hasBmade contradictory statements in the course of his examination inconnection with the presence of Subhash Chandra Shukla.

14. Anand Kumar Mishra (PW-2) has been examined who is statedto be the eye witness. PW-2 has been working as Assistant Teacher(Shiksha Mitra). His duty time is from 07.00 am till 12.00 noon. PW-2Cthough stated that he was on leave on the date of occurrence i.e.06.09.2013, the trial court expressed doubts about his presence at thetime of occurrence. Considering the fact that PW-2 is working as ateacher and that PW-2 is co-accused in the cross case, the trial courtand the High Court expressed doubts about the evidence of PW-2 as tothe presence of the second respondent. The evidence brought on recordDduring trial does not prima facie show the complicity of respondentNo.2 in the occurrence and the High Court was justified in refusing tosummon respondent No.2 as an accused.15. The High Court and the trial court concurrently held that thematerials brought on record are not sufficient to summon the secondErespondent as an accused in the present case. No substantial ground ismade out warranting interference and the appeal is liable to be dismissed.

16. In the result, the appeal is dismissed. The trial court shallproceed with the trial in S.T. No.26 of 2015 in accordance with law. Wemake it clear that the findings of this Court in this appeal and the HighFCourt in the revision shall be construed only for the purpose ofconsideration of the appeal and revision respectively and the same shallnot be construed as expression of opinion on the merits of the maincase.

GDivya Pandey

Appeal dismissed.