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REPORTABLE

IN THE SUPREME COURT OF INDIA

   CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1327/2019 [@ SLP [CRL.] NO.1271/2017]

SHISHUPAL SINGH                         Appellant(s)

                               VERSUS

THE STATE OF UTTAR PRADESH & ANR. Respondent(s)

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. An FIR dated 04.09.2005 was registered in P.S. Khera Garh,

District Agra, Uttar Pradesh in respect of Crime Case No.331/05

under Sections 147,148,149,307,302,323,504 and 506 of IPC.

3. The police carried out investigation and filed a charge-

sheet.  While the trial was on, during the examination-in-chief

of PW-1, an order has been passed exercising power under Section

319 of the Cr.P.C. to summon the appellant as an accused.  This

order was sought to be assailed in a revision petition which was

dismissed.  Thus, the appellant has filed the present appeal.   

4. A perusal of the FIR would show that the complainant is PW-

1.  The role ascribed to the appellant was that he came with a

country made revolver at the site but the deceased Satyapal was

fired upon by two other accused which caused the death.  This is

what has been stated in the examination-in-chief of PW-1.  

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5. It is pointed out by learned counsel that PW-1 was the only

person  who  named  the  appellant  while  other  eye  witnesses

including the injured witness did not do so.   

6. A perusal of the order dated 02.09.2006 would show that what

is recorded is that the prosecution has given an application

under Section 319 of the Cr.P.C. This is admittedly not factually

correct.  The application was filed by the complainant aggrieved

by the dropping of the name of the appellant from the array of

accused on which orders have been passed.  The trial Court has

stated that the appellant was not summoned as an accused on the

basis of the charge-sheet which did not name him as an accused.

The  order  for  summoning  has  been  passed  on  the  following

rationale:

“In  the  present  case  PW-1,  has  stated  under  the

evidence given on oath that shishupal son of gitam

singh was also present alongwith other accused he

was carrying a country made revolver.  He had fired

upon  them  with  an  intention  to  kill  form  which

persons from their side have suffered injury. Them

of  this  accused  was  mentioned  in  the  written

complaint of the complainant and the FIR.  But the

police had not sent chargesheet against him. There

are sufficient grounds available for summoning the

accused shishupal son of Gitam Singh u/s 319 Cr.P.C.

application No.13 KH. Is fit to be admitted.”

7. The role ascribed to the appellant is also not correctly

reflected as it as been stated that he fired upon them with an

intention  to  kill  them.  This  is  not  what  was  stated  in  the

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complaint nor is it part of the testimony recorded of PW-1.  If

we  turn  to  the  order  of  the  High  Court  in  revision,  after

extracting the legal principles what has been observed is that

Section 319 Cr.P.C. is a power available to summon a person as an

accused even if he is not named in the FIR or in the charge-

sheet.

8. On hearing learned counsel for the parties, we are of the

view that there is a non-appreciation of the legal principles by

both the Courts below despite the same being referred to.  The

legal  principle  on  this  behalf  has  been  enunciated  in  the

judgment of this Court in Brijendra Singh and Others. v. State of

Rajasthan -  (2017) 7 SCC 706 following the Constitution Bench

judgment in Hardeep Singh v. State of Punjab & Ors. - (2014) 3

SCC 92.  It would suffice to reproduce para 13 as under:

“13. In order to answer the question, some of the

principles enunciated in  Hardeep Singh case may be

recapitulated: power under Section 319 CrPC can be

exercised by the trial Court at any stage during the

trial i.e. before the conclusion of trial, to summon

any person as an accused and face the trial in the

ongoing case, once the trial court finds that there

is some “evidence” against such a person on the basis

of which evidence it can be gathered that he appears

to be guilty of the offence.  The “evidence” herein

means the material that is brought before the Court

during  trial.   Insofar  as  the  material/evidence

collected  by  the  IO  at  the  stage  of  inquiry  is

concerned, it can be utilised for corroboration and

to  support  the  evidence  recorded  by  the  court  to

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invoke the power under Section 319 CrPC.  No doubt,

such  evidence  that  has  surfaced  in  examination  in

chief,  without  cross-examination  of  witnesses,  can

also be taken into consideration.  However, since it

is a discretionary power given to the court under

Section 319 CrPC and is also an extraordinary one,

same has to be exercised sparingly and only in those

cases where the circumstances of the case so warrant.

The degree of satisfaction is more than the degree

which  is  warranted  at  the  time  of  framing  of  the

charges  against  others  in  respect  of  whom  charge-

sheet  was  filed.   Only  where  strong  and  cogent

evidence occurs against a person from the evidence

led  before  the  court  that  such  power  should  be

exercised.  It is not to be exercised in a casual or

a cavalier manner.  The prima facie opinion which is

to  be  formed  requires  stronger  evidence  than  mere

probability of his complicity.”

9. The controversy generated was not whether power could or

could  not  be  exercised  under  Section  319  of  the  Cr.P.C.  but

whether the exercise, which was required to be undertaken by the

trial Court before exercising such power, had been completed or

not.

10. We thus set aside the orders of the High Court as well as

the trial Court leaving it open to the trial Court to consider

the issue of exercise of powers under Section 319 Cr.P.C. to

summon  the  appellant,  if  it  so  feels,  based  on  aforesaid

principles.

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11. The appeal is accordingly allowed leaving the parties to

bear their own costs.

……………………………...……….J.

[SANJAY KISHAN KAUL]

…………………………………...….J.

[K.M. JOSEPH]

NEW DELHI;

SEPTEMBER 03, 2019.