REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1105     2019 (Arising out of SLP(Crl.) No.2168 of 2019)

SHIV PRAKASH MISHRA                    ...Appellant

VERSUS

STATE OF UTTAR PRADESH  AND ANOTHER                            …Respondents

                J U D G M E N T

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:-

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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)

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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

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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.

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5. The  learned  counsel  for  the  appellant-complainant  has

submitted that the complainant has clearly named all the five

accused persons and the name of second respondent is clearly

mentioned in the FIR in Case Crime No.328A/2013.   It  was

submitted that despite there being positive direct version of the

prosecution witnesses with regard to the attack by respondent

No.2 on the person of deceased, the Investigating Officer has

expunged his name from the charge sheet on the basis of the

statement of the accused who is working as Junior Engineer in

the office of Setu Nigam, Mirzapur.  It was submitted that the

High Court erred in not considering the statement of witnesses

PWs 1 to 3 who in their evidence has specifically attributed the

overt act to respondent No.2.  It was contended that the High

Court failed to appreciate that the distance of place where the

second respondent was working was only about 30 Kms. and

while so, the High Court erred in placing reliance upon Bijendra

Singh.

6. The learned counsel appearing for the first  respondent-

State  of  Uttar  Pradesh  has  submitted  that  after  proper

investigation,  C.B.C.I.D.  has  filed  the  charge  sheet  against

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three accused persons namely Sashendra Shukla,  Devender

Shukla  and  Laxmi  Kant  Shukla  on  19.09.2014  and

supplementary charge sheet was filed against Rahul Shukla on

15.10.2014.   The  learned  counsel  submitted  that  during  the

investigation,  from  the  examination  of  number  of  witnesses

employed in  the office of  respondent  No.2,  the Investigating

Officer  found  that  respondent  No.2  was  not  involved  in  the

incident  and therefore,  charge sheet  was filed  against  other

accused  and  case  against  the  second  respondent  was

dropped.   Placing  reliance  upon  Hardeep  Singh  v.  State  of

Punjab and others (2014)  3 SCC 92 and  Brijendra Singh v.

State of Rajasthan (2017) 7 SCC 706, it was submitted that the

power under Section 319 Cr.P.C. has to be exercised sparingly

only  on  the  existence  of  compelling  reasons.  It  was  further

submitted that an order under Section 319 Cr.P.C. would not be

made merely on the ground that some evidence has come on

record implicating the person sought to be summoned.   

7. We  have  carefully  considered  the  submissions  and

perused the impugned order and other materials on record.

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8. Before  considering  the  merits  of  the  contention,  it  is

necessary  to  refer  to  Section  319  Cr.P.C.  which  reads  as

under:-

“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.

……….

(4) Where  the  Court  proceeds  against  any  person  under

sub- section (1), then-

(a) the proceedings in respect of such person shall  be

commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may

proceed  as  if  such  person  had  been  an  accused

person  when  the  Court  took  cognizance  of  the

offence  upon  which  the  inquiry  or  trial  was

commenced.”

By reading of  Section 319 Cr.P.C.,  it  is  clear  that  the power

under Section 319 Cr.P.C. can be exercised by the trial court at

any stage during trial to summon any person as an accused to

face the trial if it appears from the evidence that such person

has committed  any  offence  for  which  such person  could  be

tried together with the accused.

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9. The standard of proof employed for summoning a person

as an accused person under Section 319 Cr.P.C. is higher than

the standard of proof employed for framing a charge against

the accused person.   The power  under  Section  319 Cr.P.C.

should be exercised sparingly.  As held in  Kailash v. State of

Rajasthan  and  another (2008)  14  SCC  51,  “the  power  of

summoning an additional accused under Section 319 Cr.P.C.

should be exercised sparingly.  The key words in Section are “it

appears from the evidence”….”any person”….”has committed

any offence”.  It  is  not,  therefore,  that  merely  because some

witnesses have mentioned the name of  such person or  that

there is some material against that person, the discretion under

Section 319 Cr.P.C. would be used by the court.”   

10. As  held  by  the  Constitution  Bench  in  para  (105)  in

Hardeep  Singh, the  power  under  Section  319  Cr.P.C.  is

discretionary and is to be exercised sparingly which reads as

under:-

“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

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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  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.  In  Section  319

CrPC the purpose of providing if “it appears from the evidence

that any person not being the accused has committed any

offence” is clear from the words “for which such person could

be tried together with the accused”. The words used are not

“for  which  such  person  could  be  convicted”.  There  is,

therefore,  no scope for  the court  acting under Section 319

CrPC to form any opinion as 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 principles

enunciated in Hardeep Singh case (2014) 3 SCC 92 may be

recapitulated: ….. 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

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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.”

12. In  the  light  of  the  above  principles,  considering  the

present case, having regard to the contradictory statements of

the witnesses and other circumstances,  in our view, the trial

court  and  the  High  Court  rightly  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 at  18.15 hours.

The name of second respondent is no doubt mentioned in the

FIR and overt act is attributed to him.  It is clear from the record

that during the course of investigation, the Investigating Officer

recorded the statements of witnesses namely Rajesh Kumar,

Nizamuddin,  Nand Kishore,  Tribhuwan Singh,  Bintu  Rai  and

Nageshwar Kumar and other seven witnesses who have stated

that  respondent  No.2  was  not  present  at  the  place  of

occurrence at the time of the incident.  The Investigating Officer

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has also recorded the statement of one Shiv Kumar Gupta and

Sandeep Gupta who are working in the same office in which

respondent  No.2  was  employed  who  had  stated  that

respondent  No.2  was  in  the  office  at  the  time  of  incident.

Based  on  the  statements  recorded  from  the  witnesses,  the

Investigating  Officer  found  that  the  second  respondent  was

posted  on  the  post  of  Junior  Engineer  in  the  Bridge

Construction  Unit  of  Bridge  Corporation,  Lucknow  and  he

usually resided there and on 06.09.2013, he was present at his

workplace and discharging his  official  duties.   Based on the

materials  collected  during  the  investigation,  the  Investigating

Officer  recorded  the  finding  that  on  the  date  and  time  of

incident,  Subhash  Chandra  Shukla  was  not  present  at  the

place  of  occurrence.   Accordingly,  the  name  of  Subhash

Chandra Shukla was dropped when the first charge sheet was

filed on 19.09.2014.  The supplementary charge sheet was filed

against  Rahul  Shukla  on  15.10.2014.   Though  the  name of

second  respondent  was  mentioned  in  the  FIR,  during

investigation, it was thus found that the second respondent was

not present  in the place of  incident  and on the basis of  the

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findings of the Investigating Officer, he was not charge sheeted.

Be it  noted that  the  appellant-complainant  has  not  filed  any

protest petition then and there.  During investigation, when it

was found that the accused was not present at the place of

incident,  the  courts  below were right  in  refusing to  summon

respondent No.2 as an accused.

13. As pointed out by the trial court, PW-1 was examined on

various dates from 22.10.2016 to 02.08.2017 and examined on

nine  hearing  dates.   Though,  in  his  chief-examination  on

22.10.2016, PW-1 has stated about the presence of Subhash

Chandra Shukla and attributing overt  act  to him that he had

beaten the deceased Sangam Lal  Mishra with  butt  of  home

made  pistol,  on  28.02.2017,  PW-1  in  his  cross-examination

stated that Subhash Chandra Shukla was on duty at that time.

The relevant portion of the statement of PW-1 reads as under:-

“…..Subhash Chandra Shukla does not live in the house.  He

does service/job.  At the same time in Jigna Police Station

District Mirjapur he was making bridge and due to this reason,

he was on duty there…..”

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As pointed out by the trial court and the High Court, PW-1 has

made contradictory statements in the course of his examination

in connection with the presence of Subhash Chandra Shukla.  

14. Anand Kumar Mishra (PW-2) has been examined who is

stated  to  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-2 though 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 the time of occurrence.

Considering the fact that PW-2 is working as a teacher and that

PW-2 is a co-accused in the cross case, the trial court and the

High Court expressed doubts about the evidence of PW-2 as to

the presence of the second respondent.  The evidence brought

on record during trial does not prima facie show the complicity

of respondent No.2 in the occurrence and the High Court was

justified in refusing to summon respondent No.2 as an accused.

15. The High Court and the trial court concurrently held that

the materials brought on record are not sufficient to summon

the second respondent as an accused in the present case.  No

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substantial ground is made out warranting interference and the

appeal is liable to be dismissed.

16. In the result, the appeal is dismissed.  The trial court shall

proceed with the trial in S.T. No.26 of 2015 in accordance with

law.   We make it  clear  that  the findings of  this  Court  in this

appeal and the High Court in the revision shall  be construed

only for the purpose of consideration of the appeal and revision

respectively and the same shall not be construed as expression

of opinion on the merits of the main case.

…………………………..J.                                                                   [R. BANUMATHI]

…………………………..J.                                                              [A.S. BOPANNA]

New Delhi; July 23, 2019

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