Ram Pal Singh & Ors vs State Of U.P. & Anr

p.m., Kamlesh Singh (PW.1) lodged a complaint 2

before the Station House Officer, Police Station

Sitapur, U.P., alleging that while his younger

brother, Brijesh Kumar Singh alias Bablu Singh

along with his brother-in-law Manvender Singh, was

going on foot towards Mani Chauraha through Gupta

Colony at Sitapur, U.P., the accused persons, in a

planned manner with common intention, attacked the

deceased and Manvender Singh. On account of such

assault, Brijesh Kumar Singh died on the spot and

Manvender Singh also sustained injuries. On

completion of investigation, the Investigating

Officer filed a challan against the accused persons

on 22nd October, 2006, under Section 307, 302 read

with Section 120-B IPC and the matter was,

thereafter, committed to the Sessions Court for

trial.

3. On 19th June, 2007, the deposition of Kamlesh

Singh (PW.1) was recorded by the learned Sessions

Judge, Sitapur. The said witness reiterated the

statements which had been made by him in the First

Information Report. It also appears that on the 3

same day, Kamlesh Singh filed an application under

Section 319 Cr.P.C. before the learned Sessions

Judge, Sitapur, for summoning the appellants herein

to face trial in respect of the said incident.

The said application was dismissed by the learned

Additional Sessions Judge on 5th July, 2007, and

against such order of dismissal, Kamlesh Singh

filed Criminal Revision No.413 of 2007, which was

disposed of by the High Court on 29th August, 2007,

by setting aside the impugned order and directing

the trial Court to pass a fresh order in the light

of the observations made in the order of the High

Court.

4. In compliance with the said order, the learned

Additional Sessions Judge re-heard the application

filed under Section 319 Cr.P.C. and by his order

dated 15th September, 2007, the learned Additional

Sessions Judge, once again, dismissed the

application filed by the respondent No.2 for

summoning the appellants herein under Section 319

Cr.P.C.

4

5. The dismissal of the application was followed

by a second criminal revision petition filed by the

respondent No.2 on 5th October, 2007, being No.549

of 2007 and after hearing the parties, the High

Court came to the conclusion that the fresh order

passed by the learned Additional Sessions Judge on

15th September, 2007, was in direct defiance of the

order passed by the High Court earlier on 29th

August, 2007. In that view of the matter, the High

Court not only sought for an explanation from the

learned trial Judge for not complying with the

aforesaid order of the High Court, but after

quashing the impugned order dated 15th September,

2007, directed the trial Court to issue summons

against Ram Pal Singh, Deepak Singh, Ajai Kumar

Singh and Anil Kumar Singh for their appearance as

accused in Sessions Trial No.1163 of 2006 under

Section 302, 307 and 120-B IPC.

6. It is the said order of the High Court which

has been impugned in the instant appeal by the

persons summoned under Section 319 Cr.P.C. 5

7. Mr. V.J. Francis, learned advocate, appearing

for the appellants, submitted that although the

appellants had not been named by any of the other

witnesses, only on the statement of Kamlesh Singh

(PW.1), they had been summoned under Section 319

Cr.P.C. as accused in the sessions trial. Mr.

Francis also submitted that the very presence of

Kamlesh Singh (PW.1) at the time of the incident

was highly doubtful as he had not named some of the

other persons named by other eye-witnesses who were

said to have been present at the time of the

incident. He also urged that none of the eye-

witnesses to the incident had named the appellants

in their statements made under Section 161 Cr.P.C.

Mr. Francis submitted that the High Court did not

also consider the fact that Manvender Singh, who

had been accompanying the deceased at the time of

the incident and had also sustained injury in the

alleged assault, did not name any of the appellants

as having participated in the incident. Mr.

Francis submitted that the order of the High Court 6

summoning the appellants under Section 319 Cr.P.C.

on the sole evidence of PW.1 whose presence at the

time of incident was highly doubtful, was erroneous

and was liable to be set aside.

8. In support of his submissions, Mr. Francis

referred to and relied on a recent decision of this

Court in the case of Mohd. Shafi vs. Mohd. Rafiq

(2007 (5) SCALE 611), wherein in a similar

situation, the order of the High Court directing

issuance of summons was set aside on the ground

that before the trial Court decided to take

recourse to the provisions of Section 319 Cr.P.C.,

it would have to be satisfied that the requisite

conditions for taking such action actually existed.

Commission of an offence by a person not facing

trial must, therefore, appear to the Court

concerned to be a certainty. It cannot be based on

an ipse dixit on the part of the Court and the

discretion in this regard had to be judicially

exercised. This Court, while setting aside the

order of the High Court, inter alia, observed that 7

before the Court exercises its discretionary

jurisdiction in terms of Section 319 Cr.P.C., it

must arrive at a satisfaction that there exists a

possibility that the accused, so summoned, is in

all likelihood liable to be convicted.

9. Mr. Francis submitted that while passing the

impugned order, the High Court did not consider the

fact that the application made under Section 319

Cr.P.C. filed for summoning the appellants had been

rejected on the ground that the injured witness

Manvendra Singh had not indicated their complicity

with the incident in his statement under Section

161 Cr.P.C. On the other hand, the High Court came

to the conclusion that it was obligatory on the

part of the learned Trial Judge to have summoned

the appellants to face trial and has failed to do

so against the existing canons of law. Mr. Francis

submitted that although the High Court had intended

the Trial Court to pass a fresh order along the

lines suggested by it in its order dated 29th

August, 2007, the Trial Court had in defiance of 8

the said order, recklessly passed the order dated

15th September, 2007, which was no different from

its earlier order refusing to summon the appellants

under Section 319 Cr.P.C.

10. Mr. Francis submitted that the hard stand taken

by the High Court would be evident from its order

seeking an explanation from the Trial Judge for not

complying with the intent of the Court, as clearly

indicated in the order of 29th August, 2007. Apart

from quashing the second order passed by the Trial

Judge on 15th September, 2007, the High Court

directed the Trial Court to issue summons against

the appellants herein for their appearance as

accused in ST No.1163/2006 under Sections 302, 307

and 120-B I.P.C.

11. Mr. Francis submitted that while interpreting

its own order, the High Court made it clear that 9

while passing a fresh order, the same was to be in

line with the observations made by the High Court.

Mr. Francis submitted that this approach of the

High Court was completely erroneous since the

discretion to decide afresh had to be left to the

trial Court.

12. Opposing Mr. Francis's submissions, Mr. Pramod

Swarup, learned Counsel appearing on behalf of the

respondents, urged that in order to invoke the

provisions of Section 319 Cr.P.C., all that was

required to be seen was whether the persons to be

summoned were in some way implicated in the

incident for which the trial was being conducted,

and, if so, whether such accused had been named by

any of the witnesses for the prosecution. It is

also required to be seen that the evidence was of

such nature that by relying upon the same, there

was a strong possibility of the persons being added

as accused of being ultimately convicted. 10

13. Mr. Swarup contended that in this case the

appellants had been directly named not only in the

F.I.R. but also by the complainant, Kamlesh Singh,

who claimed to be an eye-witness of the murder of

his brother committed in broad day-light. Mr.

Swarup submitted that nothing further was required

to be done to satisfy the Court for issuing summons

to the named persons under Section 319 Cr.P.C.,

whose complicity had been shown from the evidence

adduced during the trial. He submitted that only

after being satisfied that the appellants had a

positive role to play in the incident, summons

under Section 319 Cr.P.C. were issued to the

appellants. He urged that the order of the High

Court did not warrant any interference and the

appeal was liable to be dismissed.

14. We have carefully considered the submissions

made on behalf of the respective parties and the

provisions of Section 319 Cr.P.C. and have arrived

at the conclusion that no interference is called

for with the order passed by the High Court. 11

15. The ingredients of Section 319 are unambiguous

and indicate that where in the course of 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 he has

committed.

16. All that is required by the Court for invoking

its powers under Section 319 Cr.P.C.is to be

satisfied that from the evidence adduced before it,

a person against whom no charge had been framed,

but whose complicity appears to be clear, should be

tried together with the accused. It is also clear

that the discretion is left to the Court to take a

decision on the matter.

17. In the instant case, although, the appellants

were named in the F.I.R., they were not named as

accused in the charge-sheet during the trial. 12

However, P.W.1 in his evidence, has named the

appellants as persons who were involved in the

incident causing the death of Brijesh Kumar Singh

and injuries to Manvender Singh. Despite the

above, the trial Court, on two separate occasions,

rejected the prayer made by the Respondent No.2 for

summoning the appellants herein under Section 319

Cr.P.C. The High Court, after considering the

evidence of P.W.1, Kamlesh Singh, thought it

necessary for the appellants to be summoned.

18. Although, certain other observations made by

the High Court regarding the orders passed by the

Trial Court could and should have been avoided, we

are also of the view that the High Court had not

committed any error in directing that the

appellants be summoned to stand trial along with

the co-accused, in view of the evidence of P.W.1

during the trial itself.

13

19. We, therefore, dismiss the appeal and uphold

the direction given by the High Court for summoning

the appellants under Section 319 Cr.P.C.

________________J.

(ALTAMAS KABIR)

________________J.

(CYRIAC JOSEPH) New Delhi Dated: 13.02.2009.