Shiv Prakash Mishra vs The State Of Uttar Pradesh

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

JUDGMENT

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 Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2019.07.23 Shukla under Section 319 Cr.P.C. as an accused. 16:56:18 IST Reason:

3. Brief facts which led to filing of this appeal are as under:- 1

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)

2 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

3 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

5 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.

7 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

8 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

9 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

10 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

11 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…..”

12 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

13 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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