Vikas Rathi vs The State Of Uttar Pradesh

(Reportable) IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 644 OF 2023

Vikas Rathi …Appellant Versus

The State of U.P. & Anr. …Respondent

JUDGMENT

Rajesh Bindal, J.

1. The Order dated 16.05.2017 passed by the Allahabad

High Court is under challenge before this Court. By the

aforesaid order, Criminal Revision Petition was filed by the

respondent No.2 challenging the order dated 15.03.2017

whereby the application filed under Section 319 Cr.P.C. for

summoning the present appellant, was dismissed.

2. The High Court, vide impugned order had quashed the

Order dated 15.03.2017 and remanded the matter back to Signature Not Verified

the Trial Court for fresh examination.

Digitally signed by Anita Malhotra Date: 2023.03.02 17:24:12 IST Reason: 2

3. Learned counsel for the appellant submitted that the

appellant established his business of manufacture of tools in

the year 2003. A complaint was filed by respondent no.2

regarding murder of his brother Bachchu Prasad. It was

mentioned therein that he used to work in the appellant’s

firm. On the basis of the aforesaid complaint, FIR No.

480/2013 was registered against unknown persons. Nearly

two months after the complaint, wife of the deceased gave a

complaint to the Superintendent of Police, Ghaziabad

making false allegations against the appellant. The

appellant was given notices by the Investigating Officer.

Entire information sought was furnished by him. During

investigation, the police found an eye witness namely Rajesh

Kumar to the alleged murder whose statement was recorded

under Section 164 of the Code of Criminal Procedure. The

aforesaid fact was concealed by the complainant while

making complaint against the appellant . After completion of

investigation, the police filed chargesheet against two

accused persons namely Pannelal @ Panna Lal and Ombeer

Singh. The appellant was listed as a prosecution witness.

During trial, statements of various witnesses were recorded. 3

Even the appellant was examined as PW­6. None of the

witnesses stated anything against the appellant. After the

statement of the appellant (PW­6) was recorded, the

complainant filed an application under Section 319 of the

Cr.P.C. to summon the appellant as accused solely on the

basis of certain vague oral allegation by PW­1, PW­2 and

PW­3. After hearing arguments, the Trial Court dismissed

the aforesaid application vide order dated 15.03.2017. It is

the aforesaid order, which is under challenge in the present

appeal before this Court.

4. The argument raised by learned counsel for the

appellant is that the approach of the High Court in sending

matter back for examination afresh was not right as the

material which was available in the form of statements of

various witnesses could very well be appreciated to find out

as to whether any case was made out against the appellant

for summoning under Section 319 of the Cr.P.C. It is not

mere suspicion on the basis of which an additional accused

could be summoned. Only where strong and cogent

evidence is available against a person from the evidence

produced before the Court, which could lead to his 4

conviction, that such a power could be exercised. It could

not be exercised in a casual and cavalier manner.

5. In the absence thereof, the impugned order passed by

the High Court deserves to be set aside and the order passed

by the Trial Court, dismissing the application should be

upheld. In support of his arguments, reliance was placed on

judgments of this Court in Hardeep Singh and Ors. Vs.

State of Punjab & Ors., (2014) 3 SCC 92; Mohd. Shafi vs.

Mohd. Rafiq, (2007) 14 SCC 544; Sagar vs. State of U.P.

and Anr., (2022) 6 SCC 389; Kailash vs. State of

Rajasthan and Anr., (2008) 14 SCC 51.

6. He further submitted that the stage at which the

application was filed by the complainant to summon the

appellant as an additional accused, the trial was going to

conclude as the entire evidence had been led. Vide

judgment of the Trial Court dated 06.10.2017, even the

accused against whom the chargesheet was filed, were also

acquitted. It was on the basis of the sketchy evidence

produced by the prosecution before the trial court that the

appellant was sought to be summoned.

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7. On the other hand, learned counsel for the State and

the complainant submitted that a clear case was made out

against the appellant for summoning him as an additional

accused. The trial court had failed to exercise the

jurisdiction vested in it. No doubt, the High Court could

have corrected it but the matter was remanded back. The

material already on record could have been taken into

account. Had it been so, the appellant would have also

faced trial along with other accused or even could be tried

separately. However, the fact that the accused persons

against whom the chargesheet was filed were acquitted vide

judgment dated 06.10.2017, has not been disputed.

8. Heard learned counsel appearing for the parties and

perused the paper book.

9. The principles of law with reference to exercise of

jurisdiction under 319 Cr.P.C. are well settled.

10. The Constitution Bench in Hardeep Singh and Ors.’s

case (supra), opined as under:

“105. Power u/s 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the 6

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 may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence laid 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 laid before the court, not necessarily tested on the anvil of cross­examination, it requires much strong evidence that near 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 u/S 319 CrPC”.

(emphasis supplied)

11. In Sagar’s case (supra), it is stated as under:

“9. The Constitution Bench has given a caution that power under Section 319 of the Code 7

is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as notice above has to be applied is one which is more that 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….”

12. If the evidence already on record produced by the

prosecution is considered on the touchstone of law laid

down by the Constitution Bench of this Court in Hardeep

Singh & Ors. case (supra), it does not go beyond suspicion.

There is no eye­witness to the occurrence. All what has

been stated by PW­2 (brother of the deceased) is that the

deceased who was working with the appellant as Manager

though claimed to be a partner by the complainant, that

there was some dispute regarding money between the

appellant and the deceased. Rajesh Sharma whose

statement was got recorded by police under Section 164 of

the Cr.P.C. also retracted therefrom while appearing in court

as PW­5. He stated that it was recorded by the police under 8

threat of involvement in some false case. He also did not

raise any finger towards the appellant. Rather he was the

first person to visit the house of the deceased after the

murder and informed the appellant to reach there. He was

working as part time cook with the family of the deceased.

Without any material brought on record, the widow of the

deceased merely stated that she is sure that the appellant

had committed murder of her husband as there was no

other enemy. One of the brothers of the deceased who

appeared as PW­1, who was not present at the spot, did not

utter a single word against the appellant.

13. The aforesaid material was not sufficient if examined in

the light of the law laid down by this Court for summoning

of an additional accused in exercise of power under Section

319 of the Cr.P.C. to establish complicity of the appellant in

the crime.

14. After conclusion of the entire evidence and examination

of the material produced on record even against the charged

accused, the trial court had acquitted them vide judgment

dated 15.03.2017. It shows that material produced on 9

record was not even sufficient for conviction of the accused

against whom chargesheet was filed.

15. One of the arguments raised by learned counsel

appearing for the parties was that in the case in hand, the

High Court instead of appreciating the material placed on

record by the parties in the form of evidence to find out as to

whether a case was made out for summoning of the

appellant as an additional accused, remitted the matter

back to the trial court for consideration afresh. Remand in

such a matter will only result in prolonging the litigation.

The High Court only recorded that reasons assigned by the

trial court for rejecting the application were not sufficient. To

avoid delay, it would have been proper exercise of power in

case the High Court would have considered the material and

opine as to whether a case was made out for summoning of

additional accused. Whatever reasons have been recorded

by the trial court in the order so passed, may not have been

happily worded to the satisfaction of the High Court, but

that error could have been corrected in exercise of revisional

power.

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16. For the reasons mentioned above, the present appeal is

allowed. The impugned order passed by the High Court is

set aside and the application filed by the complainant for

summoning the appellant as an additional accused is

dismissed.

…..……….………………J. [Abhay S. Oka]

..…………………….……J. [Rajesh Bindal] New Delhi;

01.03.2023.