Ram Pal Singh & Ors. v. State of U.P. & Anr.
The Judgement of the Court was delivered by B
ALTAMAS KABIR, J.,
1. Leave granted.
2. In respect of an incident which took place on 1st Octo-
ber, 2006, in the day time at about 1.00 p.m., Kamlesh Singh c
(PW.1) lodged a complaint 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 ac- D
"'! cused persons, in a planned manner with common intention, -.c
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 in-
vestigation, 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, thereat-
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ter, committed to the Sessions Court for trial.
3. On 19th June, 2007, the deposition of K~mlesh Singh
(PW.1) was recorded by the learned Sessions Judge, Sitapur. F
The said witness reiterated the statements which had been
made by him in the First Information Report. It also appears that
on the 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 G
~ the said incident. The said application wa~ 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 H
A directing the trial Court to pass a fresh order in the light of the
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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 ap-
pellants herein under Section 319 Cr.P.C. )
5. The dismissal of the application was followed by a sec-
~
c ond 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
D by the High Court earlier on 29th August, 2007. In that view of
the matter, the High Court not only sought for an explanation r-- w
from the learned trial Judge for not complying with the afore-
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said order of the High Court, but after quashing the impugned
order dated 15
1
h September, 2007, directed the trial Court to
issue summons against Ram Pal Singh, Deepak Singh, Ajai
r 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
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F impugned in the instant appeal by the persons summoned un-
der Section 319 Cr.P.C.
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
G Kamlesh Singh (PW.1 ), they had been summoned under Sec-
tion 319 Cr.P.C. as accused in the sessions trial. Mr. Francis '-~
1 ... 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-wit-
H nesses who were said to have been present at the time of the "
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RAM PAL SINGH & ORS. V. STATE OF U.P. & ANR. 295
[ALTAMAS KABIR, J.]
i incident. He also urged that none of the eye-witnesses to the A
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 inci-
dent and had also sustained injury in the alleged assault, did B
not name any of the appellants as having participated in the
incident. Mr. Francis submitted that the order of the High Court
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 c 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 simi-
lar situation, the order of the High Court directing issuance of D
""I
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 condi-
~· tions for taking such action actually existed. Commission of an
offence by a person not facing trial must, therefore, appear to E
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 re-,,
~
gard had to be judicially exercised. This Court, while setting
aside the order of the High Court, inter alia, observed that be-
fore the_Court·exercises its discretionary jurisdiction in terms of F .Section_319 ~Cf:P.C., it must arrive at a satisfaction that there
exists a-possibility that the accused, so summoned, is in all like-
lihood liable to be convicted.
::9.: Mr. Francis submitted that while passing the impugned
~order, the High Court did not consider the fact that the applica- G
... tion made under Section 319 Cr.P.C. filed for summoning the
·appellants had been rejected on the ground that the injured wit-
ness·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 H
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....
A obligatory on the part of the learned Trial Judge to have sum
moned the appellants to face trial and has failed to do so against
the existing canons of law. Mr. Francis submitted that although
th.e High Court had intended the Trial Court to pass a fresh or
der along the lines suggested by it in its order dated 29th Au-
B · gust, 2007, the Trial Court had in defiance of the said order,
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recklessly passed the order dated 15 September, 2007, which
was no different from its earlier order refusing to summon the
appel.lants under Section 319 Cr.P.C.
10. Mr. Francis submitted that the hard stand taken by the
C High Court would. be evident from its order seeking an explana
tion 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 15
1
h September, 2007, the High Court directed the Trial Court
D to issue summons against the appellants herein for their _ap-.
pearance as accused in ST No.1163/2006 under Sections 302,
307 and 120-B l.P.C.
11. Mr. Francis submitted that while interpreting its own
order, the High Court made it clear that while passing a fresh
E order, the same was to be in lin~ with the observationsmade·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.
F 1·2. Opposing Mr. Francis's submissions, Mr. Pramod
Swarup, learned Counsel appearing on behalf of the respon
dents, 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
G 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 evi
dence 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.
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RAM PAL SINGH & ORS . .V. STATE OF U.P. & ANR. 297
[ALTAMAS KABIR, J.]
13. Mr. Swarup contended that in this case the appellants A
had been directly named not only in the F.1.R. but·also by the
complainant, Kamlesh Singh, who claimed to be an eye-wit
ness 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 s
persons under Section 319 Cr.P.C., whose complicity had been
shown from the evidence adduced during the trial. He submit-
ted that.only after being satisfied that the appellants had a posi
tive role to play in the incident, summons under Section 319
Cr.P.C. were issued to the appellants. He urged that the order C
of the High Court did not warrant any interference and the ap
peal was liable to be dismissed.
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14. We have carefully considered the submissions made
on behalf of the respective parties and the provisions of Sec
tion 319 Cr.P.C. anct have arrived at the conclusion that no in- D
terference is called for with the order passed by the High Court.
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 E
could be tried together with the accused, the Court may pro
ceed 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 evi- F
dence 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 mat-
ter.
17. In the instant case, although, the appellants were named
in the F.l.R., they were not named as accused in the charge,.
sheet during the trial. 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 H
298 :SUPREME:COVRT~EP.ORTS {2009]2'.S.C:R.
:A 'Manve-nder~Sir}Qh. :oespite~the :above, -the trjal .Court, ~on. two
::separate:occasions,· rejected:the:prayermade:by the:Hespon
:de·nrNo2'for£summonir19:the:appe1Jants ·herein.under:-Section
:319~Cr~."C.J-he--Hjgh:Court,:after:consideril}g.the:evidence:6f
=pw:1,"'Kamlesh$il}gh,:tho'-:Jght it·necessary·for.the~appellants
_;g ·to:be:summoned.
~18.-Although,:certain:other.·observations made.by the·Hjgh
.Court-r~gardiQgthe:orders~passed:by the"Trial.Court.could:and
~should·have:been:avoided,. we.·are.also:of the view that the·Hjgh
.Court ·had·not:committed~any~error in.directiQg. that the.appel-
.C · Jants:be:summoned:to~stand:tr!al:aloog with the;co-accused, in
·. view~of.the::ev.idence=ofP. W.1.:duril]g. the. trial itself.
19.·We,·. therefore,:dismiss'.the~appeaLand.uphold: the;di
rrection;given:by:the-Hjgh:Court·for£summonil]g: the appellants
l under:Section':31"9:Cr:P.:c.
~N.J. ·Appeal.:dismissed.
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