Bank & ANR. Vs. Brijlal Das  INSC 323 (13 February 2009)
JURISDICTION Criminal Appeal No. 977 Of 2009 (Arising out of Special Leave
Petition (Crl.) No.7189 of 2007) Ram Pal Singh & Ors. ...Appellants State
of U.P. & Anr. ...Respondents
respect of an incident which took place on 1st October, 2006, in the day time
at about 1.00 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.
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.
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.
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.
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.
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.
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 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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
therefore, dismiss the appeal and uphold the direction given by the High Court
for summoning the appellants under Section 319 Cr.P.C.