Rajendra Singh Vs. State of U.P. & Anr  Insc 803 (6 August 2007)
Mathur & P.K. Balasubramanyan
APPEAL NO. 1019 OF 2007 (Arising out of Special Leave Petition (Crl.) No.3182
of 2006) G. P. MATHUR, J.
This appeal, by special leave, has been preferred against the judgment and
order dated 24.4.2006 of Allahabad High Court by which the petition filed by
the respondent No. 2 Kapil Dev Singh under Section 482 Cr.P.C. was allowed and
the order dated 26.5.2005 passed by the learned Sessions Judge, Allahabad under
Section 319 Cr.P.C. summoning him to face trial under Section 302 IPC was set
the morning hours between 6.30 a.m. and 7.00 a.m. on 15.12.1995, three persons, viz., the wife, son
and brother-in-law of Nigam Singh were murdered. An FIR of the incident was
lodged by Nigam Singh at 8.10
a.m. on 15.12.1995 at
P.S. George Town, Allahabad. After investigation, charge sheet
was submitted and four persons, viz., Kapil Dev Singh (respondent No. 2
herein), Suresh Singh, Sukhpal Singh and Kamlesh Singh were put up for trial.
The present incident took place on 16.3.2002 when the trial of the aforesaid tripple
murder case was going on. According to the case of the prosecution, the accused
of the tripple murder case were putting pressure on Nigam Singh not to give
evidence in the said case. It is alleged that at about 6.00 p.m. on 16.3.2002, the first informant Rajendra Singh
(appellant herein) and his brother Ajay Singh were returning after getting
their field harvested. At that time, Nigam Singh also arrived there on a
scooter. The accused in the present case, viz., Kapil Dev Singh (respondent No.
2 herein) and Daya Singh stopped him and asked him not to give evidence in the tripple
Singh, however, did not agree to their suggestion not to give evidence and
tried to move ahead on his scooter. Kapil Dev Singh then instigated his brother
Daya Singh, who fired upon Nigam Singh from a country-made pistol. In spite of
receiving the gun shot injury, Nigam Singh managed to escape from there and
informed about the incident to his family members. Meanwhile, the first
informant, Rajendra Singh, and his elder brother Ajay Singh also reached there.
Nigam Singh succumbed to his injuries shortly thereafter.
Rajendra Singh lodged an FIR of the incident at 8.30 p.m. on 16.3.2002 at P.S. Pipri. The police after investigation
submitted charge-sheet only against Daya Singh and not against Kapil Dev Singh.
In the trial before the learned Sessions Judge, Allahabad, the statement of the
first informant, Rajendra Singh was recorded where he specifically stated about
the presence of Kapil Dev Singh and the role played by him in the incident. The
prosecution then moved an application for summoning Kapil Dev Singh under
Section 319 Cr.P.C. The learned Sessions Judge held that Kapil Dev Singh is
named in the FIR and the first informant Rajendra Singh in his statement had
corroborated the version given in the FIR and had assigned the role of
exhortation to him and after taking note of the relevant law on the subject,
allowed the application by the order dated 26.5.2005 and directed that Kapil
Dev Singh be summoned to face the trial.
Dev Singh then filed a petition under Section 482 Cr.P.C. for quashing the
aforesaid order before the High Court. It appears that in the petition under
Section 482 Cr.P.C. the statements of certain witnesses who had been examined
by the investigating officer during the course of investigation were annexed
which included the statement of S.L. Yadav, Vijay Kumar Singh, Up Nagar Ayukta,
Shankar Lal Jaiswal, Mukhya Nagar Adhikari and some other officials of Nagar Nigam,
who had stated that respondent No. 2 Kapil Dev Singh was working as Sahayak Nagar
Ayukta, Nagar Nigam, Allahabad and between 4.30 p.m. and 5.30 p.m. on
16.3.2002, he was attending a meeting in the Nagar Nigam. After referring to
the aforesaid statements, the High Court concluded as under:
statement of those witnesses do not leave any room for doubt that the applicant
was present in the meeting of Nagar Nigam at the time of incident and could not
reach the place of occurrence which is 35 Kms. from Allahabad.
applicant is a brilliant student and has good academic career and has also been
selected in U.P. Public Services Examination. The family of the applicant is
well educated family. The father of the applicant was also selected in
Provincial Civil Services (Judicial) in Uttar Pradesh in 1983 but because of
the animosity prevalent in the village, he was murdered. Now the said animosity
is the result of the present case."
High Court then referred to Municipal Corporation of Delhi v. Ram Kishan Rohtagi
(1983) 1 SCC 1, wherein it is observed that power under Section 319 is really
an extraordinary power which should be used very sparingly and only if
compelling reasons exist for taking cognizance against the other person against
whom action has not been taken. On the basis of the aforesaid authority, the
High Court posed the question whether compelling ground existed or not and
whether there was no option but to summon the accused. Thereafter, the High
Court referred to the statements of six persons which had been recorded by the
investigating officer, which showed that between 4.30 p.m. and 5.30
p.m. Kapil Dev Singh
was present in the meeting and then observed as under :
doubt, it might have been a probable defence which the court could not consider
at the time of proceeding under Section 319 Cr.P.C. but as the power has to be
exercised sparingly, the Court should have examined all the aspects of the
as above, the High Court allowed the petition under Section 482 Cr.P.C. and
quashed the order dated 26.5.2005 passed by the learned Sessions Judge under
Section 319 Cr.P.C. summoning the respondent No. 2 to face the trial.
have heard Shri Manoj Goel, learned counsel for the petitioner, Shri S.R.
Singh, learned senior counsel for respondent No.
have perused the record. Sub-section (1) of Section 319 says that where in the
course of any enquiry 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.
The scope of power under Section 319 Cr.P.C. was explained in Municipal
Corporation of Delhi v. Ram Kishan Rohtagi (1983) 1 SCC 1 and it was held as
319 is really an extraordinary power which is conferred on the Court and should
be used very sparingly and only if compelling reasons exist for taking
cognizance against the other person against whom action has not been taken. If
the prosecution can at any stage produce evidence which satisfies the court
that the other accused or those who have not been arrayed as accused against
whom proceedings have been quashed have also committed the offence, the court
can take cognizance against them and try them along with the other accused.
mere fact that the proceedings have been quashed under Section 482 against some
of the accused persons (respondents 2 to 5) will not prevent the court from
exercising its discretion if it is fully satisfied that a case for taking
cognizance against them has been made out on the additional evidence led before
Singh v. State of Punjab (1979) 1 SCC 345 it was held as under
summoning of additional persons by the Sessions Court under Section 319 of
those who appear to be involved in the crime from the evidence led during the
trial and directing them to stand their trial along with those who have been
committed, must be regarded as incidental to the cognizance under Section 193
and part of the normal process that follows it. Section 319(4)(b) enacts a
deeming provision in that behalf dispensing with the formal committal order
against the newly added accused.
phrase "any person not being the accused" in Section 319 does not
exclude from its operation an accused who has been released by the police under
Singh v. State of Bihar (1993) 2 SCC 16, it was observed:
On a plain reading of Sub-section (1) of Section 319 there can be no doubt that
it must appear from the evidence tendered in the course of any inquiry or trial
that any person not being the accused has committed any offence for which he
could be tried together with the accused. This power, it seems clear to us, can
be exercised only if it so appears from the evidence at the trial and not
otherwise. Therefore, this sub-section contemplates existence of some evidence
appearing in the course of trial wherefrom the Court can prima facie conclude
that the person not arraigned before it is also involved in the commission of
the crime for which he can be tried with those already named by the police.
Even a person who has earlier been discharged would fall within the sweep of
the power conferred by Section 319 of the Code. ........................"
therefore, clear that if the evidence tendered in the course of any enquiry or
trial shows that any person not being the accused has committed any offence for
which he could be tried together with the accused, he can be summoned to face
trial even though he may not have been charge sheeted by the investigating
agency or may have been discharged at an earlier stage.
High Court has basically relied upon the statements of six witnesses which had
been recorded by the investigating officer under Section 161 Cr.P.C. to record
a positive finding that the respondent could not have been present at the scene
of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr.P.C.
is not a substantive piece of evidence. In view of the proviso to sub-section
(1) of section 162 Cr.P.C., the statement can be used only for the limited
purpose of contradicting the maker thereof in the manner laid down in the said
proviso. Therefore, the High Court committed a manifest error of law in relying
upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh
could not have been present at the scene of commission of the crime.
That apart, the plea taken by the respondent Kapil Dev Singh in his petition
under Section 482 Cr.P.C. was that of alibi. Section 103 of the Evidence Act
says that the burden of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence, unless it is proved by any law
that the proof of that fact lie on any particular person. The second
illustration to section 103 reads as under :
wishes the Court to believe that at the time in question, he was elsewhere. He
must prove it."
provision makes it obvious that the burden of establishing the plea of alibi
set up by the respondent No. 2 in the petition filed by him under Section 482 Cr.P.C.
before the High Court lay squarely upon him. There is hardly any doubt
regarding this legal proposition.
Singh v. State of Punjab AIR 1956 SC 460, Chandrika Prasad
Singh v. State of Bihar AIR 1972 SC 109 and State of Haryana v. Sher Singh AIR 1981 SC 1021.
This could be done by leading evidence in the trial and not by filing some
affidavits before the High Court. In such a case the prosecution would have got
an opportunity to cross-examine those witnesses and demonstrate that their
testimony was not correct. Learned counsel for the appellant has submitted that
in fact no affidavits were filed in the High Court but what was filed were
copies of two or three affidavits which were given by some persons before the
Superintendent of Police, Allahabad. Thus, there was absolutely no legal
evidence in support of the plea of alibi of Kapil Dev Singh, which the High
Court chose to rely upon and accept for the purpose of quashing the order
passed by the learned Sessions Judge.
S.R. Singh, learned senior counsel for the respondent No. 2, has submitted that
though the statements recorded by the investigating officer under Section 161 Cr.P.C.
are not substantive piece of evidence, but the High Court while exercising
power under Section 482 Cr.P.C. could have looked into attending circumstances,
namely, the statements and the affidavits filed by some of these persons before
the Superintendent of Police, Allahabad. Learned counsel has also submitted
that the summoning order itself must exhibit special circumstances warranting
such a course of action and if no special circumstances are demonstrated in the
order, the summoning order is per se illegal. Learned counsel has further
submitted that the trial of co-accused Daya Singh has concluded and he has been
acquitted by the learned Sessions Judge and in such circumstances it will not
be a sound exercise of discretion to set aside the order passed by the High
Court and restore that of the learned Sessions Judge.
Manoj Goel, learned counsel for the appellant, has, on the other hand,
submitted that the name of Kapil Dev Singh was mentioned in the FIR and a
specific role was attributed to him. In his statement in Court the first
informant Rajendra Singh had corroborated the version given in the FIR and had
not only mentioned about the presence of Kapil Dev Singh at the scene of
commission of the crime but had assigned specific role to him. He has also
submitted that having regard to the background of the case, viz., the earlier tripple
murder case in which Nigam Singh was the first informant and the main
eye-witness, the accused had a strong motive to commit his murder. Learned
counsel has thus submitted that the ingredients of Section 319 Cr.P.C. were
fully satisfied and the learned Sessions Judge had rightly exercised the power
and had summoned the accused. Shri Goel has also submitted that in the present
case, the learned Sessions Judge while acquitting the co-accused Daya Singh in
the trial which concluded much later has referred to the impugned order of the
High Court dated 24.4.2006 at several places in the judgment and has observed
that fifty per cent of the prosecution case has already been disbelieved by the
High Court. Learned counsel has also made a statement that the first informant Rajendra
Singh has filed Criminal Revision No.1828 of 2007 (Rajendra Singh v. Daya
Singh) challenging the acquittal of Daya Singh which has been admitted by the
High Court on 11.7.2007 and is pending for hearing.
Having considered the submissions made by learned counsel for the parties, we
are of the opinion that the statements of the witnesses under Section 161 Cr.P.C.
being wholly inadmissible in evidence could not at all be taken into
consideration. The High Court relied upon wholly inadmissible evidence to set
aside the order passed by the learned Sessions Judge. That apart, no finding on
a plea of alibi can be recorded by the High Court for the first time in a
petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the
plea of alibi lay upon the accused which he could do by leading evidence in the
trial and not by filing some affidavits or statements purported to have been
recorded under Section 161 Cr.P.C. The whole procedure adopted by the High
Court is clearly illegal and cannot be sustained. The other argument based upon
the acquittal of co-accused Daya Singh has also no merits. The question as to
whether an order passed under Section 319 Cr.P.C. would cease to be operative
if the trial of the co-accused has been concluded, has been considered in Shashikant
Singh v. Tarkeshwar Singh (2002) 5 SCC 738. and it was held as under in para 9
of the report :
The intention of the provision here is that where in the course of any enquiry
into, or trial of, an offence, it appears to the court from the evidence that
any person not being the accused has committed any offence, the court may
proceed against him for the offence which he appears to have committed. At the
stage, the court would consider that such a person could be tried together with
the accused who is already before the Court facing the trial. The safeguard
provided in respect of such person is that, the proceedings right from the
beginning have mandatorily to be commenced afresh and the witnesses re-heard.
In short, there has to be a de novo trial against him. The provision of de novo
trial is mandatory. It vitally affects the rights of a person so brought before
the Court. It would not be sufficient to only tender the witnesses for the
cross-examination of such a person.
have to be examined afresh. Fresh examination in chief and not only their
presentation for the purpose of the cross-examination of the newly added
accused is the mandate of Section 319(4). The words 'could be tried together
with the accused' in Section 319(1), appear to be only directory. 'Could be'
cannot under these circumstances be held to be 'must be'. The provision cannot
be interpreted to mean that since the trial in respect of a person who was
before the Court has concluded with the result that the newly added person
cannot be tried together with the accused who was before the Court when order
under Section 319(1) was passed, the order would become ineffective and
inoperative, nullifying the opinion earlier formed by the Court on the basis of
evidence before it that the newly added person appears to have committed the
offence resulting in an order for his being brought before the Court."
the mere fact that trial of co-accused Daya Singh has concluded cannot have the
effect of nullifying or making the order passed by the learned Sessions Judge
on 26.5.2005 as infructuous.
The learned Sessions Judge trying the case of co-accused Daya Singh seems to
have been swayed by the fact that the High Court had not only set aside the
order passed by the learned Sessions Judge under Section 319 Cr.P.C. by which
the respondent No. 2 Kapil Dev Singh was summoned to face trial but had also
recorded a finding in his favour that he was present in a meeting in Nagar Nigam,
Allahabad. Since we are setting aside the order of the High Court, the
aforesaid finding of the learned Sessions Judge would automatically go and
Having regard to the facts and circumstances of the case and in the interest of
justice, we consider it desirable that the criminal revision filed by Rajendra
Singh against the acquittal of Daya Singh should be heard by the High Court as
expeditiously as possible. We accordingly request the High Court to decide
Criminal Revision No.1828 of 2007 (Rajendra Singh v. Daya Singh) expeditiously
preferably within a period of four months of presentation of a certified copy
of this order before the High Court.
the result, the appeal succeeds and is hereby allowed. The impugned judgment
and order dated 24.4.2006 of the High Court is set aside and the order dated
26.5.2005 passed by the learned Sessions Judge, Allahabad, summoning respondent
No. 2 Kapil Dev Singh to face trial is restored.