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CASE NO.: Appeal (crl.)  1019 of 2007

PETITIONER: Rajendra Singh

RESPONDENT: State of U.P. & Anr

DATE OF JUDGMENT: 06/08/2007

BENCH: G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1019 OF 2007 (Arising out of Special Leave Petition (Crl.) No.3182 of 2006)

G. P. MATHUR, J.

       Leave granted.  

2.      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  aside.    

3.      In 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 murder case.   Nigam 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.  However, Nigam Singh succumbed to his injuries shortly thereafter.   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

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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.  

4.      Kapil 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 : "The 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.   The 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."   

       The 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 : "No 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 case."   

       Observing 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.

5.      We have heard Shri Manoj Goel, learned counsel for the  petitioner, Shri S.R. Singh, learned senior counsel for respondent No.  2 and 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

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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  under : "Section 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.   The 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 it."

       In Joginder Singh v. State of Punjab (1979) 1 SCC 345 it was  held as under :

"The 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.   

       The 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  Section 169."

       In Kishun Singh v. State of Bihar (1993) 2 SCC 16, it was  observed: "11.  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. ........................"

       It is, 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

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been discharged at an earlier stage.

6.      The 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.   

7.      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 : "B wishes the Court to believe that at the time in  question, he was elsewhere.  He must prove it."

       This 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.   See Gurcharan 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.   

8.      Shri 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.   

9.      Shri 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

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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.   

10.     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 : "9.   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.  They 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

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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."

Therefore 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.  11.     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 cannot stand.    12.     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.   

13.     In 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.