IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.      Of 2009 (Arising out of Special Leave Petition (Crl.)

No.7189 of 2007)

Ram Pal Singh & Ors.          …Appellants  

Vs.

State of U.P. & Anr.       …Respondents

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.  

2. In 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

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.    

3. On 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

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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.  

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 appellants herein under Section 319

Cr.P.C.  

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5. The 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.   

6. It 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.

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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 Kamlesh Singh

(PW.1), they had been summoned under Section 319

Cr.P.C.  as  accused  in  the  sessions  trial.   Mr.

Francis 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-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

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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.  

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  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 actually existed.

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

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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.   

9. Mr. 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

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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.

10. Mr. 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.  

11. Mr. Francis submitted that while interpreting

its own order, the High Court made it clear that

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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.   

12. Opposing 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 convicted.

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13. Mr.  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.   

14. We  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 Court.   

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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 could

be tried together with the accused, the Court may

proceed 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 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.  

17.  In 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.

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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.

18. Although,  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.

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19. We, therefore, dismiss the appeal and uphold

the direction given by the High Court for summoning

the appellants under Section 319 Cr.P.C.   

________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 13.02.2009.                 

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