Full Judgment Text
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(Reportable)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 644 OF 2023
Vikas Rathi …Appellant
Versus
The State of U.P. & Anr. …Respondent
J U D G M E N T
Rajesh Bindal, J.
1. The Order dated 16.05.2017 passed by the Allahabad
High Court is under challenge before this Court. By the
aforesaid order, Criminal Revision Petition was filed by the
respondent No.2 challenging the order dated 15.03.2017
whereby the application filed under Section 319 Cr.P.C. for
summoning the present appellant, was dismissed.
2. The High Court, vide impugned order had quashed the
Order dated 15.03.2017 and remanded the matter back to
Signature Not Verified
the Trial Court for fresh examination.
Digitally signed by
Anita Malhotra
Date: 2023.03.02
17:24:12 IST
Reason:
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3. Learned counsel for the appellant submitted that the
appellant established his business of manufacture of tools in
the year 2003. A complaint was filed by respondent no.2
regarding murder of his brother Bachchu Prasad. It was
mentioned therein that he used to work in the appellant’s
firm. On the basis of the aforesaid complaint, FIR No.
480/2013 was registered against unknown persons. Nearly
two months after the complaint, wife of the deceased gave a
complaint to the Superintendent of Police, Ghaziabad
making false allegations against the appellant. The
appellant was given notices by the Investigating Officer.
Entire information sought was furnished by him. During
investigation, the police found an eye witness namely Rajesh
Kumar to the alleged murder whose statement was recorded
under Section 164 of the Code of Criminal Procedure. The
aforesaid fact was concealed by the complainant while
making complaint against the appellant . After completion of
investigation, the police filed chargesheet against two
accused persons namely Pannelal @ Panna Lal and Ombeer
Singh. The appellant was listed as a prosecution witness.
During trial, statements of various witnesses were recorded.
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Even the appellant was examined as PW6. None of the
witnesses stated anything against the appellant. After the
statement of the appellant (PW6) was recorded, the
complainant filed an application under Section 319 of the
Cr.P.C. to summon the appellant as accused solely on the
basis of certain vague oral allegation by PW1, PW2 and
PW3. After hearing arguments, the Trial Court dismissed
the aforesaid application vide order dated 15.03.2017. It is
the aforesaid order, which is under challenge in the present
appeal before this Court.
4. The argument raised by learned counsel for the
appellant is that the approach of the High Court in sending
matter back for examination afresh was not right as the
material which was available in the form of statements of
various witnesses could very well be appreciated to find out
as to whether any case was made out against the appellant
for summoning under Section 319 of the Cr.P.C. It is not
mere suspicion on the basis of which an additional accused
could be summoned. Only where strong and cogent
evidence is available against a person from the evidence
produced before the Court, which could lead to his
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conviction, that such a power could be exercised. It could
not be exercised in a casual and cavalier manner.
5. In the absence thereof, the impugned order passed by
the High Court deserves to be set aside and the order passed
by the Trial Court, dismissing the application should be
upheld. In support of his arguments, reliance was placed on
judgments of this Court in Hardeep Singh and Ors. Vs.
., (2014) 3 SCC 92;
State of Punjab & Ors Mohd. Shafi vs.
Mohd. Rafiq , (2007) 14 SCC 544; Sagar vs. State of U.P.
(2022) 6 SCC 389;
and Anr., Kailash vs. State of
Rajasthan and Anr., (2008) 14 SCC 51 .
6. He further submitted that the stage at which the
application was filed by the complainant to summon the
appellant as an additional accused, the trial was going to
conclude as the entire evidence had been led. Vide
judgment of the Trial Court dated 06.10.2017, even the
accused against whom the chargesheet was filed, were also
acquitted. It was on the basis of the sketchy evidence
produced by the prosecution before the trial court that the
appellant was sought to be summoned.
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7. On the other hand, learned counsel for the State and
the complainant submitted that a clear case was made out
against the appellant for summoning him as an additional
accused. The trial court had failed to exercise the
jurisdiction vested in it. No doubt, the High Court could
have corrected it but the matter was remanded back. The
material already on record could have been taken into
account. Had it been so, the appellant would have also
faced trial along with other accused or even could be tried
separately. However, the fact that the accused persons
against whom the chargesheet was filed were acquitted vide
judgment dated 06.10.2017, has not been disputed.
8. Heard learned counsel appearing for the parties and
perused the paper book.
9. The principles of law with reference to exercise of
jurisdiction under 319 Cr.P.C. are well settled.
10. The Constitution Bench in
Hardeep Singh and Ors.’s
case (supra), opined as under :
“105. Power u/s 319 CrPC is a discretionary
and an extraordinary power. It is to be exercised
sparingly and only in those cases where the
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circumstances of the case so warrant. It is not to
be exercised because the magistrate or the
sessions judge is of the opinion that some other
person may also be guilty of committing that
offence. Only where strong and cogent evidence
occurs against a person from the evidence laid
before the court that such power should be
exercised and not in a casual and cavalier
manner.
106. Thus we hold that though only a prima
facie case is to be established from the evidence
laid before the court, not necessarily tested on the
anvil of crossexamination, it requires much strong
evidence that near probability of his complicity.
The test that has to be applied is one which is
more than prima facie case as exercised at the
time of framing of charge, but short of satisfaction
to an extent that the evidence, if goes unrebutted,
would lead to conviction. In the absence of such
satisfaction, the court should refrain from
exercising power u/S 319 CrPC”.
(emphasis supplied)
11. In Sagar’s case (supra) , it is stated as under:
“9. The Constitution Bench has given a
caution that power under Section 319 of the Code
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is a discretionary and extraordinary power which
should be exercised sparingly and only in those
cases where the circumstances of the case so
warrant and the crucial test as notice above has
to be applied is one which is more that prima facie
case as exercised at the time of framing of charge,
but short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to
conviction….”
12. If the evidence already on record produced by the
prosecution is considered on the touchstone of law laid
down by the Constitution Bench of this Court in
Hardeep
Singh & Ors. case (supra), it does not go beyond suspicion.
There is no eyewitness to the occurrence. All what has
been stated by PW2 (brother of the deceased) is that the
deceased who was working with the appellant as Manager
though claimed to be a partner by the complainant, that
there was some dispute regarding money between the
appellant and the deceased. Rajesh Sharma whose
statement was got recorded by police under Section 164 of
the Cr.P.C. also retracted therefrom while appearing in court
as PW5. He stated that it was recorded by the police under
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threat of involvement in some false case. He also did not
raise any finger towards the appellant. Rather he was the
first person to visit the house of the deceased after the
murder and informed the appellant to reach there. He was
working as part time cook with the family of the deceased.
Without any material brought on record, the widow of the
deceased merely stated that she is sure that the appellant
had committed murder of her husband as there was no
other enemy. One of the brothers of the deceased who
appeared as PW1, who was not present at the spot, did not
utter a single word against the appellant.
13. The aforesaid material was not sufficient if examined in
the light of the law laid down by this Court for summoning
of an additional accused in exercise of power under Section
319 of the Cr.P.C. to establish complicity of the appellant in
the crime.
14. After conclusion of the entire evidence and examination
of the material produced on record even against the charged
accused, the trial court had acquitted them vide judgment
dated 15.03.2017. It shows that material produced on
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record was not even sufficient for conviction of the accused
against whom chargesheet was filed.
15. One of the arguments raised by learned counsel
appearing for the parties was that in the case in hand, the
High Court instead of appreciating the material placed on
record by the parties in the form of evidence to find out as to
whether a case was made out for summoning of the
appellant as an additional accused, remitted the matter
back to the trial court for consideration afresh. Remand in
such a matter will only result in prolonging the litigation.
The High Court only recorded that reasons assigned by the
trial court for rejecting the application were not sufficient. To
avoid delay, it would have been proper exercise of power in
case the High Court would have considered the material and
opine as to whether a case was made out for summoning of
additional accused. Whatever reasons have been recorded
by the trial court in the order so passed, may not have been
happily worded to the satisfaction of the High Court, but
that error could have been corrected in exercise of revisional
power.
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16. For the reasons mentioned above, the present appeal is
allowed. The impugned order passed by the High Court is
set aside and the application filed by the complainant for
summoning the appellant as an additional accused is
dismissed.
…..……….………………J.
[Abhay S. Oka]
..…………………….……J.
[Rajesh Bindal]
New Delhi;
01.03.2023.