Full Judgment Text
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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.