Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 397 OF 2022
(Arising out of SLP(Crl) Nos.7373 of 2021)
SAGAR ….APPELLANT(S)
VERSUS
STATE OF U.P. AND ANOTHER ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
Leave granted.
2. The instant appeal has been filed by the appellant assailing
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the correctness of the order dated 28 July, 2021 passed by the
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High Court of Judicature at Allahabad setting aside order dated 30
January, 2018 passed by the Additional Sessions Judge,
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2022.03.10
15:44:06 IST
Reason:
Muzaffarnagar, whereby the trial Court had rejected the application
filed by the complainant under Section 319 of the Code of Criminal
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Procedure, 1973 (hereinafter referred to as “the Code”) for
summoning the appellant as accused and to face trial in Case
Crime No.164 of 2014 under Section 302 IPC registered at PS
Fugana, District Muzaffarnagar, Uttar Pradesh.
3. The brief facts of the case culled out from the record are that
on a written complaint made by one Ravinder s/o Sadhuram that
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on 10 September, 2014, both his sons Sachin and Nitin were
called by Jagpal s/o Shital Singh and his nephew Sagar s/o Charan
Singh (appellant) from his house for tying the sugarcane crop and
his son Nitin was seen in the company of Jagpal and Sagar
(appellant) by the complainant while he was returning back and
later at about 9.00 a.m. when the complainant went to the field of
Jagpal and called Nitin, Jagpal asked Sagar to disconnect the
electric wire and at some distance he saw Nitin lying near the Mend
in a naked position, and was burnt by electric wire around the
neck. On calling Jagpal and Sagar, they ran away from the spot.
On the said written complaint Case Crime No.164 of 2014 came to
be registered under Section 302 IPC.
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4. After investigation, chargesheet came to be filed against Jagpal
Singh s/o Shital Singh. At the same time, it was recorded in the
chargesheet that from the statements of the complainant and
witnesses and inspection of the place of incident, naming of the
accused Sagar who was a juvenile and minor at the relevant point
of time, was found to be wrong. No case was made out against him
and challan was filed against Jagpal under Section 302 IPC.
5. After the statements of complainant (PW.1) and Sadhu Ram
(PW.2), father of the complainant were recorded, the complainant
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during trial filed application under Section 319 of the Code on 17
March, 2016, stating, inter alia, that during the course of
investigation when the statement of complainant and his father
were recorded under Section 161 of the Code, the investigating
officer had arbitrarily removed the name of the present appellant
from the chargesheet, although he was also involved in committing
the said crime and this fact has been recorded by PW.1 and PW.2 in
their statements on oath while recording their deposition during the
course of the prosecution and accordingly asked to summon the
present appellant also for trial for the crime committed by him.
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6. The learned trial Judge after taking into consideration the
material on record and so also the statements of PW.1 and PW.2
recorded a finding that neither the complainant (PW.1) nor his
father (PW.2) were eyewitness and it has only been stated about
removal of the electric wire by the appellant and this fact was
noticed by the investigating officer even when the chargesheet came
to be filed and the investigating officer has not found the present
appellant to have participated in the commission of crime and at
least at the stage when Section 319 of the Code is to be invoked,
there must be a strong and cogent evidence occurred against a
person from the evidence led before the Court and taking into
consideration the material available on record, was not satisfy to
summon the present appellant under Section 319 of the Code and
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consequently rejected the application by an order dated 30
January, 2018. The finding recorded by the learned trial Judge in
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passing the order dated 30 January, 2018 is reproduced
hereunder:
“In the present session trial, the Ld. Counsel for the
Complainant has argued that in the captioned Session Trial, in the
FIR, name of Sagar S/o Charan Singh was written and in the
statements of the Complainant, name of Sagar has come and
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hence he should be summoned for Trial. In this regard, it is clear
from the statement of PW1 that the Complainant is not the eye
witness of the incident and he has got the name of accused Jagpal
and Sagar written in FIR on the basis of Jagapal and Sagar having
gone with his son. In the same way, the PW2, in the cross
examination has only stated about removal of the electricity wire
by Sagar. This is important to state that the Investigating Officer of
the case has found the naming of Sagar as incorrect and hence he
did not include his name in the chargesheet. In addition to that, it
has been accepted in the Crossexamination of Sadhuram that "the
investigation of the case has been done by many Inspectors. First
it was done by Fugana Police thereafter my son Ravinder got the
Investigation transferred to crime branch". Under Section 319,
summoning cannot be done on the ground that some evidence has
come against the person. The evidence should be of such nature
which would satisfy the court that the said person is involved in
the crime.
In the opinion of the Court, from the evidence available on
record, there is no sufficient ground for summoning Sagar as
accused u/s 319 of the Code of Criminal Procedure. Hence the
application is liable to be dismissed.”
7. The respondent/complainant, father of the deceased, filed
Criminal Revision Petition before the High Court of Judicature at
Allahabad. The learned Single Judge, without even appreciating the
evidence of PW.1 and PW.2, which was recorded during the course
of trial, in a casual and cavalier manner, set aside the wellreasoned
order passed by the learned trial Judge under its order impugned
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dated 28 July, 2021. It will be apposite to quote the manner in
which the learned Single Judge has set aside a cogent reasoning
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recorded by the learned trial Judge under its order dated 28 July,
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2021. The relevant portion of the order of the learned Single Judge
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dated 28 July, 2021 is reproduced hereunder:
“I have perused arguments of Ld. Counsel for Revisionist, the
case file and order under question.
After going by the arguments of both sides the Ld. Counsels
and the perusal of the case file, summarily the order dated
30.04.2018 passed by Additional Session Judge, Court No. 1,
Muzaffarnagar seems erroneous.
Therefore, this Criminal Revision is hereby accepted and
Session Revision No. 508 of 2015, State Versus Jagpal, passed by
Additional Session Judge, Court No. 1 Muzaffarnagar vide order
dated 30.01.2018 is hereby quashed it is hereby directed that
without being influenced by the merits of any observation made in
this order, after allowing sufficient opportunity to the parties, and
after complete perusal of the case file appropriate order be passed
in the matter within two months.
The Office is hereby directed to ensure of sending a copy of
this order and the record of the case to the Court concerned
without any delay.”
8. The scope and ambit of Section 319 of the Code has been well
settled by the Constitution Bench of this Court in
Hardeep Singh
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v. State of Punjab and others and paras 105 and 106 which are
relevant for the purpose are reproduced hereunder:
“ 105. Power under Section 319 CrPC is a discretionary and an
extraordinary power. It is to be exercised sparingly and only in
those cases where the 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 led before the court that
1 (2014) 3 SCC 92
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such power should be exercised and not in a casual and cavalier
manner.
Thus, we hold that though only a prima facie case is to be
106.
established from the evidence led before the court, not necessarily
tested on the anvil of crossexamination, it requires much stronger
evidence than mere 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 under Section 319 CrPC. In Section
319 CrPC the purpose of providing if “it appears from the evidence
that any person not being the accused has committed any offence”
is clear from the words “ for which such person could be tried
together with the accused ”. The words used are not “for which such
person could be convicted”. There is, therefore, no scope for the
court acting under Section 319 CrPC to form any opinion as to the
guilt of the accused.”
9. The Constitution Bench has given a caution that power under
Section 319 of the Code 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
noticed above 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. The learned Single Judge of the High
Court has even failed to consider the basic principles laid down by
this Court while invoking Section 319 of the Code, which has been
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considered by the learned trial Judge under its order dated 30
January, 2018.
10. Consequently, in our opinion, the appeal deserves to succeed
and the same is accordingly allowed. The order passed by the High
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Court dated 28 July, 2021 is hereby quashed and set aside.
11. Pending application(s), if any, shall stand disposed of.
……………………………….J.
(AJAY RASTOGI)
………………………………J.
(ABHAY S. OKA)
NEW DELHI
MARCH 10, 2022.
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