SHANKARversusTHE STATE OF UTTAR PRADESH & ORS.

              [2024] 6 S.C.R. 10 : 2024 INSC 366

                           Shankar
                              v.
              The State of Uttar Pradesh & Ors.
                 (Criminal Appeal No. 2367 of 2024)
                              02 May 2024
[Pamidighantam Sri Narasimha and Aravind Kumar, JJ.]

                       Issue for Consideration
  Whether there is sufficient material against the appellant prompting
  the trial court to pass a summoning order u/s. 319 Cr.P.C.

                               Headnotes
  Code of Criminal Procedure, 1973 – s. 319 – Summoning order
  u/s. 319 – Legality of – Appellants facing trial for offence u/s.
  302 – Summoning order passed u/s. 319 by the trial court – High
  Court refused to quash the summoning order – Correctness:
  Held: Degree of satisfaction required to exercise power u/s. 319
  is much stricter, considering that it is a discretionary and an extra-
  ordinary power – Only when the evidence is strong and reliable, the
  power can be exercised – It requires much stronger evidence than
  mere probability of his complicity – Appellants were named in the
  first information statement by the first informant despite not being
  an eyewitness to the offence, however, in the statement u/s. 161
  Cr.P.C, first informant clarified that her family had a long-standing
  enmity with appellants’ family; that the names of appellants were
  written in the FIR falsely and without full information; and that the
  appellants were not involved in the murder of her son – Even in
  the charge sheet, the names of the appellants were not mentioned
  as accused – It is only in her deposition before the trial court the
  names of the accused resurfaced again – Almost a year later,
  the prosecution chose to file an application u/s. 319 – Change of
  circumstance which the prosecution seeks to contend on the basis
  of first informant’s deposition does not satisfy the requirement of s.
  319 at all – First informant not being an eye-witness, her deposition
  not sufficient enough to invoke the extra-ordinary jurisdiction u/s. 319
  to summon the appellants – No other witnesses deposed anything
  against the appellants – No documentary evidence collected against
  the appellants – Also no role attributed to the appellants – These
  factors when looked in a holistic manner, make it clear that the
[2024] 6 S.C.R.                                                             11

               Shankar v. The State of Uttar Pradesh & Ors.


     higher degree of satisfaction required for exercising power u/s. 319
     not met with – Trial court erred in allowing the application u/s. 319
     and issuing summons to the appellants – High Court having failed
     to quash the order of summons, the order passed by the trial court
     as also by the High Court set aside. [Paras 18-26]

                              Case Law Cited
            Hardeep Singh v. State of Punjab [2014] 2 SCR 1 :
            (2014) 3 SCC 92 – referred to.

                                List of Acts
     Code of Criminal Procedure, 1973.

                             List of Keywords
     Sufficient material; Summoning order; Degree of satisfaction;
     Power u/s. 319 CrPC; Discretionary and an extra-ordinary power.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2367
     of 2024
     From the Judgment and Order dated 04.04.2023 of the High Court
     of Judicature at Allahabad in A482 No. 30221 of 2017
     With
     Criminal Appeal No. 2368 of 2024
                         Appearances for Parties
     Ms. Preetika Dwivedi, Abhisek Mohanty, Advs. for the Appellant.
     Yasharth Kant, Jitendra Kumar Tripathi, Ankit Goel, Dhawal Uniyal,
     Nikhil Sharma, Advs. for the Respondents.
                 Judgment / Order of the Supreme Court
                                 Judgment
1.   Leave granted.
2.   The present appeals arise out of a decision of the High Court of
     Judicature at Allahabad dated 04.04.2023 in Application under Section
     482 No. 30221 of 2017, whereby the High Court refused to quash
     a summoning order dated 24.08.2017 passed under Section 319
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      of the Cr.P.C. by the Additional District & Sessions Judge, Kanpur
      Dehat, where the Appellants herein were directed to face a trial for
      offence under Section 302 IPC. Both the Appellants being identically
      placed, their appeals are being dealt with together.
3.    The issue that arises for our consideration is whether there is
      sufficient material against the Appellant prompting the Trial Court to
      pass a summoning order under Section 319 Cr.P.C. The principles of
      law being settled by the judgments of the constitutional benches of
      this Court, this question hinges upon the facts of the present case,
      which is as follows:
4.    Facts and investigation: On 10.05.2011, the first informant (PW-
      1), who is the mother of the deceased, got an FIR lodged at P.S.
      Ghatampur, informing that her son was found dead near a tubewell
      in the wheat field of a fellow villager. In her statement, she alleged
      that her son was murdered by the present appellants, the father
      of the appellants, along with two others, due to certain old enmity
      existing between the two families.
5.    The following day, the investigation officer recorded a statement of
      PW-1 under Section 161 Cr.P.C. In this statement she also stated
      that the deceased was quarrelsome, had a habit of picking up fights
      with other villagers and had a few criminal cases going on against
      them. Previously, he had also picked up fights with the father of
      the appellants. She stated that on 08.05.2011, Mahendra Singh, a
      gangster of the same village, came on a bike and asked the deceased
      to accompany him, on the pretext that Mahendra Singh would
      pay back a sum of Rs. 8,000 which he had borrowed from PW-1,
      and also that he would help the deceased arrive at a compromise
      with Accused No. 1 (father of the appellants) and Accused No. 3.
      Accordingly, the deceased left on the motorcycle of Mahendra Singh.
      She stated that Accused Nos. 1-3 were standing at a distance noticing
      the developments. She stated with conviction that Accused Nos. 1-3
      along with Mahendra Singh killed the deceased. In this statement,
      PW-1 stated that the appellants were not involved and that she
      wrote their name in her first information statement incorrectly and
      without collecting full information. Two other persons (witness), Rajau
      Sengar and Karan Singh, in their Section 161 statements reiterated
      the statement of PW-1. Even they stated that the present appellants
      had no role whatsoever in the commission of the crime.
[2024] 6 S.C.R.                                                          13

              Shankar v. The State of Uttar Pradesh & Ors.


6.   After conducting the investigation, the IO filed a chargesheet on
     22.06.2011, where the present appellants were not named as accused.
     There were only four named accused in the chargesheet, however,
     Mahendra Singh who was arrayed as Accused No. 4 was absconding.
     It was categorically stated in the chargesheet that after investigation,
     it came to light that the naming of the present appellants was false.
7.   Trial: On 20.05.2016, PW-1 was examined where she stated that
     “My old enmity with accused Bacha Singh has been going in for the
     last 11 years and on the basis of suspicion, I had written the names
     of Shankar and Vishal in the FIR.” However, at a later stage of her
     examination, she stated that “It is wrong to suggest that because of
     old enmity, I have wrongly written the names of Bacha Singh and
     his sons in the FIR”. Apart from PW-1, none of the other 5 witness,
     spoke about the complicity of the appellants in the commission of
     the offence.
8.   Trial Court: Pursuant to the statement made by PW-1 in her
     examination in chief, the Assistant Public Prosecutor, on 31.07.2017,
     filed an application under Section 319 of the Cr.P.C. to summon the
     appellants herein to face the trial.
9.   The Ld. Trial Court, on 24.08.2017, allowed the application filed by
     the APP after noting certain previous decisions of this Court where
     it was held that if the evidence tendered in the course of trial shows
     that any person not named as an accused has a role to play in the
     commission of the offence, then he could be summoned to face trial
     even though he may not have been charge sheeted.
10. High Court: The above order passed by the Trial Court was
    challenged by the Appellants before the High Court by filing a petition
    under Section 482 Cr.P.C. This petition came to be dismissed by
    the High Court by its order dated 04.04.2023. While dismissing the
    petition, the High Court noted that at the stage of Section 482, the
    Court is only supposed to see if there exists a prima-facie case. It
    is this order of the High Court which is impugned before us.
11. Issue: The only question arising in the present appeal is whether
    the power under Section 319 Cr.P.C. has been properly exercised
    in light of the facts of the present case and evidence on record.
12. Analysis: We have heard Ld. counsel for appellants, Ms. Preetika
    Dwivedi and Ld. counsel for the Respondent State Mr. Ankit Goel.
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13. At the outset, we may note that the four accused who were charge-
    sheeted, have passed away. As against them, the trial has abated.
    The learned counsel for the Respondent State has argued that even
    if the trial has abated against existing accused, there is no bar in
    summoning the appellants and starting the trial afresh1. This position
    of law is well-settled and the learned counsel for the appellant has
    also not disputed the same.
14. In this background, we will examine the legality of the summoning
    order under Section 319 Cr.P.C. on its own footing. Section 319 of
    the Cr.P.C. is as follows:
               “319. Power to proceed against other persons
               appearing to be guilty of offence
               (1)    Where, in the course of any 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 which he appears to have committed.
               (2)    ….
               (3)    ….
               (4)    ….”
15. Having taken note of the provision, we will note the principles laid
    down by a Constitution Bench of this Court in Hardeep Singh v.
    State of Punjab, (2014) 3 SCC 92, for criminal courts to follow while
    exercising power under Section 319 Cr.P.C.:
               “94. In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963
               SC 1094, a four-Judge Bench of this Court was concerned
               with the meaning of the word “appear”. The Court held
               that the appropriate meaning of the word “appears” is
               “seems”. It imports a lesser degree of probability than
               proof. In Ram Singh v. Ram Niwas, (2009) 14 SCC 25,
               a two-Judge Bench of this Court was again required to
               examine the importance of the word “appear” as appearing


1     Gurmail Singh v. State of UP, (2022) 10 SCC 684
[2024] 6 S.C.R.                                                           15

              Shankar v. The State of Uttar Pradesh & Ors.


           in the section. The Court held that for the fulfilment of the
           condition that it appears to the court that a person had
           committed an offence, the court must satisfy itself about
           the existence of an exceptional circumstance enabling it to
           exercise an extraordinary jurisdiction. What is, therefore,
           necessary for the court is to arrive at a satisfaction that
           the evidence adduced on behalf of the prosecution, if
           unrebutted, may lead to conviction of the persons sought
           to be added as the accused in the case.
           95. At the time of taking cognizance, the court has to
           see whether a prima facie case is made out to proceed
           against the accused. Under Section 319 CrPC, though
           the test of prima facie case is the same, the degree of
           satisfaction that is required is much stricter…
           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 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 led before the court,
           not necessarily tested on the anvil of cross-examination,
           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…..”
16. The degree of satisfaction required to exercise power under
    Section 319 Cr.P.C. is well settled after the above-referred decision.
    The evidence before the trial court should be such that if it goes
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      unrebutted, then it should result in the conviction of the person who
      is sought to be summoned. As is evident from the above-referred
      decision, the degree of satisfaction that is required to exercise power
      under Section 319 Cr.P.C. is much stricter, considering that it is a
      discretionary and an extra-ordinary power. Only when the evidence
      is strong and reliable, can the power be exercised. It requires much
      stronger evidence than mere probability of his complicity.
17. In this background, we will examine the evidence on record which
    prompted the trial court to exercise the power under Section 319
    Cr.P.C. PW-1, who is the mother of the deceased, is the only witness
    who has named the appellants.
      17.1 In the first information statement, she has taken the name of
           the appellants as having played a role in the commission of
           the crime owing to the past enmity between the two families.
           The relevant portion of this statement is as follows:
                “I am quite sure that my son Vijay Singh has been
                jointly murdered by Bachha Singh s/o Mohan Singh,
                Shankar s/o Bacha Singh, Vishal s/o Bacha Singh-
                residents of Raha and Sanjay s/o Munna Singh, Kallu
                Singh s/o Munna Singh-residents of Jalala, Police
                Station Ghatampur. We have an old existing enmity
                with these people.”
      17.2 However, in her Section 161 statement, she has stated that the
           appellants were not involved and that she named them without
           collecting full information. Two other witness, Rajau Sengar and
           Karan Singh, in their Section 161 statements have also stated
           that the appellants had no role whatsoever in the commission of
           the crime. Relevant portion of PW-1’s statement under Section
           161 Cr.P.C., is as follows:-
                “…I had lent Rs. 8000 to Mahendra Singh long ago
                after selling Lahi. Vijay Singh had asked Mahendra
                Singh many times to repay the borrowed money
                but he did not give it back. Coming under the guise
                of this assurance, Vijay Singh left on Mahendra’s
                motorcycle. Sanjay Singh and Kallu Singh sons of
                Munna Singh and Bacha Singh s/o Mohan Singh were
                also standing at some distance outside the house.
[2024] 6 S.C.R.                                                        17

              Shankar v. The State of Uttar Pradesh & Ors.


                They also lured my son Vijay Singh and accompanied
                Vijay Singh and Mahendra Singh and all four of them
                killed my son Vijay Singh and threw the dead body in
                the field near the tubewell of Mahendra Pratap Singh
                Bhadoria. The names of Shankar Singh and Vishal
                Singhs sons of Bachha Singh, which I have written
                in the FIR, have been written by me falsely without
                collecting full information. My son Vijay Singh was
                murdered by Mahendra Singh s/o Chandrapal Singh
                Sachan of village Laukaha, Bacha Singh s/o Mohan
                Singh of village Raha and Sanjay Singh and Kallu
                Singh s/o Munna Singh of village Jalala. Shankar
                and Vishal sons of Bacha Singh were not involved
                in my son’s murder.”
                                                (emphasis supplied)
     17.3 Even in the chargesheet, which was filed after investigation, the
          name of the appellants has not been mentioned as accused.
     17.4 It is only in her deposition before the trial court that PW-1 has
          once again named the appellants. However, she has also stated
          that she has named them only on the basis of suspicion. The
          relevant portion of her deposition before the Trial Court is as
          follows:
                “In my report, I made Bachha Singh, Shankar, Vishal,
                Kallu Singh and Mahendra Sachan accused. I had
                an old enmity with these people.”
     In her cross-examination, PW-1 stated as follows:-
                “There were two-three outstation cases and two-three
                local cases from the village were pending against
                my son Vijay Singh, which are closed now. The said
                cases were closed/concluded during the lifetime
                of Vijay Singh. My old enmity with accused Bacha
                Singh has been going on for the last 11 years and
                on the basis of suspicion, I had written the names
                of Shankar and Vishal in the FIR.”
18. It is evident from the above that the appellants were named in the
    first information statement, however, in the statement under Section
    161 Cr.P.C, PW-1 clarified that the names of appellants were written
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      in the FIR falsely and without full information. She has also stated
      that the appellants were not involved in the murder of her son. Even
      in the charge sheet, the names of the appellants were not mentioned
      as accused. It is only in her deposition before the Trial Court the
      names of the accused resurfaces again.
19. None of the other witnesses, being PW’s-2, 3, 4, 5 and 6 have
    deposed anything about the appellants.
20. On 31.07.2017, i.e. almost a year after the deposition of PW-1, the
    prosecution chose to file an application under Section 319 Cr.P.C.
    to the following effect:-
           “It is most respectfully submitted that in the above
           mentioned case, the first informant Mrs. Sheela Singh had
           written the names of Shankar Singh and Vishal Singh in
           the First Information Report and the names of Shankar
           Singh and Vishal Singh have also been mentioned by
           her in her examination in chief also. For this reason, it is
           necessary to summon Shankar Singh and Vishal Singh
           for trial in the said case.
           Therefore, the Hon’ble court is requested to kindly pass
           an order thereby summoning accused Shankar Singh and
           Vishal Singh sons of Bachha Singh for trial in the said case.
                                                       Yours faithfully,
                                                          Sd/-illegible
                                                           31.7.2017”
21. At the first place, PW-1 has named the appellants in the FIR despite
    not being an eyewitness to the offence. In her statement under
    Section 161, she sought to clarify the position by recording that her
    family had a long-standing enmity with appellants’ family. She also
    stated that the names of the appellants were mentioned and written
    by her “falsely without collecting full information.” She categorically
    stated that the appellants are not involved in the murder of her son.
22. When we contrast this statement with her deposition given five
    years later, we do not see a drastic change in the stand of
    PW-1. Even in her chief examination, she had stated that she had
    an old enmity with the family of the accused. However, in her cross
    examination, she clarified that as the enmity with the appellants family
    was going on for the last eleven years, names of the appellants
[2024] 6 S.C.R.                                                          19

              Shankar v. The State of Uttar Pradesh & Ors.


     were mentioned in the FIR on the basis of suspicion. Therefore, the
     change of circumstance which the prosecution seeks to contend on
     the basis of PW-1’s deposition does not satisfy the requirement of
     Section 319 at all.
23. Having considered the matter in detail, we are of the opinion that
    PW-1, not being an eye-witness, her deposition is not sufficient
    enough to invoke the extra-ordinary jurisdiction under Section 319
    to summon the appellants.
24. There are no other witnesses who have deposed against the
    appellants. There is no documentary evidence that the prosecution
    had collected against the appellants. There is absolutely no role
    that is attributed to the appellants. We are of the opinion that the
    deposition of PW-1 is also in line and consistent with her statement
    under Section 161. When these factors are looked in a holistic
    manner, it would be clear that the higher degree of satisfaction that
    is required for exercising power under Section 319 Cr.P.C. is not
    met in the present case.
25. For the reasons stated above we are of the opinion that the Trial Court
    committed a serious error in allowing the application under Section
    319 and issuing summons to the appellants. The High Court should
    have exercised its jurisdiction under Section 482 and quashed the
    order. The High Court having failed to quash the order of summons
    dated 24.08.2017, we are inclined to allow these appeals and set-
    aside the order passed by the Trial Court dated 24.08.2017 and the
    also the judgment of the High Court dated 04.04.2023 dismissing
    the petition under Section 482.
26. For the reasons stated above, the present appeals are allowed, and
    the impugned order dated 04.04.2023 passed by the High Court of
    Judicature at Allahabad in Application under Section 482 No. 30221
    of 2017 and the order dated 24.08.2017 passed by the Additional
    District and Sessions Judge, Court No. 5, Kanpur Dehat, in S.T.
    No. 434 of 2011 in Application Paper No. 83Kha under Section 319
    Cr.P.C. are hereby set aside.

     Headnotes prepared by: Nidhi Jain                   Result of the case:
                                                           Appeals allowed.