JITENDRA NATH MISHRAversusSTATE OF U.P. & ANR

642                       [2023]
               SUPREME COURT     7 S.C.R. 642
                              REPORTS                      [2023] 7 S.C.R.


A                         JITENDRA NATH MISHRA
                                        v.
                            STATE OF U.P. & ANR
                       (Criminal Appeal No. 978 of 2022)
B                                JUNE 02, 2023
            [DIPANKAR DATTA AND PANKAJ MITHAL, JJ.]
              Code of Criminal Procedure, 1973 – s.319 – Exercise of
      power under – Held: What is essential for exercise of the power u/
      s.319 is that the evidence on record must show the involvement of a
C
      person in the commission of a crime and that the said person, who
      has not been arraigned as an accused, should face trial together
      with the accused already arraigned – However, the court holding a
      trial, if it intends to exercise power conferred by s.319 must not act
      mechanically merely on the ground that some evidence has come on
D     record implicating the person sought to be summoned; its satisfaction
      preceding the order thereunder must be more than prima facie as
      formed at the stage of a charge being framed and short of
      satisfaction to an extent that the evidence, if unrebutted, would lead
      to conviction – In the present case, the FIR disclosed offences having
      been committed by one ‘D’, his brother (the appellant) and an
E
      unknown person – Complainant and his wife described the manner
      of assault inflicted by ‘D’ and the appellant and the utterances used
      by them touching the caste of the complainant and his wife – It is
      not that involvement of the appellant in the crime was referred to
      for the first time in the court – Thus, though, the appellant was not
F     named in the FIR but, that by itself cannot be held to be decisive –
      Once it is conceded that the appellant is a sibling of ‘D’ and he is
      named as one of the assailants, the material for forming the requisite
      satisfaction cannot be said to be non-existent – Special Court formed
      the requisite satisfaction prior to summoning the appellant to face
      trial with ‘D’ – Impugned order affirming the order of Special Court
G
      cannot be faulted – Scheduled Castes and Scheduled Tribes
      (Prevention of Atrocities) Act, 1989 – ss.3(1)(r), (s) – Penal Code,
      1860 – ss. 419, 420, 323, 406, 506.
            Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :
            [2014] 2 SCR 1 – relied on.
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                                       642
      JITENDRA NATH MISHRA v. STATE OF U.P. & ANR                            643


                        Case Law Reference                                   A
[2014] 2 SCR 1                  relied on                Para 6
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.978 of 2022.
      From the Judgment and Order dated 01.06.2022 of the High Court
of Judicature at Allahabad in CRLA No.303 of 2022.                           B
      Girijesh Pandey, Sarabh S., Ms. Alpana Pandey, Ramjee Pandey,
Advs. for the Appellant.
      S. R. Singh, Sr. Adv., Ankur Prakash, Adv. for the Respondents.
      The Judgment of the Court was delivered by
      DIPANKAR DATTA, J.                                                     C
       1. This appeal, by special leave, takes exception to an order dated
1st June, 2022 of the Allahabad High Court. The impugned order dismissed
an appeal filed by the appellant under Section 14A(1) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989
(hereafter ‘1989 Act’). Under challenge in the appeal was a summoning        D
order dated 16th October, 2021 passed by the relevant Special Court
under the 1989 Act, in exercise of power conferred on him by Section
319, Code of Criminal Procedure (hereafter, ‘Cr. PC’).
       2. A First Information Report (hereafter ‘FIR’) came to be
registered by the Khalilabad Police Station, District Sant Kabir Nagar,      E
under Sections 419, 420, 323, 406 and 506, Indian Penal Code and 3(1)(r)
& (s) of the 1989 Act on the basis of information furnished by the
complainant. Accusations were levelled against (1) Dharmendra Nath
Mishra (hereafter ‘Dharmendra’); (2) brother of Dharmendra; and (3)
an ‘unknown person’ of having assaulted and abused the complainant
and his wife, amounting to commission of offences punishable under the       F
aforesaid provisions. Investigation of the FIR culminated in a charge-
sheet under Section 173(2) of the Cr. PC being filed, wherein Dharmendra
was shown as the sole accused. The Special Court constituted under
the 1989 Act took cognisance of the offence and framed charges against
Dharmendra, whereafter the trial commenced. In course thereof, the           G
complainant and his wife deposed as PW-1 & PW-2 respectively.
According to them, Dharmendra and the appellant together with an
unknown person had assaulted them apart from hurling caste related
abuses.

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644            SUPREME COURT REPORTS                           [2023] 7 S.C.R.


A            3. At this stage, the Special Court passed the order dated
      16.10.2021 summoning the appellant for trial along with Dharmendra
      for offences punishable under Sections 323, 504 and 506, IPC and 3(1)(r)
      & (s) of the 1989 Act. The said order dated 16th October, 2021 was
      unsuccessfully challenged by the appellant before the High Court which,
      by its order dated 1st June, 2022, dismissed the appeal of the appellant
B
      under Section 14A(1) of the 1989 Act as noted above.
            4. Mr. Pandey, learned counsel appearing for the appellant
      contended as follows:
            (i) The FIR is grossly delayed. Although the incident of assault
C     and abuse giving rise to the FIR allegedly happened on 30th September,
      2017, the complainant lodged the complaint as late as on 28th February,
      2018. There is no cogent explanation for such belated lodging of complaint
      and this is an indicator that the contents of the FIR are absolutely false.
             (ii) There are material contradictions in the versions of PW-1 &
D     PW- 2. While PW-1 deposed that Dharmendra, his brother (i.e., the
      appellant) and an unknown person were travelling in a car when they
      stopped PW-1 and his family members whereafter the alleged incident
      of assault and abuse took place, PW-2 deposed that the accused persons
      (Dharmendra, the appellant and an unknown person) arrived at the place
      of occurrence riding two motorcycles. Therefore, the depositions of PW-
E     1 & PW-2 are absolutely unreliable and untrustworthy.
             (iii) It is to be found in the versions of PW-1 & PW-2 that since
      2015, they personally knew the appellant; hence, not naming the appellant
      in the FIR and instead disclosing that the brother of Dharmendra too had
      involved himself in the alleged assault and abuse and taking the name of
F     the appellant as a co-accused only in course of recording of evidence is
      a clear embellishment, which has been made with a view to harass the
      appellant by dragging him to face an unnecessary trial.
            (iv) The appellant and Dharmendra are siblings no doubt; but they
      have three other siblings. If indeed the appellant was one of several co-
G     accused, it defies reason as to why the complainant knowing the appellant
      quite well would not name him and vaguely allege that the brother of
      Dharmendra too had assaulted and abused the complainant.
            (v) Falsity of the versions of PW-1 & PW-2 would be manifest if
      one were to read their depositions. The incident giving rise to the trial
H     occurred on 30th September, 2017 at 6.00 pm, which happened to be the
      JITENDRA NATH MISHRA v. STATE OF U.P. & ANR                             645
                 [DIPANKAR DATTA, J.]

day of Dussehra. Although, it was alleged that the accused persons            A
assaulted and abused the complainant and his wife in a public place
while they were returning home, no other public witness has been cited
to prove the prosecution case of assault and abuse. It is, therefore, a
clear case of false implication.
       5. Based on such contentions, Mr. Pandey argued that exercise          B
of power under Section 319, Cr. PC by the Special Court is arbitrary and
that the High Court erred in law as well as on facts in not interfering
with such order in exercise of appellate jurisdiction. He, thus, prayed for
quashing of the order 16th October, 2021 of the Special Court, since
affirmed by the High Court on 1st June, 2022.
                                                                              C
       6. Opposing the appeal, Mr. Singh, learned senior counsel
representing the State of Uttar Pradesh, contended that the law relating
to summoning a person for being tried along with an accused is no longer
res integra. He invited our attention to the Constitution Bench decision
of this Court in Hardeep Singh vs. State of Punjab: (2014) 3 SCC 92
and placed reliance on paragraphs 106, 117.4 and 117.6 thereof. It was        D
his contention that the Special Court duly took into consideration the oral
evidence adduced by the complainant and his wife and summoned the
appellant under Section 319, Cr. PC; hence, such order does not suffer
from any illegality, far less patent illegality. He also contended that the
points urged by the appellant to have the impugned order set aside are        E
points which he can urge in defence before the Special Court. According
to him, the impugned order of the High Court, affirming the summoning
order of the Special Court, does not call for any interference and, as
such, he prayed that the appeal be dismissed.
      7. We have heard the parties and perused the materials on record.       F
       8. Having bestowed due consideration to the rival claims, we are
of the view that any expression of ours while dealing with each and
every point urged on behalf of the appellant could result in prejudgment;
and thereby hinder a fair trial hence, adopting a cautious approach, we
propose to restrict our consideration solely to the question as to whether    G
the evidence adduced by the complainant and his wife in course of
recording of their depositions did justify the Special Court to make the
order it did.
    9. Section 319, Cr. PC, which envisages a discretionary power,
empowers the court holding a trial to proceed against any person not
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646             SUPREME COURT REPORTS                            [2023] 7 S.C.R.


A     shown or mentioned as an accused if it appears from the evidence that
      such person has committed a crime for which he ought to be tried together
      with the accused who is facing trial. Such power can be exercised by
      the court qua a person who is not named in the FIR, or named in the
      FIR but not shown as an accused in the charge-sheet. Therefore, what
      is essential for exercise of the power under section 319, Cr. PC is that
B
      the evidence on record must show the involvement of a person in the
      commission of a crime and that the said person, who has not been
      arraigned as an accused, should face trial together with the accused
      already arraigned. However, the court holding a trial, if it intends to
      exercise power conferred by section 319, Cr. PC, must not act
C     mechanically merely on the ground that some evidence has come on
      record implicating the person sought to be summoned; its satisfaction
      preceding the order thereunder must be more than prima facie as formed
      at the stage of a charge being framed and short of satisfaction to an
      extent that the evidence, if unrebutted, would lead to conviction.
D            10. In the present case, the FIR disclosed offences having been
      committed by Dharmendra, his brother and an unknown person. Both
      the complainant and his wife, while testifying before the court, described
      the manner of assault on the former inflicted by Dharmendra and the
      appellant and the utterances used by Dharmendra and the appellant,
      inter alia, touching the caste of the complainant and his wife. At least,
E     on this point, prima facie there appears to be no contradiction at all.
      The FIR in this case is not such where one finds complete absence of
      any reference to the brother of Dharmendra who had joined Dharmendra
      in assaulting and abusing the complainant or that the allegations are entirely
      Dharmendra centric with none else playing any role. It is not that
F     involvement of Dharmendra’s brother in the crime is being referred to
      for the first time in the court. True it is, the appellant was not named in
      the FIR; but, that by itself, cannot be held to be decisive. Once it is
      conceded that the appellant is a sibling of Dharmendra and he is named
      as one of the assailants, the material for forming the requisite satisfaction
      cannot be said to be non-existent. For the purpose of passing an order
G     under section 319, Cr. PC, it is sufficient to form a satisfaction of the
      nature indicated in paragraph 106 of the decision in Hardeep Singh
      (supra). We are satisfied, on facts and in the circumstances, that the
      Special Court formed the requisite satisfaction prior to summoning the
      appellant to face trial with Dharmendra.
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       JITENDRA NATH MISHRA v. STATE OF U.P. & ANR                               647
                  [DIPANKAR DATTA, J.]

      11. In such view of the matter, the order of the Special Bench             A
dated 16th October, 2021 and the impugned order of the High Court
dated 1st June, 2022 affirming it cannot be faulted.
       12. In so far as the points regarding delay in registration of the
FIR, material contradiction in the versions of the complainant and his
wife, absence of any public witness as well as the circumstances that            B
the complainant and his wife were known to the appellant since 2015
are concerned, the same are left open to be urged by the appellant in
course of the proceedings before the Special Court.
       13. There is no merit in the appeal, and it stands dismissed.
      14. The Special Court is encouraged to expedite the trial. But, in         C
the process, it shall proceed uninfluenced by reason of its order under
Section 319, Cr. PC having been upheld by the High Court and this
Court. The points raised on behalf of the appellant, recorded above, if
raised before it as well as other points, if any, shall be given the
consideration the same deserve.                                                  D
       15. In view of dismissal of the appeal, nothing survives for decision
on the application for stay. The same stands dismissed together with any
other application, if any.

Divya Pandey                                                 Appeal dismissed.   E
(Assisted by : Roopanshi Virang, LCRA)




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