Holding

The power under Section 319 CrPC may be exercised only when strong, cogent evidence shows a person’s participation, a standard higher than that for framing charges, and thus the second respondent could not be summoned as an accused.

Summary

The complainant Shiv Prakash Mishra alleged that five persons, including Subhash Chandra Shukla (respondent No.2), formed an unlawful assembly and attacked his brothers, resulting in the death of Sangam Lal Mishra. While the FIR named all five, the investigating officer, after examining witnesses, concluded that Subhash Chandra Shukla was at his workplace at the time and therefore omitted him from the charge sheet. The complainant later filed a petition under Section 319 of the CrPC to implead Subhash Chandra Shukla as an accused, but the trial court dismissed it, noting contradictory statements and lack of prima facie evidence; the High Court affirmed this decision. On appeal, the Supreme Court examined the scope and standard of proof required to exercise the discretionary power under Section 319 CrPC. It held that the power must be exercised sparingly and requires evidence stronger than a mere prima facie case, which was absent here. Consequently, the Court dismissed the appeal, allowing the trial to proceed without summoning the second respondent.

Issues considered

Whether the trial court correctly exercised its discretion under Section 319 CrPC to refuse summoning Subhash Chandra Shukla as an accused.
What standard of proof is required to invoke the power under Section 319 CrPC.
Whether the evidence on record prima facie establishes the complicity of the second respondent in the alleged offences.

Legislation cited

Code of Criminal Procedure, 1973s. 319
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 504

Subjects

Section 319 CrPCdiscretionary poweradditional accusedstandard of proofcriminal procedureunlawful assemblyIPC offences

Judgment

[2019] 10 S.C.R. 541 541

SHIV PRAKASH MISHRA A
v.
STATE OF UTTAR PRADESH AND ANOTHER
(Criminal Appeal No.1105 of 2019)
JULY 23, 2019 B
[R. BANUMATHI AND A.S. BOPANNA, JJ.]
Code of Criminal Procedure, 1973 – s.319 – Power under –
Exercise of – Complaint lodged that respondent no.2-SCS along
with other accused viz. SaS, DS, LKS and RS formed themselves
C
into an unlawful assembly and came to the house of the appellant-
complainant and started abusing him due to old enmity – Elder
brothers of the appellant, SLM and SKM tried to forbade the accused
from abusing – On this, accused SaS fired from the pistol with
intention to kill SKM – Second respondent was alleged to have
attacked SLM on his head with the butt of home made pistol – SLM D
succumbed to injuries – Charge sheet filed only against three
accused persons namely SaS, DS and LKS – Upon further
investigation, supplementary charge sheet filed against accused RS
– Appellant filed petition u/s.319, CrPC to implead the second
respondent as an accused – Dismissed – Revision petition before
E
the High Court – Dismissed – On appeal, held: Power u/s.319 CrPC
can be exercised by the trial court at any stage during trial to summon
any person as an accused to face the trial if it appears from the
evidence that such person has committed any offence for which
such person could be tried together with the accused – Standard of
proof employed for summoning a person as an accused person F
u/s.319 Cr.P.C. is higher than the standard of proof employed for
framing a charge against the accused person – Power u/s.319 Cr.P.C.
should be exercised sparingly – In the instant case, though the name
of second respondent was mentioned in the FIR, during investigation,
it was found that he was not present at the place of incident and on
G
the basis of said findings of the IO, he was not charge sheeted –
Appellant did not file any protest petition then and there – Further,
though, in his chief-examination the appellant stated about the
presence of the second respondent, however, in cross-examination
he stated that the second respondent was on duty at that time –
H
541
542 SUPREME COURT REPORTS [2019] 10 S.C.R.

A Appellant made contradictory statements – Evidence brought on
record does not prima facie show the complicity of respondent no.2
in the occurrence – Courts below were right in refusing to summon
him as an accused – No substantial ground made out warranting
interference – Penal Code, 1860 – ss.147, 148, 149, 302, 307, 323
and 504 .
B
Dismissing the appeal, the Court
HELD:1.1 The power under Section 319, Cr.P.C. can be
exercised by the trial court at any stage during trial to summon
any person as an accused to face the trial if it appears from the
C evidence that such person has committed any offence for which
such person could be tried together with the accused. The stan-
dard of proof employed for summoning a person as an accused
person under Section 319 Cr.P.C. is higher than the standard of
proof employed for framing a charge against the accused person.
The power under Section 319 Cr.P.C. should be exercised spar-
D ingly. [Paras 8, 9] [547-C-D]
1.2 Having regard to the contradictory statements of the
witnesses and other circumstances, the trial court and the High
Court rightly held that respondent No.2 cannot be summoned as
an accused. The FIR was registered on 06.09.2013 at 18.15 hours.
E The name of second respondent is no doubt mentioned in the
FIR and overt act is attributed to him. During the course of
investigation, the Investigating Officer recorded the statements
of witnesses who stated that respondent No.2 was not present at
the place of occurrence at the time of the incident. The
F Investigating Officer also recorded the statement of one SKG
and SG working in the same office in which respondent No.2 was
employed who had stated that respondent No.2 was in the office
at the time of incident. Accordingly, the name of respondent No.2
was dropped when the first charge sheet was filed on 19.09.2014.
The supplementary charge sheet was filed against RS on
G 15.10.2014. Though the name of second respondent was
mentioned in the FIR, during investigation, it was thus found
that the second respondent was not present in the place of incident
and on the basis of the findings of the Investigating Officer, he
was not charge sheeted. The appellant has not filed any protest
H
SHIV PRAKASH MISHRA v. STATE OF UTTAR PRADESH 543
AND ANOTHER

petition then and there. The courts below were right in refusing A
to summon respondent No.2 as an accused. Though, in his chief-
examination on 22.10.2016, PW-1 stated about the presence of
the second respondent and attributing overt act to him that he
had beaten the deceased SLM with butt of home made pistol, on
28.02.2017, PW-1 in his cross-examination stated that respondent
B
No.2 was on duty at that time. [Paras 12, 13] [548-H; 549-A-H]
1.3 The evidence brought on record during trial does not
prima facie show the complicity of respondent No.2 in the
occurrence and the High Court was justified in refusing to summon
respondent No.2 as an accused. The High Court and the trial
court concurrently held that the materials brought on record are C
not sufficient to summon the second respondent as an accused in
the present case. No substantial ground is made out warranting
interference. The trial court shall proceed with the trial in S.T.
No.26 of 2015 in accordance with law. The findings of Supreme
Court in this appeal and the High Court in the revision shall be D
construed only for the purpose of consideration of the appeal and
revision respectively and the same shall not be construed as
expression of opinion on the merits of the main case.
[Paras 14-16] [550-D-F]
Hardeep Singh v. State of Punjab and Others E
(2014) 3 SCC 92 : [2014] 2 SCR 1 – followed.
Brijendra Singh and Others v. State of Rajasthan
(2017) 7 SCC 706 : [2017] 3 SCR 374; Kailash v.
State of Rajasthan and Another (2008) 14 SCC 51 :
[2008] 3 SCR 702 – relied on. F
Case Law Reference
[2017] 3 SCR 374 relied on Para 4
[2014] 2 SCR 1 followed Para 6
[2008] 3 SCR 702 relied on Para 9 G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1105 of 2019
From the Judgment and Order dated 04.12.2018 of the High Court
of Judicature at Allahabad in Application U/s 482 No. 36010 of 2018
H
544 SUPREME COURT REPORTS [2019] 10 S.C.R.

A Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad, Kunal
Yadav, Ms. Neena Shukla, Advs. for the Appellant.
Ardhendumauli Kumar Prasad, Nikilesh R., Aakash Choudhary,
Manish Sharma, Advs. for the Respondents.
The Judgment of the Court was delivered by
B
R. BANUMATHI, J.
1. Leave granted.
2. This appeal arises out of the order dated 04.12.2018 passed by
the High Court of Judicature at Allahabad in Application No.36010 of
C 2018 in and by which the High Court has affirmed the order passed by
the trial court thereby declining to summon the second respondent Subhash
Chandra Shukla under Section 319 Cr.P.C. as an accused.
3. Brief facts which led to filing of this appeal are as under:-
As per the complaint lodged by complainant-Shiv Prakash Mishra
D
(PW-1), on 06.09.2013 at about 09.00 am, respondent No.2-Subhash
Chandra Shukla along with other accused viz. Sashendra Shukla,
Devender Shukla, Lakshmi Kant Shukla and Rahul Shukla formed
themselves into an unlawful assembly and came to the house of
complainant and started abusing him due to old enmity. The elder brothers
E of the complainant namely Sangam Lal Mishra and Sunil Kumar Mishra
who were living in the opposite house came out and tried to forbade the
accused from abusing. On this, accused Sashendra Shukla fired from
the pistol in his hand with intention to kill Sunil Kumar Mishra. Other
accused beat Sangam Lal Mishra with lathi and dandas while the second
respondent is alleged to have strongly attacked the deceased Sangam
F
Lal Mishra on his head with the butt of home made pistol (katta).
Deceased Sangam Lal Mishra and Sunil Kumar Mishra sustained injuries
and fell down. During treatment, Sangam Lal Mishra succumbed to
injuries. The incident was witnessed by PW-2-Anand Kumar Mishra,
Dev Narain Mishra and the complainant. Shiv Kumar Mishra-
G complainant (PW-1) lodged the complaint before the Police Station, Meja
at 18.15 hours on the same day i.e. 06.09.2013. Based on the complaint,
FIR No.275/2013 was registered in Case Crime No.328A/2013 against
five accused persons viz. Subhash Chandra Shukla, Sashendra Shukla,
Rahul Shukla, Lakshmi Kant Shukla and Devender Shukla under Sections
147, 148, 149, 302, 307, 323 and 504 IPC. Investigation of the case was
H
SHIV PRAKASH MISHRA v. STATE OF UTTAR PRADESH 545
AND ANOTHER [R. BANUMATHI, J.]

taken up by the police of the concerned police station. As per the A
government order, the investigation of the case was transferred to
C.B.C.I.D. C.B.C.I.D. which took up the investigation, examined number
of persons at the office of second respondent and filed charge sheet
No.13/2014 on 19.09.2014 only against three accused persons namely
Sashendra Shukla, Devender Shukla and Laxmi Kant Shukla. Upon
B
further investigation, subsequently on 15.10.2014, a supplementary charge
sheet No.13A/2014 was filed against accused Rahul Shukla.
4. Case was committed to the Sessions Court and charges were
framed in Sessions Trial No.1329/2014. The trial was commenced in or
about August, 2016. The witnesses namely Shiv Prakash Mishra (PW-
1), Anand Kumar Mishra (PW-2) and Sunil Kumar Mishra (PW-3) C
were examined. On 03.10.2017, PW-1-Shiv Prakash Mishra filed a
petition under Section 319 Cr.P.C. to implead the second respondent-
Subhash Chandra Shukla as an accused. The trial court vide order
dated 28.08.2018 dismissed the application filed under Section 319 Cr.P.C.
observing that there are contradictions in the statement of Shiv Prakash D
Mishra (PW-1) and the statement of Anand Kumar Mishra (PW-2) as
to the role of the second respondent. The trial court held that the presence
of the proposed accused Subhash Chandra Shukla at the place of work
at District Mirzapur has been verified and the same has also been
corroborated with the statement of the complainant and presence of the
second respondent in the scene of occurrence is highly doubtful. The E
trial court placed reliance upon Brijendra Singh and others v. State of
Rajasthan (2017) 7 SCC 706. The revision petition preferred by the
complainant before the High Court was also dismissed on the ground
that there are no materials on record to summon respondent No.2 as an
accused. Being aggrieved, the complainant is before us. F
5. The learned counsel for the appellant-complainant has submitted
that the complainant has clearly named all the five accused persons and
the name of second respondent is clearly mentioned in the FIR in Case
Crime No.328A/2013. It was submitted that despite there being positive
direct version of the prosecution witnesses with regard to the attack by G
respondent No.2 on the person of deceased, the Investigating Officer
has expunged his name from the charge sheet on the basis of the statement
of the accused who is working as Junior Engineer in the office of Setu
Nigam, Mirzapur. It was submitted that the High Court erred in not
considering the statement of witnesses PWs 1 to 3 who in their evidence
H
546 SUPREME COURT REPORTS [2019] 10 S.C.R.

A has specifically attributed the overt act to respondent No.2. It was
contended that the High Court failed to appreciate that the distance of
place where the second respondent was working was only about 30
Kms. and while so, the High Court erred in placing reliance upon Bijendra
Singh.
B 6. The learned counsel appearing for the first respondent-State of
Uttar Pradesh has submitted that after proper investigation, C.B.C.I.D.
has filed the charge sheet against three accused persons namely Sashendra
Shukla, Devender Shukla and Laxmi Kant Shukla on 19.09.2014 and
supplementary charge sheet was filed against Rahul Shukla on
15.10.2014. The learned counsel submitted that during the investigation,
C from the examination of number of witnesses employed in the office of
respondent No.2, the Investigating Officer found that respondent No.2
was not involved in the incident and therefore, charge sheet was filed
against other accused and case against the second respondent was
dropped. Placing reliance upon Hardeep Singh v. State of Punjab
D and others (2014) 3 SCC 92 and Brijendra Singh v. State of
Rajasthan (2017) 7 SCC 706, it was submitted that the power under
Section 319 Cr.P.C. has to be exercised sparingly only on the existence
of compelling reasons. It was further submitted that an order under
Section 319 Cr.P.C. would not be made merely on the ground that some
evidence has come on record implicating the person sought to be
E summoned.
7. We have carefully considered the submissions and perused the
impugned order and other materials on record.
8. Before considering the merits of the contention, it is necessary
F to refer to Section 319 Cr.P.C. which reads as under:-
“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
G 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.
……….

H
SHIV PRAKASH MISHRA v. STATE OF UTTAR PRADESH 547
AND ANOTHER [R. BANUMATHI, J.]

(4) Where the Court proceeds against any person under sub- A
section (1), then-
(a) the proceedings in respect of such person shall be
commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may
proceed as if such person had been an accused person B
when the Court took cognizance of the offence upon which
the inquiry or trial was commenced.”
By reading of Section 319 Cr.P.C., it is clear that the power under
Section 319 Cr.P.C. can be exercised by the trial court at any stage
during trial to summon any person as an accused to face the trial if it C
appears from the evidence that such person has committed any offence
for which such person could be tried together with the accused.
9. The standard of proof employed for summoning a person as an
accused person under Section 319 Cr.P.C. is higher than the standard of
proof employed for framing a charge against the accused person. The D
power under Section 319 Cr.P.C. should be exercised sparingly. As held
in Kailash v. State of Rajasthan and another (2008) 14 SCC 51,
“the power of summoning an additional accused under Section 319
Cr.P.C. should be exercised sparingly. The key words in Section
are “it appears from the evidence”….”any person”….”has E
committed any offence”. It is not, therefore, that merely because
some witnesses have mentioned the name of such person or that
there is some material against that person, the discretion under
Section 319 Cr.P.C. would be used by the court.”
10. As held by the Constitution Bench in para (105) in Hardeep F
Singh, the power under Section 319 Cr.P.C. is discretionary and is to be
exercised sparingly which reads as under:-
“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
G
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

H
548 SUPREME COURT REPORTS [2019] 10 S.C.R.

A 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
B 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
C 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
D for the court acting under Section 319 CrPC to form any opinion
as to the guilt of the accused.”
11. The above view was followed in Brijendra Singh as under:-
“13. In order to answer the question, some of the principles
enunciated in Hardeep Singh case (2014) 3 SCC 92 may be
E recapitulated: ….. However, since it is a discretionary power given
to the court under Section 319 CrPC and is also an extraordinary
one, same has to be exercised sparingly and only in those cases
where the circumstances of the case so warrant. The degree of
satisfaction is more than the degree which is warranted at the
F time of framing of the charges against others in respect of whom
charge-sheet was filed. Only where strong and cogent evidence
occurs against a person from the evidence led before the court
that such power should be exercised. It is not to be exercised in a
casual or a cavalier manner. The prima facie opinion which is to
be formed requires stronger evidence than mere probability of his
G complicity.”
12. In the light of the above principles, considering the present
case, having regard to the contradictory statements of the witnesses
and other circumstances, in our view, the trial court and the High Court
rightly held that respondent No.2 cannot be summoned as an accused.
H
SHIV PRAKASH MISHRA v. STATE OF UTTAR PRADESH 549
AND ANOTHER [R. BANUMATHI, J.]

The FIR in Case Crime No.328A/2013 was registered on 06.09.2013 at A
18.15 hours. The name of second respondent is no doubt mentioned in
the FIR and overt act is attributed to him. It is clear from the record that
during the course of investigation, the Investigating Officer recorded the
statements of witnesses namely Rajesh Kumar, Nizamuddin, Nand
Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other
B
seven witnesses who have stated that respondent No.2 was not present
at the place of occurrence at the time of the incident. The Investigating
Officer has also recorded the statement of one Shiv Kumar Gupta and
Sandeep Gupta who are working in the same office in which respondent
No.2 was employed who had stated that respondent No.2 was in the
office at the time of incident. Based on the statements recorded from C
the witnesses, the Investigating Officer found that the second respondent
was posted on the post of Junior Engineer in the Bridge Construction
Unit of Bridge Corporation, Lucknow and he usually resided there and
on 06.09.2013, he was present at his workplace and discharging his
official duties. Based on the materials collected during the investigation,
D
the Investigating Officer recorded the finding that on the date and time
of incident, Subhash Chandra Shukla was not present at the place of
occurrence. Accordingly, the name of Subhash Chandra Shukla was
dropped when the first charge sheet was filed on 19.09.2014. The
supplementary charge sheet was filed against Rahul Shukla on
15.10.2014. Though the name of second respondent was mentioned in E
the FIR, during investigation, it was thus found that the second respondent
was not present in the place of incident and on the basis of the findings
of the Investigating Officer, he was not charge sheeted. Be it noted that
the appellant-complainant has not filed any protest petition then and there.
During investigation, when it was found that the accused was not present
F
at the place of incident, the courts below were right in refusing to summon
respondent No.2 as an accused.
13. As pointed out by the trial court, PW-1 was examined on
various dates from 22.10.2016 to 02.08.2017 and examined on nine
hearing dates. Though, in his chief-examination on 22.10.2016, PW-1
has stated about the presence of Subhash Chandra Shukla and attributing G
overt act to him that he had beaten the deceased Sangam Lal Mishra
with butt of home made pistol, on 28.02.2017, PW-1 in his cross-
examination stated that Subhash Chandra Shukla was on duty at that
time. The relevant portion of the statement of PW-1 reads as under:-
H
550 SUPREME COURT REPORTS [2019] 10 S.C.R.

A “…..Subhash Chandra Shukla does not live in the house. He
does service/job. At the same time in Jigna Police Station District
Mirjapur he was making bridge and due to this reason, he was on
duty there…..”
As pointed out by the trial court and the High Court, PW-1 has
B made contradictory statements in the course of his examination in
connection with the presence of Subhash Chandra Shukla.
14. Anand Kumar Mishra (PW-2) has been examined who is stated
to be the eye witness. PW-2 has been working as Assistant Teacher
(Shiksha Mitra). His duty time is from 07.00 am till 12.00 noon. PW-2
C though stated that he was on leave on the date of occurrence i.e.
06.09.2013, the trial court expressed doubts about his presence at the
time of occurrence. Considering the fact that PW-2 is working as a
teacher and that PW-2 is a co-accused in the cross case, the trial court
and the High Court expressed doubts about the evidence of PW-2 as to
the presence of the second respondent. The evidence brought on record
D during trial does not prima facie show the complicity of respondent
No.2 in the occurrence and the High Court was justified in refusing to
summon respondent No.2 as an accused.
15. The High Court and the trial court concurrently held that the
materials brought on record are not sufficient to summon the second
E respondent as an accused in the present case. No substantial ground is
made out warranting interference and the appeal is liable to be dismissed.
16. In the result, the appeal is dismissed. The trial court shall
proceed with the trial in S.T. No.26 of 2015 in accordance with law. We
make it clear that the findings of this Court in this appeal and the High
F Court in the revision shall be construed only for the purpose of
consideration of the appeal and revision respectively and the same shall
not be construed as expression of opinion on the merits of the main
case.

G
Divya Pandey Appeal dismissed.

H