Power u/s 319 CrPC to summon can be exercised only when evidence is strong & reliable: Top Court sets aside Allahabad HC order refusing to quash summoning order
Justices Pamidighantam Sri Narasimha & Aravind Kumar [02-05-2024]

Read Order: SHANKAR & ORS v. THE STATE OF UTTAR PRADESH & ORS [SC- CRIMINAL APPEAL NO. 2367 OF 2024] 

Tulip Kanth

New Delhi, May 3, 2024: While observing that the deposition of the first informant was not sufficient enough to invoke the extra-ordinary jurisdiction under Section 319 CrPC to summon the appellants as she was not an eye-witness, the Supreme Court has allowed an appeal against an order of the Allahabad High Court whereby a petition filed under Section 482 CrPC was dismissed.

The incident is of the year 2011, when the first informant (PW-1), who is the mother of the deceased, got an FIR lodged 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. 

The investigation officer recorded a statement of PW-1 under Section 161 Cr.P.C wherein she stated that 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. She stated with conviction that Accused Nos. 1-3 along with Mahendra Singh killed the deceased. 

After conducting the investigation, the IO filed a chargesheet where the present appellants were not named as accused. The appeals before the Top Court arose out of a decision of the Allahabad High Court refusing to quash a summoning order passed under Section 319 of the Cr.P.C. by the Additional District & Sessions Judge whereby the Appellants were directed to face a trial for offence under Section 302 IPC. Both the Appellants being identically placed, their appeals were being dealt with together.

The main issue before the Division Bench of Justice Pamidighantam Sri Narasimha and Justice Aravind Kumar was whether there was sufficient material against the Appellant prompting the Trial Court to pass a summoning order under Section 319 Cr.P.C. 

At the outset, it was noticed that the four accused who were charge-sheeted, had passed away and as against them, the Trial  had abated. Referring to the judgment in Hardeep Singh v. State of Punjab [LQ/SC/2014/37] which lays down the principles for exercising power under Section 319 Cr.P.C., the Bench opined that the evidence before the trial court should be such that if it goes 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”, the Bench added.

The Top Court took note of the fact 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 in the FIR falsely and without full information. She had 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 was only in her deposition before the Trial Court the names of the accused resurfaced again.

Moreover, none of the other witnesses, being PWs-2, 3, 4, 5 and 6 had deposed anything about the appellants and it was almost a year after the deposition of PW- 1,that the prosecution chose to file an application under Section 319 Cr.P.C.However, the Becnh did not see any contrast in her deposition given five years later.

“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”, the Bench said.

There were no other witnesses who deposed against the appellants and there was no documentary evidence that the prosecution had collected against the appellants. There was absolutely no role that was attributed to the appellants. Finding the deposition of PW-1 to be also in line and consistent with her statement under Section 161, the Bench held that the higher degree of satisfaction that is required for exercising power under Section 319 Cr.P.C. was not met in the present case.

As per the Bench, 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. Noting that the High Court failed to quash the order of summons, the Bench allowed the appeals.