“Much Stronger Evidence Required Than Mere Probability Of Complicity”: SC

Practically speaking, while ruling most forthrightly on a very significant legal point, the Apex Court in a most learned, laudable, landmark, logical and latest judgment titled Shankar vs The State of Uttar Pradesh & Ors. in Criminal Appeal No. 2367 of 2024 (@ S.L.P. (Crl.) No. 5530 of 2023) With Criminal Appeal No. 2368 of 2024 (@ S.L.P. (Crl.) No. 6321 of 2024) (Diary No. 29192 of 2023) and cited in Neutral Citation No.: 2024 INSC 366 that was pronounced as recently as on May 2, 2024 in the exercise of its criminal appellate jurisdiction has minced just no words to underscore that the degree of satisfaction required to exercise power under Section 319 of the Cr.P.C. has to be much stronger than mere probability of complicity. We thus see that the Apex Court had just no inhibitions in clearly holding that the Trial Court committed a serious error in allowing the application under Section 319 CrPC and in issuing summons to the appellants. Therefore, the High Court should have exercised its jurisdiction under Section 482 of CrPC and quashed the order.

By all accounts, we thus see that the Supreme Court very rightly allowed the petition. The top court thus very rightly held explicitly that the deposition of a first informant (mother of the deceased), who was not an eye witness, was not sufficient enough to invoke the extraordinary jurisdiction under Section 319 CrPC to summon. What also must be noticed is that the top court set aside the Allahabad High Court’s order which had dismissed a plea that had been filed by one Shankar and so also Vishal Singh to quash the summoning order issued against them under Section 319 of the CrPC to face trial in a murder case of 2011 in Kanpur Dehat.

At the very outset, this progressive, pertinent, peculiar and pragmatic judgment that has been authored by Hon’ble Mr Justice Pamidighantam Sri Narasimha and Hon’ble Mr Justice Aravind Kumar sets the ball in motion by first and foremost putting forth in para 2 stating succinctly that, “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 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.”

As we see, the Bench then observes in para 3 that, “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:.”

To put things in perspective, the Bench envisages in para 4 that, “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.”

While shedding light in detail on the facts of the case, the Bench enunciates in para 5 that, “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.”

Do note, the Bench then notes aptly in para 6 that, “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.”

Simply put, the Bench then observes in para 7 that, “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 witnesses spoke about the complicity of the appellants in the commission of the offence.”

Needless to say, the Bench states in para 8 that, “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.”

Further, the Bench lays bare in para 9 that, “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.”

As anticipated, the Bench then unfolds in para 10 that, “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.”

To be sure, the Bench stipulates in para 11 that, “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.”

Analysis:

Most significantly, the Bench mandates in para 16 postulating that, “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 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.”

Be it noted, the Bench notes in para 21 that, “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.”

It is also worth noting that the Bench notes in para 22 that, “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 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.”

As a corollary, the Bench then holds in para 23 that, “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.”

It cannot be glossed over that the Bench points out aptly in para 24 stating that, “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.”

As a corollary, the Bench propounds in para 25 that, “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.”

Finally and resultantly, the Bench then concludes by directing in para 26 that, “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.”

In a nutshell, we thus observe that the Apex Court holds most unequivocally that to summon a person as an additional accused by invoking the powers under Section 319 of the Code of Criminal Procedure, the degree of satisfaction is much stricter. It was also made pretty clear by the top court that the evidence should be such that it should lead to the conviction of the accused if it is unrebutted. No denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.