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 into an unlawful assembly and came to the house of the appellantcomplainant 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 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 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 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 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 – 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 .
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 evidence that such person has committed any offence for which such person could be tried together with the accused. 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 power under Section 319 Cr.P.C. should be exercised sparingly. [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. 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 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 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 petition then and there. The courts below were right in refusing to summon respondent No.2 as an accused. Though, in his chiefexamination 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 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 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 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
(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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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