Supreme Court of India
JITENDRA NATH MISHRA versus STATE OF U.P. & ANR on 2 June 2023
642
SUPREME COURT REPORTS
[2023] 7 S.C.R.
A
JITENDRA NATH MISHRA
v.
STATE OF U.P. & ANR
(Criminal Appeal No. 978 of 2022)
BJUNE 02, 2023
[DIPANKAR DATTA AND PANKAJ MITHAL, JJ.]
Code of Criminal Procedure, 1973 – s.319 – Exercise ofpower under – Held: What is essential for exercise of the power u/s.319 is that the evidence on record must show the involvement of aCperson in the commission of a crime and that the said person, whohas not been arraigned as an accused, should face trial togetherwith the accused already arraigned – However, the court holding atrial, if it intends to exercise power conferred by s.319 must not actmechanically merely on the ground that some evidence has come onDrecord implicating the person sought to be summoned; its satisfactionpreceding the order thereunder must be more than prima facie asformed at the stage of a charge being framed and short ofsatisfaction to an extent that the evidence, if unrebutted, would leadto conviction – In the present case, the FIR disclosed offences havingbeen committed by one ‘D’, his brother (the appellant) and anEunknown person – Complainant and his wife described the mannerof assault inflicted by ‘D’ and the appellant and the utterances usedby them touching the caste of the complainant and his wife – It isnot that involvement of the appellant in the crime was referred tofor the first time in the court – Thus, though, the appellant was notFnamed 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 isnamed as one of the assailants, the material for forming the requisitesatisfaction cannot be said to be non-existent – Special Court formedthe requisite satisfaction prior to summoning the appellant to facetrial with ‘D’ – Impugned order affirming the order of Special CourtGcannot 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.H
Case Law Reference
[2014] 2 SCR 1relied onPara 6
CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.978 of 2022.
From the Judgment and Order dated 01.06.2022 of the High Courtof Judicature at Allahabad in CRLA No.303 of 2022.
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.
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1. This appeal, by special leave, takes exception to an order dated1[st] June, 2022 of the Allahabad High Court. The impugned order dismissedan appeal filed by the appellant under Section 14A(1) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities Act, 1989(hereafter ‘1989 Act’). Under challenge in the appeal was a summoningorder dated 16[th] October, 2021 passed by the relevant Special Courtunder the 1989 Act, in exercise of power conferred on him by Section319, Code of Criminal Procedure (hereafter, ‘Cr. PC’).
2. A First Information Report (hereafter ‘FIR’) came to beregistered by the Khalilabad Police Station, District Sant Kabir Nagar,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 thecomplainant. Accusations were levelled against (1) Dharmendra NathMishra (hereafter ‘Dharmendra’); (2) brother of Dharmendra; and (3)an ‘unknown person’ of having assaulted and abused the complainantand his wife, amounting to commission of offences punishable under theaforesaid provisions. Investigation of the FIR culminated in a charge-sheet under Section 173(2) of the Cr. PC being filed, wherein Dharmendrawas shown as the sole accused. The Special Court constituted underthe 1989 Act took cognisance of the offence and framed charges againstDharmendra, whereafter the trial commenced. In course thereof, thecomplainant and his wife deposed as PW-1 & PW-2 respectively.According to them, Dharmendra and the appellant together with anunknown person had assaulted them apart from hurling caste relatedabuses.
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A3. At this stage, the Special Court passed the order dated16.10.2021 summoning the appellant for trial along with Dharmendrafor offences punishable under Sections 323, 504 and 506, IPC and 3(1)(r)& (s) of the 1989 Act. The said order dated 16[th] October, 2021 wasunsuccessfully challenged by the appellant before the High Court which,by its order dated 1[st] June, 2022, dismissed the appeal of the appellantBunder Section 14A(1) of the 1989 Act as noted above.4. Mr. Pandey, learned counsel appearing for the appellantcontended as follows:
(i) The FIR is grossly delayed. Although the incident of assaultCand abuse giving rise to the FIR allegedly happened on 30[th] September,2017, the complainant lodged the complaint as late as on 28[th] February,2018. There is no cogent explanation for such belated lodging of complaintand this is an indicator that the contents of the FIR are absolutely false.
(ii) There are material contradictions in the versions of PW-1 &DPW- 2. While PW-1 deposed that Dharmendra, his brother (i.e., theappellant) and an unknown person were travelling in a car when theystopped PW-1 and his family members whereafter the alleged incidentof assault and abuse took place, PW-2 deposed that the accused persons(Dharmendra, the appellant and an unknown person) arrived at the placeof occurrence riding two motorcycles. Therefore, the depositions of PW-E1 & PW-2 are absolutely unreliable and untrustworthy.
(iii) It is to be found in the versions of PW-1 & PW-2 that since2015, they personally knew the appellant; hence, not naming the appellantin the FIR and instead disclosing that the brother of Dharmendra too hadinvolved himself in the alleged assault and abuse and taking the name ofFthe appellant as a co-accused only in course of recording of evidence isa clear embellishment, which has been made with a view to harass theappellant by dragging him to face an unnecessary trial.
(iv) The appellant and Dharmendra are siblings no doubt; but theyhave three other siblings. If indeed the appellant was one of several co-Gaccused, it defies reason as to why the complainant knowing the appellantquite well would not name him and vaguely allege that the brother ofDharmendra too had assaulted and abused the complainant.
(v) Falsity of the versions of PW-1 & PW-2 would be manifest ifone were to read their depositions. The incident giving rise to the trialHoccurred on 30[th] September, 2017 at 6.00 pm, which happened to be the day of Dussehra. Although, it was alleged that the accused personsassaulted and abused the complainant and his wife in a public placewhile they were returning home, no other public witness has been citedto prove the prosecution case of assault and abuse. It is, therefore, aclear case of false implication.
5. Based on such contentions, Mr. Pandey argued that exerciseof power under Section 319, Cr. PC by the Special Court is arbitrary andthat the High Court erred in law as well as on facts in not interferingwith such order in exercise of appellate jurisdiction. He, thus, prayed forquashing of the order 16[th] October, 2021 of the Special Court, sinceaffirmed by the High Court on 1[st] June, 2022.
6. Opposing the appeal, Mr. Singh, learned senior counselrepresenting the State of Uttar Pradesh, contended that the law relatingto summoning a person for being tried along with an accused is no longerres integra. He invited our attention to the Constitution Bench decisionof this Court in Hardeep Singh vs. State of Punjab: (2014) 3 SCC 92and placed reliance on paragraphs 106, 117.4 and 117.6 thereof. It washis contention that the Special Court duly took into consideration the oralevidence adduced by the complainant and his wife and summoned theappellant under Section 319, Cr. PC; hence, such order does not sufferfrom any illegality, far less patent illegality. He also contended that thepoints urged by the appellant to have the impugned order set aside arepoints which he can urge in defence before the Special Court. Accordingto him, the impugned order of the High Court, affirming the summoningorder of the Special Court, does not call for any interference and, assuch, he prayed that the appeal be dismissed.
7. We have heard the parties and perused the materials on record.
8. Having bestowed due consideration to the rival claims, we areof the view that any expression of ours while dealing with each andevery point urged on behalf of the appellant could result in prejudgment;and thereby hinder a fair trial hence, adopting a cautious approach, wepropose to restrict our consideration solely to the question as to whetherthe evidence adduced by the complainant and his wife in course ofrecording of their depositions did justify the Special Court to make theorder it did.
9. Section 319, Cr. PC, which envisages a discretionary power,empowers the court holding a trial to proceed against any person not A
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Ashown or mentioned as an accused if it appears from the evidence thatsuch person has committed a crime for which he ought to be tried togetherwith the accused who is facing trial. Such power can be exercised bythe court qua a person who is not named in the FIR, or named in theFIR but not shown as an accused in the charge-sheet. Therefore, whatis essential for exercise of the power under section 319, Cr. PC is thatBthe evidence on record must show the involvement of a person in thecommission of a crime and that the said person, who has not beenarraigned as an accused, should face trial together with the accusedalready arraigned. However, the court holding a trial, if it intends toexercise power conferred by section 319, Cr. PC, must not actCmechanically merely on the ground that some evidence has come onrecord implicating the person sought to be summoned; its satisfactionpreceding the order thereunder must be more than prima facie as formedat the stage of a charge being framed and short of satisfaction to anextent that the evidence, if unrebutted, would lead to conviction.
D10. In the present case, the FIR disclosed offences having beencommitted by Dharmendra, his brother and an unknown person. Boththe complainant and his wife, while testifying before the court, describedthe manner of assault on the former inflicted by Dharmendra and theappellant and the utterances used by Dharmendra and the appellant,inter alia, touching the caste of the complainant and his wife. At least,Eon 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 ofany reference to the brother of Dharmendra who had joined Dharmendrain assaulting and abusing the complainant or that the allegations are entirelyDharmendra centric with none else playing any role. It is not thatFinvolvement of Dharmendra’s brother in the crime is being referred tofor the first time in the court. True it is, the appellant was not named inthe FIR; but, that by itself, cannot be held to be decisive. Once it isconceded that the appellant is a sibling of Dharmendra and he is namedas one of the assailants, the material for forming the requisite satisfactioncannot be said to be non-existent. For the purpose of passing an orderGunder section 319, Cr. PC, it is sufficient to form a satisfaction of thenature indicated in paragraph 106 of the decision in Hardeep Singh(supra). We are satisfied, on facts and in the circumstances, that theSpecial Court formed the requisite satisfaction prior to summoning theappellant to face trial with Dharmendra.H
11. In such view of the matter, the order of the Special Benchdated 16[th] October, 2021 and the impugned order of the High Courtdated 1[st] June, 2022 affirming it cannot be faulted.
12. In so far as the points regarding delay in registration of theFIR, material contradiction in the versions of the complainant and hiswife, absence of any public witness as well as the circumstances thatthe complainant and his wife were known to the appellant since 2015are concerned, the same are left open to be urged by the appellant incourse 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, inthe process, it shall proceed uninfluenced by reason of its order underSection 319, Cr. PC having been upheld by the High Court and thisCourt. The points raised on behalf of the appellant, recorded above, ifraised before it as well as other points, if any, shall be given theconsideration the same deserve.
15. In view of dismissal of the appeal, nothing survives for decisionon the application for stay. The same stands dismissed together with anyother application, if any.
Divya Pandey(Assisted by : Roopanshi Virang, LCRA)
Appeal dismissed.
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