http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

CASE NO.:

Appeal (crl.) 1019 of 2007

PETITIONER:

Rajendra Singh

RESPONDENT:

State of U.P. & Anr

DATE OF JUDGMENT: 06/08/2007

BENCH:

G.P. Mathur & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1019 OF 2007

(Arising out of Special Leave Petition (Crl.) No.3182 of 2006)

G. P. MATHUR, J.

Leave granted.

2. This appeal, by special leave, has been preferred against the

judgment and order dated 24.4.2006 of Allahabad High Court by

which the petition filed by the respondent No. 2 Kapil Dev Singh

under Section 482 Cr.P.C. was allowed and the order dated 26.5.2005

passed by the learned Sessions Judge, Allahabad under Section 319

Cr.P.C. summoning him to face trial under Section 302 IPC was set

aside.

3. In the morning hours between 6.30 a.m. and 7.00 a.m. on

15.12.1995, three persons, viz., the wife, son and brother-in-law of

Nigam Singh were murdered. An FIR of the incident was lodged by

Nigam Singh at 8.10 a.m. on 15.12.1995 at P.S. George Town,

Allahabad. After investigation, charge sheet was submitted and four

persons, viz., Kapil Dev Singh (respondent No. 2 herein), Suresh

Singh, Sukhpal Singh and Kamlesh Singh were put up for trial. The

present incident took place on 16.3.2002 when the trial of the

aforesaid tripple murder case was going on. According to the case of

the prosecution, the accused of the tripple murder case were putting

pressure on Nigam Singh not to give evidence in the said case. It is

alleged that at about 6.00 p.m. on 16.3.2002, the first informant

Rajendra Singh (appellant herein) and his brother Ajay Singh were

returning after getting their field harvested. At that time, Nigam Singh

also arrived there on a scooter. The accused in the present case, viz.,

Kapil Dev Singh (respondent No. 2 herein) and Daya Singh stopped

him and asked him not to give evidence in the tripple murder case.

Nigam Singh, however, did not agree to their suggestion not to give

evidence and tried to move ahead on his scooter. Kapil Dev Singh

then instigated his brother Daya Singh, who fired upon Nigam Singh

from a country-made pistol. In spite of receiving the gun shot injury,

Nigam Singh managed to escape from there and informed about the

incident to his family members. Meanwhile, the first informant,

Rajendra Singh, and his elder brother Ajay Singh also reached there.

However, Nigam Singh succumbed to his injuries shortly thereafter.

Thereafter, Rajendra Singh lodged an FIR of the incident at 8.30 p.m.

on 16.3.2002 at P.S. Pipri. The police after investigation submitted

charge-sheet only against Daya Singh and not against Kapil Dev

Singh. In the trial before the learned Sessions Judge, Allahabad, the

statement of the first informant, Rajendra Singh was recorded where

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

he specifically stated about the presence of Kapil Dev Singh and the

role played by him in the incident. The prosecution then moved an

application for summoning Kapil Dev Singh under Section 319

Cr.P.C. The learned Sessions Judge held that Kapil Dev Singh is

named in the FIR and the first informant Rajendra Singh in his

statement had corroborated the version given in the FIR and had

assigned the role of exhortation to him and after taking note of the

relevant law on the subject, allowed the application by the order dated

26.5.2005 and directed that Kapil Dev Singh be summoned to face the

trial.

4. Kapil Dev Singh then filed a petition under Section 482 Cr.P.C.

for quashing the aforesaid order before the High Court. It appears that

in the petition under Section 482 Cr.P.C. the statements of certain

witnesses who had been examined by the investigating officer during

the course of investigation were annexed which included the

statement of S.L. Yadav, Vijay Kumar Singh, Up Nagar Ayukta,

Shankar Lal Jaiswal, Mukhya Nagar Adhikari and some other officials

of Nagar Nigam, who had stated that respondent No. 2 Kapil Dev

Singh was working as Sahayak Nagar Ayukta, Nagar Nigam,

Allahabad and between 4.30 p.m. and 5.30 p.m. on 16.3.2002, he was

attending a meeting in the Nagar Nigam. After referring to the

aforesaid statements, the High Court concluded as under :

"The statement of those witnesses do not leave any room

for doubt that the applicant was present in the meeting of

Nagar Nigam at the time of incident and could not reach

the place of occurrence which is 35 Kms. from Allahabad.

The applicant is a brilliant student and has good academic

career and has also been selected in U.P. Public Services

Examination. The family of the applicant is well educated

family. The father of the applicant was also selected in

Provincial Civil Services (Judicial) in Uttar Pradesh in

1983 but because of the animosity prevalent in the village,

he was murdered. Now the said animosity is the result of

the present case."

The High Court then referred to Municipal Corporation of

Delhi v. Ram Kishan Rohtagi (1983) 1 SCC 1, wherein it is observed

that power under Section 319 is really an extraordinary power which

should be used very sparingly and only if compelling reasons exist for

taking cognizance against the other person against whom action has

not been taken. On the basis of the aforesaid authority, the High Court

posed the question whether compelling ground existed or not and

whether there was no option but to summon the accused. Thereafter,

the High Court referred to the statements of six persons which had

been recorded by the investigating officer, which showed that between

4.30 p.m. and 5.30 p.m. Kapil Dev Singh was present in the meeting

and then observed as under :

"No doubt, it might have been a probable defence which

the court could not consider at the time of proceeding

under Section 319 Cr.P.C. but as the power has to be

exercised sparingly, the Court should have examined all

the aspects of the case."

Observing as above, the High Court allowed the petition under

Section 482 Cr.P.C. and quashed the order dated 26.5.2005 passed by

the learned Sessions Judge under Section 319 Cr.P.C. summoning the

respondent No. 2 to face the trial.

5. We have heard Shri Manoj Goel, learned counsel for the

petitioner, Shri S.R. Singh, learned senior counsel for respondent No.

2 and have perused the record. Sub-section (1) of Section 319 says

that where in the course of any enquiry into, or trial of, an offence, it

appears from the evidence that any person not being the accused has

committed any offence for which such person could be tried together

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

with the accused, the Court may proceed against such person for the

offence which he appears to have committed. The scope of power

under Section 319 Cr.P.C. was explained in Municipal Corporation of

Delhi v. Ram Kishan Rohtagi (1983) 1 SCC 1 and it was held as

under :

"Section 319 is really an extraordinary power

which is conferred on the Court and should be used very

sparingly and only if compelling reasons exist for taking

cognizance against the other person against whom action

has not been taken. If the prosecution can at any stage

produce evidence which satisfies the court that the other

accused or those who have not been arrayed as accused

against whom proceedings have been quashed have also

committed the offence, the court can take cognizance

against them and try them along with the other accused.

The mere fact that the proceedings have been quashed

under Section 482 against some of the accused persons

(respondents 2 to 5) will not prevent the court from

exercising its discretion if it is fully satisfied that a case

for taking cognizance against them has been made out on

the additional evidence led before it."

In Joginder Singh v. State of Punjab (1979) 1 SCC 345 it was

held as under :

"The summoning of additional persons by the Sessions

Court under Section 319 of those who appear to be

involved in the crime from the evidence led during the

trial and directing them to stand their trial along with

those who have been committed, must be regarded as

incidental to the cognizance under Section 193 and part

of the normal process that follows it. Section 319(4)(b)

enacts a deeming provision in that behalf dispensing with

the formal committal order against the newly added

accused.

The phrase "any person not being the accused" in

Section 319 does not exclude from its operation an

accused who has been released by the police under

Section 169."

In Kishun Singh v. State of Bihar (1993) 2 SCC 16, it was

observed:

"11. On a plain reading of Sub-section (1) of Section

319 there can be no doubt that it must appear from the

evidence tendered in the course of any inquiry or trial

that any person not being the accused has committed any

offence for which he could be tried together with the

accused. This power, it seems clear to us, can be

exercised only if it so appears from the evidence at the

trial and not otherwise. Therefore, this sub-section

contemplates existence of some evidence appearing in

the course of trial wherefrom the Court can prima facie

conclude that the person not arraigned before it is also

involved in the commission of the crime for which he can

be tried with those already named by the police. Even a

person who has earlier been discharged would fall within

the sweep of the power conferred by Section 319 of the

Code. ........................"

It is, therefore, clear that if the evidence tendered in the course

of any enquiry or trial shows that any person not being the accused

has committed any offence for which he could be tried together with

the accused, he can be summoned to face trial even though he may not

have been charge sheeted by the investigating agency or may have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

been discharged at an earlier stage.

6. The High Court has basically relied upon the statements of six

witnesses which had been recorded by the investigating officer under

Section 161 Cr.P.C. to record a positive finding that the respondent

could not have been present at the scene of commission of the crime

as he was present in a meeting of Nagar Nigam at Allahabad. A

statement under Section 161 Cr.P.C. is not a substantive piece of

evidence. In view of the proviso to sub-section (1) of section 162

Cr.P.C., the statement can be used only for the limited purpose of

contradicting the maker thereof in the manner laid down in the said

proviso. Therefore, the High Court committed a manifest error of law

in relying upon wholly inadmissible evidence in recording a finding

that Kapil Dev Singh could not have been present at the scene of

commission of the crime.

7. That apart, the plea taken by the respondent Kapil Dev Singh in

his petition under Section 482 Cr.P.C. was that of alibi. Section 103

of the Evidence Act says that the burden of proof as to any particular

fact lies on that person who wishes the Court to believe in its

existence, unless it is proved by any law that the proof of that fact lie

on any particular person. The second illustration to section 103 reads

as under :

"B wishes the Court to believe that at the time in

question, he was elsewhere. He must prove it."

This provision makes it obvious that the burden of establishing

the plea of alibi set up by the respondent No. 2 in the petition filed by

him under Section 482 Cr.P.C. before the High Court lay squarely

upon him. There is hardly any doubt regarding this legal proposition.

See Gurcharan Singh v. State of Punjab AIR 1956 SC 460, Chandrika

Prasad Singh v. State of Bihar AIR 1972 SC 109 and State of Haryana

v. Sher Singh AIR 1981 SC 1021. This could be done by leading

evidence in the trial and not by filing some affidavits before the High

Court. In such a case the prosecution would have got an opportunity

to cross-examine those witnesses and demonstrate that their testimony

was not correct. Learned counsel for the appellant has submitted that

in fact no affidavits were filed in the High Court but what was filed

were copies of two or three affidavits which were given by some

persons before the Superintendent of Police, Allahabad. Thus, there

was absolutely no legal evidence in support of the plea of alibi of

Kapil Dev Singh, which the High Court chose to rely upon and accept

for the purpose of quashing the order passed by the learned Sessions

Judge.

8. Shri S.R. Singh, learned senior counsel for the respondent No.

2, has submitted that though the statements recorded by the

investigating officer under Section 161 Cr.P.C. are not substantive

piece of evidence, but the High Court while exercising power under

Section 482 Cr.P.C. could have looked into attending circumstances,

namely, the statements and the affidavits filed by some of these

persons before the Superintendent of Police, Allahabad. Learned

counsel has also submitted that the summoning order itself must

exhibit special circumstances warranting such a course of action and if

no special circumstances are demonstrated in the order, the

summoning order is per se illegal. Learned counsel has further

submitted that the trial of co-accused Daya Singh has concluded and

he has been acquitted by the learned Sessions Judge and in such

circumstances it will not be a sound exercise of discretion to set aside

the order passed by the High Court and restore that of the learned

Sessions Judge.

9. Shri Manoj Goel, learned counsel for the appellant, has, on the

other hand, submitted that the name of Kapil Dev Singh was

mentioned in the FIR and a specific role was attributed to him. In his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

statement in Court the first informant Rajendra Singh had

corroborated the version given in the FIR and had not only mentioned

about the presence of Kapil Dev Singh at the scene of commission of

the crime but had assigned specific role to him. He has also submitted

that having regard to the background of the case, viz., the earlier

tripple murder case in which Nigam Singh was the first informant and

the main eye-witness, the accused had a strong motive to commit his

murder. Learned counsel has thus submitted that the ingredients of

Section 319 Cr.P.C. were fully satisfied and the learned Sessions

Judge had rightly exercised the power and had summoned the

accused. Shri Goel has also submitted that in the present case, the

learned Sessions Judge while acquitting the co-accused Daya Singh in

the trial which concluded much later has referred to the impugned

order of the High Court dated 24.4.2006 at several places in the

judgment and has observed that fifty per cent of the prosecution case

has already been disbelieved by the High Court. Learned counsel has

also made a statement that the first informant Rajendra Singh has filed

Criminal Revision No.1828 of 2007 (Rajendra Singh v. Daya Singh)

challenging the acquittal of Daya Singh which has been admitted by

the High Court on 11.7.2007 and is pending for hearing.

10. Having considered the submissions made by learned counsel

for the parties, we are of the opinion that the statements of the

witnesses under Section 161 Cr.P.C. being wholly inadmissible in

evidence could not at all be taken into consideration. The High Court

relied upon wholly inadmissible evidence to set aside the order passed

by the learned Sessions Judge. That apart, no finding on a plea of

alibi can be recorded by the High Court for the first time in a petition

under Section 482 Cr.P.C. As mentioned above, the burden to prove

the plea of alibi lay upon the accused which he could do by leading

evidence in the trial and not by filing some affidavits or statements

purported to have been recorded under Section 161 Cr.P.C. The

whole procedure adopted by the High Court is clearly illegal and

cannot be sustained. The other argument based upon the acquittal of

co-accused Daya Singh has also no merits. The question as to whether

an order passed under Section 319 Cr.P.C. would cease to be

operative if the trial of the co-accused has been concluded, has been

considered in Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC

738. and it was held as under in para 9 of the report :

"9. The intention of the provision here is that where in

the course of any enquiry into, or trial of, an offence, it

appears to the court from the evidence that any person

not being the accused has committed any offence, the

court may proceed against him for the offence which he

appears to have committed. At the stage, the court would

consider that such a person could be tried together with

the accused who is already before the Court facing the

trial. The safeguard provided in respect of such person is

that, the proceedings right from the beginning have

mandatorily to be commenced afresh and the witnesses

re-heard. In short, there has to be a de novo trial against

him. The provision of de novo trial is mandatory. It

vitally affects the rights of a person so brought before the

Court. It would not be sufficient to only tender the

witnesses for the cross-examination of such a person.

They have to be examined afresh. Fresh examination in

chief and not only their presentation for the purpose of

the cross-examination of the newly added accused is the

mandate of Section 319(4). The words 'could be tried

together with the accused' in Section 319(1), appear to be

only directory. 'Could be' cannot under these

circumstances be held to be 'must be'. The provision

cannot be interpreted to mean that since the trial in

respect of a person who was before the Court has

concluded with the result that the newly added person

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

cannot be tried together with the accused who was before

the Court when order under Section 319(1) was passed,

the order would become ineffective and inoperative,

nullifying the opinion earlier formed by the Court on the

basis of evidence before it that the newly added person

appears to have committed the offence resulting in an

order for his being brought before the Court."

Therefore the mere fact that trial of co-accused Daya Singh has

concluded cannot have the effect of nullifying or making the order

passed by the learned Sessions Judge on 26.5.2005 as infructuous.

11. The learned Sessions Judge trying the case of co-accused Daya

Singh seems to have been swayed by the fact that the High Court had

not only set aside the order passed by the learned Sessions Judge

under Section 319 Cr.P.C. by which the respondent No. 2 Kapil Dev

Singh was summoned to face trial but had also recorded a finding in

his favour that he was present in a meeting in Nagar Nigam,

Allahabad. Since we are setting aside the order of the High Court, the

aforesaid finding of the learned Sessions Judge would automatically

go and cannot stand.

12. Having regard to the facts and circumstances of the case and in

the interest of justice, we consider it desirable that the criminal

revision filed by Rajendra Singh against the acquittal of Daya Singh

should be heard by the High Court as expeditiously as possible. We

accordingly request the High Court to decide Criminal Revision

No.1828 of 2007 (Rajendra Singh v. Daya Singh) expeditiously

preferably within a period of four months of presentation of a certified

copy of this order before the High Court.

13. In the result, the appeal succeeds and is hereby allowed. The

impugned judgment and order dated 24.4.2006 of the High Court is

set aside and the order dated 26.5.2005 passed by the learned Sessions

Judge, Allahabad, summoning respondent No. 2 Kapil Dev Singh to

face trial is restored.