SHIV PRAKASH MISHRA versus STATE OF UTTAR PRADESH AND ANOTHER

Citation: [2019] 10 S.C.R. 541 · Decided: 23-07-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Dismissed

cites 3 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
541
SHIV PRAKASH MISHRA
v.
STATE OF UTTAR PRADESH AND ANOTHER
(Criminal Appeal No.1105 of 2019)
JULY 23, 2019
[R. BANUMATHI AND A.S. BOPANNA, JJ.]
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 appellant-
complainant 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 –
[2019]  10 S.C.R. 541
   541
A
B
C
D
E
F
G
H
542
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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 stan-
dard 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 spar-
ingly. [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
A
B
C
D
E
F
G
H
543
petition then and there. The courts below were right in refusing
to summon respondent No.2 as

Excerpt shown. Read the full judgment & AI analysis in Lexace.