SUPREME COURT UPHOLDS TRIAL COURT ORDER THAT SUMMONED THE APPELLANT AS CO-ACCUSED TO UNDERGO TRIAL WITH THE MAIN ACCUSED

A two Judge Bench of the Supreme Court comprising of Justice Dipankar Datta and Justice Pankaj Mithal passed a Judgment dated 02.06.2023 in Jitendra Nath Mishra v The State of Uttar Pradesh & Anr in Criminal Appeal No. 978 of 2022 and observed that Section 319 of the Code of Criminal Procedure 1973 (Cr.PC), which envisages a discretionary power, empowers the trial court to proceed against any person not shown or mentioned as an accused if it appears from the evidence that such person has committed a crime for which he ought to be tried together with the accused who is facing trial.

Facts

(1) In the present case, one, Ram Kishun, the Complainant-Respondent No. 2 herein, lodged a Complaint on 28.02.2018 at Khalilabad Police Station, District Sant Kabir Nagar, Uttar Pradesh against the Appellant, Jitendra Nath Mishra, brother of Dharmendra Nath Mishra, and another person stating that on 30.09.2017, the Appellant and other Accused verbally hurled caste-related abuses at the Complainant and his wife and physically assaulted the Complainant. Thus, the Police registered an F.I.R. against the Appellant and other Accused in Crime No. 177 of 2018 under various provisions of the Indian Penal Code 1860 (IPC) including Sections 419 IPC (punishment for cheating by personation), 420 IPC (cheating and dishonestly inducing delivery of property), 323 IPC (punishment for voluntarily causing hurt), 406 IPC (punishment for criminal breach of trust) and 506 IPC (punishment for criminal intimidation) and Section 3 (1)(x) and (s) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act (SC/ST Act) (punishments for offences of atrocities).

(2) Thereafter, the Investigation Officer (I.O.) completed the investigation and filed a Charge Sheet under Section 173 (2) of CrPC (Report of police officer on completion of investigation) before the Ld. Special Judge Court (S.C./S.T. Act) (Trial Court) in Special Sessions Trial No. 354 of 2018 against the Appellant’s brother, Dharmendra Nath Mishra, as the sole accused of the crime under the aforementioned provisions of law.

(3) Thereafter, the Trial Court passed an Order dated 16.10.2021, thereby, summoning the Appellant under Section 319 Cr.P.C. (Power to Proceed against other persons appearing to be guilty of an offence) for undergoing trial along with the main Accused, Dharmendra Nath Mishra for offences punishable under Sections 323, 504, and 506, IPC, and 3(1)(r) and (s) of SC/ST Act.

(4) Thereafter, aggrieved by the Trial Court Order dated 16.10.2021, the Appellant filed a Criminal Appeal bearing No. CRLA 303 of 2022 before the High Court of Judicature at Allahabad under Section 14A(1) of the SC/ST Act seeking setting aside the said the Trial Court Order.

(5) The High Court, vide Order dated 01.06.2022, dismissed the Appellant’s Appeal on the ground that the Appeal is misconceived and devoid of merits.

Contentions of the Appellants

(i) According to the Appellant, the offence allegedly occurred on 30.09.2017, but the Complainant filed the Complaint as late as on02.2018, based on which the FIR was registered. However, there is no cogent explanation for such a belated lodging of the Complaint, and the same is an indicator that the contents of the FIR are absolutely false and that filing of Complaint after a delay of almost 5 months, is an afterthought, and creates serious doubts over the allegations made by the Complainant.

(ii) That there were material contradictions in the versions of the Complainant- PW-1 and his wife- PW2.

(iii) That PW-1 deposed that Dharmendra, his brother (i.e., the Appellant), and an unknown person were travelling in a car, when they stopped PW-1 and his family members, where the alleged incident of assault and abuse took place.

(iv) But PW-2 deposed that the Accused persons (Dharmendra, the Appellant, and an unknown person) arrived at the place of occurrence riding two motorcycles. Therefore, the depositions of PW-1 and PW-2 are absolutely unreliable and untrustworthy.

(v) It is to be found in the versions of PW-1 and PW-2 that since 2015, the Complainant personally knew the Appellant. Hence, (a) by not naming the Appellant in the FIR, (b) by claiming that the Appellant’s brother, Dharmendra was involved in the alleged assault and abuse and (c) by subsequently mentioning the name of the Appellant as a co-Accused in the course of recording evidence, are all made with a view to harass the Appellant and make him face an unnecessary trial.

(vi) Thus, the Appellant was of the view that the exercise of power under Section 319 CrPC by the Ld. Trial Court of summoning the Appellant as a co-Accused to undergo trial with the main Accused, Dharmendra, is arbitrary and that the High Court erred in law as well as on facts in not interfering with such an Order dated 16.10.2021 of the Trial Court, while exercising appellate jurisdiction.

Supreme Court Analysis

Aggrieved by the High Court Order dated 01.06.2022, the Appellant filed Criminal Appeal bearing No. CRLA 978 of 2022 before the Supreme Court. The Apex Court passed a Judgment dated 02.06.2023, and made the following observations:

1) The Supreme Court referred to the case of Hardeep Singh vs. State of Punjab (2014) 3 SCC 92, where it was observed as follows:

(i) That Section 319 Cr.PC, which envisages a discretionary power, empowers the Trial Court to proceed against any person not shown or mentioned as an accused, if it appears from the evidence that such a person has committed a crime for which he ought to be tried together with the accused who is facing the trial.

(ii) That such discretionary power can be exercised by the Trial Court against a person (a) who is not named in the FIR or (b) who is named in the FIR but is not shown as an accused in the charge sheet.

(iii) Further, for the exercise of discretionary power under Section 319 Cr.PC it is essential that the evidence on record must show the involvement of a person in the commission of a crime and that the said person, who has not been arraigned as an accused, should face trial together with the accused already arraigned.

(iv) However, the Trial Court while exercising the discretionary power under Section 319 Cr.PC, must not act mechanically merely on the ground that some evidence has come on record implicating the person sought to be summoned.

(v) The Apex Court observed in the present case that both the Complainant-PW1 and his wife-PW2, while testifying before the Trial Court, described the manner of assault and abuse by Dharmendra and the Appellant in a similar way and there were no contradictions thereof.

(vi) The Supreme Court observed that as the Appellant is a sibling of Dharmendra and he is named as one of the assailants, the material for forming the requisite satisfaction for summoning the Appellant, cannot be said to be non-existent.

(vii) That with regard to the Appellant’s contentions regarding delay in registration of the FIR, material contradiction in the versions of the Complainant and his wife, absence of any public witness, etc are concerned, the same have been left open to be urged by the Appellant in the course of the proceedings before the Ld. Trial Court.

Conclusion

Thus, based on the aforesaid observations, the Apex Court upheld the Trial Court Order dated 16.10.2021 that summoned the Appellant as co-Accused to undergo trial with the main Accused and further, directed the Ld. Trial Court to expedite the trial and to take into consideration the points contended by the Appellant. As a result, the High Court Order dated 01.06.2022 was allowed and the Appeal filed by the Appellant-co-Accused was dismissed.

Suneel Jaiswal

Associate

The Indian Lawyer