2007 (8) TMI 752 - SC - Indian Laws

Supreme Court Reinstates Order to Summon u/s 319 Cr.P.C., Citing High Court's Reliance on Inadmissible Evidence.

RAJENDRA SINGH Versus STATE OF UP & ANR

The SC allowed the appeal, overturning the HC's decision and reinstating the Sessions Judge's order to summon Kapil Dev Singh under Section 319 Cr.P.C. ... Murder - gun shot injury - Petition u/s 482 CrPC to quashed the order passed u/s 319 summoning the respondent No. 2 to face the trial - Plea of alibi - statements of the witnesses u/s 161 - accused here viz., Kapil Dev Singh (respondent No.2) and Daya Singh - accused of the tripple murder case were putting pressure on Nigam Singh not to give evidence in the said case - HELD THAT:- We are of the opinion that the statements of the witnesses u/s 161 CrPC 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 u/s 482 Cr.P.C. As mentioned, 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 u/s 161 CrPC. 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 u/s 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 (4) TMI 958 - SUPREME COURT] held '' 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 cannot be tried together with the accused who was before the Court when order u/s 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 as infructuous. 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 u/s 319 CrPC 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. Thus, 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 (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. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order of the High Court is set aside and the order passed by the learned Sessions Judge, Allahabad, summoning respondent No. 2 Kapil Dev Singh to face trial is restored. Issues Involved:1. Legality of the High Court's quashing of the Sessions Judge's order under Section 319 Cr.P.C.2. Admissibility and reliance on statements under Section 161 Cr.P.C.3. Burden of proof regarding the plea of alibi.4. Impact of the acquittal of co-accused on the order under Section 319 Cr.P.C.5. Expediency in hearing the criminal revision against the acquittal of Daya Singh.Issue-wise Detailed Analysis:1. Legality of the High Court's Quashing of the Sessions Judge's Order under Section 319 Cr.P.C.:The Supreme Court examined the High Court's decision to quash the Sessions Judge's order summoning Kapil Dev Singh under Section 319 Cr.P.C. The High Court had relied on statements from witnesses who claimed that Kapil Dev Singh was attending a meeting at the time of the incident. The Supreme Court noted that the High Court committed a manifest error of law by relying on inadmissible evidence, i.e., statements recorded under Section 161 Cr.P.C., which are not substantive pieces of evidence. The Supreme Court emphasized that the High Court's procedure was illegal and unsustainable, thereby restoring the Sessions Judge's order.2. Admissibility and Reliance on Statements under Section 161 Cr.P.C.:The Supreme Court highlighted that statements recorded under Section 161 Cr.P.C. are not substantive evidence and can only be used for contradicting the maker thereof. The High Court's reliance on such statements to conclude that Kapil Dev Singh could not have been present at the crime scene was erroneous. The Supreme Court reiterated that the High Court's decision was based on wholly inadmissible evidence.3. Burden of Proof Regarding the Plea of Alibi:The Supreme Court clarified that the burden of proving an alibi lies on the person who wishes the court to believe in its existence, as per Section 103 of the Evidence Act. The respondent Kapil Dev Singh's plea of alibi should have been established during the trial through evidence, allowing the prosecution to cross-examine the witnesses. The High Court's acceptance of affidavits and statements without proper cross-examination was deemed improper by the Supreme Court.4. Impact of the Acquittal of Co-accused on the Order under Section 319 Cr.P.C.:The Supreme Court addressed the argument that the acquittal of co-accused Daya Singh would nullify the order under Section 319 Cr.P.C. The Court referred to the precedent in Shashikant Singh v. Tarkeshwar Singh, stating that the conclusion of the trial of co-accused does not render the order under Section 319 Cr.P.C. ineffective. The Supreme Court affirmed that the order summoning Kapil Dev Singh remains valid despite the acquittal of Daya Singh.5. Expediency in Hearing the Criminal Revision Against the Acquittal of Daya Singh:The Supreme Court acknowledged the pending criminal revision filed by Rajendra Singh against the acquittal of Daya Singh. The Court requested the High Court to expedite the hearing of Criminal Revision No.1828 of 2007 within four months from the presentation of a certified copy of the Supreme Court's order. This step was deemed necessary to ensure justice and address the interconnectedness of the cases.Conclusion:The Supreme Court allowed the appeal, setting aside the High Court's judgment and restoring the Sessions Judge's order summoning Kapil Dev Singh to face trial. The Court emphasized the inadmissibility of Section 161 Cr.P.C. statements, the proper procedure for establishing an alibi, and the continued validity of the Section 319 Cr.P.C. order despite the acquittal of a co-accused. The Court also urged the High Court to expedite the hearing of the criminal revision against Daya Singh's acquittal.