SHANKAR versus THE STATE OF UTTAR PRADESH & ORS.
[2024] 6 S.C.R. 10, Supreme Court of India, 2024
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2024] 6 S.C.R. 10 : 2024 INSC 366
Shankar 
v. 
The State of Uttar Pradesh & Ors.
(Criminal Appeal No. 2367 of 2024)
02 May 2024
[Pamidighantam Sri Narasimha and Aravind Kumar, JJ.]
Issue for Consideration
Whether there is sufficient material against the appellant prompting 
the trial court to pass a summoning order u/s. 319 Cr.P.C.
Headnotes
Code of Criminal Procedure, 1973 – s. 319 – Summoning order 
u/s. 319 – Legality of – Appellants facing trial for offence u/s. 
302 – Summoning order passed u/s. 319 by the trial court – High 
Court refused to quash the summoning order – Correctness:
Held: Degree of satisfaction required to exercise power u/s. 319 
is much stricter, considering that it is a discretionary and an extra-
ordinary power – Only when the evidence is strong and reliable, the 
power can be exercised – It requires much stronger evidence than 
mere probability of his complicity – Appellants were named in the 
first information statement by the first informant despite not being 
an eyewitness to the offence, however, in the statement u/s. 161 
Cr.P.C, first informant clarified that her family had a long-standing 
enmity with appellants’ family; that the names of appellants were 
written in the FIR falsely and without full information; and that the 
appellants were not involved in the murder of her son – Even in 
the charge sheet, the names of the appellants were not mentioned 
as accused – It is only in her deposition before the trial court the 
names of the
accused resurfaced again – Almost a year later, 
the prosecution chose to file an application u/s. 319 – Change of 
circumstance which the prosecution seeks to contend on the basis 
of first informant’s deposition does not satisfy the requirement of s. 
319 at all – First informant not being an eye-witness, her deposition 
not sufficient enough to invoke the extra-ordinary jurisdiction u/s. 319 
to summon the appellants – No other witnesses deposed anything 
against the appellants – No documentary evidence collected against 
the appellants – Also no role attributed to the appellants – These 
factors when looked in a holistic manner, make it clear that the
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Shankar v. The State of Uttar Pradesh & Ors.
higher degree of satisfaction required for exercising power u/s. 319 
not met with – Trial court erred in allowing the application u/s. 319 
and issuing summons to the appellants – High Court having failed 
to quash the order of summons, the order passed by the trial court 
as also by the High Court set aside. [Paras 18-26]
Case Law Cited
Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : 
(2014) 3 SCC 92 – referred to.
List of Acts
Code of Criminal Procedure, 1973.
List of Keywords
Sufficient material; Summoning order; Degree of satisfaction; 
Power u/s. 319 CrPC; Discretionary and an extra-ordinary power.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2367 
of 2024
From the Judgment and Order dated 04.04.2023 of the High Court 
of Judicature at Allahabad in A482 No. 30221 of 2017
With
Criminal Appeal No. 2368 of 2024
Appearances for Parties
Ms. Preetika Dwivedi, Abhisek Mohanty, Advs. for the Appellant.
Yasharth Kant, Jitendra Kumar Tripathi, Ankit Goel, Dhawal Uniyal, 
Nikhil Sharma, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
1.	
Leave granted.
2.	
The present appeals arise out of a decision of the High Court of 
Judicature at Allahabad dated 04.04.2023 in Application under Section 
482 No. 30221 of 2017, whereby the High Court refused to quash 
a summoning order dated 24.08.2017 passed under Section 319
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of the Cr.P.C. by the Additional District & Sessions Judge, Kanpur 
Dehat, where the Appellants herein were directed to face a trial for 
offence under Section 302 IPC. Both the Appellants being identically 
placed, their appeals are being dealt with together. 
3.	
The issue that arises for our consideration is whether there is 
sufficient material against the Appellant prompting the Trial Court to 
pass a summoning order under Section 319 Cr.P.C. The principles of 
law being settled by the judgments of the constitutional benches of 
this Court, this question hinges upon the facts of the present case, 
which is as follows: 
4.	
Facts and investigation: On 10.05.2011, the first informant (PW-
1), who is the mother of the deceased, got an FIR lodged at P.S. 
Ghatampur, informing that her son was found dead near a tubewell 
in the wheat field of a fellow villager. In her statement, she alleged 
that her son was murdered by the present appellants, the father 
of the appellants, along with two others, due to certain old enmity 
existing between the two families. 
5.	
The following day, the investigation officer recorded a statement of 
PW-1 under Section 161 Cr.P.C. In this statement she also stated 
that the deceased was quarrelsome, had a habit of picking up fights 
with other villagers and had a few criminal cases going on against 
them. Previously, he had also picked up fights with the father of 
the appellants. She stated
that on 08.05.2011, Mahendra Singh, a 
gangster of the same village, came on a bike and asked the deceased 
to accompany him, on the pretext that Mahendra Singh would 
pay back a sum of Rs. 8,000 which he had borrowed from PW-1, 
and also that he would help the deceased arrive at a compromise 
with Accused No. 1 (father of the appellants) and Accused No. 3. 
Accordingly, the deceased left on the motorcycle of Mahendra Singh. 
She stated that Accused Nos. 1-3 were standing at a distance noticing 
the developments. She stated with conviction that Accused Nos. 1-3 
along with Mahendra Singh killed the deceased. In this statement, 
PW-1 stated that the appellants were not involved and that she 
wrote their name in her first information statement incorrectly and 
without collecting full information. Two other persons (witness), Rajau 
Sengar and Karan Singh, in their Section 161 statements reiterated 
the statement of PW-1. Even they stated that the present appellants 
had no role whatsoever in the commission of the crime.
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Shankar v. The State of Uttar Pradesh & Ors.
6.	
After conducting the investigation, the IO filed a chargesheet on 
22.06.2011, where the present appellants were not named as accused. 
There were only four named accused in the chargesheet, however, 
Mahendra Singh who was arrayed as Accused No. 4 was absconding. 
It was categorically stated in the chargesheet that after investigation, 
it came to light that the naming of the present appellants was false.
7.	
Trial: On 20.05.2016, PW-1 was examined where she stated that 
“My old enmity with accused Bacha Singh has been going in for the 
last 11 years and on the basis of suspicion, I had written the names 
of Shankar and Vishal in the FIR.” However, at a later stage of her 
examination, she stated that “It is wrong to suggest that because of 
old enmity, I have wrongly written the names of Bacha Singh and 
his sons in the FIR”. Apart from PW-1, none of the other 5 witness, 
spoke about the complicity of the appellants in the commission of 
the offence. 
8.	
Trial Court: Pursuant to the statement made by PW-1 in her 
examination in chief, the Assistant Public Prosecutor, on 31.07.2017, 
filed an application under Section 319 of the Cr.P.C. to summon the 
appellants herein to face the trial. 
9.	
The Ld. Trial Court, on 24.08.2017, allowed the application filed by 
the APP after noting certain previous decisions of this Court where 
it was held that if the evidence tendered in the course of trial shows 
that
any person not named as an accused has a role to play in the 
commission of the offence, then he could be summoned to face trial 
even though he may not have been charge sheeted. 
10.	 High Court: The above order passed by the Trial Court was 
challenged by the Appellants before the High Court by filing a petition 
under Section 482 Cr.P.C. This petition came to be dismissed by 
the High Court by its order dated 04.04.2023. While dismissing the 
petition, the High Court noted that at the stage of Section 482, the 
Court is only supposed to see if there exists a prima-facie case. It 
is this order of the High Court which is impugned before us. 
11.	 Issue: The only question arising in the present appeal is whether 
the power under Section 319 Cr.P.C. has been properly exercised 
in light of the facts of the present case and evidence on record. 
12.	 Analysis: We have heard Ld. counsel for appellants, Ms. Preetika 
Dwivedi and Ld. counsel for the Respondent State Mr. Ankit Goel.
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13.	 At the outset, we may note that the four accused who were charge-
sheeted, have passed away. As against them, the trial has abated. 
The learned counsel for the Respondent State has argued that even 
if the trial has abated against existing accused, there is no bar in 
summoning the appellants and starting the trial afresh1. This position 
of law is well-settled and the learned counsel for the appellant has 
also not disputed the same. 
14.	 In this background, we will examine the legality of the summoning 
order under Section 319 Cr.P.C. on its own footing. Section 319 of 
the Cr.P.C. is as follows:
“319. Power to proceed against other persons 
appearing to be guilty of offence 
(1)	 Where, in the course of any inquiry 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 with the 
accused, the Court may proceed against such person 
for the offence which he appears to have committed.
(2)	 ….
(3)	 ….
(4)	 ….”
15.	 Having taken note of the provision, we will note the principles laid 
down by a Constitution Bench of this Court in Hardeep Singh v. 
State of Punjab, (2014) 3 SCC 92, for criminal courts to follow while 
exercising power under Section 319 Cr.P.C.:
“94. In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 
SC 1094, a four-Judge Bench of this Court was concerned 
with the meaning of the word
“appear”. The Court held 
that the appropriate meaning of the word “appears” is 
“seems”. It imports a lesser degree of probability than 
proof. In Ram Singh v. Ram Niwas, (2009) 14 SCC 25, 
a two-Judge Bench of this Court was again required to 
examine the importance of the word “appear” as appearing 
1	
Gurmail Singh v. State of UP, (2022) 10 SCC 684
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Shankar v. The State of Uttar Pradesh & Ors.
in the section. The Court held that for the fulfilment of the 
condition that it appears to the court that a person had 
committed an offence, the court must satisfy itself about 
the existence of an exceptional circumstance enabling it to 
exercise an extraordinary jurisdiction. What is, therefore, 
necessary for the court is to arrive at a satisfaction that 
the evidence adduced on behalf of the prosecution, if 
unrebutted, may lead to conviction of the persons sought 
to be added as the accused in the case.
95. At the time of taking cognizance, the court has to 
see whether a prima facie case is made out to proceed 
against the accused. Under Section 319 CrPC, though 
the test of prima facie case is the same, the degree of 
satisfaction that is required is much stricter… 
105. Power under Section 319 CrPC is a discretionary 
and an extraordinary power. It is to be exercised sparingly 
and only in those cases where the circumstances of the 
case so warrant. It is not to be exercised because the 
Magistrate or the Sessions Judge is of the opinion that 
some other person may also be guilty of committing that 
offence. Only where strong and cogent evidence occurs 
against a person from the evidence led before the court 
that such power should be exercised and not in a casual 
and cavalier manner.
106. Thus, we hold that though only a prima facie case is 
to be established from the evidence led before the court,
not necessarily tested on the anvil of cross-examination, 
it requires much stronger evidence than mere probability 
of his complicity. The test that has to be applied is one 
which is more than prima facie case as exercised at the 
time of framing of charge, but short of satisfaction to an 
extent that the evidence, if goes unrebutted, would lead 
to conviction. In the absence of such satisfaction, the 
court should refrain from exercising power under Section 
319 CrPC…..” 
16.	 The degree of satisfaction required to exercise power under 
Section 319 Cr.P.C. is well settled after the above-referred decision. 
The evidence before the trial court should be such that if it goes
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unrebutted, then it should result in the conviction of the person who 
is sought to be summoned. As is evident from the above-referred 
decision, the degree of satisfaction that is required to exercise power 
under Section 319 Cr.P.C. is much stricter, considering that it is a 
discretionary and an extra-ordinary power. Only when the evidence 
is strong and reliable, can the power be exercised. It requires much 
stronger evidence than mere probability of his complicity. 
17.	 In this background, we will examine the evidence on record which 
prompted the trial court to exercise the power under Section 319 
Cr.P.C. PW-1, who is the mother of the deceased, is the only witness 
who has named the appellants.
17.1	In the first information statement, she has taken the name of 
the appellants as having played a role in the commission of 
the crime owing to the past enmity between the two families. 
The relevant portion of this statement is as follows:
“I am quite sure that my son Vijay Singh has been 
jointly murdered by Bachha Singh s/o Mohan Singh, 
Shankar s/o Bacha Singh, Vishal s/o Bacha Singh- 
residents of Raha and Sanjay s/o Munna Singh, Kallu 
Singh s/o Munna Singh-residents of Jalala, Police 
Station Ghatampur. We have an old existing enmity 
with these people.” 
17.2	However, in her Section 161 statement, she has stated that the 
appellants were not involved and that she named them without 
collecting full information. Two
other witness, Rajau Sengar and 
Karan Singh, in their Section 161 statements have also stated 
that the appellants had no role whatsoever in the commission of 
the crime. Relevant portion of PW-1’s statement under Section 
161 Cr.P.C., is as follows:- 
“…I had lent Rs. 8000 to Mahendra Singh long ago 
after selling Lahi. Vijay Singh had asked Mahendra 
Singh many times to repay the borrowed money 
but he did not give it back. Coming under the guise 
of this assurance, Vijay Singh left on Mahendra’s 
motorcycle. Sanjay Singh and Kallu Singh sons of 
Munna Singh and Bacha Singh s/o Mohan Singh were 
also standing at some distance outside the house.
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Shankar v. The State of Uttar Pradesh & Ors.
They also lured my son Vijay Singh and accompanied 
Vijay Singh and Mahendra Singh and all four of them 
killed my son Vijay Singh and threw the dead body in 
the field near the tubewell of Mahendra Pratap Singh 
Bhadoria. The names of Shankar Singh and Vishal 
Singhs sons of Bachha Singh, which I have written 
in the FIR, have been written by me falsely without 
collecting full information. My son Vijay Singh was 
murdered by Mahendra Singh s/o Chandrapal Singh 
Sachan of village Laukaha, Bacha Singh s/o Mohan 
Singh of village Raha and Sanjay Singh and Kallu 
Singh s/o Munna Singh of village Jalala. Shankar 
and Vishal sons of Bacha Singh were not involved 
in my son’s murder.”
(emphasis supplied)
17.3	Even in the chargesheet, which was filed after investigation, the 
name of the appellants has not been mentioned as accused. 
17.4	It is only in her deposition before the trial court that PW-1 has 
once again named the appellants. However, she has also stated 
that she has named them only on the basis of suspicion. The 
relevant portion of her deposition before the Trial Court is as 
follows:
“In my report, I made Bachha Singh, Shankar, Vishal, 
Kallu Singh and Mahendra Sachan accused. I had 
an old enmity with these people.”
In her cross-examination, PW-1 stated as follows:-
“There were two-three outstation cases and two-three 
local cases from the village were pending against 
my son Vijay Singh, which are
closed now. The said 
cases were closed/concluded during the lifetime 
of Vijay Singh. My old enmity with accused Bacha 
Singh has been going on for the last 11 years and 
on the basis of suspicion, I had written the names 
of Shankar and Vishal in the FIR.”
18.	 It is evident from the above that the appellants were named in the 
first information statement, however, in the statement under Section 
161 Cr.P.C, PW-1 clarified that the names of appellants were written
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in the FIR falsely and without full information. She has also stated 
that the appellants were not involved in the murder of her son. Even 
in the charge sheet, the names of the appellants were not mentioned 
as accused. It is only in her deposition before the Trial Court the 
names of the accused resurfaces again. 
19.	 None of the other witnesses, being PW’s-2, 3, 4, 5 and 6 have 
deposed anything about the appellants.
20.	 On 31.07.2017, i.e. almost a year after the deposition of PW-1, the 
prosecution chose to file an application under Section 319 Cr.P.C. 
to the following effect:-
“It is most respectfully submitted that in the above 
mentioned case, the first informant Mrs. Sheela Singh had 
written the names of Shankar Singh and Vishal Singh in 
the First Information Report and the names of Shankar 
Singh and Vishal Singh have also been mentioned by 
her in her examination in chief also. For this reason, it is 
necessary to summon Shankar Singh and Vishal Singh 
for trial in the said case.
Therefore, the Hon’ble court is requested to kindly pass 
an order thereby summoning accused Shankar Singh and 
Vishal Singh sons of Bachha Singh for trial in the said case.
Yours faithfully, 
Sd/-illegible 
31.7.2017”
21.	 At the first place, PW-1 has named the appellants in the FIR despite 
not being an eyewitness to the offence. In her statement under 
Section 161, she sought to clarify the position by recording that her 
family
had a long-standing enmity with appellants’ family. She also 
stated that the names of the appellants were mentioned and written 
by her “falsely without collecting full information.” She categorically 
stated that the appellants are not involved in the murder of her son.
22.	 When we contrast this statement with her deposition given five 
years later, we do not see a drastic change in the stand of 
PW-1. Even in her chief examination, she had stated that she had 
an old enmity with the family of the accused. However, in her cross 
examination, she clarified that as the enmity with the appellants family 
was going on for the last eleven years, names of the appellants
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Shankar v. The State of Uttar Pradesh & Ors.
were mentioned in the FIR on the basis of suspicion. Therefore, the 
change of circumstance which the prosecution seeks to contend on 
the basis of PW-1’s deposition does not satisfy the requirement of 
Section 319 at all.
23.	 Having considered the matter in detail, we are of the opinion that 
PW-1, not being an eye-witness, her deposition is not sufficient 
enough to invoke the extra-ordinary jurisdiction under Section 319 
to summon the appellants.
24.	 There are no other witnesses who have deposed against the 
appellants. There is no documentary evidence that the prosecution 
had collected against the appellants. There is absolutely no role 
that is attributed to the appellants. We are of the opinion that the 
deposition of PW-1 is also in line and consistent with her statement 
under Section 161. When these factors are looked in a holistic 
manner, it would be clear that the higher degree of satisfaction that 
is required for exercising power under Section 319 Cr.P.C. is not 
met in the present case.
25.	 For the reasons stated above we are of the opinion that the Trial Court 
committed a serious error in allowing the application under Section 
319 and issuing summons to the appellants. The High Court should 
have exercised its jurisdiction under Section 482 and quashed the 
order. The High Court having failed to quash the order of summons 
dated 24.08.2017, we are inclined to allow these appeals and set-
aside the order passed by the Trial Court dated 24.08.2017 and the 
also the judgment of the High Court dated 04.04.2023 dismissing 
the petition under Section 482.
26.	 For the reasons stated above, the present appeals are allowed, and 
the impugned order dated 04.04.2023 passed by the High Court of 
Judicature at Allahabad in Application under Section 482 No. 30221 
of 2017 and the order dated 24.08.2017 passed by the Additional 
District and Sessions Judge, Court No. 5, Kanpur Dehat, in S.T. 
No. 434 of 2011 in Application Paper No. 83Kha under Section 319 
Cr.P.C. are hereby set aside.
Headnotes prepared by: Nidhi Jain
Result of the case: 
Appeals allowed.