Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.549 OF 2023
[Arising out of Special Leave Petition (Criminal) No. 1658 of 2020]
| Juhru & Ors. | … Appellant(s) |
|---|---|
| VERSUS | |
| Karim & Anr. | … Respondent(s) |
Surya Kant, J.
Leave Granted.
2. The instant Criminal Appeal originates from a judgment dated
27.01.2020 whereby the High Court of Punjab and Haryana at
Chandigarh (in short ‘High Court’), while setting aside the order
dated 12.07.2018 passed by the Additional Sessions Judge, Nuh,
has ordered the summoning of the Appellants under Section 319
of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr.P.C.’) as
additional accused.
A. F ACTS
3. Briefly stated the facts are that FIR No. 270 dated 09.07.2017
Signature Not Verified
Digitally signed by
satish kumar yadav
Date: 2023.02.21
16:51:59 IST
Reason:
was registered at Police Station Tauru, District Nuh under
Sections 304B, 498A, 406, 323 and 34 of the Indian Penal Code,
1860 (hereinafter ‘IPC’) on the statement of Karim Respondent
No. 1 to the effect that the marriage of his deceased sister
(Rukseena) was solemnised on 04.12.2016 with one Aamir. An
Alto car, Rs.3 lakhs in cash, 3 kg of silver, 30 grams of gold,
furniture and other household items were allegedly given to
Aamir and his family members as dowry at the time of marriage.
The family of Aamir comprised of Akhlima (mother), Juhru
(father) – Appellant No.1, Sonam (sister) – Appellant No.2 and
Rijwan (brotherinlaw) – Appellant No.3. The complainant
further alleged that the family of Aamir was dissatisfied with the
dowry and subjected the deceased to continuous torture and
harassment. Respondent No.1 and his family tried to settle the
matter with Aamir and his family but all their efforts proved
futile. Respondent No. 1 was telephonically informed on
09.07.2017 that the deceased had hung herself to death.
4. The investigating agency did not find any incriminating material
against the Appellants in the course of investigation and Challan
was filed only against the husband and the motherinlaw of the
deceased, who are now facing trial.
5. During the trial, Respondent No. 1 stepped into the witness box
as PW1 on 01.03.2018 and reiterated the allegations levelled
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against all the accused persons, including the Appellants. Soon
thereafter, Respondent No. 1 filed an application under section
319 Cr.P.C before the Trial Court to summon the Appellants as
additional accused.
6. The Trial Court dismissed the said application observing that the
extraordinary power vested under section 319 Cr.P.C ought to be
exercised only if the evidence adduced on record strongly
indicates the possible involvement of the person(s) aimed to be
prosecuted. The Trial Court further opined that it did not appear
from the deposition of Respondent No. 1 or from other material
on record that the persons sought to be summoned had
committed any offence for which they could be tried together
with accused Aamir and Akhlima.
7. The aggrieved Respondent No. 1, approached the High Court
under Section 482, Cr.P.C. and vide impugned order dated
27.01.2020 his petition was allowed and the appellants were
summoned to face trial. The High Court observed that the FIR as
well as the testimony of Respondent No. 1 during the trial
revealed that the insinuations against the Appellants were
exactly the same as those attributed to the accused already
facing trial. Hence, in the absence of any distinguishable
features, the Appellants were also liable to be tried along with
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Aamir and Akhlima. The High Court further viewed that there
existed sufficient grounds for summoning the Appellants as
additional accused.
8. Discontented with their summoning by the High Court, the
Appellants are before us.
B.
C ONTENTIONS
9. Mr. S.K. Verma, learned counsel for the Appellants, vehemently
contended that the High Court has committed a grave error of
law in not appreciating that the powers under Section 319
Cr.P.C. are to be exercised sparingly only if the evidence vividly
points out the possible involvement of the person(s) proposed to
be prosecuted. There is not an iota of evidence against the
appellants to glean a conclusion of their involvement. Further,
the fact that the Appellants were found innocent during the
course of twofold investigation has not been adequately
considered by the High Court. There is no evidence to suggest
even remotely that the Appellants were cruel to the deceased
shortly before her death. The allegations are general and vague
in nature without attributing any specific role to the Appellants.
10. On the other hand, Mr. Deepkaran Dalal, learned Counsel for
the Ist Respondent, strongly defended the approach of the High
Court and submitted that, given the allegations made in the FIR
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and the deposition of Respondent No.1, the High Court was
justified in summoning the Appellants, who were actively
involved in harassing the deceased for not bringing enough
dowry and which eventually led to the unfortunate death of
Rukseena just within 7 months of her marriage.
C. NALYSIS
A
11. There is no gainsaid that the alleged offence is grave and heinous
in nature. The long arms of law must find out whether any
person is guilty of abetting or taking away the precious life of a
young girl who soon after her marriage met with such a tragic
end. However, the only issue that falls for our consideration is
whether there is sufficient evidence against the Appellants to
summon them as additional accused?
12. Section 319 Cr.P.C. contemplates that:
“….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. … …”
13. Illuminating the scope of Section 319 Cr.PC, the Constitution
1
Bench of this Court in laid
Hardeep Singh vs. State of Punjab
down that :
1
(2014) 3 SCC 92
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“57. Thus, the application of the provisions of
Section 319 CrPC, at the stage of inquiry is to be
understood in its correct perspective. The power
under Section 319 CrPC can be exercised only on the
basis of the evidence adduced before the court
during a trial. So far as its application during the
course of inquiry is concerned, it remains limited as
referred to herein above, adding a person as an
accused, whose name has been mentioned in Column
2 of the chargesheet or any other person who might
be an accomplice.”
xxxxx
“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
crossexamination, 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. In Section
319 CrPC the purpose of providing if “it appears
from the evidence that any person not being the
accused has committed any offence” is clear from
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the words “for which such person could be tried
together with the accused”. The words used are not
“for which such person could be convicted”. There is,
therefore, no scope for the court acting under
Section 319 CrPC to form any opinion as to the guilt
of the accused.”
14. This Court has very recently, in Sukhpal Singh Khaira vs. The
2
succinctly explained the powers bestowed on
State of Punjab ,
the Court under section 319 Cr.P.C. and ruled that:
“15. At the outset, having noted the provision, it is amply
clear that the power bestowed on the Court is to the effect
that in the course of an inquiry into, or trial of an offence,
based on the evidence tendered before the Court, if it
appears to the Court that such evidence points to any
person other than the accused who are being tried before
the Court to have committed any offence and such accused
has been excluded in the charge sheet or in the process of
trial till such time could still be summoned and tried
together with the accused for the offence which appears to
have been committed by such persons summoned as
additional accused.”
15. In Hardeep Singh (Supra) , it has been eloquently held that the
word “evidence” in Section 319 Cr.P.C. has to be broadly
understood and thus materials which have come before the
Court in course of enquiry can be used for :
(i) corroboration of evidence recorded by Court after
commencement of trial;
(ii) for exercise of power under Section 319 Cr.P.C.; and
2
(2023) 1 SCC 289
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(iii) also to add an accused whose name is shown in column
no.2 of the chargesheet.
It was further explained that statement made in examinationin
chief also constitutes “evidence” and the Court while exercising
power under Section 319 Cr.P.C. post commencement of trial,
need not wait for evidence against person proposed to be
summoned, to be tested by crossexamination.
16. In Sukhpal Singh Khaira (Supra), the Constitution Bench
refreshed the guidelines that the competent court must follow
while exercising power under Section 319 Cr.P.C. It was ruled
that :
(i) if the competent court finds evidence or if application
under Section 319 Cr.P.C. is filed, regarding involvement of
any other person in committing the offence based on
evidence “recorded at any stage in the trial” before passing
of the order on acquittal or sentence, it shall pause the
trial at that stage and the Court shall proceed to decide the
fate of the application under Section 319 Cr.P.C.;
(ii) if the Court decides to summon an accused under Section
319 Cr.P.C., such summoning order shall be passed before
proceeding further with the trial in the main case and
depending upon the stage at which the order is passed, the
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Trial Court shall apply its mind to the fact as to whether
such summoned accused is to be tried along with other
accused or separately; and
(iii) if the power under Section 319 Cr.P.C. is not invoked or
exercised in the main trial till its conclusion and if there is
a splitup case, such power can be invoked or exercised
only if there is evidence to that effect, pointing to the
involvement of the additional accused to be summoned in
the spiltup (bifurcated trial).
17. It is, thus, manifested from a conjoint reading of the cited
decisions that power of summoning under Section 319 Cr.P.C. is
not to be exercised routinely and the existence of more than a
prima facie case is sine quo non to summon an additional
accused. We may hasten to add that with a view to prevent the
frequent misuse of power to summon additional accused under
Section 319 Cr.P.C., and in conformity with the binding judicial
dictums referred to above, the procedural safeguard can be that
ordinarily the summoning of a person at the very threshold of
the trial may be discouraged and the trial court must evaluate
the evidence against the persons sought to be summoned and
then adjudge whether such material is, more or less, carry the
same weightage and value as has been testified against those
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who are already facing trial. In the absence of any credible
evidence, the power under Section 319 Cr.P.C. ought not to be
invoked.
18. Adverting to the case in hand, the allegations against the
Appellants are that they too played an active role in the
commission of the alleged offence.
19. The record reveals that after the application under section 319
Cr.P.C was dismissed by the Trial Court, Respondent No.1 was
called on 06.12.2018 for further examinationinchief as PW1.
His deposition distinctively unravels that at the time of marriage,
Appellant No.1 – Juhru (fatherinlaw) had asked Respondent
No.1 to spend a sum of Rs. 20 lacs on the marriage of Aamir and
the deceased, to which Respondent No.1 had agreed. Appellant
No.1 and his wife Akhlima (motherinlaw) were living under the
same roof as his son Aamir (husband) and he would have been
privy to all the alleged occurrences of torture, harassment or
demand for more dowry. Viewed from this angle, it appears that
the Ist appellant might have to sink or swim with his son and
wife. The High Court order, to the extent of summoning
Appellant No. 1, therefore, satisfies the ingredients of Section
319 Cr.P.C. and may not warrant any interference by this Court.
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20. As regard to Appellant Nos. 2 and 3, i.e., Sonam (sisterinlaw),
and Rijwan (brotherinlaw) of the deceased, it appears to us that
despite both of them being named in the FIR and in the
examinationinchief of Respondent No.1, there is no credible
evidence to connect them with the unnatural death of Rukseena.
There is no cogent material that Appellant No. 2, even after her
marriage with Appellant No. 3, continued to reside in her
parents’ house or that they used to intermeddle in the day to
day marital life of the deceased and Aamir. In the absence of any
authentic evidence to bring them in close proximity of the
reported crime, it would be unjustified to call upon Appellant
Nos. 2 and 3 to face trial as additional accused in this case.
D. CONCLUSION :
21. In light of above discussion, we are of the considered view that
while summoning of Appellant No. 1 sustains, but that of
Appellant Nos. 2 and 3 will be farfetched and they cannot be
subjected to trial on the basis of mere strong suspicion. The High
Court order under challenge is accordingly set aside qua
Appellant Nos. 2 and 3.
22. Having held that Appellant No.1 has been rightly summoned and
is liable to be tried along with his son and wife, the next question
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that requires consideration is as to the manner in which the trial
will proceed hitherto.
23. The information available on record suggests that the trial is at
the stage of defence evidence. The guidelines that the Trial Court
must follow, while commencing the trial against Appellant No.1
have been extensively iterated by the Constitution Bench in
Sukhpal Singh Khaira (Supra), in the following terms:
“41 (
III). What are the guidelines that the competent court
must follow while exercising power under Section 319
CrPC?
41.1 If the competent court finds evidence or if application
under Section 319 of CrPC is filed regarding
involvement of any other person in committing the
offence based on evidence recorded at any stage in the
trial before passing of the order on acquittal or
sentence, it shall pause the trial at that stage.
41.2 The Court shall thereupon first decide the need or
otherwise to summon the additional accused and pass
orders thereon.
41.3 If the decision of the court is to exercise the power
under Section 319 of CrPC and summon the accused,
such summoning order shall be passed before
proceeding further with the trial in the main case.
41.4 If the summoning order of additional accused is
passed, depending on the stage at which it is passed,
the Court shall also apply its mind to the fact as to
whether such summoned accused is to be tried along
with the other accused or separately.
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41.5 If the decision is for joint trial, the fresh trial shall be
commenced only after securing the presence of the
summoned accused.
41.6 If the decision is that the summoned accused can be
tried separately, on such order being made, there will
be no impediment for the Court to continue and
conclude the trial against the accused who were being
proceeded with.”
24. The Trial Court shall, thus, follow the cited dictum and proceed
against Appellant No. 1 in accordance with law.
25. For the reasons aforestated but without expressing any views on
merits, we partly allow this appeal and modify the impugned
order of the High Court dated 27.01.2020 in above terms.
26. Pending applications, if any, stand disposed of.
………..………………… J.
(SURYA KANT)
…………………………...J.
(J.K. MAHESHWARI)
NEW DELHI
DATED: 21.02.2023
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