SAEEDA KHATOON ARSHI versus STATE OF UP & ANR on 10 December 2019

[2019] 14 S.C.R. 829

SAEEDA KHATOON ARSHI

v.

STATE OF UP & ANR

(Criminal Appeal No. 1815 of 2019)

DECEMBER 10, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDHRISHIKESH ROY, JJ.]

Code of Criminal Procedure, 1973: s.319 – Power toproceed against other persons appearing to be guilty of offence– Prosecution case was that appellant received phone call onfateful night at 3 a.m. from second respondent-husband of herdaughter that the victim-deceased has hanged herself – Appellantreached the house of her daughter and found her dead body lyingon floor – Appellant fell unconscious and when she regainedconsciousness, she came to know that the second respondent andhis relatives bathed and buried the body of deceased – She thensaw the photos of the dead body, which showed injury marks onthe neck, hands and legs – On her application, the dead body wasexhumed and a post-mortem was conducted but the body was inan advanced stage of decomposition and the cause of death couldnot be ascertained as nine days had elapsed since the date of deathand the burial of the deceased – A chargesheet was filed againsta person who was friend of second respondent alleged to haveabetted the suicidal death of the appellant’s daughter and trialcommenced – On the basis of substantive evidence of the appellantduring the course of trial against the second respondent, anapplication was moved under s.319 to summon the secondrespondent to face trial as he appeared to be complicit in the crimeleading to murder of appellant’s daughter – Trial court alloweds.319 application – Second respondent challenged the same beforeHigh Court by filing s.482 application – High Court allowed s.482application and set aside the summoning order – Hence the instantappeal – Held: The order of trial court for summoning the secondrespondent was on the basis of the evidence which emerged duringthe course of trial – The order summoning the second respondentwas on a careful evaluation of the evidentiary material and basedon the principles laid down in the decision of the Constitution

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ABench in Hardeep Singh – Trial court furnished reasons for relyingon the provisions of s.114 of the Evidence Act having due regardto the fact that the incident had taken place within the confines ofthe matrimonial home where only the second respondent and thedeceased were residing on the night when the incident took place– The order passed by trial court did not suffer from any infirmityB– On the contrary, it was the High Court which interfered with thefindings of trial court on the specious ground that the trial wasproceeding against friend of second respondent for an offenceunder s.319 and that trial court had merely engaged in an exerciseof exploring the possibility as to the cause of death – s.319

Cempowers the court to proceed against a person appearing to beguilty of an offence where, in the course of any enquiry into ortrial of, an offence, it appears from the evidence that any person,not being the accused, has committed any offence for which suchperson could be tried together with the accused – The exercise ofthe discretion by trial court to summon the second respondentDfulfilled the requirements of s.319 – The fact that a protest petitionhad not been filed by the appellant when the report was submittedunder s.173 did not render the court powerless to exercise itspowers under s.319 on the basis of the evidence which hademerged during the course of the trial – The order passed by theEHigh Court is unsustainable – Evidence Act, 1872 – s.114.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1.1 During the course of her cross-examinationon 6 December 2018, the appellant was questioned on herdeposition in the course of the Examination-in-Chief about theFharassment which her daughter had suffered at the hands of thesecond respondent, his father, mother and brothers. PW- 1maintained her account in the course of her cross-examination,stating that on the night before the incident when her daughterhad visited her house together with the second respondent, sheGhad informed PW-1 about the ill-treatment meted out to her. PW-1 further stated in her cross-examination that she receivedintimation of the death of her daughter from the secondrespondent at 3:00 am as she was preparing for sehari duringthe month of Ramzan. On reaching the scene of the incident, itHwas found that only the second respondent was present in the house where the couple used to reside. She stated that besidesthe injury marks on the body of the deceased, the floor was foundto be absolutely clear, and it appeared as if it had been cleaned.PW-1 stated that a foul smell was emanating from the mouth ofher daughter and a bottle was found at the site which the policetook into custody. PW -1 stated that nothing was found to bemissing from the household items ruling out the possibility of atheft. [Para 25] [846-F-H; 847-A]

1.2 The order summoning the second respondent was ona careful evaluation of the evidentiary material and based on theprinciples laid down in the decision of the Constitution Benchin Hardeep Singh. The Additional Sessions Judge furnishedreasons for relying on the provisions of Section 114 of theEvidence Act having due regard to the fact that the incident hadtaken place within the confines of the matrimonial home whereonly the second respondent and the deceased were residing onthe night when the incident took place. The High Courtinterfered with the findings of the Trial Court on the speciousground that the trial was proceeding against friend of secondrespondent for an offence under Section 306 and that the TrialCourt had merely engaged in an exercise of exploring thepossibility as to the cause of death. Section 319 empowers thecourt to proceed against a person appearing to be guilty of anoffence where, in the course of any enquiry into or trial of, anoffence, it appears from the evidence that any person, not beingthe accused, has committed any offence for which such personcould be tried together with the accused. The fact that a protestpetition had not been filed by the appellant when the report wassubmitted under Section 173 did not render the court powerlessto exercise its powers under Section 319 on the basis of theevidence which had emerged during the course of the trial. Theevidence of PW-1 and PW-2 which has been adverted to abovemeets the threshold required to sustain an order for summoningunder Section 319. The High Court has failed to analysethe basis on which the Additional Sessions Judge had proceededto issue summons under Section 319 and in a brief setof observations covering a few sentences displaced a well- ABC

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Aconsidered order of the Additional Sessions Judge in purportedexercise of the jurisdiction under Section 482. [Paras 27, 28][847-C-H; 848-A-B]

Hardeep Singh v State of Punjab (2014) 3 SCC 92 :[2014] 2 SCR 1 – followed.

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Gajanan Dashrath Kharate v. State of Maharashtra(2016) 4 SCC 604 : [2016] 2 SCR 852 ; Pepsi FoodsLtd v. Special Judicial Magistrate (1998) 5 SCC749 : [1997] 5 Suppl. SCR 12 ; Babubhai BhimabhaiBokhiria v. State of Gujarat (2014) 5 SCC 568 : [2014]C4 SCR 652 ; Brijendra Singh v. State of Rajasthan(2017) 7 SCC 706 : [2017] 3 SCR 374 ; S MohammedIspahani v. Yogendra Chandak (2017) 16 SCC 226 :[2017] 10 SCR 29 ; Rajesh v. State of Haryana (2019)6 SCC 368 – referred to.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1815 of 2019.

From the Judgment and Order dated 12.04.2019 of the HighCourt of Judicature at Allahabad in Application u/s 482 Cr.P.C. No.13800 of 2019.G

Andleeb Naqvi, Ansar Ahmad Chaudhary, Advs. for theAppellant.

Siddhartha Dave, Brijender Chahar, Sr. Advs., KartikeyaBhargava, Rohit Amit Sthalekar, Ajay Vikram Singh, Ms. Priyanka Singh,HKamlesh Anand, Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

1. This appeal arises from a judgment of a learned Single Judgeof the High Court of Judicature at Allahabad dated 12 April 2019. TheHigh Court, while allowing an application filed by the second respondentunder Section 482 of the Code of Criminal Procedure 1973 (“CrPC”),set aside an order dated 29 January 2019 passed by the AdditionalDistrict and Sessions Judge - Fast Track Court No 1, Moradabad,summoning the second respondent under Section 319 of the CrPC.

2. The appellant is the mother of Juhi Arshi who died in hermatrimonial home during the early hours of 10 June 2017. The secondrespondent, who was the spouse of the deceased, is alleged to havebeen the only other occupant of the matrimonial home on the date ofthe incident. On 12 June 2017, the appellant claims to have moved aFirst Information Report (“FIR”) at the Police Station Majhola, DistrictMoradabad. According to the appellant, an FIR was eventuallyregistered only on 14 June 2017 upon the intervention of higher officials.The contents of the FIR recorded that:

“The applicant had married my daughter Juhi about 9 years agowith Akram s/o Shri Kasim r/o mohalla Rahamat Nagar, Chapparwali Masjid PS Katra, Moradabad. About three years ago Akramhad constructed a MIG – 169 house at Azad Nagar PS Majhola,Moradabad. My daughter was living with her husband Akramand passing her married life in this house for the last 3 years.On 9/10/6/2017 at 3 at night my son-in-law informed by phonethat Juhi has hanged herself. I with my husband and sonimmediately rushed to the house of our son-in-law at Azad Nagarwhere we saw the dead body of my daughter lying on the floorand a cloth was hanging from the channel. I, my husband andmy son on seeing the dead body of Juhi lost our senses and beforewe could regain our senses and think, meanwhile relatives gavebath to my daughter Juhi and buried her at Azad Nagar graveyardon 10.06.2017 at about 1:30 in the afternoon. On becomingnormal when I saw the photos of dead body of my daughterJuhi, injury marks were clearly visible on her body at the neck,hands and legs. She has been murdered hence it is essential thatinvestigation be done by exhuming the dead body of Juhi fromthe grave and post mortem be done so that the murderer could A

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Abe reached. Therefore, sir it is prayed that the applicant’s reportbe lodged, and legal action be taken and dead body of Juhi betaken out from Azad Nagar graveyard and her postmortem bedone.”

3. On 14 June 2017, Case Crime No 654 of 2017 was registeredBagainst an unknown person. Based on an application submitted by theapplicant to the District Magistrate, Moradabad the body of herdaughter was exhumed on 19 June 2017, and after an inquestproceeding, a post-mortem was carried out. However, the cause ofdeath could not be ascertained as nine days had elapsed since the dateof the death and the burial of the deceased. The post-mortem reportCrecorded that:

“Body is in advanced decomposition stage, skin peeled off, foulsmell present, eyes bulging, tongue protruded, nails and ears loose,face bloated, abdomen distended, brain liquefied.”

D4. The body was once again exhumed on 1 July 2017, and a post-mortem was conducted by a medical board constituted by the ChiefMedical Officer, Moradabad. The medical board confirmed the findingsof the earlier post-mortem that the body was in an advanced stage ofdecomposition. On 12 September 2017, a charge-sheet was filed underSection 173 of the CrPC against a person by the name of ManojEShrivastav, who is alleged to have abetted the suicidal death of JuhiArshi and thereby committed an offence under Section 306 of the IndianPenal Code 1860 (“IPC”). On 21 August 2018, the trial commencedbefore the Additional Sessions Judge – Fast Track Court – 1,Moradabad.F5. On 26 September 2018, charges were framed against oneManoj Shrivastav under Section 306 of IPC, and the appellant wassummoned to give evidence in the course of the trial.

6. The appellant deposed in evidence as PW-1 on 5 October 2018.During the course of her evidence, the appellant stated that her daughterGhad been married to the second respondent in 2007. The appellantdeposed that after the marriage, the second respondent and his familymembers demanded a house and mentally and physically tortured herdaughter. The appellant deposed that in order to save the marriage ofher daughter from collapsing, she had given a plot at Azad Nagar afterHconstructing a house over it, to her daughter and the second respondent.

The appellant deposed that whenever her daughter visited her maternalhome, she would mention how her spouse, father-in-law, mother-in-lawand stepbrothers as well as his friends (among them Manoj Shrivastav)would trouble her by saying her parents have given a small constructedhouse. The appellant stated that during the intervening night of 9/10June 2017, at about 3:00 am, the second respondent made a phone callto the son of the appellant saying that Juhi Arshi had hanged herself.The appellant deposed that she, her husband and son reached herdaughter’s house at Azad Nagar. During the course of her deposition,the appellant stated as follows:

“After hearing this news I, my husband and my son Shouibreached the house of my daughter at Azad Nagar there we sawthat the body of my daughter was lying on the floor and a dupatta(cloth) was hanging from the channel. On seeing the dead bodyof our daughter we completely lost our senses and before wecould come to terms, my son in law and his relatives gave bathto the dead body and buried her at Azad Nagar grave yard on10.6.2017 in the afternoon. After the burial when I came tosenses then I saw the photos of the dead body of my daughterJuhi Arshi. Injury marks on the body of my daughter Juhi Arshiwere clearly visible on her neck, hands and legs. Thus I realizedthat my daughter has not committed suicide but she has beenmurdered. On 12.6.2017 I gave a typed report in respect ofmurder to PS Majhola. I had signed on that report. The witnessidentified the report present in the file as paper No. 4/3. She readthe report and verified it as the same report which she had givento PS Majhola. Report is marked as Ex. Ka-1. I had alsocomplained to higher officials about this incident on whose orderthe dead body of my daughter’s body was exhumed from thegrave after 9 days and post mortem was done. As my son inlaw Akram has high connections and a cunning person hemanaged to connive with the police and got his name out.”

7. On 5 October 2018, on the basis of the substantive evidenceof the appellant (PW-1) an application[1] was moved under Section 319of the CrPC to summon the second respondent to face trial as heappeared to be complicit in the crime leading up to the murder of hiswife.

1 Application no (16B)

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A8. On 6 December 2018, the appellant was cross-examined. Inthe cross-examination, the appellant deposed thus:

“At the time of incident my daughter Juhi had been married for9 to 10 years. My daughter did not have any child. Because ofnot having a child, the in laws family used to trouble her, JuhiBused to say that she is not responsible for it. Daughter’s in lawsused to demand for a house. My daughter and son in law hadcome to our house on the date of incident in the evening andafter having dinner went away at about 10 pm. At that time alsomy daughter Juhi told me that her husband etc used to troubleCher. At 3 o’clock we were preparing for sehari (morning mealduring Ramzan) when my son in law Akram phoned that yourdaughter has hanged herself. We reached the place of incident,the house, within 10 minutes. In the house my son in law Akramwas present and the gate was open. Apart from Akram therewas no one else there. The dead body of my daughter was lyingDon the floor and Akram was sitting on the sofa and pretendingto be crying. My daughter and son in law’s room was on thefirst floor. In that house only my daughter and son in law usedto reside. When I reached the place of incident there was noone else present but before we started crying and yelling rest ofEthe people came later. At that time I was very perturbed becauseof which I could not see the injury marks on the body of mydaughter. Later on I saw in the photos of my daughter’s injurymarks on her neck, hands and legs of being tied. When I reached,the floor was absolutely clean. It appeared as if the floor hadbeen cleaned. I tried to give breath to my daughter, her mouthFwas smelling foul. At the site a bottle was found which the policetook in it custody. There was no suicide note, etc present. Ireturned to my home after 10 days from the date of incident.The report of this incident was lodged by me at the police stationMajhola. My daughter was buried the same day. Akram did notGhave any injury on his body. Nothing from the household itemswere found missing nor scattered in the house which may indicatethat theft, etc had been committed.”

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9. On 29 January 2019, the Additional District and SessionsJudge allowed the application and summoned the second respondentHunder Section 319 of the CrPC. The order relied on the following SAEEDA KHATOON ARSHI v. STATE OF UP & ANR[DR DHANANJAYA Y CHANDRACHUD, J.]

circumstances which emerged from the evidence of the appellant (PW-1) and her son, PW-2 Shouib Raja:

(i) During the night intervening 9 and 10 June 2017 when theincident took place, the second respondent, who was thespouse of the deceased, was the only person present inthe house with the deceased;

(ii) On being informed on the phone, when the parents of thedeceased reached the scene of the incident, the secondrespondent was alone with the body of the deceased;

(iii) Since the height of the deceased was 160 centimeters, itwas improbable that she could hang herself from a channelat a height of 240 centimeters, particularly when no stoolwas found nearby;

(iv) Either the deceased had been hanged at the place orphysical changes were made at the scene of the incident;

(v) During the course of the investigation, the secondrespondent initially furnished his consent to theInvestigating Officer to subject himself to a Narcoanalysistest but when the Investigating Officer moved anapplication before the Court, the second respondent refusedto agree to the test;

(vi) Though the deceased died an unnatural death, the secondrespondent did not inform the police and her obsequial riteswere conducted in haste;

(vii) Though under the orders of the District Magistrate dated19 June 2017 and 30 June 2017, the body of the deceasedwas exhumed on two occasions, it was in an advancedstage of decomposition;

(viii) During the examination, injury marks were seen on thebody, neck and hands “in the attached questioned photos”;

(ix) No ligature mark was seen and how such injury markswere borne on the body of the deceased could only beexplained by the second respondent;

(x) The place of the incident was found to be disturbed; and

(xi) Under the provisions of Sections 103 and 114 of theEvidence Act 1872 (“Evidence Act”), the events which A

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838SUPREME COURT REPORTS

Atranspired during the night of 9/10 June 2017 were withinthe special knowledge of the second respondent.

10. The learned Trial Judge, adverted to the judgment of thisCourt in Hardeep Singh v State of Punjab[2](“Hardeep Singh”) andheld thus:B

“All these circumstances in totality have evidentiary value andappear to be more than required for framing charge and if notrebutted, the proposed accused could be found guilty of theoffence.”

11. The learned Trial Judge noted that while summoning anCaccused under Section 319 of CrPC, the nature of the evidence shouldbe such that if it is not rebutted, the accused should be held guilty ofthe offence. Holding that the evidence which had been adduced wasof such a nature, the second respondent was summoned under Section319.D

12. The second respondent challenged the order of the learnedTrial Judge dated 29 January 2019 in an application under Section 482of the CrPC. By a judgment dated 12 April 2019, the Single Judge ofthe High Court allowed the application and set aside the summoningorder holding that:

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(i) The trial against Manoj Shrivastav for an offence underSection 306 of IPC was pending. Neither had thecharge been altered nor was any evidence led toimplicate the second respondent for an offence underSection 306; F

(ii) The Trial Court had merely engaged in an exercise ofexploring possibilities as to the cause of death, though,the specific case before it involved the prosecution ofManoj Shrivastav for an offence under Section 306; and

(iii) No ‘strong or other satisfaction’ appeared to have beenGrecorded to summon the second respondent underSection 319.

13. Aggrieved by the judgment of the High Court, the appellantmoved this Court under Article 136 of the Constitution.

H2 (2014) 3 SCC 92

SAEEDA KHATOON ARSHI v. STATE OF UP & ANR[DR DHANANJAYA Y CHANDRACHUD, J.]

14. Mr Andleeb Naqvi, learned Counsel appearing on behalf ofthe appellant, submitted that:

(i) The Additional Sessions Judge applied the correct testin law based on the judgment of the Constitution Benchin Hardeep Singh and evaluated the evidence of PW-1 on the touchstone of the principles enunciated by thisCourt;

(ii) The evidence of PW-1 and PW-2 is clearly of a naturethat if not rebutted the proposed accused could be foundguilty of the offence;

(iii) Each of the circumstances adverted to by the AdditionalSessions Judge for issuing summons under Section 319constituted relevant material;

(iv) The High Court, without displacing the observations ofthe Trial Court, erroneously interfered with thesummoning order on an application filed under Section482 of the CrPC;

(v) The order passed by the Additional Sessions Judge wasrevisable under Section 397 and hence a petition underSection 482 should not have been entertained;

(vi) Under Section 319, it is not necessary that the proposedaccused must be summoned only for the offence withwhich the other accused is charged; the provision isto the effect that “the Court may proceed against suchperson for the offence which he appears to havecommitted”;

(vii) The substantive evidence of PW-1 and PW-2 indicatesthat:

a) The second respondent who was the spouse of thedeceased was the only person present in the housewhen Juhi Arshi died an unnatural death; b) No efforts were made by the second respondentto inform the police of the unnatural death eitheron the date of the incident or thereafter; and

c) The second respondent acted in haste in getting thebody of the deceased buried. Consequently, the A

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burden of proof under Section 106 of the EvidenceAct to furnish an explanation falls on the secondrespondent who was the sole inmate of the housewhere the crime was committed (GajananDashrath Kharate v State of Maharashtra[3]); A

B(viii) Initially, the police were reluctant to register the FIR. TheFIR which was moved on 12 June 2017 was eventuallyregistered on 14 June 2017. During the course of theinvestigation, PW-2, who is the brother of the deceased,handed over prints of the photographs of the deceasedwhich showed marks of injury on her body; and C

(ix) In the above circumstances, when cogent reasons werefurnished by the Additional Sessions Judge for summoningthe second respondent under Section 319, the High Courthas manifestly erred in setting aside the order in theexercise of its jurisdiction under Section 482.D15. On the other hand, Mr Siddhartha Dave, learned SeniorCounsel who appeared on behalf of the second respondent submitted:

(i) It is important to bear in mind the stage of theproceedings. The power under Section 319 can beexercised in an exceptional situation where theEevidentiary material is more than what is required forthe framing of the charge and is of such a characterthat if it is not rebutted, the proposed accused could befound guilty of the offence;

(ii) In the FIR which was lodged by the appellant four daysFafter the incident, no allegation was made against thesecond respondent;

(iii) No incriminating observations are contained in the post-mortem report dated 19 June 2017 since the body wasfound in an advanced stage of decomposition; G

(iv) A charge-sheet was filed under Section 173 of theCrPC upon which cognizance was taken. No protestpetition was filed by the appellant after the police, uponinvestigation, did not find any material to prosecute thesecond respondent; H3 (2016) 4 SCC 604

(v) Having regard to the language of Section 319, thesecond respondent upon being summoned has to betried for the same offence as the co-accused who isalleged to have abetted the suicide of the deceasedunder Section 306;

(vi) In order to sustain the exercise of power under Section319, there must exist strong and cogent evidence beforethe court. In the present case:

a) No protest petition was filed by the appellant whenthe charge-sheet was filed; and

b) The cross-examination of PW-1 has revealed thatmaterial aspects of the deposition had not beenmentioned in the earlier statement under Section161;

(vii) Whether it be by way of a revision under Section 397or a petition under Section 482, the power to test thevalidity of the order passed by the Additional SessionsJudge rested with the High Court and in view of thedecision of this Court in Pepsi Foods Ltd v SpecialJudicial Magistrate[4], the High Court was not in errorin exercising its jurisdiction under Section 482.

16. Having heard the counsel appearing on behalf of the parties,this Court has to decide whether the Trial Court was correct inexercising its powers under Section 319 and summoning the secondrespondent based on the evidence adduced by PW-1 and PW-2 duringthe course of the trial.

17. In assessing the rival submissions, it is relevant to refer toSection 319 of CrPC:

“319. Power to proceed against other persons appearing to beguilty of offence.- (1) Where, in the course of any inquiry into,or trial of, an offence, it appears from the evidence that anyperson not being the accused has committed any offence forwhich such person could be tried together with the accused, theCourt may proceed against such person for the offence whichhe appears to have committed.

4 (1998) 5 SCC 749

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A(2) Where such person is not attending the Court, he may bearrested or summoned, as the circumstances of the case mayrequire, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest orupon a summons, may be detained by such Court for the purposeBof the inquiry into, or trial of, the offence which he appears tohave committed.

(4) Where the Court proceeds against any person under sub-section (1), then - (a) the proceedings in respect of such person shall beCcommenced afresh, the witness re-heard; (b) subject to the provisions of clause (a), the case mayproceed as if such person had been an accused personwhen the Court took cognizance of the offence uponwhich the inquiry or trial was commenced.”

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18. The decision of the Constitution Bench of this Court inHardeep Singh lays down the principles governing the exercise of thejurisdiction under Section 319. Observing that “it is the duty of the courtto do justice by punishing the real culprit”, the court observed:

“13…Where the investigating agency for any reason does notEarray one of the real culprits as an accused, the court is notpowerless in calling the said accused to face trial.”

Expounding upon this duty, the Constitution Bench held:

“18. The legislature cannot be presumed to have imagined all thecircumstances and, therefore, it is the duty of the court to giveFfull effect to the words used by the legislature so as to encompassany situation which the court may have to tackle while proceedingto try an offence and not allow a person who deserves to betried to go scot-free by being not arraigned in the trial in spite ofthe possibility of his complicity which can be gathered from theGdocuments presented by the prosecution.

19. The court is the sole repository of justice and a duty is castupon it to uphold the rule of law and, therefore, it will beinappropriate to deny the existence of such powers with the courtsin our criminal justice system where it is not uncommon that thereal accused, at times, get away by manipulating the investigating H

and/or the prosecuting agency. The desire to avoid trial is sostrong that an accused makes efforts at times to get himselfabsolved even at the stage of investigation or inquiry even thoughhe may be connected with the commission of the offence.”

19. As regards the satisfaction of the court before it exercisesthe power under Section 319, the Constitution Bench held:

“105. Power under Section 319 CrPC is a discretionary and anextraordinary power. It is to be exercised sparingly and only inthose cases where the circumstances of the case so warrant. Itis not to be exercised because the Magistrate or the SessionsJudge is of the opinion that some other person may also be guiltyof committing that offence. Only where strong and cogentevidence occurs against a person from the evidence ledbefore the court that such power should be exercised andnot in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to beestablished from the evidence led before the court, not necessarilytested on the anvil of cross-examination, it requires muchstronger evidence than mere probability of his complicity.The test that has to be applied is one which is more thanprima facie case as exercised at the time of framing ofcharge, but short of satisfaction to an extent that theevidence, if goes unrebutted, would lead to conviction. Inthe absence of such satisfaction, the court should refrain fromexercising power under Section 319 CrPC. In Section 319 CrPCthe purpose of providing if “it appears from the evidence thatany person not being the accused has committed any offence”is clear from the words “for which such person could be triedtogether with the accused.” The words used are not “for whichsuch person could be convicted”. There is, therefore, noscope for the Court acting under Section 319 CrPC to formany opinion as to the guilt of the accused.” (Emphasissupplied)

20. Subsequent decisions of this Court have applied the principleswhich were enunciated in Hardeep Singh in varying fact situations.In Babubhai Bhimabhai Bokhiria v State of Gujarat[5], the Trial Court 5 (2014) 5 SCC 568

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Ahad summoned the accused person under Section 319 on the basis ofa written note left by the deceased, apprehending death at the handsof the accused person. The High Court affirmed the order of the TrialCourt. A two-judge Bench of this Court while setting aside the orderof the High Court held that the note written by the deceased wasinadmissible in evidence and could not be considered to allow theBexercise of powers under Section 319.

21. In Brijendra Singh v State of Rajasthan[6], persons namedin the FIR but not in the charge sheet, were summoned before the TrialCourt based on statements made by the complainant under Section 161of CrPC. The High Court upheld the order of the Trial Court. A two-Cjudge Bench of this Court while setting aside the High Court’s orderheld that the police investigation revealed that the accused persons werefound to be far away from the crime scene and the statements recordedunder Section 161 of CrPC did not constitute sufficient evidence forthe Trial Court to exercise its power under Section 319.D22. In v[[7]], the Trial Court had

22. In Rajesh v State of Haryana[[7]], the Trial Court hadsummoned four persons under Section 319 based on the depositions ofthe complainant and an eyewitness, regarding their specific role inmurdering two persons. The High Court dismissed the revision petitionfiled by the accused persons. A two-judge Bench of this Court upheldEthe High Court’s order and held that the depositions of the complainantand the eyewitness before the Trial Court were “evidence” on the basisof which, the accused persons could be summoned to face trial.

23. In S Mohammed Ispahani v Yogendra Chandak[8], the TrialCourt dismissed an application under Section 319 for summoning personswho were named in the FIR but not in the charge-sheet. The High Court,Fbased on a statement recorded by the police under Section 161, setaside the Trial Court’s order and summoned the accused persons fortrial. A two-judge Bench of this Court, while setting aside the decisionof the High Court, discussed the powers of the court under Section319:G“35. It needs to be highlighted that when a person is named inthe FIR by the complainant, but police, after investigation, findsno role of that particular person and files the charge-sheet without 6 (2017) 7 SCC 7067 (2019) 6 SCC 368H8 (2017) 16 SCC 226

implicating him, the Court is not powerless, and at the stage ofsummoning, if the trial court finds that a particular person shouldbe summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to thecomplainant also to file a protest petition urging upon the trialcourt to summon other persons as well who were named in theFIR but not implicated in the charge-sheet. Once that stage hasgone, the Court is still not powerless by virtue of Section 319CrPC. However, this section gets triggered when during the trialsome evidence surfaces against the proposed accused.”

In Rajesh v State of Haryana (supra), this Court held that thecourt, while exercising its jurisdiction under Section 319, is not renderedpowerless even in a case where the stage of furnishing an opportunityto the complainant to file a protest petition urging the Trial Court tosummon other persons as well as those who are named in the FIR butnot impleaded in the charge-sheet, has gone.

24. In the present case, the FIR lodged by the appellant (PW-1)recorded that on the intervening night of 9/10 June 2017, the secondrespondent, who was her son-in-law, informed her on the telephone thatJuhi Arshi had hanged herself. The appellant stated that on reachingthe house, when she saw the body of her deceased daughter on thefloor, she lost consciousness. She stated that the second respondent andhis relatives bathed the dead body and buried the deceased on 10 June2017 between 1-3 pm. She stated that after she regained consciousness,she saw the photos of the dead body, which showed that injury markswere visible on the neck, hands and legs. The appellant alleged thather daughter had been murdered. The appellant wanted an investigationto be carried out after exhuming the dead body and a post-mortem tobe conducted so that the murderer “could be reached”. The dead bodywas exhumed and a post-mortem was conducted on 19 June 2017, butthe body was in an advanced stage of decomposition. The charge-sheetwas submitted by the Investigating Officer implicating Manoj Shrivastavfor an offence under Section 306 of the IPC. The evidence of PW-1was recorded in the course of the trial on 5 October 2018. PW-1deposed that:

(i) Her daughter has been harassed by the secondrespondent, his father, mother, brothers and others forbringing insufficient dowry. In order to save the AB

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Amarriage of her daughter, she had given a plot with ahouse constructed thereon in Azad Nagar to herdaughter and son-in-law;

(ii) On receiving the intimation from the second respondentat 3:00 am on the intervening night between 9/10 JuneB2017, that her daughter had committed suicide, PW-1together with her husband and son reached the houseof the second respondent and saw the dead body ofher daughter lying on the floor and a dupatta hangingon the channel;

(iii) The body was buried by the second respondent and hisrelatives in the afternoon on 10 June 2017; C

(iv) The photographs of the dead body show that the bodyhad visible injury marks on the neck, hands and legswhich led her to the conclusion that her daughter hadnot committed suicide but was murdered; D

(v) She had furnished a report of the murder on 12 June2017 to P S Majhola and had also complained to thehigher officials on whose order the body was exhumedfrom the grave; and

E(vi) The second respondent had managed to connive withthe police and get his name excluded from the charge-sheet.

25. During the course of her cross-examination on 6 December2018, the appellant was questioned on her deposition in the course ofFthe Examination-in-Chief about the harassment which her daughter hadsuffered at the hands of the second respondent, his father, mother andbrothers. PW- 1 maintained her account in the course of her cross-examination, stating that on the night before the incident when herdaughter had visited her house together with the second respondent,she had informed PW-1 about the ill-treatment meted out to her. PW-G1 further stated in her cross-examination that she received intimationof the death of her daughter from the second respondent at 3:00 amas she was preparing for sehari during the month of Ramzan. Onreaching the scene of the incident, it was found that only the secondrespondent was present in the house where the couple used to reside.HShe stated that besides the injury marks on the body of the deceased, the floor was found to be absolutely clear, and it appeared as if it hadbeen cleaned. PW-1 stated that a foul smell was emanating from themouth of her daughter and a bottle was found at the site which thepolice took into custody. PW -1 stated that nothing was found to bemissing from the household items ruling out the possibility of a theft.

26. PW-2 (the son of PW-1 and the brother of the deceased)deposed in evidence on 4 June 2019 when he stated that on 12 July2017, the police had taken into custody three mobiles and four SIMcards besides nine photographs which were taken by the witness fromhis cell phone.

27. The order of the Additional Sessions Judge dated 29 January2019 for summoning the second respondent was on the basis of theevidence which emerged during the course of the trial. The ordersummoning the second respondent was on a careful evaluation of theevidentiary material and based on the principles laid down in the decisionof the Constitution Bench in Hardeep Singh. The Additional SessionsJudge furnished reasons for relying on the provisions of Section 114 ofthe Evidence Act having due regard to the fact that the incident hadtaken place within the confines of the matrimonial home where onlythe second respondent and the deceased were residing on the night whenthe incident took place.

28. The order passed by the Additional Sessions Judge did notsuffer from any infirmity. On the contrary, it was the High Court whichinterfered with the findings of the Trial Court on the specious groundthat the trial was proceeding against Manoj Shrivastav for an offenceunder Section 306 and that the Trial Court had merely engaged in anexercise of exploring the possibility as to the cause of death. Section319 empowers the court to proceed against a person appearing to beguilty of an offence where, in the course of any enquiry into or trial of,an offence, it appears from the evidence that any person, not beingthe accused, has committed any offence for which such person couldbe tried together with the accused. The exercise of the discretion bythe Additional Sessions Judge to summon the second respondent fulfilledthe requirements of Section 319 and was consistent with the parameterslaid down in the decisions of this Court noted earlier. The fact that aprotest petition had not been filed by the appellant when the report wassubmitted under Section 173 did not render the court powerless toexercise its powers under Section 319 on the basis of the evidence A

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Awhich had emerged during the course of the trial. The evidence of PW-1 and PW-2 which has been adverted to above meets the thresholdrequired to sustain an order for summoning under Section 319. The HighCourt has failed to analyse the basis on which the Additional SessionsJudge had proceeded to issue summons under Section 319 and in a briefset of observations covering a few sentences displaced a well-Bconsidered order of the Additional Sessions Judge in purported exerciseof the jurisdiction under Section 482. The order passed by the HighCourt is unsustainable and would accordingly have to be set aside.

29. We accordingly allow the appeal and set aside the impugnedjudgment and order of the High Court dated 12 April 2019. InCconsequence, the order passed by the Additional District and SessionsJudge - Fast Track Court No 1, Moradabad on 29 January 2019 allowingthe application and issuing summons to the second respondent underSection 319 of the CrPC is upheld.

30. Pending application(s), if any, shall stands disposed of.D

Devika Gujral

Appeal allowed.

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