SUNIL KUMAR GUPTA AND OTHERS versus STATE OF UTTAR PRADESH AND OTHERS on 27 February 2019

[2019] 4 S.C.R. 875

SUNIL KUMAR GUPTA AND OTHERS

v.

STATE OF UTTAR PRADESH AND OTHERS

(Criminal Appeal No. 395 of 2019)

FEBRUARY 27, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Code of Criminal Procedure, 1973: s.319 – Summoning ofappellants for offence under s.302 IPC – Allegation of dowry deathof victim-deceased – Prosecution case was that the dyingdeclaration of the victim-deceased was that she was set on fire onaccount of demand of dowry by her husband and in-laws – Duringcourse of trial, application under s.319 was filed by prosecutionseeking to summon the appellants/accused for offence punishableunder s.302 stating that their names were mentioned in the FIR andalso in the statement of PW-1 and PW-3 – Trial Court held thatprima facie evidence was available against the appellants andallowed the application – High Court dismissed the revisionpetition against the order of Trial Court – On appeal, held: Noprima facie case was made out for summoning the appellants andto proceed against them for the offence punishable under s.302IPC – In the dying declaration, deceased had only mentioned thename of her sister-in-law and she had not mentioned the names ofothers – Even the charge sheet for the offence punishable unders.302 IPC was filed only against her sister-in-law – For summoningan accused under s.319, it requires much stronger evidence thanmere probability of his complicity which is lacking in the instantcase – In his complaint lodged before the police on the next day ofincident, PW-1, the father of deceased neither stated the names ofthe appellants nor attributed any overt act – Likewise, in theirevidence before the court, PWs 1 and 3 only stated that thedeceased told them that her sister-in-law and all others have setfire on her – Neither the complaint nor the evidence of witnessesindicated as to the role played by the appellants in the commissionof the offence and which accused committed what offence – Theaverments in the complaint and the evidence regarding the demandof dowry was vague and no specific demand was attributed to any

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Aof the appellants – In such circumstances, there was nojustification for summoning the appellants for offence under s.498AIPC, ss.3 and 4 of Dowry Prohibition Act and under s.302 IPC –The impugned order is liable to be set aside – Penal Code, 1860 –ss. 498A and 302 – Dowry Prohibition Act – ss.3 and 4.

BCode of Criminal Procedure, 1973: s.319 – Power of courtunder s.319, scope – Held: s.319(1) empowers the Court toproceed against any person not shown as an accused if it appearsfrom the evidence that such person has committed any offence forwhich such person could be tried together along with the accused– Power under s.319 is a discretionary and an extraordinary powerCand is to be exercised sparingly and only in those cases where thecircumstances of the case so warrant and that only where strongand cogent evidence occurs against a person from the evidence ledbefore the court that such power should be exercised and not in acasual and cavalier manner.

DAllowing the appeals, the Court

HELD: 1.1 It is fairly well settled that before the courtexercises its jurisdiction in terms of Section 319 Cr.P.C., it mustarrive at satisfaction that the evidence adduced by theprosecution, if unrebutted, would lead to conviction of the personsEsought to be added as the accused in the case. [Para 9][881-B-C]

Conclusion

1.2 It was held in Hardeep Singh that power under Section319 Cr.P.C is a discretionary and an extraordinary power and isto be exercised sparingly and only in those cases where theFcircumstances of the case so warrant and that only where strongand cogent evidence occurs against a person from the evidenceled before the court that such power should be exercised and notin a casual and cavalier manner. When this principle is applied tothe case in hand, no prima facie case was made out for summoningGthe appellants and for proceeding against the appellants for theoffence punishable under Section 302 IPC. In the dyingdeclaration, deceased had only mentioned the name of her sister-in-law; but she did not mention the names of others. In hiscomplaint lodged before the police on the next day, PW-1 hadstated that his daughter told him that her sister-in-law and all H

other people set her on fire after pouring kerosene. PW-1 neitherstated the names of the appellants nor attributed any overt act.Likewise, in their evidence before the court, PWs 1 and 3 onlystated that the deceased told them that her sister-in-law and allothers have set fire on deceased. Neither the complaint nor theevidence of witnesses indicates as to the role played by theappellants in the commission of the offence and which accusedhas committed what offence. Under such circumstances, it cannotbe said that the prosecution has shown prima facie material forsummoning the accused for the offence punishable under Section302 IPC. [Para 9, 11] [881-B-E; 882-G-H; 883-A-C]

Hardeep Singh v. State of Punjab and Others (2014) 3SCC 92 : [2014] 2 SCR 1;Sarabjit Singh and Anotherv. State of Punjab and Another(2009) 16 SCC 46 :[2009] 8 SCR 762 – referred to.

2.1 Under Section 319 Cr.P.C., a person can be added asan accused invoking the provisions not only for the same offencefor which the accused is tried but for “any offence”; but that offenceshall be such that in respect of which all the accused could betried together. It is to be seen whether the appellants could besummoned for the offence under Section 498A IPC and underSections 3 and 4 of Dowry Prohibition Act. The statement ofPW-1 both in the complaint and in his evidence before the courtis very general stating that he had given sufficient dowry to thedeceased according to his status and that the groom side werenot satisfied with the dowry and that they used to demand dowryeach and every time. Insofar as the demand of dowry and thedowry harassment, there are no particulars given as to the timeof demand and what was the nature of demand. The avermentsin the complaint and the evidence is vague and no specific demandis attributed to any of the appellants. In such circumstances, thereis no justification for summoning the appellants even under Section498A IPC and under Sections 3 and 4 of Dowry Prohibition Act.[Para 12] [883-C-F]

2.2 Upon completion of investigation, the InvestigatingOfficer felt that no offence under Sections 498A, 304-B IPC and A

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Aunder Sections 3 and 4 of the Dowry Prohibition Act is made out.Charge sheet was filed for the offence punishable only underSection 302 IPC against the deceased’s sister-in-law. As held inthe Constitution Bench judgment in Hardeep Singh, forsummoning an accused under Section 319 Cr.P.C. it requires muchstronger evidence than mere probability of his complicity whichBis lacking in the instant case. The trial court and the High Courtdid not examine the matter in the light of the well-settledprinciples and the impugned order is liable to be set aside.[Para 12] [883-F-H; 884-A]

Case Law Reference

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DCRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.395 of 2019.

From the Judgment and Order dated 25.04.2017 of the High Courtof Judicature at Allahabad in Criminal Revision No.1354 of 2017

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Criminal Appeal No 396 of 2019.

Basava Prabhu S. Patil, Sr. Adv., R. Chandrachud, A. Ramesh,Syed Ahmad Naqvi, Ms. Aruna Gupta, Priyanshu Maheshwari,B. Ramana Murthy, Advs. for the Appellants.

FMs. Ruchi Kohli, Ajay Vikram Singh, Purnendu Bajpai,Ms. Priyanka Singh, Ms. Kamlesh Aanand, Ms. Nidhi Jaswal,Ms. Srishti Mishra, Prithvi Pal, Rohit Singh, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

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2. These appeals arise out of the order dated 25.04.2017 passedby the High Court of Judicature at Allahabad in Criminal Revision No.1354 of 2017 in and by which the High Court has affirmed the order ofthe trial court summoning the appellants under Section 319 Cr.P.C. forthe offence punishable under Section 302 IPC.

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3. Marriage of deceased Shilpa, daughter of Sudhir Kumar Gupta(PW-1) was solemnized with Dimpal @ Akash Deep on 26.01.2006.Out of the wedlock, two children were born. According to the complainant- Sudhir Kumar Gupta (PW-1), his daughter Shilpa was complainingabout the demand of dowry by her husband Dimpal @ Akash Deep andthe appellants-her in-laws. Complainant-PW-1 alleged that on 19.08.2012,his daughter Shilpa was set ablaze and she told him in full consciousnessthat Chanchal @ Babita, Sachin, Sunil Kumar Gupta (Elder uncle ofDimpal), Pushpa (wife of Sunil Kumar Gupta), Vicky (Son of Sunil KumarGupta), Neeru, Shrikant Gupta (Brother of Sunil Kumar Gupta), Bhagwanand Khusbu Gupta have poured kerosene on her and burnt her. Dyingdeclaration of Shilpa was recorded by the Tehsildar on 19.08.2012 at09.40 PM in which she stated that Chanchal @ Babita poured keroseneand set her on fire. Deceased Shilpa succumbed to injuries on the sameday at night i.e. 19.08.2012. On the complaint lodged by Sudhir KumarGupta (PW-1), FIR was registered against nine accused including theappellants under Sections 304-B, 498A, 302 IPC and under Sections 3and 4 of the Dowry Prohibition Act, 1961. On completion of investigation,charge sheet was filed against Chanchal @ Babita (wife of SachinKumar) for the offence punishable under Section 302 IPC. So far asother accused are concerned, the charge sheet stated that no offencewas made out under Sections 498A, 304-B IPC and under Sections 3and 4 of the Dowry Prohibition Act, 1961.

4. In the trial, Sudhir Kumar Gupta (PW-1), Mohit Agarwal (PW-2), and Munish Gupta (PW-3) were examined on 30.10.2014, 06.11.2015and 08.11.2015 respectively. About one year thereafter during the courseof trial on 04.10.2016, an application under Section 319 Cr.P.C. wasfiled by the prosecution seeking to summon the appellants/accused forthe offence punishable under Section 302 IPC stating that their nameswere mentioned in the FIR and also in the evidence of PW-1 and PW-3.The trial court held that prima facie evidence is available against theappellants for trying them for the offence punishable under Section 302IPC and allowed the application and ordered issuance of summons tothe appellants for trial under Section 302 IPC. In the revision filed by theappellants, the High Court by the impugned order dismissed the revisionpetition observing that there are specific allegations against the revisionists AB

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Aand therefore, there is no illegality or impropriety in the order of the trialcourt. Being aggrieved, the appellants are before us.

5. Mr. Basava Prabhu S. Patil, learned senior counsel appearingon behalf of the appellants has submitted that though the names of theappellants were mentioned in the FIR, subsequently they have beenBexonerated by the Investigating Officer when the charge sheet wasfiled and this aspect was not considered by the High Court. Placingreliance upon the Constitution Bench judgment in Hardeep Singh v.State of Punjab and Others (2014) 3 SCC 92, it was submitted thatthe power under Section 319 Cr.P.C. is to be exercised sparingly andonly in those cases where circumstances of the case so warrant, theCaccused could be summoned under Section 319 Cr.P.C. It was submittedthat in the present case, there are no strong and cogent evidence for thetrial court to exercise its jurisdiction under Section 319 Cr.P.C to summonthe appellants for trial under Section 302 IPC. It was contended thatwhen the dying declaration of deceased Shilpa contains only the nameDof Chanchal @ Babita, the trial court and the High Court ought not tohave ordered summoning of the appellants for the offence punishableunder Section 302 IPC.

6. Per contra, Ms. Ruchi Kohli, learned counsel appearing onbehalf of the respondent-State submitted that based on the evidence ofEPW-1 and PW-3, the trial court satisfied itself that there are prima facieevidence available on record indicating involvement of the appellants inthe offence and the High Court rightly declined to interfere with theorder of the trial court summoning the accused.

7. We have carefully considered the submissions and perused theFimpugned order and other materials on record.

8. On 19.08.2012, immediately after the occurrence at 09.40 PMin her dying declaration recorded by the Tehsilar, deceased Shilpa hadstated “that she had a quarrel with her sister-in-law (Dewrani) Chanchal@ Babita…..and that Chanchal @ Babita poured kerosene and set herGon fire”. In the complaint lodged by PW-1 on the next day i.e. 20.08.2012,he has referred to the names of the appellants. Though the charge sheetwas filed under Section 302 IPC only against Chanchal @ Babita, thecomplainant has not filed any protest petition at that stage. In hisevidence, PW-1 has referred to the names of the appellants that hisdaughter Shilpa in consciousness told him the names of all the appellantsH

including Chanchal @ Babita and that they are responsible for pouringkerosene and set her on fire.

9. Section 319(1) Cr.P.C. empowers the Court to proceed againstany person not shown as an accused if it appears from the evidence thatsuch person has committed any offence for which such person could betried together along with the accused. It is fairly well settled that beforethe court exercises its jurisdiction in terms of Section 319 Cr.P.C., itmust arrive at satisfaction that the evidence adduced by the prosecution,if unrebutted, would lead to conviction of the persons sought to be addedas the accused in the case. In Hardeep Singh,the Constitution Benchheld as under:- “105. Power under Section 319 Cr.P.C 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 led beforethe court that such power should be exercised and not in a casualand 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 much strongerevidence than mere probability of his complicity. The test thathas to be applied is one which is more than prima facie case asexercised at the time of framing of charge, but short of satisfactionto an extent that the evidence, if goes unrebutted, would lead toconviction. In the absence of such satisfaction, the court shouldrefrain from exercising power under Section 319 CrPC. In Section319 CrPC the purpose of providing if “it appears from the evidencethat any 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, no scopefor the court acting under Section 319 CrPC to form any opinionas to the guilt of the accused.” [underlining added]

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10. Observing that for exercising jurisdiction and its discretion interms of Section 319 Cr.P.C., the courts are required to apply stringenttests, in Sarabjit Singh and Another vs. State of Punjab andAnother(2009) 16 SCC 46, it was held as under:- A

“21. An order under Section 319 of the Code, therefore, shouldnot be passed only because the first informant or one of thewitnesses seeks to implicate other persons(s). Sufficient andcogent reasons are required to be assigned by the court so as tosatisfy the ingredients of the provisions. Mere ipse dixit wouldnot serve the purpose. Such an evidence must be convincing oneat least for the purpose of exercise of the extraordinary jurisdiction.For the aforementioned purpose, the courts are required to applystringent tests; one of the tests being whether evidence on recordis such which would reasonably lead to conviction of the personsought to be summoned.

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22. ……. Whereas the test of prima facie case may be sufficientfor taking cognizance of an offence at the stage of framing ofcharge, the court must be satisfied that there exists a strongsuspicion. While framing charge in terms of Section 227 of theCode, the court must consider the entire materials on record toform an opinion that the evidence if unrebutted would lead to ajudgment of conviction.

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23. Whether a higher standard be set up for the purpose of invokingthe jurisdiction under Section 319 of the Code is the question.The answer to these questions should be rendered in the affirmative.Unless a higher standard for the purpose of forming an opinion tosummon a person as an additional accused is laid down, theingredients thereof viz. (i) an extraordinary case, and (ii) a casefor sparingly (sic sparing) exercise of jurisdiction, would not besatisfied.” [underlining added]

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11. Applying the above principles to the case in hand, in ourGconsidered view, no prima facie case is made out for summoning theappellants and to proceed against the appellants for the offence punishableunder Section 302 IPC. As pointed out earlier, in the dying declaration,deceased Shilpa has only mentioned the name of Chanchal @ Babita;but she has not mentioned the names of others. In his complaint lodged H

before the police on the next day i.e. 20.08.2012, Sudhir Kumar Gupta-PW-1 has stated that his daughter Shilpa told him that Chanchal @ Babitaand all other people set her on fire after pouring kerosene. PW-1 hasneither stated the names of the appellants nor attributed any overt act.Likewise, in their evidence before the court, PWs 1 and 3 have onlystated that Shilpa told them that Chanchal @ Babita and all others haveset fire on deceased Shilpa. Neither the complaint nor the evidence ofwitnesses indicates as to the role played by the appellants in thecommission of the offence and which accused has committed whatoffence. Under such circumstances, it cannot be said that the prosecutionhas shown prima facie material for summoning the accused for theoffence punishable under Section 302 IPC.

12. Under Section 319 Cr.P.C., a person can be added as anaccused invoking the provisions not only for the same offence for whichthe accused is tried but for “any offence”; but that offence shall be suchthat in respect of which all the accused could be tried together. It is tobe seen whether the appellants could be summoned for the offenceunder Section 498A IPC and under Sections 3 and 4 of Dowry ProhibitionAct. The statement of PW-1 both in the complaint and in his evidencebefore the court is very general stating that he had given sufficient dowryto Shilpa according to his status and that the groom side were not satisfiedwith the dowry and that they used to demand dowry each and everytime. Insofar as the demand of dowry and the dowry harassment, thereare no particulars given as to the time of demand and what was thenature of demand. The averments in the complaint and the evidence isvague and no specific demand is attributed to any of the appellants. Insuch circumstances, there is no justification for summoning the appellantseven under Section 498A IPC and under Sections 3 and 4 of DowryProhibition Act. It is also pertinent to point out that upon completion ofinvestigation, the Investigating Officer felt that no offence under Sections498A, 304-B IPC and under Sections 3 and 4 of the Dowry ProhibitionAct is made out. Charge sheet was filed for the offence punishable onlyunder Section 302 IPC against Chanchal @ Babita. As held in theConstitution Bench judgment in Hardeep Singh, for summoning anaccused under Section 319 Cr.P.C. it requires much stronger evidencethan mere probability of his complicity which is lacking in the presentcase. The trial court and the High Court, in our considered view, has not A

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Aexamined the matter in the light of the well-settled principles and theimpugned order is liable to be set aside.

13. In the result, the impugned order of the High Court is set asideand these appeals are allowed. The Sessions Judge/Fast Track No.1,Moradabad shall proceed with Session Trial No.35/2013 in accordanceBwith law. We make it clear that we have not expressed any opinion onthe merits of the matter.

Devika Gujral

Appeals allowed.

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