JUHRU & ORS versus KARIM & ANR. on 21 February 2023

[2023] 2 S.C.R. 519

JUHRU & ORS.v.

KARIM & ANR.

(Criminal Appeal No.549 of 2023)

FEBRUARY 21, 2023

[SURYA KANT AND J.K. MAHESHWARI, JJ.]

Code of Criminal Procedure, 1973 – s. 319 – Additionalaccused – Summoning of –Appeal filed by the father-in-law(appellant no.1), sister-in-law(appellant no.2), and brother-in-law(appellant no.3) of the deceased against the High Courtjudgment wherein the High Court summoned them u/s 319 of theCrPC, 1973 as additional accused – Earlier, respondent no. 1(brother of the deceased woman) had filed an FIR u/s 304B, 498A,406, 323 and 34 IPC against the husband of the deceased, themother-in-law of the deceased, and the abovementioned appellants– The investigating agency did not find any incriminating materialagainst the appellants, and a challan was filed only against thehusband and the mother-in-law of the deceased – Thereafter,respondent no. 1 filed an application u/s 319 Cr.P.C. before trialCourt to summon the appellants as additional accused – Trial Courtdismissed the said application – Respondent no. 1 approached theHigh Court – The High Court summoned the appellants to face trial– Discontented with their summoning, the appellants filed appealbefore the Supreme Court – Held: Power of summoning u/s. 319Cr.P.C. is not to be exercised routinely and the existence of morethan a prima facie case is sine qua non to summon an additionalaccused – The procedural safeguard can be that ordinarily thesummoning of a person at the very threshold of the trial may bediscouraged and the trial Court must evaluate the evidence againstthe persons sought to be summoned – In absence of any credibleevidence, the power u/s.319 Cr.P.C. ought not to be invoked – Inthe instant case, the record reveals that appellant no.1 had askedrespondent no.1 to spend 20 lakhs on marriage – Therefore, HighCourt summoning appellant no.1 satisfies the ingredients of s.319Cr.P.C. – However, no credible evidence to connect the death ofdeceased with appellant nos.2 and 3.

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520SUPREME COURT REPORTS

APartly allowing the appeal, the Court

Held: 1. It is, thus, manifested from a conjoint reading ofthe cited decisions that power of summoning under Section 319Cr.P.C. is not to be exercised routinely and the existence of morethan a prima facie case is sine qua non to summon an additionalBaccused. This Court may add that with a view to prevent thefrequent misuse of power to summon additional accused underSection 319 Cr.P.C., and in conformity with the binding judicialdictums referred to above, the procedural safeguard can be thatordinarily the summoning of a person at the very threshold of thetrial may be discouraged and the trial court must evaluate theCevidence against the persons sought to be summoned and thenadjudge whether such material is, more or less, carry the sameweightage and value as has been testified against those who arealready facing trial. In the absence of any credible evidence, thepower under Section 319 Cr.P.C. ought not to be invoked. [ParaD17][525-H; 526-A-C]

Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :2014 (2 ) SCR 1; Sukhpal Singh Khaira v. The Stateof Punjab (2023) 1 SCC 289 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.549 of 2023.FFrom the Judgment and Order dated 27.01.2020 of the High Courtof Punjab and Haryana at Chandigarh in CRM-M No.40507 of 2018.

S. K. Verma, Atul Kumar, Abhimanyu Sharma, Ms. Deepali,Janmayjai Verma, Advs. for the Appellants.

GDeepkaran Dalal, Raunaq Dalal, Ashish Jhamb, Arun Kumar, Dr.Monika Gusain, Advs. for the Respondents.

The Judgment of the Court was delivered by SURYA KANT, J.

Leave Granted.H

2. The instant Criminal Appeal originates from a judgment dated27.01.2020 whereby the High Court of Punjab and Haryana at Chandigarh(in short ‘High Court’), while setting aside the order dated 12.07.2018passed by the Additional Sessions Judge, Nuh, has ordered the summoningof the Appellants under Section 319 of the Code of Criminal Procedure,1973 (hereinafter ‘Cr.P.C.’) as additional accused.

A. FACTS

3. Briefly stated the facts are that FIR No. 270 dated 09.07.2017was 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 themarriage of his deceased sister (Rukseena) was solemnised on04.12.2016 with one Aamir. An Alto car, Rs.3 lakhs in cash, 3 kg ofsilver, 30 grams of gold, furniture and other household items were allegedlygiven 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 (brother-in-law) – Appellant No.3. The complainant further alleged that the familyof Aamir was dissatisfied with the dowry and subjected the deceased tocontinuous torture and harassment. Respondent No.1 and his family triedto settle the matter with Aamir and his family but all their efforts provedfutile. Respondent No. 1 was telephonically informed on 09.07.2017 thatthe deceased had hung herself to death.

4. The investigating agency did not find any incriminating materialagainst the Appellants in the course of investigation and Challan wasfiled only against the husband and the mother-in-law of the deceased,who are now facing trial.

5. During the trial, Respondent No. 1 stepped into the witness boxas PW-1 on 01.03.2018 and reiterated the allegations levelled against allthe accused persons, including the Appellants. Soon thereafter,Respondent No. 1 filed an application under section 319 Cr.P.C beforethe Trial Court to summon the Appellants as additional accused.

6. The Trial Court dismissed the said application observing thatthe extraordinary power vested under section 319 Cr.P.C ought to beexercised only if the evidence adduced on record strongly indicates thepossible involvement of the person(s) aimed to be prosecuted. The Trial A

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ACourt further opined that it did not appear from the deposition ofRespondent No. 1 or from other material on record that the personssought to be summoned had committed any offence for which they couldbe tried together with accused Aamir and Akhlima.

7. The aggrieved Respondent No. 1, approached the High CourtBunder Section 482, Cr.P.C. and vide impugned order dated 27.01.2020his petition was allowed and the appellants were summoned to facetrial. The High Court observed that the FIR as well as the testimony ofRespondent No. 1 during the trial revealed that the insinuations againstthe Appellants were exactly the same as those attributed to the accusedalready facing trial. Hence, in the absence of any distinguishable features,Cthe Appellants were also liable to be tried along with Aamir and Akhlima.The High Court further viewed that there existed sufficient grounds forsummoning the Appellants as additional accused.

8. Discontented with their summoning by the High Court, theAppellants are before us.D

B. CONTENTIONS

9. Mr. S.K. Verma, learned counsel for the Appellants, vehementlycontended that the High Court has committed a grave error of law in notappreciating that the powers under Section 319 Cr.P.C. are to beEexercised sparingly only if the evidence vividly points out the possibleinvolvement of the person(s) proposed to be prosecuted. There is not aniota of evidence against the appellants to glean a conclusion of theirinvolvement. Further, the fact that the Appellants were found innocentduring the course of two-fold investigation has not been adequatelyconsidered by the High Court. There is no evidence to suggest evenFremotely that the Appellants were cruel to the deceased shortly beforeher death. The allegations are general and vague in nature withoutattributing any specific role to the Appellants.

10. On the other hand, Mr. Deepkaran Dalal, learned Counsel forthe Ist Respondent, strongly defended the approach of the High CourtGand submitted that, given the allegations made in the FIR and the depositionof Respondent No.1, the High Court was justified in summoning theAppellants, who were actively involved in harassing the deceased fornot bringing enough dowry and which eventually led to the unfortunatedeath of Rukseena just within 7 months of her marriage.

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C. ANALYSIS

11. There is no gainsaid that the alleged offence is grave andheinous in nature. The long arms of law must find out whether anyperson is guilty of abetting or taking away the precious life of a younggirl who soon after her marriage met with such a tragic end. However,the only issue that falls for our consideration is whether there is sufficientevidence 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, anoffence, it appears from the evidence that any person notbeing the Accused has committed any offence for which suchperson could be tried together with the Accused, the Courtmay proceed against such person for the offence which heappears to have committed. … …”

13. Illuminating the scope of Section 319 Cr.PC, the ConstitutionBench of this Court in Hardeep Singh vs. State of Punjab[1 ]laid downthat :

“57. Thus, the application of the provisions of Section 319CrPC, at the stage of inquiry is to be understood in its correctperspective. The power under Section 319 CrPC can beexercised only on the basis of the evidence adduced beforethe court during a trial. So far as its application during thecourse of inquiry is concerned, it remains limited as referredto herein above, adding a person as an accused, whose namehas been mentioned in Column 2 of the charge-sheet or anyother person who might be an accomplice.”

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“105. Power under Section 319 CrPC is a discretionary andan extraordinary power. It is to be exercised sparingly andonly in those cases where the circumstances of the case sowarrant. It is not to be exercised because the Magistrate orthe Sessions Judge is of the opinion that some other personmay also be guilty of committing that offence. Only wherestrong and cogent evidence occurs against a person from the A

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Aevidence led before the court that such power should beexercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is tobe established from the evidence led before the court, notnecessarily tested on the anvil of cross-examination, it requiresBmuch stronger evidence than mere probability of hiscomplicity. The test that has to be applied is one which ismore than prima facie case as exercised at the time of framingof charge, but short of satisfaction to an extent that theevidence, if goes unrebutted, would lead to conviction. In theabsence of such satisfaction, the court should refrain fromCexercising power under Section 319 CrPC. In Section 319CrPC the purpose of providing if “it appears from the evidencethat any person not being the accused has committed anyoffence” is clear from the words “for which such person couldbe tried together with the accused”. The words used are notD“for which such person could be convicted”. There is,therefore, no scope for the court acting under Section 319CrPC to form any opinion as to the guilt of the accused.”

14. This Court has very recently, in Sukhpal Singh Khaira vs.The State of Punjab[2], succinctlyexplained the powers bestowed on theCourt under section 319 Cr.P.C. and ruled that:E“15. At the outset, having noted the provision, it is amply clearthat the power bestowed on the Court is to the effect that inthe course of an inquiry into, or trial of an offence, based onthe evidence tendered before the Court, if it appears to theCourt that such evidence points to any person other than theFaccused who are being tried before the Court to havecommitted any offence and such accused has been excludedin the charge sheet or in the process of trial till such timecould still be summoned and tried together with the accusedfor the offence which appears to have been committed by suchpersons summoned as additional accused.”G

15. In Hardeep Singh (Supra), it has been eloquently held thatthe word “evidence” in Section 319 Cr.P.C. has to be broadly understoodand thus materials which have come before the Court in course of enquirycan be used for : -

(i) corroboration of evidence recorded by Court aftercommencement of trial;

(ii) for exercise of power under Section 319 Cr.P.C.; and

(iii) also to add an accused whose name is shown in columnno.2 of the chargesheet.

It was further explained that statement made in examination-inchief also constitutes “evidence” and the Court while exercising powerunder Section 319 Cr.P.C. post commencement of trial, need not waitfor evidence against person proposed to be summoned, to be tested bycross-examination.

16. In Sukhpal Singh Khaira (Supra), the Constitution Benchrefreshed the guidelines that the competent court must follow whileexercising power under Section 319 Cr.P.C. It was ruled that :-

(i) if the competent court finds evidence or if application underSection 319 Cr.P.C. is filed, regarding involvement of anyother person in committing the offence based on evidence“recorded at any stage in the trial” before passing of theorder on acquittal or sentence, it shall pause the trial at thatstage and the Court shall proceed to decide the fate of theapplication under Section 319 Cr.P.C.;

(ii) if the Court decides to summon an accused under Section319 Cr.P.C., such summoning order shall be passed beforeproceeding further with the trial in the main case anddepending upon the stage at which the order is passed, theTrial Court shall apply its mind to the fact as to whethersuch summoned accused is to be tried along with otheraccused or separately; and

(iii) if the power under Section 319 Cr.P.C. is not invoked orexercised in the main trial till its conclusion and if there is asplit-up case, such power can be invoked or exercised onlyif there is evidence to that effect, pointing to the involvementof the additional accused to be summoned in the spilt-up(bifurcated trial).

17. It is, thus, manifested from a conjoint reading of the citeddecisions that power of summoning under Section 319 Cr.P.C. is not tobe exercised routinely and the existence of more than a prima facie A

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Acase is sine quo non to summon an additional accused. We may hastento add that with a view to prevent the frequent misuse of power tosummon additional accused under Section 319 Cr.P.C., and in conformitywith the binding judicial dictums referred to above, the proceduralsafeguard can be that ordinarily the summoning of a person at the verythreshold of the trial may be discouraged and the trial court must evaluateBthe evidence against the persons sought to be summoned and then adjudgewhether such material is, more or less, carry the same weightage andvalue as has been testified against those who are already facing trial. Inthe absence of any credible evidence, the power under Section 319Cr.P.C. ought not to be invoked.C18. Adverting to the case in hand, the allegations against theAppellants are that they too played an active role in the commission ofthe alleged offence.

19. The record reveals that after the application under section319 Cr.P.C was dismissed by the Trial Court, Respondent No.1 wasDcalled on 06.12.2018 for further examination-in-chief as PW-1. Hisdeposition distinctively unravels that at the time of marriage, AppellantNo.1 – Juhru (father-in-law) had asked Respondent No.1 to spend asum of Rs. 20 lacs on the marriage of Aamir and the deceased, to whichRespondent No.1 had agreed. Appellant No.1 and his wife AkhlimaE(mother-in-law) were living under the same roof as his son Aamir(husband) and he would have been privy to all the alleged occurrencesof torture, harassment or demand for more dowry. Viewed from thisangle, it appears that the Ist appellant might have to sink or swim withhis son and wife. The High Court order, to the extent of summoningAppellant No. 1, therefore, satisfies the ingredients of Section 319 Cr.P.C.Fand may not warrant any interference by this Court.

20. As regard to Appellant Nos. 2 and 3, i.e., Sonam (sister-in-law), and Rijwan (brother-in-law) of the deceased, it appears to us thatdespite both of them being named in the FIR and in the examination-in-chief of Respondent No.1, there is no credible evidence to connect themGwith the unnatural death of Rukseena. There is no cogent material thatAppellant No. 2, even after her marriage with Appellant No. 3, continuedto reside in her parents’ house or that they used to inter-meddle in theday to day marital life of the deceased and Aamir. In the absence of anyauthentic evidence to bring them in close proximity of the reported crime, H

it would be unjustified to call upon Appellant Nos. 2 and 3 to face trial asadditional accused in this case.

D. CONCLUSION :

21. In light of above discussion, we are of the considered viewthat while summoning of Appellant No. 1 sustains, but that of AppellantNos. 2 and 3 will be farfetched and they cannot be subjected to trial onthe basis of mere strong suspicion. The High Court order under challengeis accordingly set aside qua Appellant Nos. 2 and 3.

22. Having held that Appellant No.1 has been rightly summonedand is liable to be tried along with his son and wife, the next question thatrequires consideration is as to the manner in which the trial will proceedhitherto.

23. The information available on record suggests that the trial isat the stage of defence evidence. The guidelines that the Trial Courtmust follow, while commencing the trial against Appellant No.1 havebeen extensively iterated by the Constitution Bench in Sukhpal SinghKhaira (Supra), in the following terms:

“41 (III). What are the guidelines that the competent courtmust follow while exercising power under Section 319 CrPC?

41.1 If the competent court finds evidence or if applicationunder Section 319 of CrPC is filed regardinginvolvement of any other person in committing theoffence based on evidence recorded at any stage in thetrial 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 orotherwise to summon the additional accused and passorders thereon.

41.3 If the decision of the court is to exercise the power underSection 319 of CrPC and summon the accused, suchsummoning order shall be passed before proceedingfurther 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 Courtshall also apply its mind to the fact as to whether suchsummoned accused is to be tried along with the otheraccused or separately.

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A41.5 If the decision is for joint trial, the fresh trial shall becommenced only after securing the presence of thesummoned accused.

41.6 If the decision is that the summoned accused can betried separately, on such order being made, there willBbe no impediment for the Court to continue and concludethe trial against the accused who were being proceededwith.”

24. The Trial Court shall, thus, follow the cited dictum and proceedagainst Appellant No. 1 in accordance with law.

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25. For the reasons aforestated but without expressing any viewson merits, we partly allow this appeal and modify the impugned order ofthe High Court dated 27.01.2020 in above terms.

26. Pending applications, if any, stand disposed of.

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Ankit Gyan(Assisted by : Mahendra Yadav, LCRA)

Appeal partly allowed.

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