need more than prima facie evidence to summon additional accused under crpc 319

Excerpt: Considering the fact that there was bald allegation of general in nature against the petitioners, who have separate living and the investigating officer after thorough investigation did not find sufficient evidence, has not filed the charge sheet against them, but the trial court merely on the basis of the reiteration of the allegation in the statements of P.W.-1 and P.W.-2 i.e. the complainant and his wife, has summoned the petitioners under Section 319 Cr.P.C. as additional accused to face trial, I think that the trial court has not applied the law correctly and has summoned the petitioners in casual and cavalier manner against the dictum of the Hon’ble Supreme Court in the case of Periyasami (supra).
Allahabad High Court
Mohammad Shaleem @ Nanhey And … vs The State Of U.P And Anr. on 29 April, 2019
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 28
 

 
Case :- U/S 482/378/407 No. - 583 of 2013
 

 
Applicant :- Mohammad Shaleem @ Nanhey And Ors.(Complaint Case)
 
Opposite Party :- The State Of U.P And Anr.
 
Counsel for Applicant :- Ashok Kumar Mishra
 
Counsel for Opposite Party :- Govt. Adovocate
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present petition under Section 482 Cr.P.C. has been filed impugning the order dated 25.10.2013 passed by the Additional Sessions Judge, Court No.1, Hardoi in Session Trial No.389 of 2011, under Section 319 Cr.P.C., whereby the petitioners have been summoned as additional accused to face trial under Section 498A, and 304-B IpC and Section 3/4 Dowry Prohibition Act.

2. The petitioners are uncle, aunt, grandmother, cousin sister and widow sister of the uncle. The petitioners were named in the FIR and a general allegation was made that they all were demanding Rs.50,000/- for opening a shop by Santosh Kumar, husband of the deceased and when demand was not fulfilled, they all used to beat the deceased. It was also alleged that Santosh Kumar, husband of the deceased, had illicit relation with sister-in-law of the maternal uncle. From the post-mortem report, it is evident that the deceased had committed suicide by hanging. The investigating officer after investigating the FIR and collecting the evidence, did not find any evidence against the petitioners and filed the charge sheet only against the husband. All witnesses whose statements were recorded under Sections 161 and 164Cr.P.C. unequivocally said that the petitioners had separate living. However, the trial court only on the basis of the statements of the complainant and his wife, where they had reiterated the FIR version, had summoned the petitioners under Section 319 Cr.P.C. without adverting to the evidence collected by the investigating officer.

3. Hon’ble the Supreme Court in several judgements has held that the powers under Section 319 Cr.P.C. to summon the additional accused should be used sparingly and whether there is credible and cogent evidence available against the accused.

4. In a recent judgment, Hon’ble the Supreme Court in the case of Periyasami and others v. S. Nallasamy, Criminal Appeal No.456 of 2019 arising out of S.L.P. (Crl.) No.208 of 2019, decided on 14.3.2019, taking note of the judgement of the Hon’ble Supreme Court in the case of Hardeep Singh v. State of Punjab (2014) 3 SCC 92 in paragraphs 10, 11, 13 and 14 held as under :-

“10. Learned counsel for the appellants relies upon a Constitution Bench judgment of this Court in Hardeep Singh v. State of Punjab (2014) 3 SCC 92 to contend that satisfaction required to invoke the power under Section 319 of the Code to arraign an accused is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is only where strong and cogent evidence occurs against a person from the evidence laid before the court, such power should be exercised and not in a casual and cavalier manner. The Court held as under:

“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 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.”

11. Learned counsel for the appellants also refers to a recent order of this Court in Labhuji Amratji Thakor & Ors. v. The State of Gujarat & Anr.5, where, the order of summoning the additional accused on the basis of the statements of some of the witnesses in witness box was set aside for the reason that there is not even suggestion of any act done by the appellants amounting to an offence under Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. It was held as under:

“….The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e., “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”….”

13. In the statements recorded under Section 161 of the Code during the course of investigation, the Complainant and his witnesses have not disclosed any other name except the 11 persons named in the FIR. Thus, the Complainant has sought to cast net wide so as to include numerous other persons while moving an application under Section 319 of the Code without there being primary evidence about their role in house trespass or of threatening the Complainant. Large number of people will not come to the house of the Complainant and would return without causing any injury as they were said to be armed with weapons like crowbar, knife and ripper etc.

14. In the First Information Report or in the statements recorded under Section 161 of the Code, the names of the appellants or any other description have not been given so as to identify them. The allegations in the FIR are vague and can be used any time to include any person in the absence of description in the First Information Report to identify such person. There is no assertion in respect of the villages to which the additional accused belong. Therefore, there is no strong or cogent evidence to make the appellants stand the trial for the offences under Sections 147, 448, 294(b) and 506 of IPC in view of the judgment in Hardeep Singh case (supra). The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.

5. Hon’ble the Supreme Court has also taken note of the fact that there is general tendency to involve the entire family members in the case of dowry death.

6. Hon’ble the Supreme Court in the case of Geeta Mehrotra and another v. State of U.P., 2013 (80) ACC 185. while considering the aforesaid question held in paragraph 19 of the judgment as under :-

“19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.”

7. Hon’ble the Supreme Court has also held in the case of Vipin Jaiswal v. State of A.P., 2013 (82) ACC 61:(2013) 3 SCC 684 that the demand of money for setting up business by the husband or relative, is not a dowry demand. To somewhat similar facts where the husband was demanding Rs.50,000/- for setting up of Computer Shop, Hon’ble the Supreme Court in paragraphs 4 and 6 has held as under :-

“At the hearing before us, the learned Senior Counsel for the appellant submitted that the findings of the trial court and of the High Court with regard to the demand of dowry are in relation to the demand of Rs 50,000. He submitted that this demand of Rs 50,000 is not mentioned in the FIR (Ext. P-1). He further submitted that in any case, the evidence of PW 1 and PW 4 is clear that this demand of Rs 50,000 by the appellant was not a dowry demand but an amount which the appellant wanted from the family of the deceased to purchase a computer and set up his own business. He further submitted that the trial court and the High Court ought not to have disbelieved the suicide note (Ext. D-19) which was in the handwriting of the deceased as proved by DW 1. In this context, he explained that the signature on the suicide note (Ext. D-19) purporting to be that of the deceased, tallied with the signature of the deceased in Ext. D-1 which was a hall ticket issued by Dr B.R. Ambedkar Open University for an examination which the deceased took in March 1998.

We have perused the evidence of PW 1 and PW 4, the father and mother of the deceased respectively. We find that PW 1 has stated that at the time of marriage, gold, silver articles, ornaments, TV, fridge and several other household articles worth more than Rs 2,50,000 were given to the appellant and after the marriage, the deceased joined the appellant in his house at Kagaziguda. He has, thereafter, stated that the appellant used to work in a xerox-cum-typing institute in Nampally and in the sixth month after marriage, the deceased came to their house and told them that the appellant asked her to bring Rs 50,000 from them as he was intending to purchase a computer and set up his own business. Similarly, PW 4 has stated in her evidence that five months after the marriage, the appellant sent her away to their house and when she questioned her, she told that the appellant was demanding Rs 50,000 and that the demand for money is to purchase a computer to start his own business. Thus, the evidence of PW 1 and PW 4 is that the demand of Rs 50,000 by the appellant was made six months after the marriage and that too for purchasing a computer to start his own business. It is only with regard to this demand of Rs 50,000 that the trial court has recorded a finding of guilt against the appellant for the offence under Section 304-B IPC and it is only in relation to this demand of Rs 50,000 for purchase of a computer to start a business made by the appellant six months after the marriage that the High Court has also confirmed the findings of the trial court with regard to guilt of the appellant under Section 304-B IPC. In our view, both the trial court and the High Court failed to appreciate that the demand, if at all made by the appellant on the deceased for purchasing a computer to start a business six months after the marriage, was not in connection with the marriage and was not really a “dowry demand” within the meaning of Section 2 of the Dowry Prohibition Act, 1961.This Court has held in Appasaheb v. State of Maharashtra [(2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] : (SCC pp. 726-27, para 11) “11. In view of the aforesaid definition of the word ”dowry’ any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd. [(1996) 10 SCC 413 : AIR 1996 SC 3509] and Chemical and Fibres of India Ltd. v. Union of India [(1997) 2 SCC 664 : AIR 1997 SC 558] .)”

8. Hon’ble the Supreme Court in the case of Brijendra Singh and others v. State of Rajasthan(2017) 7 SCC 706 after taking notice of the judgment of the Constitution Bench in the case of Hardeep Singh v. State of Punjab (2014) 3 SCC 92 in paragraphs 12, 13 and 14 held as Under :-

“12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 CrPC and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and answered in the following manner: (SCC pp. 135 & 138, paras 95 & 105-106) “95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan [Vikas v. State of Rajasthan, (2014) 3 SCC 321 : (2014) 2 SCC (Cri) 172] , held that on the [Ed.: The words between two asterisks have been emphasised in original.] objective satisfaction [Ed.: The words between two asterisks have been emphasised in original.] of the court a person may be “arrested” or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

***

105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. 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 the words ” [Ed.: The words between two asterisks have been emphasised in original.] for which such person could be tried together with the accused [Ed.: The words between two asterisks have been emphasised in original.] “. 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.” (emphasis supplied)

13. In order to answer the question, some of the principles enunciated in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] may be recapitulated: power under Section 319 CrPC can be exercised by the trial court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some “evidence” against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The “evidence” herein means the material that is brought before the court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. No doubt, such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.

14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 km. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 CrPC to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that the appellants’ plea of alibi was correct.”

9. Considering the fact that there was bald allegation of general in nature against the petitioners, who have separate living and the investigating officer after thorough investigation did not find sufficient evidence, has not filed the charge sheet against them, but the trial court merely on the basis of the reiteration of the allegation in the statements of P.W.-1 and P.W.-2 i.e. the complainant and his wife, has summoned the petitioners under Section 319 Cr.P.C. as additional accused to face trial, I think that the trial court has not applied the law correctly and has summoned the petitioners in casual and cavalier manner against the dictum of the Hon’ble Supreme Court in the case of Periyasami (supra).

10. Thus, the petition is allowed and the impugning the order dated 25.10.2013 passed by the Additional Sessions Judge, Court No.1, Hardoi in Session Trial No.389 of 2011 under Section 319 Cr.P.C., whereby the petitioners had been summoned as additional accused to face trial under Section 498A, and 304-B IpC and Section 3/4 Dowry Prohibition Act is hereby set aside.

( Dinesh Kumar Singh, J.) Order Date :- 29.4.2019 Rao/-

 

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