Code of Criminal Procedure, 1973: s.319 – Power to proceed against other persons appearing to be guilty of offence – Prosecution case was that appellant received phone call on fateful night at 3 a.m. from second respondent-husband of her daughter that the victim-deceased has hanged herself – Appellant reached the house of her daughter and found her dead body lying on floor – Appellant fell unconscious and when she regained consciousness, she came to know that the second respondent and his relatives bathed and buried the body of deceased – She then saw the photos of the dead body, which showed injury marks on the neck, hands and legs – On her application, the dead body was exhumed and a post-mortem was conducted but the body was in an advanced stage of decomposition and the cause of death could not be ascertained as nine days had elapsed since the date of death and the burial of the deceased – A chargesheet was filed against a person who was friend of second respondent alleged to have abetted the suicidal death of the appellant’s daughter and trial commenced – On the basis of substantive evidence of the appellant during the course of trial against the second respondent, an application was moved under s.319 to summon the second respondent to face trial as he appeared to be complicit in the crime leading to murder of appellant’s daughter – Trial court allowed s.319 application – Second respondent challenged the same before High Court by filing s.482 application – High Court allowed s.482 application and set aside the summoning order – Hence the instant appeal – Held: The order of trial court for summoning the second respondent was on the basis of the evidence which emerged during the course of trial – The order summoning the second respondent was on a careful evaluation of the evidentiary material and based on the principles laid down in the decision of the Constitution Bench in Hardeep Singh – Trial court furnished reasons for relying on the provisions of s.114 of the Evidence Act having due regard to the fact that the incident had taken place within the confines of the matrimonial home where only the second respondent and the deceased were residing on the night when the incident took place – The order passed by trial court did not suffer from any infirmity – On the contrary, it was the High Court which interfered with the findings of trial court on the specious ground that the trial was proceeding against friend of second respondent for an offence under s.319 and that trial court had merely engaged in an exercise of exploring the possibility as to the cause of death – s.319 empowers the court to proceed against a person appearing to be guilty 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 being the accused, has committed any offence for which such person could be tried together with the accused – The exercise of the discretion by trial court to summon the second respondent fulfilled the requirements of s.319 – The fact that a protest petition had not been filed by the appellant when the report was submitted under s.173 did not render the court powerless to exercise its powers under s.319 on the basis of the evidence which had emerged during the course of the trial – The order passed by the High Court is unsustainable – Evidence Act, 1872 – s.114. Allowing the appeal, the Court
HELD: 1.1 During the course of her cross-examination on 6 December 2018, the appellant was questioned on her deposition in the course of the Examination-in-Chief about the harassment which her daughter had suffered at the hands of the second respondent, his father, mother and brothers. PW- 1 maintained her account in the course of her cross-examination, stating that on the night before the incident when her daughter had visited her house together with the second respondent, she had informed PW-1 about the ill-treatment meted out to her. PW1 further stated in her cross-examination that she received intimation of the death of her daughter from the second respondent at 3:00 am as she was preparing for sehari during the month of Ramzan. On reaching the scene of the incident, it was found that only the second respondent was present in the house where the couple used to reside. She 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 had been cleaned. PW-1 stated that a foul smell was emanating from the mouth of her daughter and a bottle was found at the site which the police took into custody. PW -1 stated that nothing was found to be missing from the household items ruling out the possibility of a theft. [Para 25] [846-F-H; 847-A]
1.2 The order summoning the second respondent was on a careful evaluation of the evidentiary material and based on the principles laid down in the decision of the Constitution Bench in Hardeep Singh. The Additional Sessions Judge furnished reasons for relying on the provisions of Section 114 of the Evidence Act having due regard to the fact that the incident had taken place within the confines of the matrimonial home where only the second respondent and the deceased were residing on the night when the incident took place. The High Court interfered with the findings of the Trial Court on the specious ground that the trial was proceeding against friend of second respondent for an offence under Section 306 and that the Trial Court had merely engaged in an exercise of exploring the possibility as to the cause of death. Section 319 empowers the court to proceed against a person appearing to be guilty 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 being the accused, has committed any offence for which such person could be tried together with the accused. The fact that a protest petition had not been filed by the appellant when the report was submitted under Section 173 did not render the court powerless to exercise its powers under Section 319 on the basis of the evidence which had emerged during the course of the trial. The evidence of PW-1 and PW-2 which has been adverted to above meets the threshold required to sustain an order for summoning under Section 319. The High Court has failed to analyse the basis on which the Additional Sessions Judge had proceeded to issue summons under Section 319 and in a brief set of observations covering a few sentences displaced a well-considered order of the Additional Sessions Judge in purported exercise 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.
Gajanan Dashrath Kharate v. State of Maharashtra (2016) 4 SCC 604 : [2016] 2 SCR 852 ; Pepsi Foods Ltd v. Special Judicial Magistrate (1998) 5 SCC
749 : [1997] 5 Suppl. SCR 12 ; Babubhai Bhimabhai Bokhiria v. State of Gujarat (2014) 5 SCC 568 : [2014]
4 SCR 652 ; Brijendra Singh v. State of Rajasthan (2017) 7 SCC 706 : [2017] 3 SCR 374 ; S Mohammed Ispahani v. Yogendra Chandak (2017) 16 SCC 226 : [2017] 10 SCR 29 ; Rajesh v. State of Haryana (2019)
6 SCC 368 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.