Code of Criminal Procedure, 1973: s.319 – Summoning of appellants for offence under s.302 IPC – Allegation of dowry death of victim-deceased – Prosecution case was that the dying declaration of the victim-deceased was that she was set on fire on account of demand of dowry by her husband and in-laws – During course of trial, application under s.319 was filed by prosecution seeking to summon the appellants/accused for offence punishable under s.302 stating that their names were mentioned in the FIR and also in the statement of PW-1 and PW-3 – Trial Court held that prima facie evidence was available against the appellants and allowed the application – High Court dismissed the revision petition against the order of Trial Court – On appeal, held: No prima facie case was made out for summoning the appellants and to proceed against them for the offence punishable under s.302 IPC – In the dying declaration, deceased had only mentioned the name of her sister-in-law and she had not mentioned the names of others – Even the charge sheet for the offence punishable under s.302 IPC was filed only against her sister-in-law – For summoning an accused under s.319, it requires much stronger evidence than mere probability of his complicity which is lacking in the instant case – In his complaint lodged before the police on the next day of incident, PW-1, the father of deceased neither stated the names of the appellants nor attributed any overt act – Likewise, in their evidence before the court, PWs 1 and 3 only stated that the deceased told them that her sister-in-law and all others have set fire on her – Neither the complaint nor the evidence of witnesses indicated as to the role played by the appellants in the commission of the offence and which accused committed what offence – The averments in the complaint and the evidence regarding the demand of dowry was vague and no specific demand was attributed to any of the appellants – In such circumstances, there was no justification for summoning the appellants for offence under s.498A IPC, 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.
Code of Criminal Procedure, 1973: s.319 – Power of court under s.319, scope – Held: s.319(1) empowers the Court to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence for which such person could be tried together along with the accused – Power under s.319 is a discretionary and an extraordinary power and is to be exercised sparingly and only in those cases where the circumstances of the case so warrant and that 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.
Allowing the appeals, the Court
HELD: 1.1 It is fairly well settled that before the court exercises its jurisdiction in terms of Section 319 Cr.P.C., it must arrive at satisfaction that the evidence adduced by the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as the accused in the case. [Para 9] [881-B-C]
1.2 It was held in Hardeep Singh that power under Section
319 Cr.P.C is a discretionary and an extraordinary power and is to be exercised sparingly and only in those cases where the circumstances of the case so warrant and that 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. When this principle is applied to the case in hand, no prima facie case was made out for summoning the appellants and for proceeding against the appellants for the offence punishable under Section 302 IPC. In the dying declaration, deceased had only mentioned the name of her sisterin-law; but she did not mention the names of others. In his complaint lodged before the police on the next day, PW-1 had stated that his daughter told him that her sister-in-law and all other people set her on fire after pouring kerosene. PW-1 neither stated the names of the appellants nor attributed any overt act. Likewise, in their evidence before the court, PWs 1 and 3 only stated that the deceased told them that her sister-in-law and all others have set fire on deceased. Neither the complaint nor the evidence of witnesses indicates as to the role played by the appellants in the commission of the offence and which accused has committed what offence. Under such circumstances, it cannot be said that the prosecution has shown prima facie material for summoning the accused for the offence punishable under Section
302 IPC. [Para 9, 11] [881-B-E; 882-G-H; 883-A-C]
Hardeep Singh v. State of Punjab and Others (2014) 3 SCC 92 : [2014] 2 SCR 1; Sarabjit Singh and Another v. 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 as an accused invoking the provisions not only for the same offence for which the accused is tried but for “any offence”; but that offence shall be such that in respect of which all the accused could be tried together. It is to be seen whether the appellants could be summoned for the offence under Section 498A IPC and under Sections 3 and 4 of Dowry Prohibition Act. The statement of PW-1 both in the complaint and in his evidence before the court is very general stating that he had given sufficient dowry to the deceased according to his status and that the groom side were not satisfied with the dowry and that they used to demand dowry each and every time. Insofar as the demand of dowry and the dowry harassment, there are no particulars given as to the time of demand and what was the nature of demand. The averments in the complaint and the evidence is vague and no specific demand is attributed to any of the appellants. In such circumstances, there is no justification for summoning the appellants even under Section 498A IPC and under Sections 3 and 4 of Dowry Prohibition Act. [Para 12] [883-C-F]
2.2 Upon completion of investigation, the Investigating Officer felt that no offence under Sections 498A, 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act is made out. Charge sheet was filed for the offence punishable only under Section 302 IPC against the deceased’s sister-in-law. As held in the Constitution Bench judgment in Hardeep Singh, for summoning an accused under Section 319 Cr.P.C. it requires much stronger evidence than mere probability of his complicity which is lacking in the instant case. The trial court and the High Court did not examine the matter in the light of the well-settled principles and the impugned order is liable to be set aside. [Para 12] [883-F-H; 884-A]
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.
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