Power under Section 319 of CrPC is discretionary and an extraordinary power but must be exercised only where strong and cogent evidence occurs against a person from the evidence led before the court.

Niharika Sharma | Lloyd Law College | 18th December 2019

SAEEDA KHATOON ARSHI VS. STATE OF UP AND ORS., Criminal Appeal No. 1815 of 2019

Facts:

• An FIR was lodged on 14 June 2017 at the Police station Majhola, Moradabad by the appellant who is mother of the deceased, Juhi Arshi who died on 10 June 2017 in her matrimonial home.
• In her report she said that her daughter was married to Akram s/o Shri Kasim about 9 years ago. The deceased was living with her husband Akram in this house from past 3 years.
• On 9/10 June 2017 at 3 a.m. her son-in-law called and informed that Juhi has hanged herself. Listening to this news the appellant, her husband and her son rushed to their daughter’s house at Azad Nagar. There they saw the dead body lying on the floor and a cloth was hanging from the channel. Seeing this, the family members lost their senses.
• Next day, when they regained their senses in afternoon, they found that Juhi’s husband and his family members have given bath to the body and buried her at Azad Nagar graveyard on 10 June 2017 at about 1:30 p.m. when the appellant saw the photographs of her daughter’s dead body she could clearly see the injury marks on her neck, legs and hands. She claimed that her daughter has been murdered and a proper investigation must be done by exhuming the dead body from the grave for post -mortem.
• Based on the application submitted by applicant to the District Magistrate, Moradabad the body of her daughter was exhumed on 19 June 2017 and post-mortem was carried out. It reported that the body was in its advanced decomposition stage.
• The body was once again exhumed on 1 July 2017, and a post-mortem was conducted by a medical board constituted by the Chief Medical Officer, Moradabad. The medical board confirmed the findings of the earlier post-mortem. On 12 September 2017, a charge-sheet was filed Under Section 173 of the Code of Criminal Procedure against a person by the name of Manoj Shrivastav, who is alleged to have abetted the suicidal death of Juhi Arshi and thereby committed an offence Under Section 306 of the Indian Penal Code 1860 (“IPC”). On 21 August 2018, the trial commenced before the Additional Sessions Judge – Fast Track Court – 1, Moradabad.
• On 26 September 2018, charges were framed against one Manoj Shrivastav Under Section 306 of Indian Penal Code, and the Appellant was summoned to give evidence in the course of the trial. The applicant deposed that in order to save the marriage of her daughter, she had given a plot at Azad Nagar after constructing a house on it, to her daughter and second respondent. She also deposed that her daughter often mentioned about the harassment she has to go through by her in-laws for dowry.
• On 5 October 2018, on the basis of the substantive evidence of the Appellant (PW-1) an application1 was moved Under Section 319 of the Code of Criminal Procedure to summon the second Respondent to face trial as he appeared to be complicit in the crime leading up to the murder of his wife.
• On 29 January 2019, the Additional District and Sessions Judge allowed the application and summoned the second Respondent Under Section 319 of the Code of Criminal Procedure. The learned Trial Judge noted that while summoning an Accused Under Section 319 of Code of Criminal Procedure, the nature of the evidence should be such that if it is not rebutted, the Accused should be held guilty of the offence. Holding that the evidence which had been adduced was of such a nature, the second Respondent was summoned Under Section 319.
• The second respondent challenged the order of the Trial judge; the single judge of High Court allowed the application and set aside the summoning order. Aggrieved by the judgement of the High Court, the Appellant moved this court under Article 136 of the Constitution.
• The learned counsel appearing on behalf of the Appellant submitted that the test applied by the Sessions Judge was correct and based on the judgement of Hardeep Singh. The evidence of PW-1 and PW-2 is clearly of a nature that if not rebutted the proposed Accused could be found guilty of the offence.

The learned counsel on behalf of the second respondent submitted that the power under Section 319 can be exercised in an exceptional situation where the evidentiary material is more than what is required for the framing of the charge and is of such a character that if it is not rebutted, the proposed accused could be found guilty of the offence. No incriminating observations are there in post-mortem report and no protest petition was filed by the Appellant after the police, after investigation, did not find any material to prosecute the second Respondent.

Issue:

Whether the Trial court was correct in exercising its power under Section 319 and summoning the second Respondent based on the evidence adduced by PW-1 and PW-2 during trial.

Held:

• The constitutional bench, relying on the judgement of Hardeep Singh held that Power under Section 319 of Code of Criminal Procedure is a discretionary and an extraordinary power but must be exercised only where strong and cogent evidence occurs against a person from the evidence led before the court. It requires much stronger evidence than mere probability of his complicity.
• The order passed by the Additional Sessions Judge did not suffer from any infirmity. On the contrary, it was the High Court which interfered with the findings of the Trial Court on the specious ground that the trial was proceeding against Manoj Shrivastav 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. Accordingly, the court allowed the appeal and set aside the impugned order of the High Court dated 12 April 2019 and upheld the order passed by the Additional District and Sessions Judge-Fast Track Court No. 1, Moradabad on 29 January 2019 allowing the application and issuing summons to the second Respondent Under Section 319 of the Code of Criminal Procedure