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Summoning accused under section 319 of CrPC requires stronger evidence and stringent tests
Sunil Kumar Gupta and Ors Vs State of UP and Ors
Criminal Appeal No. 395 of 2019
About/from the judgment:
“Section 319(1) Cr.P.C. 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"
The Supreme Court has observed that, though under Section 319 of the Code of Criminal Procedure, a person can be added as an accused 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.
The bench was hearing appeals from order dated 25.04.2017 passed by the High Court of Judicature at Allahabad by which the High Court has affirmed the order of the trial court summoning the appellants under Section 319 Cr.P.C. for the offence punishable under Section 302 IPC.
The FIR was registered against nine accused including the appellants under Sections 304-B, 498A, 2 302 IPC and under Sections 3 and 4 of the Dowry Prohibition Act, 1961. On completion of investigation, charge sheet was filed against Chanchal @ Babita (wife of Sachin Kumar) for the offence punishable under Section 302 IPC. So far as other accused are concerned, the charge sheet stated that no offence was made out under Sections 498A, 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act, 1961.
During the course of trial an application under Section 319 Cr.P.C. was filed by the prosecution seeking to summon the appellants/accused for the offence punishable under Section 302 IPC stating that their names were mentioned in the FIR and also in the evidence of PW-1 and PW-3. The trial court held that prima facie evidence is available against the appellants for trying them for the offence punishable under Section 302 IPC and allowed the application and ordered issuance of summons to the appellants for trial under Section 302 IPC. In the revision filed by the appellants, the High Court by the impugned order dismissed the revision petition observing that there are specific allegations against the revisionists and therefore, there is no illegality or impropriety in the order of the trial court.
The bench comprising Justice R. Banumathi and Justice Subhash Reddy observed no prima facie case is made out for summoning the appellants and to proceed against the appellants for the offence punishable under Section 302 IPC.
"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"
Can the newly added accused be tried for offences other than those offences for which other accused are tried?
The bench said:
"Section 319(1) Cr.P.C. 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. 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."
The bench has then examined whether the appellants could be summoned for the offence under Section 498A IPC and under Sections 3 and 4 of Dowry Prohibition Act.The Court found that the statement of PW1 both in the complaint and in his evidence before the court is very general stating that he had given sufficient dowry to Shilpa 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. It is also pertinent to point out that 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."
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