Juhru vs Karim

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.549 OF 2023 [Arising out of Special Leave Petition (Criminal) No. 1658 of 2020]

Juhru & Ors. … Appellant(s) VERSUS Karim & Anr. … Respondent(s) JUDGMENT

Surya Kant, J.

Leave Granted.

2. The instant Criminal Appeal originates from a judgment dated

27.01.2020 whereby the High Court of Punjab and Haryana at

Chandigarh (in short ‘High Court’), while setting aside the order

dated 12.07.2018 passed by the Additional Sessions Judge, Nuh,

has ordered the summoning of the Appellants under Section 319

of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr.P.C.’) as

additional accused.

A. FACTS

3. Briefly stated the facts are that FIR No. 270 dated 09.07.2017 Signature Not Verified Digitally signed by satish kumar yadav Date: 2023.02.21 16:51:59 IST

was registered at Police Station Tauru, District Nuh under Reason:

Sections 304B, 498A, 406, 323 and 34 of the Indian Penal Code,

1860 (hereinafter ‘IPC’) on the statement of Karim ­ Respondent

No. 1 to the effect that the marriage of his deceased sister

(Rukseena) was solemnised on 04.12.2016 with one Aamir. An

Alto car, Rs.3 lakhs in cash, 3 kg of silver, 30 grams of gold,

furniture and other household items were allegedly given to

Aamir and his family members as dowry at the time of marriage.

The family of Aamir comprised of Akhlima (mother), Juhru

(father) – Appellant No.1, Sonam (sister) – Appellant No.2 and

Rijwan (brother­in­law) – Appellant No.3. The complainant

further alleged that the family of Aamir was dissatisfied with the

dowry and subjected the deceased to continuous torture and

harassment. Respondent No.1 and his family tried to settle the

matter with Aamir and his family but all their efforts proved

futile. Respondent No. 1 was telephonically informed on

09.07.2017 that the deceased had hung herself to death.

4. The investigating agency did not find any incriminating material

against the Appellants in the course of investigation and Challan

was filed only against the husband and the mother­in­law of the

deceased, who are now facing trial.

5. During the trial, Respondent No. 1 stepped into the witness box

as PW­1 on 01.03.2018 and reiterated the allegations levelled

Page | 2 against all the accused persons, including the Appellants. Soon

thereafter, Respondent No. 1 filed an application under section

319 Cr.P.C before the Trial Court to summon the Appellants as

additional accused.

6. The Trial Court dismissed the said application observing that the

extraordinary power vested under section 319 Cr.P.C ought to be

exercised only if the evidence adduced on record strongly

indicates the possible involvement of the person(s) aimed to be

prosecuted. The Trial Court further opined that it did not appear

from the deposition of Respondent No. 1 or from other material

on record that the persons sought to be summoned had

committed any offence for which they could be tried together

with accused Aamir and Akhlima.

7. The aggrieved Respondent No. 1, approached the High Court

under Section 482, Cr.P.C. and vide impugned order dated

27.01.2020 his petition was allowed and the appellants were

summoned to face trial. The High Court observed that the FIR as

well as the testimony of Respondent No. 1 during the trial

revealed that the insinuations against the Appellants were

exactly the same as those attributed to the accused already

facing trial. Hence, in the absence of any distinguishable

features, the Appellants were also liable to be tried along with

Page | 3 Aamir and Akhlima. The High Court further viewed that there

existed sufficient grounds for summoning the Appellants as

additional accused.

8. Discontented with their summoning by the High Court, the

Appellants are before us.

B. CONTENTIONS

9. Mr. S.K. Verma, learned counsel for the Appellants, vehemently

contended that the High Court has committed a grave error of

law in not appreciating that the powers under Section 319

Cr.P.C. are to be exercised sparingly only if the evidence vividly

points out the possible involvement of the person(s) proposed to

be prosecuted. There is not an iota of evidence against the

appellants to glean a conclusion of their involvement. Further,

the fact that the Appellants were found innocent during the

course of two­fold investigation has not been adequately

considered by the High Court. There is no evidence to suggest

even remotely that the Appellants were cruel to the deceased

shortly before her death. The allegations are general and vague

in nature without attributing any specific role to the Appellants.

10. On the other hand, Mr. Deepkaran Dalal, learned Counsel for

the Ist Respondent, strongly defended the approach of the High

Court and submitted that, given the allegations made in the FIR

Page | 4 and the deposition of Respondent No.1, the High Court was

justified in summoning the Appellants, who were actively

involved in harassing the deceased for not bringing enough

dowry and which eventually led to the unfortunate death of

Rukseena just within 7 months of her marriage.

C. ANALYSIS

11. There is no gainsaid that the alleged offence is grave and heinous

in nature. The long arms of law must find out whether any

person is guilty of abetting or taking away the precious life of a

young girl who soon after her marriage met with such a tragic

end. However, the only issue that falls for our consideration is

whether there is sufficient evidence against the Appellants to

summon them as additional accused?

12. Section 319 Cr.P.C. contemplates that:

“….Where, in the course of any inquiry 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 Court may proceed against such person for the offence which he appears to have committed. … …”

13. Illuminating the scope of Section 319 Cr.PC, the Constitution

Bench of this Court in Hardeep Singh vs. State of Punjab1 laid

down that :

1

(2014) 3 SCC 92

Page | 5 “57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to herein above, adding a person as an accused, whose name has been mentioned in Column 2 of the charge­sheet or any other person who might be an accomplice.” x­x­x­x­x­

“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

Page | 6 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.”

14. This Court has very recently, in Sukhpal Singh Khaira vs. The

State of Punjab2, succinctly explained the powers bestowed on

the Court under section 319 Cr.P.C. and ruled that:

“15. At the outset, having noted the provision, it is amply clear that the power bestowed on the Court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the Court, if it appears to the Court that such evidence points to any person other than the accused who are being tried before the Court to have committed any offence and such accused has been excluded in the charge sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused.”

15. In Hardeep Singh (Supra), it has been eloquently held that the

word “evidence” in Section 319 Cr.P.C. has to be broadly

understood and thus materials which have come before the

Court in course of enquiry can be used for : ­

(i) corroboration of evidence recorded by Court after

commencement of trial;

(ii) for exercise of power under Section 319 Cr.P.C.; and

2 (2023) 1 SCC 289

Page | 7

(iii) also to add an accused whose name is shown in column

no.2 of the chargesheet.

It was further explained that statement made in examination­in

chief also constitutes “evidence” and the Court while exercising

power under Section 319 Cr.P.C. post commencement of trial,

need not wait for evidence against person proposed to be

summoned, to be tested by cross­examination.

16. In Sukhpal Singh Khaira (Supra), the Constitution Bench

refreshed the guidelines that the competent court must follow

while exercising power under Section 319 Cr.P.C. It was ruled

that :­

(i) if the competent court finds evidence or if application

under Section 319 Cr.P.C. is filed, regarding involvement of

any other person in committing the offence based on

evidence “recorded at any stage in the trial” before passing

of the order on acquittal or sentence, it shall pause the

trial at that stage and the Court shall proceed to decide the

fate of the application under Section 319 Cr.P.C.;

(ii) if the Court decides to summon an accused under Section

319 Cr.P.C., such summoning order shall be passed before

proceeding further with the trial in the main case and

depending upon the stage at which the order is passed, the

Page | 8 Trial Court shall apply its mind to the fact as to whether

such summoned accused is to be tried along with other

accused or separately; and

(iii) if the power under Section 319 Cr.P.C. is not invoked or

exercised in the main trial till its conclusion and if there is

a split­up case, such power can be invoked or exercised

only if there is evidence to that effect, pointing to the

involvement of the additional accused to be summoned in

the spilt­up (bifurcated trial).

17. It is, thus, manifested from a conjoint reading of the cited

decisions that power of summoning under Section 319 Cr.P.C. is

not to be exercised routinely and the existence of more than a

prima facie case is sine quo non to summon an additional

accused. We may hasten to add that with a view to prevent the

frequent misuse of power to summon additional accused under

Section 319 Cr.P.C., and in conformity with the binding judicial

dictums referred to above, the procedural safeguard can be that

ordinarily the summoning of a person at the very threshold of

the trial may be discouraged and the trial court must evaluate

the evidence against the persons sought to be summoned and

then adjudge whether such material is, more or less, carry the

same weightage and value as has been testified against those

Page | 9 who are already facing trial. In the absence of any credible

evidence, the power under Section 319 Cr.P.C. ought not to be

invoked.

18. Adverting to the case in hand, the allegations against the

Appellants are that they too played an active role in the

commission of the alleged offence.

19. The record reveals that after the application under section 319

Cr.P.C was dismissed by the Trial Court, Respondent No.1 was

called on 06.12.2018 for further examination­in­chief as PW­1.

His deposition distinctively unravels that at the time of marriage,

Appellant No.1 – Juhru (father­in­law) had asked Respondent

No.1 to spend a sum of Rs. 20 lacs on the marriage of Aamir and

the deceased, to which Respondent No.1 had agreed. Appellant

No.1 and his wife Akhlima (mother­in­law) were living under the

same roof as his son Aamir (husband) and he would have been

privy to all the alleged occurrences of torture, harassment or

demand for more dowry. Viewed from this angle, it appears that

the Ist appellant might have to sink or swim with his son and

wife. The High Court order, to the extent of summoning

Appellant No. 1, therefore, satisfies the ingredients of Section

319 Cr.P.C. and may not warrant any interference by this Court.

Page | 10

20. As regard to Appellant Nos. 2 and 3, i.e., Sonam (sister­in­law),

and Rijwan (brother­in­law) of the deceased, it appears to us that

despite both of them being named in the FIR and in the

examination­in­chief of Respondent No.1, there is no credible

evidence to connect them with the unnatural death of Rukseena.

There is no cogent material that Appellant No. 2, even after her

marriage with Appellant No. 3, continued to reside in her

parents’ house or that they used to inter­meddle in the day to

day marital life of the deceased and Aamir. In the absence of any

authentic evidence to bring them in close proximity of the

reported crime, it would be unjustified to call upon Appellant

Nos. 2 and 3 to face trial as additional accused in this case.

D. CONCLUSION :

21. In light of above discussion, we are of the considered view that

while summoning of Appellant No. 1 sustains, but that of

Appellant Nos. 2 and 3 will be farfetched and they cannot be

subjected to trial on the basis of mere strong suspicion. The High

Court order under challenge is accordingly set aside qua

Appellant Nos. 2 and 3.

22. Having held that Appellant No.1 has been rightly summoned and

is liable to be tried along with his son and wife, the next question

Page | 11 that requires consideration is as to the manner in which the trial

will proceed hitherto.

23. The information available on record suggests that the trial is at

the stage of defence evidence. The guidelines that the Trial Court

must follow, while commencing the trial against Appellant No.1

have been extensively iterated by the Constitution Bench in

Sukhpal Singh Khaira (Supra), in the following terms:

“41 (III). What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?

41.1 If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.

41.2 The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.

41.3 If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.

41.4 If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.

Page | 12 41.5 If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.

41.6 If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.”

24. The Trial Court shall, thus, follow the cited dictum and proceed

against Appellant No. 1 in accordance with law.

25. For the reasons aforestated but without expressing any views on

merits, we partly allow this appeal and modify the impugned

order of the High Court dated 27.01.2020 in above terms.

26. Pending applications, if any, stand disposed of.

………..………………… J.

(SURYA KANT)

…………………………...J. (J.K. MAHESHWARI) NEW DELHI DATED: 21.02.2023

Page | 13