1    

REPORTABLE  

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

 Criminal Appeal No. 1815 of  2019  

(Arising out of Special Leave Petition (Crl.) No. 5326 of 2019)          

Saeeda Khatoon Arshi                             …Appellant                                                            Versus    State of UP & Anr            …Respondents  

J U D G M E N T              

Dr Dhananjaya Y Chandrachud, J    

1 This appeal arises from a judgment of a learned Single Judge of the High  

Court of Judicature at Allahabad dated 12 April 2019. The High Court, while   

allowing an application filed by the second respondent under Section 482 of the  

Code of Criminal Procedure 1973 (“CrPC”), set aside an order dated 29 January

2    

2019 passed by the Additional District and Sessions Judge - Fast Track Court No 1,  

Moradabad, summoning the second respondent under Section 319 of the CrPC.  

2 The appellant is the mother of Juhi Arshi who died in her matrimonial home  

during the early hours of 10 June 2017. The second respondent, who was the  

spouse of the deceased, is alleged to have been the only other occupant of the  

matrimonial home on the date of the incident. On 12 June 2017, the appellant claims  

to have moved a First Information Report (“FIR”) at the Police Station Majhola,  

District Moradabad. According to the appellant, an FIR was eventually registered  

only on 14 June 2017 upon the intervention of higher officials. The contents of the  

FIR recorded that:  

“The applicant had married my daughter Juhi about 9 years  

ago with Akram s/o Shri Kasim r/o mohalla Rahamat Nagar,  

Chappar wali Masjid PS Katra, Moradabad. About three years  

ago Akram had constructed a MIG – 169 house at Azad  

Nagar PS Majhola, Moradabad. My daughter was living with  

her husband Akram and passing her married life in this house  

for the last 3 years. On 9/10/6/2017 at 3 at night my son-in-

law informed by phone that Juhi has hanged herself. I with my  

husband and son immediately rushed to the house of our  

son-in-law at Azad Nagar where we saw the dead body of my  

daughter  lying on the floor and a cloth was hanging from the  

channel. I, my husband and my son on seeing the dead body  

of Juhi lost our senses and before we could regain our  

senses and think, meanwhile relatives gave bath to my  

daughter Juhi and buried her at Azad Nagar graveyard on  

10.06.2017 at about 1:30 in the afternoon. On becoming  

normal when I saw the photos of dead body of  my daughter  

Juhi, injury marks were clearly visible on her body at the  

neck, hands and legs. She has been murdered hence it is  

essential that investigation be done by exhuming the dead  

body of Juhi from the grave and post mortem be done so that  

the murderer could be reached. Therefore, sir it is prayed that  

the applicant’s report be lodged, and legal action be taken

3    

and dead body of Juhi be taken out from Azad Nagar  

graveyard and her postmortem be done.”  

3 On 14 June 2017, Case Crime No 654 of 2017 was registered against an  

unknown person. Based on an application submitted by the applicant to the District  

Magistrate, Moradabad the body of her daughter was exhumed on 19 June 2017,  

and after an inquest proceeding, a post-mortem was carried out. However, the  

cause of death could not be ascertained as nine days had elapsed since the date of  

the death and the burial of the deceased. The post-mortem report recorded that:  

“Body is in advanced decomposition stage, skin peeled off,  

foul smell present, eyes bulging, tongue protruded, nails and  

ears loose, face bloated, abdomen distended, brain liquefied.”     

4 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 that the body  

was in an advanced stage of decomposition. On 12 September 2017, a charge-

sheet was filed under Section 173 of the CrPC 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.  

4    

5 On 26 September 2018, charges were framed against one Manoj Shrivastav  

under Section 306 of IPC, and the appellant was summoned to give evidence in the  

course of the trial.   

6 The appellant deposed in evidence as PW-1 on 5 October 2018. During the  

course of her evidence, the appellant stated that her daughter had been married to  

the second respondent in 2007. The appellant deposed that after the marriage, the  

second respondent and his family members demanded a house and mentally and  

physically tortured her daughter. The appellant deposed that in order to save the  

marriage of her daughter from collapsing, she had given a plot at Azad Nagar after  

constructing a house over it, to her daughter and the second respondent. The  

appellant deposed that whenever her daughter visited her maternal home, she  

would mention how her spouse, father-in-law, mother-in-law and stepbrothers as  

well as his friends (among them Manoj Shrivastav) would trouble her by saying her  

parents have given a small constructed house. The appellant stated that during the  

intervening night of 9/10 June 2017, at about 3:00 am, the second respondent made  

a phone call to the son of the appellant saying that Juhi Arshi had hanged herself.  

The appellant deposed that she, her husband and son reached her daughter’s  

house at Azad Nagar. During the course of her deposition, the appellant stated as  

follows:  

“After hearing this news I, my husband and my son Shouib  

reached the house of my daughter at Azad Nagar there we  

saw that the body of my daughter was lying on the floor and a  

dupatta (cloth) was hanging from the channel. On seeing the  

dead body of our daughter we completely lost our senses and  

before we could come to terms, my son in law and his

5    

relatives gave bath to the dead body and buried her at Azad  

Nagar grave yard on 10.6.2017 in the afternoon. After the  

burial when I came to senses then I saw the photos of the  

dead body of my daughter Juhi Arshi. Injury marks on the  

body of my daughter Juhi Arshi were clearly visible on her  

neck, hands and legs. Thus I realized that my daughter has  

not committed suicide but she has been murdered. On  

12.6.2017 I gave a typed report in respect of murder to PS  

Majhola. I had signed on that report. The witness identified  

the report present in the file as paper No. 4/3. She read the  

report and verified it as the same report which she had given  

to PS Majhola. Report is marked as Ex. Ka-1. I had also  

complained to higher officials about this incident on whose  

order the dead body of my daughter’s body was exhumed  

from the grave after 9 days and post mortem was done. As  

my son in law Akram has high connections and a cunning  

person he managed to connive with the police and got his  

name out.”    

7 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 CrPC 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.   

8 On 6 December 2018, the appellant was cross-examined. In the cross-

examination, the appellant deposed thus:  

“At the time of incident my daughter Juhi had been married  

for 9 to 10 years. My daughter did not have any child.  

Because of not having a child, the in laws family used to  

trouble her, Juhi used to say that she is not responsible for it.  

Daughter’s in laws used to demand for a house. My daughter  

and son in law had come to our house on the date of incident  

in the evening and after having dinner went away at about 10  

pm. At that time also my daughter Juhi told me that her  

husband etc used to trouble her. At 3 o’clock we were  

preparing for sehari (morning meal during Ramzan) when my  

 1 Application no (16B)

6    

son in law Akram phoned that your daughter has hanged  

herself. We reached the place of incident, the house, within  

10 minutes. In the house my son in law Akram was present  

and the gate was open. Apart from Akram there was no one  

else there. The dead body of my daughter was lying on the  

floor and Akram was sitting on the sofa and pretending to be  

crying. My daughter and son in law’s room was on the first  

floor. In that house only my daughter and son in law used to  

reside. When I reached the place of incident there was no  

one else present but before we started crying and yelling rest  

of the people came later. At that time I was very perturbed  

because of which I could not see the injury marks on the body  

of my daughter. Later on I saw in the photos of my daughter’s  

injury marks on her neck, hands and legs of being tied. When  

I reached, the floor was absolutely clean. It appeared as if the  

floor had been cleaned. I tried to give breath to my daughter,  

her mouth was smelling foul. At the site a bottle was found  

which the police took in it custody. There was no suicide note,  

etc present. I returned to my home after 10 days from the  

date of incident. The report of this incident was lodged by me  

at the police station Majhola. My daughter was buried the  

same day. Akram did not have any injury on his body.  

Nothing from the household items were found missing nor  

scattered in the house which may indicate that theft, etc had  

been committed.”      

9 On 29 January 2019, the Additional District and Sessions Judge allowed the  

application and summoned the second respondent under Section 319 of the CrPC.  

The order relied on the following circumstances which emerged from the evidence of  

the appellant (PW-1) and her son, PW-2 Shouib Raja:  

(i) During the night intervening 9 and 10 June 2017 when the incident took  

place, the second respondent, who was the spouse of the deceased, was  

the only person present in the house with the deceased;

7    

(ii) On being informed on the phone, when the parents of the deceased  

reached the scene of the incident, the second respondent was alone with  

the body of the deceased;  

(iii) Since the height of the deceased was 160 centimeters, it was improbable  

that she could hang herself from a channel at a height of 240 centimeters,  

particularly when no stool was found nearby;  

(iv) Either the deceased had been hanged at the place or physical changes  

were made at the scene of the incident;  

(v) During the course of the investigation, the second respondent initially  

furnished his consent to the Investigating Officer to subject himself to a  

Narcoanalysis test but when the Investigating Officer moved an application  

before the Court, the second respondent refused to agree to the test;  

(vi) Though the deceased died an unnatural death, the second respondent did  

not inform the police and her obsequial  rites were conducted in haste;  

(vii) Though under the orders of the District Magistrate dated 19 June 2017  

and 30 June 2017, the body of the deceased was exhumed on two  

occasions, it was in an advanced stage of decomposition;  

(viii) During the examination, injury marks were seen on the body, neck and  

hands “in the attached questioned photos”;  

(ix) No ligature mark was seen and how such injury marks were borne on the  

body of the deceased could only be explained by the second respondent;  

(x) The place of the incident was found to be disturbed; and  

8    

(xi) Under the provisions of Sections 103 and 114 of the Evidence Act 1872  

("Evidence Act”), the events which transpired during the night of 9/10  

June 2017 were within the special knowledge of the second respondent.   

10 The learned Trial Judge, adverted to the judgment of this Court in Hardeep  

Singh v State of Punjab2 (“Hardeep Singh”) and held thus:  

“All these circumstances in totality have evidentiary value and  

appear to be more than required for framing charge and if not  

rebutted, the proposed accused could be found guilty of the  

offence.”   

11 The learned Trial Judge noted that while summoning an accused under  

Section 319 of CrPC, 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.   

12 The second respondent challenged the order of the learned Trial Judge dated  

29 January 2019 in an application under Section 482 of the CrPC. By a judgment  

dated 12 April 2019, the Single Judge of the High Court allowed the application and  

set aside the summoning order holding that:  

(i) The trial against Manoj Shrivastav for an offence under Section 306 of IPC  

was pending. Neither had the charge been altered nor was any evidence  

led to implicate the second respondent for an offence under Section 306;  

 2 (2014) 3 SCC 92

9    

(ii) The Trial Court had merely engaged in an exercise of exploring  

possibilities as to the cause of death, though, the specific case before it  

involved the prosecution of Manoj Shrivastav for an offence under Section  

306; and   

(iii) No ‘strong or other satisfaction’ appeared to have been recorded to  

summon the second respondent under Section 319.  

13 Aggrieved by the judgment of the High Court, the appellant moved this Court  

under Article 136 of the Constitution.   

14 Mr Andleeb Naqvi, learned Counsel appearing on behalf of the appellant,  

submitted that:  

(i) The Additional Sessions Judge applied the correct test in law based on the  

judgment of the Constitution Bench in Hardeep Singh and evaluated the  

evidence of PW-1 on the touchstone of the principles enunciated by this  

Court;  

(ii) 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;  

(iii)  Each of the circumstances adverted to by the Additional Sessions Judge  

for issuing  summons under Section 319 constituted relevant material;

10    

(iv) The High Court, without displacing the observations of the Trial Court,  

erroneously interfered with the summoning order on an application filed  

under Section 482 of the CrPC;  

(v) The order passed by the Additional Sessions Judge was revisable under  

Section 397 and hence a petition under Section 482 should not have been  

entertained;  

(vi) Under Section 319, it is not necessary that the proposed accused must be  

summoned only for the offence with which the other accused is charged;   

the provision is to the effect that “the Court may proceed against such  

person for the offence which he appears to have committed”;  

(vii) The substantive evidence  of PW-1 and PW-2 indicates that:  

a) The second respondent who was the spouse of the deceased was  

the only person present in the house when Juhi Arshi died an  

unnatural death;  

b) No efforts were made by the second respondent to inform the  

police of the unnatural death either on the date of the incident or  

thereafter; and  

c) The second respondent acted in haste in getting the body of the  

deceased buried. Consequently, the burden of proof under  

Section 106 of the Evidence Act to furnish an explanation falls on  

the second respondent who was the sole inmate of the house

11    

where the crime was committed (Gajanan Dashrath Kharate v  

State of Maharashtra3);  

(viii) Initially, the police were reluctant to register the FIR. The FIR which was  

moved on 12 June 2017 was eventually registered on 14 June 2017.  

During the course of the investigation, PW-2, who is the brother of the  

deceased, handed over prints of the photographs of the deceased which  

showed marks of injury on her body; and  

(ix) In the above circumstances, when cogent reasons were furnished by the  

Additional Sessions Judge for summoning the second respondent under  

Section 319, the High Court has manifestly erred in setting aside the order  

in the exercise of its jurisdiction under Section 482.   

15 On the other hand, Mr Siddhartha Dave, learned Senior Counsel who  

appeared on behalf of the second respondent submitted:  

(i) It is important to bear in mind the stage of the proceedings. 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;  

(ii) In the FIR which was lodged by the appellant four days after the incident,  

no allegation was made against the second respondent;  

 3 (2016) 4 SCC 604

12    

(iii) No incriminating observations are contained in the post-mortem report  

dated 19 June 2017 since the body was found in an advanced stage of  

decomposition;  

(iv) A charge-sheet was filed under Section 173 of the CrPC upon which  

cognizance was taken. No protest petition was filed by the appellant after  

the police, upon investigation, did not find any material to prosecute the  

second respondent;  

(v) Having regard to the language of Section 319, the second respondent  

upon being summoned has to be tried for the same offence as the co-

accused who is alleged to have abetted the suicide of the deceased under  

Section 306;   

(vi) In order to sustain the exercise of power under Section 319, there must  

exist strong and cogent evidence before the court. In the present case:   

a) No protest petition was filed by the appellant when the charge-

sheet was filed; and  

b) The cross-examination of PW-1 has revealed that material aspects                                                           

of the deposition had not been mentioned in the earlier statement  

under Section 161;  

(vii) Whether it be by way of a revision under Section 397 or a petition under  

Section 482, the power to test the validity of the order passed by the  

Additional Sessions Judge rested with the High Court and in view of the

13    

decision of this Court in Pepsi Foods Ltd v Special Judicial Magistrate4,   

the High Court was not in error in exercising its jurisdiction under Section  

482.   

16 Having heard the counsel appearing on behalf of the parties, this Court has   

to decide whether the Trial Court was correct in exercising its powers under Section  

319 and summoning the second respondent based on the evidence adduced by  

PW-1 and PW-2 during the course of the trial.  

17 In assessing the rival submissions, it is relevant to refer to Section 319 of  

CrPC:  

“319. Power to proceed against other persons appearing to  

be guilty of offence.- (1) 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.  

(2) Where such person is not attending the Court, he may be  

arrested or summoned, as the circumstances of the case may  

require, for the purpose aforesaid.  

(3) Any person attending the Court although not under arrest  

or upon a summons, may be detained by such Court for the  

purpose of the inquiry into, or trial of, the offence which he  

appears to have committed.  

(4) Where the Court  proceeds against any person under sub-

section (1), then -  

(a) the proceedings in respect of such person shall be  

commenced afresh, the witness re-heard;  

(b) subject to the provisions of clause (a), the case may  

proceed as if such person had been an accused person when  

the Court took cognizance of the offence upon which the  

inquiry or trial was commenced.”  

 4 (1998) 5 SCC 749

14    

18 The decision of the Constitution Bench of this Court in Hardeep Singh lays  

down the principles governing the exercise of the jurisdiction under Section 319.  

Observing that “it is the duty of the court to do justice by punishing the real culprit”,  

the court observed:  

“13…Where the investigating agency for any reason does not  

array one of the real culprits as an accused, the court is not  

powerless in calling the said accused to face trial.”  

Expounding upon this duty, the Constitution Bench held:  

“18. The legislature cannot be presumed to have imagined all  

the circumstances and, therefore, it is the duty of the court to  

give full effect to the words used by the legislature so as to  

encompass any situation which the court may have to tackle  

while proceeding to try an offence and not allow a person who  

deserves to be tried to go scot-free by being not arraigned in  

the trial in spite of the possibility of his complicity which can  

be gathered from the documents presented by the  

prosecution.  

19. The court is the sole repository of justice and a duty is  

cast upon it to uphold the rule of law and, therefore, it will be  

inappropriate to deny the existence of such powers with the  

courts in our criminal justice system where it is not  

uncommon that the real accused, at times, get away by  

manipulating the investigating and/or the prosecuting agency.  

The desire to avoid trial is so strong that an accused makes  

efforts at times to get himself absolved even at the stage of  

investigation or inquiry even though he may be connected  

with the commission of the offence.”  

15    

19 As regards the satisfaction of the court before it exercises the power under  

Section 319, the Constitution Bench held:  

“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 cross-examination, 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 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.” (Emphasis supplied)  

20 Subsequent decisions of this Court have applied the principles which were  

enunciated in Hardeep Singh in varying fact situations. In Babubhai Bhimabhai  

Bokhiria v State of Gujarat5, the Trial Court had summoned the accused person  

under Section 319 on the basis of a written note left by the deceased, apprehending   

 5 (2014) 5 SCC 568

16    

death at the hands of the accused person. The High Court affirmed the order of the  

Trial Court. A two-judge Bench of this Court while setting aside the order of the High  

Court held that the note written by the deceased was inadmissible in evidence and  

could not be considered to allow the exercise of powers under Section 319.  

21 In Brijendra Singh v State of Rajasthan6, persons named in the FIR but not  

in the charge sheet, were summoned before the Trial Court based on statements  

made by the complainant under Section 161 of CrPC. The High Court upheld the  

order of the Trial Court. A two-judge Bench of this Court  while setting aside the High  

Court’s order held that the police investigation revealed that the accused persons  

were found to be far away from the crime scene and the statements recorded under  

Section 161 of CrPC did not constitute sufficient evidence for the Trial Court to  

exercise its power under Section 319.   

22 In Rajesh v State of Haryana7, the Trial Court had summoned four persons  

under Section 319 based on the depositions of the complainant and an eyewitness,  

regarding their specific role in murdering two persons. The High Court dismissed the  

revision petition filed by the accused persons. A two-judge Bench of this Court  

upheld the High Court’s order and held that the depositions of the complainant and  

the eyewitness before the Trial Court were “evidence” on the basis of which, the  

accused persons could be summoned to face trial.  

 6 (2017) 7 SCC 706    7 (2019) 6 SCC 368

17    

23 In S Mohammed Ispahani v Yogendra Chandak8, the Trial Court dismissed  

an application under Section 319 for summoning persons who were named in the  

FIR but not in the charge-sheet. The High Court, based on a statement recorded by  

the police under Section 161, set aside the Trial Court’s order and summoned the  

accused persons for trial. A two-judge Bench of this Court, while setting aside the  

decision of the High Court, discussed the powers of the court under Section 319:  

“35. It needs to be highlighted that when a person is named in  

the FIR by the complainant, but police, after investigation,  

finds no role of that particular person and files the charge-

sheet without implicating him, the Court is not powerless, and  

at the stage of summoning, if the trial court finds that a  

particular person should be summoned as accused, even  

though not named in the charge-sheet, it can do so. At that  

stage, chance is given to the complainant also to file a protest  

petition urging upon the trial court to summon other persons  

as well who were named in the FIR but not implicated in the  

charge-sheet. Once that stage has gone, the Court is still not  

powerless by virtue of Section 319 CrPC. However, this  

section gets triggered when during the trial some evidence  

surfaces against the proposed accused.”  

In Rajesh v State of Haryana (supra), this Court held that the court, while  

exercising its jurisdiction under Section 319, is not rendered powerless even in a  

case where the stage of furnishing an opportunity to the complainant to file a protest  

petition urging the Trial Court to summon other persons as well as those who are  

named in the FIR but not impleaded in the charge-sheet, has gone.   

24 In the present case, the FIR lodged by the appellant (PW-1) recorded that on  

the intervening night of 9/10 June 2017, the second respondent, who was her son-

 8 (2017) 16 SCC 226

18    

in-law, informed her on the telephone that Juhi Arshi had hanged herself. The  

appellant stated that on reaching the house, when she saw the body of her  

deceased daughter on the floor, she lost consciousness. She stated that the second  

respondent and his relatives bathed the dead body and buried the deceased on 10  

June 2017 between 1-3 pm. She stated that after she regained consciousness, she  

saw the photos of the dead body, which showed that injury marks were visible on  

the neck, hands and legs. The appellant alleged that her daughter had been  

murdered. The appellant wanted an investigation to be carried out after exhuming  

the dead body and a post-mortem to be conducted so that the murderer “could be  

reached”. The dead body was exhumed and a post-mortem was conducted on 19  

June 2017, but the body was in an advanced stage of decomposition. The charge-

sheet was submitted by the Investigating Officer implicating Manoj Shrivastav for an  

offence under Section 306 of the IPC. The evidence of PW-1 was recorded in the  

course of the trial on 5 October 2018. PW-1 deposed that:  

(i) Her daughter has been harassed by the second respondent, his father,  

mother, brothers and others for bringing insufficient dowry. In order to save  

the marriage of her daughter, she had given a plot with a house  

constructed thereon in Azad Nagar to her daughter and son-in-law;    

(ii) On receiving the intimation from the second respondent at 3:00 am on the  

intervening night between 9/10 June 2017, that her daughter had  

committed suicide, PW-1 together with her husband and son reached the

19    

house of the second respondent and saw the dead body of her daughter  

lying on the floor and a dupatta hanging on the channel;  

(iii) The body was buried by the second respondent and his relatives in the  

afternoon on 10 June 2017;  

(iv) The photographs of the dead body show that the body had visible injury  

marks on the neck, hands and legs which led her to the conclusion that  

her daughter had not committed suicide but was murdered;  

(v) She had furnished a report of the murder on 12 June 2017 to P S Majhola  

and had also complained to the higher officials on whose order the body  

was exhumed from the grave; and  

(vi) The second respondent had managed to connive with the police and get  

his name excluded from the charge-sheet.   

25 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. PW-1 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

20    

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.   

26 PW-2 (the son of PW-1 and the brother of the deceased) deposed in evidence  

on 4 June 2019 when he stated that on 12 July 2017, the police had taken into  

custody three mobiles and four SIM cards besides nine photographs which were  

taken by the witness from his cell phone.  

27 The order of the Additional Sessions Judge dated 29 January 2019 for  

summoning the second respondent was on the basis of the evidence which  

emerged during the course of the 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. 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.  

21    

28 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. The  

exercise of the discretion by the Additional Sessions Judge to summon the second  

respondent fulfilled the requirements of Section 319 and was consistent with the  

parameters laid down in the decisions of this Court noted earlier. 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.  The order passed by the High Court is unsustainable and would accordingly  

have to be set aside.  

22    

29 We accordingly allow the appeal and set aside the impugned judgment and  

order of the High Court dated 12 April 2019. In consequence, 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 CrPC is upheld.      

30 Pending application(s), if any, shall stands disposed of.     

.……......................................................J                      [Dr Dhananjaya Y Chandrachud]          

.……......................................................J  

                   [Hrishikesh Roy]  

New Delhi;  December 10, 2019.