REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 395 OF 2019 (Arising out of SLP(Crl.) No. 4626 of 2017)

SUNIL KUMAR GUPTA AND OTHERS                ...Appellants

VERSUS

STATE OF UTTAR PRADESH  AND OTHERS            ...Respondents   

WITH

CRIMINAL APPEAL NO. 396 OF 2019 (Arising out of SLP (Crl.) No. 4560 of 2017)

KHUSBU GUPTA      ...Appellant

VERSUS

STATE OF UTTAR PRADESH  AND OTHERS                 ...Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. These  appeals  arise  out  of  the  order  dated  25.04.2017

passed by the High Court of Judicature at Allahabad in Criminal

Revision No. 1354 of 2017 in and by which the High Court has

affirmed the  order  of  the  trial  court  summoning the  appellants

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under  Section  319  Cr.P.C.  for  the  offence  punishable  under

Section 302 IPC.

3. Marriage  of  deceased  Shilpa,  daughter  of  Sudhir  Kumar

Gupta (PW-1) was solemnized with Dimpal  @ Akash Deep on

26.01.2006.  Out  of  the  wedlock,  two  children  were  born.

According to the complainant - Sudhir Kumar Gupta (PW-1), his

daughter Shilpa was complaining about the demand of dowry by

her  husband  Dimpal  @  Akash  Deep  and  the  appellants-her

in-laws.  Complainant-PW-1  alleged  that  on  19.08.2012,  his

daughter  Shilpa  was  set  ablaze  and  she  told  him  in  full

consciousness  that  Chanchal  @  Babita,  Sachin,  Sunil  Kumar

Gupta  (Elder  uncle  of  Dimpal),  Pushpa  (wife  of  Sunil  Kumar

Gupta), Vicky (Son of Sunil Kumar Gupta), Neeru, Shrikant Gupta

(Brother  of  Sunil  Kumar  Gupta),  Bhagwan and  Khusbu  Gupta

have poured kerosene on her and burnt her. Dying declaration of

Shilpa was recorded by the Tehsildar on 19.08.2012 at 09.40 PM

in which she stated that Chanchal @ Babita poured kerosene and

set her on fire. Deceased Shilpa succumbed to injuries on the

same day at night i.e. 19.08.2012. On the complaint lodged by

Sudhir  Kumar  Gupta  (PW-1),  FIR was registered  against  nine

accused including the  appellants  under Sections 304-B,  498A,

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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.  

4. In  the  trial,  Sudhir  Kumar  Gupta  (PW-1),  Mohit  Agarwal

(PW-2),  and  Munish  Gupta  (PW-3)  were  examined  on

30.10.2014, 06.11.2015 and 08.11.2015 respectively. About one

year  thereafter  during  the  course  of  trial  on  04.10.2016,  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

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observing  that  there  are  specific  allegations  against  the

revisionists and therefore, there is no illegality or impropriety in

the order of the trial court. Being aggrieved, the appellants are

before us.

5. Mr.  Basava  Prabhu  S.  Patil,  learned  senior  counsel

appearing on behalf of the appellants has submitted that though

the  names  of  the  appellants  were  mentioned  in  the  FIR,

subsequently  they  have  been  exonerated  by  the  Investigating

Officer when the charge sheet was filed and this aspect was not

considered  by  the  High  Court.  Placing  reliance  upon  the

Constitution  Bench  judgment  in  Hardeep  Singh  v.  State  of

Punjab and Others (2014) 3 SCC 92,  it was submitted that the

power under Section 319 Cr.P.C. is to be exercised sparingly and

only in those cases where circumstances of the case so warrant,

the accused could be summoned under Section 319 Cr.P.C.  It

was submitted that in the present case, there are no strong and

cogent evidence for the trial court to exercise its jurisdiction under

Section  319  Cr.P.C  to  summon  the  appellants  for  trial  under

Section  302  IPC.  It  was  contended  that  when  the  dying

declaration  of  deceased  Shilpa  contains  only  the  name  of

Chanchal @ Babita, the trial court and the High Court ought not

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to  have  ordered  summoning  of  the  appellants  for  the  offence

punishable under Section 302 IPC.

6. Per contra, Ms. Ruchi Kohli, learned counsel appearing on

behalf  of  the  respondent-State  submitted  that  based  on  the

evidence of  PW-1 and PW-3, the trial  court  satisfied itself  that

there  are  prima  facie evidence  available  on  record  indicating

involvement of the appellants in the offence and the High Court

rightly  declined  to  interfere  with  the  order  of  the  trial  court

summoning the accused.

7. We have carefully considered the submissions and perused

the impugned order and other materials on record.

8. On  19.08.2012,  immediately  after  the  occurrence  at

09.40  PM  in  her  dying  declaration  recorded  by  the  Tehsilar,

deceased  Shilpa  had  stated  “that  she  had  a  quarrel  with  her

sister-in-law (Dewrani) Chanchal @ Babita…..and that Chanchal

@ Babita poured kerosene and set her on fire”. In the complaint

lodged by PW-1 on the next day i.e. 20.08.2012, he has referred

to the names of the appellants.  Though the charge sheet was

filed under Section 302 IPC only against Chanchal @ Babita, the

complainant has not filed any protest petition at that stage.  In his

evidence, PW-1 has referred to the names of the appellants that

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his daughter Shilpa in consciousness told him the names of all

the appellants  including Chanchal  @ Babita  and that  they are

responsible for pouring kerosene and set her on fire.  

9. 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.  In Hardeep  Singh, the

Constitution Bench held as under:-

“105. Power under Section 319 Cr.P.C 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

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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.” [underlining added]

10. Observing that for exercising jurisdiction and its discretion

in terms of Section 319 Cr.P.C., the courts are required to apply

stringent  tests,  in  Sarabjit  Singh  and  Another  vs.  State  of

Punjab and Another (2009) 16 SCC 46, it was held as under:-

“21. An order under Section 319 of the Code, therefore, should

not  be passed only  because the first  informant  or  one of  the

witnesses seeks to implicate  other  persons(s).   Sufficient  and

cogent reasons are required to be assigned by the court so as to

satisfy the ingredients of the provisions.  Mere  ipse dixit would

not serve the purpose.  Such an evidence must be convincing

one  at  least  for  the  purpose  of  exercise  of  the  extraordinary

jurisdiction.  For  the  aforementioned  purpose,  the  courts  are

required to apply stringent tests; one of the tests being whether

evidence  on  record  is  such  which  would  reasonably  lead  to

conviction of the person sought to be summoned.

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22. …….  Whereas the test of prima facie case may be sufficient

for taking cognizance of an offence at the stage of framing of

charge,  the court  must  be satisfied  that  there exists  a  strong

suspicion.  While framing charge in terms of Section 227 of the

Code, the court must consider the entire materials on record to

form an opinion that the evidence if unrebutted would lead to a

judgment of conviction.

23.  Whether  a  higher  standard  be  set  up  for  the  purpose  of

invoking the jurisdiction under Section 319 of the Code is the

question.  The answer to these questions should be rendered in

the  affirmative.  Unless  a  higher  standard  for  the  purpose  of

forming  an  opinion  to  summon  a  person  as  an  additional

accused  is  laid  down,  the  ingredients  thereof  viz.  (i)  an

extraordinary  case,  and  (ii)  a  case  for  sparingly  (sic  sparing)

exercise of jurisdiction, would not be satisfied.” [underlining added]

11. Applying the above principles to the case in hand, in our

considered view, 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. As pointed out earlier,

in the dying declaration, deceased Shilpa has only mentioned the

name of  Chanchal  @ Babita;  but  she has  not  mentioned the

names of others. In his complaint lodged before the police on the

next day i.e. 20.08.2012, Sudhir Kumar Gupta-PW-1 has stated

that his daughter Shilpa told him that Chanchal @ Babita and all

other people set her on fire after pouring kerosene.  PW-1 has

neither  stated  the  names  of  the  appellants  nor  attributed  any

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overt act.  Likewise, in their evidence before the court, PWs 1

and 3 have only stated that Shilpa told them that Chanchal @

Babita and all others have set fire on deceased Shilpa. 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.  

12. 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 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

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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. Charge sheet

was filed for the offence punishable only under Section 302 IPC

against Chanchal @ Babita. 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 present

case.  The trial court and the High Court, in our considered view,

has  not  examined  the  matter  in  the  light  of  the  well-settled

principles and the impugned order is liable to be set aside.  

13. In the result, the impugned order of the High Court is set

aside and these appeals are allowed.  The Sessions Judge/Fast

Track  No.1,  Moradabad  shall  proceed  with  Session  Trial

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No.35/2013 in accordance with law. We make it  clear that  we

have not expressed any opinion on the merits of the matter.

……………………….J.   [R. BANUMATHI]

……………………………...J. [R. SUBHASH REDDY]

New Delhi; February 27, 2019

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