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Sunil Kumar Gupta and Ors. Vs. State of Uttar Pradesh and Ors. - (Supreme Court) (27 Feb 2019)

For summoning an Accused under Section 319 of Cr. PC, it requires much stronger evidence than mere probability of his complicity



Present appeals arise out of the order passed by the High Court by which the High Court has affirmed the order of the trial court summoning the Appellants under Section 319 of Code of Criminal Procedure, 1973 (CrPC) for the offence punishable under Section 302 Indian Penal Code, 1860 (IPC). The Appellants submits 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.

Section 319(1) of Cr. PC 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 of Cr. PC, 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.

No prima facie case is made out for summoning the Appellants and to proceed against the Appellants for the offence punishable under Section 302 of IPC. PW-1 has neither stated the names of the Appellants nor attributed any overt act. 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 of IPC.

Under Section 319 of Cr. PC, 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. 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 of IPC and under Sections 3 and 4 of Dowry Prohibition Act, 1961.

Upon completion of investigation, the Investigating Officer felt that, no offence under Sections 498A, 304-B of IPC and under Sections 3 and 4 of the Dowry Prohibition Act, is made out. As held in the Constitution Bench judgment in Hardeep Singh, for summoning an Accused under Section 319 of Cr. PC, 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, has not examined the matter in the light of the well-settled principles. The impugned order of the High Court is set aside and appeals are allowed.

Relevant : Hardeep Singh v. State of Punjab and Ors. MANU/SC/0025/2014


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