SAEEDA KHATOON ARSHIversusSTATE OF UP & ANR

                         [2019] 14 S.C.R. 829                          829


                  SAEEDA KHATOON ARSHI                                 A
                                 v.
                      STATE OF UP & ANR
                (Criminal Appeal No. 1815 of 2019)
                      DECEMBER 10, 2019                                B
        [DR. DHANANJAYA Y CHANDRACHUD AND
                HRISHIKESH ROY, JJ.]
      Code of Criminal Procedure, 1973: s.319 – Power to
proceed against other persons appearing to be guilty of offence
                                                                       C
– Prosecution case was that appellant received phone call on
fateful night at 3 a.m. from second respondent-husband of her
daughter that the victim-deceased has hanged herself – Appellant
reached the house of her daughter and found her dead body lying
on floor – Appellant fell unconscious and when she regained
consciousness, she came to know that the second respondent and         D
his relatives bathed and buried the body of deceased – She then
saw the photos of the dead body, which showed injury marks on
the neck, hands and legs – On her application, the dead body was
exhumed and a post-mortem was conducted but the body was in
an advanced stage of decomposition and the cause of death could
not be ascertained as nine days had elapsed since the date of death    E
and the burial of the deceased – A chargesheet was filed against
a person who was friend of second respondent alleged to have
abetted the suicidal death of the appellant’s daughter and trial
commenced – On the basis of substantive evidence of the appellant
during the course of trial against the second respondent, an           F
application was moved under s.319 to summon the second
respondent to face trial as he appeared to be complicit in the crime
leading to murder of appellant’s daughter – Trial court allowed
s.319 application – Second respondent challenged the same before
High Court by filing s.482 application – High Court allowed s.482
application and set aside the summoning order – Hence the instant      G
appeal – Held: The order of trial court for summoning the second
respondent was on the basis of the evidence which emerged during
the course of 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
                                                                       H
                                829
830            SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A     Bench in Hardeep Singh – Trial court furnished reasons for relying
      on the provisions of s.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
      – The order passed by trial court did not suffer from any infirmity
B     – On the contrary, it was the High Court which interfered with the
      findings of trial court on the specious ground that the trial was
      proceeding against friend of second respondent for an offence
      under s.319 and that trial court had merely engaged in an exercise
      of exploring the possibility as to the cause of death – s.319
C     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 trial court to summon the second respondent
D     fulfilled the requirements of s.319 – The fact that a protest petition
      had not been filed by the appellant when the report was submitted
      under s.173 did not render the court powerless to exercise its
      powers under s.319 on the basis of the evidence which had
      emerged during the course of the trial – The order passed by the
E     High Court is unsustainable – Evidence Act, 1872 – s.114.
            Allowing the appeal, the Court
            HELD: 1.1 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
F     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
G     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
H     was found that only the second respondent was present in the
     SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                       831


house where the couple used to reside. She stated that besides       A
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         B
missing from the household items ruling out the possibility of a
theft. [Para 25] [846-F-H; 847-A]

       1.2 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       C
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         D
the night when the incident took place. The High Court
interfered with the findings of the Trial Court on the specious
ground that the trial was proceeding against friend of second
respondent for an offence under Section 306 and that the Trial
Court had merely engaged in an exercise of exploring the
                                                                     E
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 fact that a protest    F
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           G
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-           H
832            SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A     considered order of the Additional Sessions Judge in purported
      exercise of the jurisdiction under Section 482. [Paras 27, 28]
      [847-C-H; 848-A-B]
            Hardeep Singh v State of Punjab (2014) 3 SCC 92 :
            [2014] 2 SCR 1 – followed.
B
            Gajanan Dashrath Kharate v. State of Maharashtra
            (2016) 4 SCC 604 : [2016] 2 SCR 852 ; Pepsi Foods
            Ltd v. Special Judicial Magistrate (1998) 5 SCC
            749 : [1997] 5 Suppl. SCR 12 ; Babubhai Bhimabhai
            Bokhiria v. State of Gujarat (2014) 5 SCC 568 : [2014]
C           4 SCR 652 ; Brijendra Singh v. State of Rajasthan
            (2017) 7 SCC 706 : [2017] 3 SCR 374 ; S Mohammed
            Ispahani v. Yogendra Chandak (2017) 16 SCC 226 :
            [2017] 10 SCR 29 ; Rajesh v. State of Haryana (2019)
            6 SCC 368 – referred to.
D                            Case Law Reference
      [2014] 2 SCR 1                     followed             Para 10
      [2016] 2 SCR 852                   referred to          Para 14
      [1997] 5 Suppl. SCR 12            referred to           Para 15
E     [2014] 4 SCR 652                   referred to          Para 20
      [2017] 3 SCR 374                   referred to          Para 21
      [2017] 10 SCR 29                   referred to          Para 22
      (2019) 6 SCC 368                   referred to          Para 23
F
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1815 of 2019.
            From the Judgment and Order dated 12.04.2019 of the High
      Court of Judicature at Allahabad in Application u/s 482 Cr.P.C. No.
G     13800 of 2019.
            Andleeb Naqvi, Ansar Ahmad Chaudhary, Advs. for the
      Appellant.
            Siddhartha Dave, Brijender Chahar, Sr. Advs., Kartikeya
      Bhargava, Rohit Amit Sthalekar, Ajay Vikram Singh, Ms. Priyanka Singh,
H     Kamlesh Anand, Advs. for the Respondents.
      SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                              833


      The Judgment of the Court was delivered by                             A
      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”),           B
set aside an order dated 29 January 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          C
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                 D
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           E
      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        F
      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        G
      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           H
834            SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A           be reached. Therefore, sir it is prayed that the applicant’s report
            be lodged, and legal action be taken 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
B     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
C
      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.”
D            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
E
      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.
F
           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
G     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
H     constructing a house over it, to her daughter and the second respondent.
         SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                              835
            [DR DHANANJAYA Y CHANDRACHUD, J.]

The appellant deposed that whenever her daughter visited her maternal           A
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
                                                                                B
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            C
         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 relatives gave bath
         to the dead body and buried her at Azad Nagar grave yard on            D
         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             E
         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      F
         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           G
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.
1
    Application no (16B)                                                        H
836            SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A            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
B           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
C           her. At 3 o’clock we were preparing for sehari (morning meal
            during Ramzan) when my 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
D           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
E           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
F
            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
G           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
H     under Section 319 of the CrPC. The order relied on the following
     SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                             837
        [DR DHANANJAYA Y CHANDRACHUD, J.]

circumstances which emerged from the evidence of the appellant (PW-        A
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;                                   B
       (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     C
             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              D
           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;
                                                                           E
       (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        F
            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            G
            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
       (xi) Under the provisions of Sections 103 and 114 of the
            Evidence Act 1872 (“Evidence Act”), the events which           H
838               SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A                    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:
B
               “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
C
      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.
D            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:
E                    (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;
F                    (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
G                         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.
      2
H         (2014) 3 SCC 92
     SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                             839
        [DR DHANANJAYA Y CHANDRACHUD, J.]

      14. Mr Andleeb Naqvi, learned Counsel appearing on behalf of         A
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    B
               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    C
                Sessions Judge for issuing summons under Section 319
                constituted relevant material;
          (iv) The High Court, without displacing the observations of
               the Trial Court, erroneously interfered with the
               summoning order on an application filed under Section       D
               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    E
               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”;
                                                                           F
          (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;                 G
               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           H
840               SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A                            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
                             where the crime was committed (Gajanan
                             Dashrath Kharate v State of Maharashtra3);
B              (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
C
                (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.
D          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
E                        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
F                        after the incident, no allegation was made against the
                         second respondent;
                    (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;
G                   (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;
      3
H         (2016) 4 SCC 604
         SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                           841
            [DR DHANANJAYA Y CHANDRACHUD, J.]

              (v) Having regard to the language of Section 319, the          A
                  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   B
                   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        C
                      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    D
                   validity of the order passed by the Additional Sessions
                   Judge rested with the High Court and in view of the
                   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.         E
      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.                                                     F
      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      G
         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.
4
    (1998) 5 SCC 749                                                         H
842            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A           (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
B           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
C                     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.”
D            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
E           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
F
            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
G           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
H           real accused, at times, get away by manipulating the investigating
         SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                             843
            [DR DHANANJAYA Y CHANDRACHUD, J.]

         and/or the prosecuting agency. The desire to avoid trial is so        A
         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.”
      19. As regards the satisfaction of the court before it exercises
the power under Section 319, the Constitution Bench held:                      B
         “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     C
         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       D
         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               E
         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”           F
         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)                                                             G
      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
5
    (2014) 5 SCC 568                                                           H
844            SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A     had summoned the accused person under Section 319 on the basis of
      a written note left by the deceased, apprehending 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
B
      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-
C     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.
D            22. In Rajesh v State of Haryana 7, 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
E     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.
              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,
F
      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:
G           “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
      6
        (2017) 7 SCC 706
      7
        (2019) 6 SCC 368
H     8
        (2017) 16 SCC 226
      SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                               845
         [DR DHANANJAYA Y CHANDRACHUD, J.]

      implicating him, the Court is not powerless, and at the stage of        A
      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
                                                                              B
      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   C
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)       D
recorded that on the intervening night of 9/10 June 2017, the second
respondent, who was her son-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      E
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           F
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             G
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            H
846            SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A                    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
B                     2017, that her daughter had committed suicide, PW-1
                      together with her husband and son reached the house
                      of the second respondent and saw the dead body of
                      her daughter lying on the floor and a dupatta hanging
                      on the channel;
C                (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
D                     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
E                (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
F     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-
G
      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
      respondent was present in the house where the couple used to reside.
H     She stated that besides the injury marks on the body of the deceased,
      SAEEDA KHATOON ARSHI v. STATE OF UP & ANR                              847
         [DR DHANANJAYA Y CHANDRACHUD, J.]

the floor was found to be absolutely clear, and it appeared as if it had     A
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)            B
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       C
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      D
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.
       28. The order passed by the Additional Sessions Judge did not         E
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      F
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      G
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           H
848              SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A     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-
B
      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.
            29. We accordingly allow the appeal and set aside the impugned
      judgment and order of the High Court dated 12 April 2019. In
C     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.
D

      Devika Gujral                                              Appeal allowed.




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G




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