SUNIL KUMAR GUPTA AND OTHERSversusSTATE OF UTTAR PRADESH AND OTHERS

                         [2019] 4 S.C.R. 875                          875


             SUNIL KUMAR GUPTA AND OTHERS                             A
                                v.
          STATE OF UTTAR PRADESH AND OTHERS
                 (Criminal Appeal No. 395 of 2019)
                      FEBRUARY 27, 2019                               B
     [R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
       Code of Criminal Procedure, 1973: s.319 – Summoning of
appellants for offence under s.302 IPC – Allegation of dowry death
of victim-deceased – Prosecution case was that the dying
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declaration of the victim-deceased was that she was set on fire on
account of demand of dowry by her husband and in-laws – During
course of trial, application under s.319 was filed by prosecution
seeking to summon the appellants/accused for offence punishable
under s.302 stating that their names were mentioned in the FIR and
also in the statement of PW-1 and PW-3 – Trial Court held that        D
prima facie evidence was available against the appellants and
allowed the application – High Court dismissed the revision
petition against the order of Trial Court – On appeal, held: No
prima facie case was made out for summoning the appellants and
to proceed against them for the offence punishable under s.302
                                                                      E
IPC – In the dying declaration, deceased had only mentioned the
name of her sister-in-law and she had not mentioned the names of
others – Even the charge sheet for the offence punishable under
s.302 IPC was filed only against her sister-in-law – For summoning
an accused under s.319, it requires much stronger evidence than
mere probability of his complicity which is lacking in the instant    F
case – In his complaint lodged before the police on the next day of
incident, PW-1, the father of deceased neither stated the names of
the appellants nor attributed any overt act – Likewise, in their
evidence before the court, PWs 1 and 3 only stated that the
deceased told them that her sister-in-law and all others have set
                                                                      G
fire on her – Neither the complaint nor the evidence of witnesses
indicated as to the role played by the appellants in the commission
of the offence and which accused committed what offence – The
averments in the complaint and the evidence regarding the demand
of dowry was vague and no specific demand was attributed to any
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                               875
876           SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     of the appellants – In such circumstances, there was no
      justification for summoning the appellants for offence under s.498A
      IPC, ss.3 and 4 of Dowry Prohibition Act and under s.302 IPC –
      The impugned order is liable to be set aside – Penal Code, 1860 –
      ss. 498A and 302 – Dowry Prohibition Act – ss.3 and 4.
B           Code of Criminal Procedure, 1973: s.319 – Power of court
      under s.319, scope – Held: s.319(1) 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
      – Power under s.319 is a discretionary and an extraordinary power
C     and is to be exercised sparingly and only in those cases where the
      circumstances of the case so warrant and that 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.
D           Allowing the appeals, the Court
            HELD: 1.1 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
E     sought to be added as the accused in the case. [Para 9]
      [881-B-C]
            1.2 It was held in Hardeep Singh that power under Section
      319 Cr.P.C is a discretionary and an extraordinary power and is
      to be exercised sparingly and only in those cases where the
F     circumstances of the case so warrant and that 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. When this principle is applied to
      the case in hand, no prima facie case was made out for summoning
G     the appellants and for proceeding against the appellants for the
      offence punishable under Section 302 IPC. In the dying
      declaration, deceased had only mentioned the name of her sister-
      in-law; but she did not mention the names of others. In his
      complaint lodged before the police on the next day, PW-1 had
      stated that his daughter told him that her sister-in-law and all
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  SUNIL KUMAR GUPTA AND OTHERS v. STATE OF UTTAR                         877
              PRADESH AND OTHERS

other people set her on fire after pouring kerosene. PW-1 neither        A
stated the names of the appellants nor attributed any overt act.
Likewise, in their evidence before the court, PWs 1 and 3 only
stated that the deceased told them that her sister-in-law and all
others have set fire on deceased. Neither the complaint nor the
evidence of witnesses indicates as to the role played by the
                                                                         B
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. [Para 9, 11] [881-B-E; 882-G-H; 883-A-C]
      Hardeep Singh v. State of Punjab and Others (2014) 3               C
      SCC 92 : [2014] 2 SCR 1; Sarabjit Singh and Another
      v. State of Punjab and Another (2009) 16 SCC 46 :
      [2009] 8 SCR 762 – referred to.
       2.1 Under Section 319 Cr.P.C., a person can be added as
an accused invoking the provisions not only for the same offence         D
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              E
PW-1 both in the complaint and in his evidence before the court
is very general stating that he had given sufficient dowry to the
deceased 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 harassment, there are no particulars given as to the time          F
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.            G
[Para 12] [883-C-F]
      2.2 Upon completion of investigation, the Investigating
Officer felt that no offence under Sections 498A, 304-B IPC and

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878            SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A     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 the deceased’s sister-in-law. 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
B
      is lacking in the instant case. The trial court and the High Court
      did not examine the matter in the light of the well-settled
      principles and the impugned order is liable to be set aside.
      [Para 12] [883-F-H; 884-A]
                               Case Law Reference
C
            [2014] 2 SCR 1               referred to            Para 5
            [2009] 8 SCR 762             referred to            Para 10


D          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No.395 of 2019.
            From the Judgment and Order dated 25.04.2017 of the High Court
      of Judicature at Allahabad in Criminal Revision No.1354 of 2017
                                       With
E           Criminal Appeal No 396 of 2019.
           Basava Prabhu S. Patil, Sr. Adv., R. Chandrachud, A. Ramesh,
      Syed Ahmad Naqvi, Ms. Aruna Gupta, Priyanshu Maheshwari,
      B. Ramana Murthy, Advs. for the Appellants.
F           Ms. Ruchi Kohli, Ajay Vikram Singh, Purnendu Bajpai,
      Ms. Priyanka Singh, Ms. Kamlesh Aanand, Ms. Nidhi Jaswal,
      Ms. Srishti Mishra, Prithvi Pal, Rohit Singh, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            R. BANUMATHI, J. 1. Leave granted.
G
             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 under Section 319 Cr.P.C. for
      the offence punishable under Section 302 IPC.
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  SUNIL KUMAR GUPTA AND OTHERS v. STATE OF UTTAR                                  879
       PRADESH AND OTHERS [R. BANUMATHI, J.]

       3. Marriage of deceased Shilpa, daughter of Sudhir Kumar Gupta             A
(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,
                                                                                  B
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              C
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, 302 IPC and under Sections 3
                                                                                  D
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.                                         E
       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             F
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      G
appellants, the High Court by the impugned order dismissed the revision
petition observing that there are specific allegations against the revisionists


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880             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A     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
B     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
C     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
D     of Chanchal @ Babita, the trial court and the High Court ought not 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
E     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
F     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
G     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 his
      daughter Shilpa in consciousness told him the names of all the appellants
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  SUNIL KUMAR GUPTA AND OTHERS v. STATE OF UTTAR                               881
       PRADESH AND OTHERS [R. BANUMATHI, J.]

including Chanchal @ Babita and that they are responsible for pouring          A
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   B
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:-
                                                                               C
      “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                 D
      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      E
      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        F
      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            G
      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]

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882            SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A            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
B           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.
C           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.
            22. ……. Whereas the test of prima facie case may be sufficient
D           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
E           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
F           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
G     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

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  SUNIL KUMAR GUPTA AND OTHERS v. STATE OF UTTAR                               883
       PRADESH AND OTHERS [R. BANUMATHI, J.]

before the police on the next day i.e. 20.08.2012, Sudhir Kumar Gupta-         A
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 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
                                                                               B
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.                                      C
       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               D
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 harassment, there           E
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                F
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                 G
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

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884              SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A     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 No.35/2013 in accordance
B     with law. We make it clear that we have not expressed any opinion on
      the merits of the matter.


      Devika Gujral                                               Appeals allowed.


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