Saturday, 26 January 2019

What principles are to be followed by court for summoning accused as per S 319 of CRPC?

 Section 319 (1) of the Cr.P.C. empowers the Court to proceed
against other persons who “appear” to be guilty of an offence,
though not accused before the Court. A Constitution Bench of
this Court in the case of Hardeep Singh v. The State of Punjab
[(2014) 3 SCC 92] has ruled that the word “appear” means “clear
to the comprehension”, or a phrase near to, if not synonymous
with “proved”, and imparts a lesser degree of probability than

proof. Though only a prima facie case is to be established from
the evidence led before the Court, it requires much stronger
evidence than a mere probability of the complicity of the persons
against whom the deponent has deposed. The test that has to be
applied is of a degree of satisfaction which is more than that of a
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, may lead to conviction of the proposed accused. In
the absence of such satisfaction, the Court should refrain from
exercising the power under Section 319 of the Cr.P.C.

NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.134 OF 2019

Dev Wati Vs The State of Haryana.

MOHAN M. SHANTANAGOUDAR, J.
Dated:JANUARY 24, 2019.

Leave granted.
2. This appeal is directed against the judgment dated 16.10.2014
passed by the High Court of Punjab and Haryana at Chandigarh
in Criminal Revision No. 3135/10 (O&M) upholding the judgment
dated 09.11.2010 passed by the Sessions Court, Faridabad in
Sessions Case No. 54/2010.

3. By the impugned judgment, the application under Section 319
of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) filed by
the complainant was allowed and consequently the appellants
herein were summoned by the Sessions Court to face trial in
Sessions Case No. 54/2010.
4. The brief facts arising out of this appeal are that a missing
complaint came to be lodged by the brother of the deceased
(PW9,
Harkesh). After two days of such complaint, the dead
body of the deceased Suraj was found. Accused Rajpal @ Rajua,
Prem Pal and Devender @ Deven were put to trial for the
commission of the offence under Section 302 read with Section
34 of the Indian Penal Code (for short ‘the IPC’), apart from other
offences. When the evidence was being recorded, PW9,
Harkesh
deposed before the Sessions Court implicating the appellants
herein, i.e. Appellant No.1, Smt. Dev Wati, the wife of the
deceased, Appellant Nos. 2 and 3, Surinder Singh and Badan,
her brothers, Appellant No. 4, Smt. Amarwati, her sister and
Appellant Nos. 5 and 6, Raju and Kalu, two sons of her sisters.
Thereafter, an application came to be filed by the complainant
under Section 319 of the Cr.P.C. before the Sessions Court,
which came to be allowed on the ground that on the insistence of
2
Raju and Kalu, the deceased had gone along with them on their
motorcycle on being told that the appellants herein and one Omi
(being the wife of the deceased and her relatives) had called him
for a compromise in the matrimonial litigation pending between
the deceased and his wife. It is relevant to note here that the
deceased had allegedly been threatened by his wife and some of
her relatives with respect to the ongoing matrimonial dispute.
Maintenance proceedings under Section 125 of the Cr.P.C. as
well as a complaint for the offences punishable under Sections
498A
and 506 of the IPC were also pending against the
deceased. The said proceedings were initiated by the wife of the
deceased. In addition to the same, two other criminal cases were
also lodged for the offences punishable under Sections 323, 324
and 504 of the IPC. Be that as it may, in short it can be said that
there was a serious dispute between the deceased and his wife in
which the wife’s relatives were supporting her.
5. We have perused the deposition of PW9,
Harkesh to satisfy
our conscience, as the Courts have issued summons to the
appellants based on his deposition. The deposition of PW9
clearly mentions that Appellant Nos. 5 and 6, Raju and Kalu had
come to the residence of the deceased wherein the complainant
3
was also present, and had taken the deceased along with them
on their motorcycle claiming that Appellant Nos. 1 to 4 and one
Omi (to recall, the wife of the deceased and some of her relatives),
had called him for a compromise in the ongoing matrimonial
dispute.
6. The version in the FIR (P7)
lodged by Harkesh is practically
the same. On registration of the FIR, though the police had
arrested three persons, namely, Rajpal @ Rajua, Prem Pal and
Devender @ Deven, the investigation report did not contain the
names of the appellants herein as accused. It is also to be noted
that the postmortem
report reveals that it is a case of homicidal
death inasmuch as the cause of death was shock and
haemorrhage due to injuries to vital organs, including the brain
and lungs.
7. Section 319 (1) of the Cr.P.C. empowers the Court to proceed
against other persons who “appear” to be guilty of an offence,
though not accused before the Court. A Constitution Bench of
this Court in the case of Hardeep Singh v. The State of Punjab
[(2014) 3 SCC 92] has ruled that the word “appear” means “clear
to the comprehension”, or a phrase near to, if not synonymous
with “proved”, and imparts a lesser degree of probability than

proof. Though only a prima facie case is to be established from
the evidence led before the Court, it requires much stronger
evidence than a mere probability of the complicity of the persons
against whom the deponent has deposed. The test that has to be
applied is of a degree of satisfaction which is more than that of a
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, may lead to conviction of the proposed accused. In
the absence of such satisfaction, the Court should refrain from
exercising the power under Section 319 of the Cr.P.C. In our
considered opinion, the impugned judgment has been passed by
the High Court keeping the aforementioned principle in mind,
though the said judgment has not been cited before the High
Court.
8. On considering the deposition of PW9,
we do not find any
valid ground to take a different view from that of the High Court
and the Sessions Court. Additionally, though the advocate for
the appellants raised certain issues on facts, the same cannot be
considered at this stage, inasmuch as such factors will have to be
considered by the Sessions Court while deciding the matter
before it on merits.

9. In view of the above, we decline to interfere with the impugned
judgment. Accordingly, the appeal stands dismissed.
...............................................J.
[L. NAGESWARA RAO]
...............................................J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
JANUARY 24, 2019.

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