Court to summon a person who is not named in the FIR under Section 319 of Cr.P.C. : Allahabad High Court

Court No. 90 Case : CRIMINAL REVISION No. 7421 Revisionist : Smt.Aarti Opposite Party : State of U.P. and Another Counsel for Revisionist : A.K. Mishra Sati Shanker Tripathi Counsel for Opposite Party : G.A Hon ble Dinesh Pathak J Heard learned counsel for the revisionist learned A.G.A. for the State and Sri Sandeep Kumar learned counsel for the opposite party no. 2. The instant revision has been preferred to set aside the impugned order dated 18.02.2021 passed by the Addl. Sessions Judge FTC 1 Mathura in Sessions Trial No. 1219arising out of Case Crime No. 1587 of 2018 under Section 498A 304B I.P.C. Police Station Highway District Mathura whereby the application filed by the opposite party no. 2 under Section 319 Cr.P.C. has been allowed. Factual matrix of the case are that with respect to dowry death of the daughter of the first informant first information report has been lodged wherein husband father in law mother in law brother in law and sister in law under Section 319 Cr.P.C. to summon the present revisionist and her husband Jaideep Saraswat who are Jethani and Jeth to face the trial along with three other o accused against whom the charge sheet was submitted. After going through the record the trial court vide impugned order dated 18.2.2021 has allowed the applicationunder Section 319 Cr.P.C. and summoned the present applicant to face the trial along with other co accused under Section 498A 304B I.P.C. and Section 3 4 of the Dowry Prohibition Act. Learned counsel for the revisionist has submitted that on the date of incident the present revisionist was not present on the place of occurrence which is clearly evident from the report of CDR with respect to location of mobile numbers of Jaideep Saraswat and Smt. Aarti Saraswat which was considered by the Investigating Officer in submitting the chargesheet. He also submits that the statement of loco pilot who was piloting the train recorded under Section 161 Cr.P.C. has not been considered by the court below wherein he stated that on the date of incident he was piloting the train from Gangapur City to Tughlakabad and all of sudden one lady came on the mid of the truck and collided with the train. It is further submitted that on 17.10.2018 she left for her parental house and the said incident took place on 18.10.2019 therefore the present appellant is not in a position to explain as to why and how such incident took place. It is submitted that the evidence which have been collected by the investigating officer during investigation have illegally been ignored by the trial court. There is no clinching and unimpeachable evidence on record to prove the complicity of the present appellants in the commission of crime as mentioned in the FIR beyond reasonable doubt. Learned counsel for the appellant has relied upon the judgement of the Hon ble Supreme Court in the case of Brijendra Singh others vs. State of Rajasthan reported in 2017(7) SCC 706 Per contra learned counsel for the opposite party no. 2 contended that with respect to cruelty and harassment for demand of dowry earlier one FIR was lodged by the opposite party no. 2 which was registered as case crime no. 11319 under Section 498A 323 328 506 I.P.C. and Section 3 4 of the Dowry Prohibition Act. In the aforesaid FIR charge sheet was submitted against all the accused as mentioned in the FIR namely Sanjaydeep Saraswat Mohan LalSmt. PremwatiJaydeep Saraswat Jet) and Smt. Aartiwho is appellant herein. The aforesaid matter was amicably settled between the parties due to intervention of the elders in the family. After the settlement when the victim went to her in laws house she was again subjected to harassment and cruelty for demand of dowry which resulted in her dowry death and first information report has been lodged in this respect. It is further submitted that the husband and father in law both are the railway employees and they have manipulated the statement of loco pilot which has been relied upon by learned counsel for the appellant. During the course of argument he has produced the communication dated 17.9.2019 made by Deputy Superintendent of Police Railway G.R.P. Agra addressed to the first informant in reply under the Right to Information Act stating therein that no such information with regard to the alleged incident has been received in the department from the Station Master concerned as enquired by the first informant. Copy of the aforesaid letter which has been provided by learned counsel for the revisionist is taken on record. It is further submitted that evidence collected by the investigating officer during investigation are not required to be considered by the court below at the time of summoning the accused under Section 319 Cr.P.C. In support of the contention learned counsel has relied upon a judgement of the Hon ble Supreme Court dated 15.3.2021 passed in Criminal Appeal Nos. 298 2921 Sartaj Singh vs. State of Haryana & Another etc.. Sri Rupak Chaubey learned A.G.A. contends that the statement of loco pilot recorded under Section 161 Cr.P.C. has got no much relevance at the stage of summoning the accused under Section 319 Cr.P.C. for facing the trial along with other co accused. He further contends that the trial court has summoned the present appellant after considering the deposition made by P.W. 1 & P.W. 2 which clearly makes out a case for summoning the present revisionist to face the trial. It has also been contended that the CDR simply states the location of the mobile and not the location of the person and therefore on the basis of the CDR it cannot be said that the present appellant who has been summoned by the trial court for facing trial was not present at the place of occurrence. He further submits that for making out a case under Section 304B I.P.C. personal presence of the accused at the place of occurrence is not required under law. A perusal of the order reveals that the Trial Court has given its finding after taking into consideration the documents available on record. Present revisionist was made accused in the F.I.R. with an allegation that she had beaten up the victim. Deposition made by PW 1 & PW 2 who have been cross examined by the defence have prima facie corroborated the complicity of the present revisionists in the commission of crime. Case law of Brijendra Singh cited by counsel for the revisionist is not applicable in the present matter. In the cited case summoning order under Section 319 Cr.P.C. has been concurrently decided by the trial court as well as High Court in favour of the first informant by which accused persons were summoned to face trial along with other co accused Accused appellant has taken plea of alibi. Certain documents had been discussed by the investigating office for not arraigning them as an accused in the charge sheet. After considering the facts and circumstances of the case and the law cited Hon ble Supreme Court has observed that the evidence recorded during trial was nothing more than the statement which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. It was also observed that the trial court would be competent to exercise its power even on the basis of such statement recorded before it in examination in chief. However it was also observed that the in case like the present one which was considered by the Hon ble Supreme Court several evidence were collected by the investigating officer during investigation which suggested otherwise. The aforesaid cited case was arising out of criminal proceedings under Section 147 148 149 323 448 and 302 149 I.P.C. as well as Section 3 3(ii)(v) of the Scheduled Castes and Scheduled TribesAct 1989 whereas in the present matter at hand is arising out of criminal proceedings under Section 304B and 498A I.P.C. wherein the burden of proof is dealt with in different manner. In several judgements it has been held by Hon ble Supreme Court that Section 304B I.P.C. is a stringent penal provisions which has been implemented for dealing with and punishing offence against married women. A conjoint reading of Section 304B I.P.C. and presumptive provisions of Section 113B of the Evidence Act one of the essential ingredients amongst others is that the woman must have been soon before her death subjected to cruelty and harassment for demand of dowry. On the proof of essentials as mentioned in the aforesaid Section it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. It is clear that in case of dowry death initial burden lies upon the prosecution to prove the ingredients of Section 304B I.P.C. by preponderance of probability. Prosecution is not required to prove ingredients beyond reasonable doubt otherwise it will defeat the purpose of Section 304B I.P.C. Once prosecution has discharged its initial burden presumption of innocence of an accused would get replaced by deemed presumption of guilt of an accused. In these circumstances burden would then be shifted upon the accused to rebut deemed presumption of guilt by proving his innocence beyond reasonable doubt.In the light of the conspectus discussed above with respect to scope of Section 304B I.P.C. I am of the view that case law of Brijendra Singhwhich has been cited by learned counsel for the applicant is not applicable in the present matter Law expounded by Hon ble Supreme Court enunciating the scope of Section 319 Cr.P.C. in detail in the case of Hardeep Singh Vs. State of Punjab and others 2014SCC 92 is still an important landmark judgement on this point. In the case of Hardeep Singh(Supra) Hon ble Supreme Court has examined the following five questions: i) What is the stage at which power under Section 319 Cr.P.C. can be exercised ii) Whether the word "evidence" used in Section 319Cr.P.C. could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination in chief of the witness concerned iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word evidence" is limited to the evidence recorded during trial iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged " The aforesaid questions have been answered in para 117 of judgement as under: Question Nos.andSCC 9 the Constitution Bench has already held that after committal cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till evidence under Section 319 Section 319 Cr.P.C. significantly uses two expressions that have to be taken note of i.e.Trial. As a trial commences after framing of charge an inquiry can only be understood to be a pre trial inquiry. Inquiries under Sections 200 201 202 Cr.P.C. and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences for the exercise of power for summoning an additional becomes available accused under Section 319 Cr.P.C. and also to add an accused whose name has been shown in Column 2 of the charge sheet. In view of the above position the word evidence in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4 Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross examination. Question No.Question No.A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accusedhas to be different. Question No.A. A person not named in the FIR or a person though named in the FIR but has not been charge sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh". I have very carefully examined the submissions advanced by the learned counsel for the parties and gone through the record. After examining the materials available on record I find that no case is made out for interference by this Court while exercising revisional jurisdiction. Counsel for the revisionist has not been able to point out any such illegality or impropriety or incorrectness in the impugned order which may persuade this Court to interfere in the same. There is also no abuse of court s process perceptible in the same which appears to have been passed after due application of judicial mind. All the facts and circumstances of the case have been appreciated in right perspective and even the law point on the issue has been duly discussed. It is true that summoning of an accused under Section 319 Cr.P.C. cannot be resorted to in a cavalier or casual manner. The standard of sufficiency of evidence which may justify the summoning of an additional accused under Section 319 Cr.P.C. is on much higher footing than the sufficiency of evidence which may persuade the court to summon an accused under Section 204 of Cr.P.C. but it does not go to mean that the standard of sufficiency of evidence in order to justify the summoning of an additional accused under Section 319 Cr.P.C. should be of the same level which is required to be applied at the time of final adjudication on the point of guilt and innocence of an accused. The ratio and obiter as laid down by the Constitution Bench of Hon ble Apex Court in the case of Hardeep Singh v. State of Punjab and others 3 SCC 92 does not appear to have been ignored in this case. The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge sheet is filed by police against him and the accused can be summoned only on the basis of examination in chief of witness and need not wait for cross examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C. Court has said that test are same as applicable for framing charge. In view of the above conspectus I find no merits in the instant revision. There is no illegality or perversity in the impugned order in question which is hereby affirmed and the instant revision is dismissed. Order Date : 19.3.2021

Summary: The evidence collected by the investigating officer during investigation are not required to be considered by the court below at the time of summoning the accused under Section 319 Cr.P.C. Said Justice Dinesh Pathak of Allahabad High Court in the matter of Smt Aarti v. State of UP and Another [CRIMINAL REVISION No. – 744 of 2021]. This order was given out in the case’s factual matrix is that, in relation to the dowry death of the first informant’s daughter, a first information report was filed in which the husband, father-in-law, mother-in-law, brother-in-law, and sister-in-law were implicated in the crime of cruelty and harassment with the victim for dowry demand. According to the first information report, the marriage of the first informant’s daughter with Sanjaydeep cost approximately Rs.50 lakhs, but the victim was later harassed for an additional Rs.20 lakhs in dowry. It is also claimed that, while one incident of harassment and cruelty for dowry demand occurred previously, it was settled amicably after the intervention of the family elders. The first informant’s daughter then went to her matrimonial home with her in-laws on October 18, 2018. He learned that his daughter had been admitted to Nayati Hospital in Mathura, where she died as a result of injuries. Following a thorough investigation, the investigating officer filed a charge-sheet on 5.2.2019, in which the husband, father-in-law, and mother-in-law were named as defendants. Smt. Aarti, the current revisionist, was not named as an accused in the charge-sheet. Feeling aggrieved, informant filed an application (paper no. 41Kha) under Section 319 Cr.P.C. to summon the current revisionist and her husband Jaideep Saraswat, also known as Jethani and Jeth, to stand trial alongside three other o-accused against whom the charge-sheet was filed.After reviewing the record, the trial court granted the application (paper no. 41Kha) under Section 319 Cr.P.C. and summoned the present applicant to face the trial along with other co-accused under Sections 498A, 304B I.P.C., and 3/4 of the Dowry Prohibition Act. Learned counsel also asserted that on the date of the incident, the present revisionist was not present at the scene, as evidenced by the CDR report pertaining to the location of Jaideep Saraswat and Smt. Aarti Saraswat’s mobile numbers, which was taken into account by the Investigating Officer in submitting the chargesheet. He also claims that the court below did not consider the statement of the loco pilot, who was piloting the train, recorded under Section 161 Cr.P.C., in which he stated that on the date of the incident, he was piloting the train from Gangapur City to Tughlakabad when all of a sudden one lady came on the middle of the truck and collided with the train. In contrast, Sri Rupak Chaubey, learned counsel for the opposing party no. 2, contended that, with regard to cruelty and harassment for dowry demand, the opposing party no. 2 had previously filed a FIR, which was registered as case crime no. 1130 of 2019 under Sections 498A, 323, 328, 506 I.P.C., and Section 3/4 of the Dowry Prohibition Act. The opposition also claims that the loco pilot’s statement recorded under Section 161 Cr.P.C. has no bearing on summoning the accused under Section 319 Cr.P.C. for trial alongside other co-accused. The aforementioned judgement under Section 319 Cr.P.C. can be exercised by the Court against a person who is not named in the First Information Report or who has no charge sheet filed by police against him, and the accused can be summoned solely on the basis of examination-in-chief of witnesses, without the need for cross-examination, etc. Concerning the Court’s degree of satisfaction for summoning the accused under Section 319 Cr.P.C., the Court stated that the test is the same as for framing charge.