More than prima facie case necessary to summon additional accused under Section 319 CrPC: Supreme Court

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The Supreme Court recently observed that the power to summon additional accused under Section 319 of the Code of Criminal Procedure 1973 (CrPC) must not be exercised routinely and that the existence of more than a prima facie case is necessary to order for the same. [Juhru and Others v. Karim and Another].

The Court said that such a requirement is sine qua non to summon persons under Section 319, CrPC.

A division bench of Justices Surya Kant and JK Maheshwari added that certain procedural safeguards should be adopted to prevent the frequent misuse of this Section.

“… the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material is, more or less, carry the same weightage and value as has been testified against those who are already facing trial. In the absence of any credible evidence, the power under Section 319 Cr.P.C. ought not to be invoked,” the Court said.

The Court was hearing an appeal against a decision of the Punjab and Haryana High Court. The High Court had allowed an application under Section 319, CrPC to summon the father-in-law, brother-in-law and sister-in-law of a woman who had allegedly died after facing dowry harassment and cruelty in her matrimonial home.

The investigating agency did not find any incriminating material against the father-in-law, sister-in-law, and brother-in-law. As such, the police only named the husband and the mother-in-law of the deceased in its report.

The deceased woman’s brother, therefore, filed an application under Section 319, CrPC to summon the father-in-law, brother-in-law and sister-in-law of the deceased as additional accused in the case. The trial court rejected this application.

However, on appeal, the High Court allowed the application, prompting the father-in-law, brother-in-law and sister-in-law (appellants) of the deceased to move the Supreme Court for relief.

The Supreme Court found that there was no credible evidence to connect the brother-in-law and sister-in-law of the deceased with her unnatural death. As such, the Court concluded that it would be unjustified to call on them to face trial as additional accused.

However, the Court noted that the father-in-law has been accused of asking for a sum of ₹ 20 lakhs when the deceased got married to his son. Further, since the father-in-law lived under the same roof as the other accused and the deceased, it was likely that he was privy to the alleged cruelty and torture meted out to the deceased. As such, the Supreme Court held that the High Court order was justified in so far as it allowed he summoning of the father-in-law.

The Supreme Court proceeded to partly allow the appeal on these terms.

“Viewed from this angle, it appears that the 1st appellant [father-in-law] might have to sink or swim with his son and wife … We are of the considered view that while summoning of Appellant No. 1 [father-in-law] sustains, but that of Appellant No. 2 [brother-in-law] and 3 [sister-in-law] will be far fetched and they cannot be subjected to trial on the basis of mere strong suspicion,” judgment stated.

The Court added that the trial court must follow the guidelines as laid down in Sukhpal Singh Khaira v. The State of Punjab in proceeding with the trial after summoning the father-in-law.

The Sukhpal Singh Khaira case had laid down how a trial court ought to move forward with the trial when it summons any additional accused after the commencement of the trial. The guidelines laid down in that case included:

– If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.

– The Court shall first decide the need or otherwise to summon the additional accused and pass orders thereon.

– If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.

– If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.

– If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.

– If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.

Advocate SK Verma appeared for the appellants. Advocate Deepakaran Dalal appeared for the respondents.

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