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The court is not powerless in calling the accused to face trial: SC Reiterate

Saeeda Khatoon Arshi V. State of UP & Anr,  Criminal Appeal No. 1815 of 2019,  Arising out of Special Leave Petition (Crl.) No. 5326 of 2019.

The Criminal Appeal was brought to the Supreme Court under the bench comprising of Justice Dr. Dhananjaya Y Chandrachud and Justice Hrishikesh Roy.

The bench allowed the appeal and set aside the judgment and order of the High Court, the order passed by the  Additional District and Sessions Judge – Fast Track Court No 1, Moradabad was upheld.

The appellant’s daughter Juhi Arshi died on 10th June 2017 in her matrimonial house, where she and her husband lived separately. Her parents (the appellant) had a doubt that she might have murdered by her husband, the contents of the FIR stated that

“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.”

The post-mortem was also carried out. When the charge sheet was filed, it was against the person named Manoj Shrivastav under Section 173 of CrPc. On the source of evidence given by the appellant the second respondent, the husband of the deceased Juhi was asked to face trial as he appeared to be complicit in the crime leading up to the murder of his wife. The Additional District and Sessions Judge allowed the application and summoned the second respondent under Section 319 of the CrPC by citing the “Hardeep Singh” case.

The appeal was filed by the second respondent under the High Court. The appeal was also allowed by the Single Judge of High Court which was filed under Section 482 of the CrPC.

The appellant was aggrieved by the judgment of the HC and moved to the Supreme Court under Article 136 of the Constitution.

The questions of law in this case is,

1. Whether the court has the power to alter the charge or through any evidence, it can lead to implicating the second respondent for an offence under Section 306 when the trial against Manoj Shrivastav for an offence under Section 306 of IPC was pending.

2.Whether 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?

3.Whether any  ‘strong or other satisfaction’ appeared to have been recorded to summon the second respondent under Section 319?

The learned counsel appearing on the behalf of the appellant, Mr. Andleeb Naqvi contended that under Section 319, the court has the power to proceed against the person other than who was accused if such person appears to have committed the offence. The evidence provided by the mother and the brother of the deceased Juhi shows that the second respondent was the only person in the house. He also didn’t try to inform the police about the death of his wife.

“The 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.” Was inferred from the case Gajanan Dashrath Kharate v State of Maharashtra.

The cogent reasons are the findings of the trial court. The counsel of the appellant contends that the HC has mistakenly interfered with the order of the Additional Sessions Judge without relocating the observations of Trial Court.

Mr. Siddhartha Dave, the learned counsel for the second respondent submitted that no protest petition was filed by the appellant when the charge sheet was filed against the Manoj Shrivastav. Having regard to the language of Section 319, the 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. From the case Pepsi Foods Ltd v Special Judicial Magistrate, it can be inferred that the HC has all the power to test the authority of the order passed by the Additional Sessions Judge. He further stated that the High Court has not wrongly exercised its jurisdiction.

The Supreme court has held that the Trial Court can exercise its power in finding the real culprit if he was not the actual person against whom the charge sheet was filed.

The SC observed,

“Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.”

The Supreme Court further held that the Additional Sessions Judge did not suffer from any weakness of the order passed by it and the High Court has wrongly interfered with the findings of the Trial Court. The court held that the Trial Court had merely engaged in an exercise of exploring the possibility as to the cause of death made by the HC was wrong.

The Supreme Court also held that the summons issued by the Additional Sessions Judge was established on the evidence given by the mother and brother of the deceased which was found during the Trail. The contention made by the counsel of the appeal was relying on Section 114 of the Evidence Act, the SC held that the incident, in this case, has taken place when the second respondent was alone in the home along with his deceased wife.

The contention made by the counsel of the second respondent that no protest petition when the report was submitted under Section 173  was answered by the SC that it does not make the court powerless in to exercise its powers under Section 319 on the basis of the evidence which had emerged during the course of the trial. The High Court has failed to analysis on which the Additional Sessions Judge has issued the summons on the basis of Section 319.

The appeal made the appellant was allowed by the Supreme court and the order passed by the High Court was set aside. The order passed by the Additional Sessions Judge was upheld.

This Court held that the court, while exercising its jurisdiction under Section 319, is not rendered 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.

The SC held that,

“We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 12 April 2019. In 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. Pending application(s), if any, shall stands disposed of.”

View/Download Judgment: Saeeda Khatoon v. state of UP

– Manusri Ramakrishnan

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