In CRR-2518-2017(O&M)-PUNJ HC- Test to be applied u/s 319 CrPC is one which is more than prima facie case as exercised at stage of framing of charge but short of satisfaction to extent that evidence if not rebutted, would lead to conviction: P&H HC Justice Karamjit Singh [02-06-2022]

Read Order: Parveen and Another v. State of Punjab 

Monika Rahar 

Chandigarh, June 3, 2022: The Punjab and Haryana High Court has recently held that though only a prima facie case is to be established from the evidence led before the Court in the case of Section 319 Cr.P.C., 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 not rebutted, would lead to conviction and in absence of such satisfaction the Court should not exercise its power under Section 319 Cr.P.C.

The Bench of Justice Karamjit Singh was considering a revision petition filed against the order of the Trial Court by which the application under Section 319 Cr.P.C. for summoning the petitioners (namely Parveen and Sahil), to face trial in an FIR registered under Sections 406, 420 IPC, was allowed. 

Essentially, in this case, the above-stated FIR was initially lodged by the complainant (wife of petitioners’ deceased brother) against the parents and sister of the petitioners’. The complainant’s husband died on account of a pistol shot fired by one police officer during a marriage function where the deceased was present as a member of a musical group. 

An FIR under Section 302 IPC was registered against the culprits, however, after the accused paid Rs.16 lakhs as compensation (for the welfare of the complainant and her children), a compromise was entered into and the matter was settled. However, it was the complainant’s grievance that the entire compensation was kept by the parents of the deceased. Hence, the above-stated FIR was lodged. 

After completing the investigation, the Police filed a charge sheet against the three accused (parents and sister of the petitioners). The present petitioners were summoned by the Trial Court vide the impugned order under Section 319 Cr.P.C. after the complainant made a statement to this effect during the Trial. 

The petitioners’ counsel contended that the power under Section 319 Cr.P.C. is discretionary and extraordinary and should be exercised by the Court only where strong and cogent evidence appears against a person during the trial, which is not so in the present case. The counsel further contended that in the instant case the trial Court summoned the petitioners as an additional accused just in a casual manner without application of mind and as such, the impugned order deserved to be set aside.

On the other hand, the State counsel assisted by counsel for the complainant contended that the Trial Court rightly exercised the power provided under Section 319 Cr.P.C. on the basis of evidence which was available on the record. It was their argument that Section 319 Cr.P.C. empowered the Court to proceed against other persons who appeared to be guilty of offence though not an accused before the Court. The State counsel further contended that at the time of taking cognizance under Section 319 Cr.P.C. the Court has to see whether a prima facie case is made out to proceed against the accused and that in the present case ample evidence is there on the record to establish the complicity of both the petitioners.

After considering the rival submissions, the Court observed that the complainant, while appearing in the witness box made certain improvements when she stated that some of the amount belonging to her was kept by her sister-in-law and she refused to return the same to her (complainant). She further stated that the accused proposed her marriage to Sahil (petitioner) and in this regard ‘Shagun’ ceremony was also performed. It was also her deposition that all this was done by the accused persons just to grab compensation of Rs.16 lakhs which was meant for her and her children. 

Further, the Court observed that the law with regard to the powers vested with the trial Court under Section 319 Cr.P.C. has evolved with passage of time. Further, Justice Singh, after having made reference to the various decisions of the Top Court, observed that though only a prima facie case is to be established from the evidence led before the Court, in the case of Section 319 Cr.P.C. 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 not rebutted, would lead to conviction and in absence of such satisfaction the Court should not exercise its power under Section 319 Cr.P.C.

Averting to the facts of the present case in light of the above, the Court was of the opinion that there were no specific allegations against the petitioners in the FIR regarding entrustment of any money to them or with regard to cheating. Justice Singh rather noted that even in the statement of the complainant, recorded by the police before the registration of the FIR, there were no specific allegations of entrustment of any money by the complainant to the present petitioners. Similarly, there were no allegations in the said statement that petitioner Sahil ever promised to marry the complainant. 

Thus, in these circumstances, the testimony of the complainant in the Court whereby she raised specific allegations of entrustment of a particular amount against petitioner Parveen and of cheating against petitioner Sahil appeared to the Couty to be an afterthought and thus, were shrouded by suspicion.

In the light of the above, the Court was of the view that the prosecution failed to establish that the evidence available on record was more than prima facie to proceed against the present petitioners under Section 319 Cr.P.C.

“It appears that the trial court exercised its powers under Section 319 Cr.P.C. just on the mere probability of the complicity of the petitioners in the present case”, the Court opined. 

Thus, the impugned order was set aside and the petition was allowed.