# Smt. Aarti Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 4 ILRA 12
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-19
- **Case number:** Criminal Revision No. 744 of 2021
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-aarti-revisionist-v-state-of-u-p-anr-opp-parties-47031
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Sections 204 & 319 -
Applicant is sister in law of the
deceased-was not arraigned in the
charge sheet-but was summoned u/s
319Standard of sufficiency of evidence
in summoning of an additional accused
u/s319 Cr.P.C.-on much higher footing
than summoning u/s 204 Cr.P.C.-but
not
of
the
same
level
of
final
adjudication -summoning order not
illegal.

Revision dismissed. (E-7)

List of Cases cited:-

## Text

12 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)04ILR A12
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE DINESH PATHAK, J.

Criminal Revision No. 744 of 2021

Smt. Aarti ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri A.K. Mishra, Sri Sati Shanker Tripathi

Counsel for the Opp. Parties:
A.G.A., Sri Sandeep Kumar

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Sections 204 & 319 -
Applicant is sister in law of the
deceased-was not arraigned in the
charge sheet-but was summoned u/s
319Standard of sufficiency of evidence
in summoning of an additional accused
u/s319 Cr.P.C.-on much higher footing
than summoning u/s 204 Cr.P.C.-but
not
of
the
same
level
of
final
adjudication -summoning order not
illegal.

Revision dismissed. (E-7)

List of Cases cited:-

1. Brijendra Singh & ors.Vs St. of Raj., reported
in 2017(7) SCC 706

2. Sartaj Singh Vs St .of Har. & Another etc.

3. Hardeep Singh Vs St. of Punj. & ors., 2014
(3) SCC 92

4.Hardeep Singh Vs St. of Punj. & ors., (2014) 3
SCC 92

(Delivered by Hon'ble Dinesh Pathak, J.)

1. 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.

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. 127 of 2019 (State Versus
Sanjaydeep and Others) arising 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.

3. 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-inlaw (Jeth) and sister-in-law (Jethani) were
roped in for committing crime of cruelty
and harassment with the victim for demand
of dowry. It is averred in the first
information report that marriage of the
daughter of the first informant was
solemnized with Sanjaydeep on 30.11.2016
in which about Rs.50 Lakhs were expended
but subsequently, the victim was harassed
for additional dowry amounting to Rs.20
Lakhs. It is further averred that although
with respect to harassment and cruelty for
demand of dowry earlier one incident took
place, the same was amicably settled after
intervention of the elders in the family.
Thereafter, the daughter of the first
informant went to her matrimonial home
along with her in-laws on 18.10.2018. He
got information that his daughter had been
admitted in Nayati Hospital, Mathura
where she, subsequently, succumbed to
injuries on 19.10.2018.
4 All. Smt. Aarti Vs. State of U.P. & Anr.
13

4. After due investigation, the
investigating officer has submitted chargesheet dated 5.2.2019 in which husband,
father-in-law
and
mother-in-law
were
arraigned
as
accused.
The
present
revisionist Smt. Aarti was not arraigned as
accused in the charge-sheet. Feeling
aggrieved,
informant
has
moved
an
application (paper no. 41Kha) 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 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 Section 498A, 304B
I.P.C. and Section 3/4 of the Dowry
Prohibition Act.

5. 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.

6. 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. 1130 of
2019 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 (husband), Mohan
Lal
(father-in-law),
Smt.
Premwati
(mother-in-law), Jaydeep Saraswat (Jet)
and Smt. Aarti (Jethani), who 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-inlaw both are the railway employees and
they have manipulated the statement of
14 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 298-299 of 2021, Sartaj Singh vs.
State of Haryana & Another etc..

7. 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.

8. 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.

9. 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 (Supra) 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
4 All. Smt. Aarti Vs. State of U.P. & Anr.
15
considered by the Hon'ble Supreme Court,
several evidence were collected by the
investigating officer during investigation
which suggested otherwise.

10. 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
Tribes (Prevention of Atrocities) Act, 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 Singh (Supra),
which has been cited by learned counsel for
the applicant, is not applicable in the
present matter.

11. 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, 2014 (3) SCC 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 319 (1) Cr.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
16 INDIAN LAW REPORTS ALLAHABAD SERIES
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. (i) and (iii)

A. In Dharam Pal and Ors. v.
State of Haryana and Anr. 2004 (13) SCC
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
Cr.P.C.
becomes
available for summoning an additional
accused.

Section
319
Cr.P.C.,
significantly, uses two expressions that
have to be taken note of i.e. (1) Inquiry (2)
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
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.

Question No. (ii)

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. (iv)

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 accused
(original and subsequent) has to be
different.
4 All. Upendra Nath Chaubey Vs. State of U.P. & Anr.
17

Question No. (v)

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".

12. 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.

13. 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, (2014) 3 SCC 92, does not
appear to have been ignored in this case.

14. 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 examinationin-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.

15. 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.
----------
(2021)04ILR A17
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.03.2021

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Revision No. 1140 of 2016

Upendra Nath Chaubey ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties