BABUBHAI BHIMABHAI BOKHIRIA & ANR.versusSTATE OF GUJARAT & ORS.

                        (2014] 4 S.C.R. 652


A           BABUBHAI BHIMABHAI BOKHIRIA & ANR.
                                 v.
                  STATE OF GUJARAT & ORS.
                (Criminal Appeal No. 735 of 2014)
                          APRIL 3, 2014
B
              [CHANDRAMAULI KR. PRASAD AND
                PINAKI CHANDRA GHOSE, JJ.]

       Code of Criminal Procedure, 1973: s.319 - Scope of -
C Held: s.319 confers power on the trial court to find out whether
  a person who ought to have been added as an accused has ·
  erroneously been omitted or has deliberately been excluded
  by the investigating agency and that satisfaction has to be
  arrived at on the basis of the evidence so led during the trial
D - The degree of satisfaction for invoking power uls.319 is
  much higher though the test of prima facie case being made
  out is same as that when the cognizance of the offence is
  taken and process issued - In the instant case, the trial court
  allowed the application filed uls. 319 on the basis of letter
E written almost a year ago by the deceased in which it was
  stated that in the event of his death, the appellant shall be
  held responsible - Except the apprehension expressed by the
  deceased, the letter did not relate to the cause of his death
  or to any circumstance of the transaction which resulted in his
F death - The said letter did not satisfy the requirement of s. 32
  of the Evidence Act and, therefore, cannot be considered as
  such to enable exercise of power uls.319 of the Code -
  Evidence Act, 1872 - s.32.

       Evidence Act, 1872: s.32 - Dying declaration - Held: As
G per s.32(1), any statement made by a person as to the cause
  of his death or as to any of the circumstances of the
  transaction which resulted in his death is relevant in a case
  in which the cause of death of the person making the
  statement comes into question - It is an exception to the rule
H                              652
 BABUBHAI BHIMABHAI BOKHIRIA & ANR. v. STATE 653
                OF GUJARAT
of hearsay - However, general expressions suspecting a              A
particular individual not directly related to the occasion of
death are not admissible when the cause of death of the
deceased comes into question - In the instant case, a letter
written almost a year ago by the deceased was recovered from
his purse in which it was stated that in the event of his death,    B
the appellant shall be held responsible as the appellant
intended to kill him - Except the apprehension expressed by
the deceased, the letter did not relate to the cause of his death
or to any circumstance of the transaction which resulted in his
death - Therefore, said letter did not satisfy the requirement      c
of s.32 of the Act and was not admissible.

     The prosecution case was that during the pendency
of trial of a murder case, the wife of the deceased filed
an application for further investigation under Section
173(8), Cr.P.C. alleging the appellant's complicity in the D
crime on the basis of a letter written almost a year ago
by the deceased recovered from his purse in which it was
stated that in the event of his death, the appellant shall
be held responsible as the appellant intended to kill him.
The trial court directed for further investigation. During E
the course of trial of other accused, an application was.
filed by the son of the deceased praying for arraigning
the appellant as an accused in exercise of power under
Section 319, Cr.P.C. The trial court allowed the
application holding that prima facie strong evidence F
existed to summon the appellant as the letter recovered
from the deceased incriminated him. The High Court
upheld the order of the trial court. The instant appeal was
filed challenging the order of the High Court.
                                                            G
     Allowing the appeal, the Court

    HELD: 1. Section 319 of the Code of Criminal
Procedure confers power on the trial court to find out
whether a person who ought to have been added as an
accused has erroneously been omitted or has                         H
    654      SUPREME COURT REPORTS              [2014] 4 S.C.R.


A deliberately been excluded by the investigating agency
  and that satisfaction has to be arrived at on the basis of
  the evidence so led during the trial. The degree of
  satisfaction for invoking power under Section 319 of the
  Code is much hig~er though the test of prima facie case
B being made out is same as that when the cognizance of
  the offence is taken and process issued. [Para 9] [659-F-
  H; 660-A]

         2. Section 32(1) of the Evidence Act states that a
    statement of a fact by a person who is dead when it
C   relates to cause of death is relevant. It is an exception to
    the rule of hearsay. Any statement made by a person as
    to the cause of his death or as to any of the
    circumstances of the transaction which resulted in his
    death is relevant in a case in which the cause of death
D   of the person making the statement comes into question.
    Indian law has made a departure from the English law
    where the statements which directly relate to the cause
    of death are admissible. General expressions suspecting
    a particular individual not directly related to the occasion
E   of death are not admissible when the cause of death of
    the deceased comes into question. In the instant case,
    except the apprehension expressed by the deceased, the
    statement made by him does not relate to the cause of
    his death or to any circumstance of the transaction which
F   resulted in his death. The note does not satisfy the
    requirement of Section 32 of the Act and, therefore, is not
    admissible in evidence and, thus, cannot be considered
    as such to enable exercise of power under Section 319
    of the Code. [Para 15] [663-A-E]
G
        Hardeep Singh v. State of Punjab 2014 (1) SCALE 241;
    Pakala Narayanswami v. Emperor AIR 1939 PC 47; Sharad
    Birdhichand Sarda v. State of Maharashtra 1984 (4) SCC
    116: 1985 (1) SCR 88 - relied on.
H         3. The other evidence sought to be relied upon for
  BABUBHAI BHIMABHAI BOKHIRIA & ANR. v. STATE 655
                 OF GUJARAT
  summoning the appellant was the alleged conversation          A
  between the appellant and the accused on and
  immediately after the day of the occurrence. But, nothing
  came during the course of trial regarding the content of
  the conversation and from call records alone, the
· appellant's complicity in the crime did not surface at all.   B
  Thus, no evidence at all came during the trial to show
  even a prima facie complicity ofthe appellant in the crime.
  In that view of the matter, the order passed by the trial
  court summoning the appellant, as affirmed by the High
  Court is not sustained. [Paras 21, 22] [666-A-C]              c
    Rattan Singh v. State of Himachal Pradesh 1997 (4)
 SCC 161: 1996 (9) Suppl. SCR 938 - distinguished.
                     Case Law Reference:
    2014 (1) SCALE 241           relied on         Para 8       D

    1996 (9) Suppl. SCR 938      Distinguished     Para .13
    AIR 1939 PC 47               Relied on         Para16
    1985 (1) SCR 88             . Relied on        Para ,18
                                                                E
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 No. 735 of 2014.
     From the Judgment and order dated 11.12.2008 of the
 High Court of Gujarat at Ahmadabad in SCRA No. 638 of 2008.
                                                                F
      V.A. Bobde, A.M. Singhvi, Huzefa Ahmadi, Sushi! Kumar
 Jain, Aniruddha P. Mayee, Dharmesh D. Nanavati, Charudatta
 Mahindrakar, Kamna·sagar, Maria Nazir, B.M. Mangukiya, Ejaz
 Maqbool, V.H. Kanara, Mrigank Prabhakar, Preeti Kunwar, R.
 Sharma, Hemantika Wahi, Puja Singh, Pratibha Jain for the      G
 appearing parties.
     The Judgment of the Court was delivered by
     CHANDRAMAULI KR. PRASAD, J. 1. Before we
 proceed to consider the case, we must remind ourselves the     H
    656      SUPREME COURT REPORTS                   (2014] 4 S.C.R


A maxim "judex damnatur cum nocens absolvitur" which means
  that a Judge is condemned when guilty person escapes
  punishment. But, at the same time, we cannot forget that
  credibility of the justice delivery system comes under severe
  strain when a person is put on trial only for acquittal.
B
        2. By Order dated 8th December, 2011, Veja Prabhat
  Bhutia was added as petitioner no. 2. He was an accused in
  the case and his grievance was that due to pendency of the
  present petition filed by petitioner Babubhai Bhimabhai
  Bokhiria, his trial has been stayed and he is unnecessarily
C rotting in jail. This judgment shall, therefore, will have no bearing
  on him and the expression "petitioner/appellant" in this
  judgment would mean petitioner no.1 /appellant no.1 Babubhai
  Bhimabhai Bokhiria.

D         3. Shorn of unnecessary details, facts giving rise to the
    present petition are that one Mulubhai Gigabhai Modhvadiya
   was murdered on 16th of November, 2005 and for that a case
    was registered at Kalambaug Police Station, Porbandar, under
    Section 302, 201, 34, 120B, 465, 468 and 471 of the Indian
E , Penal Code and Section 25 of the Arms Act. Police after usual
    investigation submitted the charge-sheet and the case was
    ultimately committed for trial to the Court of Session. When the
    trial was so pending, the wife of the deceased filed an
    application for further investigation under Section 173(8) of the
F Code of Criminal Procedure (hereinafter referred to as 'the
    Code'). alleging petitioner's complicity in the crime, inter alia,
    stating that the petitioner was a business rival of the deceased
   whereas one of the main accused is his business partner with
   whom he conspired to kill the deceased. It was alleged that
G petitioner was a Minister earlier from the party which was in
   power in the State and therefore, he was let off during
   investigation. It was also pointed out that a letter written almost
   a year ago by the deceased was recovered from his purse in
   which it was stated that in the event of his death, the petitioner
   shall be held responsible as he intended to kill him. In reply to
H
 BABUBHAI BHIMABHAI BOKHIRIA & ANR. v. STATE 657
  OF GUJARAT [CHANDRAMAULI KR. PRASAD, J]
the said application, the Investigating Officer filed his affidavit    A
stating therein that during the course of investigation, nobody
supported the plea of the wife that the deceased was
apprehending any threat from the petitioner or for that matter,
any other person. In another affidavit filed by the Investigating
Officer, a firm stand was taken that no material had surfaced          B
to show the complicity of the petitioner in the offence. It was
pointed out by the Investigating Officer that the deceased filed
an application for arms licence and in that application also he
did not disclose any threat or apprehension to his life from any
person, including the petitioner herein. Notwitl1standing the          c
aforesaid affidavit of the Investigating Officer, the Sessions
Judge directed for further investigation. In the light of the
aforesaid, the investigating agency submitted further report
stating therein that the call records of the period immediately
preceding the death of the deceased do not show any nexus              D
between him and the petitioner and the deceased did not have
any threat from the petitioner. In this way, the police did not find
the complicity of the petitioner in the crime.

     4. During the course of trial of other accused, 134
witnesses were examined and at that stage, an application was          E
filed by the son of the deceased praying for arraigning the
petitioner as an accused in exercise of power under Section
319 of the Code. Said application was allowed by the learned
Sessions Judge on its finding that prima facie strong evidence
exists to summon the petitioner as the letter recovered from the       F
deceased incriminated him. It was also observed that the
veracity of the letter recovered from the deceased was
established by two witnesses who confirmed that the letter was
in the handwriting of the deceased.
                                                                       G
     5. Aggrieved by the aforesaid order, the petitioner
preferred Special Criminal Application No. 638 of 2008 before
the High Court of Gujarat. The High Court by its order dated
11th December, 2008 dismissed the said application inter alia
observing as follows:
                                                                       H
    658       SUPREME COURT REPORTS                  [2014] 4 S.C.R.

A         "7. In view of the material placed before the Court, selected
          by the parties, and in absence of comprehensive and
          panoramic view of the entire evidence led before the Court
          in respect of the heinous crime wherein Section 120-B of
          1.P.C. is clearly alleged, it would be hazardous to record
B         an opinion different from the opinion formed by the Court
          conducting the case. It is emphasized in the most recent
          judgment dated 07 .11.2008 of the Supreme Court in
          Hardeep Singh v. State of Punjab [Criminal Appeal No.
          1750-1751/2008), after reference to most of the previous
c         judgments on the issue and reiterating the ration in Bho/u
          Ram v. State of Punjab (2008) 9 SCC 140, that the
          primary object underlying Section 319 is that the whole
          case against all the accused should be tried and disposed
          of not only expeditiously but also ~imultaneously. Justice
          and convenience both require that cognizance against the
D
          newly added accused should be taken in the same case
          and in the same manner as against the original accused.
          In view of the principles laid down by the Supreme Court
          as adumbrated hereinabove and in view of the further
          guidelines called for by the recent referring judgment, it
E         would be improper to interfere with the impugned order,
          particularly when even the State and the prosecution has
          supported the application at Ex. 225 below which the
          impugned order was made."

F        6. It is in these circumstances, the petitioner has preferred
    this special leave petition and assails the aforesaid order.

          7. Leave granted.

       8. Before we proceed to deal with the evidence against
G the appellant and address whether in light of the evidence
  available, power under Section 319 of the Code was validly
  exercised, it would be expedient to understand the position of
  law in this regard. The issue regarding the 'scope and extent
  of powers of the court to arraign any persbn as an accused
H during the course of inquiry or trial in exercise of power under
BABUBHAI BHIMABHAI BOKHIRIA & ANR. v. STATE 659
 OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
Section 319 of the Code has been set at rest by a Constitution        A
Bench of this court in the case of Hardeep Singh v. State of
Punjab, 2014 (1) SCALE 241. On a review of the authorities,
this Court summarised the legal position in the following words:

     "98. Power under Section 319 Cr.P.C. is a discretionary
                                                                      B
     and an extra-ordinary power. It is to be exercised sparingly
    ·and only in those cases where the circumstances of the
     case so warrant. It is not to be exercised because the
     Magistrate or the Sessions Judge is of the opinion that
     some other person may also be guilty of committing that          C
     offence. Only where strong and cogent evidence occurs
     against a person from the evidence led before the court
     that such power should be exercised and not in a casual
     and cavalier manner.

     99. Thus, we hold that though only a prima facie case is         D
     to be established from the evidence led before the court
     not necessarily tested on the anvil of Cross-Examination,
     it requires much stronger evidence than mere probability
     of his complicity. The test that has to be applied is one
     which is more than prima facie case as exercised at the          E
     time of framing of charge, but short of satisfaction to an
     extent that the evidence, if goes unrebutted, would lead to
     conviction. In the absence of such satisfaction, the court
     should refrain from exercising power under Section 319
     Cr.P.C ........ "                                                F

      9. Section 319 of the Code confers power on the trial court
to find out whether a person who ought to have been added
as an accused has erroneously been omitted or has
deliberately been excluded by the investigating agency and that
satisfaction has to be arrived at on the basis of the evidence        G
so led during the trial. On the degree of satisfaction for invoking
power under Section 319 of the Code, this Court observed that
though the test of prima facie case being made out is same
as that when the cognizance of the offence is taken and
process issued, the degree of satisfaction under Section 319          H
    660       SUPREME COURT REPORTS                  (2014] 4 S.C.R.


A   of the Code is much higher.

         10. Having summarised the law on the degree of
  satisfaction required by the courts to summon an accused to
  face trial in exercise of power under Section 319 of the Code,
B we now proceed to consider the submissions advanced by the .
  learned counsel. It is common ground that the only evidence that
  the trial court has relied to summon the appellant to face the
  trial is the note written by the deceased in his own handwriting
  apprehending death at the appellant's hand. The same reads
  as follows:
c
          "Date: 18.11.2004

          I, Mulubhai Modhvadiya write this note that the then
          Irrigation Minister Babubhai Bokhiriya @ Babula! want to
D         kill me due to personal differences with me. Therefore I
          inform to the State and to the police by this note that
          whenever I die, then I request to do thorough investigation
          because phone calls are coming threatening to kill me. If I
          will make complaint today then he will by using his influence
          destroy the complaint, therefore I am keeping this note in
E
          my purse and I am clearly stating that If I will die due to
          murder then my murder will be done by Babu Bokhiriya
          only, if dumb government listen to my note than take strict
          action against Babu Bhokhiriya and my soul will be
          pleased. I am also giving my finger print on this letter and
F         also signing under it. Therefore you have no doubt about
          it.

                                                     Yours sincerely
                                                                Sd/-
G                                            (Mulubhai Modhvadiya)"

          11. It is an admitted position that all those who were put
    on trial have now been acquitted by the trial court.

          12. Mr. V.A. Bobde, learned Senior Counsel appearing on
H
 BABUBHAI BHIMABHAI BOKHIRIA & ANR. v. STATE 661
  OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
behalf of the appellant submits that in the course of trial of an     A.
offence, when it appears from the evidence that any person,
not being the accused, has committed any offence for which
such person could be tried together with the accused facing
trial, the court may proceed against such person for the offence
which he appears to have committed. He points out that the            B
power under Section 319 of the Code can be exercised when
it appears from the evidence that any person not being the
accused, has committed any offence. In his submission, the
evidence would obviously mean the evidence admissible in law.
He submits that the note allegedly recovered from the deceased        c
expresses mere apprehension of death and, therefore, it is
inadmissible in evidence and does not come within the ambit
of Section 32 of the Evidence Act (hereinafter referred to as
"the Act"). He further submits that the note does not relate to
the cause of death nor it describes any circumstance that led         0
to his death. It has also been pointed out that the note
recovered is also not relevant under Section 32 of the Act as it
has no proximity with the event of his death, as the same was
written over a year ago.

       13. Dr. A.M. Singhvi, learned senior counsel appearing for     E
Respondent No.2, however, submits that any statement - written
or verbal, made under an expectation of death is relevant under
Section 32 of the Act and need not necessarily be followed by
death immediately. He submits that the letter recovered from
the deceased discloses a relevant fact as the same has been           F
made under apprehension of death and relates to its cause.
Though he admits that the letter was written over a year ago, it
is his contention that it can still be taken into consideration as
it is not necessary to have immediate nexus between the words
written and the death. In support of the submissio11_, reliance has   G
been placed on a decision of this Court in the case of Rattan
Singh v. State of Himachal Pradesh, 1997 (4) SCC 161
wherein it has been held as follows:

     "15 ......... The collocation of the words in Section 32(1)
                                                                      H
    662      SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A         "circumstances of the transaction which resulted in his
          death" is apparently of wider amplitude than saying
          "circumstances which caused his death". There need not
          necessarily be a direct nexus between "circumstances"
          and death. It is enough if the words spoken by the
B         deceased have reference to any circumstance which has
          connection with any of the transactions which ended up in
          the death of the deceased. Such statement would also fall
          within the purview of Section 32(1) of the Evidence Act. In .
          other words, it is not necessary that such circumstance
c         should be proximate, for, even distant circumstances can
          also become admissible under the sub-section, provided
          it has nexus with the transaction which resulted in the
          death .................. "

       14. We have given our thoughtful consideration to the rival
D submissions and the first question which falls for our
  determination is whether the note in question is admissible in
  evidence or in other words, can be treated as a dying
  declaration under Section 32 of the Act. Section 32 of the Act
  reads as follows:
E
      "32.Cases in which statement of relevant fact by
      person who is dead or cannot be found, etc., is
      relevant.- Statements, written or verbal, of relevant facts
      made by a person who is dead, or who cannot be found,
F     or  who has become incapable of giving evidence, or
      whose attendance cannot be procured without an amount
      of delay or expense, which under the circumstances of the
      case, appears to the Court unreasonable, are themselves
      relevant facts in the following cases:
G         (1) when it relates to cause of death.-When the
          statement is made by a person as to the cause of his
          death, or as to any of the circumstances of the transaction
          which resulted in his death, in cases in which the cause of
          that person's death comes into question.
H
BABUBHAI BHIMABHAI BOKHIRIA & ANR. v. STATE 663
 OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
     )()()(                     )()()(                 xxx''          A
      15. From a plain reading of the aforesaid provision, it is
evident that a statement of a fact by a person who is dead when
it relates to cause of death is relevant. It is an exception to the
rule of hearsay. Any statement made by a person as to the             8
cause of his death or as to any of the circumstances of the
transaction which resulted in his death is relevant in a case in
which the cause of death of the person making the statement
comes into question. Indian law has made a departure from the
English law where the statements which directly relate to the
cause of death are admissible. General expressions suspecting         C
a particular individual not directly related to the occasion of
death are not admissible when the cause of death of the
deceased comes into question. In the present case, except the
apprehension expressed by the deceased, the statement made
by him does not relate to the cause of his death or to any            D
circumstance of the transaction which resulted in his death.
Once we hold so, the note does not satisfy the requi~ement of
Section 32 of the Act. The note, therefore, in our opinion, is not
admissible in evidence and, thus, cannot be considered as
such to enable exercise of power under Section 319 of the             E
Code.

     16. The Privy Council had the occasion to consider the
meaning of the expression "circumstances of transaction" used
in Section 32 of the Act in the case of Pakala Narayanswami           F
v. Emperor, AIR 1939 PC 47 and on page 50 held as follows:
     " ... : ..... The statement may be made before the cause of
     death has arisen, or before the deceased has any reason
     to anticipate being killed. The circumstances must be
     circumstances of the transaction : general expressions           G
     indicating fear or suspicion whether of a particular
     individual or otherwise and not directly related to the
   · occasion of the death will not be admissible ............... "

    17. Aforesaid view had been approved by this Court in             H
    664       SUPREME COURT REPORTS                  (2014] 4 S.C.R.


A   Shiv Kumar v. State of Uttar Pradesh, (Criminal Appeal No.
    55 of 1966, decision dated 29th July, 1966), wherein it was
    held as under:

          "It is clear that if the statement of the deceased is to be
          admissible under this section it must be a statement
B
          relating to the circumstances of the transaction resulting
          in his death. The statement may be made before the
          cause of death has arisen, or before the deceased has
          any reason to anticipate being killed, but general
          expressions indicating fear or suspicion whether of a
c         particular individual or otherwise and not directly related
          to the occasion of the death will not be admissible. A
          necessary condition of admissibility under the section is
          that the circumstance must have some proximate relation
          to the actual occurrence. For instance, a statement made
D         by the deceased that he was proceeding to the spot where
          he was in fact killed, or as to his reasons for so
          proceed:ng, or that he was going to meet a particular
          person, or that he had been invited by such person to meet
          him would each of them be a circumstance of the
E         transaction, and would be so whether the person was
          unknown, or was not the person accused. The phrase
          "circumstances of the transaction" is a phrase that no
          doubt conveys some limitations. It is not as broad as the
          analogous use in "circumstantial evidence" which includes
F         evidence of all relevant facts. It is on the other hand
          narrower than 'res gestae' [See Pakafa Narayana Swami
          v. The King Emperor, AIR 1939 PC 47]. As we have
          already stated, the circumstance must have some
          proximate relation to the actual occurrence if the statement
G         of the deceased is to be admissible under s.32(1) of the
          Evidence Act.. ........ "

                                                   (underlining ours)

       18. This Court in the case of Sharad Birdhichand Sarda
H v. State of Maharashtra, 1984 (4) SCC 116, after review of a
 BABUBHAI BHIMABHAI BOKHIRIA & ANR. v. STATE 665
  OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
large number of decisions of the Privy Council, various High     A
Courts and the Supreme Court, endorsed the view taken by the
Privy Council in Pakala Narayanswami (supra) in the following
words:

    "21. Thus, from a review of the authorities mentioned
                                                                 8
    above and the clear language of Section 32(1) of the
    Evidence Act, the following propositions emerge:

    (1) Section 32 is an exception to the rule of hearsay and
    makes admissible the statement of a person who dies,
    whether the death is a homicide or a suicide, provided the   C
    statement relates to the cause of death, or exhibits
    circumstances leading to the death. In this respect, as
    indicated above, the Indian Evidence Act, in view of the
    peculiar conditions of our society and the diverse nature
    and character of our people, has thought it necessary to     D
    widen the sphere of Section 32 to avoid injustice."

     19. All these decisions support the view which we have
taken that the note written by the deceased does not relate to
the cause of his death or to any of the circumstances of the
transaction which resulted in his death and therefore, is        E
inadmissible in law.

     20. Now we revert to the authority of this Court in Rattan
Singh (supra) relied on by Dr. Singhvi. In the said case, the
deceased immediately before she was fired at, spoke out that F
the accused was standing nearby with a gun. In a split second
the sound of firearm shot was heard and in a trice her life
snuffed off. In the said background, this Court held that the
words spoken by the deceased have connection with the
circumstance of transaction which resulted into death. In the G
case in hand, excepting apprehension, there is nothing in the
note. No circumstance of any transaction resulting in the death
of the deceased is found in the note. Hence, this decision in
no way supports the contention of Dr. Singhvi.
                                                                H
    666     SUPREME COURT REPORTS                   (2014] 4 S.C.R


A         21. The other evidence sought to be relied for summoning
    the appellant is the alleged conversation between the appellant
    and the accused on and immediately after the day of the
    occurrence. But, nothing has come during the course of trial
    regarding the content of the conversation and from call records
B   alone, the appellant's complicity in the crime does not surface
    at all.

         22. From what we have observed above, it is evident that
    no evidence has at all come during the trial which shows even
    a prima facie complicity of the appellant in the crime. In that
C   view of the matter, the order passed by the trial court
    summoning the appellant, as affirmed by the High Court, cannot
    be allowed to stand.

         23. To put the record straight, Mr. Bobde has raised
o   various other contentions to show that the appellant cannot be
    put on trial, but in view of our answer to the aforesaid
    contentions, we deem it inexpedient to either incorporate or
    answer the same.

        24. In the result, we allow this appeal and set aside the
E   order of the trial Court summoning the appellant to face trail and
    the Order of the High Court affirming the same.

    D.G.                                            Appeal allowed.