BABUBHAI BHIMABHAI BOKHIRIA & ANR. versus STATE OF GUJARAT & ORS.

Citation: [2014] 4 S.C.R. 652 · Decided: 03-04-2014 · Supreme Court of India · Bench: C.K. PRASAD · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
(2014] 4 S.C.R. 652 
BABUBHAI BHIMABHAI BOKHIRIA & ANR. 
v. 
STATE OF GUJARAT & ORS. 
(Criminal Appeal No. 735 of 2014) 
APRIL 3, 2014 
[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. 
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 
G 
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
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