Courts Must Apply Stringent Tests While Understanding The Complexity Of Section 319 Cr. P. C

In Criminal Justice System from the initial stage of investigation some time it happens that those who are actually committed the offence easily escape the boundaries of  Penal Law, by one way or the other. Most commonly it happens so during the investigative stage of the offence which results in filling of improper charge-sheet, due to laxity in investigation. But their names are deleted before filing of charge-sheet under Section 173 (2) of Code of Criminal Procedure, 1973, and then the victim or the Complainant left with no option except to record his or her evidence before the Court and then move an application under Section 319 of Cr. P. C for summoning of accused involved in crime, named in First Information Report but not charge-sheeted before the Court or the Victim or Complainant have to opt for filing of a separate Complaint otherwise then of Police report, against the remaining accused who were not charge-sheeted. If the Victim or the Complainant does not opt either way then also Court is empowered to precede Suo – Muto, if a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. So there comes an issue that, if the Complainant has stated the person's name in the Police report and such person is the main root cause of the crime has not been summoned before the Court Of Law due to lack of evidence then he cannot be questioned. 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 legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the Court to give full effect to the words used by the legislature so as to encompass any situation which the Court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.

The Court is the sole repository of  Justice and a duty is cast upon it to uphold the Rule Of Law and, therefore, it will be inappropriate to deny the existence of such powers with the Courts in our Criminal Justice System where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.

Section 319 of Cr. P. C & Its Objective

The Section reads as;

319. "Power to proceed against other persons appearing to be guilty of offence -

(1) Where, in the course of any inquiry into, or trial of, an offence, 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, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summon, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then -

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or the trial was commenced.

Section 319 Cr. P. C. springs out of the doctrine "Judex Damnatur Cum Nocens Absolvitur" meaning thereby that "Judge is condemned when guilty is acquitted" and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr. P. C. In Criminal Justice System, there are always chances that the real culprit or accomplice may be rescued either by the collusion of Police or due to poor and incompetent investigation. In order to bring such culprits under the hammer of Justice, the power of summoning the additional accused is provided to Courts trying the case. This power under Section 319 Cr. P. C may be used by Court suo-moto or on an application by the Complainant. The person who is summoned may be arrested or taken into custody if the Court deems fit.

The legislative policy behind framing of this Section in the Criminal Procedure Code, 1973 is multi-fold. The Constitutional mandate under Articles 20 & 21 of the Constitution of India provides a protective umbrella for the smooth Administration of Justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to the society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the Courts to ensure that the Criminal Administration of Justice works properly, the law was appropriately codified and modified by the legislature under the Cr. P. C.

This is indicative of how the Courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution of India and our laws that have led to addition of Sections like 319 in Criminal Procedure Code, 1973 to find out the real truth and to ensure that the guilty does not go unpunished.

Necessity & Object Of Power To Summon Additional Accused

It happens sometimes that a Court which includes a Magistrate or a Judge, hearing a case against certain accused finds from the evidence that some person other the accused before him, is also concerned in that very offence or in a connected offence.

Once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; it is his duty to find out who the offenders, really are and once he comes to the conclusion that apart from the persons sent up by the police, some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceedings initiated by him taking cognizance of an offence. ["Raghubans Dubey Vs State of Bihar", 1967 Cri. L. J 1081; "Hareram Satpathy Vs Tikaram Agarwal & Ors", AIR 1978 SC 1568; "S. K. Latifur Rehman & Ors. Vs State of Bihar", 1985 Cri. L. J 1238 (FB)].

Power under Section 319 of Code of Criminal Procedure, 1973 is conferred on the Court to ensure that Justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purpose of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also duty upon the Court to render Justice to the victim of an offence. It is in recognition of this that Cr. P. C as specifically conferred power on the Court to proceed against others not arrayed as accused in the circumstances set out by Section 319 Cr. P. C. It is a salutary power enabling the discharge of a Court's obligation to the society to bring to book all those guilty of a crime. ["Rajendera Singh Vs State of U. P", 2007 Cri. L. J 4281 (SC) followed in "Hardeep Singh Vs State of Punjab & Ors", (2014) 3 SCC 92].

Twin Requirements For Summoning An Additional Accused Under Section 319 Cr. P. C:

As regards the satisfaction of the Court before it exercises the power under Section 319, the Constitution Bench in ["Hardeep Singh Vs State of Punjab & Ors", (2014) 3 SCC 92] held:

“105. Power under Section 319 Cr. P. C is a discretionary and an extraordinary 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 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.

106. Thus, we hold that though only a prima facie case is 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 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. In Section 319 Cr. P. C the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused.” The words used are not “for which such person could be convicted”. There is, therefore, no scope for the Court acting under Section 319 Cr. P. C to form any opinion as to the guilt of the accused.”

Twin requirements for summoning an additional accused under Section 319 Cr. P. C are as under:

(i) That from the evidence it appears to the Court that such person has committed any offence.

(ii) That such a person could be tried together with the accused already facing trial. ["R. Dineshkumar Vs. State & Ors.", (2015) 7 SCC497].

Who Can Use Section 319 Of Code of Criminal Procedure, 1973

The Constitution Bench of Supreme Court in ["Hardeep Singh Vs State of Punjab & Ors", (2014) 3 SCC 92] held;

"It is at this stage the comparison of the words used under Section 319 Cr. P. C. has to be understood distinctively from the word used under Section 2 (g) defining an inquiry other than the trial by a Magistrate or a Court. Here the legislature has used two words, namely the Magistrate or Court, whereas, under Section 319 Cr. P. C, as indicated above, only the word Court has been recited. This has been done by the legislature to emphasize that the power under Section 319 Cr. P. C. is exercisable only by the Court and not by any Officer not acting as a Court. Thus, a Magistrate not functioning or exercising powers as a Court can make an inquiry in a particular proceeding other than a trial but the material so collected would not be by a Court during the course of an inquiry or a trial. The conclusion, therefore, in short, is, that in order to invoke the power under Section 319 Cr. P. C, it is only a Court of Sessions or a Court of Magistrate performing the duties as a Court under the Cr. P. C. that can utilize the material before it for the purpose of the said Section."

Therefore, from the Para quoted above it can be safely concluded that only the Court is empowered to summon the additional accused under this Section and not any other Magistrate who doesn't act as Court thereof.

Can Session Court Summon An Additional Person To Try Without Committal Proceedings Under Section 319 of Code Of Criminal Procedure, 1973?

As per Section 193 of the Cr. P. C, the Session Court will not take cognizance of any offence originally and all the cases shall be committed to by Magistrate. The procedure of committal is discussed under Section 209 of Cr. P. C. Now a question arises, whether Session Court is competent to summon or to take cognizance of offence of any additional person (under Section 319) who was not made the accused initially as there is an express bar under Section 193 of Cr. P. C for Session Court to take any cognizance.

This issue was answered by the Constitution Bench in the case of ["Dharam Pal Vs State of Haryana", AIR 2013 SC 3018], wherein, it was held that a Court of Session can with the aid of Section 193 Cr. P. C, proceed to array any other person and summon him for being tried even if the provisions of Section 319 Cr. P. C. could not be pressed in service at the stage of committal.

The Court clarified that the opening words of Section 193 Cr. P. C. categorically recite that the power of the Court of Sessions to take cognizance would commence only after committal of the case by a Magistrate. The said provision opens with a non-obstante clause except as otherwise expressly provided by this code or by any other law for the time being in force. The Section, therefore, is clarified by the said opening words which clearly means that if there is any other provision under Cr. P. C, expressly making a provision for exercise of powers by the court to take cognizance, then the same would apply and the provisions of Section 193 Cr. P. C. would not be applicable. Hence, session court is competent to summon or take cognizance of the additional accused even when the case of that particular person was not committed to it.

At What Stage The Power Of Section 319 Cr. P. C Can Be Used?

Two words are used under Section 319 Cr. P. C - enquiry and trial. It says that Court can summon any additional person to try with accused during the course of enquiry and trial. It is clear that the power of Court can't be used during investigation as the Police report has not filed and cognizance or committal is yet to be taken.

As trial commences after the 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. The Court under this Section can summon at any stage either during enquiry or trial. Trial generally starts from framing of charge and lasts upto the Judgment of the case in the form of an acquittal or conviction . The Court under sec 319 can summon any person appears to be guilty even when trial has completed but Judgment is reserved.

Now question arises that whether the Court can summon accused under Section 319 when the Judgment has been pronounced or delivered by Court. This question was raised recently in the case of Sukhpal Singh Khaira vs The State Of Punjab (2019) that can the Court summon any accused under Section 319 Cr. P. C once the Judgment against one accused is pronounced. In the case of Sukhpal Singh (supra), the Judgment against one accused was delivered and another accused was absconding and hence the trial had bifurcated. The Honourable Supreme Court referred this matter to a Larger Bench and now it is sub-judice, but as of now the settled rule is that the stage on which the power of Section 319 Cr. P. C can be used are from inquiry to trial but before the judgment is passed.

Against Whom The Power Of Section 319 Cr. P. C Can Be Used?

The plain language of Section 319 Cr. P. C says that it can be used against any person who is not accused but it appears from evidence that he committed the offence. Such person may or may not be named in the FIR or was named in FIR but his name was dropped in Police report submitted under Section 173 (2) of Cr. P. C the power under Section 319 can be used against them.

In ["Joginder Singh Vs. State of Punjab", AIR 1979 SC 339], a three-Judge Bench of Apex Court held that the argument that any person not being the accused occurring in Section 319 Cr. P. C, excludes from its operation an accused who has been released by the Police under Section 169 Cr. P. C. and has been shown in Column 2 of the charge-sheet needs to be rejected outrightly. The said expression clearly covers any person who has not been tried already by the Court and the very purpose of enacting such a provision like Section 319 (1) Cr. P. C. clearly shows that even persons who have been dropped by the Police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court, are included in the said expression.

Similarly, in ["Anju Chaudhary Vs. State of U.P.", (2013) 6 SCC 384], a two-Judge Bench of Supreme Court held that even in the cases where report under Section 173 (2) Cr. P. C. is filed in the Court and investigation records the name of a person in Column 2, or even does not name the person as an accused at all, the Court in exercise of its powers vested under Section 319 Cr. P. C. can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law.

Again in ["Suman Vs. State of Rajasthan", AIR 2010 SC 518], a two- Judge Bench of Apex Court observed that there is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or Complaint, but against whom charge-sheet is not filed by the Police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence, the Court finds that such person has committed an offence for which he could be tried together with the other accused. However, it is pertinent to note that there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but was not charge-sheeted. So while summoning a person who has been discharged by Court, court needs high degree of evidences against such person to use the power under section 319 Cr. P. C.

As per Hardeep Singh case (Supra) the power under Section 319 Cr. P. C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr. P. C. without taking recourse to provisions of Section 300 (5) read with Section 398 Cr. P. C.

What Should Be Nature Of Evidence To Summon An Additional Person As Accused Under Section 319 Cr. P. C?

It is true that a prima facie case is to be established from the evidence led before the Court and not necessarily tested on the anvil of Cross-Examination, but it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is that the evidences should be more than prima facie establishing the guilt as exercised at the 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.

In ["Sarabjit Singh Vs. State of Punjab", AIR 2009 SC 2792] Court held that, "Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. When a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative."

Hence the nature of evidence to summon any person under Section 319 should be more than prima facie but less than 'Surety of conviction'. Moreover, the evidence on the basis of which additional accused is summoned, should be taken during the trial and not necessarily that witnesses who gave such evidence need to be cross examined. If by examination in Chief, some material evidences surfaced against any person who is not tried, then court is competent under section 319 Cr. P. C to summon such person and to try him jointly.

In the case of ["Periyasami Vs. S. Nallasamy", 2019 SCC OnLine SC 379], Court held that under Section 319 of the Code, additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.

Similarly the Honourable Supreme Court in {Criminal Appeal No. 395 of 2019 (arising out of  SLP (Crl.) No. 4626 of 2017 titled Sunil Kumar Gupta & Ors. Vs State of Utter Pardesh & Ors."} found an occasion to conclude, that before the Court exercises its jurisdiction in terms of Section 319 of Cr. P. C it must arrive at satisfaction that the evidence adduced by the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as the accused in the case. 

Supreme Court Guidelines For Exercising Powers Under Section 319 Cr. P. C:

In the case of ["Sarojben Ashwin Kumar Shah Vs. State of Gujarat", 2011 (74) ACC 951 (SC)(Para 16)], the Hon'ble Supreme Court has drawn following guidelines for exercising the jurisdiction by Courts under Section 319 Cr. P. C:

(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 319 (1) Cr. P. C applies to all Courts including the Sessions Court.

(iii) The phrase "any person not being the accused" occurring in Section 319 Cr. P. C does not exclude from its operation an accused who has been released by the police under Section 169 of the Code of Criminal Procedure, 1973 and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court.

(iv) The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word "evidence" in Section 319 Cr. P. C contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the Court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the addition let in before it.

(v) The power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A more doubt about involvement of the other person on the basis of the evidence let in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that the other person be tried with the already arraigned accused.

(vi) The Court while exercising its power under Section 319 of the Code of Criminal Procedure, 1973 must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

(vii) Regard must also be had by the Court to be constraints imposed in Section 319 (4) Cr. P. C that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial.

(viii) The Court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion."

The author can also be reached at chauhanjmu@gmail.com and dschau08@yahoo.com