hisifybird (retd) 17 October 2011

Can an expert say why appln u/s 319 can't be admitted ?

PCR 2006, Lower Court Order 2006, offence taken in to cognizance, one summoned and 3 left free. That one person also died after obtaining stay and dragging the case in HC. Then CLRP filed in Sessions Court in Nov 2009.

While the sessions process was going on, an application u/s 319 was filed in lower court in Nov 2010, to include a 5th accused. Police Complaint, Police inquiry, His statement, all are over and only his name was left out in the original PCR, by my previous counsel stating he is retired and is settled elsewhere and so not required. No action was being taken despite repeated begging. In Aug 2011, Sessions set aside the Lower court order stating that all are involved and to look at the PCR afresh again.

Now, i was told that the sec 319 appln has lost its value as the old cc is cancelled by sessions. And new appln can be made only after all the formalities of procedures sworn statements, arguments etc.

I want to know, whether it is correct. Is there no avenue to call an accused till then ?

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3 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 17 October 2011

Dear Sifybird

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 trader 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 subsection (1) then-

(a) The proceedings in respect of such person shall be commenced afresh, and 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 trial was commenced.

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hisifybird (retd) 19 October 2011

Nadeem Saheb, Thanks for your kind reply. My question was 1) when the CLRP is in sessions, can't an appln u/319 be taken up by lower court ?, 2) If sessions sets aside that impugned order asks for fresh look, then should the appln u/319 will also be applied again, after all the formalities are over and a new order cc is given ?