UNDER WHAT CIRCUMSTANCES A PERSON CAN BE ADDED AS ACCUSED IN PENDING TRIAL RELAVANT CASE LAW REGARDING
In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, Court held : once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence 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 proceeding initiated by his taking cognizance of an offence.
In Raj Kishore Prasad v. State of Bihar & Anr., AIR 1996 SC 1931, wherein Court while observing that Section 319 (1) Cr.P.C. operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of Section 209 Cr.P.C., the court is neither at the stage of inquiry nor at the stage of trial. Even at the stage of ensuring compliance of Sections 207 and 208 Cr.P.C., it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the Magistrate is required to do is to make the case ready to be heard by the Court of Sessions.
In Lok Ram v. Nihal Singh & Anr., AIR 2006 SC 1892, it was held that it is evident that a person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added as an accused to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge- sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence.
In Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr., AIR 2008 SC 95, Court held that in exercise of the powers under Section 319 Cr.P.C., the court can add a new accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary.
In Lal Suraj @ Suraj Singh & Anr. v. State of Jharkhand, (2009) 2 SCC 696, a two-Judge Bench of Court held that “Court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 Cr.P.C., the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.”
Court in Rajendra Singh v. State of U.P. & Anr., AIR 2007 SC 2786, observing that court should not exercise the power under Section 319 Cr.P.C. on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence.
Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
Rajender Singh vs. State of U.P. [2007 (7) SCC 378] where it was reiterated that although a person may not have been charge-sheeted by the Investigating Agency or may have been discharged at an earlier stage, the Court could summon such person to face trial if it appeared to the Court that an offence had been committed by such person. It was held that while the decision to proceed or not to proceed against a person under Section 319 of the Code was in the discretion of the Trial Court, the said decision would have to be taken after the Court applied its mind to the evidence before it.
In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC 1248, a two-Judge Bench of Court “The court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.”
In Palanisamy Gounder & Anr. v. State, represented by Inspector of Police, (2005) 12 SCC 327, Court deprecated the practice of invoking the power under Section 319 Cr.P.C. just to conduct a fishing inquiry, as in that case, the trial court exercised that power just to find out the real truth, though there was no valid ground to proceed against the person summoned by the court.
In Anju Chaudhary v. State of U.P. & Anr., (2013) 6 SCC 384, a two-Judge Bench of 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.
In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., AIR 1983 SC 67, Court held that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them under Section 319 Cr.P.C. and try them along with the other accused.
Y. Saraba Reddy v. Puthur Rami Reddy (2007) 4 SCC 773, “11. … Undisputedly, it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word ‘evidence’ in Section 319 contemplates the evidence of witnesses given in court.”
Apex Court in Mohd. Shafi (2007) 14 SCC 544 was further explained by the Apex Court in Lal Suraj v. State of Jharkhand (2009 ) 2 SCC 696 and it was held as under : (SCC p. 701, para 16) “16. … The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.”
There is no legal bar based on the principle of issue estoppel to proceed under Section 319 against a person complained against if on the same material the court had dismissed a complaint under Section 203, Cr.P.C. (S.S. Khanna v. Chief Secretary (1983) 3 SCC 42 : AIR 1983 SC 595)
The scope of this section is wide enough to include cases instituted on private complaint; Sohan Lal v. State of Rajasthan (1990) 4 SCC 580 : AIR 1990 SC 2158.
In the case of Lal Suraj Alias Suraj Singh And Another Vs. State of Jharkhand, [(2009) 2 SCC 696], the Hon’ble Apex Court has observed about nature, scope and applicability of Section 319 Cr.P.C. and trial of persons not already arraigned as accused and held that power under Section 319 Cr.P.C. is required to be exercised very sparingly. Before order summoning such persons is passed, trial court must form an opinion on the basis of evidence brought before it that a case has been made out that such person could be tried together with the other accused. If on the basis of evidence produced before the trial court there was possibility of recording a judgment of conviction against the accused, the order can be passed under Section 319 Cr.P.C.
PRINCIPLES UNDER WHAT CIRCUMSTANCES POWER UNDER SECTION 319 CRPC BE USED - RAJASTHAN HIGH COURT 2013
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN of Rajasthan High Court in the case of Rekha Sharma vs State Of Rajasthan Decided on 3 May, 2013 - The following broad principles as to under what circumstances power under Section 319 Cr.P.C. should be exercised can be safely summed up from the opinion expressed by Hon’ble Apex Court in various judgments:
i) Power to summon an accused is discretionary and extra-ordinary power, which should be exercised sparingly and only if compelling reasons exist at any stage of case.
ii) The order passed under Section 319 of the Code of Criminal Procedure summoning an additional accused should not be a mechanical exercise. Court should record reasonable satisfaction and reasons in support of the order.
iii) Power cannot be exercised to conduct a fishing enquiry;
iv)There should be reasonable prospects of the case against the newly added accused ending in their conviction.
v) Step to summon an accused can be taken only on the basis of evidence adduced before the Court and not on the basis of materials available in the charge-sheet of the case-diary as such material does not constitute evidence,
vi) Power can be exercised suo moto or on an application by some one including accused already before the Court,
vii) An accused is not entitled to be heard before the Court exercises power under Section 319 of the Code of Criminal Procedure;
viii) Satisfaction of the Court is paramount before summoning an accused, which can be arrived at inter-alia upon completion of cross-examination of the witness,
ix) Mere statement of the complainant without there being any other evidence on record may not be sufficient to summon the accused. Each case on this aspect needs cautious examination on facts before passing order of summoning of additional accused,
x) Each case has to be considered on its own facts as there may be different stages of the case where the Court can reach to a conclusion that a prima facie case is made out against the accused sought to be summoned.