The ambit and scope of the
powers of the Magistrate under Section 319 of the Code were considered
in Hardeep Singh and others vs.
State of Punjab
Object of 319 CrPC:- Referring to the object of the provision it
was held that the object of the provision is that the real culprit should not
get away unpunished and in a situation 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 constitutional mandate under Articles 20 and 21 of the
Constitution of India, 1950 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 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 CrPC indicating as to 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 and our
laws that have led to several decisions, whereby innovating methods and
progressive tools have been forged to find out the real truth and to ensure
that the guilty does not go unpunished.
The presumption of innocence is the general law of the land as
every man is presumed to be innocent unless proven to be guilty. Alternatively,
certain statutory presumptions in relation to certain class of offences have
been raised against the accused whereby the presumption of guilt prevails till
the accused discharges his burden upon an onus being cast upon him under the
law to prove himself to be innocent. These competing theories have been kept in
mind by the legislature. The entire effort, therefore, is not to allow the real
perpetrator of an offence to get away unpunished.
This is also a part of fair trial and in our opinion, in order to
achieve this very end that the legislature thought of incorporating provisions
of Section 319 Code of Criminal Procedure. It is with the said object in mind
that a constructive and purposive interpretation should be adopted that
advances the cause of justice and does not dilute the intention of the statute
conferring powers on the court to carry out the abovementioned avowed object
and purpose to try the person to the satisfaction of the court as an accomplice
in the commission of the offence that is the subject matter of trial.
Section 319 Code of Criminal Procedure springs out of the doctrine
judex damnatur cum nocens
absolvitur (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 CrPC.
It is the duty of the court to do justice by punishing the real
culprit. 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.
Under what circumstances & at what stage court
exercise its power U/S 319 CrPC.
1.
Section 319 CrPC allows the court to proceed against any person
who is not an accused in a case before it.
2.
He can either be a person named in Column 2 of the chargesheet
filed under Section 173 Code of Criminal Procedure or a person whose name has
been disclosed in any material before the court that is to be considered for
the purpose of trying the offence, but not investigated. He has to be a person
whose complicity may be indicated and connected with the commission of the
offence.
3.
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 possibility of his complicity which can be gathered from the
documents presented by the prosecution.
4.
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."
5.
As regards the degree of satisfaction required for invoking the
powers under Section 319 of the Code, it was held that 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.
6.
Power under Section 319 Code of Criminal Procedure is a
discretionary 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 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.
7.
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 Code of Criminal Procedure.
In Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure to form any opinion
as to the guilt of the accused.
8.
The question as to in what situations the power under the section
can be exercised in respect of persons not named in the FIR or named in the
FIR, but not charge-sheeted or discharged was also considered, and it was held
that a person whose name does not appear even in the FIR or in the charge-sheet
or whose name appears in the FIR and not in the charge-sheet, can still be
summoned by the court provided the conditions under the section stand fulfilled.
9.
"111. Even the Constitution Bench in Dharam Pal (CB) has held
that the Sessions Court can also exercise its original jurisdiction and summon
a person as an accused in case his name appears in Column 2 of the chargesheet,
once the case had been committed to it. It means that a person whose name does
not appear even in the FIR or in the chargesheet or whose name appears in the
FIR and not in the main part of the chargesheet but in Column 2 and has not
been summoned as an accused in exercise of the powers under Section 193 Code of
Criminal Procedure can still be summoned by the court, provided the court is
satisfied that the conditions provided in the said statutory provisions stand
fulfilled.
10.
A person not named in the FIR or a person though named in the FIR
but has not been chargesheeted or a person who has been discharged can be
summoned under Section 319 Code of Criminal Procedure provided from the
evidence it appears that such person can be tried along with the accused
already facing trial. However, in so far as an accused who has been discharged
is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure
has to be complied with before he can be summoned afresh. "
11.
The
word 'evidence' as used under Section 319(1) of the Code was also considered
and it was held as follows :-"84. The word "evidence" therefore
has to be understood in its wider sense both at the stage of trial and, as
discussed earlier, even at the stage of inquiry, as used under Section 319 Code
of Criminal Procedure. The court, therefore, should be understood to have the
power to proceed against any person after summoning him on the basis of any
such material as brought forth before it. The duty and obligation of the court
becomes more onerous to invoke such powers cautiously on such material after
evidence has been led during trial. In view of the discussion made and the
conclusion drawn hereinabove, the answer to the aforesaid question posed is
that apart from evidence recorded during trial, any material that has been
received by the court after cognizance is taken and before the trial commences,
can be utilised only for corroboration and to support the evidence recorded by
the court to invoke the power under Section 319 Code of Criminal Procedure. The
"evidence" is thus, limited to the evidence recorded during trial. "
12.
The principles with regard to exercise of power by the court to
summon an accused under Section 319 of the Code were reiterated in S. Mohammed
Ispahani Vs. Yogendra Chandak and others4, and it was held that the power under
Section 319 to summon even those persons who are not named in the charge-sheet
to appear and face trial, is unquestionable. It was observed thus:-
"28.Insofar as power of the Court Under
Section 319 of the Code of Criminal Procedure, to summon even those persons who
are not named in the charge sheet to appear and face trial is concerned, the
same is unquestionable. Section 319 of the Code of Criminal Procedure, is meant
to rope in even those persons who were not implicated when the charge sheet was
filed but during the trial the Court finds that sufficient evidence has come on
record to summon them and face the trial. In Hardeep Singh's case, the
Constitution Bench of this Court has settled the law in this behalf with
authoritative pronouncement, thereby removing the cobweb which had been created
while interpreting this provision earlier. As far as object behind Section 319
of the Code of Criminal Procedure, is concerned, the Court had highlighted the
same as under:
13.
The principles with regard to exercise of power by the court to
summon an accused under Section 319 of the Code were reiterated in S. Mohammed
Ispahani Vs. Yogendra Chandak and others4, and it was held that the power under
Section 319 to summon even those persons who are not named in the charge-sheet
to appear and face trial, is unquestionable. It was observed thus:-
"28.Insofar as power of the Court Under
Section 319 of the Code of Criminal Procedure, to summon even those persons who
are not named in the charge sheet to appear and face trial is concerned, the
same is unquestionable. Section 319 of the Code of Criminal Procedure, is meant
to rope in even those persons who were not implicated when the charge sheet was
filed but during the trial the Court finds that sufficient evidence has come on
record to summon them and face the trial. In Hardeep Singh's case, the
Constitution Bench of this Court has settled the law in this behalf with
authoritative pronouncement, thereby removing the cobweb which had been created
while interpreting this provision earlier. As far as object behind Section 319
of the Code of Criminal Procedure, is concerned, the Court had highlighted the
same as under:
14.
The power to proceed against persons named in FIR with specific
allegations against them, but not charge-sheeted, was reiterated in Rajesh and
others Vs. State of Haryana,5 and it was held that persons named in the FIR but
not implicated in charge-sheet can be summoned to face trial, provided during
the trial some evidence surfaces against the proposed accused.
15.
The exercise of powers under Section 319 of the Code for
summoning an additional accused again came up for consideration in Saeeda
Khatoon Arshi Vs. State of Uttar Pradesh and another6 and it was held that 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 inspite of the
possibility of his complicity which can be gathered from the documents
presented by the prosecution.
16.
The test which has been laid down
with regard to the degree of satisfaction required for invoking the powers under
Section 319 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.
17.
The word evidence used under Section 319 (1) of the Code has been
held to be understood to refer to the evidence recorded during trial, and also
any material that has been received by the court after cognizance is taken and
before the trial commences, to be utilized for corroboration and to support the
evidence recorded by the court.
(Dr.Y.K.Srivastava,J.)
1.
Power of Trial Court 319 CrPC
2.
At what Stage – inquiry & Trial
3.
Ground of summoning – Evidence
4.
Proceeding Qua summoned accused – Fresh
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