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Power of the court to summon additional accused under section 319 Cr.P.C

8. The constitutional mandate under Articles 20 and 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 society at large to ensure that the guilty does not get away from the clutches of law. - Dr. B. S. Chauhan J.
[Hardeep Singh Vs. State of Punjab and Ors.][1]

In a regular criminal trial a charge is framed after police has completed its investigation and submitted its final report under section 173 (2) of the Cr.P.C A.k.a. Charge Sheet and based on the charge framed on one or multiple accuseds/culprits by the court the trial proceeds accordingly and If the investigating agency erred in involving any of the real culprits as accused in a trial or at latter stage of trial any new person gets exposed as accused through any evidence then court has the power to summon that particular accused under section 319 of the Code of Criminal Procedure to face the trial.

The prosecution or the victim can submit an application under section 319 clause (1) to summon the other person as accused and constitute inquiry or trial against him based on such evidence adduced against him. The application under section 319 can be moved both in cognizable and non cognizable offences.

On application made by the prosecution or the victim U/s 319 of Cr.P.C. clause (1) the Magistrate after being satisfied with the evidence adduced against other person can proceed against such person for the offence which he appears to have committed.

Under Clause (2) of Section 319 Cr.P.C. if such person is not appearing before the court; the court can issue summon or arrest warrant against him/her as required by the circumstances to secure his appearance before the court.

Under Clause (3) of Section 319 Cr.P.C if such person is attending the trial even then the Court can detain him for inquiry or trial of offence which he appears to have committed.
Clause (4) of Section 319 Cr.P.C states as under:
4. Where the Court proceeds against any person under sub- section (1), then:
  1. the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
  2. 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.

Stage at which the application under 319 Cr.P.C. can be moved:
In Hardeep Singh vs. State of Punjab (2014) 3 SCC 92 the Hon'ble Supreme Court held that the power to issue summons under section 319 Cr.P.C. vests with the magistrate at the stage when the trial begins i.e. at the stage when charge sheet u/s 173(2) of Cr.P.C. is filed before the trial court after which the court take cognizance and frame charges.

In Ratilal Bhanji Mithani vs. State of Maharashtra;[2] Raj Kishore Prasad vs. State of Bihar and Anr.[3] and in Common Cause v. Union of India[4]: the Hon'ble Supreme court held that the 'Trial' begins with framing of charges and before that the proceeding are only at inquiry stage.

After going through the judgments of Ratilal Bhanji case (Supra), Raj Kishore Prasad case (Supra) and Common Cause case (Supra) Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab (Supra) held that power under Section 319 CrPC can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.

When person named in FIR gets dropped from the charge-sheet as Accused.
It can happen during the investigation of police when the investigation officer unable to collect prima facie or prudent evidence or witness against one of the several accused than such person's name gets dropped from the charge-sheet at that stage also the remedy which vest with the victim or complainant is to file an Application under section 319 of the Cr.P.C. to initiate trial against such person whose name has been dropped during the police investigation from the charge-sheet.[5]

To begin the trial against a person whose name is not in charge-sheet or against whom the charges are not framed the applicant must adduce with the application strong and cogent evidence against such person to initiate a trial against him.[6]

In Suman v. State of Rajasthan[7] the Hon'ble Supreme Court held that:
17. 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 any offence for which he could be tried together with the other accused.

More than a Prima Facie Case as a requisite to summon additional accused
To summon a person in a trial as an accused under section 319 of Cr.P.C there must be existence of substantial evidence adduced along with the application under section 319 Cr.P.C, the Hon'ble Supreme Court in catena of cases held that the Magistrate should satisfy himself that the evidence before him should be more substantial and cogent then just a prima facie evidence against a person against whom the summon under section 319 of the Cr.P.C has to be issued. Following are the cases in which the Hon'ble Supreme Court has upheld the rule of More than a Prima Facie Case:
Babubhai Bhimabhai Bokhiria v. State of Gujarat [8]
8. Section 319 of the Code 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. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that 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, the degree of satisfaction under Section 319 of the Code is much higher.

Labhuji Amratji Thakor v. State of Gujarat [9]
13. The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that the Court has power under Section 319 CrPC to proceed against any person who is not named in the FIR or in the charge-sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 CrPC.

The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92: (2014) 2 SCC (Cri) 86] has to apply the test i.e. 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.

Even if a person is not named in the charge-sheet or he has been discharged from the case, and there is 'substantive evidence' exist against a person which would warrant his prosecution thereafter with a good chance of his conviction then it would be logical to issue summons to that person under section 319 of the Cr.P.C.[10]

Conclusion
Our criminal justice system has created right balance between the accused and victim or complainant where on the one hand section 319 of Code of Criminal Procedure, 1973 ensures that no guilty person escapes the clutches of law on the other hand it also secures the rights of the person against whom such application is moved by the complainant to add him as an additional accused by issuing summons against him; as before issuing of summons the Hon'ble Supreme Court Hardeep Singh Vs. State of Punjab and Ors., have given directions that the magistrate court should ensure the presence of more than a prima facie evidence against that person.

End-Notes:
  1. (2014) 3 SCC 92
  2. (1979) 2 SCC 179
  3. (1996) 4 SCC 495
  4. (1996) 6 SCC 775
  5. Anju Chaudhary v. State of U.P. (2013) 6 SCC 384
  6. Para 105, Hardeep Singh v. State of Punjab, (2014) 3 SCC 92
  7. (2010) 1 SCC 250
  8. (2014) 5 SCC 568
  9. (2019) 12 SCC 644
  10. Brindaban Das v. State of W.B., (2009) 3 SCC 329
Written By: Kanishk Khullar Advocate

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