Time and again, there have been controversies and debates over Section 319 of the Criminal Procedure Code, 1973 (CrPC) regarding the stages at which it is to be used, the weight of evidences or the category of persons against whom it may be used. Though the controversy involved was settled in the case of Hardeep Singh vs State of Punjab ((2014) 3 SCC 92) to an extent, yet the matter crops up time and again in some courts of the country regarding the interpretation of this section on certain untouched issues. This article focuses on understanding this section in a more clear way.
Section 319 of CrPC and its objective
The section reads as; "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.
(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 trial was commenced."
Section 319 Cr.P.C. 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 Cr.PC. 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 sec 319 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 is multifold. 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 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 and our laws that have led to addition of sections like 319 in criminal procedure code to find out the real truth and to ensure that the guilty does not go unpunished.
Who can use section 319 of Cr.P.C
Court in Hardeep Singh case( Supra) 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 sec 319 of CrPC?
As per section 193 of the CrPC, the session court will not take cognizance of any offence originally and all the cases shall be committed to it by magistrate. The procedure of committal is discussed under section 209 of CrPC. Now a question arises, whether session court is competent to summon or to take cognizance of offence of any additional person (under sec 319) who was not made the accused initially as there is an express bar under section 193 of CrPC for session court to take any cognizance.
This issue was answered by the Constitution Bench in the case of Dharam Pal v 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 clarify 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 CrPC can be used?
Two words are used under Section 319- 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 been 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 sec 319 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 can be used are from inquiry to trial but before the judgment is passed.
Against whom the power of section 319 Crpc can be used?
The plain language of Section 309 says that it can be used against any person who is not accused but it appears from evidence that he has 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 sec 173(2) of Crpc, the power under sec 319 can be used against them.
In Joginder Singh v. 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 v. 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 v. 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 CrPC.
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 CrPC?
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 v. 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 'Surity 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 CrPC to summon such person and to try him jointly.
In the case of Periyasami v. 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 found an occasion in the case of Sunil Kumar Gupta & Ors. V. State of Uttar Pradesh & Ors. to conclude, that before the court exercises its jurisdiction in terms of Section 319 of CrPC 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.
1. When any person is summoned under Section 319 CrPC, then the witnesses shall be reheard, though it would not be a de-novo trial rather a joint trial with the accused being tried initially.
2. It is not necessary that the person summoned under Section 319 CrPC is to be tried for the same offence as that of the accused tried initially. Such person as summoned under Section 319 may be tried for a different offence.
3. The evidences on the basis of which a person is summoned under Section 319 should not be mere evidences collected during investigation rather a person is to be summoned on the basis of evidences when these are recorded in trial (though cross examination is not necessary of such evidences).
4. The word 'evidence' in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation