Sec 319 CrPC | Degree of Satisfaction For Summoning Additional Accused Much Stronger Than Mere Probability Of His Involvement: J&K&L High Court

Adjudicating upon the matter, Justice Dhar observed that Section 351 of the J&K Cr. P. C, which is somewhat akin to the provisions contained in Section 319 of the Code of Criminal Procedure, 1973, empowers a Court to take cognizance of the offence against a person who is in attendance, if there is evidence before the Court that the person is, prima facie, guilty of the said offence.

A person attending a Criminal Court, although not under arrest, can be detained by the Sessions Court for the purpose of inquiry or trial of any offence of which such court takes cognizance, the bench underscored.

"Even a Magistrate, on taking cognizance of the offence which in his opinion has been committed by a person who is not before him and there is sufficient ground for proceeding against him, is empowered to issue process for summoning of such person under Section 204 of Cr. P. C. Section 190(1)(b) of the Cr. P. C does not restrict power of a Magistrate to proceed against an offender merely because in the police report his name is not sent up as an accused," the bench explained.

Deliberating on the degree of satisfaction required for impleading an additional accused, the bench found it worthwhile to record the observations of Supreme Court in Hardeep Singh v. State of Punjab, (2014) wherein SC observed:

"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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."

Applying the said position of law to the instant case, the bench observed that keeping in view the nature of evidence that had come on record during the trial, the Special Judge was well within his jurisdiction to initiate the process for arraying the petitioner as an accused.

"So, no fault can be found in the satisfaction recorded by the learned Special Judge in this regard," said the court.

On the argument that it was not open to the learned Special Judge to direct the competent authority to accord sanction for prosecution against the petitioner, the court said there can be no quarrel with the proposition that a Special Judge cannot direct the competent authority to grant sanction against a potential accused. However, it added:

"But then in the instant case, the learned Special Judge, by virtue of the impugned order, has not directed the competent authority to grant sanction for prosecution against the petitioner. The learned Special Judge has only directed the Commissioner, Vigilance Organization, to place all the relevant record and the statements of the prosecution witnesses recorded in the case as well Case Diary before the competent authority for considering accord of sanction for prosecution against the petitioner."

After perusing a copy of the government sanction, the court said it did not find anything in its contents "that would even remotely suggest that the competent authority has accorded sanction to prosecute the petitioner under the influence or under the directions of the learned Special Judge." 

The court also said the Special Judge has not directed the investigating agency to undertake further probe but only made it aware about its powers.

"A perusal of the impugned order reveals that the learned Special Judge has carefully worded his order and while noting that investigation in the case is silent on certain aspects, he has left it free to the investigating agency to probe these aspects in terms of Section 173(8) of Cr. P. C," it said.

Dismissing the petition, the court said the said order is well reasoned and lucid.

Case Title : Nazir Ahmad Ganai Vs State of J&K.

Citation : 2022 LiveLaw ( JKL) 182