S.319 CrPC | Only Material Collected By Court During Inquiry Or Trial Can Be Used To Arraign An Additional Accused: J&K&L High Court

A bench of Justice Sanjay Dhar was hearing a plea in terms of which M/s JK Stationers had challenged an order passed by Special Judge whereby it was arraigned as an accused in a charge sheet alleging commission of offences under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and Sections 120-B, 201 and 204 Ranbir Penal Code.

The Counsel for petitioner challenged the impugned order on the ground that the reason for arraying him as an accused is patently absurd. He further contended that the reliance placed by the Special Judge while passing the impugned order on the ratio laid down by the Supreme Court in the case of Hardeep Singh and others vs. State of Punjab, (2014) 3 SCC 92, was misplaced as the Special Judge has exercised his powers under Section 351 of the J&K CrPC at a stage when evidence was yet to be recorded.

Counsel for the petitioner further argued that the Special Judge had no jurisdiction to array the petitioner as an accused on the basis of material collected by the investigating agency.

The moot question before the bench for adjudication was as to at which stage of the proceedings a person, who is not named as an accused in the charge sheet, can be impleaded as an accused by taking resort to the provisions contained in Section 319 of CrPC. Another question which was before the bench to be answered was as regards the nature of the material on the basis of which an additional accused can be impleaded in a charge sheet while exercising powers under Section 319 of CrPC.

Adjudicating upon the matter the bench noted that while the provisions contained in Section 319 of the Code make it clear that the power to array an additional accused can be exercised both during the course of inquiry as well as during the course of trial, Section 351 of the J&K CrPC does not make it clear as to at which stage the power to array an additional accused can be exercised. However, in both these Sections, one thing is common that power to array additional accused has to be exercised on the basis of the evidence, the bench underscored.

Explaining the law as to what constitutes "Evidence" used under section 319 CrPC the bench observed that it is clear that it is only the material collected by the court during the course of inquiry or trial and not the material collected by the investigating agency during the investigation of the case which can be used, while arraigning an additional accused.

"Of course, the evidence would also include the evidence led during the trial of the case after framing of charges. The Supreme Court has, while answering the aforequoted question framed by it, laid down that besides the 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 of the Cr. P. C", Justice Dhar recorded.

Deliberating further on the controversy, the bench observed that a perusal of the trial court record reveals that during the inquiry i.e., after taking of cognizance of the offences and up till the framing of the charges, the Special Judge did not collect any material that could be termed as "evidence" within the meaning of Section 351 of J&K CrPC or Section 319 of Central CrPC. The Special Judge had framed his opinion that the petitioner is also involved in the commission of the alleged offences on the basis of the material collected by the investigating agency during the investigation of the case, which he had considered at the time of taking of cognizance of the offences. The same is impermissible in law, the bench stated.

Accordingly, the bench allowed the petition and the impugned order, to the extent of arraigning the petitioner as an accused, was set aside. The Court clarified that it shall be open to the Special Judge to consider the matter regarding impleadment of additional accused afresh during the trial of the case, if any evidence in this regard comes before it.

Case Title: M/S JK Stationers Vs State of J&K

Citation: 2022 LiveLaw (JKL) 126

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