POWER OF COURT UNDER SECTION 319 OF CR.P.C

By Y.Srinivasa Rao, Prl. Asst. Sessions Judge.
Introduction

I would like to discuss some authoritative pronouncements on the topic of ‘Power to proceed against other persons appearing to be guilty of offence’ under the purview of section 319 of the Code of the Criminal Procedure, 1973. There are catena of rulings on this point. It is difficult to refer to all those rulings, and therefore, only some important rulings are discussed in this article for ready reference to the judicial officers, and aadvocates who deal with criminal cases in subordinate courts. Stage of invoking powers u/s 319 Cr.P.C is explained in Pallavolu Rammohan Reddy Vs. State of A.P., and another – 2008 (1) ALT(CRI.)(A.P) 368. Although the law has been settled as to invoking the jurisdiction of section 319 of Cr.P.C, still there are some gray areas which usually crop in mind while execercising the power under this section. I, therefore, deem it is apt to compile the authoritative pronouncements on this subject which may be useful to the judicial officer who deal criminal cases regularly. For instance, in 2006 itself, it was held that where the investigation shows the non-participation of the persons, sought to be arrayed as accused, they cannot be impleaded as accused, especially after a long time as laid down in State of A.P., rep. By Public Prosecutor High Court of A.P. Hyderabad Vs. Puthur Rami Reddy, and others. – 2006 (2) ALT(CRI.)(A.P) 9. Still we come across of such cases where application under section 319 of Cr.P.C are being filed after at the stage of arguments. I hope this article would be useful to the judicial officers and advocates who practice on criminal side.

 

Ingredients of Sec. 319 must be fulfilled

As was held in Mohd. Shafi Vs Mohd. Rafiq and another – 2007 (3) ALT(CRI.)(SC) 107, before a Trial Court takes recourse to the provision of Section 319, the ingredients of that provision must be fulfilled . The Apex Court held that Court should exercise discretion judicially. Besides that it was held in that ruling that it must arrive at the satisfaction that there exists a possibility of the summoned accused being convicted. Such satisfaction can be arrived at, inter alia, upon completion of cross-examination of the concerned witness.

 

Power u/s 319 can be exercised either on an application made to the Court or by the court suo motu

In Bholu Ram Vs State of Punjab and another – 2009 (1) ALT(CRI.)(SC) 52, the court held that Magistrate was right in dismissing the application filed under section 197 of Cr.P.C by 2nd respondent. In this case, the Apex Court considered section 319 of Cr.P.C and held that the power must be regarded and conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice. It was further held that  power u/s 319 can be exercised either on an application made to the Court or by the court suo motu. In the case of  Girraj and others Vs State of Rajasthan and another – 2008 (3) ALT(CRI.)(NRC) 8, it was held that trial Court has jurisdiction to take cognizance against other persons, but same cannot be taken on the basis of materials available in the chargesheet or the case diary. Same can be taken only on basis of evidence adduced before it during trial of the case . The dicta observed in Lok Ram v. Nihal Singh (2006 Crl.L.J. 2366) was followed in this case.

Applicability of Sec.319 where complaint case and Police case in respect of the same occurrence:-

 

In Jarnail Singh and another Vs State of Haryana and another – 2003 (2) ALT(CRI.)(SC) 52, the applicability of Section 319 Cr.P.C was considered. The accused were summoned by trial court to face prosecution under Secs. 148, 302, 307 r/w 149 IPC. The significant factor of this case is such that  complaint case and Police case in respect of the same occurrence. Petitioners were already accused in police case. But, petitioners were not accused in complaint case. After considering the facts and circumstances of the case, the Apex Court held that Section 319 Cr.P.C. applies. In G. Venkateswara Raju Petitioner Vs. K. Jaiseela and others Respondents – 1996 (2) ALT(CRI.)(A.P) 621, the question of impleading a prosecution witness as an accused in Sessions case is answered.

When is the Magistrate not competent to summon a new offender?

In Raj Kishore Prasad Vs State of Bihar and another – 1996 (2) ALT(CRI.)(SC) 92, the Hon’ble Supreme Court held that in a case triable by Court of Session, Magistrate not competent to summon a new offender. It was held that such power is not vested in the commutting Magistrate. Further, the Apex Court in Raj Kishore Prasad Vs State of Bihar & another – 1996 (2) ALT(CRI.)(D.N.) 3,  it was held that a magistrate acting under Section 209, Cr.P.C. has no power to summon a new offender, in a case triable by Court of Session. Further, as was pointed out in Sajimon Vs Saji – 2000 (2) ALT(CRI.) 139, only sessions Court can summon an accused to face trial under Section 319, Cr.P.C. only after recording evidence during trial. In this case, it was further held that action of the Magistrate has no sanction of law and is undefensible, in the instant case.

In the case of Moti Lal Songara’s (infra), the committal Magistrate found a new person was not shown in chargesheet as an accused, needs to be tried, took cognizance against him for different offences and issued process. On revision, Sessions Judge ‘A’ set aside that order of issuing process holding Magistrate could not have taken cognizance when offence triable by Sessions Court.  By date of that revisional order, such accused along with others sent up for trial before Session Judge ‘B’. Sessions Judge ‘B’ considering the matter in great depth, framed charges against concerned accused . Such framing of charges is quite earlier to order of Sessions Judge ‘A’ setting aside issuance of process. Taking aid of such order of setting aside, Sessions Judge ‘B’ was moved for discharge, unsuccessfully . When  revision is filed, the Hon’ble High Court, though noticed crucial dates and deliberate suppression, still, in as much the very process ordered by Magistrate was set aside, opined framing of charges cannot be sustained  In this case of  Moti Lal Songara Vs Prem Prakash @ Pappu and another – 2013 (6) ALT(D.N.)(SC) 21.2, it was observed that in Dharam Pal ((2004) 13 SCC 9) controversy relating to power of Magistrate u/s. 190 referred to larger Bench and that reference pending. While so, a two Judge Bench in Uma Shankar Singh ((2010) 9 SCC 479) observed, not necessary to wait for outcome of the reference by larger Bench, since reference relates to a situation where Magistrate disagreed with final report of investigating officer and not the one on hand covered by decision in India Carat (P) Ltd., (following line of cases from Abhinandan Jha ((1980) 4 SCC 631). Accordingly order of Magistrate taking cognizance u/s. 190(1)(b) cannot be faulted .

Tendency of people to implicate all the family members cannot be ruled out:-

In Sahab Rajwinder Singh Vs State of Haryana and others – 2011 (3) ALT(CRI.)(NRC) 29, it was held that Tendency of people to implicate all the family members cannot be ruled out. Powers u/s 319 Cr.P.C. are extraordinary in nature and thus must be exercised very sparingly and not as a routine matter. In  Kolishetty Venkateswarlu Vs Bandaru Venkat Reddy and others – 2010 (1) ALT(CRI.) 4, it was held that  where it appears that witnesses have deliberately improved their version to falsely implicate persons, court should be careful and should not exercise powers u/s. 319 Cr.P.C. It was further held that no innocent person should be convicted or put to trial.

 

Whether  Magistrate has no power or jurisdiction to return the chargesheet?

In the case of A.V. Dharma Reddy and another Vs State of A.P. and others – 2010 (3) ALT(CRI.) 83 that Magistrate returned original charge sheet with objections . Another chargesheet was resubmitted. In this case, it was held that Magistrate has no power or jurisdiction either under Cr.P.C., or under Criminal Rules of Practice to return the chargesheet/final report questioning propriety of Investigating Officer of filing the same against one or more accused. Returning a chargeseet or final report by Magistrate arises only when there are any clerical or typographical or arithmetical errors in chargesheet/final report. There can be no return of chargesheet on judicial objections. Judicial objection is a matter for decision by Magistrate. It cannot be a matter for return of chargesheet.          

 

Mere ipse dixit would not serve the purpose:-

 Interpretation and/or application of provisions of Section 319 Cr.P.C. was considered in Sarabjit Singh and another Vs State of Punjab and another – 2009 (3) ALT(CRI.)(SC) 61. The facts of this case are that appeal against judgment of High Court dismissing revision petition filed by appellants from an order allowing an application u/s 319 Cr.P.C. was allowed and appellants summoned to face trial for offences u/s 148/302 r/w Section 149 IPC. In this case, it was held that

before an additional accused can be summoned for standing trial, nature of evidence should be such that would make out grounds for exercise of extraordinary power . Materials brought before court must be such which should satisfy court that it is one of those cases where its jurisdiction should be exercised sparingly. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for purpose of exercise of extraordinary jurisdiction.

What tests are required to be applied under section 319 Cr.P.C:-

A higher standard be set up for purpose of invoking jurisdiction u/s 319 Cr.P.C . Whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned is one of the important aspect while considering the application filed under section 319 of the Code. Whereas test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, court must be satisfied that there exists a strong suspicion. It was held in Sarabjit Singh and another Vs State of Punjab and another – 2009 (3) ALT(CRI.)(SC) 61  that unless a higher standard for purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz.,

 (i) an extraordinary case and

(ii) a case for sparingly exercise of jurisdiction, would not be satisfied.

 

Power of the court to summon additional accused not controlled by Investigating Agency

Section 319 – In a Case under Section 302 IPC , FIR was registered  against 10 persons . Chargesheet was filed against one accused only. Trial court ordered to summon 9 others (Petitioners) as additional accused . In such a case, in the case of Ram Babu and others Vs State of U.P. – 2002 (2) ALT(CRI.)(NRC) 3,  it was held that power of the court to summon additional accused not controlled by Investigating Agency and that no infirmity in the order of the lower court. In Samaj Parivartan Samudaya and others Vs State of Karnataka and others – 2012 (6) ALT(D.N.)(SC) 39.2 ( F.B. ), it was held that where investigating agency submitted charge-sheet, but failed to bring all culprits to book, Court empowered u/s 319 to proceed against such omitted culprits also.

Whether the Court to wait until the entire evidence is collected for exercising the said powers under sec. 319:- In Ranjit Singh Vs State of Punjab – 1998 (5) ALT(D.N.)(SC) 23.4 ( F.B. ), it was observed that from the stage of committal till the Sessions Court reaches the stage in Sec.230 i.e., collection of evidence it can deal with only the accused referred to in Sec.209 Cr.P.C. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused . It was explained that once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person in the array of the accused is after reaching evidence collection whem powers under Sec.319 can be invoked . In this case, it was clearly held that tt is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers.

There is no question of cross-examination of the witness prior to adding such person as accused:-

The Hon’ble Apexc Court considered the scope of Section 319 Cr.P.C in the case of Rakesh and another Vs State of Haryana – 2001 (5) ALT(D.N.)(SC) 4.4 and held that section 319 Cr.P.C. does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examination of the witness who has deposed against him and thereafter deciding whether or not such person is to be added as accused. The Supreme Court interpreted the word ‘evidence’ in section 319 of Cr.P.C and held that word ‘evidence’ occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the Investigating Officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime. It was further held that there cannot be a dispute that the power under Section 319 is to be sparingly used, but that does not mean that when a prosecutrix names three persons, as in the instant case, who were involved in the serious crime are not to be added as accused by exercise of such power. See also.  Gangadharanandagiri Swamiji Vs State of A.P. and others – 2002 (2) ALT(CRI.) 136 .

The words ‘could be tried together with the accused’ in Section 319(1) Cr.P.C – Interpretation.

The Apex Court interpreted section 319 of Cr.P.C in Shashikant Singh Vs Tarkeshwar Singh and another, 2002 (3) ALT(D.N.)(SC) 11.1 where in it was held that  the words ‘could be tried together with the accused’ in Section 319(1) Cr.P.C. appear to be only directory. ‘Could be’ cannot under the circumstances be held to be ‘must be’.  The mandate of the law of fresh trial is mandatory whereas the mandate that newly added accused could be tried together the accused directory. Further, the Court held that on the Magistrate committing the case under Section 209 to the Court of Session, the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered original jurisdiction to take cognizance of the offence which could include summoning of the person whose complicity in the commission of crime can prima facie be gathered from the material on record (See Kishun Singh and others v. State of Bihar (1993) 2 SCC 16).

Whether Sections 190 or  319 of Cr.P.C to be applied

 

 It was held in M/s. SWIL Ltd. Vs State of Delhi and another – 2002 (6) ALT(D.N.)(SC) 55.1 that  at the stage of taking cognizance of offence. Provision of Section 190 would be applicable. Section 190 inter alia provides that ‘the Magistrate may take cognizance of any offence’. Upon a police report of such facts which constitute an offence upon receipt of police report u/s 173 (2) the Magistrate is entitled to take cognizance of an offence u/s 190 (1)(b) even if the police report was to the effect that no case was made out against accused by ignoring the conclusion arrived at by the Investigating Officer and independently applying his mind to the facts merging from the investigation by taking into account the statement of witnesses examined by police. There is no question of referring to provisions of Section 319 Cr.P.C. that provision would come into operation in the course of any enquiry into or trial of an offence. In the case the Magistrate was exercising his jurisdiction u/s 190 of taking cognizance of an offence and issuing process. There is no bar u/s 190 that once process is issued against some accused, on the next date, Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet.

Stage at which Sessions Court as a trial court can take cognizance of offence against non-accused persons named in FIR :-

 

Earlier three Judge Bench in Ranjit Singh ((1998) 7 SCC 149)) disapproved the decision in Kishun Singh ((2004) 13 SCC 11). Three Judge Bench, in instant matter, since disagreed with decision in Ranjit Singh, matter disposed of presently by Five Judge Bench in Dharam Pal and others Vs State of Haryana and another – 2013 (3) ALT(CRI.)(SC) 403 ( L.B. ). Now, it was held that view in Kishun Singh more acceptable. Magistrate has ample powers to disagree with Final Report u/s. 173(3) and proceed against accused, dehors police report. Such power Sessions Court does not have till Section 319 stage is reached . On receipt of Final Report u/s. 173(3), Magistrate in the event of disagreeing with Police Report, has two choices, viz.,

(i) may act on protest petition or

(ii) may issue process and summon accused.

It was further held that on being satisfied that a case made out against persons named in Column-2 of Report, may proceed to try them or if it is one triable by Sessions Court may commit the case to Sessions. Where the Magistrate disagreeing with Police Report, decided to proceed against accused persons, would have to proceed on the basis of Police Report itself. He may inquire into the matter or commit to Sessions, if triable by Sessions Court. It was further held that Sessions Judge entitled to issue summons u/s. 193 upon committal by Magistrate. Under Section 193 Sessions Court takes cognizance of the offence, but not committal order.

It was also pointed out that no question of Magistrate taking cognizance of offence, which is triable by Sessions Court. Provisions of Section 209 be understood entailing passive role to Magistrate in committing the case to Sessions. Equally no question of taking past-cognizance by Magistrate and Sessions Court. Accordingly, Sessions Court has Jurisdiction, on committal of a case to it, to take cognizance of the offences against non-accused persons, whose complicity evident from material on record, It was further held that therefore, even before recording evidence, upon committal u/s. 209, Sessions Judge may summon u/s. 193 those persons in Column No.2 of Police Report to stand trial along with already named accused. Sessions Court need not, in above circumstances, wait till the stage u/s. 319 reached.

 

Whether there is any bar to take cognizance after lapse of the period of limitation:

In this case of Chandamal Tak Vs State of Rajasthan and another – 2008 (2) ALT(CRI.)(NRC) 25, it was observed that  court already taken cognizance within the limitation. Subsequently some other persons are summoned to stand trial as accused. It was held that  no bar of limitation shall arise by such inclusion. Provisions of Section 468 Cr.P.C. not attracted in view of Section 319(4)(b) Cr.P.C. Newly added accused also be deemed to be the accused against whom cognizance had been taken at the initial stage .

No notice to such persons was given nor heard.

In the instant case, at the stage of arguments prosecution filed petition that three persons are to be added as accused . No notice to such persons was given nor heard. But the learned Special Judge passed order on prosecutors petition . The court held that since no notice was issued and since the new persons were not heard, order unsustainable. See. M.V. Arunachalam and another Vs R. Palaniappan – 1997 (1) ALT(CRI.) 444 

Sec. 319 Cr.P.C does not contemplate issuance of notice :

In Ponnuru Shyamala Reddy and others Petitioners Vs State of A.P. Rep. P.P. and another Respondents. – 1998 (1) ALT(CRI.) 321 it was held that Section 319 of Cr.P.C does not contemplate issuance of notice before ordering summons to the said person who appears to have committed the offence. What was held in this case that the  primary consideration is the satisfaction of the Court. After appearrance, said person can show that there is no material on record to proceed against him.

Whether the court is competent to take cognizance of any fresh offence when the additional accused is sought to be impleaded:-

In Gangadharanandagiri Swamiji Vs State of A.P. and others – 2002 (2) ALT(CRI.) 136,  it was held that Expression used, inter alia in the section 319 Cr.P.C  is “any offence which such court can take cognizance and which, from the evidence may appear to have been committed”. If the newly added person appears to have committed, different offence then the court shall see whether the accused and the newly added person could be tried jointly for that offence or not . Circumstances under which two persons could be tried together considered. Reference to Chapter XVII of the Code dealing with charges are discussed in this ruling.

Conclusion:-

Apart from the pronouncements referred to above, it is profit worth to refer the ruling in Rajendra Singh Vs State of U.P. and another – 2007 (3) ALT(CRI.)(SC) 314 wherein the Supreme Court discussed the scope and ambit of section 319  of Cr.P.C.  As was pointed out in Brindaban Das and others Vs State of West Bengal – 2009 (1) ALT(CRI.)(SC) 267, under Section 319 Cr.P.C., court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. It is important to note that as was held in Shashikant Singh Vs Tarkeshwar Singh and another – 2002 (2) ALT(CRI.)(SC) 24,  mandate that the newly added accused could be tried together with accused directory. Even if investigating authority is of view that no case made out against an accused, Magistrate can apply mind independently to material contained in police report and take cognizance thereupon as was observed in Dhrup Singh and others Vs State of Bihar – 2013 (2) ALT(CRI.)(SC) 33. It is also profit worth to go through the authoritative pronouncement in Y. Saraba Reddy Vs Puthur Rami Reddy and another – 2008 (1) ALT(CRI.)(SC) 361 ( F.B. ) wherein Jurisdiction and power trial court under section 319 of Cr.P.C is succinctly explained. The yardstick for exercising that power under section 319 of Cr.P.C infavour of prosecution or complainant is that the evidence adduced on behalf of prosecution till then, if un-rebutted, would lead to conviction of persons sought to be added as accused in that case as observed in Mr.Vijay Agarwal and another Vs State of A.P., rep. by PP, High Court of A.P., and another – 2010 (3) ALT(CRI.) 295 and Khet Singh Vs State of Rajasthan – 2003 (2) ALT(CRI.)(NRC) 14. For the point that no chance of conviction of petitioner, see the ruling reported in  Nilamadhab Acharya Vs State of Orissa – 2002 (1) ALT(CRI.)(NRC) 7.  Impleading of a prosecution witness (P.W.6) as an accused in Sessions case was considered in the case of G. Venkateswara Raju Petitioner Vs K. Jaiseela and others Respondents – 1996 (2) ALT(CRI.) 621. Once the case is before the Sessions Court, it is the Sessions Court alone that can add any body as an accused under Section 319, Cr.P.C. but Magistrate has no jurisdiction to take cognizance on the latter charge-sheet as laid down in K.S. Puttaswamy Petitioner Vs State of Karnataka Respondent – 1997 (2) ALT(CRI.) 647. Magistrate at the stage of Section 209 Cr.P.C. forbidden to go into the merits of the case and determine whether any accused need be added to face trial (See 1996 SCC (Cr1.) 772 = 2000 (4) Crimes 158 (SC)).

I may conclude this article with an observation that powers under section 319 of Cr.P,.C is to be invoked not as a matter of course but where the invocation of such power is imperative to meet the ends of justice. As was held in Vommi Chakram Vs. State of A.P. – 2005 (3) ALT(CRI.)(A.P) 308, where there is no prima fade material against a person he cannot be impleaded as as accused.

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