Criminal Procedure Code, 1973: Section 319, Power to proceed against other persons appearing to be guilty of offence (Leading Case law: Hardeep Singh v. State of Punjab )

Facts:

On June 24, 2004, Hardeep Singh was ploughing the land. The accused persons went there with deadly weapons and caused injuries to Hardeep Singh as well as other prosecution witnesses. First Information Report (FIR) was lodged against many of the accused for commission of offences punishable under Sections 307, 326, 336 and 427 read with Sections 120B, 148 and 149 of the Indian Penal Code, 1860 (IPC) as also for offences punishable under Sections 25, 27, 54 and 59 of the Arms Act, 1959. Accused were arrested. Vijay Preet Singh (respondent No. 2) was one of them but the father of Vijay Singh interfered in investigation. Hence, he was discharged before framing of the charges. Moreover, Jagtar Singh (respondent No.3) whose name was not mentioned in the FIR, but as per witnesses also involved. The appeal is brought before the constitutional bench of Supreme Court because the division bench came onto differing opinion as to the additions of the respondent 2 and 3 to the case using section 319, CrPC.

Issues:

(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? After taking of cognizance, section 319 can be used. It can be used either the stage of inquiry or trial

(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? statement made in the examination-in-chief is also an evidence

(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? Evidence collected during investigation is not relevant to decide whether person must be added as accused or not. The ‘evidence’ is thus, limited to the evidence recorded during trial.

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted? Satisfaction more than framing of charge

(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

 

Ratio Decidendi:

Q .(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

The stage of inquiry and trial upon cognizance being taken of an offence, has been considered by a large number of decisions of this Court and that it may be useful to extract the same hereunder for proper appreciation of the stage of invoking of the powers under Section 319 Cr.P.C. to understand the meaning that can be attributed to the word ‘inquiry’ and ‘trial’ as used under the Section.

 

The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g) Cr.P.C., which defines an inquiry as follows: ‘inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.

 

Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. In Moly v. State of Kerala, [AIR 2004 SC 1890], this Court observed that though the word ‘trial’ is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry must always be a forerunner to the trial. Trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.’

In Common cause v. Union of India , [AIR 1997 SC 1539], this Court while dealing with the issue held:

(i) In case of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned cases.

ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973, while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the concerned accused under Section 246 of the Code of Criminal Procedure, 1973.

iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make.

 

In view of the above, the law can be summarised to the effect that as ‘trial’ means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the ’trial’ commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.

 

Even the word ‘course’ occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. 

 

To say that powers under Section 319 Cr.P.C. can be exercised only during trial would be reducing the impact of the word ‘inquiry’ by the court. It is a settled principle of law that an

 interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim "A Verbis Legis Non Est Recedendum" which means, "from the words of law, there must be no departure" has to be kept in mind.

 

 The purpose of Section 319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded.

 

Q.(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

The word ‘evidence’ is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or nonexistence of disputed facts.”

 

It is, therefore, clear that 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.

 

After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. 

The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused.

 

Q.(ii) Does the word ‘evidence’ in Section 319 Cr.P.C. means as arising in Examinationin- Chief or also together with Cross- Examination?

Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. Evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.

 

There is no straight-jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-in-Chief, it can exercise the power under Section 319 Cr.P.C. and can proceed against such other person(s).

 

Q. (iv) What is the degree of satisfaction required for invoking the power under Section

319 Cr.P.C.?

Section 319(1) Cr.P.C. empowers the court to proceed against other persons who appear

to be guilty of offence, though not an accused before the court. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. 

106. Thus, we hold that though only a prima facie case is to be established from the evidence

led before the court not necessarily tested on the anvil of Cross-Examination, it requires much

stronger evidence than mere probability of his complicity. 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 Cr.P.C.

.

Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not charge-sheeted or has been discharged?

A person not named in the FIR or a person though named in the FIR but has not been Charge sheet or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.