Exercise Of Power U/S 319 CrPC: "Primacy To Be Given To Evidence Recorded During Trial Over Material Collected During Investigation": Allahabad HC

Observing thus, the Bench of Justice Yogendra Kumar Srivastava said:

"The contention which has been sought to be raised placing reliance upon the material collected by the investigating officer during the course of investigation, for the purpose of exercise of powers under Section 319 of the Code, thus cannot be accepted."

About Section 319 CrPC

It may be noted that Section 319 of the Code of Criminal Procedure Code deals with the Power (of the court) to proceed against other persons appearing to be guilty of offence though not named in the FIR or charge sheet.

Section 319 (1) of the Code envisages that 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.

The facts in brief

An FIR under Section 489­B of the Penal Code had been registered against two accused (including the applicant before the Court)

As per the prosecution's case, the accused no.1 submitted certain currency notes at the cash counter of the Bank which upon being checked by the cashier were found to be counterfeit and upon an inquiry from him, he stated in writing that the currency notes had been handed over to him by the accused no.2 (applicant before the Court).

Upon investigation, a charge sheet was submitted against the accused no.1 only (applicant's name wasn't there in the charge sheet), whereupon cognizance was taken.

During the course of the trial, the first informant (Bank Manager) and the cashier of the Bank, examined themselves and said the accused no.1 was questioned and he stated that he said counterfeit currency notes had been handed over to him by the accused no.2.

Noting that the name of the accused (applicant before the Court) had been taken by two witnesses, the Court allowed an application moved by the prosecution under 319 CrPC and the applicant herein had been summoned for trial.

Primary submission of the applicant (accused number 2)

The counsel for the applicant assailed the summoning order under Section 319 of the Code by contending that since the Investigating Officer did not find sufficient material against the applicant and no charge sheet was submitted against him, there was no further material on the basis of which the trial court could have summoned the applicant.

Court's observations

Referring to the Apex Court's ruling in the case of Hardeep Singh and others vs. State of Punjab (2014) 3 SCC 92, the Court noted that a person whose name does not appear even in the FIR or in the charge­sheet or whose name appears in the FIR and not in the charge­sheet, can still be summoned by the court (under Section 319 CrPC) provided the conditions under the section stand fulfilled.

Importantly, the Court noted that the word evidence used under Section 319 (1) of the Code has been held to be understood to refer to the evidence recorded during the trial, and also any material that has been received by the court after cognizance is taken and before the trial commences, to be utilized for corroboration and to support the evidence recorded by the court.

In this backdrop, adverting to the facts of the case, the Court observed thus:

"…the evidence before the trial judge being indicative of the complicity of the applicant, though not arraigned as an accused in the charge­sheet, it was open to the trial court to form a view that the applicant be tried together with the accused, and for the said purpose summon the applicant in exercise of powers under Section 319 of the Code."

Case title - Adesh Tyagi v.­ State of U.P. and Another

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