Object Of Engrafting Section 319 CrPC Is To Not Allow A Person Who Deserves To Be Tried To Go Scot-Free: Allahabad High Court

Explaining the scope and power of the court under Section 319 CrPC, the Allahabad High Court recently observed that this provision allows the court to summon those persons who are not named in the charge sheet to appear and face trial (in certain circumstances).

The Bench of Justice Vikas Budhwar observed that the very object of engrafting section 319 Cr.P.C. is to not allow a person who deserves to be tried to go scot-free. 

It may be noted that under Section 319 CrPC, the Court has been given the power to proceed against other persons appearing to be guilty of offence in the course of any inquiry into, or trial of, an offence.

In other words, Section 319 CrPC gives power to the Trial Court to proceed against a person who has not been named in the charge sheet, if evidence of the involvement of that person emerges during the trial/inquiry.

The High Court in the instant matter underscored that once the Magistrate finds that there is sufficient material available on record before it to summon a person in the trial which is proposed to be undertaken, then the powers u/s 319 Cr.P.C. are to be invoked.

"The stage which is contemplated under section 319 Cr.P.C. 1973 is a stage before the conclusion of the trial and thus, only one conclusion can be drawn that the Magistrate must be prima facie of the opinion that there are sufficient material and cause for summoning the culprit who is either not named in the FIR or if named, he has not been charge-sheeted or discharged," the Court further said.

Essentially, the Bench was dealing with a revision plea filed by one Rameshwar and another challenging an order of the Court of Sessions Judge, Mahoba summoning the accused under section 319 crpc in connection with an offence of culpable homicide not amounting to murder (punishable under Section 304 IPC)

The revisionists submitted that the entire exercise to summon them was illegal, as revisionists have not committed the offence and there was no occasion/prima facie case to issue the summons to face trial.

On the other hand, defending the order of the trial court, the A.G.A argued that from the narration of the allegation contained in the FIR vis-a-vis, the statement of PWs, the name of the revisionists have been pin pointed and further there was sufficient evidence on record to exercise power under Section 319 CrPC.

In its order, the Court noted that while engrafting section 319 Cr.P.C. the words employed were: "in the course of any inquiry into, or trial of, an offence, it appears from the evidence", which shows that the degree of satisfaction has to be accorded by the Magistrate while exercising powers u/s 319 Cr.P.C.

However, the Court noted that the degree of satisfaction defers from case to case and according to the degree of satisfaction, the test to be applied as one should be more than a prima facie case at the stage of framing of charges.

"...it can be very well said that once the Magistrate finds that there was sufficient material available on record before it to summon a person in the trial which is proposed to be undertaken thenthe powers u/s 319 Cr.P.C. are to be invoked."

Now, referring to the facts of the case, the Court noted that in the FIR lodged by the complainant (the brother of the deceased), revisionists were arrayed as accused and more so, in the statement so recorded under Sections 161 and 164 CrPC, names of the revisionists find its presence.

The Court also observed that in the statement of PWs, the name of the revisionists has appeared and thus, the Court added, the Court was within its jurisdiction and powers to have summoned the revisionist.

"So far as the argument so sought to be raised by learned counsel for the revisionists with regard to the fact that they have not committed the offence and the confessional statement of one of the co-accused, who was though not named in the FIR, but against whom, charge sheet was submitted is a matter of defence, which will be available to the revisionists at the time, when the trial gets commence," the Court ordered as it dismissed the revision plea.

Case title - Rameshwar And Another v. State of U.P. and Another [CRIMINAL REVISION No. - 2173 of 2022]

Citation: 2022 LiveLaw (AB) 289

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