Provision Of De Novo Trial Is Mandatory For Any Accused Summoned U/S 319 CrPC: Allahabad High Court

The Allahabad High Court has observed that the provision of de novo trial is mandatory for the accused summoned under Section 319 Cr.P.C. 

The Bench of Justice Brij Raj Singh stressed that the accused brought under Section 319(1) Cr.P.C. has to be given a fair trial in view of Section 319 (4) (a) Cr.P.C. 

The facts in brief

One Raju Yadav was allegedly shot by accused persons, namely, Govind Yadav, Suresh Yadav, Bablu Dubey (present applicant) in August 2014, and they were booked under Sections 147, 148, 149, 307, 302, 386, 396, and 504 I.P.C.

The charge sheet was filed against the accused and cognizance was taken. Thereafter, the present applicant was summoned as an accused under Section 319 Cr.P.C. in July 2016 by District and Sessions Judge, Gorakhpur.

In his presence, the examination-in-chief of P.W.-1 was recorded afresh and the applicant was allowed to cross-examine P.W.-1 afresh. Thereafter, the applicant sought to recall the prosecution witness [the Investigating Officer (I.O.) and the Doctor who conducted the post-mortem]. 

The court below rejected the aforesaid applications, solely on the ground that the trial had been concluded and statement under Section 313 Cr.P.C. had been recorded and the case was going on at final stage. Being aggrieved against the said order, the applicant filed the instant Application U/S 482 Cr.P.C.

The Court had also noted that the accused applicant had not disclosed the martial to be put to the PWs, therefore, he wasn't eligible to cross examine the PWs.

Court's observations 

At the outset, the Court noted that the provision under Section 319 (1) Cr.P.C. is an enabling provision by which the trial court has power to summon the accused on the basis of the evidence relating to the commission of offence.

The Court also observed that the accused has been saved in a way that the proceedings under Section 319 (4) (a) Cr.P.C. right from the beginning are mandatory to be commenced afresh and the witnesses are to be reheard, and thus, it is clear that the trial has to be a de novo trial against the accused.

"The provision of de novo trial is mandatory for the accused summoned under Section 319 Cr.P.C. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross examination of such a person rather they have to be examined afresh. The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the 5 6 trial in respect of a person who was before the court below has concluded with the result that the newly added person cannot be tried together with the accused who was before the court below when order under Section 319(1) was passed. The earlier proceeding will become ineffective and inoperative because the accused brought under Section 319(1) Cr.P.C. has to be given fair trial in view of Section 319 (4) (a) Cr.P.C," the Court further observed.

In view of this, observing that since, the trial is de novo in respect of the applicant accused, he cannot be denied the right to cross-examine two witnesses. Further, the Court also concluded that the finding of the court wasn't sustainable in the eyes of law, wherein, it had been observed that the applicant had not disclosed the material for cross-examination.

"The accused has right to confront the witnesses. The question of cross-examination is sanctum sanctorum for accused which will not be opened by him in the application. The accused will put the question on the basis of examination-inchief of P.W.-1 at the time of cross-examination but the court below has taken contrary view," the Court observed as it allowed the plea and set aside the order of the trial court.

Case title - Bablu @ Vishnu Dhar Dubey v. State of U.P. and Another [APPLICATION U/S 482 No. - 3716 of 2022]

Case Citation: 2022 LiveLaw (AB) 210

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