S. 319 CrPC | Accused Who Was Dropped By Police In Chargesheet Can Be Summoned As Additional Accused By Court : Supreme Court

The Supreme Court observed that the filing of a police closure report would not bar the summoning of an additional accused under Section 319 of Cr.P.C.

The Court observed that if the evidence presented during the trial indicates that a person should be summoned to face trial, the trial court has the discretionary power under Section 319 of the Cr.P.C. to summon them as an additional accused, even if they were not named in the FIR or were exonerated in a police closure report.

The Court clarified that the trial court is not bound by the police investigation or the closure report but must exercise its discretionary power to summon an additional accused based on the evidence presented during the trial.

“On a careful reading of Section 319 of the Cr.P.C. as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial.”, the Court said.

The bench comprising Justices JB Pardiwala and R Mahadevan was hearing the appeal filed against the Madhya Pradesh High Court's decision which refused to interfere with the trial court's decision to issue summons under Section 319 Cr.P.C. to the Appellants as an additional accused.

The petitioners were named in an FIR under Sections 302, 307, 147, 148, and 149 of the Indian Penal Code (IPC) following a murder incident in 2018. Initially, the police exonerated the petitioners by filing a closure report, but during the trial, oral evidence from the prosecution's witness (PW3) implicated the petitioners. Based on this testimony, the trial court summoned the petitioners under Section 319 of the Code of Criminal Procedure (CrPC) to face trial.

The petitioners argued that they couldn't be summoned as an additional accused once a closure was filed against them exonerating them from the alleged offence.

Rejecting their arguments, the court affirmed the impugned decision noting that the closure report or the police investigation does not constitute evidence for the trial court to decide whether an individual shall be summoned as an additional accused or not. It said that when the evidence presented during the trial is found to be worthy of supporting the summoning then the satisfaction of the investigating officer in the form of a closure report does not matter.

Moreover, the Court said that the trial court's discretionary power to summon a person can be exercised at the stage of the trial, provided during the trial some evidence surfaces against the proposed accused.

“Thus, even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in the FIR but not implicated in the chargesheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.”, the court said.

The Court has culled out the following principles of law as regards Section 319 of the CrPC, summarised as under:

“a. On a careful reading of Section 319 of the CrPC as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial.

b. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the chargesheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence.

c. The power of the court under Section 319 of the CrPC is not controlled or governed by naming or not naming of the person concerned in the FIR. Nor the same is dependent upon submission of the chargesheet by the police against the person concerned. As regards the contention that the phrase 'any person not being the accused' occurred in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression.

d. It would not be proper for the trial court to reject the application for addition of new accused by considering records of the Investigating Officer. When the evidence of complainant is found to be worthy of acceptance then the satisfaction of the Investigating Officer hardly matters. If satisfaction of Investigating Officer is to be treated as determinative then the purpose of Section 319 would be frustrated.”

Case Title: OMI @ OMKAR RATHORE & ANR. VERSUS THE STATE OF MADHYA PRADESH & ANR.

Citation: 2025 LiveLaw (SC) 24

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