S.319 CrPC | Additional Accused Can Be Summoned Based On Witness's Statement Without Cross-Examination : Supreme Court

The Supreme Court today (April 1) reaffirmed that a plea to summon an additional accused can rely on pre-trial evidence such as the unrebutted examination-in-chief of the witness without waiting for cross-examination to conclude.

The bench comprising Justices Dipankar Datta and Manmohan heard the case where the trial court,citing prima facie involvement of the proposed accused persons based on the unrebutted testimony (examination-in-chief) of the Appellant-complainant, had allowed the Appellant's application under Section 319 Cr.P.C.

Challenging the trial court's decision, the proposed accused approached the High Court under its revisional jurisdiction. The High Court, without first examining whether the trial court's order suffers from illegality or perversity, had re-evaluated the evidence and in turn, overturned the trial court's decision allowing the Appellant's Section 319 Cr.P.C. application.

Aggrieved by the High Court's decision, the Appellant-complainant appealed to the Supreme Court.

Overturning the High Court's decision, the judgment penned by Justice Datta held that the High Court erred by re-assessing the evidence already examined by the trial court without first establishing whether its order was perverse or illegal—a mandatory requirement for invoking revisional jurisdiction under Section 401 of the Cr.P.C.

Citing the Constitution Bench decision in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 later affirmed in Jitendra Nath Mishra v. State of Uttar Pradesh & Another—the Court reiterated that the standard for invoking Section 319 Cr.P.C. requires more than a prima facie case (as needed for framing charges) but less than full satisfaction that the evidence, if unrebutted, would secure a conviction.

The Court referred to the following principles explained in the Hardeep Singh case.

 What is the stage at which power under Section 319 CrPC can be exercised?

AND

 Whether the word “evidence” used in Section 319(1) CrPC 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?

Answer : In Dharam Pal case [(2014) 3 SCC 306], the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 CrPC and the Sessions Judge need not wait till “evidence” under Section 319 CrPC becomes available for summoning an additional accused.

Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

In view of the above position the word “evidence” in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question (ii)—Whether the word “evidence” used in Section 319(1) CrPC 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?

Answer : Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

Answer : Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused.

Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?

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

Applying the aforesaid law, the Court held that the trial court was right in recording that there was more than a prima facie case based on the unrebutted testimony of the Appellant.

The appellant's version in his chief examination was:

“Neeraj happens to be the sibling of Mukesh (main accused). The initial statement of the appellant referred to the fact that Neeraj had held him facilitating stabbing by Mukesh, who gave a knife blow in the waist followed by another blow near his heart which penetrated up to his lungs. Insofar as Rajesh is concerned, it was alleged that he had threatened the appellant by saying “Chaaku maar ke tassali kar di, agar dobaara zinda gaon me ayega to mai goli se uda dunga”.”

“Having regard to the version of the appellant in course of examination-in-chief, the Sessions Judge formed a satisfaction higher than a prima facie satisfaction of the alleged involvement of Rajesh and Neeraj (proposed accused) and that their complicity in the crime has to be examined and tested on evidence being led at the trial. To ascertain whether the Sessions Judge in allowing the application under Section 319, Cr. PC had acted mechanically or in a manner not authorised by law or in derogation of the law declared in Hardeep Singh (supra), the High Court was well within its competence to adopt an 'eyes on' approach, considering the nature of power conferred on the High Court by the Cr. PC as the revisional court, but regard being had to the facts and circumstances, a 'hands off' approach would have been advisable and the correct approach.”, the court observed.

In terms of the aforesaid, the Court allowed the appeal, and the decision rendered by the trial court was restored.

Case Title: SATBIR SINGH VERSUS RAJESH KUMAR AND OTHERS

Citation : 2025 LiveLaw (SC) 375

Click here to read/download the judgment

Appearance:

For Petitioner(s) :Mr. Neeraj Kumar Jain, Sr. Adv. Mr. Siddharth Jain, AOR Mr. Sanjay Singh, Adv. Mr. Umang Shankar, Adv. Mr. Vidyut Kayarkar, Adv. Mr. Shailendra Negi, Adv.

For Respondent(s) :Mr. Gagan Gupta, Sr. Adv. Mr. Nawab Singh Jaglan, Adv. Mr. Rishi Raj Sharma, AOR Mr. Jasbir, Adv. Ms. Manisha Aggarwal Narain, A.A.G. Mr. Samar Vijay Singh, AOR Mr. Sandeep Singh Somaria, Adv. Mr. Chandan Deep Singh, Adv. Mr. Akash Gupta, Adv. Mr. Akhil Gupta, Adv. Ms. Sabarni Som, Adv. Mr. Fateh Singh, Adv.