Section 319 CrPC Power Is To Be Exercised Only If Strong & Cogent Evidence Occurs Against A Person : Supreme Court

The Supreme Court reiterated the though exercise of jurisdiction under Section 319 of the Code of Criminal Procedure is discretionary, it ought to be done only where strong and cogent evidence occurs against a person from the evidence before the Court.

While dismissing an application under Section 319 Cr.P.C. filed by a complainant for summoning of the appellant as an additional accused, a Bench comprising Justice AS Oka and Justice Rajesh Bindal emphasised that the Court should not exercise the extraordinary power under Section 319 Cr.P.C. in a casual and cavalier manner. The Trial Court had dismissed the application, but the Allahabad High Court quashed its order and remanded the matter back for fresh consideration. With respect to the remand order passed by the High Court, the Apex Court opined -

“The High Court only recorded that reasons assigned by the trial court for rejecting the application were not sufficient. To avoid delay, it would have been proper exercise of power in case the High Court would have considered the material and opine as to whether a case was made out for summoning of additional accused.”

Factual Background

A complaint was filed regarding murder of the appellant’s employee. On the basis of the complaint FIRs were registered against unknown persons. Subsequently, the wife of the deceased gave a complaint to the Superintendent of Police, Ghaziabad making allegations against the appellant. During investigation the police found an eye witness to the murder whose statement was recorded under Section 164 of the Code of Criminal Procedure. The police concluded the investigation and filed a chargesheet against two persons. The appellant was examined as a prosecution witness. After his statement was recorded, the complainant filed an application under Section 319 of the Cr.P.C. summoning the appellant as accused. The application came to be dismissed by the Trial Court. The Allahabad High Court quashed the order of the Trial Court and remanded the matter back for fresh consideration.

Analysis by the Supreme Court

The Court noted that the law in respect to exercise of jurisdiction under 319 Cr.P.C. is well settled. It referred to the judgment of the Constitution Bench in Hardeep Singh and Ors. v. State of Punjab And Ors. wherein the Court had observed that the power under Section 319 ought to be exercised sparingly and would require much stronger evidence than near probability of the accused person’s complicity. The test elucidated by the Constitution Bench is as under -

“The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.”

The Court took note of the fact that there was no eye-witness to the occurrence. The one eye-witness whose statement was recorded retracted from his statement while appearing in court. He did not raise any finger at the appellant. It was observed that the material on record was not sufficient for summoning the appellant under Section 319 Cr.P.C. Moreover, the material on record was not even sufficient for convicting the charged accused; they were acquitted by the Trial Court.

Also Read - Section 319 CrPC : 12 Guidelines Issued By Supreme Court's Constitution Bench To Summon Additional Accused During Trial

Section 319 CrPC Power Has To Be Exercised Before Pronouncement Of Sentence In Case Of Conviction : Supreme Court Constitution Bench

Case details

Vikas Rathi v. State of U.P. And Anr.| 2023 LiveLaw (SC) 172 |Criminal Appeal No. 644 of 2023| 1st March, 2023| Justice A.s. Oka and Justice Rajesh Bindal

For Appellant(s) Mr. Sarvam Ritam Khare, AOR Ms. Meena Sehrawat, Adv. Mr. Akash Shukla, Adv.

For Respondent(s) Mr. Sarvesh Singh Baghel, AOR Mr. Raj Singh Rana, AOR Mr. Kamal Kumar Pandey, Adv. Mr. Pankaj Kumar Singh, Adv. Mr. Pawan Kumar Shukla, Adv. Mr. S.C. Tripathi, Adv.

Code of Criminal Procedure 1973- Section 319 - the power under Section 319 ought to be exercised sparingly and would require much stronger evidence than near probability of the accused person’s complicity. The test elucidated by the Constitution Bench is as under -The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction- Followed Hardeep Singh and Ors. Vs. State of Punjab & Ors., (2014) 3 SCC 92 - Para 10 to 12

Click Here To Read/Download Judgment