Section 319 CrPC : Supreme Court Reiterates Procedural Safeguards To Prevent Misuse Of Power To Summon Additional Accused

The Supreme Court has observed that procedural safeguards can be put in place to prevent the frequent misuse of power to summon additional accused under Section 319 Code of Criminal Procedure, 1973.

A Bench comprising Justice Surya Kant and Justice J.K. Maheshwari, while deciding a Criminal Appeal challenging the order of the Punjab and Haryana High Court that had allowed an application seeking to summon an additional accused, jotted down the following procedural safeguards to ensure that the provision is not misused -

1. Summoning of a person at the threshold of the trial may be discouraged;
2. Trial Court must evaluate the evidence against the person sought to be summoned;
3. Trial Court must adjudge whether the material carries some weightage and value as has been testified against those who are facing trial;
4. In absence of any credible evidence, the provision is not to be invoked.

Factual Background

In 2017, an FIR was registered under Section 304B, 498A, 406, 323 and 34 of the Indian Penal Code, 1860 on the statement of Karim (brother of the deceased). He alleged that his sister had hung herself to death after being tortured and harassed by her husband, father-in-law, mother-in-law, sister-in-law and her husband, who were dissatisfied with the dowry provided to them at the time of marriage. As the Investigating agency did not find any incriminating material against the father-in-law, sister-in-law and her husband, Challan was filed only against the husband of the deceased and her mother-in-law. During the course of the trial, Karim filed an application under Section 319 CrPC seeking to summon the other three accused named in the FIR as additional accused. The Trial Court dismissed the application. However, the High Court allowed the appeal filed by Karim and they were summoned to face trial.

Analysis by the Supreme Court

At the outset, it is noted that Section 319 reads as under -

“....Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the Accused has committed any offence for which such person could be tried together with the Accused, the Court may proceed against such person for the offence which he appears to have committed. ... ...”

Referring to a catena of judgments on the scope of Section 319 CrPC, the Court noted that the power under Section 319 CrPC should not be exercised routinely. Existence of more than a prima facie case is an indispensable requirement to summon an additional accused. It observed -

“We may hasten to add that with a view to prevent the frequent misuse of power to summon additional accused under Section 319 Cr.P.C.,...the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material is, more or less, carry the same weightage and value as has been testified against those who are already facing trial. In the absence of any credible evidence, the power under Section 319 Cr.P.C. ought not to be invoked.”

In the present case, the Court noted that the father-in-law was living under the same roof as the husband of the deceased and her mother-in-law and was privacy to all the alleged occurrences of torture and harrasment pertaining to dowry demand. It was of the opinion that the father-in-law might have to sink or swim with his son and wife. However, considering the fact that there was no cogent material to demonstrate that the sister-in-law and her husband continued to reside in the house of the deceased, the Court was not inclined to permit them to face trial as additional accused.

The Court categorically stated that in respect to exercise of power under Section 319 CrPC, the Trial Court must commence with the trial against the father-in-law in terms of the guidelines set out by the Constitution Bench in Sukhpal Singh Khaira v. State of Punjab 2022 LiveLaw (SC) 1009, which includes -

“41.1 If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.

41.2 The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.

41.3 If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.

41.4 If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.

41.5 If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.

41.6 If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.”

Case details

Juhru And Ors. v. Karim And Anr. | Criminal Appeal No. 549 of 2023 | LiveLaw 2023 (SC) 128    | 21st February, 2023 | Justice Surya Kant and Justice J.K. Maheshwari

For Petitioner(s) Mr. S. K. Verma, AOR

For Respondent(s) Mr. Deepkaran Dalal, AOR Mr. Raunaq Dalal, Adv. Mr. Arun Kumar, Adv. Dr. Monika Gusain, AOR

Code of Criminal Procedure - Section 319 - Supreme Court lays down procedural guidelines to prevent abuse- Follows Sukhpal Singh Khaira v. State of Punjab 2022 LiveLaw (SC) 1009 - Paras 16, 17