Cogent Evidence Required To Summon Any Person Under S.319 Of CrPC: Allahabad HC [Read Judgment]

"This court cannot give finding on the above point as argued by learned counsel for the respondents. It is the subject matter of scrutiny of trial court who has to decide the application under Section 319 Cr.P.C. in accordance with law," it said.

The order was passed by Justice Narendra Kumar Johari while allowing the revision petition filed by one Dwijendra Nath Mishra, against the order of Special Judge, Kanpur, whereby the his application under Section 319 CrPC, for summoning Opposite Party No. 2 to 7 for trial as accused, was rejected.

Section 319 stipulates the power of a court to proceed against persons other than the accused, appearing to be guilty of offence.

In the facts of the case, the Petitioner's daughter was allegedly killed by her in-laws amidst dowry demands. Consequently, a complaint was filed against her husband and his family members.

During the investigation, the IO did not find any role of the family members, being opposite party nos. 2 to 7, and submitted a final report against them. During trial, the Petitioner recorded his examination-in-chief, wherein he mentioned in his evidence about involvements of opposite party nos. 2 to 7 also, and submitted his application under Section 319 CrPC for summoning them to face the trial as accused. This application came to be rejected by the court, leading up to the present revision petition.

Arguments

The Petitioner contended that on receiving closure report of the IO regarding opposite party nos. 2 to 7, it was incumbent on the court to issue notice to the Petitioner for protest if any. Reliance was placed on Rajesh & Ors. v. State of Haryana, 2019 (108) ACC 978, whereby it was held,

"Assuming that non-filing of the charge- sheet/challan against the remaining accused named in the FIR can be said to be a closure report, in that case also, as per the settled proposition of law and more particularly, the decision of this Court in the case of Bhagwant Singh (supra), before accepting the closure report, the Magistrate is bound to issue notice to the complainant/original informant and the complainant/original informant is required to be given an opportunity to submit the protest application and, thereafter, after giving an opportunity to the complainant/original informant, the Magistrate may either accept the closure report or may not accept the closure report and direct to proceed further against those persons for whom the closure report was submitted."

Secondly, he submitted that the examination-in-chief was sufficient evidence to allow his application under Section 319 CrPC. Reliance was placed on Hardeep Singh & Ors. v. State of Punjab & Ors., 2014 (3) SCC 92, whereby the Apex Court held,

"we hold that power under Section 319, CrPC can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence."

Findings

Notwithstanding the argument made by the Respondents that no specific role had been assigned to them, either in F.I.R. or in evidence of examination-in-chief, the court directed the trial court to reconsider the Petitioner's application in accordance with law.

The court remarked that the language used in Section 319 "where, in the course of any inquiry or trial of offence, it appears from the evidence that any person not been the accused has committed any offence…", depicted the intention of lawmakers that there must be some "cogent evidence" on record for summoning any person.

It said that the court had to rely on the evidence lead during examination-in-chief since cross examination was not possible until the parties were summoned.

"According to law laid down by Hon'ble Apex Court, the complainant has moved the application under Section 319 Cr.P.C. to summon the opposite party nos. 2 to 7 for trial as accused on the basis of examination-in-chief recorded by him before the court concerned as P.w. 1, at that time the aforesaid opposite party nos. 2 to 7 were not arrayed as accused and there was no occasion to cross-examine the witness Pw. 1. In other words, they cannot cross-examine witness P.w. 1, prior to put their appearance in court, therefore the examination-in-chief cannot excluded from the wording of "evidence" the term used in Section 319 (1) of Cr.P.C."

Lastly citing a word of caution that the complicity of person, sought to be summoned before the court, had to be assessed carefully, the high court directed,

"Revision is liable to be allowed. Order dated 16.10.2017 passed by the Additional Sessions/Special Judge E.C. Act, Kanpur Nagar in Session Trial No. 569 of 2016, being contrary to law is set aside. The case is remanded back to court concerned to decide the application under Section 319 Cr.P.C. afresh, in accordance with law."

The Petitioner was represented by Advocate Sarvesh and the State by Govt. Advocate Ram Sajiwan Mishra.

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