Sec 319 CrPC | Degree of Satisfaction For Summoning Additional Accused Much Stronger Than Mere Probability Of His Involvement: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently reiterated that for arraigning an additional accused during the trial, there has to be much stronger evidence against him than mere probability of his involvement in the crime.The observations were made by Justice Sanjay Dhar in the judgement on a plea challenging the order passed by Additional Special Judge, Anticorruption, Kashmir, Srinagar, whereby the Special Judge, after completion of the examination of prosecution witnesses, in 2012 had directed the Vigilance Organisation to place the record before the competent authority for considering accord of sanction for prosecution against the petitioner - who was a witness in the case, in terms of Section 6 of the J&K Prevention of Corruption Act.The CaseThe case was registered in 1991 against Dr. Gh. Hassan Khan, the then Block Medical Officer, Bandipora, under Section 5(2) of J&K Prevention of Corruption Act for alleged misappropriation of Rs 30,000 in 1990. Subsequently, a chargesheet was filed against him alleging that the amount has been fraudulently and dishonestly misappropriated by the officer and the officials connected with its drawl and that there were also mutilations or tampering in the drawl register and cash book pertaining to the amount.The petitioner, Nazir Ahmad Ganai, who was a cashier in the health department at the relevant time, was cited as a prosecution witness in the challan. After framing of charges against Khan, when all the prosecution witnesses were examined and the case was set down for recording of statement of the main accused under Section 342 of Cr. P. C (of the erstwhile J&K State), the Special Judge observed that the evidence on record, prima facie, discloses the involvement of PW-9, Cashier Nazir Ahmad Ganai. It was in these circumstances that the impugned order came to be passed by the learned Special Judge.ChallengeKhan challenged the order on the ground that that there is no provision in the Code of Criminal Procedure or in any other law in existence to array a person as an accused in the pending trial, particularly when the investigating agency, after investigation of the case, had not found any material against the petitioner. There was no material before the learned Special Judge to seek impleadment of the petitioner as an accused, the court was told."It is not open to a court to direct the competent authority to accord sanction for prosecution and that once the trial of a case has been completed, it is not open to the court to direct further investigation of the case," his counsel argued.VerdictAdjudicating upon the matter, Justice Dhar observed that Section 351 of the J&K Cr. P. C, which is somewhat akin to the provisions contained in Section 319 of the Code of Criminal Procedure, 1973, empowers a Court to take cognizance of the offence against a person who is in attendance, if there is evidence before the Court that the person is, prima facie, guilty of the said offence. A person attending a Criminal Court, although not under arrest, can be detained by the Sessions Court for the purpose of inquiry or trial of any offence of which such court takes cognizance, the bench underscored. "Even a Magistrate, on taking cognizance of the offence which in his opinion has been committed by a person who is not before him and there is sufficient ground for proceeding against him, is empowered to issue process for summoning of such person under Section 204 of Cr. P. C. Section 190(1)(b) of the Cr. P. C does not restrict power of a Magistrate to proceed against an offender merely because in the police report his name is not sent up as an accused," the bench explained. Deliberating on the degree of satisfaction required for impleading an additional accused, the bench found it worthwhile to record the observations of Supreme Court in Hardeep Singh v. State of Punjab, (2014) wherein SC observed: "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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused." Applying the said position of law to the instant case, the bench observed that keeping in view the nature of evidence that had come on record during the trial, the Special Judge was well within his jurisdiction to initiate the process for arraying the petitioner as an accused. "So,...

Sec 319 CrPC | Degree of Satisfaction For Summoning Additional Accused Much Stronger Than Mere Probability Of His Involvement: J&K&L High Court

Basit Amin Makhdoomi

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