Extra-Ordinary Power Of Trial Court Under Section 319 CrPC Should Be Exercised Sparingly, Reiterates Supreme Court

The Supreme Court reiterated that the power of a Trial Court under Section 319 of the Criminal Procedure Code to proceed against other persons appearing to be guilty of offence is a discretionary and extra-ordinary power which has to be exercised sparingly. 

In this case, the Trial Court, allowed one such application filed by the de-facto complainant and summoned a person. As he did not appear,  the court issued Non-Bailable warrant and a Notice under Section 446 Cr.P.C. requiring them to explain why the amount of sureties should not be realised from two sureties. Challenging the summoning order, these persons approached the High Court. The High Court noticing a subsequent order by which notice has been issued under Section 446 Cr.P.C, dismissed the revision petition observing that there is concealment of not placing the order on record. 

Disagreeing with the High Court, the bench comprising Justices Ashok Bhushan, R. Subhash Reddy, MR Shah observed that the subsequent proceeding in no manner can be a ground to not consider the correctness and validity of the summoning order. The court said that the High Court did not examine the correctness of the summoning order under Section 319 Cr.P.C., rather has dismissed the Criminal Revision on basis of a subsequent fact.. The bench then observed thus about the principles for exercise of power under Section 319 Cr.P.C. by Criminal Court:

"The principles for exercise of power under Section 319 Cr.P.C. by Criminal Court are well settled. The Constitution Bench of this Court in Hardeep Singh versus State of Punjab and others, (2014) 3 SCC 92, has elaborately considered all contours of Section 319 Cr.P.C. This Court has held that Power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. This Court further held that 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 also reproduced the following observations made by the Constitution Bench in Hardeep Singh versus State of Punjab and others, (2014) 3 SCC 92 :

Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the 6Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.

Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. 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 un-rebutted, 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."

Observing thus, the bench allowed the appeal and directed the High court to consider the Criminal Revision petition afresh.

CASE: AJAY KUMAR @ BITTU vs. STATE OF UTTARAKHAND  [CRIMINAL APPEAL NO.88 OF 2021]
CORAM: Justices Ashok Bhushan, R. Subhash Reddy, MR Shah
CORAM: LL 2021 SC 54

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