A More Than Prima Facie Case Needed To Summon A Person As Accused U/S 319, Cr.P.C.: Uttarakhand High Court Reiterates

The Uttarakhand High Court has reiterated that a more than prima facie case is needed to be presented to summon a person under Section 319 of the Code of Criminal Procedure (Cr.P.C.). While dismissing a revision against the trial Court order of such summon, a Single Judge Bench of Justice Narayan Singh Dhanik observed, "Therefore, it is amply clear that in order to exercise the power under Section 319 Cr.P.C., a case more than prima facie, but short of satisfaction to an extent that evidence if goes unrebutted would lead to conviction, must have been there." Factual Background: On 07.01.2018, when the respondent no. 2 herein (complainant), his cousin brothers Daljeet Singh and Rajvender Singh, and his relatives Kuldeep Singh and Harvansh Singh were participating in a Nagar Kirtan in Sitarganj, the accused persons, armed with sharp-edged weapons, lathis and dandas and pistols, attacked them. In the said incident, Daljeet Singh and Harvansh Singh died at the spot and Rajvender Singh suffered serious injuries. The respondent no. 2 lodged an FIR alleging that the accused persons had murdered his father earlier and putting pressure on him to enter into a compromise. Out of such enmity, they committed the aforesaid offences. After investigation, police submitted the charge sheet and thereafter trial commenced against the accused persons. On 25.11.2019, while recording further examination-in-chief of the complainant, a CCTV footage was played before the trial court, which was collected by the police during investigation. After watching the said CCTV footage, the complainant, inter alia, identified the presence of the present revisionist at the place of incident and narrated his role in the alleged crime. The complainant further stated that at one point of time, he is being seen doing hathapai with Daljeet Singh (deceased) and Rajvender Singh (injured). After the above deposition of the complainant, the prosecution moved an application to summon the revisionist as an additional accused under Section 319 Cr.P.C. and the same was allowed by the trial court. Hence, this revision was filed against that order. Contentions of the Revisionist:Counsel for the revisionist, Ms. Manisha Bhandari argued that the Court below has committed grave error of law by summoning the revisionist as an accused inasmuch as the complainant, who claimed to be an eyewitness of the alleged incident, did not assign any role to the revisionist in the FIR. During the course of investigation as well, the name of the revisionist as an assaulter did not surface. After commencement of the trial, on 25.06.2019 and on 16.07.2019, the complainant did not make any allegation against the revisionist in his examination-in-chief. It was only after seeing the CCTV footage on 25.11.2019, the complainant made serious allegations that it was on the exhortation of the revisionist that the accused persons committed the crime and killed Harvansh Singh and Daljeet Singh and inflicted injuries to others. She also submitted that in the above facts and circumstances, it was totally illegal on the part of the trial court to summon the revisionist under Section 319 Cr.P.C. on the basis of the deposition made by the complainant in his examination-in-chief. It was alleged that the complainant tried to develop a completely new story after watching the said CCTV footage, which is without audio. She further asserted that had the complainant been an eye-witness of the alleged incident, which he claims, he would have taken the name of the revisionist in the FIR itself. It was further contended that presence of the revisionist, even if admitted, at the place of occurrence does not connect the revisionist with the alleged crime. Prosecution will have to prove and establish a more than prima facie case and that the revisionist was voluntarily a member of unlawful assembly and he knew the intention of said unlawful assembly which resulted into the alleged crime. Contentions of the Respondents: Mr. Siddhartha Sah, counsel for the respondent/complainant, argued that presence of the revisionist at the place of incident is not denied and it is also quite clear that the revisionist was seen doing hathapai with Daljeet Singh and Rajvender Singh. Revisionist was also seen making exhortation to other accused to commit the crime. PW1, who is an eyewitness, has identified the revisionist and has deposed against him. Motive to commit the alleged crime is also proved. As regards not naming the revisionist in the FIR, he contended that it is a settled law that FIR is not an encyclopaedia of all facts and figures of the case. He submitted that a more than prima facie case of the complicity of the revisionist in the crime is made out and there is no jurisdictional error committed by the trial court in summoning the revisionist as an additional accused as there exists a strong and...

A More Than Prima Facie Case Needed To Summon A Person As Accused U/S 319, Cr.P.C.: Uttarakhand High Court Reiterates

Jyoti Prakash Dutta

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