Section 319 CrPC: Courts Cannot Mechanically Summon Persons As Accused Not Named In Charge-Sheet Just Because A Witness Named Them, Says SC [Read Judgment]

“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 Supreme Court held that merely because a court has power under Section 319 of the Code of Criminal Procedure to proceed against any person who is not named in the F.I.R. or in the Charge Sheet, it does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C.

Justice AK Sikri, Justice Ashok Bhushan and Justice Ajay Rastogi in Labhuji Amratji Thakor vs. State of Gujarat, were considering appeal against High court order allowing the application under Section 319 Cr.P.C. filed by prosecution.

During trial in a POCSO CASE, the prosecution had filed an application under Section 319 of the Code of Criminal Procedure, where it was stated that in the statement of victim, she has taken name of three more persons, who had allegedly taken her in the jeep. The POCSO judge dismissed the application observing that nowhere in her long statement, the victim took their name and it was only in the statement, recorded in the Court after more than one year, she mentioned their names.

Section 319 Cr.P.C. provides that 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 constitution bench judgment in Hardeep Singh Vs. State of Punjab, the bench observed that the crucial test while considering such applications is “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 present case, the bench said that, there are not even suggestion of any act done by them amounting to an offence referred to in Sections 3 and 4 of the POCSO Act and thus there was no occasion to proceed against them under POCSO Act.

Disagreeing with the High court view, the bench said: “The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e., “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.””

Referring to the statement made by victim, the bench observed: “She does not even alleged complicity of the appellants in the offence. Her further statement was that she was taken to Morbi in the jeep driven by Labhuji and subsequently was taken to Modasa from Morbi in the jeep of Labhuji which also could not furnish any basis to proceed against the appellants. The mere fact that the jeep, in which she was taken to Modasa, the appellants were also present cannot be treated to be any allegation of complicity of the appellants in the offence.”

The bench then set aside the High court order observing that it has not given sufficient reasons for allowing the application under Section 319 Cr.P.C. filed by prosecution.