S.319 Cr PC| Person Not Named In FIR Can Be Added As Accused If There's Sufficient Evidence Of His Involvement : Supreme Court

The Supreme Court recently upheld an order of Allahabad High Court which dismissed an appeal filed by a person, who was not named in the FIR, under Section 14A(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against a summoning order to face the trial passed by a Special Court in exercise of power its under Section 319 of CrPC, on the ground that the Special Court formed the requisite satisfaction prior to summoning the appellant to face trial with another accused.

The division bench of Justice Dipankar Datta and Justice Pankaj Mithal observed:

“Section 319, CrPC, which envisages a discretionary power, empowers the court holding a trial to proceed against any person not shown or mentioned as an accused if it appears from the evidence that such person has committed a crime for which he ought to be tried together with the accused who is facing trial. Such power can be exercised by the court qua a person who is not named in the FIR, or named in the FIR but not shown as an accused in the charge-sheet. Therefore, what is essential for exercise of the power under section 319, Cr. PC is that the evidence on record must show the involvement of a person in the commission of a crime and that the said person, who has not been arraigned as an accused, should face trial together with the accused already arraigned.”

An FIR was registered under Sections 419, 420, 323, 406 and 506 of IPC and 3(1)(r) & (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act of 1989) on the basis of information furnished by the complainant.

Accusations were levelled against one Dharmendra Nath Mishra; brother of Dharmendra and an ‘unknown person’ of having assaulted and abused the complainant and his wife, amounting to commission of offences punishable under the above-mentioned provisions.

After the investigaton, the charge-sheet was filed under Section 173 (2) of CrPC in which Dharmendra was shown as the sole accused. The Special Court constituted under the Act of 1989 took cognisance of the offence and framed charges against Dharmendra, whereafter the trial commenced.

However, during the course of trial, the complainant and his wife in their deposition stated that Dharmendra and the appellant together with an unknown person had assaulted them apart from hurling caste related abuses.

The Special Court passed the order dated October 16, 2021 summoning the appellant for trial along with Dharmendra for offences punishable under Sections 323, 504 and 506 of IPC and 3(1)(r) & (s) of the Act of 1989.

The said order of the Special Court was upheld by the Allahabad High Court by the impugned order dated June 1, 2022.

Thus, the appellant challenged the impugned order of High Court through the present appeal.

The Counsel appearing for the appellant submitted that the appellant and Dharmendra are siblings but they have three other siblings. It was argued that if indeed the appellant was one of several co-accused, it defies reason as to why the complainant knowing the appellant quite well would not name him and vaguely allege that the brother of Dharmendra too had assaulted and abused the complainant.

It was further contended that the incident allegedly took place in a public place but no other public witness has been cited to prove the prosecution case of assault and abuse.

Thus, it was argued that exercise of power under Section 319, Cr. PC by the Special Court is arbitrary and that the High Court erred in not interfering with such order in exercise of appellate jurisdiction.

On the other hand, the Counsel appearing for the State of Uttar Pradesh submitted that the Special Court duly took into consideration the oral evidence adduced by the complainant and his wife and summoned the appellant under Section 319 of CrPC, hence, such order does not suffer from any illegality.

The reliance was placed on the judgment of Supreme Court in Hardeep Singh vs. State of Punjab (2014) 3 SCC 92.

The Court noted that the FIR disclosed offences having been committed by Dharmendra, his brother and an unknown person.

It was further observed that both the complainant and his wife, while testifying before the court, described the manner of assault on the former inflicted by Dharmendra and the appellant and the utterances used by Dharmendra and the appellant, inter alia, touching the caste of the complainant and his wife.

“At least, on this point, prima facie there appears to be no contradiction at all. The FIR in this case is not such where one finds complete absence of any reference to the brother of Dharmendra who had joined Dharmendra in assaulting and abusing the complainant or that the allegations are entirely Dharmendra centric with none else playing any role. It is not that involvement of Dharmendra’s brother in the crime is being referred to for the first time in the court. True it is, the appellant was not named in the FIR; but, that by itself, cannot be held to be decisive. Once it is conceded that the appellant is a sibling of Dharmendra and he is named as one of the assailants, the material for forming the requisite satisfaction cannot be said to be non-existent. For the purpose of passing an order under section 319, Cr. PC, it is sufficient to form a satisfaction of the nature indicated in paragraph 106 of the decision in Hardeep Singh (supra),” the Court said.

The Court observed that the Special Court formed the requisite satisfaction prior to summoning the appellant to face trial with Dharmendra.

Thus, the Court dismissed the appeal and upheld the impugned order of the High Court and the order of the Special Bench.

Also Read - Section 319 CrPC : 12 Guidelines Issued By Supreme Court's Constitution Bench To Summon Additional Accused During Trial

Section 319 CrPC Power Has To Be Exercised Before Pronouncement Of Sentence In Case Of Conviction : Supreme Court Constitution Bench

Case Title: Jitendra Nath Mishra v. State of U. P. & Anr.

Citation : 2023 LiveLaw (SC) 480

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