To Invoke Section 319 CrPC, More Than A Prima Facie Case As Exercised At Charge-Framing Stage Needed : Supreme Court

The Supreme Court reiterated that the power under Section 319 of the Code of Criminal Procedure is a discretionary and extraordinary power which should be exercised sparingly.

"The crucial test 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 bench of Justices Ajay Rastogi and Abhay S.Oka said.

Section 319 CrPC gives power to the Trial Court to proceed against a person who has not been named in the chargesheet, if evidence of the involvement of that person emerges during the trial.

In this case, the Trial Court had Rejected the application filed by the complainant under Section 319 CrPC  for summoning the appellant as accused and to face trial in a murder case. 

The Trial court observed that neither the complainant (PW.1) nor his father (PW.2) were eye­witness and it has only been stated about removal of the electric wire by the appellant and this fact was noticed by the investigating officer even when the chargesheet came to be filed and the investigating officer has not found the present appellant to have participated in the commission of crime. It held that the material available on record, was not enough to satisfy to summon the appellant under Section 319 of the Code. The High Court allowed the Criminal Revision Petition filed by the complainant and set aside this order passed by the Trial Court.

While setting aside the High Court's verdict, the Supreme Court noted that the scope and ambit of Section 319 of the Code has been well settled by the Constitution Bench of the Court in Hardeep Singh v. State of Punjab (2014) 3 SCC 92.

"The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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 learned Single Judge of the High Court has even failed to consider the basic principles laid down by this Court while invoking Section 319 of the Code, which has been considered by the learned trial Judge under its order dated 30th January, 2018." the bench observed while allowing the appeal.

In Hardeep Singh, the Constitution Bench had observed as follows :

"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 Magistrate 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 cross­examination, 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 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."

Headnotes

Code of Criminal Procedure, 1973 ; Section 319 - Power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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. [Referred to Hardeep Singh v. State of Punjab (2014) 3 SCC 92 ] (Para 9)

Summary: Appeal against the High court order which set aside the Trial Court order refusing to summon appellant under Section 319 CrPC - High Court even failed to consider the basic principles laid down by this Court while invoking Section 319 of the Code, which has been considered by the learned trial Judge.

Case Details

Sagar vs State of UP | CrA 397 OF 2022 | 10 March 2022

Citation: 2022 LiveLaw (SC) 265

Coram: Justices Ajay Rastogi and Abhay S. Oka