Section 319 CrPC: Summoning Power Should Be Exercised Only When Strong And Cogent Evidence Occurs Against A Person: Supreme Court

The Supreme Court observed that the power under Section 319 of the Criminal Procedure Code should be exercised only when strong and cogent evidence occurs against a person from the evidence.

The bench of Justices KM Joseph and PS Narasimha reiterated that the power under Section 319 CrPC cannot be exercised in a casual and cavalier manner. The test to be applied is one which is more than prima facie case which is applied at the time of framing of charge, the bench added.

Taking note of the deposition made by a witness in murder case, the Trial Court allowed the application filed under Section 319 CrPC and summoned the employer of the deceased. The High Court upheld this order of the Trial Court. Before the Apex Court, the appellant contended the courts erred in law in invoking power under Section 319 Cr.P.C. solely based on the deposition

The bench, referring to judgments in Hardeep Singh v. State of Punjab  (2014) 3 SCC 92 and Labhuji Amratji Thakor v. State of Gujarat  AIR 2019 SC 734,observed that deposition which has not suffered cross examination can be relied on for the purpose of invoking Section 319 Cr.P.C. It noticed the following observations made by the Constitution bench in Hardeep: 

1. 105. Power under Section 319 Cr.P.C. 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.
2. 106. 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 unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused.

The court said that the exercise of power under Section 319 CrPC will all depend upon the evidence which is tendered in a given case as to whether there is a strong ground within the meaning of paragraph 105.

"The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges" 

Therefore, the bench allowed the appeal and directed the Trial Court to consider the matter afresh in the light of the above principles principles.

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