Coverage of this Article
- NTRODUCTION: Brief to the topic in Hand
- WHAT IS ADDITIONAL PROSECUTION UNDER S. 319 Cr.P.C?
- OBJECTS OF S.319 Cr.P.C.
- ESSENTIALS OF S.319, Cr.P.C.
- WHO EXERCISES POWER UNDER S.319 Cr.P.C.?
- AGAINST WHOM THE POWERS UNDER S.319 CAN BE EXERCISED?
- AT WHAT STAGE POWERS UNDER S.319 CAN BE EXERCISED?
- ISSUE OF NON BAILAIBLE WARRANT IN CASES UNDER S.319 Cr.P.C.
- JUDICIAL CUSTODY TO ADDITIONAL ACCUSED
- GUIDELINES BY HON’BLE SUPREME COURT ON S.319 Cr.P.C.
- VARIOUS OTHER PROVISIONS RELATING TO SUMMONING/CALLING OF CONCERNED PERSONS TO THE COURT/POLICE STATION
- LATEST CASE LAWS BY HON’BLE SUPREME COURT (JUNE 2023)
- REFERENCES/ ADDITIONAL MATERIAL TO READ
Indian law is one of the finest and most detailed law that has ever existed. The reasons that make it the finest law is that it is extremely exhaustive as it provides a procedure for anything any everything that is capable of coming under the ambit of law, and it covers all aspects of the law.
As the saying goes, “kanoon k hate lambe hote hai”, sec. 319 Cr.P.C. is one such sections which actually provides in widening the horizon of the situation that law can engulf and provide a disposal for as it gives the Courts in India the power to call a person to the Court merely on the belief of the Court as to such person’s acquaintance with the facts of the matter before Court, despite the fact that such person has either not been known, or not complaint against, not added by the Police to the complaint (intentionally or unintentionally) or even if such person has by any crooked means managed to avoid the lawful proceedings of law to be launched against him.
In this article, I, Adv. Niharika Lohan from Symbiosis Law School, Pune (2014-19) will be discussing sec. 319, Cr.P.C. in depth along with other provisions whereby the Courts are empowered to summon different persons for different purposes to the Court. We will also cover the ingredients of sec.319 Cr.P.C. along with various landmark judgments upon sec. 319 Cr.P.C..
WHAT IS S.319 Cr.P.C. AKA ADDITIONAL PROSECUTION?
It is the discretionary power of the Magistrate to proceed against the person, against whom no case has been instituted yet when there are sufficient grounds of belief on the basis of some evidence against a person who’s name has not appeared in the process of the trial at all till the inquiry stage, then the Court has the power to summon such person in addition to the persons already named in the F.I.R. The power of the Court under this section is circumscribed by limitations. That the fact police chose not to send up a suspect to face trial does not affect power of trial court under Sec 319 of Cr.P.C.
For example, an F.I.R. was instituted against an accused “A” under Sec. 302, IPC. The investigation (Sec.2 (h)) had been done, report had been submitted under Sec. 173(2) Cr.P.C., inquiry as contemplated under Sec. 2 (g) has been completed and the case has reached its trial stage. Now, post inquiry, the Magistrate finds that “B” is also involved in the case. Since he has not been named in the FIR, nor any investigation or inquiry had been conducted against him, we may infer two possibilities. First, that a new case may be instituted against B and again the whole process of report, investigation, inquiry and trial will start; or that B may go scott - free, that is to say will escape all liability with respect to the case since he had not been charged under any provision of the Penal Code. This is where S. 319, Cr.P.C. comes into play. Here, the Court may jointly try B with A, instead of starting an all together new case.
The above mentioned explanation brings us to the OBJECTS of S. 319, Cr.P.C.
To meet the ends of justice. By bringing before the Court any person who may be an accused or be involved in the commission of an offence.
To save time of the Courts. As we all know that there is a plethora of pending litigations, in order to start the process of trial again, it will demand from the Court to follow the complete process once again in the same matter.
To provide speedy justice. A joint trial no doubt cuts down the time to provide justice to the merits of the case via expeditious and simultaneous disposal of the case against all accused(s).
Real culprit should not get away. If any person on account of the mere lack of efficiency on the legal parts of the machinery, has not been investigated or enquired against or consequently not tried for the offence, he should not be able to escape from the hands of law.
It is the provision that shows that judges and magistrates are also subject to human fallacies and the purpose of this provision is to give an opportunity to them to correct such errors which have occurred intentionally or unintentionally.
ESSENTIALS OF SEC.319 Cr.P.C.
STAGE - S. 319 can be invoked at the inquiry or trial stage that is to say that S. 319(1) does not allow the Courts to interfere in the process of investigation and provides for the power of Courts to proceed against a person who has not been made an accused and the Court believes to its satisfaction that there is sufficient evidence to proceed against such other person. S. 319(2) empowers the Court to summon the person and to arrest him in pursuance of the same. The Court also has the power to detain such a person for the purpose of completing the inquiry. This detention can be done under the power enshrined by S. 319(3).
- SATISFACTORY EVIDENCE- The Court must follow the test of satisfactory and reasonable evidence while deciding an application under S.319 . In Ramesh Chandra Srivastava vs. State of UP on 13 September 2021, the bench of J. Narasimha and J. K.M. Joseph laid that it is only when coherent and strong evidence is found against the person that the power under S.319 shall be exercised. J. B.S. Chauhan of the Hon’ble Supreme Court further cleared in the landmark case of Hardeep Singh vs. State of Punjab that the power under s.319 is discretionary and extraordinary power of the Court. Thus, it is not to be casually used and only to be exercised sparingly. Unless the Court is not completely satisfied that such person is involved in the commission of the offence and evidence of the same is available, the Court should not unnecessarily issue process of summons or detain such person.
- DE NOVO PROCEEDING - For adding an accused at a later stage of the trial, there must be a joint trial of the additional accused with the former accused(s). The Court has to consider the question whether he should be tried along with the accused already arraigned. Howsoever, as per S. 319 (4) (a), the proceedings with respect to the additional accused must be done de novo that is to say the proceedings to be started again and the witnesses that had been formerly examined, may be examined again, in the best interest of justice. Now, S. 319 (4) (b) creates a legal fiction and is also known as the Doctrine of Relation Back, wherein, to combat the possibility of an unfair procedure against the additional accused by not having witnesses re-examined S. 319 (4) (b) provides that the witnesses be re examined to meet the ends of equity and justice. Otherwise, the case proceeds as if such person had been an accused when the Court took cognisance of the offence upon which the inquiry or trial had been commenced.
WHO EXERCISES POWER UNDER SEC.319 Cr.P.C?
S. 319 empowers the Magistrate or a Court a discretionary and extra ordinary power to call upon additional persons who are related (directly/indirectly) to the commission of an offence. This power may be exercised by the Courts either (i) Suo Moto or (ii) by the party via an application of the Public Prosecutor.
If the trial Court is of opinion that no prima facie case is made out and the application under S.319 is rejected, the Revision Court under by invoking its inherent powers under Sec. 482 of Cr.P.C., exercise the power vested in it by Sec.397 Cr.P.C. is empowered to re call the additional accused.
AGAINST WHOM THE POWER OF S.319 Cr.P.C. CAN BE EXERCISED?
If the Prosecution at any stage can produce evidence against any person which satisfies the Court that a person should have been made an accused in an offence undergoing trial in the Court then the Court can take cognisance of such a person and try him along with the formerly named accused(s), even in the case where such a proceeding against such a person had been quashed by the High Court under Sec. 482 read with concerned provision in the on going trial e.g., S.227, S.229 Cr.P.C.
AT WHAT STAGE POWERS OF S.319 Cr.P.C. CAN BE EXERCISED?
S.319 BY TRIAL COURTS:
It must be exercised at the inquiry or trial stage. The trial, in any case, starts once the charges have been framed or when the charge sheet has been filed. The latter stage is when the Police files a final report, an inquiry by the Court commences.
WHEN CAN A TRIAL COURT NOT EXERCISE S.319:
Powers under Section 319 CrPC cannot be exercised in the following two situations:
Firstly, when the case is at the stage of S.207 (supply of copies of police report and other documents like statements under S.161 or s.164, to the accused)
Secondly, when the trial has been committed to the Court of Sessions under S. 209 Cr.P.C., wherein the magistrate finds that such case is exclusively triable by the Court of Sessions.
EXERCISE OF POWER OF S.319 Cr.P.C. BY COURT OF SESSIONS:
The Hon’ble Supreme Court in the case of Ranjit Singh vs. State of Punjab 22 September 1998 held that the Court of Sessions can exercise the powers vested under Sec 319 when a case has been committed to it under S. 209 Cr.P.C. and it is at the stage of collection of evidence and not before that that the Court will exercise powers vested under S.319 Cr.PC.
COURT MAY ISSUE A NON BAILABLE WARRANT OF ARREST
It has been laid by the Hon’ble Supreme Court that when a person has been made an additional accused under Sec. 319 of Cr.P.C. then in order to secure his presence a non bailable warrant can be issued against him. The Apex Court in Vikas vs. State of Rajasthan gave guidelines enumerating the circumstances under which such a warrant may be issued. Firstly, an NBW is not to be issued at the first instance to secure attendance of the additional accused at the trial. Secondly, they may be issued only when the Court finds it likely that the additional accused will fail in adhering to the summons or bailable warrants.
JUDICIAL CUSTODY TO ADDITIONAL ACCUSED
Once the application under S.319 Cr.P.C. has been accepted and a person has been added as an additional accused then he stands at the same platform as the accused(s) who have been already named by the Police in the chargesheet or summoned by the Court. Now, it becomes obligatory for the Court to send him to judicial custody, as the Court would in a regular course do so had he been previously made an accused.
SC LAYS GUIDELINES TO COMBAT MISUSE OF POWER UNDER S.319 Cr.P.C.
In the landmark case of Sukhpal Singh Khaira vs. State of Punjab , the five judge constitutional bench of the Apex Court gave 12 guidelines which the Courts must observe and adhere to in order to prevent the misuse of powers vested in the Courts under sec. 319 Cr.P.C. The guidelines are as follows:
When an application under S.319 is presented to the court with regard to involvement of any other person based on evidence recorded at any stage in the trial and before the final stage of the trial, i.e., before the acquittal or conviction of the accused(s) then the Court may, upon receiving an application under S.319, pause the trial at that stage and immediately decide the application.
When the application under S.319 CrPC lies before the Trial Court, it may either (i) summon the accused, or (ii) dismiss the application at that stage.
After the receiving of application under S.319 the Court may, if they find just reason, accept the application and stop the trial at that stage and summon the additional accused before proceeding with the trial.
Now the trial court is to decide whether such an accused is to be tried along with the other accused or that he may be tried separately.
In case the Court decides to try the newly added accused with the persons formerly charged, it may direct them to furnish bail bonds, whether with or without sureties, in order to secure their presence.
If the Court decides to try the newly added accused separately, the trial of the former accused can nevertheless be proceeded with.
If the evidence suggests that the accused in the main case should be acquitted, the Court may pass an order of acquittal and try the newly added accused separately.
The power of Court under S.319 can be exercised only if there is evidence pointing towards the involvement of the additional accused in the split / bifurcated trial, in case the same was not exercised till the conclusion of the main trial.
If a case is reserved for judgment and then the application under s.319 is moved then the Court must re hear the case.
Further at re hearing of the case, Court to decide the application under s.319 whether or not to further summon additional persons.
If the decision is to summon the additional accused, a fresh trial must be instituted and proceedings must be held de novo.
If a separate trial is held, the main case may be decided by either convicting or acquitting the accused, as the case may be, and the proceedings against the additional accused may be started afresh.
Thus by means of iterating these procedural safeguards, the Supreme Court puts liability on the shoulders of the Trial Courts and Revisional Courts to adhere to the process of law and not to abuse or misuse it by any means.
VARIOUS OTHER PROVISIONS UNDER THE LAW RELATING SUMMON OF PERSONS
By now we have dealt in depth with the meaning, aspects, scope, stage, and purposes of Sec 319 Cr.P.C. Now we shall see other provisions of law which provides for Summon of persons.
Different authorities have different ways of calling upon people before them. The Police is an investigating authority which can summon people for production of documents under Sec. 91 Cr.P.C. and also under sec. 160 read with Sec.161 Cr.P.C.
The Court of law is a judicial authority and may call upon people to appear before it under Sec. 204 Cr.P.C. by issuing of process.
Discussed below are the various provisions under various laws, where a person can be summoned to appear or produce a thing before the Court.
Provision: S.91 Cr.P.C.-
Summoning Authority: Court or Officer in charge of Police Station
Purpose: Production of documents or other thing;
Who may be called upon: Any person
Provision: S. 160 read with S. 161 Cr.P.C.-
Summoning Authority: Any Police Officer
Purpose: Requiring attendance of witness
Who may be called upon: Any person within the limits of the Police Officer’s own or adjoining station (not being a male under 15 years or woman to be called to the police station; the Police Officer will visit their place of residence for the fulfilment of this purpose).
Provision: S.204 Cr.P.C.-
Summoning Authority: Court
Purpose: For securing the attendance;
Who may be called upon: Accused
Provision: S.132 Indian Evidence Act, 1872
Summoning Authority: Court
Purpose: Answering questions before the Court (irrespective that they may be incriminating as against such witness. Protection is provided here to the witness against any criminal prosecution based on the answers/testimony given before the Court.) The underlying principle of this provision is that no one should be in fear of getting incriminated by speaking truth before the Court.
Who may be called upon: Only the Witness(s)
Provision: S.139 Indian Evidence Act, 1872-
Summoning Authority: Court
Purpose: Production of documents
Who may be called upon: Any person
Provision: S.165 Indian Evidence Act, 1872-
Summoning Authority: Court
Purpose: Production of documents or thing
Who may be called upon: Any person
Thus these are all the provisions where a person may be summoned to either appear before the authority or to produce a document of thing before it.
LATEST CASE OF APEX COURT ON ABUSE OF POWER UNDER S.319 Cr.P.C.
Jus. Suryakant and Jus. J.K. Maheshwari on 21st of February 2023 in the case of Juhru & Ors. Vs. Karim & Anr. held that
The powers vested under S.319 Cr.P.C. should only be exercised as per the procedural requirements so as to prevent the abuse of power vested in the Courts.
An application under S.319 is to be accepted only when the evidence indicates the possibility of involvement of proposed persons to be prosecuted.
The powers under S.319 should not be exercised routinely and should only be used sparingly.
The trial Court should carefully evaluate the evidence and the merits of the case before deciding the application under S.319.
No additional person can be tried merely on the basis of a strong suspicion.
The Hon’ble Supreme Court has thus made it crystal clear via multiple cases and guidelines that procedural safeguards are to be given utmost importance before deciding an application under Sec.319 Cr.P.C.
In the latest judgement passed two weeks ago by the Hon’ble Supreme Court, delivered by the bench of Jus. Dipankar Datta and Jus. Pankaj Mitthal on 2nd of June 2023 titled Jitendra Nath Mishra Vs. State of Uttar Pradesh & Anr. held that if it appears from the evidences that a person has committed an offence or is involved in an offence either by direct participation or by latent participation then he should be prosecuted too along with the person who has already been made an accused in the ongoing trial. This power is vested upon the Trial Court by virtue of Sec. 319 of Cr.P.C.
The Court may allow such an application if the evidence adduced therein demonstrates and shows the participation of such proposed person in the alleged offence clearly.
In both the above mentioned latest judgments, the Hon’ble Supreme Court cited the judgment of Hardeep Singh vs. State of Punjab.
The legislation by the virtue of Sec. 319 of Cr.P.C. confers an extraordinary and discretionary power on the Court to make a person an accused in a trial that has already been going on, despite the fact that such proposed person has not been named anywhere in the F.I.R. or the complaint. The evidence of his involvement in the alleged offence is suggested only upon the findings of the investigating authority or the inquiry conducted by the Court itself. However, the Courts have been given the responsibility to follow the procedural safeguards while deciding an application under Sec. 319 Cr.P.C. This power must only be used sparingly and not in a casual or routine manner as doing that will violate the fundamental rights of the additional accused.