Legal Provisions of Section 319 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Power to proceed against other persons appearing to be guilty of offence:
Highlighting the primary object underlying Section 319 of the Code, the Supreme Court in Manjit Pal Singh v. State of Punjab & others, observed that it is intended that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously.
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The Court emphasised that justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manners as against the original accused. The power must be conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.
However, it must be stated that the Code has taken care by sufficiently protecting and safeguarding the interest of such newly added accused. Section 319 (4) expressly provides that where the Court exercises power of arraying accused under Section 319 (1) and proceeds against a person not arrayed as an accused, the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard. Hence there is no scope for ‘prejudice’ against the newly added accused.
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Thus this section contains an enabling provision which authorizes the criminal Court to proceed against any person not shown or mentioned as accused, if it appears from the evidence that such person is also involved in the offence for which he could be tried together with the accused against whom an inquiry or trial is being held.
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The Court may issue a warrant of arrest or summons against such person if he is not attending the Court, and if he is attending, it may detain such person for the purpose of inquiring into or trial of the offence in which he seems to have been involved.
Under this section, a Sessions Court is also entitled to summon an accused on finding a prima facie case from the record of the evidence submitted to it with committal order. The expression “any other person not being the accused” occurring in Section 319 clearly covers any person who is not being already inquired into or tried by the Court and includes even the persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal Court.
The question whether the Court of Session has the power under Section 319 to summon additional accused, prior to the stage of recording evidence has been reconsidered by the Supreme Court in Ranjit Singh v. State of Punjab, and the Court observed, “once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection stage when powers under Section 319 of the Code can be invoked.”
The Apex Court further held that if the Sessions Judge is convinced that the police have not sent up a particular accused due to inadvertence or omission, he can send up a report to the High Court requesting it to direct the Magistrate under its revisional or inherent powers to issue process against that left out accused.
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The provisions of Section 319 have to be read in consonance with the provisions of Section 398 of the Code and, therefore, the Supreme Court has ruled that a person who has already been discharged in the case cannot be summoned as an additional accused under Section 319 of the Code of Criminal Procedure.
The word “evidence” used in this section means the statements of witnesses as recorded by the Court and it does not include the statements recorded by the Police under Section 164 or statements recorded under Section 202.
Such evidence must be sufficient enough to make out a prima facie case against the person sought to be added as accused and satisfy all essential ingredients of the offence for which he is sought to be presented. However, the Court at this stage need not evaluate the evidence to assess whether it is sufficient to result into conviction of the accused, nor is it necessary at this stage to subject the person on whose statement the additional accused is summoned for cross- examination.
The power conferred by section 319 may be used by the Court suo motu or on an application of someone including the accused. The exercise of the power is, however, discretionary with the Court and the discretion must be exercised judicially having regard to facts and circumstances of the case.
The effect of the operation of the section is that the person against whom an order under Section 319 is made becomes an accused from the very date the order is made. But the proceedings in his case have to be started de novo and the witnesses are re-heard so that the person so added as an accused may not suffer any injustice because of the non- examination of such witnesses. But this does not however, mean that the person should be tried separately.
The Supreme Court, in Municipal Corporation, Delhi v. Ram Kishan Rohatgi, observed that the power conferred on the Court by Section 319 of the Code being an extraordinary power, should be used sparingly and only if compelling reasons exist for taking cognizance against the other person who has not been included as an accused.
The Supreme Court in Mohd. Shaft v. Mohd. Rafiq and another reiterated that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at a satisfaction that there exists a possibility that the accused so summoned under Section 319 in all likelihood would be convicted. Such satisfaction can be arrived at upon completion of cross-examination of the said witness. The Court concerned may also like to consider other evidence.
In the instant case, the trial Court refused to summon additional accused (i.e., appellant) to face trial in the murder case at the instance of witness who in his examination under Section 161, Cr. P.C. had stated that appellant had taken part in the commission of offence.
Thereafter, an application was filed before the Allahabad High Court under Section 482, Cr. P.C. against the said order contending that appellant was merely a witness and he had no say in the matter.
The Supreme Court held that High Court should not have entertained the application under Section 482, Cr. P.C. as the order of the trial Court, i.e., Sessions Judge dated 26th August, 2006 was not even an interim order affecting the rights of the parties. Even a revision application there against could not have been maintained at that stage. The Apex Court, therefore, set aside the order of the High Court allowing the appeal.
The Supreme Court in its judgment made it clear that power under Section 319, Cr. P.C. is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the person who is to be summoned as an additional accused.
Other Relevant Cases:
The Supreme Court in the case of Suman v. State of Rajasthan, held that Section 319 permits adding new person as accused who was named in the FIR but not charge- sheeted by police and drops the case against him. If from evidence collected or produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused, he can be proceeded against under Section 319 of Cr. P. C.
In the instant case, the wife had complained against her in-laws under Section 498-A of IPC and made specific allegations against her sister-in-law amongst others. The police did not charge sheet sister-in-law as she was living at different place.
The complainant in her evidence before the Court spelt out the specific role played by her sister-in-law who allegedly forcibly took the complainant to a lady doctor with the help of mother-in-law and got planted Copper-T so she may not give birth to any child.
That apart, she also used to instigate the husband of the complainant either on phone or otherwise to assault and humiliate her. Despite this, police did not file charge-sheet against the sister-in-law. Held, under these circumstances adding sister-in-law’s name as an additional accused and issue of process against her did not suffer from any legal infirmity and the Court had power to do so under Section 319, Cr. P. C.
The Rajasthan High Court, in Vishwanath v. State, held that a person who has been an accused in the case and discharged, cognizance against him cannot be taken under Section 319, CrPC, even if the material before the Court during the trial showed that the accused appeared to be guilty and involved in the offence.
In a case relating to adulteration of Vanaspati Ghee, during the trial of the dealer under the Food Adulteration Act, 1954, the Magistrate issued summons to the manufacturer also to be tried jointly with the dealer, the Supreme Court upheld the action of the Magistrate and observed that there was no inhibition on the power of Magistrate to issue notice to the manufacturer during the trial of the offence and in holding a joint trial.
In a case of riot and murder, the widow of the deceased in her statement during trial named two persons other than those who were already charge-sheeted, to have also been involved in the murder.
The High Court of Delhi held that there was strong ground for initiating proceedings against them, as her statement though not cross-examined, could be the basis to form an opinion as to prima facie case against them. The Court further held that one of the newly added person being former Central Minister and a former good practising lawyer, could not be allowed immunity or protection and he should be made to face trial with the accused already charge-sheeted.
During the trial of a murder case, involvement of few more persons was revealed and consequently, warrant for their arrest were issued for trying them along with the other accused. It was held by the Rajasthan High Court that Section 319 of the Code gives ample powers to the Court at any stage of an inquiry or trial of the offence to take cognizance and add any person not being accused before, and try him along with others.
In the case of Sri Mahant Amar Nath v. Haryana, the Supreme Court held that where name of persons were mentioned in the statements made under Section 161 of the Code (i.e., examination of witnesses by police) and yet they had not been charge-sheeted, the trial Court can implead such persons on an application by the approver after taking evidence of eye-witness.
The Supreme Court in the case of Dr. S. S. Khanna v. Chief Secretary, held that where the complaint has been dismissed under Section 203 after the completion of inquiry under Section 202, Cr. P. C. even then criminal proceedings maybe started against the person under Section 319. Therefore, the principle ‘final conviction’ or ‘final acquittal’ does not apply in such cases.
The Apex Court has ruled that power to implead new accused in cases of bribery and corruption in exercise of power under Section 319, Cr. P.C. cannot be given primary over Section 19 of the Prevention of Corruption Act, 1988 which says that mere error, omission or irregularity in sanction is not considered fatal unless it has resulted in failure of justice. Whether sanction is necessary or not has to be considered on the factual scenario.
Requirement of prior sanction is a matter of procedure as per Section 19 (1) of the Prevention of Corruption Act, 1988. The Court set aside the order of the High Court and the trial Court which impleaded two accused in a bribery case ignoring the provision of Section 19 (3) (b) of the Prevent of Corruption Act, 1988.
In Paul Verghese v. State of Kerala & others, the Apex Court analysed the powers of the Court under Section 319, Cr. P.C. in the context of Section 19 of the Prevention of Corruption Act, 1988 and observed that for an offence under Section 19 of Prevention of Corruption Act, a new accused cannot be impleaded until the sanction to prosecute under Section 197 of Cr. P.C. has been obtained from the competent authority. The reason being that the Prevention of Corruption Act, being a special law the provisions of Cr. P.C. (i.e., Section 319 in this case) cannot override the provisions of that Act.
In the instant case the trial Court had misconceived that the provisions of Section 319 of Cr. P.C. would override the provisions of Prevention of Corruption Act and granted permission to implead the accused as a new accused to which the High Court had disagreed. The Supreme Court upheld the verdict of the High Court.
The Supreme Court in Rajinder Singh v. State of U.P. and another observed that power and discretion of Court to summon additional accused cannot be fettered by calling it exercisable only in exceptioned circumstances. The order as to summoning additional accused to face trial would not cease to be operative merely because trial of co-accused was concluded.
In this case the statements of six witnesses which had been recorded by the Investigation Officer under Section 161, Cr. P.C. were held not to be relied upon to summon the respondent accused who could not have been present at the scene of crime. It is left to the judicial discretion of the Court to proceed or not to proceed against a person in terms of Section 319, Cr. P.C.
In Guriya alias Tabussum Tauquir and others v. State of Bihar some prosecution witnesses stated in their evidence about presence of appellants at the scene of occurrence of crime without any definite role being ascribed to them. No steps were taken by the complainant thereafter to summon appellants as accused in the case.
There was no new material after examination of accused under Section 313, Cr. P.C. which could throw light about the involvement of the appellants in the incident. Under the circumstances the Supreme Court held that summoning appellants as accused under Section 319 was liable to be set aside.
In a Sessions trial, the presiding Judge directed five persons to be tried together with four original accused already undergoing trial, the Supreme Court held the order to be valid, but directed that newly added persons should not be made to face ‘he trial of the Sessions Court keeping in view the long lapse of time of eighteen years since the occurrence of the crime.
In the case of Girish Yadav v. State of Madhya Pradesh, four more persons were proceeded against for the offence of murder in the Sessions Court after some prosecution evidence was recorded. They were tried with original accused and all of them were convicted. The appellants challenged the validity of their trial and conviction.
Dismissing the appeal, the Supreme Court observed that the trial Court has been given sufficient power under Section 319 of CrPC to exercise jurisdiction where the evidence showed that there was enough involvement of those persons in the commission of the offence and they stood on the same footing as the charge-sheeted accused and it could not be said that they were wrongly impleaded.
The trial Court may exercise the power under Section 319 suo motu only when there is evidence recorded during the trial showing the involvement of the persons to be added as accused and the evidence recorded during the investigation of the case cannot be relied upon, for the purpose of invoking power under this section.
The High Court of Karnataka in Veeramadaiah v. State, observed that merely because some statements were made against the appellants during the course of examination-in-chief of prosecution witnesses. They (i.e., the appellants) could not be impleaded as accused in a mechanical manner.
There should be reasonable prospects of their conviction. Unless the prosecution witnesses were cross-examined it could not be said that their evidence was fully recorded and complete. Under these circumstances, summoning of appellants as new accused under Section 319 was not valid or justified.
In Bhagwat Bhandari v. State of Jharkhand, the appellant was named in the F.I.R. but was not charge-sheeted and other two accused named in F.I.R. were sent for trial. During the trial, material witnesses had specifically named the appellant for associating with other accused in commission of the offence alleged.
The case was still at the stage of evidence though several witnesses had been examined. Under this situation, the order summoning the appellant to face trial as additional accused under Section 319 was not illegal.
The Supreme Court in Bholu Ram v. State of Punjab held that application for summoning additional accused, i.e., to add new accused, could be filed by the accused and the time limit for filing of such application has been prescribed under Section 319 of Cr. P. C.
The Court further added that order calling additional accused issued by competent Court cannot be recalled nor can it be interfered with by the revisional Court. The reason being that before passing an order for summoning additional accused, the Court takes into consideration the evidence led by the prosecution in which the revisional Court has no power to interfere.
However, before making an order to summon newly added accused the Court must assign cogent reasons for doing so and the order should be passed only because the first informant or one of the witnesses seeks to implicate other persons.