Author: Nathan Gomes Student, Gujarat Law Society, Ahmedabad
It is pertinent to note that many appeals come to be filed against the order of the trial courts adding any person not being accused before it and thereby try that accused along with other accused sent up for trial. When we use the phrase “any person not being accused before it” what we mean by this is that, a person who has been involved in the offence but not named in the FIR or the person who have been named in the fir but have been dropped from the investigation and thereby not charge sheeted or the person who has not been tried. The question here is as to why such appeals come up before the Constitutional Courts against the orders of the Trial Court? The present article shall deal with the aforementioned proposition in detail.
Section 319: Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) The proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced[1].
Operative Portion
The aforementioned provisions makes it amply clear with regard to the power of the courts to proceed against any person not sent for trial. As mentioned before the words “any other person” here means the person who is not facing trial or the person who has not being tried in the court. The very purpose of this provision is that the person who has been dropped by the police during investigation and against whom there is evidence showing his involvement comes before the Criminal Court. This section thereby gives ample power to the court to thereby take cognizance and add any person accused before it and try that person in the same manner as if he was a party when it had taken cognizance of the case.
However the Constitutional courts have time and against reiterated that the powers granted to the courts under section 319 of the Crpc are extraordinary powers and thereby shall be used sparingly and in situations which compel the courts to exercise these powers. The Court also observed that these powers shall not be exercised just because the Magistrate or a Sessions Judge are of the Opinion that some other person may also be guilty of the offence. Only in situations where there are strong and cogent evidence against the said person, should the courts exercise the powers under section 319 and not in a casual and cavalier manner[2]. A similar view was taken by the three judge bench of the Hon’ble Apex Court, where it placed reliance of the aforementioned judgment and observed that the extra ordinary powers of the trial court granted under section 319 of the Crpc shall be used sparingly[3], in addition to the same it also observed that the test which is to be applied is one which is more than just a prima facie case, but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction[4].
There are some important questions that come to our mind are that how can this power be exercised by the trail court? When can these powers be exercised? What does the word ‘evidence’ actually mean? When can it be invoked or rather at what stage can it be invoked? When is the powers used under this section not justifiable?
While answering the first question as to how can this power be exercised by the Trail court, what has been observed in the case of Guriya v. State of Bihar[5] is that the powers under section 319 of the Crpc can be exercised by the court either suo moto or on application by someone “including the accused before it”, if the court is hereby satisfied that the person other than the accused has committed the offence and he needs to be tried along with the accused, however these powers shall be used judiciously depending of the facts and circumstances of the case. However these powers are circumscribed by limitations[6].
While answering the second question as to when can these powers be exercised, it has been observed in the case of Kishun Singh v. State of Bihar[7], that the powers can be exercised only if it appears from the evidence adduced during inquiry or trail the involvement of the said person in the offence being inquired or tried. It is amply clear that the cognizance in the said section against this person added shall be deemed to be taken in the same manner in which the cognizance of the earlier accused was taken[8].
While answering the third question as to what does the term evidence actually mean, it has been a settled through the decision in Ranjit Singh v. State of Punjab[9], that the word evidence envisaged under section 319 of the Crpc is an evidence tendered during trail of the case if the offence is triable by the Sessions Court. One of the basic rule of criminal proceeding is that any case, even if that case falls outside the ambit of the jurisdiction of the magistrate is first brought before the magistrate who first takes cognizance of the case under section 190 of the Crpc and then if finds that the said case is triable by the sessions court, commits the case to the sessions court, who shall take again take cognizance of the said case under section 193. The reason for referring to the same is for a simple reason that the Court of Sessions cannot directly take cognizance of any offence as a court of original jurisdiction unless the same is committed to it by the Magistrate. Therefore what I tend to clarify by referring to this is that any material which is placed before the magistrate (Committal Court) cannot be treated as evidence[10]. Therefore anything placed before the Magistrate before he commits the case to the Court of Sessions would not be considered as evidence.
While answering the fourth question as to when can it be invoked or rather at what stage can it be invoked, it is very well settled that the power of the Court of Sessions to add a new person as accused under section 319 Crpc, cannot be invoked prior to the stage of collection of evidence[11]. However where the stage or trail has not commenced nor any evidence is led, the court of sessions under section 193 of the Crpc shall have the power to summon any other person whose complicity in the crime appears prima facie from the case records. In other cases where the statement of the witness under section 161 of the Crpc shows a person as an active participant of the said crime then in such case the Court of Sessions shall summon that person[12]. The Supreme Court in one of its recent judgement reiterated that an accused can be summoned under section 319 of the Crpc even on the basis of the examination in chief of the witness and the court shall not wait for the cross examination[13]. Therefore when on evidence of the prosecution witness, if names of the other persons transpired as accused, the court shall invoke section 319 of the Crpc to summon them without even issuing a prior notice.
While answering the fourth question as to when the exercise of such powers is not proper, it has been observed that when there is no evidence against the said person sought to be summoned, the aforementioned provision cannot be invoked as invoking the same would not be proper[14]. However when the person has been named in the FIR but has not been charge sheeted, in this case when the court invokes section 319 of the Crpc and summons any person on the basis of the evidence of the eye witnesses, it cannot be said that the said persons were wrongly impleaded[15]. Therefore it is very clear that even if the person has not been named in the charge sheet, the trial court has adequate powers to summon such unnamed person under section 319 of the Crpc[16].
Conclusion
Therefore I would conclude by saying that, subsequent impleadment of a new accused after taking cognizance will not affect the pending proceedings in view of section 319(4) as it will be presumed that the newly added accused had been an accused person when the court took cognizance of the offence[17]. However these powers being extra ordinary have to be exercised sparingly.
[2] Hardeep Singh v. State of Punjab & Ors (2014) 3 SCC 92
[3] Bittu v. State of Uttarakhand LL 2021 SC 54
[4] (2014) 3 SCC 92
[5] (2007) 8 SCC 224
[6] AIR 2002 SC 2989
[7] (1993) 2 SCC 16
[8] 1994 Cr Lj 505, AIR 1990 SC 2158
[9] AIR 1998 SC 3148
[10] AIR 1998 SC 3148
[11] AIR 1998 SC 3148
[12] 1994 Cr LJ 305 (Cal)
[13] Sartaj Singh v. State of Haryana LL 2021 SC 161
[14] 1994 Cr LJ 2157
[15] (1996) 8 SCC 186
[16] AIR 2015 SC 923
[17] (2007) 8 SCC 224