Critical analysis of Section 319 CrPC

 Critical analysis of Section 319 CrPC

Introduction 

There are cases where after the production of evidence, the court thinks that a person other than the accused has committed the offence. In such cases, the court has the power under Section 319 of the Code of Criminal Procedure to summon, detain or arrest such a person after service of notice. Section 319 deals with the power of the court to proceed against other persons appearing to be guilty of such an offence for which the accused is prosecuted. This section talks about additional prosecution, when during the trial it appears to the court that a person who has not been joined as accused in the case has committed the offence, then in such a case, the person can be tried together with the accused. This section ensures justice and takes into account the convenience of both the parties by taking cognizance of the newly added accused in the same case. The code also takes into consideration the interests of the person who has been joined as accused via Section 319(4).

The bench of Justices KM Joseph and PS Narasimha reiterated the findings of Babu Bhai  Bhimabhai Bokhiria & Anr v. State of Gujarat & Ors (2014). The power under Section 319 CrPC cannot be exercised in a casual and cavalier manner. It should be exercised only when strong and cogent evidence occurs against a person.

The Section emphasizes the principle of double jeopardy which has been enshrined in Article 20(3) of the Indian Constitution. The Supreme Court reiterated in Manjeet Singh v. State of Haryana, 2021 that once the accused has been acquitted, he cannot be summoned as an additional accused. It is based on the principle that the culprit must not be acquitted and the accused must not be punished.

Brief summary of Section 319 

The Section deals with additional prosecution. It mandates the court to add any such person to the trial with the accused against whom strong evidence has been presented. Such a person against whom sufficient evidence has been produced and the court is satisfied as to his involvement in the case becomes an accused on the date when the order has been passed by the court. The magistrate has ample powers at any stage of inquiry or trial to take cognizance and add any such person against whom prima facie evidence has been given. Even if the complaint has been dismissed under Section 203 CrPC after the inquiry is completed, it does not bar the court from initiating the proceedings under section 319.

Essentials of Section 319 CrPC

S.319 (1) lays down essentials that need to be satisfied to attract this section –

1. There must be a trial or inquiry of an offence. Section 319(1) makes it mandatory for the courts to exercise their power only during the trial or inquiry of an offence. Section 319(1) gives the court the power to proceed against such a person not being the accused, whom it thinks, from the evidence gathered during the course of inquiry or trial, to have committed the offence. Further, sub clause (2) of the Section also gives additional power to the court to arrest or summon that person if he is not present during the proceedings. In case the person is attending the proceedings, then the court may detain him for the purpose of inquiry under Section 319(3).

2. Court must be satisfied by the evidence presented that any other person other than the accused has committed such an offence. In a recent 2019 Supreme Court case of Sugreev Kumar v. State of Punjab & Ors (2019), a judgment authored by Justice Dinesh Maheshwari for himself and Justice Abhay Manohar Sapre, unequivocally reiterated that to add a person as additional accused under Section 319 of the Code of Criminal Procedure, stronger evidence is required than mere probability of complicity of that person. This is the test that has to be applied while considering an application under section 319. It is settled law that the evidence implicating the person must be cogent evidence and such power must be used by the courts sparingly. 

A similar view has been observed by J. K.M Joseph & J. Narasimha in the case of Ramesh Chandra Srivastava v. State of UP, 2019. The Division Bench said that the test laid down by the bench in this case for invoking power under Section 319 CrPC includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 CrPC should be exercised. In the present case, the wife of the deceased alleged that Srivastava was accessed and he was not summoned, so the court summoned him. He filed an appeal against this order of the lower court which was rejected by the High Court. Later the Supreme Court allowed the appeal by setting aside the High Court’s judgment and directed it to follow the guidelines laid down in Hardeep Singh v. State of Punjab 2014. The test which was laid down by the Court was one which is more than a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if it goes unrebutted, would lead to a conviction. The Court further clarified that the power under this Section is an extraordinary and discretionary power and has to be used sparingly by the courts. Unless the court is satisfied with the involvement of the person, it should not issue a summons or detain him. 

3. Such a person has to be tried together with the accused. He must be tried with the accused simultaneously but according to Section 319 (4)(a), the proceedings against him have to be started de novo and the witnesses have to be examined again.

Only after satisfying the above three conditions, a new accused can be added to the trial.

By whom can the power under Section 319 CrPC be exercised 

This power conferred by Section 319 CrPC can be exercised by the courts. It can be exercised either suo moto or upon application by any person including the accused. This power is discretionary and must be exercised judicially by the courts. The court enjoys extraordinary powers under this section and it must be used sparingly only if evidence compels the court to initiate the proceedings against that person. The trial court can take suo moto cognizance only when there is evidence recorded during the trial which involves the persons to be added as accused and the evidence recorded during the investigation should not be relied upon. The power of the court of taking suo moto cognizance cannot be interfered with by the revisional court only if the court gave cogent reasons while giving such an order. Such order must be given only when the first informant or one of the witnesses seeks to implicate a person other than the accused.

When the court rejects the application more than once on the ground that no prima facie case has been made out, then the revisional court must hear the applicant under Section 401(2) CrPC, and if satisfied the High Court can exercise its powers under Section 397 CrPC by invoking inherent powers under Section 482 CrPC.

This power ordinarily cannot be exercised by the court of sessions according to Section 193 CrPC but with the aid of Section 209 CrPC such a bar is lifted and the court of sessions has complete and unfitted original jurisdiction to take cognizance of the offence which includes the power to summon a person.

Against whom can the power under Section 319 CrPC be exercised 

The court can exercise this power against any person who has not been accused in a case before it. This does not include a person against whom such court has issued summons but includes persons against whom the police investigation was dropped but evidence shows prima facie involvement. However, if a person has been discharged, no proceedings can be initiated against him unless under Section 300(5) CrPC or any higher court decides to try him.

The question of whether a person who has not been named in the charge sheet can be prosecuted under this section has been answered by the courts in the affirmative. Even if such a person was accused in the FIR but the police couldn’t collect cogent evidence against him, still he can be added as an accused. Moreover, the accused against whom proceedings have been quashed can also be prosecuted under this section.

At what all stages throughout the trial can this power be exercised

It must be exercised at the trial or inquiry stage. The trial, in any case, begins once the charges have been framed (in the case where the charge sheet is filed), whereas when the police file a final report, an inquiry by the court takes place. Trial means a determination of innocence or guilt of the accused by examining witnesses and documents. Whereas an inquiry commences after the police files a final report dropping all the charges against the accused person. In such cases, the court may initiate a further inquiry into the matter if it thinks it fit or if the other party files a protest petition. The Court in Hardeep Singh v. State of Punjab, 2014  has put a restriction on the power of the magistrate provided under Section 319. It clarified that the magistrate is forbidden to exercise its powers when the case is at the stage mentioned in Section 207 CrPC to Section 209 CrPC. The magistrate cannot take cognizance at this stage of the proceedings.

The question as to whether the court of the session has the power under Section 319 to summon the additional accused before the stage of recording evidence has been considered by the Supreme Court in Ranjit Singh v. State of Punjab (1998), in which it observed that once the sessions court has taken cognizance, the power to add any person as an accused can be exercised only after reaching the stage of evidence collection and not before that.

The powers under Section 319 cease to exist with the end of trial i.e. pronouncement of judgment. Although a witness must be cross-examined before implicating him, under Section 319 prima facie evidence is sufficient to implicate a person and initiate proceedings against him. Cross-examination is not a prerequisite to summoning an accused under Section 319. These powers could be exercised by the court upon completion of an examination in chief. The Court in Saraba Reddy v. Puthur Rani Reddy (2007) has held that a plea of alibi does not discharge the person and he can still be summoned under this section.

The precedent set by the Court in Rajindra Singh v. the State of UP (1959) clarified the documents which could be relied upon for summoning a person under Section 319. It held that the material evidence which has been laid before the court has to be taken into consideration and not the case diary or charge sheet or affidavits or statement recorded under Section 161 CrPC. Moreover, it was held that adding an accused merely on the suspicion of a witness would be a travesty of justice because hearsay evidence cannot be made admissible in the court of law.

Prior notice to accused is necessary or not-

As a general rule, criminal courts are bound to issue a notice of summons for the appearance of a person in the court. The court must issue such notice for adding the person as an accused only when it is satisfied that the evidence implicates the accused. He must be given the opportunity of being heard, only after which the order under section 319 can be passed by the court.

The courts have also clarified their position in cases where the trial court has already taken cognizance within the limitation period but the application under Section 319 has not been passed for 3 years, even then the limitation provisions won’t apply to the procedure laid under Section 319. The Court’s powers under Section 319 are not bound by the limitation period.

Case laws surrounding Section 319 CrPC

The most important case which laid down the object of Section 319 was the case of Hardeep Singh v. the State of Punjab (1947) wherein the Supreme Court held that the cases under this section must not only be disposed of expeditiously but also simultaneously.

The Court clarified in the case of R.C Kumar v. the State of A.P (1990) what will be considered as evidence under Section 319. Evidence will include only the statement of witnesses as recorded by the court and not those which are recorded by police under Section 164 CrPC or by a magistrate under Section 202 CrPC. Evidence must be of such nature that it must fulfill all the essentials of the offence for which the accused is presented and enough to make out a prima facie case against the accused person. It is not necessary for such evidence to result in the conviction of the accused but must be sufficient to initiate proceedings against him. The courts have also held that a statement expressing mere apprehension or suspicion about a person that too, is not related to cause of death or transaction leading to death is not sufficient to arraign the appellant as accused in the case.

In Suman v. State of Rajasthan (2009), the Supreme Court held that Section 319 permits adding a new person as accused who was named in the FIR but was not included in the charge-sheet. If the court is satisfied by the evidence produced, that such person has committed an offence and must be tried for it then he can proceed under this section. Whereas if the person has been tried before and has been discharged, then cognizance against him cannot be taken under Section 319 even if evidence points towards his involvement in the offence as it would result in double jeopardy.

Conclusion 

Although almost all aspects of Section 319 CrPC are well settled, there remains a lacuna in some aspects of it. In a recent case of Sukhpal Singh Kharia v. State of Punjab(2019) Criminal appeal 866 of 2019, the Supreme Court pointed out a few points for which no precedents exist-

The court emphasized that no guidelines have been laid down for the courts to follow while exercising its power under Section 319 CrPC. Although the power under this Section is discretionary, it must be used sparingly and in the absence of guidelines, it gives room to arbitrariness.

Another lacuna on which the courts stressed on was – although the precedents have laid down that the stage until which a new accused can be joined is only till the trial or inquiry stage but what happens when the trial of the accused is complete and the judgment is pronounced on the same date along with the summoning order of the new accused. There is no precedent affirming or denying this position. These questions still need to be addressed in a court of law.