Criminal Procedure Code 1973, Section 319

Criminal Procedure Code, 1973—Section 319—Power of Court to summon under Section 319 on the basis of statement of witness—The Court, held, can exercise the power under Section 319 of the Cr.P.C. even on the basis of the statement made in the examination­in­chief of the witness concerned and the Court need not wait till the cross­ examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross­examination.

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Criminal Procedure Code 1973, Section 319

Criminal Procedure Code, 1973—Section 319—Power of Court to summon under Section 319—A person not named in the FIR or a person though named in the FIR but has not been charge­sheeted or a person who has been discharged can be summoned under Section 319 of the CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination­in­chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.

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Criminal Procedure Code 1973, Section 319

Criminal Procedure Code, 1973—Section 319—Whether Court has power to summon under Section 319 where opportunity to the complainant to file a protest petition has gone—Held, yes—Even in  a  case  where  the  stage  of  giving opportunity to the complainant to file a protest petition urging upon the trial Court to summon other persons as well who were named in the FIR but not implicated in the charge­sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 of the CrPC and even those persons named in the FIR but not implicated in the charge­sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.

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Criminal Procedure Code 1973, Section 319

Criminal Procedure Code, 1973—Section 319—Power of Court to summon under Section 319—Order of the learned Magistrate summoning the appellants to face the trial in exercise of powers under Section 319 of the CrPC—Confirmed in revision by the High Court—Appeal against—In the present case, the appellants were also named in the FIR—However, they were not shown as accused in the challan/charge­sheet—Nothing is on record whether at any point of time the complainant was given an opportunity to submit the protest application against non­filing of the charge­sheet against the appellants—In the deposition before the Court, P.W.1 and P.W.2 have specifically stated against the appellants and the specific role is attributed to the accused­appellants—Held, the statement of P.W.1 and P.W.2 before the Court can be said to be “evidence” during the trial and, therefore, on the basis of the same and as held by this Court in the case of Hardeep Singh vs. State of Punjab (2014) 3 SCC 92, the persons against whom no charge­sheet is filed can be summoned to face the trial—Therefore, no error has been committed by the Courts below to summon the appellants herein to face the trial in exercise of power under Section 319 of the CrPC—Appeal dismissed.
             
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Criminal Procedure Code, 1973, Section 319

Criminal Procedure Code, 1973—Section 319—The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of Supreme Court is this :

(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.

(iii) The phrase “any person not being the accused” occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word ‘evidence’ in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the chargesheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.

(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

(vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly – added persons shall be commenced afresh from the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.


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Criminal Procedure Code, 1973

Criminal Procedure Code, 1973—Section 319—The decision of the Hon’ble Supreme Court in the case of Mohd. Shafi v. Mohd. Rafiq & Anr. (2007) 4 SCR 1023 = 2007(5) SCALE 611, is not an authority for the proposition that in each and every case the Court must wait till the cross-examination is over—Correctness of decision in the case of Mohd. Shafi (supra) insofar as it was held that order summoning the accused may be passed only upon cross-examining the witnesses, having been doubted, has been referred to a three-Judge Bench.