'X’, on hearing that his brother Y was being beaten up by an iron rod by Z, reached the spot…During interrogation, two witnesses claimed to have seen and heard beforehand A, brother of Z, to have exhorted the accused to kill the deceased… Decide X’s application.

Question: ‘X’ on hearing that his brother Y was being beaten up by an iron rod by Z, reached the spot. He found the accused abusing and saying to the victim that he would not let him remain alive. On seeing ‘X’ and others coming, he ran away. ‘X’ removed his injured brother to the hospital, where Y died. ‘X’ reported the matter to the police, naming Z as the sole accused of the crime.

During interrogation, two witnesses claimed to have seen and heard beforehand A, brother of Z, to have exhorted the accused to kill the deceased, whereas the actual assailant is said to have assaulted the deceased. Police filed a challan against Z on the basis that A was not involved in the crime. X moved an application before the Magistrate to summon A also so as to send him to stand for trial alongside Z before the Court of Sessions. Decide X’s application. [D.J.S. 1996]

Find the answer only on Legal Bites. [‘X’, on hearing that his brother Y was being beaten up by an iron rod by Z, reached the spot…During interrogation, two witnesses claimed to have seen and heard beforehand A, brother of Z, to have exhorted the accused to kill the deceased… Decide X’s application.]

Answer

For the summoning of any person who appears to be guilty of offence, the provision has been enacted in Section 319 of CrPC, which is reproduced as under:-

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 afresh, and 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.”

According to section 319 of the Code of Criminal Procedure, the Court is empowered to proceed against any person not shown or mentioned as accused if it appears from the evidence that such person has committed an offence for which he could be tried together with the main accused against whom an inquiry or trial is being held.

An order under the section cannot be passed only because the first informant or one of the witnesses seeks to implicate other persons. The Court has to assign sufficient and cogent reasons for exercising power as held by the Hon’ble Supreme Court in the case of Sarabjit Singh v. State of Punjab, AIR 2009 SC 2792.

The object underlying section 319 is expeditious and simultaneous disposal of the case against all the accused persons.

Moreover, the wordings used in Section 319 of CrPC that “where, in the course of any inquiry or trial of offence, it appears from the evidence that any person not been the accused has committed any offence………………” shows the intention of the law that there must be some cogent evidence on record for summoning any person under the Section.

In this context, the Hon’ble Apex Court has held in Rajesh and Others v. State of Haryana [2019 (108) ACC 978] –

“It is, therefore, not any material that can be utilized, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilize or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material that is not exactly evidence recorded before the court but is a material collected by the court, can be utilized to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused.”

The word “evidence”, therefore, has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319, CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court become more onerous to invoke such powers cautiously on such material after evidence has been led during the trial.”

The prime facie opinion to be formed for the exercise of this power requires stronger evidence than the mere probability of a person’s complicity. The test to be applied is the one which is more than a prima facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.

While applying the above-mentioned principles to the facts of the present case at hand, it is clear that the consideration of the application under Section 319 CrPC in the orders impugned had been as if the existence of a case beyond reasonable doubt was being examined against the proposed accused persons. In other words, the Trial Court and the High Court have proceeded as if an infallible case was required to be shown by the prosecution in order to proceed against the proposed accused persons. Hence X application to array proposed accused A should be decided accordingly only on the basis of the cogent evidence produced.

Therefore, Section 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution.

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