Allahabad High Court: Dr Y.K. Srivastava, J., while examining the ambit and scope of Section 319 of the Code of Criminal Procedure, 1973 explained that,
“…broad principles which have been laid down for exercise of powers under Section 319 of the Code underline the object of the enactment that the real perpetrator of the offence should not get away unpunished and in a situation where the investigating agency for any reason does not array any culprit as an accused the court would not be powerless in calling the accused to face trial.”
Instant criminal revision had been filed seeking to set aside the decision passed by Additional Sessions Judge under Sections 307, 504 of Penal Code 1860 arising out of a case on the application of OP 2 filed under Section 319 of the Code of Criminal Procedure, 1973.
Ambit and Scope of Magistrates’ powers
Scope and the ambit of the powers of the Magistrate under Section 319 of the Code were considered in the Constitution Bench judgment of the Supreme Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92. Referring to the object of the provision it was held that the object of the provision was that the real culprit should not get away unpunished and in a situation where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.
Further, with regard to the degree of satisfaction required for invoking the powers under Section 319 of the Code, it was held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, is goes unrebutted, would lead to conviction.
The question as to what situations power under the Section 319 of the Code of Criminal Procedure, 1973 can be exercised in respect of persons not named in the FIR or named in FIR, but not charge-sheeted or discharged was also considered, and it was held that a person whose name does not appear even in the FIR or the charge-sheet or whose name appears on the FIR and not in the charge sheet, can still be summoned by the Court provided the conditions under the said Section stand fulfilled.
Elaborating further, power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted, was reiterated in Rajesh v. State of Haryana, (2019) 6 SCC 368 and it was held that persons named in the FIR but not implicated in charge- sheet can be summoned to face trial, provided during the trial some evidence surfaces against the proposed accused.
The court below had taken note of the fact that the revisionist was not only named in the F.I.R. but was also assigned a role in the incident.
Upon considering the settled legal position with regard to exercise of powers under Section 319, the court below passed the order summoning the revisionist.
Moving further, the Bench expressed that Section 319 (1) of the Code envisages that 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.
High Court held that power under Section 319 of the Code to summon even those persons who are not named in the charge-sheet to appear and face trial, being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scot-free by being not arraigned in the trial inspite of possibility of his complicity which can be gathered from the evidence during the course of trial, the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference.
Applicant’s counsel stated that it would not dispute the aforementioned legal position with regard to the exercise of powers under Section 319 of the Code and stated that the applicant would submit to the jurisdiction of the court below and seek bail.
In view of the above discussion, the revision stood dismissed. [Mishri Lal v. State of U.P., 2021 SCC OnLine All 839, decided on 4-12-2021]
Advocates before the Court:
Counsel for Revisionist: Kamal Dev Rai
Counsel for Opposite Party: G.A.