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The Top Court in its judgment dated March 15, 2021, held, Accused can be summoned on the basis of Examination in Chief alone and the Court need not wait uptil Cross Examination.

A Division Bench of Justice D.Y. Chandrachud and Justice M.R. Shah, while allowing the present appeals, observed, “If on the basis of the examination in chief of the witness, the Court is satisfied that there is a prima facie case against the proposed accused, it may in exercise of powers under Section 319 CrPC, array such a person as accused and summon him to face the trial.”

Appellants had approached the Top Court against the impugned order of Punjab and Haryana High Court, by which revision application was allowed, quashing and setting aside the order dated 21.04.2018 passed by learned Trial Court summoning the Private Respondents.

Issues

1. What is the stage at which power under Section 319 CrPC can be exercised?
2. Whether the word ‘evidence’ used in Section 319(1) CrPC could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
3. Whether the word ‘evidence’ used under Section 319(1) CrPC is used in a comprehensive sense, including evidence gathered during investigation or is limited to recording of evidence during trial?
4. What is the nature of satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted?
5. Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

Observations

With respect to Issue 1, reliance was placed on Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, wherein the Court noted, “Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.”

Impliedly, Courts have wide jurisdiction to exercise powers under Section 319 CrPC, post-trial and in exceptional circumstances even otherwise (enquiry), in order to do complete justice.

Para 17 of the aforementioned judgment further states, “Section 319 CrPC allows the Court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge sheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the Court that is to be considered for the purpose of trying the offence, but not investigated.”

For Issue 2, the Bench referred Para 86 to 92, where it has been expressly concluded that power under Section 319 CrPC can be exercised at the stage of completion of examination in chief and the Court need not wait till the said evidence is tested on cross-examination.

With respect to Issue 3, reference was drawn to Para 78 & 83 of same case, where the Court noted, “Evidence in Section 319 CrPC means only such evidence as is made before the Court, in relation to statements, and as produced before the Court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation…  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 utilise 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.”

Answering Issue 4, the Bench relied on Para 106, where it was observed 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, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 CrPC.”

Reiterating the position on Issue 5, Court considered Para 116 of the judgment, where it has been said, “Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheer and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300 (5) read with Section 398 CrPC.”

Case title: Sartaj Singh v. State of Haryana | CRIMINAL APPEAL NO. 298 – 299 of 2021

Statute/Law point involved: Section 319 Code of Criminal Procedure, 1973