Court’s decision
The Bombay High Court set aside a Sessions Court order that had added three persons as accused under Section 319 of the Code of Criminal Procedure in an ongoing assault trial. The High Court held that the power to summon additional accused is extraordinary and must be exercised sparingly, only when strong and cogent evidence indicates their involvement. Finding that the Trial Court failed to apply the higher threshold mandated by Supreme Court precedent, the High Court quashed the addition of the three individuals. However, it upheld the refusal to add two other proposed accused as conspirators.
Facts
The case arose from an incident dated 1 May 2020 involving an alleged assault. The First Information Report was lodged on 3 May 2020 and named seven persons as assailants. The FIR described three episodes occurring the same day at different times. Notably, the three individuals later added as accused were not named in the FIR.
Statements of several eye-witnesses, including injured witnesses, were recorded under Section 161 of the Code of Criminal Procedure. These statements also did not mention the subsequently added accused. After investigation, the police filed a charge-sheet against the originally named accused only.
Subsequently, during trial, the complainant’s examination-in-chief attributed specific roles to the three persons who had not been charge-sheeted. An application under Section 319 of the Code of Criminal Procedure was filed seeking their addition, along with two others alleged to be conspirators. The Trial Court partly allowed the application, adding three persons as accused while rejecting the addition of the two alleged conspirators.
Both sides approached the High Court challenging different portions of the same order.
Issues
The High Court was required to determine whether the Trial Court correctly exercised its discretionary power under Section 319 of the Code of Criminal Procedure. The central issue was whether the evidence led during trial, particularly the examination-in-chief of the complainant, met the stringent standard required for summoning additional accused.
A secondary issue was whether the Trial Court erred in refusing to add two other persons as conspirators in the alleged offence.
Petitioner’s arguments
The petitioners challenging their addition as accused argued that they were never named in the FIR or in the statements of injured eye-witnesses recorded during investigation. Their names surfaced only later in the complainant’s statement under Section 164 of the Code of Criminal Procedure and subsequently in his deposition before the Trial Court. They contended that such belated inclusion amounted to an improvement and lacked credibility. Relying heavily on Supreme Court jurisprudence, particularly the Constitution Bench ruling in Hardeep Singh v. State of Punjab, they argued that Section 319 requires evidence stronger than a mere prima facie case. According to them, the Trial Court failed to record the requisite degree of satisfaction and mechanically acted on the untested testimony of the complainant.
Respondent’s arguments
The complainant and the State defended the Trial Court’s order, contending that the complainant had raised a grievance about non-inclusion of certain names soon after the incident. They pointed to a written complaint addressed to the Superintendent of Police and to the statement recorded under Section 164 of the Code of Criminal Procedure, in which specific roles were attributed to the proposed accused. It was argued that the complainant’s examination-in-chief clearly described overt acts and participation in the assault. The respondents further maintained that the Trial Court was not required to await cross-examination before exercising power under Section 319, as clarified in subsequent Supreme Court decisions.
Analysis of the law
The High Court undertook a detailed analysis of Section 319 of the Code of Criminal Procedure, which empowers a court to proceed against any person not being an accused if it appears from the evidence that such person has committed an offence triable together with the accused.
Relying on the Constitution Bench judgment in Hardeep Singh v. State of Punjab, the Court reiterated that this power is discretionary and extraordinary. It is not to be exercised casually or merely because another view is possible. The standard required is higher than that for framing a charge. The Court must be satisfied that the evidence is strong and cogent and that, if unrebutted, it would reasonably lead to conviction.
The High Court also considered later Supreme Court rulings, including Hetram @ Babli v. State of Rajasthan, which clarified that consideration of an application under Section 319 need not be deferred until cross-examination is completed. However, even at the stage of examination-in-chief, the quality of evidence must meet the heightened threshold.
Precedent analysis
In Hardeep Singh v. State of Punjab, the Constitution Bench clarified that Section 319 confers an extraordinary power to be exercised sparingly. The Court held that mere probability of involvement is insufficient; strong and cogent evidence must emerge during trial.
The High Court also examined Rajendra Singh v. State of Uttar Pradesh, Mohd. Shafi v. Mohd. Rafiq, and Sarabjit Singh v. State of Punjab, all of which emphasize the necessity of a stringent test before summoning additional accused.
Further reliance was placed on Hetram @ Babli v. State of Rajasthan, where the Supreme Court observed that courts must consider the entire evidence available at the stage of deciding a Section 319 application and cannot ignore material contradictions or omissions.
Applying these precedents, the High Court concluded that the Trial Court had not properly assessed whether the complainant’s testimony, viewed in light of prior omissions, satisfied the stringent test.
Court’s reasoning
The High Court observed that the petitioners were neither named in the FIR nor in the statements of injured eye-witnesses recorded during investigation. Their alleged roles surfaced only later in the complainant’s statement under Section 164 and in his examination-in-chief.
Significantly, one injured witness whose role was described in the complainant’s testimony had not attributed any such involvement to the petitioners in his own statement under Section 161. These omissions were material and went to the root of the prosecution case against the newly added accused.
While the Trial Court was correct in not deferring the application solely because cross-examination was pending, it failed to evaluate whether the evidence met the degree of satisfaction mandated by the Constitution Bench. The High Court held that summoning an accused is a serious matter and cannot be treated as a perfunctory exercise.
Thus, the addition of the three petitioners was unsustainable. However, the Trial Court’s refusal to add the two alleged conspirators was upheld, as the evidence against them was found to be speculative and fanciful.
Conclusion
The Bombay High Court allowed the writ petition filed by the three newly added accused and quashed the order summoning them under Section 319 of the Code of Criminal Procedure. The connected petition seeking addition of two other persons as conspirators was dismissed. The Court clarified that its observations were prima facie and would not influence the Trial Court while adjudicating the case on merits against the charge-sheeted accused.
Implications
This ruling reinforces the stringent safeguards surrounding Section 319 of the Code of Criminal Procedure. It underscores that courts must apply a higher evidentiary threshold before summoning additional accused during trial. Mere improvements in testimony, especially when contradicted by earlier omissions in the FIR and witness statements, cannot justify exercise of this extraordinary power.
The judgment sends a strong message that summoning additional accused is not a routine procedural step but a serious judicial act requiring careful scrutiny. For trial courts across India, the decision serves as a reminder to meticulously apply the standards laid down by the Supreme Court before invoking Section 319.
Case law references
- Hardeep Singh v. State of Punjab (AIR 2014 SC 1400)
A Constitution Bench held that Section 319 confers an extraordinary and discretionary power. The court must find strong and cogent evidence, higher than a prima facie case, before summoning additional accused. The Bombay High Court relied on this principle to quash the addition of the petitioners. - Rajendra Singh v. State of Uttar Pradesh (AIR 2007 SC 2786)
The Supreme Court clarified that the court must apply its mind to the evidence before invoking Section 319. The High Court cited this to stress judicial discretion. - Mohd. Shafi v. Mohd. Rafiq (AIR 2007 SC 1899)
Held that there must be a possibility of conviction before summoning an accused. The High Court used this reasoning to test the credibility of the complainant’s testimony. - Sarabjit Singh v. State of Punjab (AIR 2009 SC 2792)
Emphasized that a higher standard applies for invoking Section 319 than for framing a charge. The High Court reiterated this principle. - Hetram @ Babli v. State of Rajasthan (2024)
Clarified that courts need not wait for cross-examination but must consider the quality of evidence available. The High Court applied this to hold that even examination-in-chief must meet the stringent test.
FAQs
1. What is Section 319 of the Code of Criminal Procedure?
Section 319 allows a court to summon and try a person not originally accused if evidence during trial suggests their involvement in the offence.
2. Can a court add an accused based only on examination-in-chief?
Yes, but the evidence must be strong and cogent. It must meet a higher standard than that required for framing charges.
3. Does omission in the FIR weaken a Section 319 application?
Material omissions in the FIR and witness statements are relevant factors. If new allegations emerge later without strong corroboration, courts may refuse to summon additional accused.
