OVERVIEW
Can a person who is neither named in the first information report (“FIR”) nor mentioned in the chargesheet, be summoned by a trial court later to face trial as an accused in respect of the very same FIR and chargesheet? If so, what would be the threshold and under what circumstances can such power be exercised?
We answer these questions in the present article, in light of the common judgement, dated May 2, 2024, in Shankar v State of UP and Ors. (“Shankar”)[1] and Vishal Singh v State of UP and Ors (“Vishal Singh”)[2] [hereinafter referred to as the “Shankar Judgement”].
TRIAL COURT VESTED WITH POWER TO SUMMON ADDITIONAL ACCUSED?
At the outset, it would be apposite to note that Section 319 of the Code of Criminal Procedure, 1973 (“CrPC”), titled ‘Power to proceed against other persons appearing to be guilty of offence’,expressly confers the trial court with power to summon an additional accused.
The relevant portion of Section 319 is reproduced for ease of reference:
“319. Power to proceed against other persons appearing to be guilty of offence-
- 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.
- ***
- ***
- ***”
Thus, as is apparent from a bare perusal, the power under Section 319 is a discretionary power, which the trial court can exercise when it “appears from the evidence”that the person, “not being the accused”has committed any offence for which he could be tried along with the other accused.
The Shankar Judgement sheds light on how this discretion under Section 319 CrPC is to be exercised.
THE SHANKAR JUDGEMENT
The Hon’ble Supreme Court was considering an appeal against a judgement passed by the Hon’ble High Court of Allahabad (“High Court”). In the said judgement, the Hon’ble High Court upheld the Ld. Trial Court’s order under Section 319 CrPC, issuing summons to two additional accused persons, who were the appellants before the Supreme Court. The validity of the order passed under Section 319 CrPC was under consideration before the Hon’ble Supreme Court.
Prior to delving into the law, the Hon’ble Supreme Court took note of certain key factual aspects in the matter, which have been summarised as under:
- The informant informed the police about the death of her son in a nearby field.
- In her statement, she said that the appellants were involved in the murder.
- A FIR was lodged on May 08, 2011.
- Later, in her statement under Section 161 CrPC, the informant inter alia said that she had named the appellants incorrectly. Also, she had not seen the appellants murder her son and that she had named them because of long-standing family animosity.
- Subsequently, a chargesheet was filed on June 22, 2011, which did not contain the names of either of the appellants as accused.
- During her examination on May 20, 2016, during the trial, the informant (PW/1) initially said that she had taken the names of the appellants on account of long-standing animosity.
- However, later, during the examination, she denied the suggestion that she had wrongly taken the names of the appellants due to previous animosity.
- None of the other five prosecution witnesses mentioned the names of the appellants.
- Based on the statement of the informant/PW-1, on July 31, 2017, the state filed an application under Section 319 CrPC to summon the appellants to face trial.
- This application was allowed by the Ld. Trial Court on August 24, 2017.
- The Hon’ble High Court did not exercise its jurisdiction under Section 482 CrPC and declined to interfere with this order of the Ld. Trial Court under Section 319.
Having noted the facts, the court referred to its constitution bench judgement in Gurmail Singh v. State of Uttar Pradesh [3] (“Gurmail Singh”), which set out the law as under:
- The power under Section 319 CrPC is discretionary and extraordinary – which should be used sparingly.
- For the extraordinary power under Section 319 to be exercised, “the court must satisfy itself about the existence of an exceptional circumstance”.
- The threshold of taking cognisance of an offence is a prima facie test. Under Section 319 CrPC, the prima facie test remains the same, but the degree of satisfaction is much higher.
- This power under Section 319 cannot be exercised merely on probability of complicity of the accused, but must be the result of cogent evidence on record.
Having noted the law in Gurmail Singh, the Court further clarified the position as under:
- Only when evidence is strong and reliable can power under Section 319 CrPC be exercised.
- The strength of evidence needs to be much stronger than ‘mere probability’ of the person’s complicity in an offence.
- What ought to be considered is that if the evidence on record goes unrebutted, it would lead to the conviction of the person sought to be summoned as the accused.
Applying the aforesaid legal position to the facts, the Court allowed the appeal and set aside the orders of the Hon’ble High Court and the Ld. Trial Court.
In doing so, the Court noted how the Ld. Trial Court had summoned the appellants based on just the statement of informant/PW-1, who was not an eyewitness and had twice admitted to mentioning the names of the appellants only on account of previous animosity. The court further noted that none of the other witnesses had named the appellants.
Accordingly, the conditions for exercise of extraordinary power under Section 319 had not been met and the order of summoning the appellants was thus held to be bad in law.
ANALYSIS
Section 319 of the CrPC is an enabling provision, which empowers the court to summon an accused to face trial, based on evidence, which may have been discovered belatedly. Such a summon would, by nature, be extraordinary, since the person being summoned to face trial would not have been named an accused either in an FIR or in the subsequent chargesheet filed under Section 173(2) CrPC, after police investigation.
Hence, as clarified by the Hon’ble Supreme Court in Gurmail Singh and the Shankar Judgement, the power under Section 319 CrPC is discretionary, extraordinary, and only to be exercised based on strong, cogent evidence and not merely on a ‘probability’.
As seen in the Shankar Judgement, the Hon’ble Supreme Court illustrated how high the standard is for exercise of this power. The Court further explained how, in those facts, this standard had clearly not been met, inter alia on account of the summons being based solely on the statement of a witness, who was not an eyewitness, and had given contrary statements previously. Also relevant was the fact that the other witnesses had not mentioned the persons summoned. In other words, the evidence on record was not such that if ‘unrebutted’ would result in the conviction of the summoned persons.
While at first blush this standard may seem exacting, it does stand to reason. A person whose involvement in an offence is not alleged at the initial stage of the FIR nor after an investigation (culminating in a chargesheet), should not be roped into a criminal trial as a matter of course.
It is true that Section 319 CrPC confers a wide, extraordinary, enabling power on the court to bring anyone who may have committed an offence into the criminal trial process. Equally, there is a high bar for exercising this power to ensure that it is not done casually or simply as a matter of course, but is backed by weighty evidence, justifying the discretionary exercise of such an extraordinary power. A possible offender ought not to go free simply because he was not named in the FIR or chargesheet. Similarly, a person, not being an accused in the FIR or chargesheet, should not be dragged into a criminal trial routinely, unless strong, compelling evidence exists. This balances the interests of an individual, while also preserving the sanctity of the criminal trial process.
For further information, please contact:
Kapil Arora, Partner, Cyril Amarchand Mangaldas
kapil.arora@cyrilshroff.com
[1] Criminal Appeal No. 2367 of 2024
[2] Criminal Appeal No. 2368 of 2024
[3] (2022) 10 SCC 684
