Setting aside Summoning orders under Section 319 of the Criminal Procedure Code
Note – In the article, Criminal Procedure Code 1973 and CrPC are used interchangeably.
Setting aside Summoning orders under Section 319 of Criminal Procedure Code
Note – In the article, Criminal Procedure Code 1973 and CrPC are used interchangeably.
The process of bringing criminals to justice goes through various stages, which include, investigation, inquiry, trial, and appeal. All these stages contribute towards bringing the accused justice in accordance with the law.
The inquiry and trial are complicated processes where the judicial authorities deal with vast amount of evidence. The role of the Trial Court is to sift through the evidence and determine whether the charges are established by the prosecution or not.
However, the role of the court is not just to follow the letter of the law, but the spirit of the law as well. The role of the court is not to mechanically determine the guilt of the accused, but to bring justice to the victim and society in accordance with the law. Section 319 of the Criminal Procedure Code manifests the idea of justice and the role of the Trial Court to do justice in accordance with the law.
What is Section 319 of Criminal Procedure Code?
Section 319 of the Criminal Procedure Code 1973 provides for an additional power vested in the Trial Court to proceed against persons appearing to be guilty of the offence. If such a person is not attending the court, then the Court may summon or call for the arrest of such person, as the circumstances require.
Section 319(4) of the Criminal Procedure Code provides that once the Court proceeds against such a person, fresh proceedings shall be commenced against such person and witnesses shall be re-examined. However, the Court may also proceed as if the person had been an accused person. Hence, a de-novo trial must be initiated.
What is the satisfaction test for the Court before exercising the power under Section 319?
The Hon’ble Supreme Court in a number of judgments has provided that the power under Section 319 of the Criminal Procedure Code must not be exercised in a casual and cavalier manner. It must only be exercised when strong and cogent evidence occurs against such a person.
To proceed against an accused is no easy process. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319, though the test of the prima facie case is the same, the degree of satisfaction that is required is much stricter. The evidence needs to be much stronger than the mere probability of complicity.
The test for Section 319 of the Criminal Procedure Code is that one which is more than a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if it goes unrebutted, would lead to a conviction.
Moreover, such a power of additional prosecution must be exercised sparingly and only in such cases where the circumstances of the case so warrant.
When can the power under Section 319 be exercised?
After committal, cognizance of an offence can be taken against a person not named as an accused in the Charge-Sheet and not facing trial but against whom materials are available from the papers filed by the police after the completion of the investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till ‘evidence’ under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e.
(1) Inquiry
(2) Trial.
As a trial commences after the framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in the course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C.
Who can be summoned?
A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial.
Proceedings Before High Court
Whenever a summoning order is issued under Section 319 of the Criminal Procedure Code, the same can be challenged before High Court and prayer can be made for quashing or setting aside such an order passed under Section 319 of the Criminal Procedure Code. Such powers can be exercised under revisional jurisdiction, inherent jurisdiction of the High Court under Section 482 of CrPC, or under statutory jurisdiction, for example, Section 14A(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. The Hon’ble Apex Court in a catena of decision laid down the law in this regard and also streamlined the circumstances under which the order passed under section 319 Cr.P.C. can be quashed.
A petition before the High Court with such a prayer requires careful perusal of the evidence, chargesheet, and other documents relevant during the trial and inquiry, and an astute presentation of provisions of law.