This article has been written by RaghuRagha Shridhar, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
Introduction
In some cases, during the proceedings of the trial of an offence, it appears that a person other than the accused person has committed the said offence, then, the Court has the power to call such other person and to join him in the proceedings for the said offence. Such other people are also known as additional accused. For securing the appearance for inquiry and trial of the said offence, of the additional accused before the Court, the Court has the power to summon, arrest or detain the additional accused. In such situations, fresh proceedings are commenced against the additional accused and the witnesses are heard again and the case should proceed as if the additional accused had been an accused when the Court took cognizance of the offence. The provisions related to the above-mentioned situation are clearly explained under Section 319 of The Code of Criminal Procedure, 1973.
Power of the Court under Section 319 of the Code of Criminal Procedure, 1973
Section 319(1) of CrPC specifies that, where, at the time of inquiry or at the time of the trial of an offence, the evidence collected or recorded discloses that any person other than the accused has committed the said offence, then, the Court has the power to call such other person and join him in the proceedings for the said offence.
Section 319(2) of CrPC states that if an additional accused is not attending the Court proceedings, then, the Court can summon or arrest the additional accused for the purpose of inquiry or trial of the said offence which he appears to have committed.
Section 319(3) of CrPC states that if an additional accused is attending the Court proceedings, then, the Court can detain the additional accused any time for the purpose of inquiry or trial of the said offence which he appears to have committed.
Section 319(4)(a) of CrPC states that when any person is summoned, arrested, or detained under Section 319 CrPC, then, fresh proceedings should commence against such person and witnesses should be heard again.
Section 319(4)(b) of CrPC states that when any person is summoned, arrested, or detained under Section 319 CrPC, then, the case should proceed as if such person had been an accused when the Court took the cognizance of the offence.
Brief description of the law under Section 319 of the Code of Criminal Procedure, 1973
The Law under Section 319 CrPC is explained by five member Bench of Supreme Court of India in Hardeep Singh vs. State of Punjab.
A five member Bench of the Supreme Court of India in DHARAMPAL vs. STATE OF HARYANA declared, that, in cases, where, after the completion of the investigation and through the documents in the form of evidence filed by the police, the material discloses that a person other than the accused has committed the said offence, then, the cognizance in such cases can be taken under Section 193 of CrPC, in such cases, the Session Judge can summon the other person without waiting for the evidence to become available under Section 319 CrPC.
Power of the Court under Section 319 CrPC can be invoked only after the commencement of the trial, before the commencement of the trial, Section 193 of CrPC is applied. Two expressions i.e. (1) Inquiry and (2) Trial have been given emphasis under Section 319 CrPC. The inquiry done under Section 200 CrPC, 201 CrPC, 202 CrPC, and 398 CrPC can be understood as pre-trial inquiry and once the Framing of Charges takes place, the trial commences. The material coming before the Court through such inquiry can be used to support the evidence recorded after the commencement of the trial. Based on such evidence brought before the Court during the trials, an additional accused can be summoned, arrested, or detained for the purpose of inquiry and trial of the said offence.
The meaning of “any person not being the accused” in the definition of Section 319(1) CrPC, is explained by the Supreme Court of India in (GAJENDRA SINGH & ORS vs STATE OF BIHAR), the expression “any person not being the accused” in Section 319(1) Crpc means a person against whom no process has been issued by the Court.
Section 319(1) Crpc gives great emphasis to the word evidence. Here the word used evidence is the evidence brought before the court during the trial of the said offence and does not mean the evidence brought by the police in the course of investigation by the police. The cases, where, the material evidence collected by the police during the investigation discloses that the said offence is committed by the additional accused, then, Section 193 CrPC is applied and after the commencement of trial, if any evidence recorded on record discloses that the offence is committed by the additional accused, then, Section 319 CrPC is applied. Here, evidence recorded during the trial means each and every evidence which discloses that the additional accused has committed the said offence.
In accordance with the law interpreted by HARDEEP SINGH vs STATE OF PUNJAB, under Section 319 CrPC, the meaning of the word “evidence” in Section 319(1) CrPC read along with other provisions of the same section is the statements of witnesses as recorded by the Court, and it would not include statements of witnesses recorded by police under Section 161 CrPC, statements recorded under Section 164 CrPC, or statements recorded under Section 202 CrPC.
The word “evidence” as mentioned in Section 319(1) CrPC must be sufficient to make out a prima facie case against such a person and satisfy all essential ingredients constituting the offence for which he is sought to be prosecuted. The power provided to the Court under Section 319 CrPC is a discretionary power and this power can be exercised by the Court on the application made by someone including the accused already facing trial before the Court or Suo Moto, provided of course, the Court is fully satisfied that any person other than the accused has committed the said offence.
In accordance with the Law interpreted by HARDEEP SINGH vs STATE OF PUNJAB, under Section 319 CrPC, the Court before summoning the additional accused or before arresting or detaining the additional accused for the purpose of inquiry or trial should be fully satisfied in the same degree as it is before framing of charges. It clearly means that before adding any person to the list of accused, the Court should be of the opinion that there is certain relevant material evidence available before the Court during the trial disclosing that such other person has committed the said offence for which the trial is going on.
The law clearly states, that, an additional accused should be considered as if he has been an accused when the Court initially took the cognizance of the offence, and the degree of satisfaction required to summon the additional accused should be the same as for the framing of charges. The difference between the degree of satisfaction for summoning the additional accused and the original accused is that the trial against the original accused may have already commenced and during such trial, the evidence recorded discloses that the said offence is committed by the newly summoned additional accused. To suppress the delay in the trial the degree of satisfaction for summoning the accused (original as well as additional) needs to be different.
In accordance with the Law explained by VIKAS vs STATE OF RAJASTHAN, the Court should first issue summons simpliciter or bailable warrant, failing which it should issue non bailable warrant in order to secure appearance of person other than the accused under Section 319 CrPC.
In accordance with the Law interpreted by HARDEEP SINGH vs STATE OF PUNJAB, under Section 319 CrPC, an additional accused can be any person whose name was not mentioned in the FIR or any person whose name was mentioned in the FIR but not mentioned in the Charge sheet (report filed by police under Section 173 CrPC) or any person who has been discharged under Section 239 CrPC.
To such additional accused summons for the purpose of inquiry or trial can be sent by the Court under Section 319 CrPC provided that during the trial of the offence, the evidence discloses that the offence is committed by the additional accused and such accused can be tried along with the original accused. In the case where the additional accused under Section 319 CrPC is a person earlier discharged under Section 239 CrPC, then, the requirements of Section 300 CrPC and 398 CrPC should be complied with before the summons are sent to the additional accused.
The bar of limitation under Section 468 CrPC will not apply to a case where the Court proceeds against a person under Section 319 CrPC. Moreover, in accordance with the provisions of Section 319(4)(b) CrPC, the case should proceed as if additional accused had been an accused when the Court took the cognizance of the offence. Therefore, if at all Section 468 CrPC is applicable, the date relevant for reckoning the period of limitation would be the date when the cognizance of the offence was taken in the original proceeding and not the date when an additional accused is added later as an accused under Section 319 CrPC.
Conclusion
The power provided to the Court under Section 319 CrPC is extraordinary power and should be used in a very infrequent manner and only if compelling reasons exist for taking cognizance against the person against whom the action has not been taken.
Under Section 319 CrPC, the power of the Court to summon the additional accused can be invoked, if after the framing of charges and after the commencement of the trial of an offence, the evidence collected or recorded before the Court during the trial, discloses that any person other than the accused has committed the said offence. The summon under Section 319 CrPC can be sent to any person whose name is not mentioned in the FIR or any person whose name is mentioned in the FIR but is not mentioned in the Charge sheet or any person who has been earlier discharged, provided that during the trial of the offence, the evidence discloses that the offence is committed by such other person (additional accused). The degree of satisfaction required by the Court to summon the additional accused under Section 319 CrPC should be the same as for the framing of charges.
If an additional accused is not attending the Court proceedings, then, the Court has the power under Section 319 Cr.P.C to Summon or arrest the additional accused or if an additional accused is attending the Court proceedings then to detain the additional accused, as the circumstances of the case may require, for the purpose of inquiry or trial of the said offence which he appears to have committed. When any additional accused is summoned, arrested, or detained under Section 319 Crpc, then, fresh proceedings should start against such person and witnesses should be heard again and the case should proceed as if such additional accused had been an accused when the Court took cognizance of the offence.
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