This article is authored by Subhashree S. It discusses in detail the Hardeep Singh v. State of Punjab which is regarding provision of Section 319 CrPC. It discusses facts, issues, arguments of the parties and the judgement. It also presents issue-wise analysis of the judgement.
This article has been published by Shashwat Kaushik.
Table of Contents
Introduction
In law, there are two competing principles – “dubio pro reo” which means that, when in doubt, the judge must rule in favour of the accused and “judex damnatur cum nocens absolvitur” which means that “a judge is condemned when a guilty is unpunished”. These maxims underscore the complexities of ensuring justice and demand efforts from legislature as well as the judiciary to strike a balance and ensure that a fair trial is conducted. And thus, to uphold the constitutional mandate as provided under the Constitution of India, 1950 vide Article 20 which provides protection for individuals with respect to conviction for offences and Article 21 which speaks about right to life and personal liberty.
Therefore, keeping that in mind, the legislature incorporated Section 319 of Code of Criminal Procedure,1973 (Hereinafter referred to as CrPC) to ensure justice. The judiciary with aid of the doctrine ‘judex damnatur cum nocens absolvitur’ constructively interpreted Section 319 of CrPC- its scope and application to uphold criminal justice in the leading case of Hardeep Singh vs. State of Punjab.
History of Section 319 CrPC
In 1898 Criminal Procedural Code (Hereinafter referred to as old Code), Section 351 was analogous to Section 319 of CrPC, 1978. This is because Section 351 of the old Code was made to be comprehensive in the new 1978 Code due to the 48th report of the Law commission, 1970’s recommendation.
Some of the recommendations are:-
- Firstly, under Section 351 of CrPC, 1898 a magistrate can summon individuals other than accused if evidence shows their connection with the said offence. But a magistrate can summon and involve a person in the proceedings, only when the person is present in the court. Hence, there is no express provision as to if a person is not present in the court. Hence, the recommendation to add this was made, in order to make the provision comprehensive.
- Secondly, under Section 315, the power of the magistrate to take cognizance of the case when addition of the accused is done was dealt. But there is no clear explanation as to how the cognizance would be taken. Section 190 of old Code provides a mode of taking cognizance exhaustively, which further leads to the question as to how cognizance should be taken under Section 351, either by way of invoking Section 190(1), or only in the same manner as it is taken for accused? This point becomes necessary, as in both the situations, different methods of inquiry and trial are followed.
The Law Commission recommended that it seems that the main purpose of this particular provision is that the case should proceed with all known suspects in an expeditious and convenient manner. So cognizance for a newly added accused should be taken in the same manner as that of the other accused.
Therefore, with all these recommendations taken into consideration, a provision Section 319 in CrPC, 1978 was drafted, which states that :-
- During the course of any inquiry or trial of an offence, if it becomes evident to the court via evidence that there are other persons involved in the offence other than the accused, then the court can proceed and try the other person along with the accused.
- If such a person does not appear in court, he can be summoned or arrested as per the circumstances. However, if he attends the court, he may be detained for the purpose of inquiry or trial of the offence, regardless of whether he is arrested or summoned initially.
- If the court makes such an addition of a person in an offence other than accused, then the court should commence proceedings, hear witnesses afresh. But otherwise, the case proceeds as if they were initially considered as an accused person.
With this explanation on Section 319 of CrPC, it brings us to a point to understand the clear ambit, scope and extent of Section 319 , which is resolved in the Hardeep Singh case.
Hardeep Singh vs. State of Punjab (2014)
Facts and background of the case
In 2008, there was a criminal case involving multiple defendants, where the auction for leasing the land was held by the panchayat and a bid of appellant was accepted and lease was granted. On June 24, 2004, the appellant was ploughing the land, the accused persons went there with deadly weapons and caused injuries to the appellant as well as other prosecution witnesses. Thus, FIR was lodged and accused charged under 326 (Voluntarily cause grievous hurt by dangerous weapons or means), 336 (Act endangering life or personal safety of others) , 427 (mischief causing damage) of the Indian Penal Code, 1860 (IPC) (Now, BNS). Out of the multiple accused, 2 individuals claimed innocence and were initially discharged after an inquiry by the senior Superintendent of Police. During the trial, an application was filed under Section 319 of CrPC to include these 2 individuals as accused. It was rejected by the court and subsequently, an appeal was filed before the High Court seeking a revision of the rejection. The High Court upheld the decision of the trial court on the grounds that there is no sufficient grounds to proceed against those people. The case reached the Supreme Court.
The Supreme Court noted the conflicts of judgements as in the case of Rakesh v. State of Haryana (2001), wherein it was held by this court that based on the evidence deposited, though no cross examination happened, if the evidence shows the person’s complicity with the offence , then the addition of the person, can be done. However, in Mohd. Shafi v. Mohd. Rafiq and Anr(2007) the court held that to exercise power under Section 319 the court had to wait till the completion of the cross-examination. Therefore, the matter was referred to a 3 judge bench of the Supreme Court in 2008.
In 2011, the three-judge bench noted that Dharam Pal and ors. V. State of Haryana and Anr. (2013), involving the identical issue, had been referred to the constitutional bench. The Supreme Court in its judgement held that even if Section 319 of CrPC cannot be invoked at the stage of committal as the Section can be applied only after the trial, but with the aid of Section 193 of CrPC, where it allows the court of session for addition of an accused before trial, the court of session can proceed to array any other person.
Therefore, in this case, the three-judge bench felt it was appropriate to let the constitutional bench resolve this issue. Finally, the case was referred to the constitutional Bench of the Supreme Court, known as Hardeep Singh and Ors. vs. State of Punjab and Ors.( 2014). Along with the Hardeep Singh case, 9 other cases with similar issues were also clubbed. The main issue in this case is that under Section 319 CrPC what is the scope and extent of the powers to arraign any persons as an accused during the course of inquiry or trial for the Courts.
Issues raised
- At what stage, power under Section 319 of CrPC can be invoked?
- Whether the word “evidence” under Section 319(1) of CrPC will mean only the evidence tested by cross-examination or it also includes the statement made by the witnesses in chief examination?
- Whether the word “evidence” under Section 319(1) of CrPC can be used in the comprehensive sense to include evidence collected during investigation or in the limited sense as to consider only the evidence recorded during the trial?
- What level of satisfaction is required to exercise Section 319 of CrPC?
- Is the power under Section 319 of CrPC extended to persons not named in the FIR, or named in FIR and not in charge sheet, or who have been discharged?
Arguments of the parties
Appellants
- Counsel of the appellants argued that the judgement of hon’ble trial court and judgement of hon’ble high court of Punjab and Haryana which rejected the addition of respondents as an accused is completely incorrect as there is sufficient evidence against the accused to showing their participation in the incident and was having weapons with them and that the judgement should be deemed invalid as it paves way for injustice.
- Appellants highlighted Section 319 of CrPC and argued that an individual can be added as an accused even if his/her name is not mentioned in FIR, if there is evidence emerging during investigation.
Respondent
- The counsel of the respondent stood by the decision of the trial and the High Court and argued to uphold the same as of refraining the addition of a respondent as an accused. They contented that these judgements are made after careful consideration of facts and laws, and thus valid and just.
- Respondents contended that Vijay Preeti Singh, one of the respondents, arrived at the scene of the incident i.e. to the land of appellant were ploughing was taking place only after the incident, and thus he cannot be considered as an accused in this case.
- Further regarding another respondent, Jagtar Singh, it was contented that his name was not there in FIR and there was no evidence from the investigation against Jagtar Singh and thus the Court’s order rejecting to add him as an accused was made rightfully.
- Finally, the state’s counsel was also in alignment with the contention of the respondent and contended to dismiss the appeal.
Analysis of the court in the case
Before delving into the core issues’ discussion, the court explicitly addressed 3 things which play pivotal roles in addressing the core issues. They are-
Meaning of ‘court’ under Section 319 of CrPC
- Who comes under the ambit of “court” to exercise powers as provided under Section 319 of CrPC ?
The court, while interpreting the word “court” in Section 319 of CrPC, made a comparison with Section 2(g) of CrPC, which defines inquiry as an “inquiry other than trial by a magistrate or a court”. But in Section 319(1) the legislature specifically has mentioned only the word “court” and not a magistrate. And it is of the clear fact that the word “court” in the hierarchy of criminal court has been defined in Section 6 of CrPC, which includes “the Courts of Sessions, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates”.
So it was concluded that under Section 319(1) it is only the court of session or court of magistrate performing the duties as a court under CrPC can exercise power under Section 319 and not by any officers. Thus, Section 2(g) allows the court to summon accused during ongoing trial. However, this can only be exercised by a court actively performing function under CrPC and by the magistrate who is not functioning as a court.
Persons against whom summons can be issued under Section 319 of CrPC
- Person should not be accused who is already facing trial.
- He can either be a person mentioned in the charge sheet under Section 173 of CrPC (lays down rules and procedure for investigation agencies to file reports upon conclusion of an investigation). It also includes details against whom the police found no case, or a person whose name is disclosed before the court in any material that is considered for the purpose of trying the offence, but not yet investigated.
- A person whose complicity is indicated in the commission of the offence.
If addition of accused can be done at the stage of committal?
This issue was just to give clarity to this Hardeep Singh case, as the issue had been already answered by this court in the case of Dharam Pal (Supra) with a constitutional bench.
In the case of Dharam Pal (Supra), this court has pinpointed the conflict in the decisions of Kishun Singh and Ors. v. State of Bihar and Ranjit Singh v. State of Punjab and referred the case to the constitutional Bench. In the Kishun Singh (Supra) case this court observed that the court can only deal with accused referred in Section 209 (commitment of case to court of sessions when offence is exclusively triable by it) of CrPC and no addition can be done from the stage of committal till the stage indicated in Section 230 of CrPC (date for prosecution evidence) by the session courts. While in the Ranjit case (Supra), it was held that addition of accused can be done in committal stage itself by invoking Section 193 of CrPC, and that it does not need to wait till the stage of Section 319 is reached.
In case of Dharm Pal Singh (Supra), it was clarified that both the judgements had to be given different effects. The less serious offences which are triable by the magistrate, the court of sessions have power of addition of the accused at any time when court is satisfied of the complicity of the person with the accused but for serious offences court have to wait till it reaches the stage under Section 319 of CrPC.
Therefore, in this case of Hardeep Singh, the court opined that it will not delve into the said issue as it was already answered by 5 judge bench. However, it provided clarity and stated that in Section 193 of CrPC only after committal court of sessions can take cognizances and as far of Section 319 of concern it is an enabling provision and thus there is no conflict as to deal upon the situation discussed in Dharam Pal Singh case.
Judgement in Hardeep Singh vs. State of Punjab (2014)
In this case, the court delved into the nuance interpretation and application of Section 319 of CrPC, and it clarified several questions surrounding Section 319. It was held that Section 319 can be invoked at any stage if compelling evidence demonstrates a person’s involvement in the offence. Further, the court emphasised that the evidence under Section 319 not only includes cross-examination but also those made during examination-in-chief. Moreover, the term evidence in the Section is used in a limited sense as to include only the evidence during trial. Moreover, to exercise power under this Section the requirement for satisfaction of involvement in commission of offence is more stringent than a prima facie but less than a certainty regarding conviction.
Regarding individuals not named in FIR or charge sheet, the court held that any person not being accused, including those relieved during police investigation can also be summoned under Section 319 if evidence presented during the trial implicates them. Discharged individuals can also be summoned, ensuring fairness and avoiding abuse of power.
Issue wise judgement
Now, let us dive into the core issues that were dealt with in the Hardeep Singh case, one by one.
At what stage power under Section 319 of CrPC can be invoked?
In order to answer this issue, understanding as to what “the course of inquiry or trial” in Section 139(1) means, would subsequently answer the issue raised.
Therefore, the court, while considering at which stage Section 319 can be invoked, comprehensively understood the meanings that can be ascertained to the words ‘inquiry’ and ‘trial’ used in the Section 319 of the CrPC from numerous decisions.
Referring to Raghubans Dubey v. State of Bihar case where, the Supreme Court held that cognizance is taken for the offence and not of the offender. Thus, it becomes the duty of the magistrate to summon additional accused. Further with reference to Section 2(g) the court stated that the stage of inquiry commences, from the filing of the charge sheet and considering the material collected by the prosecution by the court. The court clarified that the inquiry will be a forerunner to the trial by referring to Moly and Anr. v. In Kerala, the court observed that although the word “trial” is not defined, it is clearly distinguishable from inquiry. The court referred to Common cause v. Union of India and ors. where it was held that:-
- As far as session court is concerned, the trial is considered to be commenced when charges are framed under Section 228 of CrPC.
- Trial in case of warrant cases by Magistrate: If case commenced on police report, then trial shall be treated to have commenced from the time when charges framed under Section 240 of CrPC. However, in other cases when charges are framed under Section 246 of CrPC it shall be considered to have been commenced.
- In summons cases, trial shall be considered as commenced when the accused who appear or brought before magistrate are asked where they plead guilty or have defence under Section 251.
From the above analysis, the court came to the conclusion that at the stage of framing charges the court informs the accused as what is the case against him, and thus trial commences only on charges being framed. Further by referring to Section 2(g) of CrPC, it stated that the word “inquiry” is not that done by the investigation agency rather it is after filing the charge sheet before court. Further, it concluded that the word “course” in Section 319 indicates that the Section can be invoked only during the period of when inquiry has commenced and trial is going on.
Hence, once a charge sheet is filed before the court it is considered that the court has reached the stage of inquiry and as soon as charges are framed it is considered that a trial is commenced. Thus, the use of the word “course” in Section 319 allows the court to invoke the Section from the stage of inquiry till the conclusion of trial except during the stage of Section 207 (supplying copy of police report and other documents to accused) or Section 208 of CrPC, as it is only intended to put process in motion as at this time magistrate only performs the administrative functions. This conclusion is brought in reference to SWIL Ltd. v. State of Delhi and Anr (2001) case where it was concluded that once the process has been issued, it is neither an inquiry nor trial and thus Section 319 of CrPC cannot be invoked.
In complaint cases, which is one of the categories of criminal cases, Section 319 of CrPC can be invoked based on the evidence coming before the court in the complaint cases. But evidence recorded during trial for the purpose of Section 319 can only be used in these cases as corroborative, as there is no accused present before the court.
Thus in essence, it can be concluded that Section 319 of CrPC can be invoked based on the evidence showing complicity of other persons in the offence, rather than the stage of proceedings.
Whether the word “evidence” under Section 319(1) of CrPC will mean only the evidence tested by cross examination or it also includes the statement made by the witnesses in chief examination?
To answer this issue, the court explained what is known as evidence under Section 3 of Indian Evidence Act, 1872 and stated that evidence means and includes the statement of the witnesses before the court with regards to the facts in issue and the documentary evidence. The statement of the prosecution witnesses is evidence, therefore evidence included statements made in examination in chief. Further, the court referred to Rakesh (Supra) case, where it was held that considering the statements made in examination in chief , prima facie court is of the opinion that the person has complicity with the offence, it can invoke Section 319 of CrPC, though no cross examination has commenced.
Further, when the case of Ranjit Singh (Supra) was referred. The court held it is not necessary for the court to wait till the entire evidence is collected to invoke Section 319 of CrPC.
Moreover, the court held that this court had misread the decision of the case of Mohd. Shafi (Supra). It held that to invoke Section 319 satisfaction of the court is required. In order to get the satisfaction, the court can wait till cross examination and it is not illegal. And that the court does not hold that the court must wait till cross examination to invoke Section 319 of CrPC.
After considering all the diverse opinions, the court concluded that statements recorded in examination in chief become part of record and matter of where it is being rebutted or not become matter of consideration at the time of judgement. Despite that, it is the evidence, based on which, if the court finds complicity i.e. involvement in a wrongful act, it can proceed against the person. Further, it was held that there is no straight jacket formula that is laid down as a condition precedent for arriving at an opinion that the person has complicity, so even if the magistrate has convinced even based on the evidence from examination in chief it can exercise power under Section 319 of CrPC.
As the word “such person could be tried” instead of “should be tried” is used in the Section, it does not require a mini-trial to be conducted to invoke Section 319 by having examination in chief and cross examination and then to arrive to the decision whether to include that person as or not.
Whether the word “evidence” under Section 319(1) of CrPC can be used in the comprehensive sense to include evidence collected during investigation or in the limited sense as to consider only the evidence recorded during the trial?
In order to answer this issue, court examined Section 3 of Indian Evidence Act, which gives meaning for evidences, accordingly evidence means and includes;
- All statements made by witnesses before the court related to matter of fact under inquiry, which are known as oral evidence
- All documents which are produced before the court for the purpose of inspection, including e-records are known as documentary evidence.
Court after examination, referring to cases such as Mahalakshmi Oil Mills v. State of A.P.,1988 etc., held that the definition is exhaustive in nature, as the word “means and include” are used which indicate the fact that it is a hard and fast definition.
Further, the court referred to the case of Lok Ram v. Nihal Singh and Anr, 2006, where it was held that, even though the person’s name is not mentioned in FIR and charge sheet but if evidence submitted before court shows the existences of connection the person with the offence, then the person can also be added as an accused, ensuring that the evidence submitted should not be based on the materials available in charge sheet and case diary.
On further referring to the case of Kishun Singh (Supra), where it was held that on simple reading of the Section 319 (1), it is clear that only from the evidence acquired from the course of inquiry or trial, addition of accused can be done if it appears from the evidence that he would have committed an offence. Further, by referring to Lal Suraj @ Suraj Singh and anr. V. State of Jharkhand, 2008, the court clarified that to invoke Section 319 of the CrPC, fresh evidence must be presented for consideration alongside all materials required by the prosecution for framing charges.
In this context, the court concluded that the materials collected during investigation at maximum can be used for the purpose as provided under Section 157 of Evidence Act, i.e. either to corroborate or contradict the witness’s statement. Thus, to exercise power under Section 319 of CrPC, the materials that have come before the court during inquiry or trial can only be used.
Moreover, the court held that though in stricto sensuo (in the strict sense), the material collected during inquiry is not an evidence, rather it is an information, but this information itself be a prima facie satisfaction for the court to know the complicity of a person with the offence. Thus, it can be used for exercising power under Section 319 of CrPC. It can be concluded that only the evidence collected during trial can be utilised to invoke section 319 of CrPC. All other materials received by the court after talking of cognizance and before commencement of trial can only be used in corroborative nature, and thus the word evidence used in Section 319 of CrPC is in limited sense.
What level of satisfaction is required to exercise Section 319 of CrPC?
To answer the issue, the court highlighted that word “appear” in the Section 319 of CrPC and stated that the word appear means “clear to the comprehension”, or a phrase near to, if not synonymous with “proved”. It imparts a lesser degree of probability than proof.
The court referred to the case of Ram Singh and Ors. v. Ram Niwas and Anr, 1951. The court determined that to meet the condition of suspecting a person has committed an offence, it must ensure the presence of exceptional circumstances allowing it to exercise extraordinary power under Section 319. This entails being convinced that the prosecution’s evidence, if unchallenged, could result in the conviction.
The Court further noted that prima facie satisfaction is required for taking cognizance of the case, but to invoke Section 319 of CrPC, the degree of satisfaction that is required is more. Additionally, citing the Rajendra Singh case, the court noted that to proceed under Section 319 of the CrPC, it is not necessary for the court to be convinced that the person has committed an offence rather it’s appearance to be so, is enough. Even after which it is the discretion of the court as the term may be used is not ‘shall’ in the Section. This is further substantiated by referring to Sarabjit Singh and Anr. v. State of Punjab and Anr, 2021, in which the court observed that as Section 319 is conditional upon following ingredients,
(i) exercising it only in an “extraordinary case”, and
(ii) the satisfaction that is required is more than that of prima facie satisfaction.
Moreover, the court stated that the practice of invoking Section 319 is to find out the real truth, though there is no valid ground to summon against a person by placing reliance on Palanisamy Gounder and Anr. v. State, represented by Inspector of Police, 2003 .
Thus, the court held that for invoking Section 319 of CrPC, the satisfaction required is more than prima facie but lower than that if the evidence goes un-rebutted would definitely lead to conviction.
Is the power under Section 319 of CrPC extended to persons not named in the FIR, or named in FIR and not in charge sheet, or who have been discharged?
In order to answer this issue, various references to other judgements were made. In Joginder Singh and Anr. v. State of Punjab and Anr, 1979, the Supreme Court concluded, based on the language of Section 319 of the CrPC, that the Section is not applicable to persons released by police under Section 169 of the CrPC (release of accused when evidence deficient)and is listed in the charge sheet column 2 which contains name of the persons against whom no case is found after investigation by police. This is because the Section refers to “any person not being the accused,” encompassing individuals who were previously accused but have since been released. Furthermore, it was determined that individuals dropped by the police during the investigation, yet still implicated by evidence in the offence, fall under Section 319 of the CrPC.
Further in Suman v. State of Rajasthan and Anr, 2009 , the court observed that there is no hindrance in the language of Section 319 of CrPC, that refrains the court from exercising power under Section 319 against the person whose name is in the FIR or complaint, but against whom there is no charge-sheet. Further, the constitution bench in Dharma Pal (Supra) case, interpreted that the court can invoke Section 319 and summon a person whose name appears in FIR and column 2 of the charge sheet but not in the main part of the charge sheet.
With regards to discharged persons, the court took stand that different footing should be given to discharged persons as they have already faced the stage of inquiry and court discharged him based on the materials collected during investigation. Therefore, careful consideration is necessary as to the witness against the discharged person, the court should ensure that the witness is not giving evidence, merely to take revenge or for any other extraneous purposes. After careful consideration, if the court opined the existence of evidence against the person discharged, then it can proceed under Section 398 of CrPC (Power to order inquiry), without directly invoking Section 319 of CrPC. Further, referring to Municipal Corporation of Delhi v. Ram Kishan Rohtagi and ors, 1982., the court observed that if the prosecution provides evidence at any stage which is sufficient to establish that the person discharged would have also involved in the offence, then the court, under Section 319 of CrPC, can take cognizance.
Thus, the court concluded that Section 319 of CrPC can be exercised against a person not a part of investigation, or named in column 2 of the charge sheet, or have been discharged provided no proceedings against discharged person can be done directly via section 319 of Crpc without invoking Section 300(5) r/w Section 398 of CrPC.
Conclusion
In this landmark judgement, the court illuminated the path towards a more robust and equitable criminal justice system by expanding the scope of Section 319 of CrPC.
Furthermore, the court emphasised the doctrine of “judex damnatur cum nocens absolvitur”, which underpins the essence of Section 319 of the CrPC. It underscored the court’s responsibility to ensure the punishment of the actual wrongdoer and uphold justice. This judgement strikes a balance by empowering courts to summon additional accused individuals, while simultaneously safeguarding against frivolous or vindictive applications. In essence, this judgement is a testament to the unwavering dedication of our courts to uphold the principle of justice and safeguard the rights of all individuals before the law.
Frequently Asked Questions (FAQs)
What is the scope of Section 319 of CrPC?
This Section empowers the court to add any person as an accused during the course of trial or inquiry, if there is evidence showing their complicity with the offence. This power can be exercised even if the person’s name is not mentioned in FIR or ChargeSheet.
Can evidence collected during investigation be considered under Section 319?
Yes, the term “evidence” in this Section is comprehensive and inclusive of the evidence collected during the investigation phase.
What level of satisfaction is required to invoke Section 319?
The satisfaction should be more than that of prima facie and less than a certainty regarding conviction.
If a person’s name is mentioned in the FIR but not in the chargesheet. Can a court invoke Section 319 against such a person?
Yes, the court can exercise Section 319 of CrPC, against a person named in the FIR, but not in the charge sheet. But in order to do this, there should be compelling evidence, showing complicity of the person with the offence.
Can Section 319 be invoked against a discharged person?
Yes, it can be done. But there is a requirement of careful consideration by the court upon the statements of the witness against the discharged person. The court should ensure that the witness is not giving evidence, merely to take revenge or for any other extraneous purposes.
References
