Concrete evidence must be present to summon an additional accused u/s 319 Cr.P.C: Allahabad HC

The Allahabad High Court on 17th March 2021 quashed an order passed by a trial court summoning an additional accused under section 319 of Cr.P.C. The order was passed by the trial court merely on the basis of allegations of the complainants and thus the HIgh Court found it unsustainable and against the law.

Background of the Case:

The complainant in the case is a practicing advocate and he has previous enmity with the petitioner who is a village pradhan. The complainant previously had instituted nine cases against the revisionist in which he has either been acquitted or final report has been filed in his favor or complaint cases have been rejected.

An FIR was registered at Case Crime in November 2017 under Sections 147, 148, 149, 452, 302, 504, 506 IPC on a written complaint of complainant/respondent herein having allegations that on 02.11.2017 at around 9:00 PM. the petitioner and his brothers had killed his uncle due to some land disputes.

The investigating officer examined as many as 38 witnesses during the course of the investigation and filed a charge sheet against the brothers of the petitioner under Sections 452, 302, 504, 506/34 IPC and absolved the petitioner of the charges as he was not found to be present at the time and place of the incident when the alleged incident took place. 

The Investigating Officer found the location of the mobile phone of the petitioner 35 km away from the place of incident on the basis of the Call Detail Record. Also on examining three witnesses the investigation officer found the petitioner to be present at a religious ceremony 35 km away from the place of the incident during the time of the incident.

After the completion of the investigation, the police filed the final report in which the name of the petitioner was absolved. The complainant filed an application against the final report and demanded that the petitioner should be summoned as an additional accused. 

The trial court accepted the application and subsequently issued an order summoning the petitioner as an additional accused. Aggrieved by the order petitioner filed the present petition before HC.

Court’s Observation:

After hearing counsels for both the parties the HC observed that the trial Court has summoned the petitioner on the basis of the statements of complainants who have reiterated the allegations in the FIR. 

The investigation carried out by the investigating officer and evidence collected by him is cogent and credible which is not only based on the oral testimony of the several witnesses regarding the non-presence of the revisionist at the time and place of the incident but also fully gets established from the scientific and electronic evidence collected by him. 

The trial Court has ignored the cogent and credible evidence available on record and only on the basis of reiteration of the allegation of the complainants has summoned the revisionist under Section 319 Cr.P.C. as additional accused to face trial. The HC found this to be the misuse of the discretionary power granted to the trial court under sec 319 of Cr.P.C.  

The power under Section 319 Cr.P.C. is not to be exercised in a cavalier and mechanical manner but requires to be invoked when on consideration of material available on record if the Court feels the necessity of implicating some person(s) as accused. 

The power under Section 319 Cr.P.C. is to be exercised by the Court to do real justice. Provisions of Sub-Section 1 of Section 319 Cr.P.C. provide that “if it appears from the evidence” that any person has committed any offense

The question which Court has to confront itself is that whether concrete evidence is present to summon a person as an additional accused or is it only on the basis of allegations. The power under Section 319 Cr.P.C. is to be used primarily to advance the cause of criminal justice but not as a handle at the hands of the complainant to harass a person who is not involved in the commission of the offense/crime.

A Constitutional Bench of Supreme Court in the case of Hardeep Singh vs State of Punjab (2014) 3 SCC 92 has held that power under Section 319 Cr.P.C. which is discretionary and extraordinary power, is to be exercised only when strong and cogent evidence comes against a person before the Court and such power should not be exercised in a casual and cavalier manner. 

Also Read

The HC referred to the case of Brijendra Singh & Ors vs State of Rajasthan : (2017) 7 SCC 706 to answer the question that what degree of satisfaction is required for invoking powers under Section 319 Cr.P.C.

Decision:

The HC quashed the order passed by the trial court as learned trial Court had not considered overwhelming evidence collected by the investigating officer during the course of the investigation which would demonstrate that the present petitioner was not present at the time and place of occurrence.

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Story by Harshvardhan Pawar- Intern

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