Appeal
Petition filed against the order of High Court upheld the summoning order
1. This petition arises from the judgment and order passed by the High Court of Madhya Pradesh at Gwalior dated 23-10-2024 in Criminal Revision No.3172/2022, by which the High Court rejected the revision application filed by the petitioners – herein and thereby affirmed the order passed by the 4th Additional Sessions Judge, Gwalior in Sessions Trial No.233/2018 summoning the petitioners – herein to face the trial for the offence of murder in exercise of powers under Section 319 of the Code of Criminal Procedure, 1973.
FIR filed under sections 302, 307, 147, 148 and 149 of I.P.C
2. The First Information Report bearing Crime No.96/18 came to be registered with the Padav Police Station, District Gwalior for the offence punishable under Sections 302, 307, 147, 148 and 149 of the Indian Penal Code (for, short the “IPC”).
FIR includes the names of the appellants herein
3. The FIR came to be registered in all against seven individuals. The FIR includes the name of the two petitioners – herein.
I.O filed final report (closure report) as against the appellants herein
4. At the end of the investigation, the Investigating Officer filed a closure report so far as the two petitioners – herein are concerned. Against the other accused persons, the charge-sheet was filed for the offences enumerated above.
PW.3 during trial reiterated the contents of the FIR
5. The Trial Court started recording oral evidence. The original first informant – PW3 stepped into the box. In his examination-in chief, he reiterated what he narrated in the FIR.
Informant deposed against the two appellants in his chief
7. Thus, it appears that in the examination-in-chief, the original first informant categorically deposed against the two petitioners – herein and also attributed a specific overt act.
Based on the petition filed under section 319 Cr.P.C the appellants herein were summoned as accused
8. Relying on the oral evidence of PW-3, an application was filed under Section 319 of the Code to summon the two petitioners as accused for the purpose of facing the trial along with the other co-accused.
Hon’ble High Court dismissed the Criminal revision preferred by the appellants
9. The petitioners being dissatisfied with the order passed by the Trial Court summoning them to face the trial preferred Criminal Revision Application before the High Court. The High Court rejected the revision application and thereby affirmed the order passed by the Trial Court summoning the petitioners in exercise of its powers under Section 319 of the CrPC.
Analysis
Judgments relied/cited
12. In Ramesh Chandra Srivastava v. State of U.P. & Another (2021) 12 SCC 608 while this Court has approved of relying upon deposition which has not suffered cross-examination for the purpose of invoking Section 319 CrPC, it is relevant to note the standards which have been fixed by this Court for invoking the power under Section 319 CrPC. The statement of law in this regard is contained in paras 105 and 106 respectively of Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 :(2014) 2 SCC (Cri) 86] :(SCC p. 138).
“105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words ‘for which such person could be tried together with the accused.’ The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.”
Summoning accused under section 319 Cr.P.C shall be done as per para. 105 of Hardeep singh’s case (constitution bench)
13. The test as laid down by the Constitution Bench of this Court for invoking the powers under Section 319 CrPC inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 CrPC should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by this Court, is one which is more than prima facie which is applied at the time of framing of charges. It will all depend upon the evidence which is tendered in a given case as to whether there is a strong ground within the meaning of para 105 of Hardeep Singh (supra)referred to above.
Whether courts must consider the closure report under section 319 Cr.P.C?
14. The only argument canvassed before us is that the Trial Court before summoning the petitioners as accused in exercise of its powers under Section 319 of the CrPC should have taken into consideration the closure report filed by the I.O. exonerating the petitioners from the alleged offence. According to the learned counsel, the Trial Court as well as the High Court should not have overlooked the report because the report clearly states that the two petitioners – herein are in no manner connected with the alleged crime.
The courts are empowered to summon the person who was dropped in the final report
16. We are not impressed with the submission as noted in para 14 above canvassed by the learned Senior counsel for the simple reason that a person is named in the FIR by the complainant but the 10 police, after investigation finds no role of that particular person and files charge-sheet without implicating him, the Court is not powerless and at the stage of summoning, if the Trial Court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so.
Court should not keep the closure report pending for consideration for a long time
19. It is relevant to note at this stage that the closure report filed by the police in the case on hand is yet to be looked into by the court concerned. The same has not been accepted till this date. However, the closure report now pales into insignificance in view of the order passed by the trial court under Section 319 of the 11 Cr.P.C. summoning the petitioners herein to force the trial. We may only add that it would have been in fitness of things if the Court concerned would have looked into the closure report at the earliest & passed an appropriate order one way or the other after hearing the defacto-complainant. The Court should not keep the closure report pending for consideration for a long time. Such report should be looked into promptly.
Conclusion
Hon’ble High court is correct in its decision
20. In the overall view of the matter, we are convinced that the High Court committed no error not to speak of any error of law in passing the impugned order.
Section 319 Cr.P.C & closure report
21. The principles of law as regards Section 319 of the CrPC may be summarised as under:
a. On a careful reading of Section 319 of the CrPC as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial.
b. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the chargesheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence. c. The power of the court under Section 319 of the CrPC is not controlled or governed by naming or not naming of the person concerned in the FIR. Nor the same is dependent upon submission of the chargesheet by the police against the person concerned. As regards the contention that the phrase ‘any person not being the accused’ occurred in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression.
c. It would not be proper for the trial court to reject the application for addition of new accused by considering records of the Investigating Officer. When the evidence of complainant is found to be worthy of acceptance then the satisfaction of the Investigating Officer hardly matters. If satisfaction of Investigating Officer is to be treated as determinative then the purpose of Section 319 would be frustrated.
Judgments cited/referred
1. Ramesh Chandra Srivastava v. State of U.P. & Another (2021) 12 SCC 608
2. Hardeep Singh v. State of Punjab, (2014) 3 SCC 92
3. S. Mohammed Ispahani v. Yogendra Chandak, (2017) 16 SCC 226
Parties
Omi @ Omkar Rathore & Another vs. The State of Madhya Pradesh & Another – Special Leave Petition (Crl.) No(s). 17781 of 2024 – 2025 INSC 27 – January 3, 2025
