India: Arraigning A Person As Accused Not Named In The FIR Or Charge Sheet - Section 319 Code Of Criminal Procedure, 1973

Last Updated: 14 September 2017
Article by Vijay Pal Dalmia, Partner and Rajat Jain

Article by *Vijay Pal Dalmia, Advocate & Partner Vaish Associates, Email: vpdalmia@vaishlaw.com Mobile: 09810081079
& Rajat Jain, Advocate, Email: rajatjain@vaishlaw.com Mobile: 09953887311

That Section 319 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 of Cr.P.C. and it is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.

The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 of Cr.P.C. The Supreme Court of India examined this issue in Hardeep Singh Vs. State of Punjab, [AIR 2014SC 1400].

The Section 319 of Cr.P.C states as under:

"Power to proceed against other persons appearing to be guilty of offence.-

  1. Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
  2. Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
  3. Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
  4. Where the Court proceeds against any person under sub- section (1), then-

    1. the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
    2. subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

In the above case of Hardeep Singh Vs. State of Punjab, the Hon'ble Court  for proper appreciation of the stage of invoking of the powers under Section 319 of Cr.P.C. and to understand the meaning that can be attributed to the words 'inquiry' and 'trial' as used under the Section 319 of Cr.P.C. referred to the following cases:

Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167:

"Once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders;

once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons.

The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence."

The State of Bihar v. Ram Naresh Pandey & Anr., AIR 1957 SC 389:

"The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration."

Ratilal Bhanji Mithani v. State of Maharashtra & Ors., AIR 1979 SC 94:

"Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry. After the framing of charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end."

For determining the isssu, the Hon'ble Supreme Court also referred to the Section 2(g) of Cr.P.C. defining INQUIRY as follows:

"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court."

The Hon'ble Supreme Court after referring to Section 2(g) of Cr.P.C. and the case laws held that:

  • the word 'inquiry' is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial.
  • at the time of filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) of Cr.P.C. can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 of Cr.P.C., committal etc., which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind.

The Hon'ble Court also opined that the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have contemplated this in asmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 of Cr.P.C.

According in the above case of Hardeep Singh Vs. State of Punjab, [AIR 2014SC 1400]., the Hon'ble Supreme Court framed certain questions which were answered as under:

Question: What is the stage at which power under Section 319 of Cr.P.C. can be exercised? and Whether the word "evidence" used in Section 319(1) of Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

Section 319 of 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 framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 of Cr.P.C.; and under Section 398 of Cr.P.C. are species of the inquiry contemplated by Section 319 of Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 of Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge sheet. In view of the above position the word 'evidence' in Section 319 of Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question: Whether the word "evidence" used in Section 319(1) of Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

Considering the fact that under Section 319 of Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) of Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question: What is the nature of the satisfaction required to invoke the power under Section 319 of Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) of Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

Though under Section 319(4)(b) of Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 of Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question: Does the power under Section 319 of Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge sheeted or who have been discharged?

A person not named in the FIR or a person though named in the FIR but has not been charge  sheeted or a person who has been discharged can be summoned under Section 319 of Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 of Cr.P.C. has to be complied with before he can be summoned afresh."

Accordingly, it is clear that Section 319 of Cr.P.C can be invoked for arraigning any person as accused not named in the fir or named in the fir but not charge sheeted even before the stage of framing of charge by the Court.

The judgment can be accessed at following link:

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41145

* The author is a senior litigator with 32 years of experience in court trials and deals with cases relating to prosecution under the Income Tax Act, 1961, The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, Money Laundering Act, economic offenses and white collar crimes.

© 2017, Vaish Associates Advocates,
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Vijay Pal Dalmia, Partner
Rajat Jain
 
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