Supreme Court discussed the power of trial court under S. 319 of Criminal Procedure Code.

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CRIMINAL APPEAL NO.298-299 OF 2021 Decided on March 15, 2021



The Appellant was original informant who has preferred the appeals challenging the order passed by the High Court in which the revision applications preferred by the private respondents were allowed. The Appellant lodged the F.I.R under Sections 148, 149,341,323,307 and 506, IPC alleging that the private respondents and the other accused persons who gave number of blows on his head, left ear and from front with lathies and gandas and threatened to kill him. The Appellant got severely injured but somehow managed to took out his revolver and fired because of which those assailants ran away.The DSP submitted a report according to which the respondents named were involved in an offence thereafter, the charge-sheet was filed which was also not against the private respondents. Hence, the Appellant filed an application before the Lower Court under Section 319 CrPC for summoning of the additional accused – private respondents on the basis of evidence recorded which was allowed. Thus, two separate revision applications were filed before the High Court.


Whether the High Court has erred in analyzing the scope of Section 319 CrPC and in quashing the order passed the lower court? 


The Supreme Court allow the appeals and found that the High Court has erred in quashing and setting aside the order passed by the Lower Court merely because on the bais that there is only one witness which is has not justified in exercising the scope and ambit of powers under section 319 CrPC. Hence, the order passed by the High Court in revision applications was quashed and set aside and the order passed by the Lower Court summoning the private respondents herein to face the trial was restored. 


Section 319 CrPC springs out of the doctrine judexdamnatur cum nocensabsolvitur (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 CrPC.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.Hence,it allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge­sheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence. Hence, on the basis of observations and findings, it emerges that:  (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination­in­chief of the witness concerned and the Court need not wait till the cross­examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge­sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination­in­chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.


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