One of the cardinal principles of criminal jurisprudence is the concept of "innocence of the accused". Every other international instrument on criminal law lays down that the accused must be presumed to be innocent of any crime until his guilt is proved beyond reasonable doubt by the Prosecution. Thus, in order to find out the truth, the criminal machinery prescribes three stages i.e., Investigation, Inquiry and Trial.
Every person who has been accused of an offence and a Charge has been framed against him is subjected to undergo a Trial in order to ascertain his guilt. Thus, the process may either lead to his Conviction or Acquittal. However, once a Charge against a person has been framed and it is apprehended by the Court that some other person is might also be guilty of a wrongdoing and that he must also be added as an accused to the case, the Court can summon such person to be tried as an accused. This has been provided under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC" or the “Code”).
Section 319(1) of the CrPC reads: 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.
Section 319 is an improved version of the old Section 351 of the Code of Criminal Procedure, 1898 and is based on the maxim of “judex damnatur cum nocens absolvitur” which means that a “judge is condemned when guilty is acquitted”. Thus, the primary object of the provision is to prevent the miscarriage of justice by letting an accused scot-free of his wrongdoing.
The application of Section 319 can only be exercised either (1) in the course of an "Inquiry" or, (2) during the course of a "Trial" and such an exercise must be based on the "evidence" that some other person who is not an accused has also potentially committed an offence. However, the question that arises is:
(i) When is the stage at which an inquiry starts and similarly, when does the Trial starts?
(ii) What is the meaning of the expression "evidence" used in Section 319? Does it refer to all kinds of evidence or refers only to evidence procured during the course of an Inquiry or Trial.
Thus, there arose contradictory decisions of various High Courts and the Supreme Court on the interpretation of Section 319. Thus, in order to put an end to this conundrum of interpretations, the hon’ble Supreme Court in 2014 constituted a 5-judge Constitution Bench (See, Hardeep Singh v. State of Punjab; (2014) 3 SCC 92).
An earlier Full Bench of the hon’ble Supreme Court in Dharam Pal v. State of Haryana; (2004) 13 SCC 9 had held that committal proceedings did not fall within the expression “Inquiry” or “Trial” as mentioned in Section 319 of the CrPC and thus, provisions of Section 319 did not apply at such a stage. However, the Sessions Court, when a case has been committed to it under Section 209 of the Code, has the power under Section 193 to add a new accused.
Thus, taking reference to this Full Bench judgment of the hon’ble Supreme Court, the issues framed in Hardeep Singh’s case revolved as to:
(I) The stage at which the power under Section 319 can be exercised.
(II) Whether the expression “Evidence” referred only to that evidence tested by way of cross-examination or could the Court exercise its power on the basis of the statements recorded during examination-in-chief.
(III) Whether the expression “evidence” included evidence collected during the course of investigation or was only limited to evidence recorded during the course of Trial.
(IV) The nature of satisfaction required to exercise power under Section 319 and was it necessary that such power should only be exercised when there is in all likelihood possibility that it would lead to the conviction of the newly added accused.
(V) Whether a person who has not been named in the FIR or who was named but not Charge has been framed against him or a person who has been Discharged could be called as an accused under Section 319 of the Code.
Issue I:
Section 2(g) of the Code states that “Inquiry” means every inquiry, other than a Trial, conducted under this Code by a Magistrate or Court. However, the expression “Trial” has not been defined anywhere under the Code. In State of U.P. v. Lakshmi Brahman (1983) 2 SCC 372 had held that the stage of filing of chargesheet to ensuring compliance with the provision of section 207 CrPC, the Court is only at the stage of inquiry and no trial has commenced. Further, in Ratilal Bhanji Mithani v. State of Maharashtra; (1979) 2 SCC 179, it was held by the hon’ble apex Court that Trial starts with the framing of Charge and prior to it the proceedings are only an Inquiry. Thus, in the present case, the hon’ble Supreme Court held that “Trial commences only on the charges being framed….and the word inquiry is an inquiry after the case is brought to the notice of the Court on the filing of the Charge-sheet.
Thus, in conclusion, the Court held that: “Since after the 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) CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage, intended to put the process into motion.”
Issue II:
Statements made in-lieu of examination-in-chief need to be cross-examined in order to test its veracity and to make it worthy of reliance. The only purpose of cross-examination is to cut-short the truth into material evidence of actual relevancy.
In Ranjit Singh v. State of Punjab; (1998) 7 SCC 149 the hon’ble Supreme Court had held that “it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers”. Similarly, in Mohd. Shafi v. Mohd. Rafiq; (2007) 14 SCC 544 as well as in Harbhajan Singh v. State of Punjab; (2009) 13 SCC 608 it was held that “all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s)”.
Thus, according to the above judgments, it can be understood that vis-à-vis the expression “appear” in Section 319 the only pre-requisite is that there must be a prima facie opinion and not that the Court or Magistrate must be “satisfied” after the statements have been cross-examined as to form an opinion to exercise power under Section 319. Thus, the hon’ble Supreme Court held that it was not necessary that the statements must be cross-examined to exercise power under Section 319.
Issue III:
Section 3 of the Indian Evidence Act, 1872 defines “Evidence” as: “Evidence” means and includes -
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.
The expression “means and includes” is an indication of the fact that the definition is an exhaustive definition and that no other meaning can be assigned to it (See, Mahalakshmi Oil Mills v. State of A.P.; (1989) 1 SCC 164 and Ponds India Ltd. v. CTT; (2008) 8 SCC 369). Thus, according to the following judgments, the expression “evidence” should only refer to oral and documentary evidence. However, does it refer to evidence recorded during the course of Trial or does it also include evidence collected during the course of investigation?
In Guriya v. State of Bihar; (2007) 8 SCC 224 the hon’ble Supreme Court had held that “in exercise of the powers under Section 319 CrPC, the court can add a new accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary.” Further in Kishun Singh v. State of Bihar; (1993) 2 SCC 16 the hon’ble Supreme Court had held that “On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power [under Section 319(1)], it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police”. Again, in Raj Kishore Prasad v. State of Bihar, (1996) 4 SCC 495 the hon’ble Supreme Court held that “In order to apply Section 319 [CrPC], it is thus essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial.”
Thus, the hon’ble Supreme Court held that “[A] bare perusal of Section 227 CrPC would show that the legislature has used the terms “record of the case” and the “documents submitted therewith”. It is in this context that the word “evidence” as appearing in Section 319 CrPC has to be read and understood. The material collected at the stage of investigation can at best be used for a limited purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict the statements of the witnesses recorded before the court. Therefore, for the exercise of power under Section 319 CrPC, the use of word “evidence” means material that has come before the court during an inquiry or trial by it and not otherwise….It is, therefore, clear that the word “evidence” in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation.”
Issue IV:
The Section contemplates the use of the expression “appear” and not of “satisfaction”. Both these terms have distinct meanings. In Pyare Lal Bhargava v. State of Rajasthan; AIR 1963 SC 1094 a 4judge Bench of the hon’ble Supreme Court held that “the appropriate meaning of the word “appears” is “seems”. It imports a lesser degree of probability than proof”. In Rajendra Singh v. State of U.P.; (2007) 7 SCC 378 the hon’ble apex Court observed that “[B]e it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code.” Thus, the only sine qua non is a prima facie view and not satisfaction after perusal of the complete data that is required, to exercise the power under Section 319. The power must be exercised as a power exercised under Section 228 or Section 240 while framing of Charge.
Thus, the Court held 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…. 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.” Thus, it is not necessary for the Court to hold that exercising such power would in all likelihood lead to the conviction of the newly added accused.
Issue V:
The expression “it appears from the evidence that any person not being the accused” is per se explanatory that any person other than an accused facing Trial can be added as an accused in exercise of power under Section 319. Thus, any person who has not been named in the FIR or who was named in the FIR but not Charged can also be added as an accused. However, the important question is whether a person Discharged can be added as an accused. A person Discharged was earlier accused of the offence. Thus, in such a case will re-initiating the case against him be a violation of Section 300 of the Code which deals with the concept of Double Jeopardy.
The Court held that “A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation, the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 CrPC without resorting to the provision of Section 319 CrPC directly.”
Thus, the Court held that “power under Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC.”
Comments