While exercising power conferred by section 319 Cr.PC, Court must not only act mechanically: Supreme Court

While exercising power conferred by section 319 Cr.PC, Court must not only act mechanically: Supreme Court

Hon’ble Supreme Court while relying on decision of the Constitution Bench in Hardeep Singh vs. State of Punjab satisfied with the Special Court for exercising power conferred by S-319 Cr.PC for summoning the appellant to face trial with the accused.

BRIEF FACTS OF THE CASE

The FIR was lodged by complainant against Dharmendra Nath, brother of Dharmendra Nath and against one more unknown person. The allegations which were made have been registered under the provisions of IPC & SC/ST Act. Investigating authority after completion of investigation submitted charge sheet where Dharmendra was shown as the sole accused.

Learned Special Court after taking cognizance made charges against Dharmendra. According to the complainant and his wife who deposed as PW1 & PW2, Dharmendra and his brother (i.e., the appellant) along with one more unknown person assaulted them and hurled with the cast related abuses. Learned Special Court passed the summoning order dated 16/oct/21 against the appellant in exercise of power conferred on him by S-319 Cr.P.C. The summoning order was challenged before the Allahabad High Court in appeal further which was dismissed. Hence appellant made appeal before the Hon’ble Supreme Court by special leave.

CONTENTION OF APPELLANT

Learned counsel for the appellant made contentions about unreasonable delay in lodging of FIR. He has also drawn attention of the Hon’ble Court towards material difference in the versions of statement deposed by complainant as PW1 & his wife as PW2. Further he mentioned that the name of appellant was not in FIR, the appellant name was taken at the time of recording of evidence. According to learned counsel which is just for harassing the appellant by dragging him into unnecessary trial.

With all these contentions learned counsel argued “exercise of power under Section 319, Cr. PC by the Special Court is arbitrary and that the High Court erred in law as well as on facts in not interfering with such order in exercise of appellate jurisdiction”.

 CONTENTION OF THE STATE

Learned senior counsel for the state while relying on decision of the Constitution Bench in Hardeep Singh vs. State of Punjab: (2014) 3 SCC 92 contented that the learned Special Court duly followed the required procedure. There seems no illegality in order of summoning the appellant. According to him, the impugned order of the High Court, affirming the summoning order of the Special Court, does not call for any interference. Further he prayed that the appeal be dismissed.

HON’BLE COURT OBSERVATIONS

The Hon’ble Court after hearin both the parties and perused the materials on record held that, “Having bestowed due consideration to the rival claims, we are of the view that any expression of ours while dealing with each and every point urged on behalf of the appellant could result in prejudgment; and thereby hinder a fair trial hence, adopting a cautious approach, we propose to restrict our consideration solely to the question as to whether the evidence adduced by the complainant and his wife in course of recording of their depositions did justify the Special Court to make the order it did.”

Further while emphasizing on the law point involve in the matter the Hon’ble Court elaborated S-319 Cr.PC which empowers the court to proceed against the person whose name not mentioned as an accused in the charge sheet. If it appears from the evidence that such person has committed a crime for which he ought to be tried together with the accused who is under trial. Thus Hon’ble Supreme Court envisages the essential requirement before exercising the power under S319 Cr.PC

“………..is that the evidence on record must show the involvement of a person in the commission of a crime and that the said person, who has not been arraigned as an accused, should face trial together with the accused already arraigned. However, the court holding a trial, if it intends to exercise power conferred by section 319, Cr. PC, must not act mechanically merely on the ground that some evidence has come on record implicating the person sought to be summoned; its satisfaction preceding the order thereunder must be more than prima facie as formed at the stage of a charge being framed and short of satisfaction to an extent that the evidence, if unrebutted, would lead to conviction”

Dismissing the appeal Hon’ble Supreme finally concluded that it is not the first time where the name of appellant present in the entire matter. There wasn’t total absence of the appellant from the beginning. The Hon’ble Court left the point related to delay in FIR and material contradiction in the versions of complainant and his wife upon the appellant to urge before the special court.

Law points Involved

• 319 Cr.P.C.- Power to proceed against other persons appearing to be guilty of offence.

CASE TITLE: JITENDRA NATH MISHRA  VS. STATE OF U.P. & ANR.

CRIMINAL APPEAL NO: 978 OF 2022

ORDER DATE: 2nd JUNE, 2023