2019 SCeJ 140

SUPREME COURT OF INDIA

24 January, 2019

 CrPC, Section 319 - Section 319 (1), empowers the Court to proceed against other persons who “appear” to be guilty of an offence, though not accused before the Court – Though only a prima facie case is to be established from the evidence led before the Court, it requires much stronger evidence than a mere probability of the complicity of the persons against whom the deponent has deposed -  The test that has to be applied is of a degree of satisfaction which is more than that of a 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, may lead to conviction of the proposed accused -  In the absence of such satisfaction, the Court should refrain from exercising the power under Section 319 of the Cr.P.C. . Hardeep Singh v. The State of Punjab [(2014) 3 SCC 92] relied,  ruled that the word “appear” means “clear to the comprehension”, or a phrase near to, if not synonymous with “proved”, and imparts a lesser degree of probability than proof. 2019 SCeJournal 140

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Criminal Procedure Code, 1973 S. 319  Accused not named in FIR - It is well accepted in criminal jurisprudence that F.I.R. may not contain all the details of the occurrence or even the names of all the accused - It is not expected to be an encyclopedia even of facts already known - There are varieties of crimes and by their very nature, details of some crimes can be unfolded only by a detailed and expert investigation - This is more true in crimes involving conspiracy, economic offences or cases not founded on eye witness accounts - Case fixed for evidence and prosecution had already examined five witnesses  - On the basis of evidence of prosecution witnesses recorded in the course of trial, it was urged involvement of MS and  H had emerged and such materials were also available in the statement of concerned witnesses recorded under Section 161 of Criminal Procedure Code - The fact that Police chose not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the Cr.P.C. to summon such a person on account of evidence recorded during trial. (2016)3 PLRSC 849

(2018)2 SCeJ 1925

 

Cr.P.C. Section 319  - Application dismissed  - The mere fact that Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C.  - Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh Vs. State of Punjab & Others, (2014) 3 SCC 92 has to apply the test, i.e., “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.” – Names of the appellants do not find mention in the FIR , nor the statement of victim during investigation nor the Charge Sheet - In the statement, before the Court, victim has narrated the entire sequence of events naming the appellants  -  In the present case, there are not even suggestion of any act done by appellants amounting to an offence referred to in Sections 3 and 4 of the POCSO Act - High Court did not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants -  Order of high court allowing application under section 319 , set aside. - Cr.P.C. Section 319 - Penal Code , Sections 363 and 366 - Protection of Children from Sexual Offences Act, 2012 (“POCSO ACT”)  Sections 3 and 4. (2018)2 SCeJ 1925

On facts: First Information Report under Sections 363 and 366 of I.P.C. and under Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 ( “POCSO ACT”) by mother that her daughter P aged 14 years has been abducted by one N - Application moved under Section 319 of the Cr.P.C. by the Public Prosecutor, where it was stated that in the statement of victim, PW4, she has taken name of applants also, who had taken the victim in the jeep. Statement, which was recorded by Police immediately after the alleged incident, PW4 nowhere has taken the name of the appellants and it was only in the statement, which was recorded in the Court after more than one year that she has stated that the appellants, the friends of accused were also alongwith accused N. POCSO Judge after considering the submissions of the learned counsel for the parties rejected the application observing that prima facie it appears that with mala fide intention, the names of the appellants have been disclosed. Criminal Revision allowed by the High Court. Order set aside by Apex court.

 

 

 Cr.P.C. Section 319  - Under Section 319 Cr.P.C. Court can proceed against any person, who is not an accused in a case before it. However, it has held that the person against whom the Court decides to proceed, “has to be a person whose complicity may be indicated and connected with the commission of the offence”. The Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is “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.”  Hardeep Singh Vs. State of Punjab & Others, (2014) 3 SCC 92