IMPORTANT POINT
Power u/s 319 Cr.P.C. is an extra ordinary power which is conferred on Court and should be used sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier.

Headnote:Criminal Procedure Code, 1973—Section 319—Jurisdiction to add any person not being accused before it to face trial with other accused—Power can be exercised by Court suo-motu or on application by someone including accused already before Court—Power is discretionary and must be exercised judicially—Extra ordinary power should be used very sparingly and only if compelling reasons exist for taking action against such—Police charge sheeted husband, his brother and mother for offences of dowry death u/s 304B, 498A/34 I.P.C.—Victim deceased was set on fire and appellant, father of husband, was named in FIR—Appellant’s stand during investigation was that he was serving at school at the alleged time of incident—During trial complainant moved application u/s 319 Cr.P.C. to try appellant also but trial Court rejected the application—High Court by impugned order, passed in revision, directed Trial Court to proceed against appellant by summoning him—Appeal—Only ground on which trial Court had rejected application was that complainant was interested witness—Factor which weighed with trial Court was not relevant and High Court rightly interfered with.
       Held : In Michael Machado and Anr. v. Central Bureau of Investigation and Anr. (2000(3) SCC 262) construing the words “the court may proceed against such person” in Section 319 of the Code, this Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. The court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.(Para 6)
       On a careful reading of Sec. 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as 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, because such materials contained in the charge sheet or the case diary do not constitute evidence. Of course, as evident from the decision reported in Sohan Lal and others v. State of Rajasthan, (AIR 1990 SC 2158) the position of an accused who has been discharged stands on a different footing. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court.(Paras 10 and 11)
       It is to be noted that the trial court rejected the application only on the ground that the complainant was an interested witness and therefore, sufficient ground did not exist to take action against the accused persons. As noted above though the power is an extra-ordinary and is used only if compelling reasons exist; the factor which weighed is that the trial court does not appear to be relevant and, therefore, the High Court has rightly interfered in the matter. The impugned judgment does not suffer from any infirmity. However, we make it clear that we have not expressed any opinion on the merits of the case. Since the matter is pending long the trial court is requested to complete the trial as early as possible.(Para 12)

Judgement Key Points

The power under Section 319 Cr.P.C. is an extraordinary, discretionary power that should be exercised sparingly and only for compelling reasons to add a person not previously accused to face trial with others. (!) (!)
The court may exercise Section 319 suo motu or on an application by someone, including an accused already before the court. (!)
The court should base the decision on evidence adduced in court, not solely on materials in the charge sheet or case diary; even a person named in the FIR but not charge sheeted can be added if evidence supports involvement. (!) (!)
The decision to add an additional accused must consider the stage of the trial, amount of evidence collected, and the time spent, ensuring a judicial and careful conspectus rather than a mechanical decision. (!) (!)
There is no compelling duty to add another person merely because some evidence implicates them; the court has to be satisfied of involvement based on evidence presented. (!)
The judgment cites Michael Machado v. CBI and Krishnappa v. State of Karnataka as authorities clarifying the proper scope and discretion under Section 319. (!) (!)
The High Court's direction to summon the appellant was upheld, with recognition that the trial court should complete the trial expeditiously. (!) (!)

How to exercise the power under Section 319 Cr.P.C. to add an additional accused suo motu or on an application?

What is the extent and limits of the court's discretion under Section 319 Cr.P.C. when adding a person not previously accused?

What factors should be considered by the court when deciding to summon an additional accused under Section 319 Cr.P.C.?

JUDGMENT

Arijit Pasayat, J.—Leave granted.

2. Appellant who has been directed to be impleaded as an accused in terms of Section 319 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) challenges the order passed by learned Singh Judge of the Rajasthan High Court at Jodhpur.

3. Background facts are as under :

Respondent No.1-Nihal Singh’s daughters Saroj and Kanta were married to Ishwar Singh and Bhim Singh, both sons of Appellant, Lok Ram. Saroj died on 14.9.2001. On 2.9.2001, respondent Nihal Singh filed a complaint at the Police Station, Fatehabad (Haryana), alleging commission of offence punishable under Section 406 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and moved an application for seizure of articles purported to have been given as dowry. In the complaint it was stated that on 14.9.2001 Saroj, daughter of complainant Nihal Singh died. When his nephew Mangal Singh went to meet Saroj he learnt that she had been killed by her husband Ishwar Singh, brother in law Bhim Singh and father in law-Lok Ram. Kerosene oil was poured on her and then she was set on fire. Police registered a case relating to offences punishable under Section 304(B) and 498(A) read with Section 34 IPC. On the basis of the aforesaid report an investigation was started. Stand of the appellant, Lok Ram was that he was serving at a school at the alleged time of incident. Statements of various persons were recorded. During trial, complainant Nihal Singh moved an application under Section 319 of the Code. By order dated 6.9.2002 learned Sessions Judge rejected the application. On 4.12.2002, trial court convicted Ishwar Singh, Bhim Singh and their mother for commission of offences punishable under Section 304(B) IPC and each was sentenced to undergo rigorous imprisonment for 7 years. Against the order dated 6.9.2002 a revision petition was filed. The High Court by the impugned judgment directed the trial court to proceed against the appellant by summoning him.

4. In support of the appeal, learned counsel for the appellant submitted that the true scope and ambit of Section 319 of the Code has not been kept in view. The trial had continued to a considerable extent. The power to summon an accused is an extra-ordinary power conferred on the court and is to be used sparingly. Only if compelling reasons exist for taking cognizance against a person against whom action had not been taken earlier then only Section 319 of the Code has to be pressed into service. The trial Court had given ample reasons for refusal to exercise the power. The High Court should not have interfered in the matter.

5. In response, learned counsel for the complainant-respondent No.1 submitted that the trial court had not kept the correct parameters in view and, therefore, the High Court was justified in setting aside the order of the trial court and directing summons to be issued to appellant.

6. In Michael Machado and Anr. v. Central Bureau of Investigation and Anr. (2000(3) SCC 262) construing the words “the court may proceed against such person” in Section 319 of the Code, this Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. The court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors including those noticed above, have to be kept in view and an order is not required to be

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2006 Supreme(SC) 342

IMPORTANT POINTPower u/s 319 Cr.P.C. is an extra ordinary power which is conferred on Court and should be used sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier.

How to exercise the power under Section 319 Cr.P.C. to add an additional accused suo motu or on an application?

What is the extent and limits of the court's discretion under Section 319 Cr.P.C. when adding a person not previously accused?

What factors should be considered by the court when deciding to summon an additional accused under Section 319 Cr.P.C.?

Cases Referred (4)

IMPORTANT POINT
Power u/s 319 Cr.P.C. is an extra ordinary power which is conferred on Court and should be used sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier.