The discretionary nature of the power conferred under Section 319 of the Cr.P.C. and the need for substantial material to justify summoning an accused.

JUDGMENT :

SHARAD KUMAR SHARMA, J.

1. The applicant to the C482 Application puts a challenge to the interim orders, the first being that of 13.08.2019 as it was passed by the Court of Additional Chief Judicial Magistrate in Criminal Case No. 237 of 2015, State vs. Jaspal Singh and Others and consequently, it’s affirmation by the judgment of 11.07.2023 as it was passed by the Court of learned 1st Additional District Judge, Haridwar in Criminal Revision No. 640 of 2019, Vipin Kumar Jain vs. State of Uttarakhand and Others.

2. The consequential effect of the two orders would be, that the application as preferred under Section 319 of the Cr.P.C. by respondent no. 3 has been allowed and, as a consequence thereto, the present applicant has been summoned to be tried in Criminal Case No. 237 of 2015, State vs. Jaspal and Others.

3. While putting a challenge to the aforesaid two orders, the learned counsel for the applicant has summarized his first argument from the following perspective – that the application under Section 319 of the Cr.P.C. at the behest of respondent no. 3, would not be maintainable, because he is not a party to the proceedings and as such has got no locus-standi to file the same.

4. To answer the said argument, this Court is of the view that, if the provision as contained under Section 319 of the Cr.P.C. is taken into consideration, it does not speak about the source of filing of an application. The said provision under Section 319 of the Cr.P.C. has been interpreted by the Hon’ble Apex Court in the judgment, which has been relied upon by the learned counsel for the applicant himself as reported in Sarojben Ashwinkumar Shah and Others vs. State of Gujarat and Another, (2012) 1 SCC (Cri) 867 that the Court itself if requires can exercise its powers under Section 319 of the Cr.P.C. suo moto or an application of ‘someone’.

5. The reference of the word ‘someone’ under Sub-clause 1 of paragraph no. 16 of the said judgment, it does not specifies, clarifies, categorises or identifies the person on whose behest, the application under Section 319 of the Cr.P.C. could be preferred, for summoning of an accused person, to be tried for the offences. Paragraph no. 16 of the aforesaid judgment is extracted hereunder:

“16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this:

(i) The court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.

(iii) The phrase “any person not being the accused” occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word “evidence” in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinar