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Synopsis

The Supreme Court recently observed that the power of the court under Section 319 of the CrPC to summon a person as accused is not controlled or governed by naming or not naming of the person concerned in the FIR, nor it is dependent upon submission of the charge sheet by the police against the person concerned.

"On a careful reading of Section 319 of the CrPC, 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 proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial," a bench of Justices J B Pardiwala and R Mahadevan said.

The court further said that such person even though had initially been named in the FIR 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 chargesheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence," the bench said.

The Supreme Court dismissed an appeal filed by one Omi alias Omkar Rathore and another person against the Madhya Pradesh High Court's October 23, 2024 judgment which rejected their revision application and affirmed an order by the Additional Sessions Judge, Gwalior to summon them to face trial in a murder case.

Though the FIR named seven persons as accused, including the petitioners, the Investigating Officer had filed a closure report concerning the petitioners. Against the other accused persons, the charge-sheet was filed.

"It would not be proper for the trial court to reject the application for addition of new accused by considering records of the Investigating Officer. When the evidence of complainant is found to be worthy of acceptance then the satisfaction of the Investigating Officer hardly matters. If satisfaction of Investigating Officer is to be treated as determinative then the purpose of Section 319 would be frustrated," the bench said.

During the trial in the case, when the complainant stepped into the witness box, he reiterated the assertions made in the FIR. He categorically deposed against the two petitioners and also attributed a specific overt act.

Relying on the oral evidence, an application was filed under Section 319 of the Code to summon the two petitioners as accused for the purpose of facing the trial along with the other co-accused.

The petitioners' counsel said the trial court as well as the high court should not have overlooked the closure report, which clearly exonerated them and stated that they were in no manner connected with the alleged crime.

"We are not impressed with the submission for the simple reason that a person is named in the FIR by the complainant but the police, after investigation finds no role of that particular person and files charge-sheet without implicating him, the court is not powerless and at the stage of summoning, if the Trial Court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so," the bench said.

The court explained even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the court is still not powerless by virtue of Section 319 CrPC and even those persons named in the FIR but not implicated in the charge sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.

The bench also noted that the closure report filed by the police in the case on hand was yet to be looked into by the court concerned as it had not been accepted till date.

"However, the closure report now pales into insignificance in view of the order passed by the trial court under Section 319 of the summoning the petitioners herein to force the trial. We may only add that it would have been in fitness of things if the court concerned would have looked into the closure report at the earliest and passed an appropriate order one way or the other after hearing the de facto-complainant. The court should not keep the closure report pending for consideration for a long time. Such report should be looked into promptly," the bench said.

The bench finally said it was convinced that the high court committed no error not to speak of any error of law in passing the impugned order.

Regarding the contention that the phrase "any person not being the accused" in Section 319 excludes from its scope an accused released by the police under Section 169 of the Code and shown in column No. 2 of the charge sheet, the bench stated that such a contention only needs to be stated to be rejected.

"The said expression clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression," the bench said.

In the case, the bench referred to Hardeep Singh v. State of Punjab (2014), where the Constitution Bench outlined the principles for invoking powers under Section 319 CrPC. Among these, it was emphasized that such powers can only be exercised when strong and cogent evidence emerges against a person. The court clarified that the power cannot be used in a casual or cavalier manner. The test to be applied, as established by the court, is one more stringent than the prima facie standard used during the framing of charges. Whether there is a strong ground to exercise the power depends on the specific evidence presented in each case.

Case Title: Omi @ Omkar Rathore Vs The State of Madhya Pradesh & Anr