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Synopsis

The Supreme Court has said a person can be summoned by the trial court under Section 319 of the Criminal Procedure Code only after recording prima facie satisfaction to proceed but the degree of satisfaction is much stricter. 

A bench of Justices Abhay S Oka and Pankaj Mithal has thus set aside an order of June 8, 2022 of the sessions court, which directed that the appellants, Aarif and others, who were not shown as accused in the charge sheet should be proceeded against with the accused named in the charge sheet for the offences punishable under Sections 148, 341, 323, 302 read with Section 149 of the Indian Penal Code, 1860.

The court also set aside the High Court's order of April 4, 2023, which confirmed the trial court's order.

Division bench relied upon the Constitution bench's decision in Hardeep Singh vs. State of Punjab (2014), which laid down the extent and degree of inquiry required for deciding an application under Section 319 of CrPC.

"At the time of taking cognisance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter," the bench quoted the Constitution bench decision.

The appellants drew the court's attention to evidence of PW-1 (Manja), PW-5 (Shahrookh) and PW-7 (Ekaramuddin), to contend that, even if the evidence of the said witnesses are considered as correct, a prima facie case against them was not made out. 

The counsel, appearing for the State and the first informant, supported the impugned orders, saying that at this stage, close scrutiny of the evidence of the prosecution witnesses is not warranted for passing an order under Section 319 of CrPC as the Court has to consider the prima facie view. 

Going through the facts of the case, the bench said as far as evidence of PW-1 was concerned, it found that though opportunities were available earlier, the statement of the said witness was recorded very late. 

"The witness admitted that at 4 am, when she was in the hospital where the deceased was undergoing treatment, a police constable came. Still, she did not disclose anything about the incident to the police constable. She was in the hospital for the entire night, where a police outpost was there. But she did not disclose anything to the police," the bench pointed out.

Referring to prosecution witness Shahrookh, the bench noted, in his cross-examination, he admitted that he had not seen the incident with his own eyes. Therefore, he is not an eyewitness. 

With regard to PW-6, Mohammed, the bench found that he claims to have seen the incident from some distance. He also claims to have gone to the hospital where the deceased was taken. He did not report the incident to the police, though the deceased was related to him. 

So far as the testimony of PW-7 - Ekaramuddin S/o Chand Mohammed was concerned, the court noted, his statement was recorded three weeks after the incident. 

"Evidence of said witnesses is insufficient to meet the standards of a prima facie case laid down by the Constitution Bench. No other evidence is relied upon by the respondents to support the application under Section 319," the bench said, allowing the appeal.

Case Title: AARIF & ORS. vs. THE STATE OF RAJASTHAN & ANR.