Read Time: 09 minutes

Synopsis

The Supreme Court has said that while deciding an application under Section 319 of the CrPC to summon a person as an accused in a criminal case, the court must consider the cross-examination as well.

The apex court said that if an application under Section 319 of the CrPC is made after the cross-examination of witnesses, it would be unjust to ignore it, as the power cannot be exercised when there is no case made out against the persons sought to be implicated.

A bench of Justices Abhay S Oka and Augustine George Masih also said that if the power under Section 319 is sought to be exercised before the cross-examination of material witnesses, the court cannot postpone the consideration of the prayer under Section 319 of the CrPC on the ground that the cross-examination of the witnesses is yet to be recorded.

The court set aside the High Court's order of February 8, 2023, which allowed a revision petition against the sessions court's decision rejecting an application to summon appellant Hetram alias Babli in a case.

The bench noted that the application under Section 319 of the CrPC was based on the depositions of two alleged eyewitnesses, PW-2 Sona and PW-4 Seema. Both of them, in the examination-in-chief, deposed that they had seen the appellant hitting the deceased on the left side of the head with a spade.

The appellant's counsel submitted that there was no prima facie material against him.

The state counsel, relying upon a decision of the top court in the case of Hardeep Singh vs. State of Punjab (2014), submitted that the court, while dealing with the application under Section 319 of the CrPC, has to only see the examination-in-chief and decide whether, if the same goes uncontroverted, it would lead to the conviction of the persons sought to be implicated. He defended the High Court's judgment.

Referring to the evidence of two witnesses, the court said the allegation made by them against the appellant in the examination-in-chief was an omission.

The bench said that as there was no other eyewitness, the omission was significant and relevant.

"Therefore, in view of the explanation to Section 162 of the CrPC, it will amount to contradiction," the court said.

Referring to the Hardeep Singh case, the bench said the court had observed that the test to be applied for dealing with the application under Section 319 of the CrPC is greater than a prima facie standard, which is required to be considered at the time of framing of the charge.

"The test to be applied is whether, if the evidence goes unrebutted, it would lead to conviction. The court has to record satisfaction in such terms, and if such satisfaction cannot be recorded, the court should refrain from exercising power under Section 319 of the CrPC," the bench said.

In a given case, the bench pointed out that if power under Section 319 is sought to be exercised before the cross-examination of material witnesses, the court cannot postpone the consideration of the prayer under Section 319 of the CrPC on the ground that the cross-examination of the witnesses is pending.

In the facts of the case, the bench noted, the occasion for considering the application under Section 319 of the CrPC arose only after the cross-examination of the two eyewitnesses was recorded.

"Therefore, while deciding an application under Section 319 of the CrPC, the court must consider the cross-examination as well. If an application under Section 319 of the CrPC is made after the cross-examination of witnesses, it would be unjust to ignore the same. The power under Section 319 of the CrPC cannot be exercised when there is no case made out against the persons sought to be implicated," the bench said.

In the case, the bench pointed out, in view of the omissions which were material and amounted to contradictions, no court could have recorded the satisfaction contemplated by Section 319 of the CrPC.

"It is impossible to record a finding that even a prima facie case of involvement of the appellant has been made out. Accordingly, we cannot sustain the High Court's order," the bench said.

The bench, however, clarified that the consideration by it of the evidence of the two prosecution witnesses was only for the limited purposes of the prayer under Section 319 of the CrPC as against the appellant.

Case Title: Hetram @ Babli Vs State of Rajasthan & Anr