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Synopsis

The Supreme Court recently held that Section 319 of the Criminal Procedure Code, which allows a trial court to summon a person to face trial, does not contemplate that a summoned person must be given an opportunity to be heard before being added as an accused to face the trial.

"A right of hearing would accrue only to a person who is already discharged in the very same proceeding prior to the commencement of the trial. This is different from holding that a person who has been summoned as per Section 319 CrPC has a right of being heard in accordance with the principles of natural justice before being added as an accused to be tried along with the other accused," a bench of Justices J B Pardwala and R Mahadevan said.

The court, however, clarified that after the rejection of an application filed under Section 319 praying to summon other persons to face the trial, a right enures in favor of the proposed accused.

"Thereafter, if in the exercise of revisional jurisdiction, the High Court is to pass an order that is prejudicial to the benefit which had already enured in favor of the proposed accused, then the High Court is obligated in law to provide an opportunity of hearing to the proposed accused. This is also the mandate as contained in sub-section (2) of Section 401 of the CrPC," the bench said.

The court upheld the Allahabad High Court's order of April 1, 2024, which affirmed the sessions court's order summoning the appellants Jamin and Akil as accused in a murder case registered on April 14, 2009.

The challenge to the summoning order was made essentially on the ground that the appellants had been summoned in a trial that stood concluded on October 19, 2011, that is, almost 13 years before the summoning order was passed.

The FIR had named five accused: Irshad, Irfan, Abdul, Jamin, and Akil. However, the police filed the charge sheet only against Irshad and Irfan and informed the court that the investigation concerning the other accused was continuing. Abdul had died during the proceedings.

In their arguments, appellants Jamin and Akil contended that the person sought to be summoned can be asked to appear “in the course of any inquiry into, or trial of, an offence.” In other words, the summoning order should be passed at a stage prior to the date of pronouncement of the judgment in the trial.

They questioned the validity of the order issued by the trial judge on February 21, 2024. They submitted that the Additional Sessions Judge, Hardoi, could not have exercised his powers under Section 319 of the CrPC, as he became functus officio with the passing of the order of conviction and sentence.

Incidentally, the trial court had earlier twice rejected the application filed by the complainant to summon the remaining three accused.

In the present case, the complainant contended that both the trial court and high court concurrently held that the summoning of the appellants was warranted in view of the evidence that had come on record during the course of the trial. The appellants were accused of having exhorted the original accused persons and, therefore, prima facie, could be said to have abetted the commission of the offence of murder.

After hearing the counsel, the apex court said a summoning order issued under Section 319 of the CrPC cannot be quashed solely on the ground that, even though the proposed accused were named in the FIR or complaint, the police did not include their names in the chargesheet.

In other words, if the evidence tendered in the course of any inquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been chargesheeted by the investigating agency or may have been discharged at an earlier stage, the court said.

The court also pointed out that Sub-section (4) of Section 319 mandated that a fresh trial or a de novo trial be conducted in respect of the persons summoned under sub-section (1), so as to ensure that such persons are not deprived of the opportunity to present their case and examine the witnesses properly.

The bench, however, pointed out that the peculiar facts of the present case were not fully covered by the guidelines issued by the top court in its decisions in Sukhpal Singh Khaira and Hardeep Singh. The dictum that flows from these decisions was that the power under Section 319 of the CrPC must be exercised by the court against the proposed accused before the conclusion of the trial in respect of the original accused.

"However, the factual matrix of the case at hand is one of its kind and requires us to take a step forward into a territory which this Court has not had the occasion to tread in any of its earlier decisions, including those in Sukhpal Singh Khaira and Hardeep Singh," the bench said.

The court said the peculiarity of the present case lay in the fact that although the application under Section 319 of the CrPC was rejected before the conclusion of the trial, it was later allowed after the conclusion of the trial, and the case was remanded by the high court for fresh consideration due to a patent illegality in the order of rejection passed by the Trial Court.

The high court observed that the settled position of law was that the filing or non-filing of a chargesheet would not have any effect on the power of the court to proceed against the proposed accused under Section 319.

"We are of the view that the High Court was right in exercising its revisional jurisdiction, as the order was passed to set aside the order of a subordinate court, which was based on a misapplication of the settled position of law and thus could be said to have been suffering from a patent illegality," the bench said.

The court held that the high court was also right in observing that the conclusion of the trial regarding the original accused would not prejudice the appellants in any manner and that their interests would be safeguarded by sub-section (4) of Section 319 of the CrPC. The high court also noted that the summoning order, though passed after the conclusion of the trial, cannot be said to be vitiated in the peculiar facts and circumstances of the case.

The bench thus held that the right of hearing is not available to the proposed accused only in the first instance, that is, only at the stage when the application is being heard for the first time. However, after the rejection of an application under Section 319, a right enures in favor of the proposed accused.

The apex court directed the trial court to take necessary steps in furtherance of the summoning order of February 21, 2024, to ensure that the appellants are produced before the court to face the trial.

Case Title: Jamin & Anr Vs State of Uttar Pradesh & Anr