Gamut of Section 319 of the Code of Criminal Procedure

Section 319 of the Code of Criminal Procedure (CrPC) is based upon the doctrine judex damnatur cum nocens absolvitur (judge is condemned when guilty is acquitted). The legislature in its wisdom brought in the present section to keep a check in those cases where the investigating agency for any reason does not array one of the real culprits as an accused. The entire object, therefore, is to not allow the real perpetrator of an offence to get away unpunished..Conflicts in interpretation.Judges are bound by the legal maxim A Verbis Legis Non Est Recedendum, which means, "from the words of law, there must be no departure". Therefore, like any other law, the present section also saw a dichotomy of findings on account of different interpretations of the law by different courts. The majority of the conflicts revolved around the following issues:1. Is an application under Section 319 not maintainable unless the cross-examination of the witness is complete?2. What is the test required for invocation of Section 319?3. Who all can be summoned to face trial by invoking Section 319?.The Supreme Court, vide its Constitution Bench judgment in Hardeep Singh v. State of Punjab, unlocked the fetters as imposed by the different interpretations. The Constitution Bench reframed the initial reference and answered as under..Whether the word "evidence" used in Section 319(1) has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?The word 'evidence' in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial..Whether the word "evidence" used in Section 319(1) could only mean evidence tested by cross-examination or can the court exerciset. he power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? The Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination..What is the nature of the satisfaction required to invoke the power under Section 319 to arraign an accused? Whether this power can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? For invocation of power under Section 319, the test required is more than prima facie..Does the power under Section 319 extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged? A person not named in the FIR, or a person though named in the FIR but not chargesheeted, or a person who has been discharged can be summoned under Section 319. However, for one who stands discharged, the requirement of Sections 300 and 398 CrPC have to be complied with..Further, the Supreme Court in Brijendra Singh v. State of Rajasthan has taken the Constitution Bench ruling a step forward by giving the term ‘evidence’ a further broader interpretation. It was held,"...where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ‘much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record.".Certain ambiguities as they still stand today.As the courts cannot be presumed to have imagined all possible circumstances, certain ambiguities still exist. For instance, the following question arises:Can a person be summoned under Section 319 after the trial qua the other accused has culminated? .This situation arose recently wherein vide a judgment of same date, the judge firstly convicted some accused and then proceeded to summon other accused. In the said case of Sukhpal Singh Khaira v. State of Punjab, the Apex Court, doubting the decision in Shashikant Singh v. Tarkeshwar,which permitted the same, has referred the matter to a larger bench, formulating the following questions:1. Whether the trial court has the power under Section 319 for summoning additional accused when the trial with respect to other has ended and the judgment of conviction is rendered on the same date before pronouncing the summoning order?2. Whether the trial court has the power under Section 319 for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending?3. What are the guidelines that the competent court must follow while exercising power under Section 319? .The answers to the said questions are likely to take time as the three-judge Bench has now further referred the same to a five-judge Bench which is yet to be constituted. .Though the matter is sub judice before the Constitution Bench, on my personal understanding of the law, the answer to the first question lies in paragraph 37 of the judgment in Hardeep Singh. Here, it was categorically held that the word “course" allows the court to invoke this power to proceed against any person from the initial stage of inquiry upto the stage of the conclusion of the trial. Thus, the said provision ceases to be available after trial. Accordingly, the answer to the second question can be drawn from the judgment of the Apex Court in Babubhai Bhimabhai Bokhiria & Anr. v. State of Gujarat & Ors , wherein it has been held, "...we have no hesitation in holding that even if the addition of the petitioner is held to be justified by this Court, the mere fact that the trial of the remaining accused has already concluded, would not prevent the prosecution of the petitioner for the offences for which he has been summoned by the trial Court."The corollary of this would mean that if a person stands summoned before the conclusion of the trial of the other accused, he cannot claim the benefit of the argument that the trial qua others has concluded and only on account of his absconding or his order being stayed by a higher court, he couldn’t be brought before the court on an earlier occasion...The answer to the third question could again be drawn from the judgment of Hardeep Singh, wherein the test for summoning under Section 319 was held to be more than a prima facie case, and such would depend upon the facts of each case..Another ambiguity that exists is how should a person be summoned under Section 319 - by way of bailable warrants or non-bailable warrants? .As the question arises once the investigation is over and the investigating agency doesn’t require custody after having found the said person innocent, what purpose would be achieved by now issuing a non-bailable warrant resulting in the said accused to seek bail, more so when the investigating agency doesn’t require him? .This paradox has been addressed by the Supreme Court in the case of Vikas v. State of Rajasthan. It was held, "Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when firstly it is reasonable to believe that the person will not voluntarily appear in court; or secondly that the police authorities are unable to find the person to serve him and thirdly if it is considered that the person could harm someone if not placed into custody immediately.".Conclusion.Section 319 accords great responsibility upon the court to use the said power with great care and caution, because our criminal jurisprudence rests upon the fulcrum of Blackstone’s ratio ie ‘it is better that ten guilty persons escape than one innocent suffer’. .It is when one tests the usage of the said provision on the touchstone of Blackstone’s ratio that one comes across that in daily practice, the courts tend to summon persons by virtue of the above section in a very casual and cavalier manner. It can be easily discerned from the orders so passed summoning accused under Section 319 that the general mindset of the courts is to the effect that if no case would be made out against the summoned accused, then he would be eventually acquitted. While adopting such modus operandi, the courts can’t be ignorant and immune to the fact that in our country, the society is governed by various social, economic, religious, and political factors on account of which there is a great tendency to falsely implicate innocent people in an ongoing criminal case. The courts have to be vigilant and on strict guard to ward off such a menace and the misuse of law. While the said section empowers the courts to reach out to the complete truth, at the same time, it also casts a duty upon them to use this power sparingly and cautiously..The author is an advocate practicing at the Punjab & Haryana High Court. Can be reached at randhawa.harkirat1@gmail.com. Views expressed in this article are personal.