JAMIN & ANR. versus STATE OF UTTAR PRADESH & ANR. (06/03/2025) — Supreme Court headnote

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Summary

The Trial Court rejected the complainant's application under Section 319 CrPC to summon the appellants (named in the FIR but not chargesheeted) in July 2010; the trial ended in conviction in October 2011; in September 2021 the High Court in revision set aside the rejection, and in February 2024 the Trial Court summoned the appellants. The Supreme Court upheld the summoning: the rejection was a patent illegality justifying revision; a revisional order rectifying a Section 319 order relates back to and replaces the Trial Court's order, so the summoning order is deemed passed before the trial concluded and the Trial Court was not functus officio; the appellants will face a separate de novo trial under Section 319(4). A proposed accused must be heard under Section 401(2) in a revision against a rejection, as the appellants were.

Issues

Whether the High Court was right in exercising revisional jurisdiction to set aside the Trial Court's order rejecting the second application under Section 319 CrPC.
Whether the Trial Court's summoning order of 21 February 2024, passed to give effect to the High Court's revisional direction, relates back to and replaces its earlier order of 19 July 2010 rejecting the application.
Whether the Trial Court could entertain an application under Section 319 CrPC after the conclusion of the trial, when the High Court had not stayed the trial.
Whether the proposed accused were entitled to be heard before the High Court decided the revision against the rejection of the Section 319 application, and whether they were so heard.

Provisions considered

Section 319(1), Code of Criminal Procedure, 1973Three requirements: an ongoing inquiry or trial of the original accused; evidence in those proceedings showing that another person has committed an offence; and that such person could be tried together with the original accused. The power extends to persons not chargesheeted, placed in column 2, or (after an inquiry under Section 300(5) read with Section 398) discharged; the standard is more than a prima facie case at the charge-framing stage but short of evidence which, if unrebutted, would lead to conviction. The power must be exercised between the filing of the chargesheet and the pronouncement of judgment (before sentence in a case of conviction). (¶¶ 26, 33, 39, 41, 42, 43, 44, 49, 52, 60)
Section 319(4), Code of Criminal Procedure, 1973A de novo trial, with witnesses re-heard, is mandatory for a person summoned under sub-section (1), but sub-section (4) applies only where the power under sub-section (1) has been validly exercised; it does not make the requirement that the summoning order precede the conclusion of the trial directory. In the present case it safeguards the appellants, who must be tried separately and afresh. (¶¶ 45, 46, 60, 66, 105)
Section 319 - expression 'could be tried together with the accused', Code of Criminal Procedure, 1973Read with Section 223, the expression requires that a joint trial be possible when the person is summoned, which is why summoning must precede the conclusion of the trial; it is directory only in the sense that the court need not actually hold a joint trial, so a summoning order made during the trial survives the trial's conclusion and the summoned person may be tried separately. (¶¶ 54, 61, 62, 63, 64, 65, 66, 67, 68)
Section 351, Code of Criminal Procedure, 1898The predecessor provision permitted the court to proceed only against a person attending the court and said nothing about the mode of taking cognizance; on the Law Commission's 41st Report these gaps were filled by Section 319, which allows summoning of a person not present and, by the fiction in sub-section (4)(b), takes cognizance against him in the same manner as against the original accused. (¶¶ 27, 28, 29, 30, 31, 32, 33)
Section 397, Code of Criminal Procedure, 1973Revisional jurisdiction is limited and is meant to set right a patent defect, an error of jurisdiction or law, or an order based on no evidence or perverse exercise of discretion; it is not as extensive as the power under Section 482. The Trial Court's rejection of the Section 319 application on the ground that no chargesheet had been filed against the proposed accused misapplied settled law and was a patent illegality justifying interference. (¶¶ 76, 77, 78, 79)
Section 401, Code of Criminal Procedure, 1973Rectifications made by the High Court under Section 401 read with Section 397 stand on the same footing as those of an appellate court and relate back to the original order. Sub-section (2) forbids any order in revision to the prejudice of the accused or other person without an opportunity of hearing; after rejection of a Section 319 application a benefit enures to the proposed accused, who must therefore be heard in a revision against that rejection. (¶¶ 87, 89, 111, 112, 113, 114)
Section 482, Code of Criminal Procedure, 1973The appellants' petition under Section 482 against the summoning order was dismissed by the High Court; the Supreme Court found no reason to interfere with that order. (¶¶ 2, 15, 107)

Held

Section 319 exists to ensure that a real culprit left out of the chargesheet, intentionally or otherwise, does not go unpunished. A summoning order cannot be quashed merely because the police did not chargesheet persons named in the FIR; if the evidence recorded in the inquiry or trial shows that a person not being the accused committed an offence for which he could be tried with the accused, he may be summoned though not chargesheeted or even if earlier discharged. (¶¶ 34, 37, 38, 43, 44)
The satisfaction required under Section 319 is more than the prima facie case needed to frame charge but short of a satisfaction that the evidence, if unrebutted, would lead to conviction; the evidence need not have been tested by cross-examination, and the power is extraordinary and to be exercised sparingly. (¶¶ 41, 42)
The power under Section 319 can be exercised from the filing of the chargesheet until the pronouncement of judgment: in a case of conviction before the order on sentence, in a case of acquittal before the order of acquittal (Hardeep Singh; Sukhpal Singh Khaira). The summoning order must be passed before the conclusion of the trial of the original accused; that requirement flows from sub-section (1) and is not diluted by the provision for a fresh trial in sub-section (4). Evidence recorded in a concluded main trial cannot found a summoning order in a split-up trial. (¶¶ 49, 50, 52, 53, 57, 58, 59, 60)
The expression 'could be tried together with the accused' requires that joint trial be possible when the summoning decision is taken, after which the court may in its discretion try the summoned person jointly or separately. Once a summoning order is validly passed during the trial, the conclusion of the main trial (for instance while a revision against the summoning order is pending) does not render it ineffective and the summoned person may be tried separately; it is in this sense that the expression is directory (Shashikant Singh, approved in Sukhpal Singh Khaira). (¶¶ 61, 64, 65, 66, 67, 68)
The High Court rightly exercised its revisional jurisdiction: the Trial Court had rejected the second Section 319 application on the footing that no chargesheet had been filed against the proposed accused and that the informant did not know them by name, which misapplied the settled law and amounted to a patent illegality. (¶¶ 77, 78, 79, 115)
An order of the High Court in revision setting aside or modifying a Trial Court's order on a Section 319 application relates back to the date of that order and substitutes it to the extent of the modification, on the principle in Maru Ram, Shankar Ramchandra Abhyankar and U.J.S. Chopra that a superior court's rectification replaces the order of the court below; the principle that an act of court shall prejudice no man also supports this. (¶¶ 85, 86, 87, 88, 89, 90, 91)
Consequently the summoning order of 21 February 2024, passed in compliance with the revisional order of 14 September 2021, is an extension of that order; together they replace the order of 19 July 2010 rejecting the second application, and the summoning order is deemed to have been passed on that date, before the conclusion of the trial, satisfying the dictum in Sukhpal Singh Khaira. The Trial Court was not functus officio in reconsidering the application after the trial had ended, since it was merely giving effect to the revisional direction; unlike an application decided in the first instance, the conclusion of the trial has no bearing on an application decided under a revisional direction. A strict application of Sukhpal Singh Khaira to these facts would render the High Court's order nugatory and cause a miscarriage of justice. (¶¶ 83, 92, 93, 98, 101, 102, 103, 104, 115)
Where the revisional order relates back after the main trial has concluded, no joint trial is possible and the summoned persons must be proceeded against in a separate trial, governed by guideline 41.6 of Sukhpal Singh Khaira; no separate decision by the Trial Court on separation of trial is required. The de novo trial under Section 319(4)(a), with the witnesses re-heard, protects the appellants, so the relation back causes them no prejudice. (¶¶ 96, 105)
Although the law permits the revisional order to travel back, doing so ten years after the trial's conclusion is far from ideal. In such cases the High Court should direct the Trial Court to stay its proceedings until the revision concerning Section 319 is disposed of, and should itself expedite the revision so that the trial is not unreasonably delayed. (¶ 106)
Section 319 does not contemplate a hearing for a person before he is summoned at the first instance; a right of inquiry accrues only to a person already discharged in the same proceeding (Yashodhan Singh). But once a Section 319 application is rejected, a benefit enures to the proposed accused, and if the High Court in revision is to pass an order prejudicial to that benefit it must hear him, as Section 401(2) mandates (Manharbhai Muljibhai Kakadia). Here the appellants were respondents 2 and 4 in the revision petition, so the plea that the rejection was set aside without hearing them had no merit. (¶¶ 109, 110, 111, 112, 113, 114, 115)

Result

Appeal dismissed; the High Court's order of 1 April 2024 declining to quash the summoning order affirmed. The Trial Court directed to take steps in furtherance of the summoning order dated 21 February 2024 to ensure the appellants are produced to face trial. Pending applications disposed of.