Summary
The Supreme Court declined to interfere with the summoning of two persons named in the FIR to stand trial for murder under Section 319 CrPC on the strength of the first informant's examination-in-chief, even though the police had filed a closure report in their favour. The power under Section 319 does not depend on whether a person was named in the FIR or charge-sheeted, and the investigating officer's satisfaction cannot override evidence led at trial.
Issues
- Whether the trial court, before summoning persons as additional accused under Section 319 CrPC, was bound to consider the police closure report exonerating them.
- Whether persons named in the FIR but not charge-sheeted can be summoned under Section 319 CrPC on the basis of evidence led at trial, including evidence not yet tested in cross-examination.
Provisions considered
- Section 319, Code of Criminal Procedure, 1973Applying the Hardeep Singh standard (strong and cogent evidence, more than the prima facie case needed at charge, short of what would lead to conviction if unrebutted), the Court upheld summoning based on the informant's examination-in-chief attributing a specific overt act to the petitioners, and set out principles on the scope of the power. (¶¶ 12, 13, 16, 17, 18, 21)
- Section 169, Code of Criminal Procedure, 1973The Court rejected the contention that a person released by the police under Section 169 and shown in column 2 of the charge-sheet falls outside the expression 'any person not being the accused' in Section 319. (¶ 21)
- Sections 302, 307, 147, 148 and 149, Indian Penal Code, 1860The offences for which the FIR was registered and for which the petitioners were summoned to face trial along with the charge-sheeted co-accused. (¶¶ 1, 2)
Held
- The power under Section 319 CrPC is discretionary and extraordinary and is to be exercised only where strong and cogent evidence emerges against a person from the evidence led before the court; the test is more than the prima facie case applied at framing of charge, and evidence not yet tested by cross-examination may be relied upon. (¶¶ 12, 13)
- Where a person named in the FIR is not charge-sheeted, the court is not powerless: it may summon him at the stage of cognizance, and once that stage has passed it may still do so under Section 319 if evidence against him surfaces during the trial. (¶¶ 16, 17, 18)
- The power under Section 319 is not controlled by whether the person was named in the FIR or charge-sheeted; it covers anyone not already being tried, including persons dropped by the police during investigation, but must rest on evidence adduced before the court and not on material in the charge-sheet or case diary. (¶ 21)
- A trial court should not reject an application to add an accused by relying on the investigating officer's records; where the complainant's evidence is worthy of acceptance, the investigating officer's satisfaction hardly matters, as treating it as decisive would frustrate the purpose of Section 319. (¶¶ 16, 21)
- A closure report that the court has not yet considered pales into insignificance once a Section 319 summoning order is passed; courts should nevertheless examine closure reports promptly and pass an order one way or the other after hearing the de facto complainant, rather than keep them pending for long. (¶ 19)
Result
Special leave petition dismissed; the petitioners remain free to raise all available contentions before the trial court, including reliance on the closure report for whatever it is worth.