Summary
The Court directed summoning of four persons omitted from the charge-sheet after an injured eyewitness identified them and their specific roles in court. Section 319 could operate on examination-in-chief without awaiting completed cross-examination; failure to file a protest petition did not bar it. The courts below had prematurely assessed the merits and overlooked the unlawful-assembly allegations. The police opinions relied on to exclude the four were unsupported by the reports or witnesses in the charge-sheet. The appeal was allowed, with all findings confined to summoning and trial merits left open.
Issues
- Whether the injured eyewitness’s deposition justified summoning persons kept in column two of the charge-sheet.
- Whether pending cross-examination, absence of a protest petition or subsequent trial progress barred Section 319 relief.
- Whether absence of an individually attributed injury defeated summoning on the unlawful-assembly allegations.
Provisions considered
- Section 319, Code of Criminal Procedure, 1973The extraordinary power required strong and cogent court evidence exceeding the charge-framing threshold; it could be exercised on examination-in-chief to summon the four omitted persons in this case. (¶¶ 12.1, 13, 14, 14.1, 14.2, 14.3, 14.4, 14.5, 15)
- Section 149, Indian Penal Code, 1860On the allegations of participation in an armed unlawful assembly, absence of an individually inflicted injury did not by itself defeat summoning; guilt remained for trial. (¶¶ 14, 14.2, 15)
Held
- Section 319 is an extraordinary discretionary power to be used sparingly on strong and cogent evidence, requiring more than the prima facie threshold for framing a charge but not a final finding of guilt. It cannot be exercised casually or reduced to a mini-trial deciding the prosecution evidence on merits. (¶¶ 12.1, 13)
- Examination-in-chief constitutes evidence and can support summoning without awaiting cross-examination. Persons named in the FIR but omitted from the charge-sheet may be summoned when the required evidence emerges; failure to file an earlier protest petition does not extinguish that power. (¶¶ 12.1, 13, 14.1, 14.4)
- The injured eyewitness specifically identified the proposed accused and their roles, consistent with the initial allegations. The asserted DSP inquiries did not justify disregarding that evidence: the reports were not part of the charge-sheet, the officers were not listed as witnesses, and the final report did not examine the specific allegations against these persons. (¶¶ 14, 14.1)
- The lower courts wrongly treated absence of an individually attributed injury as decisive despite the unlawful-assembly allegations. Their assessment of common intention and supposed over-implication prematurely entered trial merits rather than applying the summoning standard to the evidence. (¶ 14.2)
- Neither the appellant’s failure to challenge the common High Court judgment alongside the earlier cross-case appeal nor the trial’s subsequent progress justified sustaining the erroneous rejection. The application had been made while the first witness was under cross-examination, and the trial had not concluded. (¶¶ 14.3, 14.5)
- The rejection orders were quashed and the Section 319 application allowed. The trial court was directed to summon the four private respondents in the FIR 477/2016 sessions trial for the specified murder, attempted murder, restraint and unlawful-assembly offences, deciding guilt independently on trial evidence. (¶ 15)
Result
Appeal allowed; Section 319 application granted and four additional accused directed to be summoned, with trial merits expressly left open.