Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine is used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.
It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.
Section 319 Cr.P.C. is quoted hereunder:
“319 Cr.P.C. -Power to proceed against other persons appearing to be guilty of offence.-
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.”
The object to insert the provision
For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under the Cr.P.C. indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law.
Who can use this power?
Under Section 2(g) defining an inquiry other than the trial by a magistrate or a court, here the legislature has used two words, namely the magistrate or court, whereas under Section 319 Cr.P.C., as indicated above, only the word “court” has been recited. This has been done by the legislature to emphasise that the power under Section 319 Cr.P.C. is exercisable only by the court and not by any officer not acting as a court.
Thus, the magistrate not functioning or exercising powers as a court can make an inquiry in particular proceeding other than a trial but the material so collected would not be by a court during the course of an inquiry or a trial. The conclusion therefore, in short, is that in order to invoke the power under Section 319 Cr.P.C., it is only a Court of Sessions or a Court of Magistrate performing the duties as a court under the Cr.P.C. that can utilise the material before it for the purpose of the said Section.
The Power under Section 319
Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.
The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution.
The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.
Kishan Singh Case and Ranjit Singh Case
In Ranjit Singh v. State of Punjab, AIR 1998 SC 3148, Supreme Court observed that from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 Cr.P.C., that court can deal with only the accused referred to in Section 209 Cr.P.C. and there is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused,
while in Kishun Singh & Ors v. State of Bihar, (1993) 2 SCC 16, Supreme Court came to the conclusion that even the Sessions Court has power under Section 193 Cr.P.C. to take cognizance of the offence and summon other persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record and need not wait till the stage of Section 319 Cr.P.C. is reached.
Coming to the stage at which power under Section 319 Cr.P.C. can be exercised, in Dharam Pal & Ors. v. State of Haryana & Anr., (2004) 13 SCC 9, Supreme Court had noticed the conflict in the decisions of Kishun Singh & Ors v. State of Bihar, (1993) 2 SCC 16 and Ranjit Singh v. State of Punjab, AIR 1998 SC 3148, and referred the matter to the Constitution Bench.
However, while referring the matter to a Constitution Bench, the Court affirmed the judgment in Kishun Singh (Supra) and doubted the correctness of the judgment in Ranjit Singh (Supra). The Court in Dharam Pal (Supra) held that the effect of Ranjit Singh (Supra) would be that in less serious offences triable by a Magistrate, the said Court would have the power to proceed against those who are mentioned in Column 2 of the charge-sheet, if on the basis of material on record, the Magistrate disagrees with the conclusion reached by the police, but, as far as serious offences triable by the Court of Sessions are concerned, that court will have to wait till the stage of Section 319 Cr.P.C. is reached.
The issue that was being considered by the Court in Dharam Pal (CB), was the exercise of such power at the stage of committal of a case and the court held that even if Section 319 Cr.P.C. could not be invoked at that stage, Section 193 Cr.P.C. could be invoked for the said purpose.
The Supreme Court discussed Section 319 of CrPC in ‘Hardeep Puri v. State of Punjab (2014)’, the court clarified that,
“The opening words of Section 193 Cr.P.C. categorically recite that the power of the Court of Sessions to take cognizance would commence only after committal of the case by a magistrate. The said provision opens with a non-obstante clause “except as otherwise expressly provided by this code or by any other law for the time being in force”.
The Section therefore is clarified by the said opening words which clearly means that if there is any other provision under Cr.P.C, expressly making a provision for exercise of powers by the court to take cognizance, then the same would apply and the provisions of Section 193 Cr.P.C. would not be applicable.
In our opinion, Section 319 Cr.P.C. is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial.”