Uttarakhand HC Interprets Sec. 319 Of Cr.P.C. As New Evidences Resurfaces During Trail Disclosing The Complicity Of Persons Other Than The Accused

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A criminal miscellaneous application under Section 482 of the Code of Criminal Procedure (Cr.P.C.) was filed for quashing a 2015 order of the 1st Additional Sessions Judge, Dehradun. The said order was passed in exercise of powers under Sec. 319 Of Cr.P.C on an application filed by the prosecution where the applicants were summoned to face trial for an offence punishable under Sections 302 (Punishment for Murder) read with Section 34 of the IPC.

Brief facts of the case

One Mr. Tarun Kumar (brother of the deceased) lodged an FIR on 02.02.2014 at Police Station in Dehradun against six accused including the applicants herein, for the offence punishable under Section 302 IPC. It was alleged that on 02.02.2014 at about 03:40 P.M., the accused persons, had beaten up the deceased Nitin Kumar near the river, when Nitin Kumar ran away to save his life then the accused persons stopped him and stabbed him in the chest. The complainant stated in the FIR that he witnessed the said incident. Mr. Tarun Kumar in his statement under Section 161 Cr.P.C. also named all the six persons as accused. However, the Investigating Officer submitted charge-sheet against only two of the accused and the others were excluded. During the trial, Mr. Tarun Kumar (complainant) was examined as a Prosecution Witness. In his Examination-in-chief, Mr. Tarun Kumar categorically stated that all the six persons named in the FIR had beaten up his brother Nitin and further that applicants had surrounded his brother Nitin when he was stabbed in the chest. Based on the statement of the complainant during the trial, the prosecution moved an application under Sec. 319 Of Cr.P.C (Power of a Court to proceed against other persons appearing to be guilty of an offence, essentially the co-accused persons) for summoning the applicants. Learned Additional Sessions Judge allowed the said application. This order has been put to challenge in both these criminal miscellaneous applications.

Uttarakhand High Court, power under article 226, Sec. 319 Of Cr.P.CAnalysis of the court

The court first laid down the scope of Sec. 319 Of Cr.P.C and stated that it dealt with situations where evidence resurfaces in the course of an enquiry or trial disclosing the complicity of persons other than the accused. It springs from the legal principle that the judge is condemned when the guilty is acquitted. The scope of its operation is, therefore, limited to cases where the cognizance of a person being an accomplice to crime comes to light during the course of investigation or trial. The court also referred to the judgement of Dev Wati v. the State of Haryana and observed that the power under Section 319 (1) of Cr.P.C. has to be exercised cautiously.

In this case, it was held that for exercising powers under the said provision, something more than the mere probability of a person being an accomplice to the crime is required. The test that has to be applied is of a degree of satisfaction which is more than that of a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that evidence, if goes unrebutted, maybe lead to the conviction of the proposed accused.

The court also relied on the judgement of Hardeep Singh v. State of Punjab, where a constitution bench of the Hon’ble Supreme Court considered the scope of Sec. 319 Of Cr.P.C and held that the stage of inquiry does not contemplate any evidence in its strict legal sense. The only material that the court has at this stage is the material collected by the prosecution and the court must apply its mind to find out whether a person who can be an accused has been erroneously omitted. The court also examined the meaning of the term ‘evidence’ in light of Section 3 of the Evidence Act and concluded that the word as used in Section 319 only means words and documents produced before the court. Thus, the word ‘evidence’ is limited to the evidence recorded during the trial in this case.

Applying the following principles with regard to the provision, the court came to the conclusion that the learned trial court has not erred in summoning the applicants to face trial along with the accused. It found no infirmity in the 2015 order of the Sessions Judge and dismissed the Criminal Miscellaneous Applications under Section 482 of the Cr.P.C.


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