Section 319 CrPC: Power to implicate additional accused during trial
Section 319 CRPC empowers a court to summon a person other than the accused who appears to have committed the offence on the basis of the evidence available on the file especially testimonies of the witnesses. This section speaks about additional prosecution of the persons who have joined in the offence but have not been charge-sheeted by the police. The power has time and again said that power given under Section 319 CrPC cannot be exercised in a casual and cavalier manner. It should be exercised only when strong and cogent evidence occurs against a person. The law is almost been settled on the issue of the implication of additional accused under section 319 CRPC.
To add a person as an additional accused under Section 319 CRPC, strong evidence is required and the court cannot proceed merely on the probability of involvement of such a person in the offence. It is settled law that the evidence implicating the person must be cogent evidence and such power must be used by the courts sparingly. The test of strong evidence and mere probability of involvement has been left to the discretion of the trial judge which has to be used judiciously.
The Section deals with the prosecution of additional accused. It mandates the court to add any such person to the trial with the accused against whom strong evidence has been found during the trial. Such a person against whom sufficient evidence has been found and the court is satisfied with the involvement of that person in the offence becomes an accused on the date when the order is passed by the trial court. The magistrate has ample powers at any stage of inquiry or trial to take cognizance and add any such person against whom prima facie evidence has been found. Even if the complaint has been dismissed under Section 203 CPRC after the inquiry is completed, it does not bar the court from initiating the proceedings under section 319.
S.319 (1) lays down some essentials requirements that need to be satisfied by the trial court to attract this section –
1. There must be a trial or inquiry of an offence. Section 319(1) CRPC makes it mandatory for the courts to exercise this power only during the trial or inquiry of an offence. Section 319(1) gives the court the power to proceed against such a person who is not arrayed as accused and whom the courts think, from the evidence gathered during the course of inquiry or trial, to have committed the offence.
2. Subclause (2) of Section 319 CRPC gives power to the court to arrest or summon that person who is arrayed as accused if he is not present during the proceedings. In case the person is attending the proceedings, then the court may detain him.
3. Court must be satisfied by the evidence available that any person other than the accused charge-sheeted has committed such an offence.
4. Such a person has to be tried together with the accused. He must be tried with the accused simultaneously and the proceedings against him have to be started afresh and the witnesses have to be re-examined.
Although the language of this section does not lay down any such provision as to who can invoke section 319 CRPC it has been now well established by the legal authorities pronounced by the Supreme Court that the manner in which this power conferred by Section 319 CrPC can be exercised by the courts. It can be exercised either suo moto or upon application by any person including the accused. This power is discretionary and must be exercised judicially by the courts. The court enjoys extraordinary powers under this section and it must be used sparingly only if evidence compels the court to initiate the proceedings against that person.
The trial court can take cognizance on its own motion when there is glaring evidence recorded during the trial which involves the persons to be added as accused. Usually, the power of the court of taking suo moto cognizance cannot be interfered with by the Revisional Court but it can interfere only if the court has not given cogent reasons while passing such an order.
When the Trail court after hearing such an application rejects the application on any ground, the Revisional Court must hear the applicant under S. 401(2) CRPC. Either party unsatisfied by the order of the Revisional Court may approach the High Court and the High Court can exercise its powers under S. 397CRPC by invoking inherent powers under S. 482CRPC.
The court can exercise this power against any person who has not been charge-sheeted by the police but this does not include a person against whom such court has issued summons and evidence shows prima facie involvement of that person in the commission of offence. If a person has been discharged, no proceedings can be initiated against him unless under S. 300(5) or any higher court decides to try him.
A person who has not been charge sheeted can be prosecuted under this section. Even if such a person was accused in the FIR but the police couldn’t collect cogent evidence against him, still he can be added as an accused. The accused against whom proceedings have been quashed can also be prosecuted under this section.
This power of the Trial Court can be exercised at the trial or inquiry stage. For this section, Trial means a determination of the guilt of the accused by examining witnesses and documents whereas an inquiry commences after the police files a final report dropping all the charges against the accused person. In such cases, the court may initiate a further inquiry into the matter if it thinks it fit or if the other party files a protest petition. The Supreme Court has put a restriction on the power of the magistrate provided under Section 319. It is clarified by the Apex Court that the magistrate is forbidden to exercise its powers when the case is at the stage of Sec. 207 to 209 CRPC.
This power of the Court could be exercised only after the commencement of trial i.e. recording of the evidence and not before that and this power comes to an end with the pronouncement of judgment but before the pronouncement of judgment, this power can be used anytime. The main requirement of this section is that there has to be prima facie sufficient evidence available on file. For the purposes of this section, Cross-examination is not necessary to take place and the court could take cognizance of the such application merely on the basis of the Examination-in-chief of the witnesses. There is no requirement of prior notice to the accused under this provision of law and the court will hear such accused only after an order is passed on such application.