HARDEEP SINGH vs STATE OF PUNJAB & Ors., (2014) 3 SCC 92

FACTS OF THE CASE

This case has emerged out of an variety of viewpoints having been expressed by Hon’ble Supreme Court and a few High Courts of the nation on the degree and extent of the forces of the courts under the criminal justice system to charge any individual as an accused during the course for request or trial as given under Section 319 of the Code of Criminal Procedure, 1973.

2. The fundamental reference was made by a two-Judge Bench vide order dated 7.11.2008 on account of Hardeep Singh (Crl.Appeal No 1750 of 2008) was seeing the contention between the decisions on account of Rakesh v. Province of Haryana, and a two-Judge Bench choice on account of Mohd. Shafi v. Mohd. Rafiq and Anr., uncertainty was communicated about the rightness of the view on account of Mohd. Shafi (Supra). The questions as arranged in sections 75 and 78 of the reference request prompted the confining of two inquiries by the said Bench which are given here:

1. When the power under sub-section (1) of Section 319 of the Code of the addition of the accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?

2. What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?

3. The reference was wanted to be settled by a three-Judge Bench whereafter the equivalent came up for thought and vide request dated 8.12.2011, the Court believed that taking into account the reference put forth in the defence of Dharam Pal and Ors. v. state of Haryana and Anr., the issues included being undefined in nature, the proportional should be settled by a Constitution Bench containing at any rate five Judges. The Bench felt that since a three-Judge Bench has just alluded the matter of Dharam Pal (Supra) to a Constitution Bench, at that point in that occasion it would be proper that such major issues have to likewise be settled by a Bench of same strength.

4. Reference put forth in the defence of Dharam Pal (Supra) came to be replied according to the intensity of a Court of Sessions to summon Section 319 Cr.P.C. at the phase of committal of the case to a Court of Sessions. The said reference was replied by the Constitution Bench in the case of Dharam Pal and Ors. v. State of Haryana and Anr.,  [hereinafter referred as Dharam Pal (CB)], wherein it was held that a Sessions court can with the guide of Section 193 Cr.P.C. continue to exhibit some other individual and bring him for being attempted regardless of whether the arrangements of Section 319 Cr.P.C. couldn’t be squashed in administration at the phase of imprisonment.

Consequently, after the reference was made by a three-Judge Bench in the current case, the power far as the Court of Sessions is concerned, to evoke Section 319 Cr.P.C. at the phase of committal, stood addressed at long last in the aforementioned foundation.

ISSUES

1) Can additional accused be summoned under section 319 CrPC ?

ARGUMENTS

In the present case, the learned counsel for the appellant in the appeal arising out of SLP (Crl) No. 166 of 2007 submitted that the order passed by the trial court and verified by the High Court of Punjab and Haryana is absolutely incorrect and should be declared as invalid. It was also submitted that even if name of a particular person is not mentioned in FIR as an accused, he can later on, be added as an accused and a summons can be issued by a court under section 319 of CrPC.

The learned counsel for the respondents on the other hand supported the order passed by the trial court and confirmed by the HC. It was stated that, in the inquiry it was proved that Respondent Vijay Preet Singh reached at the spot after the incident was over and hence, he could not be considered as accused. And as far as Jagtar Singh is concerned his name was not mentioned in the FIR and during the investigation also, nobody made the statement that he participated in the incident. The trial court therefore rightly rejected the prayer and the HC rightly confirmed it.

The learned counsel for the State also supported the respondent and prayed for the dismissal of the appeal.

JUDGEMENT

In this matter, the Apex Court held that the constitutional provisions given under Articles 20 and 21 of the Indian Constitution provides a safeguard for the smooth administration of justice while making sufficient  provisions to ensure fair and effective trial so that the accused does not become prejudiced after the law has been put into the motion to try him for the offence, while also providing equal protection to victims and society at large to ensure that the guilty does not escape the grip of law.

The Hon’ble Supreme Court also held that the power to issue summons under section 319 CrPC vests with the magistrate at the stage when the trial begins i.e. when the charge sheet under section 173(2) of CrPC is filed before the trial court after which the court take the cognizance and frame charges.

The court is also of the opinion that power under section 319 of CrPC being extraordinary in nature, the trial courts should be aware and cautious while summoning accused to avoid complexities and to ensure fair trial.

Hence, section 319 of CrPC empowers the court that the additional accused can be involved, if after the framing of charges and after the commencement of the trial of an offence, the evidence that any person other than accused has committed the crime.

REFERENCES

https://indiankanoon.org

https://ww.scconline.com

This Article is written by Chandrawati Chouhan of Rajasthan School of Law for Women, Jaipur , Intern at Legal Vidhiya.