Power u/s 319 of CrPC is discretionary & extraordinary power which should be exercised sparingly, reiterates Apex Court

Read Judgment: Sagar vs. State of U.P and Another 

Pankaj Bajpai

New Delhi, March 11, 2022: While hearing a case sought for summoning of an accused by way of an application u/s 319 of CrPC, the Supreme Court has quoted the decision of the Constitution Bench of this Court in Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92, to reiterate that power u/s 319 of CrPC is a discretionary and extraordinary power which should be exercised sparingly. 

A Division Bench of Justice Ajay Rastogi and Justice Abhay S. Oka therefore observed that the High Court has failed to consider the basic principles laid down by this Court while invoking Section 319 of CrPC, which has been considered by the trial Judge. 

Going by the background of the case, a written complaint was filed by one Ravinder s/o Sadhuram that when the complainant went to the field of Jagpal and called his son Nitin, Jagpal asked Sagar (appellant) to disconnect the electric wire and at some distance he saw Nitin lying near the Mend in a naked position, and was burnt by electric wire around the neck. On calling Jagpal and Sagar, they ran away from the spot. After investigation, charge-sheet came to be filed against Jagpal. After inspection of the place of incident, naming of the accused Sagar who was a juvenile and minor at the relevant point of time, was found to be wrong. No case was made out against him and challan was filed against Jagpal u/s 302 IPC.

The complainant during trial filed application u/s 319 of CrPC stating that the investigating officer had arbitrarily removed the name of the appellant from the charge-sheet, although he was also involved in committing the said crime, and accordingly asked to summon the appellant also for trial for the crime committed by him. The trial Judge however, recorded a finding that neither the complainant nor his father was eyewitness. The Trial Court also observed that at the stage when Section 319 of CrPC is to be invoked, there must be a strong and cogent evidence occurred against a person from the evidence led before the Court. Hence, the Trial Court rejected the application to summon the appellant. 

Challenging the same, the appellant approached the High Court, whereby the Single Judge, without even appreciating the evidences of prosecution witnesses, which was recorded during the course of trial, in a casual and cavalier manner, set aside the well-reasoned order passed by the trial Judge. 

After considering the submissions, the Top Court found that the scope and ambit of Section 319 of the Code has been well settled by the Constitution Bench of this Court in Hardeep Singh’s Case(Supra), wherein the Constitution Bench has given a caution that power u/s 319 of CrPC is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. 

The Constitution Bench in the case of Hardeep Singh’s Case (Supra) has also clarified that the crucial test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction, added the Court.  

Accordingly, the Apex Court allowed the appeal and quashed the order passed by the High Court.