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CODE OF CRIMINAL PROCEDURE, 1973:s.31.9 ~·Power to.proceed against other person appearing . - - to be guilty pf offence.~ Stage of excise of power - Held: Power u/s 319(1) can be' exercised at anytime after the charge-sheet is filed and before the pronouncement of judgment - s. 319 uses the expressions 'inquiry'..and 'trial'..- Stage of inquiry commences, insofar 'as the. court is. concerned, with. filing of charge-sheet and consideration of material collected by prosecution, that is. mentioned in the charge-sheet for the purpose of trying the. accused. -, As a trial commences. after framing of charge, an inquiry can only be understood to be a pre-trial inquiry - Inquiries u/ss 200, 201, 202 and u/s 398 are species of the inquiry. contemplated by. 319 . In order to invoke the power u/s 319, it is only a Court of Session or a Court of Magistrate performing the duties as a court under Cr.P.C. that can utilize the material before it for the purpose of the said Section'" The stage of committal is.neither.an inquiry nor a trial -The view in Dharam Pal (CB) that.after committal, cognizance of an offence can be taken by Court of Session u/s 193 Cr.P.C against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation and Sessions Judge need not wait till 'evidence' u/s 319 Cr.P.C. • becomes available for summoning an additional accused, is · concurred with - 'Trial' commences only on charges being framed -- The view that in a criminal case, trial commences on cognizance being taken, is not approved -- The interpretation given by the Constitution Bench in- Dharam Pal (CB) that is. 193 Cr.P.C. confers power of original jurisdiction upon the Court of Session to add an accused once the case B has been committed to it, is concurred with -- Maxims Judex damnatur cum nocens absolvitur' and 'a verbis legis non est recedendum' - Interpretation of statutes.s.319 rlw s. 227 - 'Evidence' for the purpose of s.319 - Connotation of - Held: For exercise of power u/s 319, the use of word ·evidence' means material that has come before the court during an inquiry or trial by it and not otherwise -- Word "evidence" in s.319 means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents It is only such D evidence that can be taken into account by the Magistrate or the court to decide whether power u/s 319 is to be exercised and not on the basis of material collected during investigation.s. 319 - Exercise of power u/s 319 on the basis of examination-in-chief - Held: Once examination-in-chief is conducted, the statement becomes part of the record -- It is evidence as per law and in the true sense, though, it may be rebuttable --Power u/s 319 can be exercised at the stage of completion of examination-in- chief and court need not wait till said evidence is tested on cross-examination for it is the satisfaction of court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence - Evidence Act, 1872 - s.3.s.319 - Nature of satisfaction required to invoke power u/s 319 - Held: Though only a prima-facie case is to be established from the evidence led before the court not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of complicity of person concerned - The test that has to be A 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 unrebutted, would lead to conviction - In the absence of such satisfaction, the court should refrain from exercising power u/s 319 Cr. P. C.s.319 - Power to proceed against other person - Scope of- Held: s.319 is an enabling provision, it empowers the court to proceed against any person who is not an accused in a case before it - A person whose name does not appear even in the FIR or in the charge-sheet or whose name appears in C the FIR and not in the main part of the charge-sheet but in Column 2 and has not been summoned as an accused in exercise of the powers u/s 193, can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions fulfilled -- D Further, a person discharged can also be arraigned again as an accused but only after an inquiry as contemplated by ss.300(5) and 398 -- If during or after such inquiry, there appears to be an evidence against such person, power u/s 319 E can be exercised.s.319 r/w ss.398, 300(5) and 258 - Power to proceed against a person who has been discharged - Held: A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected F to, but not charge-sheeted - Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation, the court had come to the conclusion that there was not even a prima-facie case to proceed against such person - If after such careful examination of the evidence, the court is of the opinion that G there does exist evidence to pro~ed against the person so discharged, it may take steps but only in accordance with s. 398 Cr. P. C. without resorting to the provision of s. 319 Cr. P. C. directly.WORDS AND PHRASES: Words, 'course', 'inquiry' and 'trial' as occurring ins. 319 Cr. P. C. - Connotation of. |
