Code of Criminal Procedure, 1973:
s. 319 – Power to proceed against other persons appearing to be guilty of offence – Application u/s. 319, to summon accused named in the application as additional accused – Rejected by the magistrate, however, allowed by the High Court – On appeal, held: U/s. 319 additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused – On facts, in FIR or in the statements recorded u/s. 161, the names of the appellants or any other description not given so as to identify them – Allegations in the FIR are vague – No strong or cogent evidence to make the appellants stand the trial for the offences u/ss 147, 448, 294(b) and 506 IPC – Additional accused cannot be summoned u/s. 319 in casual and cavalier manner in the absence of strong and cogent evidence – Thus, the High Court erred in setting aside the order passed by the magistrate only on the basis of the statements of some of the witnesses examined by the complainant – Order passed by the High Court set aside and that of the trial court is restored.
Allowing the appeal, the Court
HELD: 1.1 The instant case is basically a matrimonial dispute wherein, the husband who is the complainant has levelled allegations against the wife and her other family members. Though in the FIR, the complainant has mentioned that 15 women and 35 men came by vehicles but the names of 11 persons alone were disclosed in the FIR. [Para 12][1012-A-B]
1.2 In the statements recorded under Section 161 of the Code of Criminal Procedure, during the course of investigation, the complainant and his witnesses have not disclosed any other name except the 11 persons named in the FIR. Thus, the complainant has sought to cast net wide so as to include numerous other persons while moving an application under Section 319 of the Code without there being primary evidence about their role in house trespass or of threatening the complainant. Large number of people will not come to the house of the complainant and would return without causing any injury as they were said to be armed with weapons like crowbar, knife and ripper etc. [Para 13][1012-C-D]
1.3 In the First Information Report or in the statements recorded under Section 161 of the Code, the names of the appellants or any other description have not been given so as to identify them. The allegations in the FIR are vague and can be used any time to include any person in the absence of description in the First Information Report to identify such person. There is no assertion in respect of the villages to which the additional accused belong. Therefore, there is no strong or cogent evidence to make the appellants stand the trial for the offences under Sections 147, 448, 294(b) and 506 IPC. The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused. [Para 14][1012-E-G]
1.4 The High Court set aside the order passed by the magistrate only on the basis of the statements of some of the witnesses examined by the complainant. Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section
319 of the Code, especially when the complainant is a husband and has initiated criminal proceedings against family of his inlaws and when their names or other identity were not disclosed at the first opportunity. The order passed by the High Court is not sustainable in law and is set aside and that of the trial court is restored and the application under Section 319 of the Code is dismissed. [Paras 15, 16][1012-G, H; 1013-A, B] Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2 SCR 1 – relied on.
Labhuji Amratji Thakor & Ors. v. The State of Gujarat & Anr. 2019 AIR 734 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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