Code of Criminal Procedure, 1973 – s.319 – Principle of hearing a person who is summoned u/s. 319 Cr.P.C. – Applicability of – Respondent no.2-complainant got an FIR registered u/ss. 147, 148, 149, 302, 452, 307, 504 of IPC – A charge-sheet was filed against the accused persons but the names of appellants were not mentioned in it as their role was under investigation – Respondent no.2 filed application u/s. 319 Cr.P.C. to summon appellants – Trial Court summoned appellants to join trial – High Court affirmed the order passed by the trial Court – Before the Supreme Court, appellant contended that either the summoning order may be set aside in light of paragraph 9 of the Jogendra Yadav case as no opportunity of hearing that was provided to the appellants, at the time of order of summoning or the Jogendra Yadav case may be referred to a larger Bench if not followed in the instant case – Held: Merely because in certain proceedings the persons summoned had been provided an opportunity of being heard cannot be the same thing as stating that it is a mandatory requirement or a precondition that at the time of summoning a person u/s. 319 of the Cr.P.C., he should be given an opportunity of being heard – Paragraph 9 cannot be considered to be ratio of the Jogendra Yadav judgment – The judgment in Jogendra Yadav does not calls for any re-consideration and observation in paragraph 9 is relatable only to the facts of the said case – Thus, the principle of hearing a person who is summoned cannot be read into s. 319 Cr.P.C, such a procedure is not at all contemplated therein.
Code of Criminal Procedure, 1973 – s.319 – Object and purpose – discussed.
Dismissing the appeal, the Court
HELD: 1. The Constitution Bench of this Court in Hardeep Singh, it is noted that an inquiry is contemplated as against a person who has been discharged prior to the commencement of the trial in terms of Section 227 Cr.P.C. as extracted above but on an inquiry, if it appears that there is evidence against such a discharged person, then power under Section 319 Cr.P.C. can be exercised against such a discharged person. This clearly would mean that when a person who is not discharged but is to be summoned as per Section 319 Cr.P.C. on the basis of satisfaction derived by the court on the evidence on record, no inquiry or hearing is contemplated. This would clearly indicate that principle of natural justice and an opportunity of hearing a person summoned under 319 Cr.P.C. are not at all contemplated. Such a right of inquiry would accrue only to a person who is already discharged in the very same proceeding prior to the commencement of the trial. This is different from holding that a person who has been summoned as per Section 319 Cr.P.C. has a right of being heard in accordance with the principles of natural justice before being added as an accused to be tried along with other accused. [Para 23][1212-D-G]
2. Further, when a person is summoned as an accused under Section 319 Cr.P.C. which is based on the satisfaction recorded by the Trial Court on the evidence that has emerged during the course of trial so as to try the person summoned as an accused along with the other accused, the summoned accused cannot seek discharge. It is necessary to state that discharge as contemplated under Section 227 Cr.P.C. is at a stage prior to the commencement of the trial and immediately after framing of charge but when power is exercised the under Section 319 Cr.P.C. to summon a person to be added as an accused in the trial to be tried along with other accused, such a person cannot seek discharge as the court would have exercised the power under Section 319 Cr.P.C. based on a satisfaction derived from the evidence that has emerged during the evidence recorded in the course of trial and such satisfaction is of a higher degree than the satisfaction which is derived by the court at the time of framing of charge. [Para 24][1212-G-H; 1213-A-B]
3. Merely because in certain proceedings the persons summoned had been provided an opportunity of being heard cannot be the same thing as stating that it is a mandatory requirement or a precondition that at the time of summoning a person under Section 319 of the Cr.P.C., he should be given an opportunity of being heard. That is not the mandate of law inasmuch as Section 319 clearly uses the expression “to proceed” which means to proceed with the trial and not to jeopardise the trial at the instance of the person(s) summoned by conducting a mini trial or a trial within a trial thereby derailing the main trial of the case and particularly against the accused who are already facing trail and who may be in custody. A person who is summoned in exercise of the power under Section 319 Cr.P.C. cannot hijack the trial so to say and deviate from its focus and take it to a tangent in order to bolster his own case in a bid to escape trial. All that is contemplated when a person is summoned to appear is to ascertain that he is the very person who was summoned and if any summoned person fails to appear on the given date. On the appearance of the summoned person, no procedure of an inquiry or opportunity of being heard is envisaged before been added as an accused to the list of accused already facing trial unless such a summoned person had already been discharged, in which event, an inquiry is contemplated as discussed above. Thus, the contention that a summoned person must be given an opportunity of being heard before being added as an accused to face the trial is clearly not contemplated under Section 319 Cr.P.C. It is also observed by this Court in Hardeep Singh that such a summoned person can assail a summoning order before a superior Court and will also have the right of cross examining the witnesses as well as can let in his defence evidence, if any. [Para 32] [1219-D-H; 1220-A-B]
4. The lateral entry of a person summoned in exercise of power under Section 319 Cr.P.C. is only to face the trial along with other accused. This, being a salutary provision in order to meet the ends of justice, the same cannot be diluted by importing within the scope of Section 319 Cr.P.C. principles of natural justice which in any case would be followed during the trial. It is well settled that principles of natural justice cannot be applied in straitjacket formula and they would depend upon the facts of each case and the object and purpose to be achieved under a provision of law. [Para 33][1220-B-C]
5. The judgment in Jogendra Yadav does not call for any re-consideration and the said observation in paragraph 9 is relatable only to the facts of the said case. Thus, the principle of hearing a person who is summoned cannot be read into Section
319 Cr.P.C. Such a procedure is not at all contemplated therein. In the circumstances, this Court does not accept the contentions of the appellants herein. [Para 34][1220-D-E]
Sukhpal Singh Khair v. State of Punjab (2023) 1 SCC 289; Brijendra Singh & Ors. v/s. State of Rajasthan (2017) 7 SCC 706 : [2017] 3 SCR 374; Hardeep Singh vs. State of Punjab & Ors. (2014) 3 SCC 92 : [2014] 2 SCR 1 – followed.
Jogendra Yadav and Ors. vs. State of Bihar and Anr. (2015) 9 SCC 244 : [2015] 9 SCR 69; Ram Janam Yadav & Ors. vs. State of U.P. & Anr. SLP (Crl.) No.3199/2021 – 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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