Supreme Court
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Supreme Court in its recent ruling stated additional accused persons previously not mentioned in the First Information Report (FIR) cannot be brought to trial just because they were named during the course of the trial. The prosecution in this case wanted to depose additional suspects under Section 319 of Code of Criminal Procedure (CrPC) when some witnesses mentioned their names during the ongoing trial.

Facts of the case

In this instant case an appeal had been filed against an order of Madras High Court whereby an order passed by District Munsif cum Judicial Magistrate was set aside and go ahead was given to prosecute the accused-appellants in accordance with law.

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S. Nallasamy, the complainant, in this case, had filed an FIR against 15 ladies and 35 men under Section 147, 448, 294(b) and 506 of IPC which was registered on 29.05.2011. Nallasamy in his complaint stated that at about 11 am on 05.05.2011 when he was in his house a group of men and women came inside his house armed with dangerous weapons such as crowbar, knife and ripper and threatened him. One of the men in the group instigated others to kill him and thereafter they approached him menacingly with intent to harm him. He identified his father-in-law, mother-in-law and brother-in-law amongst the 11 identified persons in the group. His mother, a witness to the whole situation also affirmed his views along with two of his neighbours.

After a thorough investigation the police filed a report under Section 173 CrPC accusing 11 people of causing serious mistreatment of the complainant. The complainant thereafter filed an application for further investigation under Section 173(8) of CrPC at the trial court which was dismissed in 30.07.2013. Henceforth, prosecution witnesses, including the complainant, recorded their statements at the trial court. The complainant had also filed an additional application under Section 319 of CrPC to implead 20 more accused persons in the case whose names were not included previously on the FIR.

The learned Magistrate in his 2015 verdict stated:

In all their statements only those 11 members names were mentioned. So till the date of submission of final report, no details or information regarding the other 20 members have been found. …. Also under Section 319 of CrPC when the case is under progress and a person is accused with proper evidence or witness the court can order to add the person to the accused list and order to arrest the person. But in order to add a person as an accused in a case just stating the name and detail of the person is not enough, but what crime he has committed has to be mentioned definitely. Based on doubt the court cannot add the person in the accused list.”

The complainant moved to High Court with a Revision petition against the trial court’s decision. The High Court held:

It is very clear that apart from the 11 named accused, some other persons also committed offence and the District Munsif cum Judicial Magistrate, Kodumodi, failed to consider the evidence and also the scope of Section 319 CrPC. Hence, apart from the present accused persons, 20 more persons/proposed accused also involved in the case and hence, they have to be arrayed as accused.”

Court ruling

Under these special circumstances, the appeal was made in front of the Apex Court by the accused-appellants to be heard in this matter. The case was presented in the Court of Honourable Justices D.Y. Chandrachud and Hemant Gupta. The appellants placed their reliance on the Constitution Bench judgment of the top court in Hardeep Singh v. The State Of Punjab.

The Supreme Court ruled that after hearing the counsel for both the parties the Court is of the opinion that “the order passed by the High Court is not sustainable in law.” The judges opined that the case is simply a matrimonial dispute where the complainant-husband “has levelled allegations against the wife and her other family members.”

The Court also clarified that “there was only 11 accused named in the FIR. Even afterwards the statements recorded under Section 161 of CrPC the complainant and other witnesses revealed the names of only those 11 people. There is no assertion in respect of the villages to which the additional accused belong.” The top court further reiterated, “there being no 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.

The Apex Court declared, “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.”

Impact of the judgment

In this instant case the top Court upheld their previous position regarding invoking Section 319. The judgment of Hardeep Singh v. State Of Punjab in which the appellants had placed their reliance was quoted by the Court and the provision of Section 319 of CrPC was examined. The Apex Court ruled that the Power under Section 319 CrPC is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The Court clarifying their position reiterated the application of Section 319 should not be exercised irresponsibly and the evidence should be “tested on the anvil of cross-examination.” If strong reasons for invoking this Section is not found then the Court should refrain from using it.

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