INTRODUCTION

It happens, very often that, while trying any offence of criminal law the Court finds from the evidence before the court that, some person other than the accused is guilty of the very same offence. In such a situation, the Court should have the power to call that person or to order him to join the trial. Section 319 of the Criminal Procedure Code, 1973, deals with such complexity that arises during the trial. It states that if it appears to the court from the evidence that any other person is an accused of the offence may be tried together with the accused.

SECTION 319: WHAT DOES IT SAYS

1. Where in course of Inquiry or Trial of an offence,
2. It appears from the evidence before the court that,
3. Any person not being the accused has committed the offence for which he could be tried with the accused,
4. The court may proceed against that person,
5. If the person is not attending the court, he may be arrested or summoned, according to the circumstances.
6. If the person is attending the court, he may be detained for the inquiry,
7. The proceeding against that person shall commence afresh and witnesses shall be reheard by the court.

PURPOSE

The main purpose of this provision under the criminal law is to avoid the multiciplity of proceedings. And the case against all the accused persons shall proceed efficiently and conveniently.  Article 20 and 21, provide protection to the accused person in the form of Fair Trial. But at the same time, there should be a system that provides protection to victims and society at large under criminal law. So that the accused could not run away from the clutches of law.

WHETHER TO ISSUE SUMMONS OR WARRANT

The question arises that, to secure the presence of the accused whether to issue summon or warrant (bailable or non-bailable)? In 2014, the court held that, first the court shall issue the summon or bailable warrant. And failing of that will be followed by issuing a non-bailable warrant. This power is extraordinary and the court must exercise it cautiously.

STAGE AT WHICH THE COURT CAN EXERCISE THIS POWE UNDER SECTION 319

The court can exercise this power after the completion of Investigation and at the stage of Inquiry or trial. In a recent case of 2019 before the Hon’ble Supreme Court has arisen whether the provisions of section 319 can be exercised after passing judgment. A reference is made by the Supreme Court to a larger Bench. But now of a situation is that it can be exercised only at the stage of inquiry or trial.

WHETHER SESSION COURT CAN EXERCISE THE POWER UNDER SECTION 319

According to section 193 of the Code of Criminal Procedure, 1973, the session court cannot take cognizance of any matter unless it is committed to it by the Magistrate. So the question arises that, whether the session court can exercise the power under section 319. Because the Sessions Court cannot take cognizance as a court of original jurisdiction.  In a case, the Supreme Court held that the section begins from the words “except as otherwise provided by the code or any other law for the time being in force”. So, it means the court can take cognizance if there is a provision in the code or any other law, the provision of Section 193 shall not be applicable. Hence the session of Court can summon the additional person as an accused under section 319 of the code.

NATURE OF SATISFACTION REQUIRED TO INVOKE THE POWER UNDER SECTION 319

It is sufficient if only the prima facie case has made out. Even uncorroborated evidence of an approver is enough. The Court may use the power suo motu or on the application of an accused. The degree of satisfaction for summoning the accused would be the same as of framing of charges. The difference of degree of satisfaction on the summoning of the original accused and subsequent accused is that the trial has already been started against the original accused and materials are already disclosed against the subsequent accused. In 2009, the court held that the evidence required to proceed against any person under section 319 should be more than prima facie but less than surety of conviction.