1993 (1) TMI 304 - SC - Indian Laws

Court affirms dismissal, clarifies summoning authority, emphasizes duty to identify offenders

The Supreme Court affirmed the dismissal of the appeal, concluding that although the stage for exercising power under Section 319 had not been reached, ... - Issues Involved:1. Whether a Court of Session can summon a person not named in the Police Report presented u/s 173 of the Code of Criminal Procedure, 1973, to stand trial along with those already named therein, in exercise of power conferred by Section 319 of the Code.Issue-wise Comprehensive Details:1. Summoning a Person Not Named in the Police Report u/s 319 of the Code:The core issue was whether a Court of Session, to which a case is committed for trial by a Magistrate, can summon a person not named in the Police Report presented u/s 173 of the Code of Criminal Procedure, 1973, to stand trial along with those already named therein, without itself recording evidence. The appellants were initially named in the First Information Report but were not included in the charge-sheet as the investigating officer found their involvement unestablished. The Sessions Judge, upon receiving the case, issued a show cause notice to the appellants based on an application u/s 319 of the Code, which was contested by the appellants. The Sessions Judge exercised his discretion u/s 319 to implead the appellants as co-accused before the commencement of the trial. The High Court of Patna dismissed the appellants' Criminal Revision Application, relying on the Full Bench decision in S.K. Lutfur Rahman & Ors. v. The State.2. Interpretation of Section 319 in Juxtaposition with Section 351 of the Old Code:Section 319 of the Code, which corresponds to Section 351 of the repealed Code of Criminal Procedure, 1898, was discussed. The Law Commission had recommended recasting Section 351 to empower courts to summon persons not present in court and to make the process of taking cognizance against newly added accused clear and comprehensive. The Supreme Court noted that Section 319 of the Code is an improved version of Section 351 of the old Code, incorporating recommendations to make it comprehensive, allowing the court to summon persons not initially named if their involvement becomes apparent during the trial.3. Requirement of Evidence for Exercising Power u/s 319:The appellants contended that the power u/s 319 could only be exercised if it appeared from the evidence during the trial that a person not being the accused had committed an offence. The Supreme Court agreed that Section 319 requires some evidence to be recorded during the trial to invoke this power and cannot be applied merely based on the material collected during the investigation. However, the Court acknowledged that Section 319 is an enabling provision for post-cognizance stages where new evidence surfaces during the trial.4. Alternative Provisions for Summoning Additional Accused:The Court examined whether any other provision in the Code could allow similar powers to summon additional accused in situations not covered by Section 319. It was noted that once cognizance of an offence is taken, it becomes the court's duty to identify all offenders and proceed against them. The Court referred to Section 193 of the Code, which allows the Court of Session to take cognizance of the case once it is committed by a Magistrate, thereby lifting the restriction on summoning additional accused.5. Jurisdiction of the Court of Session u/s 193 of the Code:The Supreme Court emphasized the shift in Section 193 from the old Code to the new Code, highlighting that the Court of Session can take cognizance of the case once committed by a Magistrate. The Court agreed with the Full Bench of the High Court of Patna that Section 193, as it presently stands, allows the Court of Session to summon individuals whose involvement in the crime is prima facie evident from the case record.Conclusion:The Supreme Court concluded that while the stage for exercising power u/s 319 had not reached, the Court of Session had the power u/s 193 to summon the appellants based on their prima facie involvement in the crime. The appeal was dismissed, affirming that the exercise of power under a wrong provision does not render the order illegal or invalid.Appeal dismissed.