Petitioner challenged the dismissal of a Section 319 Cr.P.C. petition seeking to add five village officials as accused. The court held that their inconsistent statements failed to establish a strong and cogent case beyond prima facie probability, rejecting interference.
petition dismissed; Court below directed to complete proceedings within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :10.06.2019
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.No.23632 of 2015
N.Elumalai
... Petitioner/Defacto Complainant
Vs.
1. State rep by its
S.H.O., Elavanasurkottai P.S,
Ulundurpet, Villupuram District,
(Crime No.259 of 2012) ... Respondent/Complainant
2. Soundarajan,
Village Administrative Officer,
S.Malaiyanoor Village,
Ulundurpet Taluk,
Villupuram District.
3. Chinraj,
Deputy Tahsildar (Election)
Office of the Tahsildar,
Ulunthurpet,
Villupuram District.
4. T.Subethachandran
S/o.Thangaraj,
Village Administrative Officer (Retd)
S.Malaiyanoor, Thirupeyar Post,
Ulunthurpet Taluk,
Villupuram District.
5. Arunachalam
Village Assistant Officer,
S.Malaiyanoor,
Ulunthurpet Taluk,
Villupuram District.
... Respondents/Accused
Prayer: This Criminal Original Petition filed under Section 482 of Cr.P.C. to set aside the order passed by the learned First Additional Munsif-Cum-Judicial Magistrate No.1, Ulundurpet in
CMP.No.3619 of 2014 in CC.No.67 of 2013 dated 31.03.2015 and further direct the learned First Additional Munsif-Cum-Judicial Magistrate No.1, Ulundurpet to proceed with the 319 Cr.P.C petition after issuing of summon to the respondents 2 to 5 in accordance with law.
For Respondents : M.Mohamed Riyaz Additional Public Prosecutor
ORDER
This petition has been filed challenging the order passed by the Court below dismissing the petition filed under Section 319 of Cr.P.C in order to array respondents 2 to 4 herein as accused in the case.
under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. Question (v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not charge-sheeted or has been discharged?
117.1 In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319Cr.P.C. becomes available for summoning an additional accused.
117.2 Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge sheet.
117.3 In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No.( II) - Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by crossexamination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? Answer
117.4. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. (IV) Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer
117.5. Though under Section 319(4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No.(V ) - Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?
Answer.
117.6 A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of ?Sections 300 and398 Cr.P.C. has to be complied with before he can be summoned afresh.
"14. In the First Information report or in the statements recorded under Section 161 of the Code, the names of 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 of IPC in view of the judgment in Hardeep Singh Vs. State of Punjab (supra). 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 primafacie 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 convincing the accused."
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
vv/kal
To
1. The Station House Officer,
Elavanasurkottai P.S,
Ulundurpet, Villupuram District,
Crime No.259/2012
2. Soundarajan,
Village Administrative Officer,
S.Malaiyanoor Village,
Ulundurpet Taluk, Villupuram District.
Crl.O.P.No.23632 of 2015
spd(co)
nr 15/07/2019
nr 05/08/2019
2 issues framed by the court
Whether the test under Section 319 Cr.P.C. for summoning an additional accused is satisfied when the allegation appears for the first time during examination-in-chief and is inconsistent with earlier
Whether the petitioner's inconsistent stand regarding the role of the proposed accused persons, lacking mention in the FIR or 161 statement, establishes sufficient evidence under Section 319 Cr.P.C.
Colour shows how this judgement treated each authority
Hardeep Singh vs. State of Punjab and OthersReferred¶18
(2014) 3 Supreme Court Cases 92
Periyasami and Others Vs. S.NallasamyReferred¶18
(2019) 2 MLJ (Crl) 191 (SC)
2 provisions across 1 enactments
N. Elumalai
State represented by S.H.O., Elavanasurkottai P.S.
Soundarajan
Chinraj
T. Subethachandran
Arunachalam
N. Anand Venkatesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
