8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice-making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offense but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. - Dr. B. S. Chauhan J.
[Hardeep Singh Vs. State of Punjab and Ors.
In a regular criminal trial, a charge is framed after the police have completed their investigation and submitted their final report under section 173 (2) of the Cr. P.C A.k.a. Charge Sheet and based on the charge framed on one or multiple accused/culprits by the court the trial proceeds accordingly and If the investigating agency erred in involving any of the real culprits as accused in a trial or at the latter stage of the trial any new person gets exposed as accused through any evidence then the court has the power to summon that particular accused under section 319 of the Code of Criminal Procedure to face the trial.
The prosecution or the victim can submit an application under section 319 clause (1) to summon the other person as accused and constitute inquiry or trial against him based on such evidence adduced against him. The application under section 319 can be moved both incognizable and non – cognizable offenses.
On an application made by the prosecution or the victim U/s 319 of Cr.P.C. clause (1), the Magistrate after being satisfied with the evidence adduced against another person can proceed against such person for the offense which he appears to have committed.
Under Clause (2) of Section 319 Cr. P.C. if such person is not appearing before the court; the court can issue a summon or arrest warrant against him/her as required by the circumstances to secure his appearance before the court.
Under Clause (3) of Section 319 Cr. P.C if such person is attending the trial even then the Court can detain him for inquiry or trial of offense which he appears to have committed.
Clause (4) of Section 319 Cr. P.C states as under:
4. Where the Court proceeds against any person under sub-section (1), then:
The stage at which the application under 319 Cr.P.C. can be moved:
In Hardeep Singh vs. the State of Punjab (2014) 3 SCC 92 the Hon'ble Supreme Court held that the power to issue summons under section 319 Cr.P.C. vests with the magistrate at the stage when the trial begins i.e. at the stage when the charge sheet u/s 173(2) of Cr.P.C. is filed before the trial court after which the court take cognizance and frame charges.
In Ratilal Bhanji Mithani vs. the State of Maharashtra, Raj Kishore Prasad vs. State of Bihar and Anr. and in Common Cause v. Union of India: the Hon'ble Supreme court held that the 'Trial' begins with framing of charges and before that the proceeding is only at the inquiry stage.
After going through the judgments of Ratilal Bhanji case (Supra), Raj Kishore Prasad case (Supra), and Common Cause case (Supra) Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab (supra) held that power under Section 319 CrPC can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offense.
When a person named in FIR gets dropped from the charge-sheet as Accused.
It can happen during the investigation of police when the investigation officer unable to collect prima facie or prudent evidence or witness against one of the several accused than such person's name gets dropped from the charge-sheet at that stage also the remedy which vest with the victim or complainant is to file an application under section 319 of the Cr.P.C. to initiate trial against such person whose name has been dropped during the police investigation from the charge-sheet.
To begin the trial against a person whose name is not in the charge-sheet or against whom the charges are not framed the applicant must adduce with the application strong and cogent evidence against such person to initiate a trial against him.
In Suman v. State of Rajasthan the Hon'ble Supreme Court held that:
17. … There is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the court finds that such person has committed any offense for which he could be tried together with the other accused.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.
