POWERS OF THE COURT UNDER SECTION 319 CrPC

CRIMINAL LAW PROJECT

SUBMITTED BY SUBMITTED TO

AMAN SAINI PROF NEERAJ TIWARI

NATIONAL LAW UNIVERSITY NEW DELHI

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 ACKNOWLEDGEMENT
This project wouldn't be possible without the combined wisdom, help,
and support of everyone involved. My heartfelt thanks go out to Dr.
Neeraj Tiwari for allowing me to proceed with this research study and
for his insightful advice. If it weren't for him, this project would never
have been finished. I also want to thank my teacher’s assistant and my
fellow students for their encouragement and assistance in my research.
Finally, I would want to express my gratitude to the Lord Almighty for
his blessings and direction in completing this endeavour.
Aman saini
69LLB20
Second year, Third semester

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 TABLE OF CONTENT
PAGE NO

SYNOPSIS………………………………………………….……..04
RESEARCH QUESTION……………………………………….05
RESEARCH OBJECTIVE………………………………………05
HYPOTHESIS…………………………………………………….05
CHAPTER II Introduction………………………………………06
CHAPTER III: JUDICIAL ANALYSIS……………………….08
CHAPTER IV HARDEEP SINGH v. STATE OF PUNJAB…11
CONCLUSION………………………………………………….14
BIBLIOGRAPHY………………………………………………15

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 SYNOPSIS

Brief Introduction

Just for society as a whole, the judiciary's role in enforcing the rule of law is
crucial. It is the pillar of justice's job to safeguard people's freedoms while also
serving as a deterrent to criminal activity.1 In India, the Criminal Procedure Code is
designed to help the courts accomplish this goal 2 has provided them with
sufficient power. Some of the Court's powers are so extraordinary that they must
be used with caution. “Code of 1973 section 319 permits the court to proceed
against persons other than the accused if sufficient evidence against them satisfies
the court that they too could be tried alongside the accused3”. Additional
information is provided in this section on how to proceed against those individuals.

A brief review of the section reveals several unsolved questions that could lead to
ambiguity and the Court exercising more power than is necessary. The court's
powers under the provision needed to be explained in terms of the conditions in
which it should exercise them. Furthermore, because the Code of 'evidence' lacked
a definition, it was required to explain its constitution. This was important because,
once the prosecution applies to commence proceedings against someone other than
the accused, the court must determine whether the evidence obtained through chief
examination or cross-examination of witnesses may be considered by the court. As
part of its historic ruling in Hardeep Singh v. the State of Punjab4, the Supreme
Court addressed several problems and resolved conflicting judicial decisions to
clear up this and other ambiguities in the Article. The following study tries to
examine how judicial interpretations of Code section 319 have changed over time.

1
Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8 WASH. U. GLOBAL
STUD. L. REV. 1 (2009), http://openscholarship.wustl.edu/law_globalstudies/vol8/iss1/2.
2
Code of Criminal Procedure, 1973, THE UNIVERSAL BARE ACT.
3
Id S 319(1)
4
AIR 2014 SC 1400

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Research Question
1. What is the difference between sections 319 and 351 of the 1861 Code?

2. What role have the courts played in interpreting Section 319's scope and
procedure?

3. Whether courts have the authority to commence actions against individuals suo
motu under section 319?

Research Objectives
1. To understand the difference between section 319 of the code of criminal
procedure 1973 code and section 351 of the 1861 code.

2. 2. To acquire a jurisprudential evaluation of Code of code of criminal procedure

section 319's scope and ambit.

3. To examine the court's ability to exercise suo motupowers under Section 319 of
the Code.

Hypothesis

It was important to look at how the courts construed the section's provisions in
order to determine the full breadth and ambit of section 319. The passage caused a
great deal of uncertainty, which the courts have worked out over the course of
many years of dialogue. An opportunity to clarify the meaning of section 319 was
provided by the landmark case Hardeep Singh v. the State of Punjab5 before the
Supreme Court. The court's answers to various questions have been well praised
and allowed the law to be decided in this regard.

5
Hardeep Singh v. the State of Punjab

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 CHAPTER II INTRODUCTION

The Criminal Procedure Code of 1973 (hereafter Code of 1973) has endowed the
criminal justice system's functionaries with significant powers to secure the
administration of supreme justice and the deterrence of offences. The section
expressly states that the Court can exercise this power at any time during the
investigation or trial process and that if the Court believes, based on the evidence,
that any person who is not the accused has committed an offence for which he or
she could be tried alongside the accused, the Court may proceed against that
person.

Furthermore, section 319(2) states that if such a person fails to appear in regular
court procedures, he or she may be summoned or even arrested, depending on the
facts and circumstances. If the person is attending court hearings and has not been
arrested or summoned, he or she may be detained for investigation or trial.6 If the
court decides to pursue a person under section 319(1), then the proceedings will be
restarted and all witnesses will be re-heard, according to sub-clause 4 of the
section. Furthermore, the case against this individual may proceed as if they had
been accused when the Court first took cognizance of them. To expedite the case
against all known suspects, cognizance of the new accused should be taken in the
same manner as the previous suspects, under section 319 of the Code.7

Section 319 (1973) v. Section 351 (1861)

Section 319 of the Code of Criminal Procedure of 1973 corresponds to section 351
of the Code of Criminal Procedure of 1861. There is a significant difference
between the two portions. The prior part (section 351) only permitted the courts to
summon or arrest people who were present as spectators or witnesses, thus the new
section (section 319) was completely rewritten.8 As a result, if the person being
prosecuted was not attending normal court procedures, the court could not continue

6
7
“K.N.C Pillai, R.V. Kelkar’s Criminal Procedure Code, Eastern Book Co. (6th ed. 2014), p. 430.”
8
“S.C. Sarkar, Code of Criminal Procedure- An Encyclopedic Commentary on the code of criminal procedure 1973,
Vol. 2 (12th Ed. 2017)”

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against them. As a result, the judges' power under section 351 of the 1861 law was
highly limited. On the other hand, there is no such restriction in the new section.

Section 319, subsections (2) and (3), plainly provide for a larger extent of the
power entrusted to the courts, allowing procedures to be brought against anyone,
regardless of whether they are present as spectators or witnesses.

While the section has adequately put forward several crucial procedural norms
regarding the court's power, it leaves many concerns unexplained. The section has
"any person" under its examination, although no definition of who would fall under
its purview has been provided. Furthermore, the term "evidence" has no definition
in the Code of 1973, so it's up to the courts to decide what kind of proof is
acceptable to start proceedings under the provision. Finally, the degree of
satisfaction that must be demonstrated against a person to invoke the section has
not been specified, necessitating a review of how the judiciary has construed the
section.

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 CHAPTER III: JUDICIAL ANALYSIS

“The doctrine of judex damnatur cum nocens absolvitur, which states that the
judge is condemned when the guilty party is acquitted, is highlighted by section
319 of the Code criminal procedure of 1973”. The power conferred to the courts
under section 319 however, is extraordinary and so it must be cautiously employed
by the court considering the facts of the case. A review of analogous criminal
procedure statutes in other adversarial jurisdictions, whether it is the U.SA., U.K.,
Australia and New Zealand, has proven to the author that the unusual powers
conferred to the judge under section 319 have not been granted in other hostile
jurisdictions.

“A significant matter of law concerning section319 came up before the Supreme

Court in the case of Vikas v. State of Rajasthan, as to the power of the court to
send summons”. When it came to getting someone other than the accused to appear
in court, the question was whether or not a summons simpliciter, bailable warrant,
or non-bailable warrant would be admissible. A non-bailable warrant can only be
issued if a summons simpliciter or bailable warrant fails, according to the court's
rules. In light of these findings, it was determined that the court's discretion to
issue a non-bailable warrant must be handled prudently, and such powers under
Section 319 must be used sparingly and not routinely.An important principle laid
down by the Delhi High Court in the case of Mohan Wahi was reiterated by the
Court of Appeal here, which stated: Section 319 powers are discrete and must be
exercised judicially, taking into accounts the facts and circumstances of each case,
in order to ensure that they are not misused.

THE MEANING OF THE WORD "ANY PERSON”

In the absence of a definition in the section, the Supreme Court in 1998 provided
one in the landmark case of Gajendra Singh v. the State of Rajasthan 9 by holding
that the phrase "any person other than the accused" in this section would cover all
persons who are not already before the court in the case in which an order under
section 319 has been passed.

9
Gajendra Singh v. the State of Rajasthan

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There is a legal obligation to put anyone who appears to have committed a crime
before the courts to determine whether or not they are guilty or innocent.
Following an earlier decision by the Calcutta High Court, which held that "any
person" refers to any individual against whom no process has been issued, the
court interpreted the phrase "any person" to mean any individual against whom no
process has been issued, thus avoiding the question of whether or not to include her
as an additional defendant.

Limitation of section 468 of the code of 1973

Limitations on the courts' ability to prosecute crimes beyond the expiration of the
statute of limitations are addressed in Section 468 of the Code of 1973. A major
concern about this section was whether or not this section extended to Section 319
as well. In Sidheshwar Prasad v. State of Bihar10 and Basudeo Mondal v. Dud
Kumar Pramanick11, this question was answered in the negative. When a person is
being prosecuted under Section 319, the bar of limitations under Section 468 is
inapplicable because of two reasons:

In the first place, the term "unless as otherwise provided elsewhere in the Code"
appears in section 468, and section 319 is one of those exceptions. “First of all,
section 319(4) (b) states that the matter will proceed against this individual as if
this person had been accused when the Court first took charge of the case 12”.
Because even if section 468 were made applicable, in preliminary proceedings,
rather than when a person is introduced as an accused under section 319,
cognizance of the offence would still be essential in order to determine the time
limit. It is therefore irrelevant to discuss Section 468 with this individual.

10
Sidheshwar Prasad v. State of Bihar
11
Basudeo Mondal v. Dud Kumar Pramanick
12
S 319(4)(b) CrPC

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Suo Motu Powers of the Court
Who can make an application under section 319, and whether the Court has suo
motu powers to proceed against someone who appears to be guilty of an offence,
are crucial legal questions that section 319 leaves unaddressed.

Since the clause was overhauled in 1973, the courts have unanimously agreed on
whether or not they have suo motu powers under Section 319. The Supreme Court
held in “Michael Machado and Anr. v. Central Bureau of Investigation and Anr.13
that the power under section 319 of the Code of 1973 can be exercised by the
Court suo motu or on an application by a person, including the accused already
before it, if the court is satisfied that any person other than the accused has
committed an offence and can be tried alongside him”. The Supreme Court
reaffirmed this stance in the case of Lok Ram v. Nihal Singh14.

13
Michael Machado and Anr. v. Central Bureau of Investigation and Anr.
14
Lok ram v. nihal singh

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 CHAPTER IV HARDEEP SINGH v. STATE OF PUNJAB

A five-judge Supreme Court constitution bench dealt extensively with section 319
of 1973's Code of Civil Procedure in the matter of Hardeep Singh v. Punjab.
Initially, the court asked some questions to properly understand Section 319. There
were five issues to be addressed by the court, and the court grouped the first and
third questions into one, focusing on the point at which the Code of 1973's section
319 powers might be applied and the definition of "evidence" under that section.
Answering this issue meant determining whether or not all evidence gathered and
recorded throughout the investigative phase had been used, or if only that portion
had been used.

The Court reaffirmed its view in the case of Dharam Pal & Ors. v. State of
Haryana & Anr15 where a constitutional bench of the apex court held that after the
commission of an offence, cognizance of the same can be against a person who has
not been charged as an accused, but against whom adequate evidence exists as can
be seen from various papers filed by the police after it has completed the
investigation process. If a person looks to be guilty, a judge can summon him or
her under section 193 of Code of 1973 without waiting for "proof" under section
319 to become available, as long as the judge takes cognizance under this section.16
Under Section 193 of 1973 Code, this case established the Session Court's powers.

Section 319 of the Code of 1973 uses the phrases "Trial" and "Inquiry" in
particular, which should be recognised. The power under Section 319 could not be
employed until the case before the Court had reached the stage of investigation or
trial, it was held. The Court concluded that the legislature could not have objected
to the lack of evidence in the inquiry stage since the evidence stage had not yet
occurred. If a person is suspected of committing an offence but is not prosecuted
because of a clerical error or deliberate omission by the prosecution, the court can
at this time use its judgement to determine if the prosecution has intentionally or
inadvertently deleted them from the case. So that both police and prosecution have
an equal opportunity to conduct their investigations fairly, the court might use its
suo motu powers under Section 319 to do so. To ensure that the power under

15
Dharam Pal & Ors. v. State of Haryana
16
S 193 CrPC

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section 319 can be exercised even at specific inquiry levels, the court believed that
the use of two separate words, "inquiry" and "trial," was the correct choice.

According to Section 319 of Code of 1973 Section 319 was interpreted to include
Section 200, Section 201, and Section 202, which were interpreted to include
Sections 319 and 319A, which were interpreted to include Sections 319 and 319B,
which were interpreted to include Sections 319 and 319A. The court, then, plainly
stated that the word "evidence" should be construed more expansively, rather than
limiting it to material only obtained during the trial.

As a second step, the Court examined whether or not the term "evidence" could
solely refer to material gathered during cross-examination, or if it might also
include statements made during "Examination in-chief" by witnesses. According to
Section 319 of the Code of 1973, a person against whom material is disclosed is
only summoned to face the trial, and in such a situation, as per Section 319(4) of
the 1973 Code, the proceeding against such an individual must begin from the
cognizance stage and thus the Court is not required to wait for the evidence against
the new accused to be tested through cross-examination. Section 319 of the 1973
Code allows the court to exercise its powers if the examination in chief has been
concluded.

For the power to be exercised under Section 319, a critical question had to be
answered. A person who was later joined to the original accused must be handled
as though cognizance had been taken against him or her “under Section 319(4)(b)
of the 1973 Code, but this section's standard for proceeding against a person differs
from the standard necessary at the stage of framing accusations. Because the trial
of the first suspect may have already begun, new evidence may have come to light
that could lead to the prosecution of a second suspect, who could also be charged
with the crime17” When formulating accusations, the level of satisfaction had to be
greater than that which would be required to convict a person, but less than that
required to convict someone.

To wrap up, the Court considered whether it had the authority under Section 319 to
hear cases involving individuals who were not listed in the complaint or who,
although being named, were not charged. According to the court's decision, the

17
S 319(4) Crpc

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term "any person" is defined explicitly in the Act, and there is no explanation why
the above-mentioned persons might not be subjected to the Act's requirements.

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 CONCLUSION

Section 319 of the 1973 Code gives the courts considerable authority to deal with
civil and criminal cases. Addition of this provision is designed to ensure the highest
level of public confidence in our courts while allowing our courts to carry out an
important oversight role over the conduct of law enforcement and prosecutors. In
other adversarial jurisdictions, such a clause is uncommon, thus in 1973, a
provision like this was enacted specifically to ensure that all methods of justice are
used and that no one who commits an offence is ever left without retribution under
the criminal judicial system.

Code of 1973 Section 319 specifies quickly the procedure for taking action against
those who appear to be guilty based on the evidence before the court. Many
questions remained unanswered, making it hard to ascertain the true legislative
intent without this information. As a result, it's important to observe how the courts
have interpreted their authority. After the section was modified in 1973, the
Supreme Court posed a number of key questions about the scope and breadth of
the section. Powers granted to the Courts under this section are uncommon and
must be used with caution, according to a wide range of precedent.

This section's interpretation has been clarified by the case of Hardeep Singh. As a
result of this decision, the Court's view of the law has received universal
recognition and rise. For a new individual to be charged with a crime within an
existing case, the Court must have extraordinarily strong evidence that goes
beyond the simple chance of her participation or involvement in the act to generate
a presumption of guilt.

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 BIBLIOGRAPHY

Books

1. Code of Criminal Procedure, 1973, The Universal Bare Act.

2. K.N.C Pillai, R.V. Kelkar’s Criminal Procedure Code, Eastern Book Co.
(6th ed. 2014)

3. S.C. Sarkar, Code of Criminal Procedure- An Encyclopedic Commentary on

the Code of criminal procedure 1973, Lexis Nexis (Vol. 2, 12th Ed. 2017)

4. Ratanlal and Dhirajlal, The code of Criminal Procedure, Lexis Nexis, (22nd
ed. 2017)

Articles

1. Nick Robinson, Expanding Judiciaries: India and the Rise of the Good
Governance Court, 8 Wash. U. Global Stud. L. Rev. 1 (2009),
http://openscholarship.wustl.edu/law_globalstudies/vol8/iss1/2.

2. Understanding The Complexity Of Section 319 Of CrPC

https://www.livelaw.in/know-the-law/understanding-the-complexity-of-
section-319-of-crpc-159856

3. Supreme Court allows appeal against summons issued to invoke the power
under Section 319 CrPC

https://www.indialegallive.com/constitutional-law-news/supreme-court-
news/section-319-crpc-supreme-court

Cases

1. “Basudeo Mondal v. Dud Kumar Pramanick”

2. “Dharam Pal & Ors. v. State of Haryana & Anr”

3. “Gajendra Singh v. the State of Rajasthan, (1998)”

4. “Hardeep Singh v. the State of Punjab”

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5. “Lok Ram v. Nihal Singh, 2006”

6. “Michael Machado v. CBI”

7. “Mohan Wahi v. State, 1982”

8. “Sidheshwar Prasad v. State of Bihar, 1979”

9. “Vikas v. State of Rajasthan”

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