Hardeep Singh vs the State of Punjab & Ors.

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White Journal

Anshu Prasad

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Introduction:

Section 319 of the code of criminal procedure, 1973 deals with the power of a magistrate to proceed
against other persons appearing to be guilty of an offence and provides that:-

1. Where, over the span of any investigation into, or preliminary of, an offence, it shows up from the
proof that any individual not being the denounced has submitted any offence for which such
individual could be attempted along with the charged, the Court may continue against such individual
for the offence which he seems to have submitted.

2. Where such an individual isn’t going to the Court, he might be captured or gathered, as the
conditions of the case, may require, for the reason aforementioned.

3. Any individual going to the Court, despite the fact that not arrested or upon a summons, might be
kept by such Court with the purpose of the investigation into, or preliminary of, the offence which he
seems to have submitted.

4. Where the Court continues against any individual under sub-area (1), then a) the procedures in
regard of such individual will be initiated once more, and the observers re-heard; b) Subject to the
arrangements of provision (a), the case may continue as though such individual had been a
denounced individual when the Court took discernment of the offence whereupon the request or trial
was started.

Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted) Section 319 Cr.P.C. permits the court to continue against any
individual who isn’t an accused of a case before it. Along these lines, the individual against whom the
summons is given in exercise of such powers needs to fundamentally not be a denounced previously
confronting preliminary trial. He can either be an individual named in Column 2 of the charge sheet
filed under Section 173 Cr.P.C. or on the other hand an individual whose name has been uncovered in
any material under the watchful eye of the court that will be considered to attempt the offence,
however not investigated upon. He must be an individual whose complicity might be shown and
associated with the commission of the offence. In Raghubans Dubey v. the State of Bihar,[1] The
Hon’ble Supreme Court held that once comprehension has been taken by the officer, he takes the
insight of an offence and not the guilty parties; at the point when he takes the perception of an offence
it is his commitment to finding who the miscreants genuinely are and once he comes to the end result
that separated from the individuals sent up by the police some different people are included, it is his
obligation to continue against those people. The bringing of the additional accused is part of the
procedure started by his taking cognizance of an offence.

Facts

1. This reference under the watchful eye of the court for this case has emerged out of an assortment of
perspectives having been expressed by this Court and a few High Courts of the nation on the degree
and extent of the forces of the courts under the criminal justice system to charge any individual as an
accused during the course for request or trial as mulled over under Section 319 of the Code of
Criminal Procedure, 1973 (hereinafter alluded to as the ‘Cr.P.C.).

2. The fundamental reference was made by a two-Judge Bench vide order dated 7.11.2008 on account
of Hardeep Singh (Crl.Appeal No 1750 of 2008) was seeing the contention between the decisions on
account of Rakesh v. Province of Haryana,[2]; and a two-Judge Bench choice on account of Mohd.
Shafi v. Mohd. Rafiq and Anr.,[3], uncertainty was communicated about the rightness of the view on
account of Mohd. Shafi (Supra). The questions as arranged in sections 75 and 78 of the reference
request prompted the confining of two inquiries by the said Bench which are replicated hereunder:

1. When the power under sub-section (1) of Section 319 of the Code of the addition of the accused can
be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-
examination of the witness is complete?

2. What is the test and what are the guidelines of exercising power under sub-section (1) of Section
319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused
summoned in all likelihood would be convicted?

3. The reference was wanted to be settled by a three-Judge Bench whereafter the equivalent came up
for thought and vide request dated 8.12.2011, the Court believed that taking into account the reference
put forth in the defence of Dharam Pal and Ors. v. state of Haryana and Anr.,[4] the issues included
being undefined in nature, the proportional should be settled by a Constitution Bench containing at
any rate five Judges. The Bench felt that since a three-Judge Bench has just alluded the matter of
Dharam Pal (Supra) to a Constitution Bench, at that point in that occasion it would be proper that
such covering issues ought to likewise be settled by a Bench of similar strength.

4. Reference put forth in the defence of Dharam Pal (Supra) came to be replied according to the
intensity of a Court of Sessions to summon Section 319 Cr.P.C. at the phase of committal of the case to
a Court of Sessions. The said reference was replied by the Constitution Bench on account of Dharam
Pal and Ors. v. State of Haryana and Anr., [5] [hereinafter referred as Dharam Pal (CB)], wherein it
was held that a Sessions court can with the guide of Section 193 Cr.P.C. continue to exhibit some other
individual and bring him for being attempted regardless of whether the arrangements of Section 319
Cr.P.C. couldn’t be squeezed in administration at the phase of committal.

Consequently, after the reference was made by a three-Judge Bench in the current case, the power far
as the Court of Sessions is concerned, to conjure Section 319 Cr.P.C. at the phase of committal, stood
addressed at long last in the aforementioned foundation.

Issues

On the consideration of the submissions raised and in view of what has been noted above, the
following questions are to be answered by this Bench:

What is the phase at which power under Section 319 Cr.P.C. would it be able to be worked out?

Whether “proof” utilized in Section 319(1) Cr.P.C. must be proof tried by interrogation or the court
can practice the force under the said arrangement even based on the announcement made in the
assessment in-head of the observer concerned?

Whether “proof” utilized in Section 319(1) Cr.P.C. has been utilized from a thorough perspective and
incorporates the proof gathered during examination or “proof” is restricted to the proof recorded
during preliminary?

What is the idea of the fulfilment needed to conjure the force under Section 319 Cr.P.C. to charge a
guilty? Regardless of whether the force under Section 319(1) Cr.P.C. could be practiced just if the
court is fulfilled that the charge brought will more then likely be indicted?

Does the force under Section 319 Cr.P.C. stretch out to people not named in the FIR or named in the
FIR yet not charged or who have been released?

Holding

The Constitutional order under Articles 20 and 21 of the Constitution of India, 1950 (hereinafter
alluded to as the ‘Constitution’) gives a defensive umbrella to the smooth organization of equity
making sufficient arrangements to guarantee a reasonable and strong preliminary so the denounced
doesn’t get biased after the law has been kicked off to attempt him for the offence and yet likewise
gives equivalent security to casualties and to the general public everywhere to guarantee that the
blameworthy doesn’t move away from the grip of law. For the strengthening of the courts to guarantee
that the criminal organization of equity works appropriately, the law was suitably arranged and
adjusted by the assembly under the Cr.P.C. demonstrating regarding how the courts ought to continue
so as to eventually discover the reality so a blameless doesn’t get rebuffed and yet, the liable are
brought to book under the law.

It is these beliefs as revered under the Constitution and our laws that have prompted a few choices,
whereby inventive techniques and dynamic instruments have been manufactured to discover the
genuine truth and to guarantee that the liable doesn’t go unpunished. The assumption of guiltlessness
is the overall tradition that must be adhered to as each man is attempted to be honest except if
demonstrated to be liable.

Certain legal assumptions comparable to specific classes of offences have been raised against the
accused whereby the assumption for blame wins till the charged releases his weight upon an onus
being given occasion to feel qualms about him under the law to demonstrate himself to be guiltless.
These contending hypotheses have been remembered by the governing body. The whole exertion,
thus, isn’t to permit the genuine culprit of an offence to move away unpunished. This is additionally a
piece of reasonable preliminary and as we would like to think, so as to accomplish this end the
assembly thought of fusing arrangements of Section 319 Cr.P.C.

It is in view of the said object that a productive and purposive understanding ought to be embraced
that progresses the reason for equity and doesn’t weaken the aim of the resolution giving forces on the
court to complete the previously mentioned affirmed article and reason to attempt the individual as
per the general inclination of the court as an associate in the commission of the offence that is topic of
preliminary.

Segment 319 Cr.P.C. springs out of the tenet judex damnatur cum nocens absolvitur (Judge is
censured when liable is vindicated) and this convention must be utilized as a signal light while
clarifying the ambit and the soul fundamental of the institution of Section 319 Cr.P.C. It is the
obligation of the Court to do equity by rebuffing the genuine guilty party. Where the examining office
in any way, shape, or form doesn’t exhibit one of the genuine guilty parties as a defendant, the court
isn’t weak in calling the said charged to confront preliminary. The inquiry stays under what
conditions and at what stage should the court practice its capacity as mulled over in Section 319
Cr.P.C.?

The entries that were raised before us secured an exceptionally wide canvas and the educated
guidance have taken us through different arrangements of Cr.P.C. Furthermore, the decisions that
have been depended on for the said reason. The discussion revolves around the phase at which such
powers can be summoned by the court and the material on the premise whereof such powers can be
worked out. It is important to put on record that the force gave under Section 319 Cr.P.C. is just on
the court.

Reason

The essential worry is the phase at which such powers can be conjured and furthermore, the material
on the premise whereof the summoning of such powers can be defended. To add as an end product of
the equivalent, thirdly, the way where such force must be worked out additionally must be thought of.

Dicta

The court is the sole store of equity and an obligation is given occasion to feel qualms about it to
maintain the standard of law and, subsequently, it will be unseemly to keep the presence from getting
such powers with the courts in our criminal equity framework where it isn’t unprecedented that the
genuine charged, now and again, move away by controlling the exploring or potentially the arraigning
organization. The longing to dodge preliminary is solid to such an extent that a blamed put forth
attempts now and again to get himself exonerated even at the phase of examination or request despite
the fact that he might be associated with the commission of the offence.

Remarks

In Dharam Pal’s case, the Constitution Bench has just held that after committal, perception of an
offence can be taken against an individual not named as a charged yet against whom materials are
accessible from the papers documented by the police after consummation of examination. Such a
perception can be taken under Section 193 Cr.P.C. what’s more, the Sessions Judge need not hold up
till ‘proof’ under Section 319 Cr.P.C. opens up for gathering extra blame. Segment 319 Cr.P.C.,
fundamentally, utilizes two articulations that must be observed for example (1) Inquiry (2) Trial. As a
preliminary start subsequent to encircling of charge, a request must be perceived to be a pre-
preliminary request. Requests under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C.
are types of the request pondered by Section 319 Cr.P.C. Materials preceding the Court in course of
such inquiries can be utilized for verification of the proof recorded in the court after the preliminary
initiates, for the activity of intensity under Section 319 Cr.P.C., and furthermore to include a
denounced whose name has been appeared in Column 2 of the charge sheet. Taking into account the
above position the word ‘proof’ in Section 319 Cr.P.C. must be extensively perceived and not actually
for example as proof brought during a preliminary.

Considering the way that under Section 319 Cr.P.C. an individual against whom material is unveiled is
just brought to confront the preliminary and in such an occasion under Section 319(4) Cr.P.C. The
procedure against such an individual is to initiate from the phase of taking perception, the Court need
not hang tight for the proof against the denounced proposed to be gathered to be tried by
interrogation.

In spite of the fact that under Section 319(4)(b) Cr.P.C. The denounced hence hindered is to be
treated as though he had been blamed when the Court at first took the insight of the offence, the level
of fulfilment that will be required for calling an individual under Section 319 Cr.P.C. would be
equivalent to for confining a charge. The distinction in the level of fulfilment for bringing the first
charge and resulting blame is to represent the way that the preliminary may have just initiated against
the first denounced and it is over the span of such preliminary that materials are uncovered against
the recently brought blame. Crisp bringing of blame will bring about deferral for the preliminary –
consequently, the level of fulfilment for calling the charged (unique and ensuing) must be
extraordinary.

An individual not named in the FIR or an individual however named in the FIR yet has not been
charge-sheeted or an individual who has been released can be gathered under Section 319 Cr.P.C.
given from the proof it creates the impression that such an individual can be attempted alongside the
charged previously confronting preliminary. Notwithstanding, to the extent that a denounced who has
been released is concerned the prerequisite of Sections 300 and 398 Cr.P.C. must be agreed to before
he can be called once again.

References:

[1] 1967 SCR (2) 423

[2] AIR 2001 SC 2521

[3] AIR 2007 SC 1899

[4] (2004) 13 SCC 9

[5] AIR 2013 SC 3018

[6]http://jajharkhand.in/wp/wpcontent/judicial_updates_files/07_Criminal_Law
/39_section_319_of_crpc
/Hardeep_Singh_vs_State_Of_Punjab_&_Ors_on_10_January,_2014.PDF

[7] https://indiankanoon.org/doc/52754564/