Courts should not invoke Section 319, CrPC mechanically to proceed against those not named Accused by Police, SC

The Supreme Court of India recently reiterated that a court’s power under Section 319 of the Code of Criminal Procedure (CrPC), 1973, to arraign accused beyond those named by the police, should not be mechanically exercised in the absence of cogent reasons for the same..Section 319 of the CrPC confers courts the power to proceed against any person who appears to have committed an offence, even if they have not been named as an accused by the police..However, this power cannot be readily exercised without strong reasons calling for the same, as also emphasised in the Constitution Bench judgment of the Supreme Court in Hardeep Singh v State of Punjab and Others..The Bench of Justices AK Sikri, Ashok Bhushan and Ajay Rastogi made note of this aspect when it observed,.“The Constitution Bench [in Hardeep Singh’s case] has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. .The crucial test, which has been laid down as noted above is ‘the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.‘”.In the instant case, the Bench did not find any such justification for invoking its discretionary powers under Section 319. The case at hand involved charges of kidnapping and sexual assault of a 14-year-old girl. Charges were framed under Sections 363 and 366 of the Indian Penal Code (concerning kidnapping, abduction etc,) and Sections 3 and 4 of the Protection for Children from Sexual Offences (POCSO) Act, 2012..While the case against the main accused was proceeding before the trial court, the additional public prosecutor filed an application under Section 319, CrPC praying that the Court also proceed against three friends of the accused..The application was based on the testimony of the victim in Court that the three had been present in the same vehicle as the accused and her during the period of the kidnapping. The names of these three additional persons did not figure in the initial information furnished by the victim to the police, nor were they added as accused in the final report filed by the police..The trial court rejected the prosecutor’s application as having been made with mala fide intentions. However, the Gujarat High Court overturned the trial court’s decision and arraigned all three persons as accused after a revision petition was filed..However, on appeal before the Supreme Court, it was found that the High Court had erred in arraigning them as accused, without offering any explanation as to how a case could be made out against them. On an evaluation of the material on record, the Supreme Court noted that no case could be made out against the three persons under POCSO..“In the present case, there are not even suggestion of any act done by appellants amounting to an offence referred to in Sections 3 and 4 of the POCSO Act. Thus, there was no occasion to proceed against the appellants under POCSO Act…“.The Supreme Court noted that the High Court, in its four-paragraph order, does not divulge how it was satisfied that there were sufficient factors pointing towards even a prima facie case against the appellants..In this backdrop, the Supreme Court proceeded to emphasise that Section 319, CrPC cannot be simply invoked, merely on shallow statements made in Court. As stated in the judgment,.“The mere fact that Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C. .The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e.,’more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.’“.Therefore, it set aside the High Court’s order as unsustainable and allowed the appeal..Advocate DN Ray along with advocates Lokesh K Choudhary, Dillip Kumar Nayak, Disha Ray and Sumita Ray appeared for the appellants..Advocates Jesal Wahi, Hemantika Wahi, Vishakha and Puja Singh represented the respondents..Read the Judgment below.