{"id":254451,"date":"2021-09-20T12:00:16","date_gmt":"2021-09-20T06:30:16","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=254451"},"modified":"2021-09-23T17:12:24","modified_gmt":"2021-09-23T11:42:24","slug":"more-than-a-prima-facie-case-read-supreme-courts-test-for-invoking-the-power-under-section-319-cr-p-c","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/09\/20\/more-than-a-prima-facie-case-read-supreme-courts-test-for-invoking-the-power-under-section-319-cr-p-c\/","title":{"rendered":"More than a prima facie case! Read Supreme Court’s test for invoking power under Section 319 Cr.P.C."},"content":{"rendered":"

Supreme Court<\/strong>: The bench of KM Joseph<\/a>*<\/strong> and PS Narsimha, JJ has reiterated the test laid down for invoking the power under Section 319 CrPC and has held that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319[1]<\/a> CrPC should be exercised. The power cannot be exercised in a casual and cavalier manner.<\/p>\n

<\/a><\/p>\n

The Court took note of the test laid down in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92<\/a><\/strong>, wherein it was held that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. 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<\/em><\/strong>. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.<\/p>\n

It was further explained that in Section 319 Cr.P.C. the purpose of providing if \u2018it appears from the evidence that any person not being the accused has committed any offence\u2019 is clear from the words \u201cfor which such person could be tried together with the accused.\u201d The words used are not \u2018for which such person could be convicted\u2019. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.<\/p>\n

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\u201c105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.\u201d<\/p>\n<\/blockquote>\n

Read more\u2026<\/a><\/p>\n

[Ramesh Chandra Srivastava v. State of UP, 2021 SCC OnLine SC 741<\/b><\/a>, decided on 13.09.2021]<\/p>\n

_________________________________________________<\/p>\n

For appellant:<\/strong> Advocate Gaurav Srivastava,<\/p>\n

For State:<\/strong> Advocate Adarsh Upadhyay,<\/p>\n

For respondent 2:<\/strong> Advocate Sansriti Pathak<\/p>\n

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[1]<\/a> 319.\u00a0Power\u00a0to\u00a0proceed\u00a0against\u00a0other\u00a0persons\u00a0appearing\u00a0to\u00a0be\u00a0guilty\u00a0of\u00a0offence<\/strong>.\u2014(1) Where, in the course\u00a0of\u00a0any inquiry into, or trial\u00a0of, an\u00a0offence, it appears from the evidence that any person not being the accused has committed any\u00a0offence\u00a0for which such person could\u00a0be\u00a0tried together with the accused, the Court may\u00a0proceed\u00a0against\u00a0such person for the\u00a0offence\u00a0which he appears\u00a0to\u00a0have committed.<\/p>\n

(2) Where such person is not attending the Court, he may\u00a0be\u00a0arrested or summoned, as the circumstances\u00a0of\u00a0the case may require, for the purpose aforesaid.<\/p>\n

(3) Any person attending the Court, although not under arrest or upon a summons, may\u00a0be\u00a0detained by such Court for the purpose\u00a0of\u00a0the inquiry into, or trial\u00a0of, the\u00a0offence\u00a0which he appears\u00a0to\u00a0have committed.<\/p>\n

(4) Where the Court proceeds\u00a0against\u00a0any person under sub-section\u00a0(1) then\u2014<\/p>\n

(a<\/em>) the proceedings in respect\u00a0of\u00a0such person shall\u00a0be\u00a0commenced afresh, and the witnesses re-heard;<\/p>\n

(b<\/em>) subject\u00a0to\u00a0the provisions\u00a0of\u00a0clause (a<\/em>), the case may\u00a0proceed\u00a0as if such person had been an accused person when the Court took cognizance\u00a0of\u00a0the\u00a0offence\u00a0upon which the inquiry or trial was commenced.<\/p>\n

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*Judgment by: Justice KM Joseph<\/strong><\/p>\n

Know Thy Judge| Justice K.M. Joseph<\/a><\/p><\/blockquote>\n