Does an accused summoned under section 319 CRPC, have a remedy of discharge?
The answer to this question is negative.
Section 319 CRPC is a special provision which empowers the court to summon a person as an accused, who has not been arrayed as an accused in the chargesheet, neither been investigated or is an accused in column 12 but has not been summoned, to face trial with other accused persons on the basis of evidence adduced during the trial or who prima facie appears to have committed the offence from the material available before the court.
Section 319 CRPC is invoked only when there is some strong and cogent evidence against the accused and not in a casual manner. The reasons for summoning an accused under this provision should be stronger than summoning the accused at the initial stage. Section 319 CRPC is enumerated below for reference.
Section 319 CRPC: – Power to proceed against other persons appearing to be guilty of offence.-
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.”
It was held by Hon’ble Suprem court of India in case titled as Hardeep Singh v. State of Punjab and Others [(2014) 3 SCC 92]
“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.”
A person who has been arrayed as an accused can seek discharge from the court under section 227 CRPC (in case of sessions trial case) if from the bare perusal of the record accused does not seems to have committed the offence or there is no sufficient ground for the proceedings against the accused.
However this provision is not available to the accused that has been summoned u/s 319 CRPC to face trial along with other accused persons despite the fact that an accused who has been summoned u/s 319 CRPC is deemed to have been an accused since inception.
When an accused is summoned under this provision, he is granted an opportunity to be heard before summoning and against the summoning order he has the remedy to challenge the same before the high court.
In case titled as “Jogender Yadav vs State of Bihar” having Criminal Appeal no. 343 OF 2012 dated 15.07.2015 hon’ble Supreme court held
The exercise of the power under Section 319 of the Cr.P.C., must be placed on a higher pedestal. Needless to say the accused summoned under Section 319 of the Cr.P.C., are entitled to invoke remedy under law against an illegal or improper exercise of the power under Section 319, but cannot have the effect of the order undone by seeking a discharge under Section 227 of the Cr.P.C. If allowed to, such an action of discharge would not be in accordance with the purpose of the Cr.P.C in enacting Section 319 which empowers the Court to summon a person for being tried along with the other accused where it appears from the evidence that he has committed an offence.