Whether an accused additionally summoned u/s 319 of the CrPC, is entitled to a hearing on point of discharge, or not?

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The short but important question that this post seeks to answer is : 

“Whether an accused additionally summoned u/s 319 of the CrPC, is entitled to a hearing on point of discharge, or not?”

The answer to the question has to be in the negative, for the following reasons :-

  1. A person additionally summoned in exercise of S.319 of the CrPC is not entitled to avail the remedy of discharge as that would be contrary to the scheme and intent of the CrPC. There is a material difference between a person originally tried and one subsequently called-on to face trial. Provisions of Section 227 and 228 are not applicable to a person summoned by way of Section 319 of the CrPC, for the simple reason that the burden of proof employed for summoning a person u/s 319 of the CrPC is higher than the standard of proof employed for framing a charge against the accused. It is now settled by virtue of the Constitution Bench decision in Hardeep Singh v. State of Punjab and Others [(2014) 3 SCC 92] that the standard of proof employed for summoning a person as an accused under Section 319 of the Cr.P.C., is higher than the standard of proof employed for framing a charge against an accused. The Court in Hardeep (supra) observed for the purpose of Section 319 of the Cr.P.C., that “what is, therefore, necessary for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to the conviction of a person sought to be added as the accused in the case.” This is a yardstick higher than that required for framing of charge, which is a scrutiny for the limited purpose of finding out whether ‘prima facie case is made out against the accused, or not. 

    Thus, it does not stand to reason that a person who is summoned as an accused to stand trial and added as such to the proceedings on the basis of a stricter standard of proof can be allowed to be discharged from the proceedings on the basis of a lesser standard of proof such as a prima facie connection with the offence necessary for charging the accused. The exercise of the power under Section 319 of the Cr.P.C., must be placed on a higher pedestal.

  2. What further fortifies this conclusion is that at the time of deciding the question of discharge as per Section 227 of the CrPC, the court has to confine itself to ‘record of the case and documents submitted therewith”, whereas, while examining question of ‘additional prosecution’ u/s 319, the court has to go by ‘evidence’. It is, therefore, logical that that an order for addition of an accused made after considering the ‘evidence’ cannot be undone by coming to the conclusion that there is no sufficient ground for proceeding against the accused ‘without appreciation of evidence’.
  3. This decision does not mete out undue hardship to the accused as his other remedies (Revision or a petition u/s 482 of the CrPC) against S.319 order remains intact.

For more on this, students may refer to : Jogendra Yadav v. State of Bihar, 2015, SCC Online SC 674.

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