Section 319 CrPC: Persons named in FIR, but not chargesheeted can be summoned even if stage of protest petition is over
Rajesh and Ors Vs State of Haryana
CRIMINAL APPEAL NO. 813 OF 2019
About/from the judgment:
The Supreme Court has observed that a trial court can summon under Section 319 of the Criminal Procedure Code, those persons named in FIR, but who were not charge-sheeted, even if the stage of giving opportunity to the complainant to file a protest petition is over.
Rajesh and others were named in the FIR relating to a murder case. However, charge sheet was filed against four other persons named in the FIR and the trial proceeded against them. During witness examination, the prosecution witness named Rajesh and others. Thereafter, the prosecution filed an application under section 319 CrPC to summon them as additional-accused, which came to be allowed by the Trial Court. The High Court affirmed the order summoning the accused.
In the appeal filed by the accused, the bench comprising of Justice L. Nageswara Rao and Justice MR Shah, referring to constitution bench judgment in Hardeep Singh, observed that (i) the Court can exercise the power under Section 319 of the CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till the cross-examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be 29 summoned under Section 319 of the CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.
The Court noted that nothing is on record whether at any point of time the complainant was given an opportunity to submit the protest application against non-filing of the charge¬sheet against the appellants. Affirming the summoning order, the bench said:
"Thus, even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial Court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, , the Court is still not powerless by virtue of Section 319 of the CrPC and even those persons named in the FIR but not implicated in the charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused."
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