The Supreme Court has said that courts can exercise their power to proceed against persons not accused but appearing to have committed an offence only when there is "strong and cogent evidence" against such individuals and not in a "casual and cavalier manner".
Under Section 319 of Code of Criminal Procedure (CrPC), when during the course of inquiry or trial of offence, it appears from the evidence that any person, who has not been made an accused, has committed any offence; the court can proceed against such individual for the offence which he appears to have committed.
A bench of Justices K M Joseph and P S Narasimha while dealing with a criminal case said, "This is yet another case where summons issued purporting to invoke power under Section 319 of the CrPC has brought the newly summoned person to this court."
It said that the test as laid down by the Constitution bench of this court for invoking power under Section 319 CrPC inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence, the power under Section 319 CrPC should be exercised.
"The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by this court, is one which is more than prima facie case which is applied at the time of framing of charges," the bench said in its September 13 order.
The top court referred to the 2014 Constitution bench verdict in Hardeep Singh versus State of Punjab and others which dealt with the issue of applicability of Section 319 of CrPC and said it will all depend upon the evidence which is tendered in a given case as to whether there is a strong ground to proceed against an individual, who has not been made accused.
The top court made the remarks in the order on a plea filed by Ramesh Chandra Srivastava, whose driver's body was found in 2015.
The wife of the driver alleged and made a deposition in the court that Mr Srivastava, who has not been arraigned as an accused by the prosecution, murdered her husband with the help of his friends.
The trial court based on the deposition of the wife of the driver summoned the employer as an accused.
Mr Srivastava then challenged the order of the trial court before the high court unsuccessfully and approached the top court.
The top court said, "We are of the view that from the facts of this case, it becomes necessary for us to direct the sessions judge, Khiri, to consider the matter afresh in the light of the principles which have been clearly enunciated by this court."
It allowed the appeal of Mr Srivastava and set aside the judgment of the Allahabad High Court and the order of trial court summoning him as an accused.
"The sessions judge, Khiri, will apply his mind in the light of the principles which have been laid down by the Constitution bench. The sessions judge, Khiri, will call this case on September 30, 2021. The parties will be present on the said day. Thereafter the court will pass appropriate orders bearing in mind the principles which have been laid down by this court in the Hardeep Singh case (2014 verdict)," the bench said.
According to the prosecution, an FIR was lodged on June 27, 2015 by the wife of the driver, alleging that her husband told her that he is leaving for work to meet Mr Srivastava.
In the FIR, it is also stated that at 2 pm on the same day, her husband called and said that he is going to Gola town of Lakhimpur Kheri district in Uttar Pradesh and shall return by evening.
She claimed that her husband's phone was then switched off and an unidentified body was found. She further alleged that the murder of her husband was committed by his employer with the help of his friends.
In her deposition before the court on August 5, 2017, she said that on June 23, 2015, her husband left home around 7-8 in the morning telling her that his car owner had called him immediately.
She also deposed that when she called Mr Srivastava, he told her that the car was found near the government tubewell nearby Lagucha area and that slippers of her husband were lying in that car.
On the day of her deposition, an application was filed on behalf of the prosecution invoking Section 319 CrPC and the sessions judge, Kheri, in the order of September 11, 2018, took the view that the power under Section 319 CrPC has to be invoked and ordered to summon Mr Srivastava.
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