SC: Person can be summoned u/s 319 CrPC even after being discharged

On 1st May 2019, The Hon’ble Supreme Court, in the matter of Rajesh & Ors. v. State of Haryana, the Hon’ble Supreme Court observed that the persons against whom no charge­sheet is filed can be summoned to face the trial even when 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 charge­sheet has gone.

The Hon’ble Supreme Court observed that:

Before accepting the closure report, the Magistrate is bound to issue notice to the complainant/original informant and the complainant/original informant is required to be given an opportunity to submit the protest application and, thereafter, after giving an opportunity to the complainant/original informant, the Magistrate may either accept the closure report or may not accept the closure report and direct to proceed further against those persons for whom the closure report was submitted. (Para 6.1)

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. (Para 7.8)

A person not named in the FIR or a person though named in the FIR but has not been charge­sheeted or a person who has been discharged can be 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. (Para 7.8)

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 charge­sheet has gone, in that case also, 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 charge­sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused. (Para 7.10)

The persons against whom no charge­sheet is filed can be summoned to face the trial. (Para 8)

Applications to discharge/release from judicial custody cannot be said to be the orders of discharge in stricto sensu. (This inference has been drawn on the basis of Para 9)

Copy of judgement: Judgement_01-May-2019

-Tushar Kaushik

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