Case Note & Summary
The applicant, Anand Shivaji Ghodale, was named in an FIR but not arraigned as an accused in the charge sheet. The investigating officer, after collecting CCTV footage and a C.A. report, was satisfied that the applicant was at his workplace during the alleged incident and did not file a supplementary charge sheet under Section 173(8) CrPC. Subsequently, the victim deposed against the applicant, prompting the Special Public Prosecutor to move an application under Section 319 CrPC to summon the applicant. The trial court allowed the application, observing that the alibi defence would be considered at a later stage. The applicant challenged this order in revision. The High Court held that the power under Section 319 CrPC requires stronger evidence than a prima facie case. Since the investigating officer had already found the applicant's alibi credible and did not seek to file a supplementary charge sheet, there was no justification for summoning the applicant. The impugned order was quashed and set aside.
Headnote
A) Criminal Procedure Code - Section 319 - Summoning of Additional Accused - Prima Facie Case - The court held that the power under Section 319 CrPC can be exercised only if there is stronger evidence than mere prima facie case against the proposed accused. The trial court erred in summoning the applicant despite the investigating officer's satisfaction that the applicant was not present at the scene based on CCTV footage and C.A. report. (Paras 5-7)
B) Criminal Procedure Code - Section 173(8) - Supplementary Charge Sheet - Investigating Officer's Discretion - The investigating officer, after receiving the C.A. report, did not seek to file a supplementary charge sheet, indicating no adverse material against the applicant. The trial court could not override this by summoning under Section 319 CrPC. (Paras 5-6)
C) Evidence - Alibi - Consideration at Summoning Stage - The trial court's observation that the alibi defence would be considered at a later stage was held to be erroneous. The court must consider all material on record, including evidence supporting alibi, while deciding an application under Section 319 CrPC. (Paras 6-7)
Issue of Consideration
Whether the trial court was justified in summoning the applicant under Section 319 CrPC when the investigating officer had already found the applicant's alibi credible and did not file a supplementary charge sheet under Section 173(8) CrPC.
Final Decision
The impugned order dated 14.09.2022 passed by the Extra Joint Additional Sessions Judge, Osmanabad in Special Case No.26 of 2021 below Exhibit-99 is quashed and set aside. The Criminal Revision Application is allowed.
Law Points
- Section 319 CrPC
- Section 173(8) CrPC
- Power to summon additional accused
- Prima facie case
- Alibi defence at summoning stage
Case Details
2023 LawText (BOM) (01) 58
Criminal Revision Application No. 296 of 2022
V.B. Deshmukh for Applicant, S.P. Sonpawale for Respondent/State, Nisargraj Garje for Respondent No.2
Anand s/o Shivaji Ghodale
The State of Maharashtra and XYZ
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Nature of Litigation
Criminal revision against order summoning applicant under Section 319 CrPC
Remedy Sought
Quashing of the order dated 14.09.2022 passed by the Extra Joint Additional Sessions Judge, Osmanabad in Special Case No.26 of 2021 below Exhibit-99
Filing Reason
The applicant was named in FIR but not charge-sheeted; trial court summoned him under Section 319 CrPC despite investigating officer's satisfaction of his alibi
Previous Decisions
The trial court allowed the application under Section 319 CrPC and summoned the applicant
Issues
Whether the trial court was justified in summoning the applicant under Section 319 CrPC when the investigating officer had already found the applicant's alibi credible and did not file a supplementary charge sheet under Section 173(8) CrPC.
Submissions/Arguments
The applicant argued that the investigating officer was satisfied with his alibi based on CCTV footage and C.A. report, and did not file a supplementary charge sheet, so there was no prima facie case against him.
The State argued that the victim's deposition against the applicant constituted sufficient evidence to summon him under Section 319 CrPC.
Ratio Decidendi
The power under Section 319 CrPC to summon additional accused requires stronger evidence than a prima facie case. When the investigating officer, after investigation, has accepted the alibi of the proposed accused and has not filed a supplementary charge sheet under Section 173(8) CrPC, the trial court cannot summon the accused under Section 319 CrPC based solely on the victim's deposition.
Judgment Excerpts
It is not a matter in dispute that, prima facie, the investigation officer was satisfied from the electronic evidence that the applicant was not present on the spot at the time of the alleged incident.
The learned Extra Joint Additional Sessions Judge, Osmanabad recorded the findings in paragraph no.9 of the impugned order that '...that would come in consideration at later stage.'
The court held that the trial court erred in summoning the applicant under Section 319 CrPC.
Procedural History
The applicant was named in FIR but not charge-sheeted. The investigating officer filed charge sheet against other accused with a footnote reserving right to file supplementary charge sheet. After receiving C.A. report, no supplementary charge sheet was filed. The victim deposed against applicant. Special Public Prosecutor moved application under Section 319 CrPC. Trial court allowed it on 14.09.2022. Applicant filed Criminal Revision Application No. 296 of 2022 in High Court.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 319, 173(8)
