Case Note & Summary
The litigation arose out of a private complaint pending before a Magistrate as CC No.181/SW/09, in which respondent no.1, the complainant, moved an application under Section 319 of the Code of Criminal Procedure, 1973 to implead the petitioners as accused. The Magistrate passed a brief order in the following terms: 'Issue notice to proposed accused named in the application.' This order was challenged by the petitioners by way of a writ petition under Article 227 of the Constitution of India before the High Court of Judicature at Bombay. The petitioners, through their senior counsel, advanced two principal submissions. First, Section 319 CrPC does not contemplate issuance of notice to a proposed accused; the provision contemplates proceeding against such person by arrest or summons only after satisfaction from evidence that he appears to have committed an offence. Second, failure to pass a reasoned or speaking order while adding a person who is not an accused as an accused under Section 319 is illegal and cannot be sustained. The respondent complainant countered that Section 319(1) does not mandate a 'speaking order,' and therefore the impugned order could not be vitiated for want of reasons. The High Court examined the text of Section 319 CrPC and observed that while the provision does not expressly mandate a speaking order, the powers conferred are exceptional and must be exercised only for compelling reasons. It held that recording elaborate reasons is necessary because, when matters are carried to higher courts, reasons facilitate understanding of what weighed with the judge. The court further held that issuance of notice to a proposed accused is not a step contemplated by Section 319; the plain reading reveals that the power is triggered only if it appears from the evidence that a person not being the accused has committed an offence for which he could be tried together with the accused. Relying on Manjeet Singh v. State of Haryana and Ors., the court reiterated that the word 'evidence' under Section 319(1) could be used to summon an accomplice only on the basis of material available after cognizance after recording reasons. Accordingly, the High Court quashed and set aside the impugned order and directed the learned Magistrate to pass an appropriate reasoned order in exercise of powers under Section 319 CrPC on the complainant's application. The petition was allowed and rule discharged.
Headnote
A) Criminal Procedure - Power to Proceed Against Other Persons Appearing Guilty - Section 319(1) of the Code of Criminal Procedure, 1973 - Reasoned Order Requirement - The High Court considered whether an order under Section 319 CrPC must be a speaking order. It held that although the provision does not expressly mandate a speaking order, the extraordinary power must be exercised only for compelling reasons, and the court must record elaborate reasons to enable appellate scrutiny. Held: the impugned order issuing mere notice without reasons was quashed and set aside, and the Magistrate was directed to pass a reasoned order under Section 319 (Paras 9-11). B) Criminal Procedure - Impleadment of Additional Accused - Sections 319(1) and (2) of the Code of Criminal Procedure, 1973 - Notice to Proposed Accused Not Contemplated - The Magistrate had directed issuance of notice to the proposed accused on an application under Section 319 CrPC. The High Court held that Section 319 CrPC does not contemplate issuance of notice to a proposed accused; the power to proceed arises only when the evidence discloses complicity of such person. Held: the order was illegal and unsustainable, and the Magistrate was directed to apply his mind and pass a reasoned order on the application (Paras 7-11).
Issue of Consideration
Whether an order under Section 319 of the Code of Criminal Procedure, 1973 issuing notice to a proposed accused without recording reasons is sustainable and whether such notice is contemplated by Section 319.
Final Decision
The impugned order issuing notice to proposed accused under Section 319 CrPC was quashed and set aside. The learned Magistrate was directed to pass an appropriate reasoned order in exercise of powers under Section 319 CrPC on the application moved by the complainant. Petition was allowed and rule discharged.
Law Points
- Power under Section 319 CrPC must be based on evidence of complicity
- speaking or reasoned order required even though not expressly mandated
- issuance of notice to proposed accused not contemplated
- power to proceed against other persons must be exercised only for compelling reasons
- reliance on Manjeet Singh case
