Case Note & Summary
The applicant, a senior IPS officer and accused No. 2 in the Sohrabuddin fake encounter case, filed a criminal revision challenging the Sessions Court's order dated 28.7.2015 dismissing his application to drop PW 105 Nathuba Jadeja and PW 106 Gurudayalsingh Chaudhary as prosecution witnesses and to array them as accused. The case pertains to the alleged fake encounter killing of Sohrabuddin on 26.11.2005 and subsequent killing of his wife Kausarbi. The applicant argued that the two witnesses were involved in the conspiracy and should be tried as accused. The Bombay High Court held that the power under Section 319 CrPC to summon additional accused is discretionary and can be exercised only if evidence during trial gives rise to a reasonable suspicion of their involvement. The court noted that the trial was ongoing and no such evidence had been recorded against the witnesses. The applicant, being an accused, had no locus standi to seek such a direction. The revision was dismissed, and the Sessions Court's order was upheld.
Headnote
A) Criminal Procedure Code - Section 319 CrPC - Power to Summon Additional Accused - The court can summon a person as an accused only if evidence during trial gives rise to a reasonable suspicion that such person has committed an offence. The applicant, an accused, cannot seek to convert prosecution witnesses into accused; the power under Section 319 is discretionary and can be exercised only on satisfaction of the court based on evidence. (Paras 5-10) B) Criminal Procedure Code - Section 319 CrPC - Stage of Exercise - The power under Section 319 can be exercised at any stage after cognizance and before conclusion of trial, but only if evidence recorded during trial discloses sufficient grounds to proceed against a person not yet accused. The applicant's application was premature as the trial was ongoing and no such evidence had been recorded. (Paras 5-10) C) Criminal Procedure Code - Section 319 CrPC - Locus Standi - An accused has no right to insist that a particular person be arraigned as an accused. The court may act suo motu or on an application, but the applicant cannot compel the court to exercise its discretion in a particular manner. (Paras 5-10)
Issue of Consideration
Whether the Sessions Court could be directed to drop prosecution witnesses and array them as accused under Section 319 CrPC at the stage of trial, and whether the applicant had a right to seek such a direction.
Final Decision
The revision application is dismissed. The impugned order dated 28.7.2015 passed by the Sessions Court is upheld.
Law Points
- Section 319 CrPC
- power to arraign accused
- standard of evidence for summoning additional accused
- distinction between investigation and trial
- right of accused to seek prosecution of others
