Case Note & Summary
The applicants, seven individuals, were originally named in a First Information Report but were discharged under Section 169 of the Code of Criminal Procedure, 1973 (CrPC) during investigation. Subsequently, a Sessions Case (No. 31 of 2007) proceeded against other accused, some of whom died (case abated) and one was acquitted. The prosecution filed an application under Section 319 CrPC before the Sessions Judge, Vasai, seeking to arraign the applicants as additional accused. The Sessions Judge allowed the application on 2nd August 2016, leading the applicants to challenge the order before the Bombay High Court. The High Court examined three main contentions: (1) that the requirement of 'could be tried together' under Section 319 CrPC was not satisfied as there were no other accused to try with; (2) that since the applicants were discharged under Section 169 CrPC, Section 319 could not be directly invoked without following the procedure under Section 300(5) read with Section 398 CrPC; and (3) that the proper procedure was for the prosecution to file a fresh charge-sheet before the Magistrate. The Court held that while the words 'could be tried together' are directory, the discharge under Section 169 CrPC necessitates a fresh inquiry or charge-sheet. The Court quashed the Sessions Judge's order and directed the prosecution to follow the appropriate procedure under Section 300(5) read with Section 398 CrPC or file a fresh charge-sheet.
Headnote
A) Criminal Procedure Code - Section 319 CrPC - Summoning of Additional Accused - Requirement of 'could be tried together' - The words 'could be tried together' in Section 319(1) CrPC are directory and not mandatory; however, where the proposed accused have been discharged under Section 169 CrPC, the prosecution must first follow the procedure under Section 300(5) read with Section 398 CrPC before invoking Section 319 CrPC. (Paras 3-5)
B) Criminal Procedure Code - Section 169 CrPC - Discharge During Investigation - Effect on Section 319 CrPC - Persons discharged under Section 169 CrPC cannot be directly summoned under Section 319 CrPC without a fresh inquiry or charge-sheet; the proper course is to file a charge-sheet before the Magistrate who may commit the case to Sessions. (Paras 3-5)
C) Criminal Procedure Code - Section 300(5) r/w Section 398 CrPC - Procedure for Re-investigation or Fresh Charge-sheet - When accused have been discharged under Section 169 CrPC, the prosecution must either file a fresh charge-sheet or seek an inquiry under Section 398 CrPC before the Sessions Court can take cognizance under Section 319 CrPC. (Paras 3-5)
Issue of Consideration
Whether the Sessions Court could invoke Section 319 CrPC to arraign the applicants as accused when they had been discharged under Section 169 CrPC and the case had abated against other accused.
Final Decision
The High Court allowed the application and quashed the order dated 2nd August 2016 passed by the learned Sessions Judge, Vasai, allowing Exhibit 53 under Section 319 CrPC. The Court directed that the prosecution may follow the procedure under Section 300(5) read with Section 398 CrPC or file a fresh charge-sheet before the Magistrate.
Law Points
- Section 319 CrPC cannot be invoked directly against persons discharged under Section 169 CrPC
- requirement of 'could be tried together' is directory
- procedure under Section 300(5) r/w Section 398 CrPC must be followed
Case Details
2016 LawText (BOM) (09) 80
Criminal Application No. 1077 of 2016
Mr. S. V. Marwadi with Ms. Mallika Ajay Ingale for the Applicants, Mr. S. K. Shinde, P. P. with Ms. P. P. Shinde, A.P.P for the Respondent No.1-State
Kishan Govind Patil, Mahadeo Govind Patil, Baban Bhiwa Gharat, Kanti Bhaskar Dhumal, Baban Kashinath Patil, Atmaram Mahadeo Jadhav, Kishan Harishchandra Patil
State of Maharashtra, State CID (Crimes), Gangadhar Janardhan Mhatre
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Nature of Litigation
Criminal application challenging the order of Sessions Judge allowing prosecution's application under Section 319 CrPC to arraign applicants as accused.
Remedy Sought
Quashing of the order dated 2nd August 2016 passed by the learned Sessions Judge, Vasai, allowing Exhibit 53 under Section 319 CrPC.
Filing Reason
The applicants were discharged under Section 169 CrPC but were sought to be arraigned as accused under Section 319 CrPC in Sessions Case No. 31 of 2007.
Previous Decisions
The Sessions Judge allowed the prosecution's application under Section 319 CrPC on 2nd August 2016.
Issues
Whether the requirement of 'could be tried together' under Section 319 CrPC is satisfied when the case against other accused has abated or they have been acquitted.
Whether Section 319 CrPC can be directly invoked against persons discharged under Section 169 CrPC without following the procedure under Section 300(5) r/w Section 398 CrPC.
Submissions/Arguments
Applicants argued that the basic requirement of Section 319 CrPC that the person could be tried 'together with the accused' was not fulfilled as the case had abated against some accused and one was acquitted.
Applicants argued that since they were discharged under Section 169 CrPC, Section 319 could not be directly invoked; an inquiry under Section 300(5) r/w Section 398 CrPC was necessary.
Applicants argued that the prosecution should file a fresh charge-sheet before the Magistrate who would then commit the case to Sessions.
Respondent-State argued that the words 'could be tried together' are directory and not mandatory, and the order was valid.
Ratio Decidendi
The words 'could be tried together' in Section 319(1) CrPC are directory, but when the proposed accused have been discharged under Section 169 CrPC, the prosecution must first follow the procedure under Section 300(5) read with Section 398 CrPC before invoking Section 319 CrPC, as a direct invocation would bypass the safeguards of a fresh inquiry or charge-sheet.
Judgment Excerpts
the basic requirement of Section 319 Cr. P. C. is that if in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried 'together with the accused', the Court may proceed against such person for the offence which he appears to have committed.
the procedure which will now have to be adopted, is that the prosecution will have to file a charge-sheet again in the Court of the Magistrate, after which, the Magistrate will commit the case to the Court of Sessions.
Procedural History
The applicants were originally named in an FIR but discharged under Section 169 CrPC. Sessions Case No. 31 of 2007 proceeded against other accused; some died (case abated) and one was acquitted. The prosecution filed an application under Section 319 CrPC (Exhibit 53) before the Sessions Judge, Vasai, which was allowed on 2nd August 2016. The applicants challenged this order before the Bombay High Court via Criminal Application No. 1077 of 2016, which was allowed on 21st September 2016.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 319, 169, 300(5), 398
