४१. summoning under s 319 CrPC

In view of the rulings of the Hon'ble Apex Court the legal position regarding summoning of any person as accused u/s 319 Cr.P.C. can be summed up as under:

1. The power u/s 319 Cr.P.C. is not to be exercised mechanically on the ground that some evidence has come on record implicating the person sought to be made an accused.
2. There is no compelling duty on the Court to proceed against those persons against whom no charge sheet has been submitted.
3. The power u/s 319 Cr.P.C. is discretionary and should be exercised to achieve criminal justice and the Court should not turn against another person simply because it has come across some evidence connecting that person also with the offence. The court should exercise judicial discretion in the matter considering all the relevant facts and circumstances.
4. The Court must be satisfied that the other person , who had not been arrayed as accused, had also participated in commission of the offence.
5. The power u/s 319 Cr.P.C. is extraordinary power conferred on the court and this should be used very sparingly if the compelling reasons exist for taking cognizance against other accused persons against whom no charge sheet has been submitted.
6. There must be reasonable prospect of the case against the newly added accused ending in his conviction for the offence concerned and then only that person should be summoned as an accused otherwise the Court should refrain from adding him as an accused.
7. The Court shall exercise a judicial discretion taking into consideration conspectus of the case including the stage at which the trial has proceeded and the quantum of evidence collected till the date and time spent by the Court for collecting such evidence while passing the order of summoning the person u/s 319 Cr.P.C.
8. The satisfaction whether there exists likelihood of conviction of the person to be summoned as accused can be arrived at inter alia upon cross examination of the witness naming him and so the orders for summoning a person as accused u/s 319 Cr.P.C. should be passed after cross examination of the witness.
9. The Court concerned may also take into consideration other evidence before passing an order for summoning a person as an accused u/s 319 Cr.P.C.

(See, Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others 1983 (20) ACC 50 (SC), Michael Machado V. Central Bureau of Investigation 2000 SCC (Cri) 609; Palanisamy Gounder and another Vs. State Represented by Inspector of Police (2006) 1 SCC (Cri) 568; Mohd. Shafi Vs. Mohd. Rafiq and another (2007 (58) ACC 254)