The Supreme Court of India.
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New Delhi: The Supreme Court has said filing of a closure report by the police would not impede the power of the trial court under Section 319 of the CrPC to summon any person as accused, based on strong and cogent evidence brought forth during the proceedings.
A bench of Justices J B Pardiwala and R Mahadevan said the trial court has "undoubted jurisdiction" to add any person not being the accused before it to face the trial along with other accused persons, if it is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been named as accused should face the trial.
"The power of the court under Section 319 of the CrPC is not controlled or governed by naming or not naming of the person concerned in the FIR. Nor the same is dependent upon submission of the charge sheet by the police against the person concerned," the bench said in its January 3 order.
Such person even though had initially been named in the FIR as an accused, but not charge sheeted, can also be added to face the trial, it said.
The bench said the trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence.
The court rejected a plea by Omi alias Omkar Rathore and another person against the Madhya Pradesh High Court's refusal to intervene into an order by the trial court to summon him and another person to face trial in murder case, on the basis of deposition made by the complainant.
The petitioners said even though they were named in the FIR, the police filed a closure report against them, exonerating them of any role in the case.
The bench, however, said, "When the evidence of complainant is found to be worthy of acceptance then the satisfaction of the investigating officer hardly matters. If satisfaction of investigating officer is to be treated as determinative then the purpose of Section 319 would be frustrated," the bench said.
The petitioners counsel contended the phrase 'any person not being the accused' occurred in Section 319 CrPC excluded from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No 2 of the charge sheet.
The court, however, said this contention has to be rejected.
"The said expression clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression," the bench said.
In the case, the court noted the trial court has not examined and accepted the closure report till date.
"However, the closure report now pales into insignificance in view of the order passed by the trial court summoning the petitioners herein to face the trial," the bench said.
The bench, however, emphasised it would have been in fitness of things if the court concerned would have looked into the closure report at the earliest and passed an appropriate order one way or the other after hearing the de facto complainant.
"The court should not keep the closure report pending for consideration for a long time. Such report should be looked into promptly," it said.