Criminal Procedure, India (including The Code of 1861/ 1973)
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Section 319 vs. Section 227: discharge of accused for insufficient evidence
The Times of India, Aug 05 2015
Dhananjay Mahapatra
Even if not charged, summoned accused can't seek discharge: SC
Settling a longstanding conflict between two provisions of the CrPC, the Supreme Court ruled that a person not chargesheeted by the police, yet summoned as an accused by the trial court cannot seek discharge on the ground of insufficient evidence. The two conflicting provisions were Section 319, under which a trial court could summon a person not named in the chargesheet as an accused after examining the evidence, and Section 227, permitting an accused to seek discharge on the ground of insufficient evidence.
A bench of Justices S A Bobde and R K Agrawal said, “The exercise of power under Section 319 of the CrPC must be placed on a higher pedestal.“ The bench said a trial court exercised the extraordinary power under Section 319 only if it found very strong and cogent evidence against a person from the evidence led before the court. It said on the other hand, as per Section 227, “If the judge is of the view that there are no sufficient grounds for the proceedings against the accused, he may be discharged and proceedings dropped.“
Drawing a comparison between the two sections having opposite effects on a person, Justice Bobde said, “It does not stand to reason that a person who is summoned as an accused to stand trial, and added as such to the proceedings on the basis of a stricter standard of proof, can be allowed to be discharged from the proceedings on the basis of a lesser standard of proof such as a prima facie connection with the offence necessary for charging the accused.“
The bench said, “Needless to say, the accused summoned under Section 319 are entitled to involve remedy under law against an illegal or improper exercise of power under Section 319 but cannot have the effect of the order undone by seeking discharge under Section 227. If allowed to, such an action of discharge would not be n accordance with the purpose of the CrPC in enacting Section 319 .“
The ruling came in a case from Bihar. Four persons were chargesheeted in April 2001, for a murder committed in 2000, and later, added another person. After the case was committed to trial, the sessions judge issued notices to the four and after hearing them, the trial judge summoned them as accused using Section 319. Then they moved an application seeking discharge under Section 227 citing insufficiency of evidence. They withdrew their petition from the HC after the district court discharged them from the case. The state then appealed and the HC allowed the petition, saying discharge under Section 227 could not nullify the summoning order under Section 319. The accused challenged the HC order before the SC, which dismissed their appeals.
