SUMMONING OF ACCUSED BY A MAGISTRATE EVEN AFTER CLOSURE REPORT

 

SUMMONING OF ACCUSED BY A MAGISTRATE EVEN AFTER CLOSURE REPORT

 

In a F.I.R case, in case, after investigation, prima facie offence against the accused is made out, a charge sheet containing the details of allegations along with documents in support thereof is submitted before appropriate court of jurisdiction for the prosecution of the case. However, in case, the offence, according to the Investigating Officer is not made out, then, a closure report used to be filed by the Police before the Courts of appropriate jurisdiction, for seeking closure of the case. The Courts, in such cases, after notifying the complainant shall have the option to accept the closure report, or reject it. The Court shall also have the option of summoning the accused, if it in the opinion of the case, sufficient evidence is there in the charge sheet, despite contrary report from the police. The Court may in the alternative also direct police to conduct further investigation and thereafter file a report. Therefore, it is evident that there are several options before the Court, when faced with the situation as narrated above.

The aforesaid situation however is not comprehensive. Some time the Investigating Officer does not file a closure report and the proposed accused  are named in column 12 i.e the accused are , though, suspected of committing offence, but for want of sufficient evidence, the accused are not proposed to be sent for trial. Ironically, when closure report is not filed, and names of accused figured in column 12, the Court remains uncertain as to how to deal with the situation?  Whether Court shall have the option of calling upon the police for further investigation, as that option undoubtedly remains, the moot point, however is, as to whether the Court can issue summons to the accused despite they are named in column 12 of Charge Sheet? The situation is made complex further, if the Court summons the accused, despite their names in column no.12 and when no reasons are ascribed for the summoning. It is no res integra, that the Court may issue summon even to the accused whose names are there in Column 12, but, whether, the same can be done without assigning any reason shall be the essence of the present discussion.  Moreover, if the summons in the context as aforesaid is issued, without assigning any reasons, what shall have the effect of such summoning and/or remedy to the accused?

A recent judgment by Dharmveer vs State Of U.P & Another in a CRIMINAL REVISION No. - 1909 of 2023  rendered on 6 the May, 2024 is a pointer. Relying on S. Mohammed Ispahan Vs Yogendra Chandak & Ors , (2017) 16 SCC 226, In para 35 it is held as under:

“35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319of  C.rPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused”.

It is held by Supreme Court that the fact that the fact that names of the appellants were mentioned in the FIR and even in the statement of witnesses recorded under Section 161 Cr.PC these appellants were named and such statements under Section 161 Cr.PC would constitute "documents" and thus, in this context, the High Court has observed that "evidence" within the meaning of Section 319 Cr.PC would include the aforesaid statements and, therefore, the appellants could be summoned was held to be incorrect. According to Supreme Court, the aforesaid reasons given by the High Court do not stand the judicial scrutiny. The High Court has not dealt with the subject-matter properly and even in the absence of strong and cogent evidence against the appellant, it has set aside the order of the Chief Metropolitan Magistrate and exercised its discretion in summoning the appellants as accused persons. It is held as under:

“…No doubt, at one place the Constitution Bench observed in Hardeep Singh case [Hardeep Singh v.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that the word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. In para 105 of the judgment, however, it is observed that "only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner". This sentence gives an impression that only that evidence which has been led before the Court is to be seen and not the evidence which was collected at the stage of inquiry. However there is no contradiction between the two observations as the Court also clarified that the "evidence", on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the Court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319  Cr.PC”.

It is further held as under:

35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 Cr.PC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.

In Hardeep Singh (Supra) Five (5) Judge Constitution bench has held as under:

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.PC."

In the light of above, Allahabad High Court in Dharamveer (Supra) has held as under:

92. In view of above, this Court finds that the law regarding summoning of a prospective accused that stands crystallized by the Five Judges Bench judgment of the Supreme Court in Hardeep Singh (Supra), Brijendra Singh & Ors  Vs State of Rajsthan  (2017) 7 SCC 706 and S. Mohammed Ispahani  (Supra), is not satisfied in the present case. As per the law laid down by  the Apex Court in the case of Brijendra Singh (Supra) and S Mohammed Ishpahani (Supra) a prospective accused can be summoned in exercise of jurisdiction under Section 319  Cr.P.C. on the following parameters:

(A)    A prospective accused can be summoned on the statement-in-chief of one prosecution witness,

(B)    Irrespective of above, the Court dealing with an application under Section 319 Cr.P.C. must consider the plethora of evidence, which has emerged during the course of investigation as it is an important material to conclude the complicity/innocence of a prospective accused,

(C)    The Court should draw a parallel in between the statement of the prosecution witness examined up to that stage as recorded under Section 161 Cr.P.C. as well as his deposition before Court below to find out whether something new has emerged in the deposition of a prosecution witness from what was stated by him in his statement under Section 161 Cr.P.C,

(D)    A prospective accused cannot be summoned merely on the basis of his complicity in the crime in question, only if an inference of guilt of the prospective accused can be inferred as per the evidence up tho this stage,

(E)    The power under Section 319 Cr.P.C. is an extra-ordinary power which must be exercised sparingly. Furthermore, Court should exercise it's jurisdiction under Section 319 diligently and not in a "casual and cavalier" fashion,

(F)     Only when some strong and cogent evidence has emerged against a prospective accused rather than his mere complicity in the crime in question can a prospective accused be summoned and

(G)    The Court can summon a prospective accused only when on the basis of material on record, it can record the same degree of satisfaction as observed in paragraph 106 of the judgment in Hardeep Singh (Supra).

That on the basis of aforesaid judicial precedents, what is crystal clear is that a Magistrate, in spite of filing of closure report shall be entitled to apply his mind on the basis of record and if it appears to the Magistrate that summons could be issued to the accused persons, on the basis of material on record, the same can be done. However, the reason has to be given for such summoning order, more so, in the backdrop of closure report and why the magistrate is not agreeable with the Police Report. This is over and above, other options that a Magistrate can avail of i.e for seeking further investigation or accepting closure report as the case may be. What is worth mentioning in the context is that statement u/s 161 of Cr.P.C will have to be tested on the basis of deposition before Court and additional facts which may not be part of record may come out in the deposition. When on the basis of deposition of witnesses during trial, if some other evidences crops up, then, new accused may have to be summoned as per the principles of section 319 of Cr.P.C. Thus, the police report needs meticulous scrutiny and application of mind shall be necessary. The constitution bench judgment of Supreme Court has settled the position to the effect that there is no embargo in summoning the accused persons, irrespective of fact that the accused persons in a final report are shown in column 12 and/or closure report is filed. It is also not ambiguous that since summoning of accused in a criminal matter has vast ramification, therefore, such order of summoning should not be issued mechanically and should reflect application of mind and on the basis of prima facie evidence only accused should be summoned.

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                          Anil K Khaware

                 Founder & Senior Associate

                 Societylawandjustice.com