The Court is the sole repository of justice and a duty is cast upon it to uphold the rule of law. It is the duty of the Court to give full effect to the law so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution. In order to achieve this the legislature incorporated the provisions of Section 319 Code of Criminal Procedure. The relevant portion of Section 319 Cr.P.C reads as under:-

“319. Power to proceed against other persons appearing to be guilty of offence –

• Where, in the course of any enquiry into, or trail 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.
• Where the court proceeds against any person under sub-section (1) then-

The proceedings in respect of such person shall be commenced afresh, and the witness reheard;

Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trail was commenced.”

Section 319 Cr.P.C springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the Court is not powerless in calling the said accused to face trial.

The power under Section 319 Cr. P.C. is a discretionary and extraordinary power, which is to be exercised sparingly. It is not to be exercised unless there is strong and cogent evidence occurs from evidence led before the Court. It is to be exercised 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. 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. Power under Section 319 Cr. P.C. can be exercised by the Trial Court at any stage during the trail, and the Court can summon any person as an accused when it finds that there is some evidence against such person. Evidence here means evidence which has been brought before the court during trail. On the other hand, material collected during the stage of inquiry can be used only for corroborating the evidence recorded by the Court to invoke Section 319 Cr. P.C. Power under Section 319 Cr. P.C. can be exercised based on evidence recorded in the Court, and not material gathered at the investigation stage. Criminal Court, in exercise of powers under Section 319 Cr. P.C., is not entitled to take into consideration the material collected during investigation and record a finding on the basis there of to proceed against a person. ‘Evidence’ means evidence led before the Court during trial.

Section 319 Cr.P.C allows the Court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge sheet filed under Section 173 Cr.P.C or a person whose name has been disclosed in any material before the Court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.

Section 319 Cr.P.C talks of inquiry and trail. Trail commences after framing of charge. Whereas enquiry means inquiries under Sections 200,201,202 and 398 Cr.P.C and the material gathered in course of such enquiry can be used for corroboration of the evidence recorded in the Court after trail commences for the exercise of power under Section 319 Cr.P.C and also to add accused whose name is shown in Column 2 of the charge sheet. Therefore, the word ‘evidence’ has to be give broader interpretation rather than literal one. The evidence is thus limited to the evidence recorded during trail. The power under Section 319 Cr.P.C can be exercised at the stage of completion of examination -in – chief, there is no need of waiting till the aforesaid is tested by way of cross examination.

It is thus clear in no uncertain terms that power under Section 319 Cr.P.C can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr.P.C without taking recourse to provisions of Section 300(5) Cr.P.C read with Section 398 Cr.P.C.

The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished.