Recently, the Supreme Court considered a matter involving the application of Section 319 of the Code of Criminal Procedure,1973 where the question was whether individuals not originally charge-sheet should be summoned to face trial. The issue arose in the context of a homicide case in which subsequent statements and trial testimony appeared to implicate additional family members. The Court was required to assess whether the material produced during the trial met the legal standard for exercising this power.
Brief Facts:
The case arose from a shooting incident in which a woman was grievously injured by her husband and later died. While undergoing treatment, she made two statements under Section 161 of the Code of Criminal Procedure, initially naming only her husband, but later alleging that her in-laws had instigated the act. Her young daughter also gave an account describing the instigation and active involvement by these relatives. The police nevertheless charge sheet only the husband under Sections 302 and 316 of the Indian Penal Code,1860. When these witnesses were examined during the trial, the prosecution sought to summon the other family members under Section 319. Both the trial court and the High Court rejected the request.
Contentions of the Appellant:
The counsel for the Appellant argued that the testimony of the child witness and the complainant clearly revealed instigation and participation by the relatives, meeting the legal threshold of Section 319. The counsel contended that omissions in early statements or in the initial complaint could not weaken later, consistent testimony. The Appellant further maintained that the deceased’s Section 161 statements qualified as dying declarations under Section 32(1) of the Evidence Act, 1872, regardless of the absence of a Magistrate or medical certification, and despite the time gap between the statements and her death.
Contentions of the Respondents:
The counsel for the Respondents argued that the deceased’s statements were inconsistent and unreliable, and therefore could not be treated as dying declarations. The counsel claimed the child witness was not an eyewitness and may have been influenced by the complainant’s family. The Respondent relied on the police investigation, which had found no role attributable to them, and contended that the stringent standard established for invoking Section 319 had not been met.
Observation of the Court:
The Court observed that the power under Section 319 of the Code of Criminal Procedure exists to ensure that no person who appears to have participated in the commission of an offence is left out of the trial merely because the police did not include them in the chargesheet. It clarified that the evidence led during the trial, including the testimonies of the complainant and the child witness, disclosed specific and direct roles attributed to the proposed accused. At this stage, the Court emphasised, the question is not whether the evidence is flawless, but whether it reasonably indicates involvement. The High Court, in treating minor inconsistencies as determinative, had adopted an approach that amounted to prematurely weighing credibility, which Section 319 does not permit.
The Court observed that the legal standard under Section 319 had been clearly articulated by the Constitution Bench in Hardeep Singh v. State of Punjab, which held that “all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence… even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial.” The Court also relied on the same judgment to reiterate that the satisfaction required is “much stronger evidence than mere probability of his complicity… but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.”
The Court additionally observed that the statements of the deceased recorded under Section 161 of the Code of Criminal Procedure were admissible as dying declarations under Section 32(1) of the Evidence Act. Rejecting the High Court’s contrary view, the Court relied on Dharmendra Kumar v. State of M.P., quoting that “a statement made by a person who is dead… and recorded under Section 161 CrPC shall be relevant and admissible… the statement recorded under Section 161 CrPC assumes the character of a dying declaration… nor can the dying declaration be disregarded solely for want of a doctor's fitness certification.”
The Court clarified that Section 32 does not require the declarant to be under expectation of imminent death, and a time gap between the statement and the death does not reduce its admissibility.
The Court finally observed that all objections raised by the proposed accused such as alleged tutoring of the child witness, inconsistencies in statements, omissions in early narratives, or investigation findings, are matters for evaluation during the full trial and cannot be used to defeat the exercise of power under Section 319. What is required at this stage is only the prima facie indication of involvement based on evidence already recorded, not a full assessment of credibility
The decision of the Court:
The Supreme Court set aside the High Court’s order and held that the evidence led during trial prima facie indicated the involvement of the proposed accused, thereby justifying the exercise of power under Section 319 of the Code of Criminal Procedure. The Court directed that they be summoned to face trial along with the already-arraigned accused. It further instructed all parties to cooperate and ordered the trial to be expedited.
Case Title: Neeraj Kumar @ Neeraj Yadav Versus State Of U.P. & Ors.
Case No.: Arising out of SLP(Crl.) No. 7518 of 2025
Coram: Hon’ble Mr Justice Sanjay Karol and Hon’ble Mr Justice Nongmeikapam Kotiswar Singh
Counsel for the Appellant: AOR Abhishek Vikas, Adv. Shivam Sharma, Adv. Utkarsh Bhushan,Adv. Kritika
Counsel for the Respondent: Sr Adv. Rajdipa Behura, AOR Dr. Vijendra Singh, Adv. Aniket Tiwari, AOR Dhruv Joshi
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