Section 319 of The Code of Criminal Procedure, 1973

The parameters of exercise of power under Section 319, CrPC has been explained by this Court time and again. It is sufficient to refer to the Constitution Bench Judgment in Hardeep Singh, (2014) 3 SCC 92. The Constitution Bench held that the person against whom the Court decides to proceed, “has to be a person whose complicity may be indicated and connected with the commission of the offence”. The Constitution Bench has given a caution that power under Section 319 is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial 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 unrebutted, would lead to conviction.” The mere fact that Court has power to proceed against any person who is not named in the FIR or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh has to apply the test.

We are of the considered opinion that the High Court committed error in setting aside the order of the Trial Court rejecting the application under Section 319, CrPC.”

– Hon’ble Justice Ashok Bhushan, Labhuji v. The State of Gujarat, [Criminal Appeal No. 1349 of 2018].