Reconciling Thresholds and Duties: The Supreme Court's Clarification on Summoning Additional Accused Under Section 319 CrPC

Introduction

The exercise of power under Section 319 of the Code of Criminal Procedure, 1973, to summon additional accused persons has long been a jurisprudential tightrope walk for trial courts. It balances the need for a fair and complete trial against the rights of individuals not initially arrayed as accused. The recent judgment of the Supreme Court of India in Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors. (Criminal Appeal arising out of SLP(Crl.) No. 7518 of 2025, decided on 04.12.2025) provides a significant recalibration of the principles governing this extraordinary power. The Court, setting aside concurrent findings of the Trial Court and the Allahabad High Court, underscored a crucial distinction: the stage of summoning under Section 319 is not the arena for a mini-trial or a detailed evaluation of the credibility of witnesses, but a prima facie assessment of whether evidence "appears" to inculpate a person.

Factual Matrix and Procedural History

The case arose from a tragic incident where the appellant's sister, Nishi (the deceased), was shot by her husband, Rahul, on 25th March 2021. The First Information Report (FIR) No. 187 of 2021 was registered under Section 307 of the Indian Penal Code, 1860, based on information from the deceased's minor daughter, Shristi (PW-2). The deceased succumbed to her injuries on 15th May 2021. During the investigation, two statements of the deceased were recorded under Section 161 of the CrPC – on 25th March 2021 and 18th April 2021. In the first statement, she named her husband as the assailant. In the second, she specifically alleged that he acted at the instigation of his mother (Rajo @ Rajwati, Respondent No.2), brother (Satan @ Vineet, Respondent No.3), and brother-in-law (Gabbar, Respondent No.4). Both statements were video-recorded.

Despite these statements and a subsequent complaint by the appellant on 20th May 2021, the investigating agency filed a chargesheet on 16th July 2021 only against the husband, Rahul, under Sections 302 and 316 IPC, exonerating the private respondents (Respondent Nos. 2 to 4). The trial commenced, and charges were framed against Rahul. During the trial, the appellant (PW-1) and the minor daughter, Shristi (PW-2), were examined. Relying on their testimonies and the deceased's Section 161 statements, the prosecution moved an application under Section 319 CrPC seeking to summon the private respondents as additional accused.

The Trial Court, by its order dated 3rd August 2023, dismissed the application, holding the material insufficient to exercise the "extraordinary power" under Section 319 CrPC. The Allahabad High Court, in Criminal Revision No. 4729 of 2023, affirmed this dismissal on 22nd April 2024, reasoning that:

1.  The deceased's statements could not be treated as dying declarations under Section 32 of the Indian Evidence Act, 1872, as her death occurred substantially after their recording.

2.  PW-1's (the informant's) evidence was of limited value as he was not an eyewitness.

3.  PW-2's (the minor daughter's) testimony was insufficient as her cross-examination revealed she had heard the gunshots, implying she was not an eyewitness to the actual firing.

The Supreme Court's Analysis and Legal Exposition

The Supreme Court, comprising Justices Sanjay Karol and Nongmeikapam Kotiswar Singh, allowed the appeal, set aside the impugned orders, and directed the Trial Court to summon the private respondents. The Court's judgment methodically dismantled the reasoning of the courts below and provided a comprehensive restatement of the law under Section 319 CrPC.

1.  The Nature and Object of Power Under Section 319 CrPC

The Court began by reiterating the settled jurisprudence. Section 319 CrPC is an enabling provision that empowers a court, during any inquiry or trial, to proceed against any person not already an accused if "it appears from the evidence" that such person has committed an offence triable together with the accused. The provision's object is to ensure that no guilty person escapes the process of law, giving effect to the maxim judex damnatur cum nocens absolvitur (the judge is condemned when the guilty is acquitted). It casts a duty on the court to secure a fair and complete trial.

The Court cited the Constitution Bench decision in Hardeep Singh v. State of Punjab (2014) 3 SCC 92, which held that the power is extraordinary and discretionary, to be exercised sparingly. The threshold satisfaction required 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 Court emphasized that this provision applies to persons not named in the FIR, not charge-sheeted, or even discharged.

2.  The "Evidence" for Section 319: A Clarificatory Note

The Court clarified the source of "evidence" for invoking Section 319. Relying on S. Mohammed Ispahani v. Yogendra Chandak (2017) 16 SCC 226 and Omi v. State of M.P. (2025) 2 SCC 621, the Court held that the power must be exercised based on evidence adduced before the court during the trial or inquiry. Material in the chargesheet or case diary does not constitute "evidence" for this purpose, though it can be used for corroboration. The Court's own recent decision in Shiv Baran v. State of U.P. (2025 SCC OnLine SC 1457) was referenced, which summarised key principles, including that the court has broad but not unbridled power based on trial evidence, that persons not named in the FIR/chargesheet can be summoned, and that the test is stricter than for framing charge but does not require a mini-trial.

3.  Re-evaluation of the Evidence On Record

The Supreme Court then applied these principles to the evidence before the Trial Court, finding that the courts below had applied an incorrect and unduly stringent standard.

1. Testimony of PW-1 (the appellant): The High Court had discounted his testimony as he was not an eyewitness. The Supreme Court noted that his deposition attributed specific roles to each respondent, detailing a history of harassment over the birth of daughters, pressure for sex-determination and abortion, and the information received from PW-2 about the instigation. The Court held that an FIR is not an encyclopedia and the absence of these details therein did not render his testimony an "embellishment." His subsequent complaint of 20th May 2021 naming the respondents provided corroboration.

2. Testimony of PW-2 (Shristi, the minor daughter): This was the centerpiece of the Supreme Court's critique. The High Court had concluded she was not an eyewitness based on her cross-examination where she stated she "heard the sound of firing." The Supreme Court found this approach "erroneous" and amounting to an "impermissible" mini-trial at the summoning stage. The Court emphasized that at the Section 319 stage, the court is not to test credibility or weigh probative value as would be done at the conclusion of trial. PW-2's examination-in-chief contained a detailed narrative directly implicating the respondents in instigating the murder and even supplying the weapon. Whether she saw the trigger being pulled or arrived immediately thereafter was a matter for full trial. Her Section 161 statement, which also named the respondents, could be used for corroboration (S. Mohammed Ispahani). Objections regarding her being a minor and potentially tutored were held to be premature for the Section 319 stage.

3. Statements of the Deceased under Section 161 CrPC: The High Court had rejected these on two grounds: (a) they were not dying declarations due to the time gap between recording and death, and (b) they lacked Magistrate presence/medical certification. The Supreme Court comprehensively rejected both contentions, providing a significant clarification on the law of dying declarations.

4. Admissibility as Dying Declarations: Relying on Dharmendra Kumar v. State of M.P. (2024) 8 SCC 60 and a catena of other decisions (Laxman, Bhagwan, Jagbir Singh), the Court reaffirmed that a statement of a deceased person to a police officer under Section 161 CrPC, relating to the cause or circumstances of her death, is expressly admissible under the exception in Section 162(2) CrPC and Section 32(1) of the Evidence Act. It assumes the character of a dying declaration upon the death of the declarant.

5. Time Gap and Expectation of Death: The Court held the High Court's reasoning "clearly untenable." The law does not require the declarant to be under an imminent shadow of death. Section 32 contains no such limitation. The pertinence lies in the statement's relation to the cause or circumstances of death.

6. Procedure and Certification: Citing Koli Chunilal Savji, the Court reiterated that a dying declaration need not be recorded by a Magistrate, and the lack of a doctor's fitness certification is not fatal. These are matters of prudence, not mandatory requirements. The witness's assertion about the declarant's consciousness can suffice.

7. Inconsistencies: The Court noted that while the first statement named only the husband, the second elaborated on the respondents' instigation. Any inconsistencies and the weight to be attached to these statements were matters for the trial, not for the preliminary summoning stage.

4.  The Impermissible "Mini-Trial" and the Correct Threshold

A recurring theme in the judgment is the condemnation of the courts below for conducting a "mini-trial." The High Court's scrutiny of PW-2's cross-examination to discredit her eyewitness account and its evaluation of the evidentiary value of the dying declarations were seen as transgressing the limits of a Section 319 inquiry. The Supreme Court clarified that the stage is not for a detailed sifting of evidence but for a prima facie assessment of whether the evidence appears to disclose the involvement of a person. The expression in the statute is "could be tried," not "should be tried."

Key Legal Principles Restated and Clarified

1.  Source of Evidence: The power under Section 319 CrPC must be exercised on the basis of evidence adduced before the court during trial/inquiry, not on case diary material (though it can be used for corroboration).

2.  Threshold Satisfaction: The standard is more stringent than for framing charge (under Section 228 CrPC) but less than the satisfaction required for conviction. It requires "stronger evidence than mere probability of complicity" but stops short of a finding that evidence would lead to conviction if unrebutted (Hardeep Singh).

3.  No Mini-Trial: The court must not embark on a detailed evaluation of the credibility, consistency, or weight of evidence at this stage. Cross-examination and the testing of evidence are reserved for the full trial that would follow if the person is summoned.

4.  Scope of Persons: The power extends to persons not named in the FIR, not charge-sheeted, or even discharged.

5.  Dying Declarations u/S 161 CrPC: Statements of a deceased recorded under Section 161 CrPC, relating to the cause or circumstances of death, are admissible as dying declarations under Section 32(1) of the Evidence Act, notwithstanding Section 162(1) CrPC. The time lag between statement and death or the absence of Magistrate/doctor does not ipso facto render them inadmissible.

6.  Child Witnesses: Testimony of a child witness cannot be discarded at the Section 319 stage on grounds of potential tutoring; such aspects are for trial evaluation.

7.  Duty of the Court: The provision casts a duty on the court to ensure the real offenders do not escape trial. A hyper-technical approach at the summoning stage frustrates this objective.

Conclusion and Implications 

The Supreme Court's judgment in Neeraj Kumar serves as a crucial corrective against the tendency of courts to set an unrealistically high threshold at the Section 319 stage, effectively conducting a pre-trial within a trial. By distinguishing between the prima facie "appearance" of involvement from a concluded finding on evidence, the Court has reaffirmed the proactive role of the trial judge in ensuring a complete trial. The ruling reinforces that procedural safeguards for the newly summoned accused are not compromised, as they are entitled to a full-fledged trial with all attendant rights, including cross-examination. For practitioners, the judgment is a potent reminder to argue for a holistic, non-technical view of the evidence at the Section 319 stage, focusing on the broad strokes of apparent involvement rather than the fine details of credibility. It underscores that the doors of a fair trial should not be shut prematurely on allegations that find some support in the evidence already adduced.