Once an Investigating Officer (IO) files a charge sheet (final report) under Section 173 CrPC / Section 193 BNSS, the investigative stage concludes, and the court takes cognizance of the offence. However, it is not uncommon during the course of a criminal trial for evidence to surface implicating an individual who was either left out of the charge sheet by the police or named only in the column of non-indicted suspects.

This raises a crucial procedural question in criminal defence and prosecution strategy: Can an existing accused file an application to summon and add another person as a co-accused to the calendar case after the charge sheet has been filed?

 

1. The Statutory Power: Section 319 CrPC / Section 357 BNSS:

The primary legal mechanism for summoning an additional person not originally named or charged in the police report is Section 319 of the Code of Criminal Procedure, 1973 (now Section 357 of the Bharatiya Nagarik Suraksha Sanhita, 2023 – BNSS).

Key Elements of the Provision:

• Judicial Discretion:Where, in the course of any inquiry into, or trial 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.
• Stage of Invocation:The power can generally be exercised only after the commencement of trial once “evidence” (oral or documentary recorded during trial) emerges—not based purely on the uncorroborated police diary or charge sheet statements prior to trial.

 

2. Who Can File the Application? (Locus Standi of an Accused)

The language of Section 319 CrPC / Section 357 BNSS states that the court may exercise this power suo motu or upon an application. However, courts have carefully scrutinized who has the locus standi to file such an application.

A. The General Position: Open to Any Interested Party

The Supreme Court of India has held that Section 319 CrPC is a discretionary power vested in the court to ensure complete justice. The application can be brought to the court’s attention by:

1. The Public Prosecutor / Complainant.
2. The De-facto Complainant / Victim.
3. An Existing Accused in the Trial.

 

B. Can an Accused File the Application?

Yes, an accused person can move an application under Section 319 CrPC / Section 357 BNSS.

In landmark rulings—including Hardeep Singh v. State of Punjab (2014) (5-Judge Constitution Bench)—the Supreme Court clarified that the court’s power under Section 319 is broad. The court can be alerted to evidence against an uncharged individual by any party to the proceedings, including a co-accused who contends that the crime was committed by or in conspiracy with the omitted individual.

However, when an application is filed by an accused person, courts examine it with a higher degree of caution.

3. Key Evidentiary Test: “More Than a Prima Facie Case”

To summon a person under Section 319 CrPC / Section 357 BNSS:

• Higher Standard Than Framing Charges:The standard of evidence required is much stricter than what is needed to frame charges against an existing accused.
• Test of Probability:The evidence presented during the trial must show a probability that the person committed the offence—such that, if un-rebutted, it would lead to their conviction.
• Distinguishing Strategy from Justice:Courts will dismiss applications filed by an accused if they appear to be tactical maneuvers designed to delay the trial, deflect guilt, or settle personal scores.

 

4. Alternate Pre-Trial Remedies:

If the trial has not yet commenced (meaning evidence has not been recorded by the court), an application under Section 319 CrPC / Section 357 BNSS may be deemed premature. In such scenarios, parties explore alternate procedural avenues:

• Protest Petition / Objections to Charge Sheet:Primarily available to the complainant/victim to contest the police’s decision to drop certain suspects in the final report.
• Further Investigation (Section 173(8) CrPC / Section 193(9) BNSS):The Magistrate may, in appropriate circumstances, direct or permit further investigation if crucial material was ignored by the investigating agency.

 

Practical Takeaway for Defence Counsel:

An accused person has the legal right to file an application to bring an omitted co-accused into the calendar case post-charge sheet. However, success depends on timing and evidentiary rigor:

• Wait for Trial Evidence:The application should ideally be moved after substantive evidence (such as cross-examination or key witness depositions) is recorded on the court transcript.
• Establish Concrete Material:Rely strictly on evidence recorded before the court rather than unverified assertions or statements made during police investigation.
• Demonstrate Joint Liability / Common Intention:Show clear evidentiary links establishing that the omitted individual shared common intention, conspiracy, or direct participation in the alleged crime.

 

Disclaimer: This summary is for informational purposes and does not constitute formal legal advice. The interpretation of these grounds is highly dependent on judicial precedent and the specific facts of your case. Always consult with a qualified advocate regarding the strategy for your petition.