Power to Summon Additional Accused

The section deals with the  power  to proceed against other persons appearing to be guilty of offence in which the court has  power to summon , detain or arrest such a person after service of notice. Power to Summon Additional Accused under section 358 BNSS read with section 319 CrPC.

Overview:

Section  358 Bharatiya Nagarik Suraksha Sanhita,  2023 BNSS  empowers the courts to take necessary actions against individuals other than the  accused  who appears to have committed an offense during the investigation or trail of a particular case. This provision aims to ensure that all culpable parties are brought to justice, even if they were not initially recognized as suspects.

1. Where, in the course of any inquiry into, trail of, an offence, it appears form the evidence that any person not being the  accused  has committed any offense for which such person could be tried together with the  accused , the Court may proceed against such person for the offense which he appears to have committed.    

2. Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforementioned.  

3. Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into or trail of, the offense which he appears to have committed.   

4. Where the Court proceeds against any persons under sub section (1) then   

a.  The proceeding in respect of such person shall be commenced afresh and witnesses re heard.

b. 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 offense upon which the inquiry or trail was commenced. 

    

Brief of Section 358 BNSS:

The section gives the  power  to the Court to  add  any such person in the trail with the  accused  against whom strong evidence has been presented. Such a person against whom strong and cogent evidence has been submitted and the court is satisfied about his involvement in the case becomes an accused from the date of passing the order by the Court.

Stages at which power can be exercised:

Power under Section 358 Bharatiya Nagarik Suraksha Sahita, 2023 BNSS can be exercised at any time after commencement of inquiry into an offence by the court i.e. inquiry commences before court with filing of charge-sheet/complaint before court and before conclusion of trail, except during stage of Sections 230 to 232 which is not judicial step in the true sense. Word “inquiry” in section 358 cannot be treated as surplus age, Hardeep Singh vs. State of Punjab, (2014) 3 SCC.

Power to add other persons:-

In a warrant case institution otherwise than a police report the court can order framing of charge under section 358 against persons who were earlier discharged at the enquiry stage Mohanbhai vs. Stage of Gujarat 1979 CriLJ 1446. Session Court has power to add any person for trail without there being a committal order against such person. “Any person not being the accused in section 358 does not exclude person dropped under section 189, Joginder Singh vs. State of Punjab 1979 SCC.

Power to proceed against other persons appearing guilty:

Even in case where protest petition stage at instance of complainant urging court to summon other persons as well who were named in FIR but no implicated in charge-sheet has gone, in that case also, held, court not powerless vide section 358 and even persons named in FIR but implicated in charge-sheet can be summoned to face trail provided during the trail some evidence surfaces against proposed accused, Rajesh vs. State of Haryana, (2019) 6 SCC 368.

Stage of Invocation of Section 358 BNSS.

Hardeep Singh vs. State of Punjab, (2014) 3 SCC.

·     The term “inquiry” under section 358 begins after the filing of the charge-sheet and includes the process before the commencement of the trail.

·      The Trail is considered to start when charges are framed.

·     Section 358 BNSS can be invoked during the inquiry and trail stages, but not during procedural stages like section 230 to 232 (administration function of supplying documents to the accused.)

·       The court concluded that the power to summon additional accused can be exercised after the inquiry begins and continues until the conclusion of the trail.

Significant Ruling/Fact:

It is very important fact that after  summoning  the  additional accused  under section  358 BNSS , charge cannot be framed without complying with section  230 . Charges against  additional person / accused  compliance of section  207  Cr.PC r/w 230 BNSS is  mandatory  and its non compliance may result in causing prejudice to the accused. The purpose behind furnishing of document of the trail is to provide an opportunity to the  accused  to know the evidence and the materials being relied on in support of the charges and to meet those evidence and statements and set up a proper defense.  Promoted Kumar Sharma vs. State of UP JIC 816 2010 ACC 436(HC)

Sometimes after issuing summons under section  358 BNSS , the court frames charges against additional accused without complying with section 230  BNSS  while it is  mandatory.

Read More:

Summoning of Additional Accused under section 319 CrPC