MUMBAI: A trial court can use powers under the Criminal Procedure Code to initiate criminal proceedings against a person who may not have been booked by police in a case, the Bombay high court has said. Justice Revati Dere ruled that even if a person is not named as an accused in the police charge sheet, at any stage of the trial a court can launch prosecution against him, but added that this power had to be used sparingly. The court's order comes as a relief to Malabar Hill resident Mani Narayan in a 17-year-old case of assault and outraging her modesty.

"It is well settled, that once a Magistrate takes cognizance of an offence, he can proceed against those offenders also who have not been sent up by the police and that absence of charge sheet is not a bar. The power of Section 319 of CrPC is not controlled by the result of investigation," said Justice Dere. The court set aside as "premature" a sessions court order which while accepting that such a power was available to the magistrate but held that since it was an old case it would amount to abuse of the process of law.

The HC held that the delay in the case was not because of Narayan, but due to the fat that the accused were absconding in the case for over a decade. "Merely on the ground that the case is an old one, cannot be a ground for holding that invoking of Section 319 of the CrPC will amount to abuse of the process of the law," said the judge.

The HC however cautioned that the power under section 319 had to be used properly and only when the court was convinced that there was enough material available to convict the accused. "The court has to use the said power sparingly and primarily to advance the cause of criminal justice and not as a tool at the hands of the court to cause harassment to persons who are not involved in the commission of the crime," said the judge adding that the provision should be invoked when from the evidence it appears that a person who has not been named by the police had committed the offence. The court said that the provision should be used "only on the existence of compelling reasons and should not be exercised where the possibilities of the summoned persons, being convicted are remote."

Under section 319, the court can initiate prosecution of a person who is not booked by the police but against whom there is evidence that he has committed the crime. The Court can summon such a person, order his arrest or detain him for the purpose of inquiry or trial.

The case dates back to November 22, 1997, when Narayan alleged that watch men of her building obstructed her on the instructions of her building secretary, assaulted her and outraged her modesty. The FIR was lodged against two watchmen of the building. Narayan however claimed that the police had not recorded her complaint properly and had not named as accused the secretary and other watchmen. In 1998, she filed an application before the magistrate to order further investigations. For over a decade the two accused were absconding and it was only in 2008 that they were arrested after a proclamation was issued by the court. In 2011, the magistrate rejected the plea for further investigation. The sessions court too rejected the application and held that though the trial court had powers under section 319, but observed that it was not tenable as the case was old. Narayan challenged the orders before the high court.

Hope for complainant after 16 years

In 1997, Mani Narayan alleged that watchmen of her Malabar Hill building obstructed her on the instructions of her society's secretary, assaulted her and outraged her modesty. The FIR was lodged against two watchmen. Narayan, however, claimed that the police had not recorded her complaint properly and had not named as accused the secretary and other watchmen. In 1998, she moved a magistrate's court to order further investigations. The two absconding accused were arrested only in 2008. In 2011, the magistrate rejected her plea. The sessions court too rejected her application and held that the trial court's powers were not tenable as the case was old. Narayan then moved the HC.

