detailed answer needed , interested only answer in detailed please

810 votes

Hi, Due to word limitation it's not possible to give detailed advice. Even if the existing accused has not filed a written counter, the Magistrate is not bound to allow the application merely on that ground. The court primarily examines the evidence already on record.

Advocate Vishali Verma LawRato

860 votes

Application under Section 319 CrPC decide karte waqt court mainly record par aaye evidence ko dekhti hai. Agar petitioner ne apni side se arguments kar diye hain aur opposite side ne counter file nahi kiya hai, tab bhi court sirf is basis par application allow nahi karti. Magistrate ko satisfy hona zaroori hota hai ki recorded evidence se proposed accused ki involvement prima facie appear ho rahi hai. Agar court ko evidence sufficient nahi lagta, toh application dismiss bhi ki ja sakti hai. Final decision court ke judicial discretion par depend karta hai.

Advocate Snigdha Tripathi LawRato

739 votes

In an application under Section 319 CrPC, the Court is not concerned with whether a counter affidavit has been filed or not. The primary duty of the Court is to examine the evidence that has come on record during trial and determine whether it discloses strong and cogent evidence indicating the involvement of the proposed accused in the commission of the offence. The Hon’ble Supreme Court in Hardeep Singh vs State of Punjab (2014) has clearly held that the power under Section 319 CrPC is an extraordinary and discretionary power which must be exercised sparingly and only when the evidence before the Court is more than a mere suspicion and points towards the involvement of the proposed accused. Therefore, even if the opposite side has not filed a written counter, the Magistrate can still dismiss the application if the material/evidence on record does not meet the legal threshold required under Section 319 CrPC. Conversely, if strong evidence exists from the testimony of witnesses, the Court may allow the application irrespective of the absence of a counter. Hence, the decision of the Court will ultimately depend on the strength of the evidence recorded during trial, and not merely on the filing or non-filing of a counter by the opposite party.

Advocate Ujjwal Sharma LawRato