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Code of Criminal Procedure, 1973 – s. 319(4)(a) and (b); 244 – Criminal proceedings – New accused joined to the proceedings after charges framed against the original accused – Right of newly added accused for initiation of proceedings qua him from the stage of s. 244 and right to cross-examine the witnesses before framing of charges – Held: The whole inquiry in respect of the newly added accused should commence afresh from the stage of s. 244 – Such accused had the right to cross-examine the witnesses. Words and Phrases: ‘Commence afresh’ and ‘Proceedings’ – Meaning of, in the context of s. 319(4)(a) Cr.P.C. In a criminal proceeding u/s. 406 r/w s. 114 IPC, after the charges were framed against respondent Nos. 2 to 4, appellant filed an application u/s. 319 Cr.P.C., requesting to array respondent No. 5 as a co-accused. The application was allowed. Respondent No. 5 filed an application seeking to commence the proceedings qua him, from the stage of inquiry i.e. from the stage of s. 244 Cr.P.C. and to allow cross-examination of prosecution witnesses at the stage of evidence before charge. Application was allowed. Trial court also split the trial of respondent No. 5 from the trial of respondent Nos. 2 to 4. The order as regards splitting of trial was quashed by High Court. Appellant’s application, seeking quashing of the order, whereby trial court had ordered de novo proceedings as against respondent No. 5 from the stage of inquiry, was rejected by High Court. =Dismissing the appeal, the Court HELD: 1.1. Section 319 Cr.P.C. suggests that there is no escape from commencing the proceedings afresh and also that the witnesses have to be re-heard. Clause (a) of Section 319 (4) is the basic provision and the use of the words `proceedings’ and the term `commence afresh’ has its own significance. If the plea that the newly joined accused has no right of cross-examination is accepted, it would mean that on being joined under Section 319 (1) Cr.P.C., the only step that would be required would be framing of charge against him. In that event, there would be a complete denial to such accused of an important right of cross-examination of the witnesses before the framing of the charge and it would only mean that such accused would remain a mute spectator till the framing of the charge. [Para 11] [179-E-H] 1.2. The Court would also give a meaningful interpretation to the word `proceedings’ which has been deliberately used by the Legislature. The Legislature does not use the word `trial’ which essentially begins after framing of the charge. If the legislature had intended that the newly joined accused should not get the right of cross-examining the witnesses examined before framing of the charge, it might have used the word `trial’. The deliberate use of the word `proceedings’ would then include not only the trial but also the inquiry which commences with Section 244 Cr.P.C. and ends with the framing of the charge under Section 246 Cr.P.C. [Para 12] [180-A-C] 1.3. The terminology `commence afresh’ has also its own force. It indicates that the whole inquiry which commences from Section 244 Cr.P.C. must begin afresh. The interpretation given to the word `proceedings’ by the Court, is buttressed by the language of Section 319(b) Cr.P.C. The plain language takes back the whole proceedings to the stage of taking cognizance. Therefore, the language of Section 319 Cr.P.C. itself pushes the proceedings back to the stage of inquiry, once the order under Section 319 (1) Cr.P.C. is passed by the Court and a new accused is joined therein. [Para 12] [180-C-E] 1.4. If the interpretation that Section 319(4) does not require de novo inquiry, is to be accepted then a complainant, wherein it is a case of multiple accused, may mischievously join only few of them and after getting the charge framed, make an application under Section 319 Cr.P.C. to join some other accused persons who would then have no right of cross- examination of the witnesses and who would be required to be the mute spectators to the charge being framed against which they could have successfully resisted by cross-examining the witnesses. [Para 13] [180-E-G] 1.5. Before summoning the accused under Section 319(1) Cr.P.C., there is no requirement of allowing such accused person to cross-examine the witnesses. That stage comes only after an accused is summoned under sub-Section (1). Therefore, it would be a case where the newly added accused who has not had the advantage of hearing the evidence would be put to prejudice because firstly, he has not heard the evidence and secondly, he cannot even cross- examine those witnesses in the warrant trial based on a private complaint. [Para 14] [180-G-H; 181-A-B] 2.1. Right to cross-examine the witnesses who are examined before framing of the charge is a very precious right because it is only by cross- examination that the accused can show to the court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundless and that there is no scope for framing a charge against him. [Para 16] [181-D-F] Ajoy Kumar Ghose v. State of Jharkhand 2009 (4) SCR 515, relied on. 2.2. Under Section 244, Cr. P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr. P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence. [Para 17] [182- B-C] Shashi Kant Singh v. Tarkeshwar Singh and Anr. 2002 (5) SCC 738, relied on. Rakesh v. State of Haryana 2001 (6) SCC 248, distinguished. R.S. Nayak v. A.R. Antulay 1986 (2) SCC 716; Michael Machado v. Central Bureau of Investigation 2000 (3) SCC 263; Ram Gopal and Anr. v. State 1999 CrLJ 1865, referred to. Case Law Reference: 2009 ( 4 ) SCR 515 Relied on. Para 16 2002 (5) SCC 738 Relied on. Para 17 2001 (6) SCC 248 Distinguished. Para 19 1999 Crl. L.J. 1865 Referred to. Para 20 1986 (2) SCC 716 Referred to. Para 21 2000 (3) SCC 262 Referred to. Para 22 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 28 of 2010. From the Judgment & Order dated 5.6.2008 of the High Court of Bombay in Criminal Application No. 1455 of 2008. Shekhar Naphade, Gaurav Goel (for E.C. Agrawala), Sanjay V. Kharde, Asha G. Nair, A.H.H. Ponda, Girish B. Kedia, Rakhi Ray, S.S. Ray, Bina Gupta for the appearing parties.

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 "REPORTABLE"

 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 28 OF 2010

 (Arising out of SLP (Crl.) 6485 of 2008)

Harinarayan G. Bajaj .... Appellant

 Versus

State of Maharashtra & Ors. .... Respondents

 J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. Interpretation of Section 319 of the Code of Criminal Procedure 

(hereinafter called "Cr.P.C." for short) and, more particularly, Sub-Section 

(4) thereof has fallen for consideration in this appeal. 

3. The factual scenario: A complaint was filed against three 

accused persons, being respondent Nos. 2, 3 and 4 herein for offence 

under Section 406 read with Section 114 of the Indian Penal Code (for 

 2

short `IPC') in the Court of the Metropolitan Magistrate. We need not go 

into the facts stated in the said complaint in view of the narrow question 

which falls for consideration in this appeal. The Trial Court took the 

cognizance of the offences on 03.04.1998 and issued process against 

respondent Nos. 2 to 4. The Trial Court proceeded to examine the 

witnesses before framing the charge. Number of revisions including the 

discharge application were filed by the accused and the trial went on up to 

15.09.2005 when the Bombay High Court expedited the trial. On 

13.06.2006, the cross-examination of the first witness of the prosecution at 

the stage of evidence before charge was completed by the Advocate of the 

accused persons. This cross-examination ran into 115 pages. Since the 

matter could not be finished up to the date fixed by the Bombay High 

Court, it was extended up to 30.06.2006 for completion of trial. The time 

was further extended till December, 2006 and further up to 31.05.2007. In 

the meantime, the second witness was cross-examined which cross-

examination consisted of 148 pages. Likewise, third witness of the 

prosecution was also examined on 11.05.2007. The Trial Court 

discharged Shri Pramod Banka and Smt. Rani V. Agrawal and framed 

charges against the third respondent herein. The time was again extended 

by the High Court till 31.12.2007. This was challenged by way of the 

revision by the appellant, which was allowed. The third respondent also 

filed a revision which was dismissed by the High Court and the High Court 

 3

directed the Trial Court to frame charge against respondent No. 2 to 4 also 

under the provisions of Sections 403, 409 read with Section 34, IPC. 

Ultimately, the charges came to be framed against respondent Nos. 2 to 4 

on 28.11.2007. 

4. At this stage, on 15.12.2007, the appellant herein filed an application 

under Section 319 Cr.P.C. requesting to array respondent No.5 herein as a 

co-accused in the said proceedings. On 31.12.2007, this application was 

allowed and the summons was issued to the 5th respondent, Creative 

Garments Ltd. a company incorporated under the Companies Act through 

its Managing Director. 

5. On 03.01.2008, the 5th respondent preferred an application to the 

Trial Court to commence the proceedings qua the 5th respondent from the 

stage of inquiry i.e. from the stage of Section 244, Cr.P.C. and to allow the 

cross-examination of the witnesses of the prosecution at the stage of 

evidence before charge. On 22.02.2008, this application came to be 

allowed. However, the Trial Court split the trial of respondent No.5 and the 

other respondent Nos. 2 to 4. Respondent Nos. 2 to 4 challenged the 

order dated 22.02.2008 splitting the trial. That order was quashed by the 

High Court by an order dated 31.03.2008. Further, an application came to 

be made by respondents on 15.04.2008 seeking the clarification of the 

High Court's order which clarification was given by the High Court on 

 4

23.04.2008 holding that the order was restricted only to the aspect of 

splitting of trial and not to any other matter. 

6. The appellant also filed a criminal application on 30.04.2008 seeking 

the quashing of the order dated 22.02.2008 by which the Trial Court had 

ordered the de novo proceedings as against respondent No.5 from the 

stage of inquiry. Further, a direction was sought to straightaway frame 

charge against respondent No.5 for the same offence with which 

respondent Nos. 2 to 4 were charged. The High Court, however, rejected 

this application by the complainant (appellant herein) and held that there 

could be no dispute that the Court must commence de novo proceedings 

against respondent No. 5 and it further observed that mere delay which 

might be caused to the complaint would be of no consequence. 

7. Shri Naphade, learned Senior Counsel appearing on behalf of the 

complainant-appellant urges that the High Court has erred in confirming 

the order of the Trial Court permitting the de novo proceedings against 

respondent No.5 in the sense that it allowed the further cross-examination 

of the witnesses who were already examined before framing the charge. 

Contention by learned Senior Counsel is that there would be no question 

of such a permission of the cross-examination of the witnesses who were 

examined before framing of the charge since firstly, the charge against the 

other accused persons has already been framed and secondly, there is no 

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such right of cross-examination under Section 244, 245 and 246, Cr.P.C. 

The Counsel argues that the term `evidence' as mentioned in Section 244, 

Cr.P.C. does not necessarily include the cross-examination of the 

witnesses who were examined at that stage. The further contention of the 

counsel is that Section 319 (4), Cr.P.C. does not require a de novo inquiry 

as has been ordered by the Trial Court and affirmed by the High Court. 

Reliance was placed on Rakesh v. State of Haryana [2001 (6) SCC 248], 

Ram Gopal & Anr. V. State of U.P.[1999 Crl. L.J. 1865] and Michael 

Machado v. Central Bureau of Investigation [2000 (3) SCC 262]. 

8. As against this, Shri Ponda, learned Counsel appearing on behalf of 

the respondent accused urged that the analysis of Section 319 Cr.P.C. 

itself would show that there has to be de novo inquiry in the sense that the 

newly joined accused in such a trial must be given a right to cross-examine 

the witnesses who were examined prior to the framing of charge. He 

pointed out that if the interpretation as canvassed by the appellant is given, 

then there is a likelihood of the complainant taking advantage of his own 

wrong and such an interpretation would give rise to a mischief.

9. Learned counsel pointed out that the rulings pointed out by the 

appellant were not applicable to the controversy. Learned Counsel also 

urged that the use of the word `evidence' in Sections 244, 245, 246, 

Cr.P.C. supports that the accused under those Sections have the right of 

 6

cross-examination and, more particularly, if such a right is not spelt out 

from the language, then it would only mean that the accused in the warrant 

trial based on the complaint case would have to helplessly watch the 

charge being framed. This is all the more true, according to learned 

Counsel, in a case where accused has been joined under Section 319, 

Cr.P.C. On these rival contentions, it is to be seen whether the Trial Court 

and the High Court were right in ordering a de novo inquiry.

10. The relevant part of Section 319, Cr.P.C. is as under 319 (1):

 "(1) 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 for the offence which he 

 appears to have committed.

 (2) XXX XXX

 (3) XXX XXX

 (4) Where the Court proceeds against such person 

 under sub-Section (1), then-

 (a) the proceedings 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 offence upon which 

 an inquiry or trial was commenced."

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11. Even a glance at this Section suggests that there is no escape from 

commencing the proceedings afresh and also that the witnesses have to 

be re-heard. Clause (a) is the basic provision and the use of the words 

`proceedings' and the term `commence afresh' has its own significance. If 

we accept the contention of Shri Naphade that the newly joined accused 

has no right of cross-examination, it would mean that on being joined 

under Section 319 (1), Cr.P.C., the only step that would be required would 

be framing of charge against him. In that, there would be a complete 

denial to such accused of an important right of cross-examination of the 

witnesses before the framing of the charge. It would only then mean that 

such accused would remain a mute spectator till the framing of the charge. 

12. We would also give a meaningful interpretation to the word 

`proceedings' which has been deliberately used by the Legislature. The 

Legislature does not use the word `trial' which essentially begins after 

framing of the charge. If the Legislature had intended that the newly joined 

accused should not get the right of cross-examining the witnesses 

examined before framing of the charge, it might have used the word `trial'. 

The deliberate use of the word `proceedings' would then include not only 

the trial but also the inquiry which commences with Section 244, Cr.P.C. 

and ends with the framing of the charge under Section 246, Cr.P.C. The 

terminology `commence afresh' has also its own force. It indicates that the 

 8

whole inquiry which commences from Section 244 Cr.P.C. must begin 

afresh. The interpretation that we give to the words `proceedings' is 

buttressed by the language of 319 (b), Cr.P.C. The plain language takes 

back the whole proceedings to the stage of taking cognizance. If we 

accept the contention of the appellant herein, then sub-clause (b) would be 

rendered otiose. We have, therefore, no doubt that the language of 

Section 319, Cr.P.C. itself pushes the proceedings back to the stage of 

inquiry, once the order under Section 319 (1) Cr. P.C. is passed by the 

Court and a new accused is joined therein. 

13. There is one more angle and that is the angle of mischief. If the 

interpretation given by the appellant is to be accepted then a complainant, 

wherein it is a case of multiple accused, may mischievously join only few of 

them and after getting the charge framed, make an application under 

Section 319, Cr.P.C. to join some other accused persons who would then 

have no right of cross-examination of the witnesses and who would be 

required to be the mute spectators to the charge being framed against 

which they could have successfully resisted by cross-examining the 

witnesses. 

14. There is one more aspect that before summoning the accused under 

Section 319 (1), Cr.P.C. there is no requirement of allowing such accused 

person to cross-examine the witnesses. That stage comes only after an 

 9

accused is summoned under sub-Section (1). Therefore, it would be a 

case where the newly added accused who has not had the advantage of 

hearing the evidence would be put to prejudice because firstly, he has not 

heard the evidence and secondly, he cannot even cross-examine those 

witnesses in the warrant trial based on a private complaint.

15. This brings us to the question argued by Shri Naphade on the basic 

right of cross-examination to the accused in the proceedings under Section 

244, Cr.P.C. In fact, in view of our interpretation of Section 319(4), it is 

really not necessary to go into that question. However, since the Learned 

Senior Counsel argues that there is no right at all to give opportunity of 

cross-examination to any accused whether brought before the Court 

initially or by way of Section 319(1), we proceed to consider the question. 

16. This Court has already held that right to cross-examine the 

witnesses who are examined before framing of the charge is a very 

precious right because it is only by cross-examination that the accused can 

show to the Court that there is no need of a trial against him. It is to be 

seen that before framing of the charge under Section 246, the Magistrate 

has to form an opinion about there being ground for presuming that the 

accused had committed offence triable under the Chapter. If it is held that 

there is no right of cross-examination under Section 244, then the accused 

would have no opportunity to show to the Magistrate that the allegations 

 1

are groundless and that there is no scope for framing a charge against 

him. In Ajoy Kumar Ghose v. State of Jharkhand [Criminal Appeal 

No. 485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to 

the accused to cross-examine the witnesses examined before framing the 

charge and that the said right is extremely important. It is observed in para 

25:

 "the right of cross-examination is a very salutary right 

 and the accused would have to be given an opportunity 

 to cross-examine the witnesses who have been offered 

 at the stage of Section 244 (1) Cr.P.C."

17. Therefore, the situation is clear that under Section 244, Cr. P.C. the 

accused has a right to cross-examine the witnesses and in the matter of 

Section 319, Cr. P.C. when a new accused is summoned, he would have 

similar right to cross-examine the witness examined during the inquiry 

afresh. Again, the witnesses would have to be re-heard and then there 

would be such a right. Merely presenting such witnesses for cross-

examination would be of no consequence. This Court has already held so 

in Shashi Kant Singh v. Tarkeshwar Singh & Anr.[2002 (5) SCC 738].

18. Though a feeble attempt was made to argue that in that ruling the 

Supreme Court had expressed, `in short there has to be a de novo trial 

against him. The provision of de novo trial is mandatory' and therefore, it is 

only a `trial' which has to be ordered and not the `proceedings'. The 

 1

argument is absolutely incorrect because in Shashi Kant Singh'case 

(cited supra), the Court was dealing with a warrant trial case, not based 

on a private complaint and, therefore, the Supreme Court used the words 

de novo trial. The High court has correctly appreciated this provision. 

19. This takes us to the rulings cited which we must consider. In 

Rakesh v. State of Haryana [2001 (6) SCC 248], this Court framed the 

question in paragraph 3 in the following words:

 "Whether the statement of a prosecution witness without 

 the said witness having been cross-examined 

 constitutes "evidence" within the meaning of Section 

 319, Cr.P.C."

 It is in that behalf that the Court expressed:-

 "....the contention that the term 'evidence' as used in 

 Section 319 Criminal Procedure Code would mean 

 evidence which is tested by cross examination cannot 

 be accepted"

 The Court, however, immediately expressed that the question of 

discharging the evidence by cross-examination would arise only after the 

addition of the accused and that there was no question of cross-examining 

the witnesses prior to adding such person as accused. It was further said 

that the Section does not contemplate an additional stage of first 

summoning the person and giving him the opportunity to cross-examine 

 1

the witness who has deposed against him and thereby testing whether 

such person to be added as accused or not. Once the Sessions Court 

records the statement of the witnesses, it would be part of the evidence. 

Therefore, it was in different factual situation that this Court had made 

those observations. We do not think that such observations can be taken 

advantage of. This is apart from the fact that the Court has specifically 

held that the interpretation of the evidence was only for the purpose of 

Section 319, Cr.P.C.

20. To the similar effect was the ruling relied upon by the appellant in 

Ram Gopal & Anr.v. State [1999 CrLJ 1865]. In fact Ram Gopal's case 

is also restricted to the interpretation of the word `evidence' as is used 

under Section 319, Cr.P.C. Though there are some other observations in 

respect of Section 244, Cr. P.C., we do not think that the observations in 

paragraph 29 are correct. In fact the observations in paragraph 35 therein 

clarified the ratio of that decision. In that view, that judgment will be of no 

help. 

21. Our attention was also invited to R.S. Nayak v. A.R. Antulay [1986 

(2) SCC 716] paragraphs 45 and 46. We do not think that there is any 

need on our part to comment on this case, more particularly, to assess the 

scope of Sections 244 and 245, Cr. P.C. because if Section 319 (4) 

Cr.P.C. is interpreted in the manner that we have interpreted it, there 

 1

would not necessity of going into the scope of Section 244, Cr.P.C. as 

because of that interpretation all the proceedings would be relegated back 

and start afresh whereby there would be clear scope and right for the 

newly added accused to hear the evidence of witnesses examined before 

framing of charge and to cross-examine them.

22. A reference was also made to Michael Machado v. Central Bureau 

of Investigation [2000 (3) SCC 262]. However, in our opinion Michael 

Machado's case is not an authority on the true scope of Section 319 (4) 

Cr.P.C.

23. Shri Naphade also tried to suggest by taking us to the old Section 

252, Cr.P.C. to suggest that there is no right of cross-examination. As we 

have already clarified, once we interpret the provisions of Section 319 (4), 

Cr.P.C. to mean that the proceedings have to go back and have to be 

commenced afresh and the witnesses have also to be re-heard, then the 

right of cross-examination would be innate and under the circumstances 

there would be no necessity of specifically commenting upon the scope of 

Section 244, Cr.P.C. 

24. In view of what we have held, we find that the High Court's judgment 

confirming the Trial Court's judgment is correct and we see no reason to 

 1

interfere with the same. The appeal has no merits and is, therefore, 

dismissed.

 ...................................J.

 (V.S. Sirpurkar)

 ...................................J.

 (Dr. Mukundakam Sharma)

New Delhi,January 06, 2010
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