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Sec.319 of Cr.P.C. – in view of various opinions – matter was referred to constitution Bench – and inview of decision of the Constitution Bench in the case of Dharam Pal & Ors. v. State of Haryana & Anr., AIR 2013 SC 3018 [hereinafter called ‘Dharam Pal (CB)’], – The matters be placed before the appropriate Bench for final disposal in accordance with law explained herein above. = Hardeep Singh …Appellant Versus State of Punjab & Ors. …Respondents = 2014 ( JANUARY – VOL -1) JUDIS.NIC.IN/ S.C. / FILE NAME = 41145

Sec.319 of Cr.P.C. –    in view of various opinions – matter was referred to constitution Bench –   and inview of decision of the Constitution Bench in the case of Dharam Pal & Ors. v. State of Haryana & Anr., AIR  2013  SC 3018 [hereinafter called ‘Dharam Pal (CB)’],   –   The matters be placed before the  appropriate  Bench  for  final disposal in accordance with law explained herein above. =

 

 

 “319 Cr.P.C. -Power to proceed against other  persons  appearing

           to be guilty of offence.-

 

 

           (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) 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 aforesaid.

 

 

           (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 trial of, the offence which he  appears  to

           have committed.

 

 

           (4) Where the Court  proceeds  against  any  person  under  sub-

           section (1), then-

 

 

           (a) the proceedings in respect of such person shall be commenced

           afresh, and the 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 the  inquiry  or

           trial was commenced.”

 

 

 

This reference before us arises out of a variety of views  having

      been expressed by this Court and several High Courts of the country on

      the scope and extent of the powers of the courts  under  the  criminal

      justice system to arraign any person as an accused during  the  course

      of inquiry or trial as contemplated under Section 319 of the  Code  of

      Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’).

The reference was desired to be resolved by a three-Judge  Bench

      whereafter the same came up for consideration  and  vide  order  dated

      8.12.2011, the Court opined that in view of the reference made in  the

      case of Dharam Pal & Ors. v. State of Haryana & Anr., (2004) 13 SCC 9,

      the issues involved being identical in  nature,  the  same  should  be

      resolved by a Constitution Bench consisting of at least  five  Judges.

      The Bench felt that since a three-Judge Bench has already referred the

      matter of Dharam Pal (Supra) to a Constitution  Bench,  then  in  that

      event it would be appropriate that such overlapping issues should also

      be resolved by a Bench of similar strength. =

 

The said reference was answered by the Constitution Bench

      in the case of 

Dharam Pal & Ors. v. State of Haryana & Anr., AIR  2013

      SC 3018 [hereinafter called ‘Dharam Pal (CB)’], 

wherein  it  was  held

      that a Court of Sessions can with  the  aid  of  Section  193  Cr.P.C.

      proceed to array any other person and summon him for being tried  even

      if the provisions of Section 319  Cr.P.C.  could  not  be  pressed  in

      service at the stage of committal.

   Thus, after the reference was made by a three-Judge Bench in the

      present case, the powers so far as the Court of Sessions is concerned,

      to invoke Section  319  Cr.P.C.  at  the  stage  of  committal,  stood

      answered finally in the aforesaid background.

 

On the consideration of the submissions raised and  in  view  of

      what has been noted above, the following questions are to be  answered

      by this Bench:

 

           ?(i) What is the stage at which power under Section  319  Cr.P.C.

           can be exercised?

 

           (ii) Whether the word “evidence” used in Section 319(1)  Cr.P.C.

           could only mean evidence  tested  by  cross-examination  or  the

           court can exercise the power under the said  provision  even  on

           the basis of the statement made in the  examination-in-chief  of

           the witness concerned?

 

           (iii) Whether the word “evidence” used in Section 319(1) Cr.P.C.

           has been used in a comprehensive sense and includes the evidence

           collected during investigation or the word “evidence” is limited

           to the evidence recorded during trial?

 

           (iv) What is the nature of the satisfaction required  to  invoke

           the power under Section  319  Cr.P.C.  to  arraign  an  accused?

           Whether the power under Section 319(1) Cr.P.C. can be  exercised

           only if the court is satisfied that the accused summoned will in

           all likelihood convicted?

 

           (v) Does the power under Section 319 Cr.P.C. extend  to  persons

           not named in the FIR or named in the FIR but not charged or  who

           have been discharged?

=

 

 

Thus, it is evident that power under Section 319 Cr.P.C. can  be

      exercised against a person not subjected to investigation, or a person

      placed in the Column 2 of the Charge-Sheet and against whom cognizance

      had not been taken, or a person  who  has  been  discharged.  However,

      concerning a person who has been discharged,  no  proceedings  can  be

      commenced against him  directly  under  Section  319  Cr.P.C.  without

      taking recourse to provisions of Section 300(5) read with Section  398

      Cr.P.C.

 

      ?

 

      110. We accordingly sum up our conclusions as follows:

 

      Question Nos.1 & III

 

 Q.1 What is the stage at which power under Section 319  Cr.P.C. can be

      exercised?

 

                                     AND

 

      Q.III Whether the word “evidence” used in Section 319(1)  Cr.P.C.  has

      been used in a comprehensive sense and includes the evidence collected

      during investigation or the word “evidence” is limited to the evidence

      recorded during trial?

 

      A. In Dharam Pal’s case, the Constitution Bench has already held  that

      after committal, cognizance of an  offence  can  be  taken  against  a

      person not  named  as  an  accused  but  against  whom  materials  are

      available from the papers filed by  the  police  after  completion  of

      investigation. Such cognizance can be taken under Section 193  Cr.P.C.

      and the Sessions Judge need not wait till ‘evidence’ under Section 319

      Cr.P.C. becomes available for summoning an additional accused.

 

      ?      Section 319 Cr.P.C., significantly, uses  two  expressions  that

      have to be taken note of i.e.  (1)  Inquiry  (2)  Trial.  

As  a  trial

      commences after framing of charge, an inquiry can only  be  understood

      to be a pre-trial inquiry. 

Inquiries  under  Sections  200,  201,  202

      Cr.P.C.; and under Section 398 Cr.P.C.  are  species  of  the  inquiry

      contemplated by Section 319 Cr.P.C. Materials coming before the  Court

      in course of such enquiries can  be  used  for  corroboration  of  the

      evidence recorded in the court after  the  trial  commences,  for  the

      exercise of power under Section  319  Cr.P.C.,  and  also  to  add  an

      accused whose name has been shown in Column 2 of the chargesheet.

 

           In view of the above position the word ‘evidence’ in Section 319

      Cr.P.C. has to  be  broadly  understood  and  not  literally  i.e.  as

      evidence brought during a trial.

 

      Question No. II

 

      Q.II Whether the word “evidence” used in Section 319(1) Cr.P.C.  could

      only mean evidence  tested  by  cross-examination  or  the  court  can

      exercise the power under the said provision even on the basis  of  the

      statement made in the examination-in-chief of the witness concerned?

 

      ?A. Considering the fact  that  under  Section  319  Cr.P.C.  a  person

      against whom material is disclosed is only summoned to face the  trial

      and in such an event  under  Section  319(4)  Cr.P.C.  the  proceeding

      against such person is  to  commence  from  the  stage  of  taking  of

      cognizance, the Court need not  wait  for  the  evidence  against  the

      accused proposed to be summoned to be tested by cross-examination.

 

      Question No. IV

 

      Q.IV What is the nature of the satisfaction  required  to  invoke  the

      power under Section 319 Cr.P.C. to arraign  an  accused?  Whether  the

      power under Section 319 (1) Cr.P.C. can be exercised only if the court

      is satisfied that the accused  summoned  will  in  all  likelihood  be

      convicted?

 

      A. Though under Section 319(4)(b)  Cr.P.C.  the  accused  subsequently

      impleaded is to be treated as if he had been an accused when the Court

      initially took cognizance of the offence, the degree  of  satisfaction

      that will be required for summoning a person under Section 319 Cr.P.C.

      would be the same as for ?framing  a  charge.  The  difference  in  the

      degree of satisfaction  for  summoning  the  original  accused  and  a

      subsequent accused is on account of the fact that the trial  may  have

      already commenced against the original accused and it is in the course

      of such trial that materials are disclosed against the newly  summoned

      accused. Fresh summoning of an accused will result  in  delay  of  the

      trial – therefore the degree of satisfaction for summoning the accused

      (original and subsequent) has to be different.

 

      Question No.V

 

      Q.V Does the power under Section 319 Cr.P.C.  extend  to  persons  not

      named in the FIR or named in the FIR but not chargesheeted or who have

      been discharged?

 

      A.    A person not named in the FIR or a person though  named  in  the

      FIR but has not been chargesheeted or a person who has been discharged

      can be summoned under Section 319 Cr.P.C. provided from  the  evidence

      it appears that such person  can  be  tried  along  with  the  accused

      already facing trial. However, in so far as an accused  who  has  been

      discharged is concerned the  requirement  of  ?Sections  300  and   398

      Cr.P.C. has to be complied with before he can be summoned afresh.

 

           The matters be placed before the  appropriate  Bench  for  final

      disposal in accordance with law explained hereinabove.

 

 

 

2014 ( JANUARY – VOL -1) JUDIS.NIC.IN/ S.C. / FILE NAME = 41145

 

 

P SATHASIVAM, B.S. CHAUHAN, RANJANA PRAKASH DESAI, RANJAN GOGOI, S.A. BOBDE

 

REPORTABLE

 
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1750 OF 2008

 
Hardeep Singh
…Appellant

Versus

State of Punjab & Ors.
…Respondents

With

CRIMINAL APPEAL NO. 1751 of 2008

Manjit Pal Singh
…Appellant

Versus

State of Punjab & Anr.
…Respondents

With

SPECIAL LEAVE PETITION (CRL.) NO. 9184 of 2008

Babubhai Bhimabhai Bokhiria & Anr.
…Appellants

 
Versus

State of Gujarat & Ors.
…Respondents

With

 

 

 

SPECIAL LEAVE PETITION (CRL.) NO. 7209 of 2010

Rajendra Sharma & Anr.
…Appellants

 
Versus

State of M.P. & Anr.
…Respondents

With

SPECIAL LEAVE PETITION (CRL.) NO. 5724 of 2009

 
Ravinder Kumar & Anr.
…Appellants

Versus

State of Haryana & Ors.
…Respondents

With

SPECIAL LEAVE PETITION (CRL.) NO. 5975 of 2009

 
Tej Pal & Anr.
…Appellants

Versus

State of Haryana & Ors.
…Respondents

With

SPECIAL LEAVE PETITION (CRL.) NO. 9040 of 2010

Juned Pahalwan
…Appellant

Versus

State of U.P.& Anr.
…Respondents

With

SPECIAL LEAVE PETITION (CRL.) NO. 5331 of 2009

Rajesh @ Sanjai
…Appellant

Versus

State of U.P. & Anr.
…Respondents

With

SPECIAL LEAVE PETITION (CRL.) NO. 9157 of 2009

Ramdhan Mali & Anr.
…Appellants

Versus

State of Rajasthan & Anr.
…Respondents

With

SPECIAL LEAVE PETITION (CRL.) NOS. 4503-4504 of 2012

Tej Singh
…Appellant

Versus

State of U.P.
…Respondent

 

 

 

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This reference before us arises out of a variety of views having
been expressed by this Court and several High Courts of the country on
the scope and extent of the powers of the courts under the criminal
justice system to arraign any person as an accused during the course
of inquiry or trial as contemplated under Section 319 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’).

 
2. The initial reference was made by a two-Judge Bench vide order
dated 7.11.2008 in the leading case of Hardeep Singh (Crl. Appeal No.
1750 of 2008) where noticing the conflict between the judgments in
the case of Rakesh v. State of Haryana, AIR 2001 SC 2521; and a two-
Judge Bench decision in the case of Mohd. Shafi v. Mohd. Rafiq & Anr.,
AIR 2007 SC 1899, a doubt was expressed about the correctness of the
view in the case of Mohd. Shafi (Supra). The doubts as categorised in
paragraphs 75 and 78 of the reference order led to the framing of two
questions by the said Bench which are reproduced hereunder:

“(1) When the power under sub-section (1) of Section 319 of the
Code of addition of accused can be exercised by a Court? Whether
application under Section 319 is not maintainable unless the
cross-examination of the witness is complete?

(2) What is the test and what are the guidelines of exercising
power under sub-section (1) of Section 319 of the Code? Whether
such power can be exercised only if the Court is satisfied that
the accused summoned in all likelihood would be convicted?

 
3. The reference was desired to be resolved by a three-Judge Bench
whereafter the same came up for consideration and vide order dated
8.12.2011, the Court opined that in view of the reference made in the
case of Dharam Pal & Ors. v. State of Haryana & Anr., (2004) 13 SCC 9,
the issues involved being identical in nature, the same should be
resolved by a Constitution Bench consisting of at least five Judges.
The Bench felt that since a three-Judge Bench has already referred the
matter of Dharam Pal (Supra) to a Constitution Bench, then in that
event it would be appropriate that such overlapping issues should also
be resolved by a Bench of similar strength.

 
4. Reference made in the case of Dharam Pal (Supra) came to be
answered in relation to the power of a Court of Sessions to invoke
Section 319 Cr.P.C. at the stage of committal of the case to a Court
of Sessions. The said reference was answered by the Constitution Bench
in the case of Dharam Pal & Ors. v. State of Haryana & Anr., AIR 2013
SC 3018 [hereinafter called ‘Dharam Pal (CB)’], wherein it was held
that a Court of Sessions can with the aid of Section 193 Cr.P.C.
proceed to array any other person and summon him for being tried even
if the provisions of Section 319 Cr.P.C. could not be pressed in
service at the stage of committal.

Thus, after the reference was made by a three-Judge Bench in the
present case, the powers so far as the Court of Sessions is concerned,
to invoke Section 319 Cr.P.C. at the stage of committal, stood
answered finally in the aforesaid background.

 
5. On the consideration of the submissions raised and in view of
what has been noted above, the following questions are to be answered
by this Bench:

?(i) What is the stage at which power under Section 319 Cr.P.C.
can be exercised?

(ii) Whether the word “evidence” used in Section 319(1) Cr.P.C.
could only mean evidence tested by cross-examination or the
court can exercise the power under the said provision even on
the basis of the statement made in the examination-in-chief of
the witness concerned?

(iii) Whether the word “evidence” used in Section 319(1) Cr.P.C.
has been used in a comprehensive sense and includes the evidence
collected during investigation or the word “evidence” is limited
to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke
the power under Section 319 Cr.P.C. to arraign an accused?
Whether the power under Section 319(1) Cr.P.C. can be exercised
only if the court is satisfied that the accused summoned will in
all likelihood convicted?

(v) Does the power under Section 319 Cr.P.C. extend to persons
not named in the FIR or named in the FIR but not charged or who
have been discharged?

 
6. In this reference what we are primarily concerned with, is the
stage at which such powers can be invoked and, secondly, the material
on the basis whereof the invoking of such powers can be justified. To
add as a corollary to the same, thirdly, the manner in which such
power has to be exercised, also has to be considered.

 
7. The Constitutional mandate under Articles 20 and 21 of the
Constitution of India, 1950 (hereinafter referred to as the
‘Constitution’) provides a protective umbrella for the smooth
administration of justice making adequate provisions to ensure a fair
and efficacious trial so that the accused does not get prejudiced
after the law has been put into motion to try him for the offence but
at the same time also gives equal protection to victims and to the
society at large to ensure that the guilty does not get away from the
clutches of law. For the empowerment of the courts to ensure that the
criminal administration of justice works properly, the law was
appropriately codified and modified by the legislature under the
Cr.P.C. indicating as to how the courts should proceed in order to
ultimately find out the truth so that an innocent does not get
punished but at the same time, the guilty are brought to book under
the law. It is these ideals as enshrined under the Constitution and
our laws that have led to several decisions, whereby innovating
methods and progressive tools have been forged to find out the real
truth and to ensure that the guilty does not go unpunished. The
presumption of innocence is the general law of the land as every man
is presumed to be innocent unless proven to be guilty.

 
8. Alternatively, certain statutory presumptions in relation to
certain class of offences have been raised against the accused whereby
the presumption of guilt prevails till the accused discharges his
burden upon an onus being cast upon him under the law to prove himself
to be innocent. These competing theories have been kept in mind by
the legislature. The entire effort, therefore, is not to allow the
real perpetrator of an offence to get away unpunished. This is also a
part of fair trial and in our opinion, in order to achieve this very
end that the legislature thought of incorporating provisions of
Section 319 Cr.P.C.

9. It is with the said object in mind that a constructive and
purposive interpretation should be adopted that advances the cause of
justice and does not dilute the intention of the statute conferring
powers on the court to carry out the above mentioned avowed object and
purpose to try the person to the satisfaction of the court as an
accomplice in the commission of the offence that is subject matter of
trial.

 
10. In order to answer the aforesaid questions posed, it will be
appropriate to refer to Section 351 of the Criminal Procedure Code,
1898 (hereinafter referred to as `Old Code’), where an analogous
provision existed, empowering the court to summon any person other
than the accused if he is found to be connected with the commission of
the offence. However, when the new Cr.P.C. was being drafted, regard
was had to 41st Report of the Law Commission where in the paragraphs
24.80 and 24.81 recommendations were made to make this provision more
comprehensive. The said recommendations read:

“24.80 It happens sometimes, though not very often, that a
Magistrate hearing a case against certain accused finds from the
evidence that some person, other than the accused before him, is
also concerned in that very offence or in a connected offence.
It is proper that Magistrate should have the power to call and
join him in proceedings. Section 351 provides for such a
situation, but only if that person happens to be attending the
Court. He can then be detained and proceeded against. There is
no express provision in Section 351 for summoning such a person
if he is not present in court. Such a provision would make
Section 351 fairly comprehensive, and we think it proper to
expressly provide for that situation.

24.81 Section 351 assumes that the Magistrate proceeding under
it has the power of taking cognizance of the new case. It does
not, however, say in what manner cognizance is taken by the
Magistrate. The modes of taking cognizance are mentioned in
Section 190, and are apparently exhaustive. The question is,
whether against the newly added accused, cognizance

will be
supposed to have been taken on the Magistrates own information
under Section 190(1), or only in the manner in which cognizance
was first taken of the offence against the accused. The question
is important, because the methods of inquiry and trial in the
two cases differ. About the true position under the existing
law, there has been difference of opinion, and we think it
should be made clear. It seems to us that the main purpose of
this particular provision is that the whole case against all
known suspects should be proceeded with expeditiously and
convenience requires that cognizance against the newly added
accused should be taken in the same manner against the other
accused. We, therefore, propose to recast Section 351 making it
comprehensive and providing that there will be no difference in
the mode of taking cognizance if a new person is added as an
accused during the proceedings. It is, of course, necessary (as
is already provided) that in such a situation the evidence must
he reheard in the presence of the newly added accused.”

 
11. Section 319 Cr.P.C. as it exists today, is quoted hereunder:
“319 Cr.P.C. -Power to proceed against other persons appearing
to be guilty of offence.-
(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) 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 aforesaid.
(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 trial of, the offence which he appears to
have committed.
(4) Where the Court proceeds against any person under sub-
section (1), then-
(a) the proceedings in respect of such person shall be commenced
afresh, and the 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 the inquiry or
trial was commenced.”

 
12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur
cum nocens absolvitur (Judge is condemned when guilty is acquitted)
and this doctrine must be used as a beacon light while explaining the
ambit and the spirit underlying the enactment of Section 319 Cr.P.C.

It is the duty of the Court to do justice by punishing the real
culprit. Where the investigating agency for any reason does not array
one of the real culprits as an accused, the court is not powerless in
calling the said accused to face trial. The question remains under
what circumstances and at what stage should the court exercise its
power as contemplated in Section 319 Cr.P.C.?

The submissions that were raised before us covered a very wide
canvas and the learned counsel have taken us through various
provisions of Cr.P.C. and the judgments that have been relied on for
the said purpose. The controversy centers around the stage at which
such powers can be invoked by the court and the material on the basis
whereof such powers can be exercised.

 
13. It would be necessary to put on record that the power conferred
under Section 319 Cr.P.C. is only on the court.

This has to be understood in the context that Section 319
Cr.P.C. empowers only the court to proceed against such person. The
word “court” in our hierarchy of criminal courts has been defined
under Section 6 Cr.P.C., which includes the Courts of Sessions,
Judicial Magistrates, Metropolitan Magistrates as well as Executive
Magistrates. The Court of Sessions is defined in Section 9 Cr.P.C. and
the Courts of Judicial Magistrates has been defined under Section 11
thereof. The Courts of Metropolitan Magistrates has been defined
under Section 16 Cr.P.C. The courts which can try offences committed
under the Indian Penal Code, 1860 or any offence under any other law,
have been specified under Section 26 Cr.P.C. read with First Schedule.
The explanatory note (2) under the heading of “Classification of
Offences” under the First Schedule specifies the expression
‘magistrate of first class’ and ‘any magistrate’ to include
Metropolitan Magistrates who are empowered to try the offences under
the said Schedule but excludes Executive Magistrates.

 
14. It is at this stage the comparison of the words used under
Section 319 Cr.P.C. has to be understood distinctively from the word
used under Section 2(g) defining an inquiry other than the trial by a
magistrate or a court. Here the legislature has used two words, namely
the magistrate or court, whereas under Section 319 Cr.P.C., as
indicated above, only the word “court” has been recited. This has
been done by the legislature to emphasise that the power under Section
319 Cr.P.C. is exercisable only by the court and not by any officer
not acting as a court. Thus, the magistrate not functioning or
exercising powers as a court can make an inquiry in particular
proceeding other than a trial but the material so collected would not
be by a court during the course of an inquiry or a trial. The
conclusion therefore, in short, is that in order to invoke the power
under Section 319 Cr.P.C., it is only a Court of Sessions or a Court
of Magistrate performing the duties as a court under the Cr.P.C. that
can utilise the material before it for the purpose of the said
Section.

 
15. Section 319 Cr.P.C. allows the court to proceed against any
person who is not an accused in a case before it. Thus, the person
against whom summons are issued in exercise of such powers, has to
necessarily not be an accused already facing trial. He can either be a
person named in Column 2 of the chargesheet filed under Section 173
Cr.P.C. or a person whose name has been disclosed in any material
before the court that is to be considered for the purpose of trying
the offence, but not investigated. He has to be a person whose
complicity may be indicated and connected with the commission of the
offence.

 
16. The legislature cannot be presumed to have imagined all the
circumstances and, therefore, it is the duty of the court to give full
effect to the words used by the legislature so as to encompass any
situation which the court may have to tackle while proceeding to try
an offence and not allow a person who deserves to be tried to go scot
free by being not arraigned in the trial in spite of possibility of
his complicity which can be gathered from the documents presented by
the prosecution.

 
17. The court is the sole repository of justice and a duty is cast
upon it to uphold the rule of law and, therefore, it will be
inappropriate to deny the existence of such powers with the courts in
our criminal justice system where it is not uncommon that the real
accused, at times, get away by manipulating the investigating and/or
the prosecuting agency. The desire to avoid trial is so strong that
an accused makes efforts at times to get himself absolved even at the
stage of investigation or inquiry even though he may be connected with
the commission of the offence.

 
18. Coming to the stage at which power under Section 319 Cr.P.C. can
be exercised, in Dharam Pal (Supra), this Court had noticed the
conflict in the decisions of Kishun Singh & Ors v. State of Bihar,
(1993) 2 SCC 16 and Ranjit Singh v. State of Punjab, AIR 1998 SC 3148,
and referred the matter to the Constitution Bench. However, while
referring the matter to a Constitution Bench, this Court affirmed the
judgment in Kishun Singh (Supra) and doubted the correctness of the
judgment in Ranjit Singh (Supra). In Ranjit Singh (Supra), this Court
observed that from the stage of committal till the Sessions Court
reaches the stage indicated in Section 230 Cr.P.C., that court can
deal with only the accused referred to in Section 209 Cr.P.C. and
there is no intermediary stage till then for the Sessions Court to add
any other person to the array of the accused, while in Kishun Singh
(Supra), this Court came to the conclusion that even the Sessions
Court has power under Section 193 Cr.P.C. to take cognizance of the
offence and summon other persons whose complicity in the commission of
the trial can prima facie be gathered from the materials available on
record and need not wait till the stage of Section 319 Cr.P.C. is
reached. This Court in Dharam Pal (Supra) held that the effect of
Ranjit Singh (Supra) would be that in less serious offences triable by
a Magistrate, the said Court would have the power to proceed against
those who are mentioned in Column 2 of the charge-sheet, if on the
basis of material on record, the Magistrate disagrees with the
conclusion reached by the police, but, as far as serious offences
triable by the Court of Sessions are concerned, that court will have
to wait till the stage of Section 319 Cr.P.C. is reached.

 
19. At the very outset, we may explain that the issue that was being
considered by this Court in Dharam Pal (CB), was the exercise of such
power at the stage of committal of a case and the court held that even
if Section 319 Cr.P.C. could not be invoked at that stage, Section 193
Cr.P.C. could be invoked for the said purpose. We are not delving into
the said issue which had been answered by the five-Judge Bench of this
Court. However, we may clarify that the opening words of Section 193
Cr.P.C. categorically recite that the power of the Court of Sessions
to take cognizance would commence only after committal of the case by
a magistrate. The said provision opens with a non-obstante clause
“except as otherwise expressly provided by this code or by any other
law for the time being in force”. The Section therefore is clarified
by the said opening words which clearly means that if there is any
other provision under Cr.P.C., expressly making a provision for
exercise of powers by the court to take cognizance, then the same
would apply and the provisions of Section 193 Cr.P.C. would not be
applicable.

 
20. In our opinion, Section 319 Cr.P.C. is an enabling provision
empowering the court to take appropriate steps for proceeding against
any person not being an accused for also having committed the offence
under trial. It is this part which is under reference before this
Court and therefore in our opinion, while answering the question
referred to herein, we do not find any conflict so as to delve upon
the situation that was dealt by this Court in Dharam Pal (CB).

 
21. In Elachuri Venkatachinnayya & Ors. v. King-Emperor (1920) ILR
43 Mad 511, this Court held that an inquiry is a stage before the
committal to a higher court. In fact, from a careful reading of the
judgments under reference i.e. Ranjit Singh (Supra) and Kishun Singh
(Supra), it emerges that there is no dispute even in these two cases
that the stage of committal is neither an inquiry nor a trial, for in
both the cases, the real dispute was whether Section 193 Cr.P.C. can
be invoked at the time of committal to summon an accused to face trial
who is not already an accused. It can safely be said that both the
cases are in harmony as to the said stage neither being a stage of
inquiry nor a trial.

 
22. Once the aforesaid stand is clarified in relation to the stage
of committal before the Court of Sessions, the answer to the question
posed now, stands focussed only on the stage at which such powers can
be exercised by the court other than the stage of committal and the
material on the basis whereof such powers can be invoked by the court.

 

Question No.(i) What is the stage at which power under Section 319
Cr.P.C. can be exercised?

 
23. The stage of inquiry and trial upon cognizance being taken of an
offence, has been considered by a large number of decisions of this
Court and that it may be useful to extract the same hereunder for
proper appreciation of the stage of invoking of the powers under
Section 319 Cr.P.C. to understand the meaning that can be attributed
to the word ‘inquiry’ and ‘trial’ as used under the Section.

 
24. In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, this
Court held :

“…once cognizance has been taken by the Magistrate, he takes
cognizance of an offence and not the offenders; once he takes
cognizance of an offence it is his duty to find out who the
offenders really are and once he comes to the conclusion that
apart from the persons sent up by the police some other persons
are involved, it is his duty to proceed against those persons.
The summoning of the additional accused is part of the
proceeding initiated by his taking cognizance of an offence.”

 
25. The stage of inquiry commences, insofar as the court is
concerned, with the filing of the charge-sheet and the consideration
of the material collected by the prosecution, that is mentioned in the
charge-sheet for the purpose of trying the accused. This has to be
understood in terms of Section 2(g) Cr.P.C., which defines an inquiry
as follows:

“2(g) “inquiry” means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court.”

 
26. In State of U.P. v. Lakshmi Brahman & Anr., AIR 1983 SC 439,
this Court held that from the stage of filing of charge-sheet to
ensuring the compliance of provision of Section 207 Cr.P.C., the
court is only at the stage of inquiry and no trial can be said to have
commenced. The above view has been held to be per incurium in Raj
Kishore Prasad v. State of Bihar & Anr., AIR 1996 SC 1931, wherein
this Court while observing that Section 319 (1) Cr.P.C. operates in an
ongoing inquiry into, or trial of, an offence, held that at the stage
of Section 209 Cr.P.C., the court is neither at the stage of inquiry
nor at the stage of trial. Even at the stage of ensuring compliance of
Sections 207 and 208 Cr.P.C., it cannot be said that the court is at
the stage of inquiry because there is no judicial application of mind
and all that the Magistrate is required to do is to make the case
ready to be heard by the Court of Sessions.

 
27. Trial is distinct from an inquiry and must necessarily succeed
it. The purpose of the trial is to fasten the responsibility upon a
person on the basis of facts presented and evidence led in this
behalf. In Moly & Anr. v. State of Kerala, AIR 2004 SC 1890, this
Court observed that though the word ‘trial’ is not defined in the
Code, it is clearly distinguishable from inquiry. Inquiry must always
be a forerunner to the trial. A three-Judge Bench of this Court in The
State of Bihar v. Ram Naresh Pandey & Anr., AIR 1957 SC 389 held:

“The words ‘tried’ and ‘trial’ appear to have no fixed or
universal meaning. No doubt, in quite a number of sections in
the Code to which our attention has been drawn the words ‘tried’
and ‘trial’ have been used in the sense of reference to a stage
after the inquiry. That meaning attaches to the words in those
sections having regard to the context in which they are used.
There is no reason why where these words are used in another
context in the Code, they should necessarily be limited in their
connotation and significance. They are words which must be
considered with regard to the particular context in which they
are used and with regard to the scheme and purpose of the
provision under consideration.”
(Emphasis added)

 
28. In Ratilal Bhanji Mithani v. State of Maharashtra & Ors., AIR
1979 SC 94, this Court held :

“Once a charge is framed, the Magistrate has no power under
Section 227 or any other provision of the Code to cancel the
charge, and reverse the proceedings to the stage of Section 253
and discharge the accused. The trial in a warrant case starts
with the framing of charge; prior to it the proceedings are only
an inquiry. After the framing of charge if the accused pleads
not guilty, the Magistrate is required to proceed with the trial
in the manner provided in Sections 254 to 258 to a logical end.”
(Emphasis
added)

 
29. In V.C. Shukla v. State through C.B.I., AIR 1980 SC 962, this
Court held:

“…The proceedings starting with Section 238 of the Code
including any discharge or framing of charges under Section 239
or 240 amount to a trial…”

 
30. In Union of India & Ors. v. Major General Madan Lal Yadav
(Retd.), AIR 1996 SC 1340, a three-Judge Bench while dealing with the
proceedings in General Court Martial under the provisions of the Army
Act 1950, applied legal maxim “nullus commodum capere potest de
injuria sua propria” (no one can take advantage of his own wrong), and
referred to various dictionary meanings of the word ‘trial’ and came
to the conclusion:

“It would, therefore, be clear that trial means act of proving
or judicial examination or determination of the issues including
its own jurisdiction or authority in accordance with law or
adjudging guilt or innocence of the accused including all steps
necessary thereto. The trial commences with the performance of
the first act or steps necessary or essential to proceed with
the trial.
(Emphasis supplied)

X X X X

Our conclusion further gets fortified by the scheme of the trial
of a criminal case under the Code of Criminal Procedure, 1973,
viz., Chapter XIV “Conditions requisite for initiation of
proceedings” containing Sections 190 to 210, Chapter XVIII
containing Sections 225 to 235 and dealing with “trial before a
Court of Sessions” pursuant to committal order under Section 209
and in Chapter XIX “trial of warrant cases by Magistrates”
containing Sections 238 to 250 etc. It is settled law that under
the said Code trial commences the moment cognizance of the
offence is taken and process is issued to the accused for his
appearance etc. Equally, at a sessions trial, the court
considers the committal order under Section 209 by the
Magistrate and proceeds further. It takes cognizance of the
offence from that stage and proceeds with the trial. The trial
begins with the taking of the cognizance of the offence and
taking further steps to conduct the trial.”
(Emphasis supplied)

 
31. In “Common Cause”, A Registered Society thr. its Director v.
Union of India & Ors., AIR 1997 SC 1539, this Court while dealing with
the issue held:

“(i) In case of trials before Sessions Court the trials shall
be treated to have commenced when charges are framed under
Section 228 of the Code of Criminal Procedure, 1973 in the
concerned cases.

ii) In cases of trials of warrant cases by Magistrates if the
cases are instituted upon police reports the trials shall
be treated to have commenced when charges are framed under
Section 240 of the Code of Criminal Procedure, 1973, while
in trials of warrant cases by Magistrates when cases are
instituted otherwise than on police report such trials
shall be treated to have commenced when charges are framed
against the concerned accused under Section 246 of the Code
of Criminal Procedure, 1973.
iii) In cases of trials of summons cases by Magistrates the
trials would be considered to have commenced when the
accused who appear or are brought before the Magistrate are
asked under Section 251 whether they plead guilty or have
any defence to make.”

(Emphasis added)

 

32. In Raj Kishore Prasad (Supra), this Court said that as soon as
the prosecutor is present before the court and that court hears the
parties on framing of charges and discharge, trial is said to have
commenced and that there is no intermediate stage between committal of
case and framing of charge.

 
33. In In Re: Narayanaswamy Naidu v. Unknown 1 Ind Cas 228, a Full
Bench of the Madras High Court held that “Trial begins when the
accused is charged and called on to answer and then the question
before the Court is whether the accused is to be acquitted or
convicted and not whether the complaint is to be dismissed or the
accused discharged.” A similar view has been taken by Madras High
Court subsequently in Sriramulu v. Veerasalingam, (1914) I.L.R. 38
Mad. 585.

34. However, the Bombay High Court in Dagdu Govindshet Wani v. Punja
Vedu Wani (1936) 38 Bom.L.R. 1189 referring to Sriramulu (Supra) held
:

“There is no doubt that the Court did take the view that in a
warrant case the trial only commences from the framing of the
charge …..But, according to my experience of the administration
of criminal justice in this Presidency, which is not
inconsiderable, the Courts here have always accepted the
definition of trial which has been given in Gomer Sirda v. Queen-
Empress, (1898) I.L.R. 25 Cal. 863, that is to say, trial has
always been understood to mean the proceeding which commences
when the case is called on with the Magistrate on the Bench, the
accused in the dock and the representatives of the prosecution
and, defence, if the accused be defended, present in Court for
the hearing of the case.”

 
A similar view has been taken by the Lahore High Court in Sahib
Din v. The Crown, (1922) I.L.R. 3 Lah. 115, wherein it was held that
for the purposes of Section 350 of the Code, a trial cannot be said to
commence only when a charge is framed. The trial covers the whole of
the proceedings in a warrant case. This case was followed in
Fakhruddin v. The Crown, (1924) I.L.R. 6 Lah. 176; and in Labhsing v.
Emperor, (1934) 35 Cr.L. J. 1261.

35. In view of the above, the law can be summarised to the effect
that as ‘trial’ means determination of issues adjudging the guilt or
the innocence of a person, the person has to be aware of what is the
case against him and it is only at the stage of framing of the charges
that the court informs him of the same, the ‘trial’ commences only on
charges being framed. Thus, we do not approve the view taken by the
courts that in a criminal case, trial commences on cognizance being
taken.

 
36. Section 2(g) Cr.P.C. and the case laws referred to above,
therefore, clearly envisage inquiry before the actual commencement of
the trial, and is an act conducted under Cr.P.C. by the Magistrate or
the court. The word ‘inquiry’ is, therefore, not any inquiry relating
to the investigation of the case by the investigating agency but is an
inquiry after the case is brought to the notice of the court on the
filing of the charge-sheet. The court can thereafter proceed to make
inquiries and it is for this reason that an inquiry has been given to
mean something other than the actual trial.

 
37. Even the word “course” occurring in Section 319 Cr.P.C.,
clearly indicates that the power can be exercised only during the
period when the inquiry has been commenced and is going on or the
trial which has commenced and is going on. It covers the entire wide
range of the process of the pre-trial and the trial stage. The word
“course” therefore, allows the court to invoke this power to proceed
against any person from the initial stage of inquiry upto the stage of
the conclusion of the trial. The court does not become functus
officio even if cognizance is taken so far as it is looking into the
material qua any other person who is not an accused. The word
“course” ordinarily conveys a meaning of a continuous progress from
one point to the next in time and conveys the idea of a period of
time; duration and not a fixed point of time. (See: Commissioner of
Income-tax, New Delhi (Now Rajasthan) v. M/s. East West Import &
Export (P) Ltd. (Now known as Asian Distributors Ltd.) Jaipur, AIR
1989 SC 836).

 
38. In a somewhat similar manner, it has been attributed to word
“course” the meaning of being a gradual and continuous flow advanced
by journey or passage from one place to another with reference to
period of time when the movement is in progress. (See: State of
Travancore-Cochin & Ors. v. Shanmugha Vilas Cashewnut Factory, Quilon,
AIR 1953 SC 333).

 
39. To say that powers under Section 319 Cr.P.C. can be exercised
only during trial would be reducing the impact of the word ‘inquiry’
by the court. It is a settled principle of law that an interpretation
which leads to the conclusion that a word used by the legislature is
redundant, should be avoided as the presumption is that the
legislature has deliberately and consciously used the words for
carrying out the purpose of the Act. The legal maxim “A Verbis Legis
Non Est Recedendum” which means, “from the words of law, there must be
no departure” has to be kept in mind.

 
40. The court cannot proceed with an assumption that the legislature
enacting the statute has committed a mistake and where the language of
the statute is plain and unambiguous, the court cannot go behind the
language of the statute so as to add or subtract a word playing the
role of a political reformer or of a wise counsel to the legislature.
The court has to proceed on the footing that the legislature intended
what it has said and even if there is some defect in the phraseology
etc., it is for others than the court to remedy that defect. The
statute requires to be interpreted without doing any violence to the
language used therein. The court cannot re-write, recast or reframe
the legislation for the reason that it has no power to legislate.

 
41. No word in a statute has to be construed as surplusage. No word
can be rendered ineffective or purposeless. Courts are required to
carry out the legislative intent fully and completely. While
construing a provision, full effect is to be given to the language
used therein, giving reference to the context and other provisions of
the Statute. By construction, a provision should not be reduced to a
“dead letter” or “useless lumber”. An interpretation which renders a
provision an otiose should be avoided otherwise it would mean that in
enacting such a provision, the legislature was involved in “an
exercise in futility” and the product came as a “purposeless piece” of
legislation and that the provision had been enacted without any
purpose and the entire exercise to enact such a provision was “most
unwarranted besides being uncharitable.” (Vide: Patel Chunibhai
Dajibha etc. v. Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC
1457; The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC
529; M.V. Elisabeth & Ors. v. Harwan Investment & Trading Pvt. Ltd.
Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, AIR 1993 SC 1014;
Sultana Begum v. Prem Chand Jain, AIR 1997 SC 1006; State of Bihar &
Ors. etc.etc. v. Bihar Distillery Ltd. etc. etc., AIR 1997 SC 1511;
Institute of Chartered Accountants of India v. M/s. Price Waterhouse &
Anr., AIR 1998 SC 74; and The South Central Railway Employees Co-
operative Credit Society Employees Union, Secundrabad v. The Registrar
of Co-operative Societies & Ors., AIR 1998 SC 703).
42. This Court in Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors.,
AIR 2013 SC 30, after placing reliance on various earlier judgments of
this Court held:

“The Court has to keep in mind the fact that, while interpreting
the provisions of a Statute, it can neither add, nor subtract
even a single word… A section is to be interpreted by reading
all of its parts together, and it is not permissible, to omit
any part thereof. The Court cannot proceed with the assumption
that the legislature, while enacting the Statute has committed a
mistake; it must proceed on the footing that the legislature
intended what it has said; even if there is some defect in the
phraseology used by it in framing the statute, and it is not
open to the court to add and amend, or by construction, make up
for the deficiencies, which have been left in the Act……The
Statute is not to be construed in light of certain notions that
the legislature might have had in mind, or what the legislature
is expected to have said, or what the legislature might have
done, or what the duty of the legislature to have said or done
was. The Courts have to administer the law as they find it, and
it is not permissible for the Court to twist the clear language
of the enactment, in order to avoid any real, or imaginary
hardship which such literal interpretation may cause…….under the
garb of interpreting the provision, the Court does not have the
power to add or subtract even a single word, as it would not
amount to interpretation, but legislation.”

 

Thus, by no means it can be said that provisions of Section 319
Cr.P.C. cannot be pressed into service during the course of ‘inquiry’.
The word ‘inquiry’ is not surpulsage in the said provision.
43. Since after the filing of the charge-sheet, the court reaches
the stage of inquiry and as soon as the court frames the charges, the
trial commences, and therefore, the power under Section 319(1) Cr.P.C.
can be exercised at any time after the charge-sheet is filed and
before the pronouncement of judgment, except during the stage of
Section 207/208 Cr.P.C., committal etc., which is only a pre-trial
stage, intended to put the process into motion. This stage cannot be
said to be a judicial step in the true sense for it only requires an
application of mind rather than a judicial application of mind.

 
44. At this pre-trial stage, the Magistrate is required to perform
acts in the nature of administrative work rather than judicial such as
ensuring compliance of Sections 207 and 208 Cr.P.C., and committing
the matter if it is exclusively triable by Sessions Court. Therefore,
it would be legitimate for us to conclude that the Magistrate at the
stage of Sections 207 to 209 Cr.P.C. is forbidden, by express
provision of Section 319 Cr.P.C., to apply his mind to the merits of
the case and determine as to whether any accused needs to be added or
subtracted to face trial before the Court of Sessions.
45. It may be pertinent to refer to the decision in the case of Raj
Kishore Prasad (supra) where, in order to avoid any delay in trial,
the court emphasised that such a power should be exercised keeping in
view the context in which the words “inquiry” and “trial” have been
used under Section 319 Cr.P.C. and came to the conclusion that such a
power is not available at the pre-trial stage and should be invoked
only at the stage of inquiry or after evidence is recorded.
46. A two-Judge Bench of this Court in M/s. SWIL Ltd. v. State of
Delhi & Anr., AIR 2001 SC 2747, held that once the process has been
issued, power under Section 319 Cr.P.C. cannot be exercised as at
that stage, since it is neither an inquiry nor a trial.
In Ranjit Singh (Supra), the Court held :
“So from the stage of committal till the Sessions Court reaches
the stage indicated in Section 230 of the Code, that court can
deal with only the accused referred to in Section 209 of the
Code. There is no intermediary stage till then for the Sessions
Court to add any other person to the array of the accused.
Thus, once the Sessions Court takes cognizance of the offence
pursuant to the committal order, the only other stage when the
court is empowered to add any other person to the array of the
accused is after reaching evidence collection when powers under
Section 319 of the Code can be invoked”

 
47. In Kishun Singh (Supra), the Court while considering the
provision of the old Code, the Law Commission’s Recommendation and the
provisions in the Cr.P.C., held that Section 319 Cr.P.C. is an
improved provision upon the earlier one. It has removed the difficulty
of taking cognizance as cognizance against the added person would be
deemed to have been taken as originally against the other co-accused.
Therefore, on Magistrate committing the case under Section 209 Cr.P.C.
to the Court of Sessions, the bar of Section 193 Cr.P.C. gets lifted
thereby investing the Court of Sessions complete and unfettered
jurisdiction of the court of original jurisdiction to take cognizance
of the offence which would include the summoning of the person or
persons whose complicity in the commission of the crime can prima
facie be gathered from the material available on record, though who is
not an accused before the court.

 

48. In Dharam Pal (CB), the Constitution Bench approved the decision
in Kishun Singh (Supra) that the Sessions Judge has original power to
summon accused holding that “the Sessions Judge was entitled to issue
summons under Section 193 Code of Criminal Procedure upon the case
being committed to him by the Magistrate. The key words in Section 193
are that “no Court of Session shall take cognizance of any offence as
a Court of original jurisdiction unless the case has been committed to
it by a Magistrate under this Code.” The above provision entails that
a case must, first of all, be committed to the Court of Session by the
Magistrate. The second condition is that only after the case had been
committed to it, could the Court of Session take cognizance of the
offence exercising original jurisdiction. Although, an attempt has
been made to suggest that the cognizance indicated in
Section 193 deals not with cognizance of an offence, but of the
commitment order passed by the learned Magistrate, we are not inclined
to accept such a submission in the clear wordings of Section 193 that
the Court of Session may take cognizance of the offences under the
said Section”

 

49. It is thus aptly clear that until and unless the case reaches
the stage of inquiry or trial by the court, the power under Section
319 Cr.P.C. cannot be exercised. In fact, this proposition does not
seem to have been disturbed by the Constitution Bench in Dharam Pal
(CB). The dispute therein was resolved visualizing a situation wherein
the court was concerned with procedural delay and was of the opinion
that the Sessions Court should not necessarily wait till the stage of
Section 319 Cr.P.C. is reached to direct a person, not facing trial,
to appear and face trial as an accused. We are in full agreement with
the interpretation given by the Constitution Bench that Section 193
Cr.P.C. confers power of original jurisdiction upon the Sessions Court
to add an accused once the case has been committed to it.

 

50. In our opinion, the stage of inquiry does not contemplate any
evidence in its strict legal sense, nor the legislature could have
contemplated this inasmuch as the stage for evidence has not yet
arrived. The only material that the court has before it is the
material collected by the prosecution and the court at this stage
prima facie can apply its mind to find out as to whether a person, who
can be an accused, has been erroneously omitted from being arraigned
or has been deliberately excluded by the prosecuting agencies. This
is all the more necessary in order to ensure that the investigating
and the prosecuting agencies have acted fairly in bringing before the
court those persons who deserve to be tried and to prevent any person
from being deliberately shielded when they ought to have been tried.
This is necessary to usher faith in the judicial system whereby the
court should be empowered to exercise such powers even at the stage of
inquiry and it is for this reason that the legislature has consciously
used separate terms, namely, inquiry or trial in Section 319 Cr.P.C.

Accordingly, we hold that the court can exercise the power under
Section 319 Cr.P.C. only after the trial proceeds and commences with
the recording of the evidence and also in exceptional circumstances as
explained herein above.

 

51. There is yet another set of provisions which form part of
inquiry relevant for the purposes of Section 319 Cr.P.C. i.e.
provisions of Sections 200, 201, 202, etc. Cr.P.C. applicable in the
case of Complaint Cases. As has been discussed herein, evidence means
evidence adduced before the court. Complaint Cases is a distinct
category of criminal trial where some sort of evidence in the strict
legal sense of Section 3 of the Evidence Act 1872, (hereinafter
referred to as the ‘Evidence Act’) comes before the court. There does
not seem to be any restriction in the provisions of Section 319
Cr.P.C. so as to preclude such evidence as coming before the court in
Complaint Cases even before charges have been framed or the process
has been issued. But at that stage as there is no accused before the
Court, such evidence can be used only to corroborate the evidence
recorded during the trial for the purpose of Section 319 Cr.P.C., if
so required.
52. What is essential for the purpose of the section is that there
should appear some evidence against a person not proceeded against and
the stage of the proceedings is irrelevant. Where the complainant is
circumspect in proceeding against several persons, but the court is of
the opinion that there appears to be some evidence pointing to the
complicity of some other persons as well, Section 319 Cr.P.C. acts as
an empowering provision enabling the court/Magistrate to initiate
proceedings against such other persons. The purpose of Section 319
Cr.P.C. is to do complete justice and to ensure that persons who ought
to have been tried as well are also tried. Therefore, there does not
appear to be any difficulty in invoking powers of Section 319 Cr.P.C.
at the stage of trial in a complaint case when the evidence of the
complainant as well as his witnesses is being recorded.

 

53. Thus, the application of the provisions of Section 319 Cr.P.C.,
at the stage of inquiry is to be understood in its correct
perspective. The power under Section 319 Cr.P.C. can be exercised only
on the basis of the evidence adduced before the court during a trial.
So far as its application during the course of inquiry is concerned,
it remains limited as referred to hereinabove, adding a person as an
accused, whose name has been mentioned in Column 2 of the charge sheet
or any other person who might be an accomplice.

Question No.(iii) : Whether the word “evidence” used in Section 319(1)
Cr.P.C. has been used in a comprehensive sense and includes the
evidence collected during investigation or the word “evidence” is
limited to the evidence recorded during trial?

 
54. To answer the questions and to resolve the impediment that is
being faced by the trial courts in exercising of powers under Section
319 Cr.P.C., the issue has to be investigated by examining the
circumstances which give rise to a situation for the court to invoke
such powers. The circumstances that lead to such inference being drawn
up by the court for summoning a person arise out of the availability
of the facts and material that comes up before the court and are made
the basis for summoning such a person as an accomplice to the offence
alleged to have been committed. The material should disclose the
complicity of the person in the commission of the offence which has to
be the material that appears from the evidence during the course of
any inquiry into or trial of offence. The words as used in Section 319
Cr.P.C. indicate that the material has to be “where ….it appears from
the evidence” before the court.

 
55. Before we answer this issue, let us examine the meaning of the
word ‘evidence’. According to Section 3 of the Evidence Act,
‘evidence’ means and includes:

(1) all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact
under inquiry; such statements are called oral evidence;

(2)  all documents including electronic records produced for
the inspection of the Court, such statements are called
documentary evidence;

 
56. According to Tomlin’s Law Dictionary, Evidence is “the means
from which an inference may logically be drawn as to the existence of
a fact. It consists of proof by testimony of witnesses, on oath; or by
writing or records.” Bentham defines ‘evidence’ as “any matter of
fact, the effect, tendency or design of which presented to mind, is to
produce in the mind a persuasion concerning the existence of some
other matter of fact- a persuasion either affirmative or
disaffirmative of its existence. Of the two facts so connected, the
latter may be distinguished as the principal fact, and the former as
the evidentiary fact.” According to Wigmore on Evidence, evidence
represents “any knowable fact or group of facts, not a legal or a
logical principle, considered with a view to its being offered before
a legal tribunal for the purpose of producing a persuasion, positive
or negative, on the part of the tribunal, as to the truth of a
proposition, not of law, or of logic, on which the determination of
the tribunal is to be asked.”

57. The provision and the above-mentioned definitions clearly
suggest that it is an exhaustive definition. Wherever the words
“means and include” are used, it is an indication of the fact that the
definition ‘is a hard and fast definition’, and no other meaning can
be assigned to the expression that is put down in the definition. It
indicates an exhaustive explanation of the meaning which, for the
purposes of the Act, must invariably be attached to these words or
expression. (Vide: M/s. Mahalakshmi Oil Mills v. State of A.P., AIR
1989 SC 335; Punjab Land Development and Reclamation Corporation Ltd.,
Chandigarh v. Presiding Officer, Labour Court, Chandigarh & Ors.,
(1990) 3 SCC 682; P. Kasilingam & Ors. v. P.S.G. College of Technology
& Ors., AIR 1995 SC 1395; Hamdard (Wakf) Laboratories v. Dy. Labour
Commissioner & Ors., AIR 2008 SC 968; and Ponds India Ltd. (merged
with H.L. Limited) v. Commissioner of Trade Tax, Lucknow, (2008) 8
SCC 369).

 
58. In Feroze N. Dotivala v. P.M. Wadhwani & Ors., (2003) 1 SCC 433,
dealing with a similar issue, this Court observed as under:

“Generally, ordinary meaning is to be assigned to any word
or phrase used or defined in a statute. Therefore, unless there
is any vagueness or ambiguity, no occasion will arise to
interpret the term in a manner which may add something to the
meaning of the word which ordinarily does not so mean by the
definition itself, more particularly, where it is a restrictive
definition. Unless there are compelling reasons to do so,
meaning of a restrictive and exhaustive definition would not be
expanded or made extensive to embrace things which are strictly
not within the meaning of the word as defined.”

 
We, therefore proceed to examine the matter further on the
premise that the definition of word “evidence” under the Evidence Act
is exhaustive.

 
59. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., AIR 2011 SC
760, while dealing with the issue this Court held :

“18. The word “evidence” is used in common parlance in three
different senses: (a) as equivalent to relevant, (b) as
equivalent to proof, and (c) as equivalent to the material, on
the basis of which courts come to a conclusion about the
existence or non-existence of disputed facts. Though, in the
definition of the word “evidence” given in Section 3 of the
Evidence Act one finds only oral and documentary evidence, this
word is also used in phrases such as best evidence,
circumstantial evidence, corroborative evidence, derivative
evidence, direct evidence, documentary evidence, hearsay
evidence, indirect evidence, oral evidence, original evidence,
presumptive evidence, primary evidence, real evidence, secondary
evidence, substantive evidence, testimonial evidence, etc.”

 
60. In relation to a Civil Case, this court in Ameer Trading
Corporation Ltd. v. Shapoorji Data Processing Ltd., AIR 2004 SC 355,
held that the examination of a witness would include evidence-in-
chief, cross-examination or re-examination. In Omkar Namdeo Jadhao &
Ors v. Second Additional Sessions Judge Buldana & Anr., AIR 1997 SC
331; and Ram Swaroop & Ors. v. State of Rajasthan, AIR 2004 SC 2943,
this Court held that statements recorded under Section 161 Cr.P.C.
during the investigation are not evidence. Such statements can be
used at the trial only for contradictions or omissions when the
witness is examined in the court.

(See also: Podda Narayana & Ors. v. State of A.P., AIR 1975 SC 1252;
Sat Paul v. Delhi Administration, AIR 1976 SC 294; and State (Delhi
Administration) v. Laxman Kumar & Ors., AIR 1986 SC 250).
61. In Lok Ram v. Nihal Singh & Anr., AIR 2006 SC 1892, it was held
that it is evident that a person, even though had initially been named
in the FIR as an accused, but not charge-sheeted, can also be added as
an accused to face the trial. The trial court can take such a step to
add such persons as accused only on the basis of evidence adduced
before it and not on the basis of materials available in the charge-
sheet or the case diary, because such materials contained in the
charge-sheet or the case diary do not constitute evidence.
62. The majority view of the Constitution Bench in Ramnarayan Mor &
Anr. v. The State of Maharashtra, AIR 1964 SC 949 has been as under:
“9. It was urged in the alternative by counsel for the
appellants that even if the expression “evidence” may include
documents, such documents would only be those which are duly
proved at the enquiry for commitment, because what may be used
in a trial, civil or criminal, to support the judgment of a
Court is evidence duly proved according to law. But by the
Evidence Act which applies to the trial of all criminal cases,
the expression “evidence” is defined in Section 3 as meaning and
including all statements which the Court permits or requires to
be made before it by witnesses, in relation to matters of fact
under enquiry and documents produced for the inspection of the
Court. There is no restriction in this definition to documents
which are duly proved by evidence.”
(Emphasis added)

 

63. Similarly, this Court in Sunil Mehta & Anr. v. State of Gujarat
& Anr., JT 2013 (3) SC 328, held that “It is trite that evidence
within the meaning of the Evidence Act and so also within the meaning
of Section 244 of the Cr.P.C. is what is recorded in the manner
stipulated under Section 138 in the case of oral evidence. Documentary
evidence would similarly be evidence only if the documents are proved
in the manner recognised and provided for under the Evidence Act
unless of course a statutory provision makes the document admissible
as evidence without any formal proof thereof.”
64. In Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr.,
AIR 2008 SC 95, this Court held that in exercise of the powers under
Section 319 Cr.P.C., the court can add a new accused only on the basis
of evidence adduced before it and not on the basis of materials
available in the charge sheet or the case diary.
65. In Kishun Singh (Supra), this Court held :
“11. On a plain reading of sub-section (1) of Section 319 there
can be no doubt that it must appear from the evidence tendered
in the course of any inquiry or trial that any person not being
the accused has committed any offence for which he could be
tried together with the accused. This power (under Section
319(1)), it seems clear to us, can be exercised only if it so
appears from the evidence at the trial and not otherwise.
Therefore, this sub-section contemplates existence of some
evidence appearing in the course of trial wherefrom the court
can prima facie conclude that the person not arraigned before it
is also involved in the commission of the crime for which he can
be tried with those already named by the police. Even a person
who has earlier been discharged would fall within the sweep of
the power conferred by S. 319 of the Code. Therefore, stricto
sensu, Section 319 of the Code cannot be invoked in a case like
the present one where no evidence has been led at a trial
wherefrom it can be said that the appellants appear to have been
involved in the commission of the crime along with those already
sent up for trial by the prosecution.

12. But then it must be conceded that Section 319 covers the
post-cognizance stage where in the course of an inquiry or trial
the involvement or complicity of a person or persons not named
by the investigating agency has surfaced which necessitates the
exercise of the discretionary power conferred by the said
provision…..”

 

66. A similar view has been taken by this Court in Raj Kishore
Prasad (Supra), wherein it was held that in order to apply Section 319
Cr.P.C., it is essential that the need to proceed against the person
other than the accused appearing to be guilty of offence arises only
on evidence recorded in the course of an inquiry or trial.
67. In Lal Suraj @ Suraj Singh & Anr. v. State of Jharkhand, (2009)
2 SCC 696, a two-Judge Bench of this Court held that “a court framing
a charge would have before it all the materials on record which were
required to be proved by the prosecution. In a case where, however,
the court exercises its jurisdiction under Section 319 Cr.P.C., the
power has to be exercised on the basis of the fresh evidence brought
before the court. There lies a fine but clear distinction.”

 
68. A similar view has been reiterated by this Court in Rajendra
Singh v. State of U.P. & Anr., AIR 2007 SC 2786, observing that court
should not exercise the power under Section 319 Cr.P.C. on the basis
of materials available in the charge-sheet or the case diary, because
such materials contained in the charge-sheet or the case diary do not
constitute evidence. The word ‘evidence’ in Section 319 Cr.P.C.
contemplates the evidence of witnesses given in the court.

 
69. Ordinarily, it is only after the charges are framed that the
stage of recording of evidence is reached. A bare perusal of Section
227 Cr.P.C. would show that the legislature has used the terms “record
of the case” and the “documents submitted therewith”. It is in this
context that the word ‘evidence’ as appearing in Section 319 Cr.P.C.
has to be read and understood. The material collected at the stage of
investigation can at best be used for a limited purpose as provided
under Section 157 of the Evidence Act i.e. to corroborate or
contradict the statements of the witnesses recorded before the court.
Therefore, for the exercise of power under Section 319 Cr.P.C., the
use of word `evidence’ means material that has come before the court
during an inquiry or trial by it and not otherwise. If from the
evidence led in the trial the court is of the opinion that a person
not accused before it has also committed the offence, it may summon
such person under Section 319 Cr.P.C.
70. With respect to documentary evidence, it is sufficient, as can
be seen from a bare perusal of Section 3 of the Evidence Act as well
as the decision of the Constitution Bench, that a document is required
to be produced and proved according to law to be called evidence.
Whether such evidence is relevant, irrelevant, admissible or
inadmissible, is a matter of trial.

71. It is, therefore, clear that the word “evidence” in Section 319
Cr.P.C. means only such evidence as is made before the court, in
relation to statements, and as produced before the court, in relation
to documents. It is only such evidence that can be taken into account
by the Magistrate or the Court to decide whether power under Section
319 Cr.P.C. is to be exercised and not on the basis of material
collected during investigation.

 

72. The inquiry by the court is neither attributable to the
investigation nor the prosecution, but by the court itself for
collecting information to draw back a curtain that hides something
material. It is the duty of the court to do so and therefore the power
to perform this duty is provided under the Cr.P.C.

 
73. The unveiling of facts other than the material collected during
investigation before the magistrate or court before trial actually
commences is part of the process of inquiry. Such facts when recorded
during trial are evidence. It is evidence only on the basis whereof
trial can be held, but can the same definition be extended for any
other material collected during inquiry by the magistrate or court for
the purpose of Section 319 Cr.P.C.?

 
74. An inquiry can be conducted by the magistrate or court at any
stage during the proceedings before the court. This power is preserved
with the court and has to be read and understood accordingly. The
outcome of any such exercise should not be an impediment in the speedy
trial of the case.

 
75. Though the facts so received by the magistrate or the court may
not be evidence, yet it is some material that makes things clear and
unfolds concealed or deliberately suppressed material that may
facilitate the trial. In the context of Section 319 Cr.P.C. it is an
information of complicity. Such material therefore, can be used even
though not an evidence in stricto sensuo, but an information on record
collected by the court during inquiry itself, as a prima facie
satisfaction for exercising the powers as presently involved.

 
76. This pre-trial stage is a stage where no adjudication on the
evidence of the offences involved takes place and therefore, after the
material alongwith the charge-sheet has been brought before the court,
the same can be inquired into in order to effectively proceed with
framing of charges. After the charges are framed, the prosecution is
asked to lead evidence and till that is done, there is no evidence
available in the strict legal sense of Section 3 of the Evidence Act.
The actual trial of the offence by bringing the accused before the
court has still not begun. What is available is the material that has
been submitted before the court along with the charge-sheet. In such
situation, the court only has the preparatory material that has been
placed before the court for its consideration in order to proceed with
the trial by framing of charges.

 
77. It is, therefore, not any material that can be utilised, rather
it is that material after cognizance is taken by a court, that is
available to it while making an inquiry into or trying an offence,
that the court can utilize or take into consideration for supporting
reasons to summon any person on the basis of evidence adduced before
the Court, who may be on the basis of such material, treated to be an
accomplice in the commission of the offence. The inference that can
be drawn is that material which is not exactly evidence recorded
before the court, but is a material collected by the court, can be
utilised to corroborate evidence already recorded for the purpose of
summoning any other person, other than the accused.

 
78. This would harmonise such material with the word ‘evidence’ as
material that would be supportive in nature to facilitate the
exposition of any other accomplice whose complicity in the offence may
have either been suppressed or escaped the notice of the court.

 
79. The word “evidence” therefore has to be understood in its wider
sense both at the stage of trial and, as discussed earlier, even at
the stage of inquiry, as used under Section 319 Cr.P.C. The court,
therefore, should be understood to have the power to proceed against
any person after summoning him on the basis of any such material as
brought forth before it. The duty and obligation of the court becomes
more onerous to invoke such powers cautiously on such material after
evidence has been led during trial.
80. In view of the discussion made and the conclusion drawn
hereinabove, the answer to the aforesaid question posed is that apart
from evidence recorded during trial, any material that has been
received by the court after cognizance is taken and before the trial
commences, can be utilised only for corroboration and to support the
evidence recorded by the court to invoke the power under Section 319
Cr.P.C. The ‘evidence’ is thus, limited to the evidence recorded
during trial.
Q.(ii) Does the word ‘evidence’ in Section 319 Cr.P.C. means as
arising in Examination-in-Chief or also together with Cross-
Examination?
81. The second question referred to herein is in relation to the
word `evidence` as used under Section 319 Cr.P.C., which leaves no
room for doubt that the evidence as understood under Section 3 of the
Evidence Act is the statement of the witnesses that are recorded
during trial and the documentary evidence in accordance with the
Evidence Act, which also includes the document and material evidence
in the Evidence Act. Such evidence begins with the statement of the
prosecution witnesses, therefore, is evidence which includes the
statement during examination-in-chief. In Rakesh (Supra), it was held
that “It is true that finally at the time of trial the accused is to
be given an opportunity to cross-examine the witness to test its
truthfulness. But that stage would not arise while exercising the
court’s power under Section 319 CrPC. Once the deposition is recorded,
no doubt there being no cross-examination, it would be a prima facie
material which would enable the Sessions Court to decide whether
powers under Section 319 should be exercised or not.” In Ranjit Singh
(Supra), this Court held that “it is not necessary for the court to
wait until the entire evidence is collected,” for exercising the said
power. In Mohd. Shafi (Supra), it was held that the pre-requisite for
exercise of power under Section 319 Cr.P.C. was the satisfaction of
the court to proceed against a person who is not an accused but
against whom evidence occurs, for which the court can even wait till
the cross examination is over and that there would be no illegality in
doing so. A similar view has been taken by a two-Judge Bench in the
case of Harbhajan Singh & Anr. v. State of Punjab & Anr. (2009) 13 SCC
608. This Court in Hardeep Singh (Supra) seems to have misread the
judgment in Mohd. Shafi (Supra), as it construed that the said
judgment laid down that for the exercise of power under Section 319
Cr.P.C., the court has to necessarily wait till the witness is cross
examined and on complete appreciation of evidence, come to the
conclusion whether there is a need to proceed under Section 319
Cr.P.C.
82. We have given our thoughtful consideration to the diverse views
expressed in the aforementioned cases. Once examination-in-chief is
conducted, the statement becomes part of the record. It is evidence as
per law and in the true sense, for at best, it may be rebuttable. An
evidence being rebutted or controverted becomes a matter of
consideration, relevance and belief, which is the stage of judgment by
the court. Yet it is evidence and it is material on the basis whereof
the court can come to a prima facie opinion as to complicity of some
other person who may be connected with the offence.

 
83. As held in Mohd. Shafi (Supra) and Harbhajan Singh (Supra), all
that is required for the exercise of the power under Section 319
Cr.P.C. is that, it must appear to the court that some other person
also who is not facing the trial, may also have been involved in the
offence. The pre-requisite for the exercise of this power is similar
to the prima facie view which the magistrate must come to in order to
take cognizance of the offence. Therefore, no straight-jacket formula
can and should be laid with respect to conditions precedent for
arriving at such an opinion and, if the Magistrate/Court is convinced
even on the basis of evidence appearing in Examination-in-Chief, it
can exercise the power under Section 319 Cr.P.C. and can proceed
against such other person(s). It is essential to note that the Section
also uses the words ‘such person could be tried’ instead of should be
tried. Hence, what is required is not to have a mini-trial at this
stage by having examination and cross-examination and thereafter
rendering a decision on the overt act of such person sought to be
added. In fact, it is this mini-trial that would affect the right of
the person sought to be arraigned as an accused rather than not having
any cross-examination at all, for in light of sub-section 4 of Section
319 Cr.P.C., the person would be entitled to a fresh trial where he
would have all the rights including the right to cross examine
prosecution witnesses and examine defence witnesses and advance his
arguments upon the same. Therefore, even on the basis of Examination-
in-Chief, the Court or the Magistrate can proceed against a person as
long as the court is satisfied that the evidence appearing against
such person is such that it prima facie necessitates bringing such
person to face trial. In fact, Examination-in-Chief untested by Cross
Examination, undoubtedly in itself, is an evidence.
84. Further, in our opinion, there does not seem to be any logic
behind waiting till the cross-examination of the witness is over. It
is to be kept in mind that at the time of exercise of power under
Section 319 Cr.P.C., the person sought to be arraigned as an accused,
is in no way participating in the trial. Even if the cross-examination
is to be taken into consideration, the person sought to be arraigned
as an accused cannot cross examine the witness(s) prior to passing of
an order under Section 319 Cr.P.C., as such a procedure is not
contemplated by the Cr.P.C. Secondly, invariably the State would not
oppose or object to naming of more persons as an accused as it would
only help the prosecution in completing the chain of evidence, unless
the witness(s) is obliterating the role of persons already facing
trial. More so, Section 299 Cr.P.C. enables the court to record
evidence in absence of the accused in the circumstances mentioned
therein.
85. Thus, in view of the above, we hold that power under Section 319
Cr.P.C. can be exercised at the stage of completion of examination in
chief and court does not need to wait till the said evidence is tested
on cross-examination for it is the satisfaction of the court which can
be gathered from the reasons recorded by the court, in respect of
complicity of some other person(s), not facing the trial in the
offence.

Q. (iv) What is the degree of satisfaction required for invoking the
power under Section 319 Cr.P.C.?

 
86. Section 319(1) Cr.P.C. empowers the court to proceed against
other persons who appear to be guilty of offence, though not an
accused before the court.

The word “appear” means “clear to the comprehension”, or a
phrase near to, if not synonymous with “proved”. It imparts a lesser
degree of probability than proof.

 
87. In Pyare Lal Bhargava v. The State of Rajasthan, AIR 1963 SC
1094, a four-Judge Bench of this Court was concerned with the meaning
of the word ‘appear’. The court held that the appropriate meaning of
the word ‘appears’ is ‘seems’. It imports a lesser degree of
probability than proof. In Ram Singh & Ors. v. Ram Niwas & Anr.,
(2009) 14 SCC 25, a two-Judge Bench of this Court was again required
to examine the importance of the word ‘appear’ as appearing in the
Section. The Court held that for the fulfillment of the condition that
it appears to the court that a person had committed an offence, the
court must satisfy itself about the existence of an exceptional
circumstance enabling it to exercise an extraordinary jurisdiction.
What is, therefore, necessary for the court is to arrive at a
satisfaction that the evidence adduced on behalf of the prosecution,
if unrebutted, may lead to conviction of the persons sought to be
added as an accused in the case.

88. At the time of taking cognizance, the court has to see whether a
prima facie case is made out to proceed against the accused. Under
Section 319 Cr.P.C., though the test of prima facie case is the same,
the degree of satisfaction that is required is much stricter. A two-
Judge Bench of this Court in Vikas v. State of Rajasthan, 2013 (11)
SCALE 23, held that on the objective satisfaction of the court a
person may be ‘arrested’ or ‘summoned’, as the circumstances of the
case may require, if it appears from the evidence that any such person
not being the accused has committed an offence for which such person
could be tried together with the already arraigned accused persons.

 
89. In Rajendra Singh (Supra), the Court observed:

“Be it noted, the court need not be satisfied that he has
committed an offence. It need only appear to it that he has
committed an offence. In other words, from the evidence it need
only appear to it that someone else has committed an offence, to
exercise jurisdiction under Section 319 of the Code. Even then,
it has a discretion not to proceed, since the expression used is
“may” and not “shall”. The legislature apparently wanted to
leave that discretion to the trial court so as to enable it to
exercise its jurisdiction under this section. The expression
“appears” indicates an application of mind by the court to the
evidence that has come before it and then taking a decision to
proceed under Section 319 of the Code or not.”

 
90. In Mohd. Shafi (Supra), this Court held that it is evident that
before a court exercises its discretionary jurisdiction in terms of
Section 319 Cr.P.C., it must arrive at a satisfaction that there
exists a possibility that the accused so summoned in all likelihood
would be convicted.

 
91. In Sarabjit Singh & Anr. v. State of Punjab & Anr., AIR 2009 SC
2792, while explaining the scope of Section 319 Cr.P.C., a two-Judge
Bench of this Court observed:

“….For the aforementioned purpose, the courts are required to
apply stringent tests; one of the tests being whether evidence
on record is such which would reasonably lead to conviction of
the person sought to be summoned……Whereas the test of prima
facie case may be sufficient for taking cognizance of an offence
at the stage of framing of charge, the court must be satisfied
that there exists a strong suspicion. While framing charge in
terms of Section 227 of the Code, the court must consider the
entire materials on record to form an opinion that the evidence
if unrebutted would lead to a judgment of conviction. Whether a
higher standard be set up for the purpose of invoking the
jurisdiction under Section 319 of the Code is the question. The
answer to these questions should be rendered in the affirmative.
Unless a higher standard for the purpose of forming an opinion
to summon a person as an additional accused is laid down, the
ingredients thereof viz. (i) an extraordinary case, and (ii) a
case for sparingly (sic sparing) exercise of jurisdiction, would
not be satisfied.”
(Emphasis added)
92. In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC
1248, a two-Judge Bench of this Court took a similar view observing
that the court is required to consider whether such evidence would be
sufficient to convict the person being summoned. Since issuance of
summons under Section 319 Cr.P.C. entails a de novo trial and a large
number of witnesses may have been examined and their re-examination
could prejudice the prosecution and delay the trial, the trial court
has to exercise such discretion with great care and perspicacity.
A similar view has been re-iterated by this Court in Michael
Machado & Anr. v. Central Bureau of Investigation & Ors., AIR 2000 SC
1127.
93. However, there is a series of cases wherein this Court while
dealing with the provisions of Sections 227, 228, 239, 240, 241, 242
and 245 Cr.P.C., has consistently held that the court at the stage of
framing of the charge has to apply its mind to the question whether or
not there is any ground for presuming the commission of an offence by
the accused. The court has to see as to whether the material brought
on record reasonably connect the accused with the offence. Nothing
more is required to be enquired into. While dealing with the aforesaid
provisions, the test of prima facie case is to be applied. The Court
has to find out whether the materials offered by the prosecution to be
adduced as evidence are sufficient for the court to proceed against
the accused further. (Vide: State of Karnataka v. L. Munishwamy &
Ors., AIR 1977 SC 1489; All India Bank Officers’ Confederation etc. v.
Union of India & Ors., AIR 1989 SC 2045; Stree Atyachar Virodhi
Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715; State of M.P. v.
Dr. Krishna Chandra Saksena, (1996) 11 SCC 439; and State of M.P. v.
Mohan Lal Soni, AIR 2000 SC 2583).
94. In Dilawar Babu Kurane v. State of Maharashtra, AIR 2002 SC 564,
this Court while dealing with the provisions of Sections 227 and 228
Cr.P.C., placed a very heavy reliance on the earlier judgment of this
Court in Union of India v. Prafulla Kumar Samal & Anr., AIR 1979 SC
366 and held that while considering the question of framing the
charges, the court may weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the accused has
been made out and whether the materials placed before this Court
disclose grave suspicion against the accused which has not been
properly explained. In such an eventuality, the court is justified in
framing the charges and proceeding with the trial. The court has to
consider the broad probabilities of the case, the total effect of the
evidence and the documents produced before the court but court should
not make a roving enquiry into the pros and cons of the matter and
weigh evidence as if it is conducting a trial.
95. In Suresh v. State of Maharashtra, AIR 2001 SC 1375, this Court
after taking note of the earlier judgments in Niranjan Singh Karam
Singh Punjabi v. Jitendra Bhimraj Bijjaya, AIR 1990 SC 1962 and State
of Maharashtra v. Priya Sharan Maharaj, AIR 1997 SC 2041, held as
under:
“9.……at the stage of Sections 227 and 228 the Court is required
to evaluate the material and documents on record with a view to
finding out if the facts emerging therefrom taken at their face
value disclose the existence of all the ingredients constituting
the alleged offence. The Court may, for this limited purpose,
sift the evidence as it cannot be expected even at that initial
stage to accept all that the prosecution states as gospel truth
even if it is opposed to common sense or the broad probabilities
of the case. Therefore, at the stage of framing of the charge
the Court has to consider the material with a view to find out
if there is ground for presuming that the accused has committed
the offence or that there is not sufficient ground for
proceeding against him and not for the purpose of arriving at
the conclusion that it is not likely to lead to a conviction.”
(Emphasis supplied)

 
96. Similarly in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018,
while dealing with the issue, this Court held:
“……If the evidence which the Prosecutor proposes to adduce to
prove the guilt of the accused even if fully accepted before it
is challenged in cross-examination or rebutted by the defence
evidence, if any, cannot show that the accused committed the
offence, then there will be no sufficient ground for proceeding
with the trial…..”

 
97. In Palanisamy Gounder & Anr. v. State, represented by Inspector
of Police, (2005) 12 SCC 327, this Court deprecated the practice of
invoking the power under Section 319 Cr.P.C. just to conduct a fishing
inquiry, as in that case, the trial court exercised that power just to
find out the real truth, though there was no valid ground to proceed
against the person summoned by the court.
98. Power under Section 319 Cr.P.C. is a discretionary and an extra-
ordinary power. It is to be exercised sparingly and only in those
cases where the circumstances of the case so warrant. It is not to be
exercised because the Magistrate or the Sessions Judge is of the
opinion that some other person may also be guilty of committing that
offence. Only where strong and cogent evidence occurs against a person
from the evidence led before the court that such power should be
exercised and not in a casual and cavalier manner.

 
99. Thus, we hold that though only a prima facie case is to be
established from the evidence led before the court not necessarily
tested on the anvil of Cross-Examination, it requires much stronger
evidence than mere probability of his complicity. The test that has to
be applied is one which is more than prima facie case as exercised at
the time of framing of charge, but short of satisfaction to an extent
that the evidence, if goes unrebutted, would lead to conviction. In
the absence of such satisfaction, the court should refrain from
exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the
purpose of providing if ‘it appears from the evidence that any person
not being the accused has committed any offence’ is clear from the
words “for which such person could be tried together with the
accused.” The words used are not ‘for which such person could be
convicted’. There is, therefore, no scope for the Court acting under
Section 319 Cr.P.C. to form any opinion as to the guilt of the
accused.

Q.(v) In what situations can the power under this section be
exercised: Not named in FIR; Named in the FIR but not charge-sheeted
or has been discharged?

 

100. In Joginder Singh & Anr. v. State of Punjab & Anr., AIR 1979 SC
339, a three-Judge Bench of this Court held that as regards the
contention that the phrase “any person not being the accused”
occurring in Section 319 Cr.P.C. excludes from its operation an
accused who has been released by the police under Section 169 Cr.P.C.
and has been shown in Column 2 of the charge-sheet, the contention has
merely to be rejected. The said expression clearly covers any person
who is not being tried already by the Court and the very purpose of
enacting such a provision like Section 319 (1) Cr.P.C. clearly shows
that even persons who have been dropped by the police during
investigation but against whom evidence showing their involvement in
the offence comes before the criminal court, are included in the said
expression.
101. In Anju Chaudhary v. State of U.P. & Anr., (2013) 6 SCC 384, a
two-Judge Bench of this Court held that even in the cases where report
under Section 173(2) Cr.P.C. is filed in the court and investigation
records the name of a person in Column 2, or even does not name the
person as an accused at all, the court in exercise of its powers
vested under Section 319 Cr.P.C. can summon the person as an accused
and even at that stage of summoning, no hearing is contemplated under
the law.
102. In Suman v. State of Rajasthan & Anr., AIR 2010 SC 518, a two-
Judge Bench of this Court observed that there is nothing in the
language of this sub-section from which it can be inferred that a
person who is named in the FIR or complaint, but against whom charge-
sheet is not filed by the police, cannot be proceeded against even
though in the course of any inquiry into or trial of any offence, the
court finds that such person has committed an offence for which he
could be tried together with the other accused. In Lal Suraj (supra),
a two-Judge Bench held that there is no dispute with the legal
proposition that even if a person had not been charge-sheeted, he may
come within the purview of the description of such a person as
contained in Section 319 Cr.P.C. A similar view had been taken in Lok
Ram (Supra), wherein it was held that a person, though had initially
been named in the FIR as an accused, but not charge-sheeted, can also
be added to face the trial.
103. Even the Constitution Bench in Dharam Pal (CB) has held that the
Sessions Court can also exercise its original jurisdiction and summon
a person as an accused in case his name appears in Column 2 of the
chargesheet, once the case had been committed to it. It means that a
person whose name does not appear even in the FIR or in the
chargesheet or whose name appears in the FIR and not in the main part
of the chargesheet but in Column 2 and has not been summoned as an
accused in exercise of the powers under Section 193 Cr.P.C. can still
be summoned by the court, provided the court is satisfied that the
conditions provided in the said statutory provisions stand fulfilled.

 
104. However, there is a great difference with regard to a person who
has been discharged. A person who has been discharged stands on a
different footing than a person who was never subjected to
investigation or if subjected to, but not charge-sheeted. Such a
person has stood the stage of inquiry before the court and upon
judicial examination of the material collected during investigation;
the court had come to the conclusion that there is not even a prima
facie case to proceed against such person. Generally, the stage of
evidence in trial is merely proving the material collected during
investigation and therefore, there is not much change as regards the
material existing against the person so discharged. Therefore, there
must exist compelling circumstances to exercise such power. The Court
should keep in mind that the witness when giving evidence against the
person so discharged, is not doing so merely to seek revenge or is
naming him at the behest of someone or for such other extraneous
considerations. The court has to be circumspect in treating such
evidence and try to separate the chaff from the grain. If after such
careful examination of the evidence, the court is of the opinion that
there does exist evidence to proceed against the person so discharged,
it may take steps but only in accordance with Section 398 Cr.P.C.
without resorting to the provision of Section 319 Cr.P.C. directly.
105. In Sohan Lal & Ors. v. State of Rajasthan, (1990) 4 SCC 580, a
two-Judge Bench of this Court held that once an accused has been
discharged, the procedure for enquiry envisaged under Section 398
Cr.P.C. cannot be circumvented by prescribing to procedure under
Section 319 Cr.P.C.
106. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.,
AIR 1983 SC 67, this Court held that if the prosecution can at any
stage produce evidence which satisfies the court that those who have
not been arraigned as accused or against whom proceedings have been
quashed, have also committed the offence, the Court can take
cognizance against them under Section 319 Cr.P.C. and try them along
with the other accused.
107. Power under Section 398 Cr.P.C. is in the nature of revisional
power which can be exercised only by the High Court or the Sessions
Judge, as the case may be. According to Section 300 (5) Cr.P.C., a
person discharged under Section 258 Cr.P.C. shall not be tried again
for the same offence except with the consent of the Court by which he
was discharged or of any other Court to which the first-mentioned
Court is subordinate. Further, Section 398 Cr.P.C. provides that the
High Court or the Sessions Judge may direct the Chief Judicial
Magistrate by himself or by any of the Magistrate subordinate to him
to make an inquiry into the case against any person who has already
been discharged.

 

108. Both these provisions contemplate an inquiry to be conducted
before any person, who has already been discharged, is asked to again
face trial if some evidence appears against him. As held earlier,
Section 319 Cr.P.C. can also be invoked at the stage of inquiry. We do
not see any reason why inquiry as contemplated by Section 300(5)
Cr.P.C. and Section 398 Cr.P.C. cannot be an inquiry under Section 319
Cr.P.C. Accordingly, a person discharged can also be arraigned again
as an accused but only after an inquiry as contemplated by Sections
300(5) and 398 Cr.P.C. If during or after such inquiry, there appears
to be an evidence against such person, power under Section 319 Cr.P.C.
can be exercised. We may clarify that the word ‘trial’ under Section
319 Cr.P.C. would be eclipsed by virtue of above provisions and the
same cannot be invoked so far as a person discharged is concerned, but
no more.

 
109. Thus, it is evident that power under Section 319 Cr.P.C. can be
exercised against a person not subjected to investigation, or a person
placed in the Column 2 of the Charge-Sheet and against whom cognizance
had not been taken, or a person who has been discharged. However,
concerning a person who has been discharged, no proceedings can be
commenced against him directly under Section 319 Cr.P.C. without
taking recourse to provisions of Section 300(5) read with Section 398
Cr.P.C.

?

110. We accordingly sum up our conclusions as follows:

Question Nos.1 & III

Q.1 What is the stage at which power under Section 319 Cr.P.C. can be
exercised?

AND

Q.III Whether the word “evidence” used in Section 319(1) Cr.P.C. has
been used in a comprehensive sense and includes the evidence collected
during investigation or the word “evidence” is limited to the evidence
recorded during trial?

A. In Dharam Pal’s case, the Constitution Bench has already held that
after committal, cognizance of an offence can be taken against a
person not named as an accused but against whom materials are
available from the papers filed by the police after completion of
investigation. Such cognizance can be taken under Section 193 Cr.P.C.
and the Sessions Judge need not wait till ‘evidence’ under Section 319
Cr.P.C. becomes available for summoning an additional accused.

? Section 319 Cr.P.C., significantly, uses two expressions that
have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial
commences after framing of charge, an inquiry can only be understood
to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202
Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry
contemplated by Section 319 Cr.P.C. Materials coming before the Court
in course of such enquiries can be used for corroboration of the
evidence recorded in the court after the trial commences, for the
exercise of power under Section 319 Cr.P.C., and also to add an
accused whose name has been shown in Column 2 of the chargesheet.

In view of the above position the word ‘evidence’ in Section 319
Cr.P.C. has to be broadly understood and not literally i.e. as
evidence brought during a trial.

Question No. II

Q.II Whether the word “evidence” used in Section 319(1) Cr.P.C. could
only mean evidence tested by cross-examination or the court can
exercise the power under the said provision even on the basis of the
statement made in the examination-in-chief of the witness concerned?

?A. Considering the fact that under Section 319 Cr.P.C. a person
against whom material is disclosed is only summoned to face the trial
and in such an event under Section 319(4) Cr.P.C. the proceeding
against such person is to commence from the stage of taking of
cognizance, the Court need not wait for the evidence against the
accused proposed to be summoned to be tested by cross-examination.

Question No. IV

Q.IV What is the nature of the satisfaction required to invoke the
power under Section 319 Cr.P.C. to arraign an accused? Whether the
power under Section 319 (1) Cr.P.C. can be exercised only if the court
is satisfied that the accused summoned will in all likelihood be
convicted?

A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently
impleaded is to be treated as if he had been an accused when the Court
initially took cognizance of the offence, the degree of satisfaction
that will be required for summoning a person under Section 319 Cr.P.C.
would be the same as for ?framing a charge. The difference in the
degree of satisfaction for summoning the original accused and a
subsequent accused is on account of the fact that the trial may have
already commenced against the original accused and it is in the course
of such trial that materials are disclosed against the newly summoned
accused. Fresh summoning of an accused will result in delay of the
trial – therefore the degree of satisfaction for summoning the accused
(original and subsequent) has to be different.

Question No.V

Q.V Does the power under Section 319 Cr.P.C. extend to persons not
named in the FIR or named in the FIR but not chargesheeted or who have
been discharged?

A. A person not named in the FIR or a person though named in the
FIR but has not been chargesheeted or a person who has been discharged
can be summoned under Section 319 Cr.P.C. provided from the evidence
it appears that such person can be tried along with the accused
already facing trial. However, in so far as an accused who has been
discharged is concerned the requirement of ?Sections 300 and 398
Cr.P.C. has to be complied with before he can be summoned afresh.

The matters be placed before the appropriate Bench for final
disposal in accordance with law explained hereinabove.

 
….……………………………….CJI.
(P. SATHASIVAM)

 

 

 

.….………………………………….J.
(DR. B.S. CHAUHAN)

 
………………………………………J.
(RANJANA PRAKASH DESAI)

 

 
…………………………………….
……J.
(RANJAN GOGOI)

 
…………………………………………..J.
(S.A.
BOBDE)

New Delhi,
January 10, 2014

 

———————–
5

 

 

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