5 bench judgement on section 319 CrPC : Supreme Court 2014

53. 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 CrPC 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 visualising 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 CrPC 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 CrPC
confers power of original jurisdiction upon the Sessions
Court to add an accused once the case has been committed
to it.
54. In our opinion, the stage of inquiry does not
contemplate any evidence in its strict legal sense, nor could
the legislature 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 CrPC.”

“117.1. In Dharam Pal 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 the investigation.
Such cognizance can be taken under Section 193 Cr.PC
and the Sessions Judge need not wait till “evidence” under
Section 319 CrPC becomes available for summoning an
additional accused.
117.2. Section 319 Cr.PC, 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 CrPC, and under
Section 398 Cr.PC are species of the inquiry contemplated
by Section 319 CrPC. Materials coming before the court in
course of such inquiries 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.PC, and also to add an accused whose name has been
shown in Column 2 of the charge-sheet.
117.3. In view of the above position the word “evidence”
in Section 319 CrPC has to be broadly understood and not
literally i.e. as evidence brought during a trial.
117.4. Considering the fact that under Section 319
CrPC a person against whom material is disclosed is only
summoned to face the trial and in such an event under
Section 319(4) CrPC 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.”

 

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;

 

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
Page 2
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
2
Page 3
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
3
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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?
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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
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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 crossexamination
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)
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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
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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.
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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
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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
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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.”
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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.
1
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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
1
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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
1
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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
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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
1
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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 chargesheet,
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-
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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
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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
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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.”
2
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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
2
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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)
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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
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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
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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.
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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.
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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.
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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.
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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
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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?
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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,
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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 evidencein-
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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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-inchief
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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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 chargesheeted
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
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