Dr. B.S. CHAUHAN, J. 1. This reference before us arises out of a variety of views having
been expressed by this Court and several High Courts of the country on the scope and extent of
the powers of the courts under the criminal justice system to arraign any person as an accused
during the course of inquiry or trial as contemplated under Section 319 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the `Cr.P.C). The doubts as categorised in
paragraphs 75 and 78 of the reference order led to the framing of two questions by the said
Bench which are reproduced hereunder:
(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused
can be exercised by a Court? Whether application under Section 319 is not maintainable
unless the cross-examination of the witness is complete?
(2) What is the test and what are the guidelines of exercising power under sub-section (1) of
Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied
that the accused summoned in all likelihood would be convicted?
3. The reference was desired to be resolved by a three-Judge Bench whereafter the same came
up for consideration and vide order dated 8.12.2011, the Court opined that in view of the
reference made in the case of Dharam Pal v. State of Haryana[ (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 v State of Haryana [AIR 2013 SC 3018 (hereinafter called Dharam Pal
(CB)], wherein it was held that a Court of Sessions can with the aid of Section 193 Cr.P.C.
proceed to array any other person and summon him for being tried even if the provisions of
Section 319 Cr.P.C. could not be pressed in service at the stage of committal.
6. 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 Constitutional Bench:
(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(ii) Whether the word “evidence” used in Section 319(1) Cr.P.C. could only mean evidence
tested by cross-examination or the court can exercise the power under the said provision even
on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word “evidence” used in Section 319(1) Cr.P.C. has been used in a
comprehensive sense and includes the evidence collected during investigation or the word
“evidence” is limited to the evidence recorded during trial?
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(iv) What is the nature of the satisfaction required to invoke the power under Section 319
Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be
exercised only if the court is satisfied that the accused summoned will in all likelihood
convicted?
(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or
named in the FIR but not charged or who have been discharged?
7. 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.
8. The Constitutional mandate under Articles 20 and 21 of the Constitution of India, 1950
(hereinafter referred to as the Constitution) provides a protective umbrella for the smooth
administration of justice making adequate provisions to ensure a fair and efficacious trial so
that the accused does not get prejudiced after the law has been put into motion to try him for
the offence but at the same time also gives equal protection to victims and to the society at large
to ensure that the guilty does not get away from the clutches of law. For the empowerment of
the courts to ensure that the criminal administration of justice works properly, the law was
appropriately codified and modified by the legislature under the Cr.P.C. indicating as to how
the courts should proceed in order to ultimately find out the truth so that an innocent does not
get punished but at the same time, the guilty are brought to book under the law. It is these ideals
as enshrined under the Constitution and our laws that have led to several decisions, whereby
innovating methods and progressive tools have been forged to find out the real truth and to
ensure that the guilty does not go unpunished. The presumption of innocence is the general law
of the land as every man is presumed to be innocent unless proven to be guilty.
11. Section 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 reheard;
(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. The
question remains under what circumstances and at what stage should the court exercise its
power as contemplated in Section 319 Cr.P.C.?
16. It is at this stage the comparison of the words used under Section 319 Cr.P.C. has to be
understood distinctively from the word used under Section 2(g) defining an inquiry other than
the trial by a magistrate or a court. Here the legislature has used two words, namely the
magistrate or court, whereas under Section 319 Cr.P.C., as indicated above, only the word
courthas 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.
17. 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 charge sheet filed under Section 173 Cr.P.C. or a person whose name
has been disclosed in any material before the court that is to be considered for the purpose of
trying the offence, but not investigated. He has to be a person whose complicity may be
indicated and connected with the commission of the offence.
21. At the very outset, we may explain that the issue that was being considered by this Court in
Dharam Pal (CB), was the exercise of such power at the stage of committal of a case and the
court held that even if Section 319 Cr.P.C. could not be invoked at that stage, Section 193
Cr.P.C. could be invoked for the said purpose. We are not delving into the said issue which had
been answered by the five-Judge Bench of this Court. However, we may clarify that the opening
words of Section 193 Cr.P.C. categorically recite that the power of the Court of Sessions to take
cognizance would commence only after committal of the case by a magistrate. The said
provision opens with a non-obstante clause except as otherwise expressly provided by this code
or by any other law for the time being in force. The Section therefore is clarified by the said
opening words which clearly means that if there is any other provision under Cr.P.C., expressly
making a provision for exercise of powers by the court to take cognizance, then the same would
apply and the provisions of Section 193 Cr.P.C. would not be applicable.
22. 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).
Q .(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
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25. The stage of inquiry and trial upon cognizance being taken of an offence, has been
considered by a large number of decisions of this Court and that it may be useful to extract the
same hereunder for proper appreciation of the stage of invoking of the powers under Section
319 Cr.P.C. to understand the meaning that can be attributed to the word ‘inquiry’and ‘trial’ as
used under the Section.
27. 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: ‘inquiry’ means every
inquiry, other than a trial, conducted under this Code by a Magistrate or Court.
29. 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 v. State of Kerala, [AIR 2004 SC 1890], this Court observed that though
the word ‘trial’ is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry
must always be a forerunner to the trial. A three-Judge Bench of this Court in State of Bihar
v. Ram Naresh Pandey [ 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.
33. In Union of India 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.’
In Common cause v. Union of India , [AIR 1997 SC 1539], this Court while dealing with the
issue held:
(i) In case of trials before Sessions Court the trials shall be treated to have commenced when
charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned
cases.
ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports
the trials shall be treated to have commenced when charges are framed under Section 240 of
the Code of Criminal Procedure, 1973, while in trials of warrant cases by Magistrates when
cases are instituted otherwise than on police report such trials shall be treated to have
commenced when charges are framed against the concerned accused under Section 246 of the
Code of Criminal Procedure, 1973.
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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.
38. 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.
40. 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.
42. 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.
54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal
sense, nor the legislature could have contemplated this inasmuch as the stage for evidence has
not yet arrived. The only material that the court has before it is the material collected by the
prosecution and the court at this stage prima facie can apply its mind to find out as to whether
a person, who can be an accused, has been erroneously omitted from being arraigned or has
been deliberately excluded by the prosecuting agencies. This is all the more necessary in order
to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before
the court those persons who deserve to be tried and to prevent any person from being
deliberately shielded when they ought to have been tried. This is necessary to usher faith in the
judicial system whereby the court should be empowered to exercise such powers even at the
stage of inquiry and it is for this reason that the legislature has consciously used separate terms,
namely, inquiry or trial in Section 319 Cr.P.C.
55. 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.
56. 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
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complainant is circumspect in proceeding against several persons, but the court is of the opinion
that there appears to be some evidence pointing to the complicity of some other persons as well,
Section 319 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to initiate
proceedings against such other persons. The purpose of Section 319 Cr.P.C. is to do complete
justice and to ensure that persons who ought to have been tried as well are also tried. Therefore,
there does not appear to be any difficulty in invoking powers of Section 319 Cr.P.C. at the stage
of trial in a complaint case when the evidence of the complainant as well as his witnesses is
being recorded.
57. 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.
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?
59. 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;
66. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri, [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 nonexistence of disputed facts.”
78. It is, therefore, clear that the word ’evidence’ in Section 319 Cr.P.C. means only such
evidence as is made before the court, in relation to statements, and as produced before the court,
in relation to documents. It is only such evidence that can be taken into account by the
Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised
and not on the basis of material collected during investigation.
79. 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.
80. 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
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held, but can the same definition be extended for any other material collected during inquiry by
the magistrate or court for the purpose of Section 319 Cr.P.C.
74. An inquiry can be conducted by the magistrate or court at any stage during the proceedings
before the court. This power is preserved with the court and has to be read and understood
accordingly. The outcome of any such exercise should not be an impediment in the speedy trial
of the case. 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.
82. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved
takes place and therefore, after the material alongwith the charge-sheet has been brought before
the court, the same can be inquired into in order to effectively proceed with framing of charges.
After the charges are framed, the prosecution is asked to lead evidence and till that is done,
there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The
actual trial of the offence by bringing the accused before the court has still not begun. What is
available is the material that has been submitted before the court along with the charge-sheet.
In such situation, the court only has the preparatory material that has been placed before the
court for its consideration in order to proceed with the trial by framing of charges.
83. 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.
84. 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.
85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the
aforesaid question posed is that apart from evidence recorded during trial, any material that has
been received by the court after cognizance is taken and before the trial commences, can be
utilised only for corroboration and to support the evidence recorded by the court to invoke the
power under Section 319 Cr.P.C. The ‘evidence’ is thus, limited to the evidence recorded during
trial.
Q.(ii) Does the word ‘evidence’ in Section 319 Cr.P.C. means as arising in Examinationin-Chief or also together with Cross- Examination?
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86. 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.
89. We have given our thoughtful consideration to the diverse views expressed in the
aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of
the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An
evidence being rebutted or controverted becomes a matter of consideration, relevance and
belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the
basis whereof the court can come to a prima facie opinion as to complicity of some other person
who may be connected with the offence.
90. As held in Mohd. Shafi [(2007)14,SCC544] and Harbhajan Singh [(2009)16,SCC 785]
all that is required for the exercise of the power under Section 319 Cr.P.C. is that, it must appear
to the court that some other person also who is not facing the trial, may also have been involved
in the offence. The pre-requisite for the exercise of this power is similar to the prima facie view
which the magistrate must come to in order to take cognizance of the offence. Therefore, no
straight-jacket formula can and should be laid with respect to conditions precedent for arriving
at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence
appearing in Examination-in-Chief, it can exercise the power under Section 319 Cr.P.C. and
can proceed against such other person(s). It is essential to note that the Section also uses the
words such person could be tried instead of should be tried. Hence, what is required is not to
have a mini-trial at this stage by having examination and cross-examination and thereafter
rendering a decision on the overt act of such person sought to be added. In fact, it is this minitrial 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.
91. Further, in our opinion, there does not seem to be any logic behind waiting till the crossexamination 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
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participating in the trial. Even if the cross-examination is to be taken into consideration, the
person sought to be arraigned as an accused cannot cross examine the witness(s) prior to passing
of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C.
Secondly, invariably the State would not oppose or object to naming of more persons as an
accused as it would only help the prosecution in completing the chain of evidence, unless the
witness(s) is obliterating the role of persons already facing trial. More so, Section 299 Cr.P.C.
enables the court to record evidence in absence of the accused in the circumstances mentioned
therein.
92. 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.?
93. Section 319(1) Cr.P.C. empowers the court to proceed against other persons who appear to
be guilty of offence, though not an accused before the court. The word appear means clear to
the comprehension or a phrase near to, if not synonymous with proved. It imparts a lesser degree
of probability than proof.
95. 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.
96. In Rajendra Singh [(2007)7,SCC 378] the Court observed: Be it noted, the court need not
be satisfied that he has committed an offence. It need only appear to it that he has committed
an offence. In other words, from the evidence it need only appear to it that someone else has
committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has
a discretion not to proceed, since the expression used is may and not shall. The legislature
apparently wanted to leave that discretion to the trial court so as to enable it to exercise its
jurisdiction under this section. The expression appears indicates an application of mind by the
court to the evidence that has come before it and then taking a decision to proceed under Section
319 of the Code or not.
98. In Sarabjit Singh v. State of Punjab, [AIR 2009 SC 2792], while explaining the scope of
Section 319 Cr.P.C., a two-Judge Bench of this Court observed: “21-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
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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.”
106. Thus, we hold that though only a prima facie case is to be established from the evidence
led before the court not necessarily tested on the anvil of Cross-Examination, it requires much
stronger evidence than mere probability of his complicity. The test that has to be applied is one
which is more than prima facie case as exercised at the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the
absence of such satisfaction, the court should refrain from exercising power under Section 319
Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if it appears from the evidence that any
person not being the accused has committed any offence is clear from the words for which such
person could be tried together with the accused. The words used are not for which such person
could be convicted. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C.
to form any opinion as to the guilt of the accused.
Q.(v) In what situations can the power under this section be exercised: Not named in FIR;
Named in the FIR but not charge-sheeted or has been discharged?
107. In Joginder Singh v. State of Punjab, [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.
108. In Anju Chaudhary v. State of U.P., [(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.
109. In Suman v. State of Rajasthan, [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
112. 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
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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.
116. 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.
117. We accordingly sum up our conclusions as follows:
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.
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
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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.
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.
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.
