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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

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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

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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  

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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  cross- examination or  the court can exercise the power under  the  said  provision  even  on  the  basis  of  the  statement  made  in  the  examination-in-chief  of  the  witness  concerned?  

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

(iv)  What  is  the  nature  of  the  satisfaction  required  to  invoke the power under Section 319 Cr.P.C. to arraign an  accused?  Whether  the  power  under  Section  319(1)  

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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.  

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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  

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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  

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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  

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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 charge-

sheet, if on the basis of material on record, the Magistrate disagrees  

with  the  conclusion  reached  by  the  police,  but,  as  far  as  serious  

offences triable by the Court of Sessions are concerned, that court will  

have to wait till the stage of Section 319 Cr.P.C. is reached.  

19. At the very outset, we may explain that the issue that was being  

considered by this Court in  Dharam Pal  (CB), was the exercise of  

such power  at the stage of committal of a case and the court held  

that even if Section 319 Cr.P.C. could not be invoked at that stage,  

Section 193 Cr.P.C. could be invoked for the said purpose. We are not  

delving into the said issue which had been answered by the five-Judge  

Bench of this Court. However, we may clarify that the opening words  

of Section 193 Cr.P.C. categorically recite that the power of the Court  

of Sessions to take cognizance would commence only after committal  

of  the case by a  magistrate.  The said provision opens with a  non-

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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.”  

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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  

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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  

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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.”

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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:

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   “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 evidence-

in-chief,  cross-examination  or  re-examination.  In  Omkar  Namdeo  

Jadhao & Ors v.  Second Additional Sessions Judge Buldana &  

Anr.,  AIR 1997 SC 331; and  Ram Swaroop & Ors.  v.  State  of  

Rajasthan, AIR  2004  SC  2943,   this  Court  held  that  statements  

recorded under Section 161 Cr.P.C. during the investigation are not  

evidence.   Such  statements  can  be  used  at  the  trial  only  for  

contradictions or omissions when the witness is examined in the court.

(See also:  Podda Narayana & Ors. v. State of A.P., AIR 1975 SC  

1252;  Sat  Paul  v.  Delhi  Administration,  AIR 1976 SC 294;  and  

State (Delhi Administration) v.  Laxman Kumar & Ors., AIR 1986  

SC 250).  

61. In  Lok Ram v. Nihal Singh & Anr.,  AIR 2006 SC 1892,  it  

was held that it is evident that a person, even though had initially been  

named in the FIR as an accused, but not charge-sheeted, can also be  

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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-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  

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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  

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is, therefore, no scope for the Court acting under Section 319 Cr.P.C.  

to form any opinion as to the guilt of the accused.

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

100. In Joginder Singh & Anr. v. State of Punjab & Anr.,  AIR  

1979 SC 339, a three-Judge Bench of this Court held that as regards  

the contention that the phrase  “any person not being the accused”  

occurring  in  Section  319  Cr.P.C.  excludes  from  its  operation  an  

accused  who  has  been  released  by  the  police  under  Section  169  

Cr.P.C.  and has been shown in Column 2 of  the charge-sheet,  the  

contention  has  merely  to  be  rejected.  The  said  expression  clearly  

covers any person who is not being tried already by the Court and the  

very purpose of enacting such a provision like Section 319 (1) Cr.P.C.  

clearly shows that even persons who have been dropped by the police  

during  investigation  but  against  whom  evidence  showing  their  

involvement  in  the  offence  comes  before  the  criminal  court,  are  

included in the said expression.  

101. In  Anju Chaudhary v. State of U.P.  &  Anr.,  (2013) 6 SCC  

384,  a  two-Judge  Bench of  this  Court  held  that  even in  the  cases  

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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  

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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  

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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.  

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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.  

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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  

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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  

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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  

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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.  

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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  

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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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