REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NOS. 1554-1557 OF 2011 (Arising out of S.L.P. (Crl.) Nos. 9527-9530 of 2010)    

Sarojben Ashwinkumar Shah Etc.         …Appellants

Versus   State of Gujarat &  Anr.                      …Respondents

JUDGEMENT  

R.M. LODHA, J.  

Leave granted.

2. These  four  appeals,  by  special  leave,  are  directed  

against  the  common  order  of  the  Gujarat  High  Court  whereby  

single Judge of that Court refused to interfere with the orders (all  

dated July 11, 2000) of the Judicial Magistrate First Class, Prantij  

directing addition of the present appellant as an accused (Accused  

No. 5) in various complaints.

3. For the sake of brevity and convenience, we shall refer  

to the facts from the appeal arising from complaint (Criminal Case  

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no. 1132 of 1999)  pending in the Court of Judicial Magistrate First  

Class, Prantij. Respondent no. 2—Gulamnabi Hebatkhan Sumara  

– filed a complaint against (i) M/s. Rashmi Builders, a partnership  

firm, (ii) Ashwinkumar Tribhovandas Shah and (iii) Chandravadan  

Gopaldas Thakkar in the Court of Judicial Magistrate, First Class,  

Prantij. It was alleged in the complaint that M/s. Rashmi Builders  

(Accused  No.  1)  is  a  duly  registered  partnership  firm  and  

Ashwinkumar  Tribhovandas  Shah  (Accused  No.  2)  and  

Chandravadan  Gopaldas  Thakkar  (Accused  No.  3)  are  its  

partners.  On the  recommendation  and advise  of  one Balkabhai  

alias Himatlal Dwarkadas Lal, a financial broker, the complainant  

lent  and  advanced  a  sum of  Rs.  5  lakhs  to  the  firm.  The  firm  

through  its  partner  Ashwinkumar  Tribhovandas  Shah  

acknowledged the receipt of the said amount and also executed  

and delivered a promissory note for Rs. 5 lakhs on the same date.  

Later  in  discharge  of  its  liability,  the  firm  through  its  partner  

(Accused No. 2) issued a cheque for Rs. 5 lakhs drawn on the  

Federal  Bank  of  India,  Fort  Branch,  Bombay and  delivered  the  

same to Balkabhai alias Himatlal Dwarkadas Lal who handed over  

the said cheque to the complainant along with the promissory note.  

The complainant  presented the said cheque for  encashment  on  

May 31, 1999 with his Banker but the same was dishonoured on  

June 3, 1999 with the remark “account closed”. The complainant  

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then sent  a  statutory  notice  of  15 days  to  the  firm and its  two  

partners which was received by them on or about June 23, 1999.  

The  accused  failed  and  neglected  to  make  payment  within  the  

statutory period and instead in its reply dated June 29, 1999, the  

firm denied having entered into any financial transaction with the  

complainant. The complainant thus alleged that the accused have  

committed  offence  under  Section  138  of  the  Negotiable  

Instruments Act, 1881 (for short, ‘N.I. Act’) and under Section 420  

and Section 114 of the Indian Penal Code. The other complaints  

were  lodged  by  Usmanmiya  Nanumiya  Ghori,  Mohamad  

Umarkhan  Akbarkhan  Ghori  and  Daudbhai  Rasulbhai  Mansuri  

against the above three accused on the identical facts.

4. The  Judicial  Magistrate,  First  Class,  Prantij  took  

cognizance in  the above complaints  against  the three  accused,  

namely,  (i)  M/s.  Rashmi  Builders  (a  partnership  firm),  (ii)  

Ashwinkumar  Tribhovandas  Shah  and  (iii)  Chandravadan  

Gopaldas Thakkar.

5. On November 4, 1999, the complainant in each of the  

complaints made an application under Section 319 of the Code of  

Criminal Procedure, 1973 (for short, ‘the Code’) for joining Paresh  

Lakshmikant  Vyas  and  Sarojben  Ashwinkumar  Shah  (appellant  

herein) as Accused Nos. 4 and 5 respectively.  It was averred that  

Accused Nos. 2 and 3 have submitted a copy of the registration of  

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the  firm—M/s.  Rashmi  Builders  (Accused  No.  1)  wherein  the  

proposed Accused No. 4 and Accused No. 5 have been shown as  

the partners of the firm and in this view of the matter, it was prayed  

that complainant may be permitted to join them  as accused.  

6. The Judicial  Magistrate First  Class,  Prantij,  as noted  

above, has directed that Paresh Lakshmikant Vyas and Sarojben  

Ashwinkumar Shah (appellant herein) be joined as Accused Nos. 4  

and 5 and the High Court maintained such direction.  

7. Section 319 of the Code reads as under :

 “S. 319.  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 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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8. The ambit and scope of the power of the Court under  

Section 319 of the Code has come up for consideration before this  

Court on more than one occasion.

9. In Joginder Singh and Another v. State of Punjab and  

Another1, this Court stated that the power conferred under Section  

319(1) of the Code is applicable to all courts including a Sessions  

Court and the Court has power to add any person, not being the  

accused  before  it,  against  whom  there  appears  during  trial  

sufficient evidence indicating his involvement in the offence, as an  

accused and direct him to be tried along with the other accused.

10. In the case of  Municipal Corporation of Delhi v.  Ram  

Kishan Rohtagi and Others2, this Court (at page 8)  held as under :

“19. In  these  circumstances,  therefore,  if  the  prosecution can at any stage produce evidence which  satisfies the court that the other accused or those who  have  not  been  arrayed  as  accused  against  whom  proceedings have been quashed have also committed  the offence the Court can take cognizance against them  and  try  them along  with  the  other  accused.  But,  we  would hasten to add that this is really an extraordinary  power  which is conferred on the court  and should be  used very sparingly and only if compelling reasons exist  for taking cognizance against the other person against  whom action has not  been taken.  More than this  we  would not like to say anything further at this stage. We  leave  the  entire  matter  to  the  discretion  of  the  court  concerned  so  that  it  may  act  according  to  law.  We  would, however, make it plain that the mere fact that the  proceedings have been quashed against respondents 2  to  5  will  not  prevent  the  court  from  exercising  its  discretion  if  it  is  fully  satisfied  that  a  case for  taking  

1 (1979) 1 SCC 345 2 (1983) 1 SCC 1

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cognizance  against  them has been made out  on  the  additional evidence led before it.”

11. In Michael Machado and Another v. Central Bureau of   

Investigation and Another3,  this Court on extensive consideration  

of  the provision contained in Section 319 stated the  (at  pages  

267-268) as follows :

“11.  The  basic  requirements  for  invoking  the  above  section is  that  it  should  appear  to the court  from the  evidence  collected  during  trial  or  in  the  inquiry  that  some other person, who is not arraigned as an accused  in that case, has committed an offence for which that  person could be tried together with the accused already  arraigned.  It  is  not  enough that  the  court  entertained  some doubt, from the evidence, about the involvement  of  another  person in the offence.  In  other  words,  the  court  must  have  reasonable  satisfaction  from  the  evidence already collected regarding two aspects. First  is  that  the  other  person  has  committed  an  offence.  Second is that for such offence that other person could  as  well  be  tried  along  with  the  already  arraigned  accused.

12. But even then, what is conferred on the court is only  a discretion as could be discerned from the words “the  court  may  proceed  against  such  person”.  The  discretionary power  so conferred should be exercised  only to achieve criminal justice. It is not that the court  should turn against another person whenever it comes  across evidence connecting that other person also with  the offence. A judicial exercise is called for, keeping a  conspectus of the case, including the stage at which the  trial  has  proceeded  already  and  the  quantum  of  evidence collected till then, and also the amount of time  which the court had spent for collecting such evidence.  It must be remembered that there is no compelling duty  on the court to proceed against other persons.

xxx xxx xxx xxx xxx

3 (2000) 3 SCC 262 6

14.  The  court  while  deciding  whether  to  invoke  the  power  under  Section 319 of  the Code,  must  address  itself  about  the other  constraints  imposed by the first  limb of sub-section (4), that proceedings in respect of  newly-added persons shall be commenced afresh and  the  witnesses  re-examined.  The  whole  proceedings  must be recommenced from the beginning of the trial,  summon the witnesses once again and examine them  and  cross-examine  them in  order  to  reach  the  stage  where it  had reached earlier.  If  the witnesses already  examined  are  quite  large  in  number  the  court  must  seriously  consider  whether  the  objects  sought  to  be  achieved by such exercise are worth wasting the whole  labour already undertaken. Unless the court is hopeful  that  there  is  a  reasonable  prospect  of  the  case  as  against  the  newly-brought  accused  ending  in  being  convicted of the offence concerned we would say that  the court should refrain from adopting such a course of  action.

12. In  Shashikant  Singh v.  Tarkeshwar  Singh  and  

Another4,  this Court considered the scope of Section 319 of the  

Code  at page 743 of the Report in the following words:

“9. The intention of the provision here is that where in  the course of any enquiry into, or trial of, an offence, it  appears to the court from the evidence that any person  not being the accused has committed any offence, the  court may proceed against him for the offence which he  appears  to  have  committed.  At  that  stage,  the  court  would  consider  that  such  a  person  could  be  tried  together  with  the  accused  who  is  already  before  the  court facing the trial. The safeguard provided in respect  of such person is that, the proceedings right from the  beginning  have mandatorily  to  be  commenced afresh  and the witnesses reheard. In short, there has to be a  de novo trial against him. The provision of de novo trial  is mandatory. It vitally affects the rights of a person so  brought  before the court.  It  would  not  be sufficient  to  only tender the witnesses for the cross-examination of  such a person. They have to be examined afresh. Fresh  examination-in-chief and not only their presentation for  the  purpose  of  the  cross-examination  of  the  newly  added accused is the mandate of Section 319(4). The  

4 (2002) 5 SCC 738  7

words  “could  be  tried  together  with  the  accused”  in  Section 319(1), appear to be only directory. “Could be”  cannot under these circumstances be held to be “must  be”. The provision cannot be interpreted to mean that  since the trial in respect of a person who was before the  court has concluded with the result that the newly added  person cannot be tried together with the accused who  was before the court when order under Section 319(1)  was  passed,  the  order  would  become ineffective  and  inoperative, nullifying the opinion earlier formed by the  court  on  the  basis  of  the  evidence  before  it  that  the  newly  added  person  appears  to  have  committed  the  offence resulting in an order for his being brought before  the court.”

13. In  Krishnappa v.  State  of  Karnataka5,  this  Court  

reiterated  what  has  been  repeatedly  stated  that  the  power  to  

summon an accused is an extraordinary power conferred on the  

court  and should be used very sparingly and only if  compelling  

reasons  exist  for  taking  cognizance  against  the  other  person  

against whom action has not been taken.

14. In  Palanisamy  Gounder  and  Another v.  State  

represented  by  Inspector  of  Police6,  this  Court  referred  to  two  

earlier  decisions  of  this  Court  in  Michael  Machado3   and  

Krishnappa5   and observed that power under Section 319 of the  

Code cannot be exercised so as to conduct a fishing inquiry.

15. In Guriya alias Tabassum Tauquir and Others v. State  

of Bihar and Another7 most of the above decisions were referred to  

and  it  was  observed  that  the  parameters  for  dealing  with  an  

5 (2004) 7 SCC 792 6 (2005) 12 SCC 327 7 (2007) 8 SCC 224

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application under Section 319 of the Code have been laid down in  

these cases.

16.    The  legal  position  that  can  be  culled  out  from  the  

material  provisions of Section 319 of the Code and the decided  

cases of this Court is this :

(i) The Court  can exercise the power  conferred on it  under  Section 319 of the Code suo motu or on an application by  someone.

(ii) The  power  conferred  under  Section  319(1)  applies  to  all courts including the Sessions Court.

(iii) The phrase “any person not being the accused” occurring  in  Section  319  does  not  exclude  from  its  operation  an  accused  who  has  been  released  by  the  police  under  Section 169 of the Code and has been shown in Column 2  of  the charge-sheet.  In  other  words,  the said  expression  covers any person who is not  being tried already by the  court and would include person or persons who have been  dropped  by  the  police  during  investigation  but  against  whom evidence showing their  involvement in the offence  comes before the court.

(iv) The power to proceed against any person, not being the  accused before the court,  must  be exercised only where  there  appears  during  inquiry  or  trial  sufficient  evidence  indicating his involvement in the offence as an accused and  not  otherwise.  The  word  ‘evidence’  in  Section  319  contemplates the evidence of witnesses given in court in  the  inquiry  or  trial.  The  court  cannot  add  persons  as  accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence  adduced  before  it.  In  other  words,  the  court  must  be  satisfied that a case for addition of persons as accused, not  being the accused before it,  has been made out  on the  additional evidence let in before it.

(v) The  power  conferred  upon  the  court  is  although  discretionary but is not to be exercised in a routine manner.  In a sense, it  is an extraordinary power which should be  used  very  sparingly  and  only  if  evidence  has  come  on  record which sufficiently establishes that the other person  has  committed  an  offence.  A  mere  doubt  about  

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involvement  of  the  other  person  on  the  basis  of  the  evidence let in before the court is not enough. The Court  must  also  be  satisfied  that  circumstances  justify  and  warrant  that  other  person  be  tried  with  the  already  arraigned accused.   

(vi) The court while exercising its power under Section 319 of  the Code must keep in view full conspectus  of the case  including the stage at which the trial has proceeded already  and  the quantum of evidence collected till then.   

(vii) Regard must also be had by the court to the constraints  imposed in Section 319 (4) that proceedings in respect of  newly – added persons shall be commenced afresh from  the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above  aspects and then exercise its judicial discretion.  

17. Now,  if the order of the High Court is seen, it would  

transpire  that  after  noticing the provisions contained in Section  

319 and its scope, the High Court proceeded to hold that the order  

of the Magistrate did not call for any interference.  The High Court,  

however, failed to consider whether Magistrate has addressed to  

the essential aspects before invoking his power under Section 319  

of  the  Code.   Moreover,  the  High  Court  did  not  advert  to  the  

question whether or not filing of copy of registration of the firm by  

Accused Nos. 2 and 3 would be covered by expressions ‘in the  

course  of  any  inquiry  into  or  trial’  and  ‘evidence’  occurring  in  

Section 319 of the Code and also the aspect as to whether such  

document  could  be  treated  as  an  evidence  to  show  that  the  

appellant  (newly  added  accused)  has  committed  an  offence  of  

cheating under Section 420 IPC.  As regards the criminal liability of  10

a partner in the firm, in light of the provisions contained in Section  

141 of the N.I. Act, there has to be evidence that at the time the  

offence  was  committed,  the  partner  was  in-charge  of  and  was  

responsible to the firm for the conduct of the business of the firm.  

A perusal of the impugned order would show that all these relevant  

aspects have not been considered by the High Court at all and the  

petitions under Section 482 of the Code were dismissed.  As, in  

our view, the matter  needs to be considered by the High Court  

afresh, we refrain from dealing with the orders of the Magistrate on  

merit lest it may prejudice the consideration of the petitions under  

Section 482 of the Code before the High Court.   

18. Consequently,  these  appeals  are  allowed  and  the  

impugned  order  dated  May  5,  2010  is  set  aside.   Criminal  

Miscellaneous Application Nos. 5157 of 2000, 5158 of 2000, 5159  

of 2000 and 5160 of 2000 are restored to the original number for  

hearing and reconsideration by the High Court in accordance with  

law.  

                        ………………………J.                                         (Aftab Alam)

      ……………………..J.                                         (R.M. Lodha)

NEW DELHI AUGUST 10, 2011

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