Calcutta High Court (Appellete Side)
Sk. Abdul Halim vs The State Of West Bengal & Anr on 14 November, 2024
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 71 of 2022
Sk. Abdul Halim
Vs.
The State of West Bengal & Anr.
For the Petitioners : Mr. Uday Sankar Chattopadhyay,
Ms. Aishwarya Datta,
Ms. Trisha Rakshit,
Ms. Rajashree Tah.
For the State : Mr. Imran Ali,
Ms. Debjani Sahu.
For the Opposite Party No.2 : Mr. Sayan Chattopadhyay,
Ms. Payel Shome.
Hearing concluded on : 12.11.2024
Judgment on : 14.11.2024
2
Shampa Dutt (Paul), J.:
1. The present revision has been preferred against an order dated
21.12.2021 passed by the learned Additional District and Sessions
Judge, Fast Track 2nd Court, Burdwan, in connection with Sessions Case
No.76/2008 arising out of Bhatar Police Station Case No.42 of 2007
dated 05.09.2007 under Sections 147/148/149/324/325/304/506 of
the Indian Penal Code (G.R. Case No.540 of 2007) thereby rejecting the
petition dated 11.02.2020 filed by the prosecution under Section 319 of
the Code of Criminal Procedure.
2. By the said order under revision the learned Sessions Judge has
held as follows :-
―…….It appears from the record that as early as
in 2015, P.W 1 Abdul Halim, who is the defacto
complainant of this case, stated in his
examination in chief that instead of Sk. Nasir Ali
and one Sk. Suraj has been shown as accused
by the Police in the charge sheet. So, it was
within the knowledge of the prosecution and
defacto complainant from the year 2015 that Sk.
Nasir Ali has not been shown as accused in the
charge sheet. But they kept silent for so many
years and when noticed was served on the
defacto complainant he did not file any Narazi
Petition to the same. So, after keeping silent for
more than six years, the prosecution on the date
of the examination of the accused under Section
313 of the Cr.P.C on 11.02.2020 filed the instant
petition under Section 319 of the Cr.P.C like a
bolt from the blue. Also the role of Nasir Ali in the
commission of the crime is not very clear.
Under the aforesaid circumstances, the
petition filed by the prosecution under Section
319 of the Cr.P.C on 11.02.2020 is dismissed on
contest….. ‖
3. Learned counsel for the petitioner has placed the relevant evidence
which was recorded before the trial court in support of his prayer.
3
4. PW-1 is the defacto complainant is an eye-witness under Section 319
Cr.P.C and has stated on oath that he has named Sk. Nasir in the FIR.
Admittedly, Sk. Nasir was not charge sheeted at the time of deposing
before the court. PW-1 categorically stated that Sk. Nasir is not present
in court and it was stated that he was not aware that Sk. Nasir has not
been charge sheeted.
5. PW-2, Sk. Nazrul is the son of the deceased and the relevant portion of
his evidence is as follows :-
―……..On the next day i.e. on 05.05.2007 the
accused persons from Natun Gram and Shibpur
and from the locality of Dharampur of village
brought the persons and all together 19 accused
persons, whose name I can recall, namely, Sk.
Hasem Ali, Sk. Julu, Sk. Sirajul, Sk. Santanu,
Sk. Dhani, Sk. Anu, Sk. Tewali, SI/Jamat Ali, Sk.
Rajhat Ali, Sk. Bablu, Sk. Dalim, Sk. Noor
Mohammad, Sk. Ansar, Sk. Mohiuddin and Sk.
Amjad, all of Dharampur, Sk. Nizamuddin of
Shibpur and Sakir, Moina and Nasir of
Natungram armed with lathi, bamboo, iron
rod, tangi etc. entered into our house and
started assaulting my father and my brothers,
myself and other members of the family. My
father and myself due to fear of life trying to flee
away towards the field. The accused persons
above brought down my father and us and
started assaulting us with lathi, tangi, rod etc.
As my brother Saidul Islam tried to rescue to my
father the accused persons assaulted my brother
Saidul Islam and as a result his one of the legs
was fractured and he sustained injuries all over
the body due to the assault of the aforesaid
assailants. Sk. Mohammad Ali received injury on
his head and his one of the legs was also
fractured. The accused assaulting us over the
land which was owned by Dalim Sk. and it is
situated near Ghoi Mail Math, Saidul Islam,
Halim Mohammad Ali, Makhon, Rubi Begam
were also present there while my father was
assaulted by the accused persons. Rubi Begam
was also assaulted, on her back by the accused
4persons. After assaulting my father the accused
persons fled away leaving him injured.
Thereafter in between 9 a.m. to 9.30 a.m. police
came and my father was removed to Bhatar
Hospital by the Police vehicle. Sk. Saidul Islam
and Sk. Mohammad Ali were also shifted to
Hospital by the police vehicle. My father and the
other injured persons, namely, Sk. Saidul Islam
and Sk. Mohammad Ali were referred to
Burdwan Medical College and Hospital by
government vehicle as the condition of the
aforesaid three persons were not well. After my
father and other two persons, namely, Sk. Saidul
Islam and Sk. Mohammad Ali were removed to
B.M.C.H. at about 1 p.m to 1.30 p.m my father
was declared brought dead. The other two
injured persons Sk. Saidul Islam and Sk.
Mohammad Ali were admitted in the B.M.C.H for
their treatment. I was present and eye witness
the aforesaid incident on my own.
Post mortem examination was done on the
dead-body of my father by the doctor of B.M.C.H.
We have reported the incident at the police
station and also informed the villagers. I was
examined by the I.O of this case on the date
when my father was declared brought dead.
All the accused persons except
accused Nasir and Amjad are present before
the court today. Witness identifies the accused
persons. Accused Amjad is dead. Had accused
Nasir been present before the court today, I
could have identified him.”
6. PW-3, Sk. Md. Ali is a co-villager and also an eye witnesses to the
incident has stated on oath:-
―I know Sk. Omar Ali of Village-Dharampur. He
is no more. He has been murdered. I cannot
recall the exact date, but he was murdered about
10 years back in the last part of ‗Baisak’. On the
previous day of his murder in the afternoon at
about 5 p.m there was a dispute and following
that an altercation cropped up in between Omar
Ali and Jamat Ali and his brothers and the same
was specified by the village people. On the date
of murder of Omar Ali, in the morning I was in
my house. At about 7 a.m to 7.30. a.m about 20
to 22 people chased Omar Ali towards the six
mile filed and fell him down over the agricultural
5land and started assaulting him. I rushed to the
spot while the said accused persons were
assaulting Sk. Omar Ali and having reached
there I found that the accused persons were
assaulting Omar Ali by iron rod, lathi etc. and I
asked them not to assault Omar Ali as Omar Ali
would be killed. Thereafter, Dhoni came to me
and assaulted me on my leg with an iron rod
and Hasu assaulted me on my head with the
tangi. I became senseless due to assault on my
head. I regained my sense at B. M. C. H I was
admitted in the hospital as in patient for 21
days. I was examined by Police while I was
admitted in the hospital. I can say the name of
the accused persons who chased the said Omar
Ali towards the field. They are Hasu, Jalu, Monu,
Dhoni, Santa, Anu Deb Ali, Absar, Jamat Ali,
Bablu, Rahat Ali, Dalim, Norai, Amjad, Military of
Dharampur, Sagir Moyna, Nasir of Natungram
and Nizam of Shibpur. After I regained my
sense, I came to know that Omar Ali has died.
All the accused persons save and except the
three accused persons of Natungram and
Amjad are present before the court. Witness
identifies the accused persons. Had the said
absentee accused persons been present
before the Court, I could have identified
them.
7. PW-4 is Sk. Saidul Islam, he is also the son of the deceased. This witness
is also an eye witness has stated on oath:-
―…..Sk. Omar Ali is my father. He is no more. He
was murdered by Jamat Ali, Bablu, Rahat,
Dalim, Absar, Sk. Toyeb, Sirajul, Dhoni,
Santanu, Anu, Hasu, Sk. Jalu, Noor Mohammad,
Mohiruddin, Amjad since deceased, Sakir,
Moina, Nasir, Nijamuddin. All the accused
persons are present before the Court except
Nasir and Amjad since deceased. Had Nasir
been present I could have identified him.
The accused persons are residents of
Dharampur, Natungram and Shibpur.
On 05.05.2007 in between 7.00 a.m to 7.30
a.m, the accused persons entered into our house
and started assaulting the male, female and
children of the house at random. My father was
in the house and being attacked, my father being
frightened for his life started running towards six
6mile field. The accused persons chased him and
fell him down on the agricultural land of six mile.
The accused persons started assaulting my
father with iron rod, lathi, tangi etc. I rushed to
the field to save my father and at that time
accused Noor Mohammad assaulted me on my
right leg with iron rod and I was also assaulted
by Absar by lathi. Due to assault by Noor
Mohammad, my right leg was fractured.‖
8. PW-5 Ruby Begum is the daughter-in-law of the deceased and has
deposed as follows :-
―……Sk. Omar Ali happened to be my father-in-
law. Sk. Saidul Islam is my brother-in-law
(Debor). In the year 2008 we all used to reside in
a single mess. On 05.05.2007 at about 7 a.m to
7.30 a.m in the morning there was an incident in
our house. In the morning my father-in-law Omar
Ali, my brother-in-law Sk. Saidul Islam, my elder
brother-in-law Sk. Nazrul Islam and the female
members of the house including my mother in
law, my sister in laws myself and the children of
the house were present. At that time Jamat Ali,
along with his men entered into our house
suddenly. Jamat Ali, Hasem Ali, Sk. Sirajul, Sk.
Anu, Sk. Dhoni, Sk. Santa, Sk. Toyeb Ali, Sk.
Dalim, Sk. Bablu, Sk. Rahat, Sk. Absar, Sk. Noor
Mohammad, Sk. Nizam, Sk. Sakir, Sk. Moina,
Sk. Nasir, Sk. Military, Sk. Amjad and others of
Dharampur, Natungram and Shibpur after
entering into our house started abusing us,
assaulted my brother in law Sk. Saidul and the
accused were also in search of Sk. Omar Ali. The
accused persons were armed with lathi, Sword,
rod and tangi were trying to find out my father-
in-law Sk. Omar Ali in order to kill him. My
father-in-law was trying to hide himself being
afraid. Thereafter, my father in-law Sk. Omar Ali
in order save his life was fleeing to six miles field
and the accused persons chased him in order to
assault him. The accused persons at first
assaulted my father-in-law on his leg and as a
result he fell down on the agricultural land. The
accused persons then started assaulted my
father-in-law at random and at that time my
brother-in-law Sk. Saidul tried to rescue my
father-in-law. My elder brother-in-law Sk.
7
Mohammad Ali also tried to resist the accused
persons. The accused persons assaulted my
elder brother-in-law on his head and they also
assaulted him on his leg and as a result his leg
was fractured. The accused persons also
assaulted my ‗debor’ causing fracture of his leg.
The accused persons in our house assaulted the
female members of the family. Due to assault by
the accused persons my father-in-law was lying
unconscious on the field. My elder brother-in-law
and brother-in-law (Debor) were also lying on the
field being injured. Police came to the P.O and
removed the victims to the hospital by the Police
vehicle. I was present in the police vehicle while
my father-in-law Sk. Omar Ali, my elder brother-
in-law Mohammad Ali and brother-in-law Sk.
Saidul Islam were removed to hospital.
I was medically treated at Bhatar
Hospital. The said Sk. Omar Ali, Mohammad Ali
and Sk. Saidul Islam were brought to Bhatar
Hospital. From there they were shifted to
B.M.C.H. I accompanied with my father-in-law
and brother-in-laws during their way to B.M.C.H.
My brother-in-laws were admitted in B.M.C.H
but the attending doctor after examining my
father-in-law Sk. Omar Ali declared him as
brought dead.‖
9. The State has placed the case diary wherein it appears that though
Sk. Nasir was specifically mentioned in the written complaint, his
name was not recorded in the formal FIR. The said Sk. Nasir was also
not charge sheeted.
10. The following judgments are relied upon on behalf of the petitioner:-
1. Rajesh and Ors Vs. State of Hariyana, (2019) 6 SCC 368.
2. Hardeep Singh Vs. State of Punjab & Ors., (2014) 3 SCC 92.
3. Jitendra Nath Mishra Vs State of Uttar Pradesh and Anr, (2023) 7
SCC 344.
11. Learned counsel for Sk. Nasir/Opposite Party No. 2 has relied upon
the following judgments :-
8
1. Vishal Singh Vs. State of Uttar Pradesh and Ors, 2024 SCC OnLine
SC 730.
2. Hardeep Singh Vs. State of Punjab and Ors., (2014) 3 SCC 92.
12. This Court now relies upon a decision of a constitution Bench of the
Supreme Court in Sukhpal Singh Khaira vs. The State of Punjab
(2022 LiveLaw (SC) 1009) in Criminal Appeal No. 885 of 2019 on
December 05, 2022, where in the Court issued elaborate guidelines on
the exercise of powers to summon additional accused under Section
319 Cr.P.C.
13. The relevant paragraphs applicable in the present case before this
Court are:-
―13. In the background of the rival contentions, in
order to determine the question referred to us, it
would be appropriate for us to at the outset, take
note of the provision as contained in Section 319 of
CrPC, which reads as hereunder: –
―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.
9
(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.‖
14. At the outset, having noted the provision, it is
amply clear that the power bestowed on the Court is
to the effect that in the course of an inquiry into, or
trial of an offence, based on the evidence tendered
before the Court, if it appears to the Court that such
evidence points to any person other than the
accused who are being tried before the Court to have
committed any offence and such accused has been
excluded in the charge sheet or in the process of trial
till such time could still be summoned and tried
together with the accused for the offence which
appears to have been committed by such
persons summoned as additional accused.
15. In that regard, the object of incorporating the
provision in the CrPC and bestowing such power to
the Court was based on the recommendation made
by the Law Commission of India in its Forty-First
Report to which all the learned senior counsel have
made extensive reference, read as hereunder:-
24.80. It happens sometimes, though not very often,
that a Magistrate hearing a case against certain
accused finds from the evidence that some person,
other than the accused before him, is also concerned
in that very offence or in a connected offence. It is
only proper that the Magistrate should have the
power to call and join him in the
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.
10
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 Magistrate’s own
information under section 190(1)(c), or only in the
manner in which cognizance was first taken of the
offence against the other accused. In concrete terms,
if the original case was instituted on a police report,
i.e. under section 190(1)(b), will cognizance against
the new accused be supposed to have been taken in
the same manner, or under section 190(1)(c)? The
question is important, because the methods of
enquiry 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 as against the other
accused. We, therefore, propose to re-cast section
351 making it comprehensive and providing that
there will be no difference in the mode of taking
cognizance if a new person is added as an accused
during the proceedings. It is, of course, necessary
(as is already provided) that in such a situation the
evidence must be re-heard in the presence of the
newly added accused.
24.82 The offence for which the newly added
accused can be tried is not indicated in precise
terms in the section. Obviously, that offence should
be connected with the one for which the original
accused is under trial. To bring that out, a small
verbal amendment is recommended.
16. In the above backdrop, the issue relating to the
power to be exercised under Section 319 of CrPC
had arisen for detailed consideration in Hardeep
Singh (supra) wherein the scope, procedure and the
stage at which such power was to be exercised was
considered and summarised as follows:-
11
12. Section 319 CrPC 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 CrPC.
13. 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 CrPC?
15. It would be necessary to put on record that the
power conferred under Section 319 CrPC is only on
the court. This has to be understood in the context
that Section 319 CrPC empowers only the court to
proceed against such person. The word ―court‖ in
our hierarchy of criminal courts has been defined
under Section 6 CrPC, which includes the Courts of
Session, Judicial Magistrates, Metropolitan
Magistrates as well as Executive Magistrates. The
Court of Session is defined in Section 9 CrPC and
the Courts of the Judicial Magistrates have been
defined under Section 11 thereof. The Courts of the
Metropolitan Magistrates have been defined
under Section 16 CrPC. The courts which can try
offences committed under the Penal Code, 1860 or
any offence under any other law, have been
specified under Section 26 CrPC read with the 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.
40. Even the word ―course‖ occurring in Section
319 CrPC, 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
12person from the initial stage of inquiry up to the
stage of the conclusion of the trial. The court does
not become functus officio even if cognizance is
taken so far as it is looking into the material qua any
other person who is not an accused. The word
―course‖ ordinarily conveys a meaning of a
continuous progress from one point to the next in
time and conveys the idea of a period of time :
duration and not a fixed point of time.
42. To say that powers under Section 319 CrPC 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.
47. 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) CrPC can be exercised at
any time after the charge- sheet is filed and
before the pronouncement of judgment, except
during the stage of Sections 207/208 CrPC,
committal, etc. which is only a pre- trial stage,
intended to put the process into motion. This
stage cannot be said to be a judicial step in the true
sense for it only requires an application of mind
rather than a judicial application of mind. 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 with Sections
207 and 208 CrPC, and committing the matter if it is
exclusively triable by the Sessions Court. Therefore,
it would be legitimate for us to conclude that the
Magistrate at the stage of Sections 207 to 209 CrPC
is forbidden, by express provision of Section
319 CrPC, 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 Session.
13
57. Thus, the application of the provisions of Section
319 CrPC, at the stage of inquiry is to be understood
in its correct perspective. The power under Section
319 CrPC 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.
(emphasis supplied)
17. In view of the reference contained in the order
passed by the Bench consisting of two Hon’ble
Judges seeking clarity in the matter due to the view
taken by another Bench of two Hon’ble Judges in
Shashikant Singh (supra) where, purportedly the
summoned accused was proceeded against after the
judgment was passed against the accused who
were originally charged, it is necessary to take note
of the situation that had arisen therein and the
conclusion reached in that case. It is noted that in a
case under Section 302/34 of IPC wherein
Shivakant Singh, the brother of Shashikant Singh
(supra) was murdered, the trial proceeded against
one Chandra Shekar Singh. When the evidence was
recorded it was found that Tarkeshwar Singh and
two others had also committed the offence of murder
of Shivakant Singh. The learned Additional
Sessions Judge by order dated 07.04.2001
exercised the power under Section 319 of CrPC
and ordered to issue a warrant of arrest so
that they may be tried together with Chandra
Shekar Singh, the accused against whom the
trial was proceeding. The said order dated
07.04.2001 summoning the accused came to be
assailed by Tarkeshwar Singh before the High Court
in Criminal Revision No.269 of 2001. During the
pendency of the said Revision Petition before the
High Court the learned Additional Sessions Judge
concluded the pending trial against the originally
charged accused Chander Shekar Singh and
convicted him by the judgment dated 16.07.2001.
The question which therefore arose in that context
was as to whether the trial in the case in which
additional accused were summoned under Section
14
319 of CrPC including Tarkeshwar Singh can
proceed in view of the phrase ―could be tried
together with the accused‖ contained in Section
319(1) of CrPC after the trial against other accused
had concluded with the order of conviction.
18. In that context the Bench of two Hon’ble Judges
which allowed the trial to proceed against the
summoned accused, Tarkeshwar Singh and others
held as hereunder:
―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 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
15resulting in an order for his being brought
before the court.”
(emphasis supplied)
19. Thus, to put the matter in perspective, a perusal
of the recommendation of the Law Commission
would indicate the intention that an accused who is
not charge sheeted but if is found to be involved
should not go scot- free. Hence, Section 319 of CrPC
was incorporated which provides for the Court to
exercise the power to ensure the same before the
conclusion of trial so as to try such accused by
summoning and being proceeded along with the
other accused. In Shashikant Singh (supra), a
Bench of two Hon’ble Judges, on holding that the
joint trial is not a must has held the requirement as
contained in Section 319(1) of CrPC as only
directory, and as such the judgment of conviction
dated 16.07.2001 against the charge-
sheeted accused was considered not to be an
impediment for the court to proceed against the
accused who was added by the summoning order
dated 07.04.2001, which in any case was prior to
the conclusion of the trial which in our view satisfies
the requirement since the summoning order was
before the judgment. In the case of Hardeep Singh
(supra) also the power of the Court under Section
319 of CrPC has been upheld, reiterated, and it has
been held that such power is available to be
exercised at any time before the pronouncement of
judgment. Therefore, there is no conflict or diverse
view in the said decisions insofar as the exercise of
power, the manner and the stage at which power is
to be exercised. However, a certain amount of
ironing the crease is required to explain the
connotation of the phrase ―could be tried together
with the accused‖ appearing in sub-section (1) read
with the requirement in sub-section 4(a) to Section
319 of CrPC and to understand the true purport of
exercising the power as per the phrase ―before the
pronouncement of judgment‖.
20. A close perusal of Section 319 of CrPC indicates
that the power bestowed on the court to summon
any person who is not an accused in the case is,
when in the course of the trial it appears from the
evidence that such person has a role in committing
16
the offence. Therefore, it would be open for the
Court to summon such a person so that he
could be tried together with the accused and
such power is exclusively of the Court.
Obviously, when such power is to summon the
additional accused and try such a person with
the already charged accused against whom the
trial is proceeding, it will have to be exercised
before the conclusion of trial. The connotation
‗conclusion of trial’ in the present case cannot be
reckoned as the stage till the evidence is recorded,
but, is to be understood as the stage before
pronouncement of the judgment as already held in
Hardeep Singh (supra) since on judgment being
pronounced the trial comes to a conclusion since
until such time the accused is being tried by the
Court.
27. Therefore, from a perusal of the provisions and
decisions of this Court, it is clear that the conclusion
of the trial in a criminal prosecution if it ends in
conviction, a judgment is considered to be complete
in all respects only when the sentence is imposed on
the convict, if the convict is not given the benefit
of Section 360 of CrPC. Similarly, in a case where
there are more than one accused and if one or more
among them are acquitted and the others are
convicted, the trial would stand concluded as
against the accused who are acquitted and the trial
will have to be concluded against the convicted
accused with the imposition of sentence. When
considered in the context of Section 319 of CrPC,
there would be no dichotomy as argued, since what
becomes relevant here is only the decision to
summon a new accused based on the evidence
available on record which would not prejudice the
existing accused since in any event they are
convicted.
28. In that view of the matter, if the Court finds from
the evidence recorded in the process of trial that any
other person is involved, such power to summon the
accused under Section 319 of CrPC can be exercised
by passing an order to that effect before the
sentence is imposed and the judgment is complete in
all respects bringing the trial to a conclusion. While
arriving at such conclusion what is also to be kept in
view is the requirement of sub-section (4) to Section
319 of CrPC. From the said provision it is clear
17
that if the learned Sessions Judge exercises
the power to summon the additional accused,
the proceedings in respect of such person shall
be commenced afresh and the witnesses will
have to be re-examined in the presence of the
additional accused. In a case where the learned
Sessions Judge exercises the power under Section
319 of CrPC after recording the evidence of the
witnesses or after pronouncing the judgment of
conviction but before sentence being imposed, the
very same evidence which is available on record
cannot be used against the newly added accused in
view of Section 273 of CrPC. As against the
accused who has been summoned subsequently
a fresh trial is to be held. However while
considering the application under Section 319 of
CrPC, if the decision by the learned Sessions Judge
is to summon the additional accused before passing
the judgment of conviction or passing an order on
sentence, the conclusion of the trial by pronouncing
the judgment is required to be withheld and the
application under Section 319 of CrPC is required to
be disposed of and only then the conclusion of the
judgment, either to convict the other accused who
were before the Court and to sentence them can be
proceeded with. This is so since the power
under Section 319 of CrPC can be exercised only
before the conclusion of the trial by passing the
judgment of conviction and sentence.
29. Though Section 319 of CrPC provides that
such person summoned as per sub-section (1)
thereto could be jointly tried together with the
other accused, keeping in view the power
available to the Court under Section 223 of
CrPC to hold a joint trial, it would also be open
to the learned Sessions Judge at the point of
considering the application under Section
319 of CrPC and deciding to summon the
additional accused, to also take a decision as
to whether a joint trial is to be held after
summoning such accused by deferring the
judgment being passed against the tried
accused. If a conclusion is reached that the fresh
trial to be conducted against the newly added
accused could be separately tried, in such event it
would be open for the learned Sessions Judge to
order so and proceed to pass the judgment and
conclude the trial insofar as the accused against
18
whom it had originally proceeded and thereafter
proceed in the case of the newly added accused.
However, what is important is that the decision to
summon an additional accused either suo-moto
by the Court or on an application under Section
319 of CrPC shall in all eventuality be considered
and disposed of before the judgment of conviction
and sentence is pronounced, as otherwise, the trial
would get concluded and the Court will get divested
of the power under Section 319 of CrPC. Since a
power is available to the Court to decide as to
whether a joint trial is required to be held or not, this
Court was justified in holding the phrase, ―could be
tried together with the accused‖ as contained
in Section 319(1) of CrPC, to be directory as held in
Shashikant Singh (supra) which in our opinion is
the correct view.
30. One other aspect which is necessary to be
clarified is that if the trial against the absconding
accused is split up (bifurcated) and is pending, that
by itself will not provide validity to an application
filed under Section 319 of CrPC or the order of Court
to summon an additional accused in the earlier main
trial if such summoning order is made in the earlier
concluded trial against the other accused. This is so,
since such power is to be exercised by the Court
based on the evidence recorded in that case pointing
to the involvement of the accused who is sought to
be summoned. If in the split up (bifurcated) case, on
securing the presence of the absconding accused the
trial is commenced and if in the evidence recorded
therein it points to the involvement of any other
person as contemplated in Section 319 of CrPC, such
power to summon the accused can certainly be
invoked in the split up (bifurcated) case before
conclusion of the trial therein.
31. In analysing the issue and making the above
conclusion on all aspects, we are also persuaded by
the view taken by this Court, among others, in the
case of Rajendra Singh vs. State of U.P. and
Another (2007) 7 SCC 378 wherein it is concluded
with regard to the object of Section 319 of CrPC as
hereunder:-
―20. The power under Section 319 of the Code is
conferred on the court to ensure that justice is done
to the society by bringing to book all those guilty of
19an offence. One of the aims and purposes of the
criminal justice system is to maintain social order. It
is necessary in that context to ensure that no one
who appears to be guilty escapes a proper trial in
relation to that guilt. There is also a duty to render
justice to the victim of the offence. It is in recognition
of this that the Code has specifically conferred a
power on the court to proceed against others not
arrayed as accused in the circumstances set out by
this section. It is a salutary power enabling the
discharge of a court’s obligation to the society to
bring to book all those guilty of a crime.
21. Exercise of power under Section 319 of the Code,
in my view, is left to the court trying the offence
based on the evidence that comes before it. The
court must be satisfied of the condition precedent for
the exercise of power under Section 319 of the Code.
There is no reason to assume that a court trained in
law would not exercise the power within the
confines of the provision and decide whether it may
proceed against such person or not. There is no
rationale in fettering that power and the discretion,
either by calling it extraordinary or by stating that it
will be exercised only in exceptional circumstances.
It is intended to be used when the occasion
envisaged by the section arises.‖
32. We have also kept in view the point by point
analysis of the object and power to be exercised
under Section 319 of CrPC, as has been indicated in
para 34 of Manjit Singh vs. State of Haryana
and Others (2021) SCC Online SC 632.
33. For all the reasons stated above, we answer the
questions referred as hereunder:-
―I. Whether the trial court has the power
under Section 319 of CrPC for summoning additional
accused when the trial with respect to other co-
accused has ended and the judgment of conviction
rendered on the same date before pronouncing the
summoning order?
The power under Section 319 of CrPC is to be
invoked and exercised before the pronouncement of
the order of sentence where there is a judgment of
conviction of the accused. In the case of acquittal,
20the power should be exercised before the order of
acquittal is pronounced.
Hence, the summoning order has to precede
the conclusion of trial by imposition of sentence in
the case of conviction. If the order is passed on the
same day, it will have to be examined on the facts
and circumstances of each case and if such
summoning order is passed either after the order of
acquittal or imposing sentence in the case of
conviction, the same will not be sustainable.
II. Whether the trial court has the power
under Section 319 of the CrPC for summoning
additional accused when the trial in respect of
certain other absconding accused (whose presence
is subsequently secured) is ongoing/pending, having
been bifurcated from the main trial?
The trial court has the power to summon
additional accused when the trial is proceeded in
respect of the absconding accused after securing his
presence, subject to the evidence recorded in the
split up (bifurcated) trial pointing to the involvement
of the accused sought to be summoned. But the
evidence recorded in the main concluded trial cannot
be the basis of the summoning order if such power
has not been exercised in the main trial till its
conclusion.
III. What are the guidelines that the competent court
must follow while exercising power under Section
319 CrPC?‖
(i) If the competent court finds evidence or if
application under Section 319 of CrPC is filed
regarding involvement of any other person in
committing the offence based on evidence recorded
at any stage in the trial before passing of the order
on acquittal or sentence, it shall pause the trial at
that stage.
(ii) The Court shall thereupon first decide the need or
otherwise to summon the additional accused and
pass orders thereon.
(iii) If the decision of the court is to exercise the
power under Section 319 of CrPC and summon
the accused, such summoning order shall be
21
passed before proceeding further with the trial in the
main case.
(iv) If the summoning order of additional accused is
passed, depending on the stage at which it is
passed, the Court shall also apply its mind to the
fact as to whether such summoned accused is to be
tried along with the other accused or separately.
(v) If the decision is for joint trial, the fresh trial shall
be commenced only after securing the presence of
the summoned accused.
(vi) If the decision is that the summoned accused can
be tried separately, on such order being made, there
will be no impediment for the Court to continue and
conclude the trial against the accused who were
being proceeded with.
(vii) If the proceeding paused as in (i) above is in a
case where the accused who were tried are to be
acquitted and the decision is that the summoned
accused can be tried afresh separately, there will
be no impediment to pass the judgment of acquittal
in the main case.
(viii) If the power is not invoked or exercised in the
main trial till its conclusion and if there is a split-up
(bifurcated) case, the power under Section 319 of
CrPC can be invoked or exercised only if there is
evidence to that effect, pointing to the involvement of
the additional accused to be summoned in the split
up (bifurcated) trial.
(ix) If, after arguments are heard and the case is
reserved for judgment the occasion arises for the
Court to invoke and exercise the power
under Section 319 of CrPC, the appropriate course
for the court is to set it down for re-hearing.
(x) On setting it down for re-hearing, the above laid
down procedure to decide about summoning; holding
of joint trial or otherwise shall be decided and
proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision
is to summon additional accused and hold a joint
trial the trial shall be conducted afresh and de novo
proceedings be held.
22
(xii) If, in that circumstance, the decision is to hold a
separate trial in case of the summoned accused as
indicated earlier;
(a) The main case may be decided by pronouncing
the conviction and sentence and then proceed afresh
against summoned accused.
(b) In the case of acquittal the order shall be passed
to that effect in the main case and then proceed
afresh against summoned accused.‖
14. The Supreme Court in Sartaj Singh Vs. The State of Haryana, AIR
2021 SC 1513, held as follows:-
6.1 While considering the rival
submissions, the law on the scope and
ambit of Section 319 CrPC is required to
be considered and for that few decisions
of this Court are required to be referred
to.
6.1.1 In Hardeep Singh (supra), this
Court had an occasion to consider in
detail the scope and ambit of the powers
of the Magistrate under Section
319 CrPC, the object and purpose
of Section 319 CrPC etc. It is observed
in the said decision that the entire effort
is not to allow the real perpetrator of an
offence to get away unpunished. It is
observed that this is also a part of fair
trial and in order to achieve this very end
that the legislature thought of
incorporating the provisions of Section
319 CrPC. It is further observed that for
the empowerment of the courts to ensure
that the criminal administration of justice
works properly, the law has been
appropriately codified and modified by
the legislature under the CrPC indicating
as to how the Courts should proceed to
ultimately find out the truth so that the
innocent does not get punished but at the
same time, the guilty are brought to book
under the law. It is also observed that it
is the duty of the court to find out the real
truth and to ensure that the guilty does
23not go unpunished. In Paragraphs 8 and
9, this Court observed and held as under:
―8. The constitutional mandate
under Articles 20 and 21 of the
Constitution of India 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 society at large to
ensure that the guilty does not get
away from the clutches of law. For
the empowerment of the courts to
ensure that the criminal
administration of justice works
properly, the law was appropriately
codified and modified by the
legislature under CrPC 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.
9. The presumption of innocence is
the general law of the land as every
man is presumed to be innocent
unless proven to be guilty.
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
24
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 CrPC. 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 abovementioned
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 the subjectmatter
of trial.‖
6.1.2 In the said case, the following five
questions fell for consideration before this
Court.
(i) What is the stage at which power
under Section 319 CrPC can be
exercised?
(ii) Whether the word ―evidence‖ used
in Section 319(1) CrPC 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 examinationinchief of the
witness concerned?
(iii) Whether the word ―evidence‖ used
in Section 319(1) CrPC 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 CrPC to
arraign an accused? Whether the
power under Section 319(1) CrPC can
25
be exercised only if the court is
satisfied that the accused summoned
will in all likelihood be convicted?
(v) Does the power under Section
319 CrPC extend to persons not
named in the FIR or named in the FIR
but not charged or who have been
discharged?‖
6.1.3 While considering the aforesaid
questions, this Court in Hardeep
Singh (supra) observed and held as
under:
12. Section 319 CrPC 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 CrPC.
13. 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 CrPC?
14. The submissions that were raised
before us covered a very wide canvas
and the learned counsel have taken
us through various provisions
of CrPC and the judgments that have
been relied on for the said purpose.
The controversy centres 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.
xxx xxx xxx
26
17. Section 319 CrPC 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 CrPC or a person
whose name has been disclosed in
any material before the court that is
to be considered for the purpose of
trying the offence, but not
investigated. He has to be a person
whose complicity may be indicated
and connected with the commission of
the offence.
18. 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 scotfree by being not
arraigned in the trial in spite of the
possibility of his complicity which can
be gathered from the documents
presented by the prosecution.
19. The court is the sole repository of
justice and a duty is cast upon it to
uphold the rule of law and, therefore,
it will be inappropriate to deny the
existence of such powers with the
courts in our criminal justice system
where it is not uncommon that the
real accused, at times, get away by
manipulating the investigating and/or
the prosecuting agency. The desire to
avoid trial is so strong that an
accused makes efforts at times to get
himself absolved even at the stage of
investigation or inquiry even though
27
he may be connected with the
commission of the offence.
xxx xxx xxx
22. In our opinion, Section 319 CrPC
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 with by this
Court in Dharam Pal (CB) [Dharam
Pal v. State of Haryana, (2014) 3 SCC
306 : AIR 2013 SC 3018] .
xxx xxx xxx
47. Since after the filing of the
chargesheet, 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) CrPC can be
exercised at any time after the
chargesheet is filed and before the
pronouncement of judgment, except
during the stage of Sections
207/208 CrPC, committal, etc. which
is only a pretrial stage, intended to
put the process into motion. This
stage cannot be said to be a judicial
step in the true sense for it only
requires an application of mind rather
than a judicial application of mind. 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
with Sections 207 and 208 CrPC, and
committing the matter if it is
exclusively triable by the Sessions
Court. Therefore, it would be
legitimate for us to conclude that the
Magistrate at the stage of Sections
28
207 to 209 CrPC is forbidden, by
express provision of Section
319 CrPC, 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 Session.
xxx xxx xxx
53. It is thus aptly clear that until
and unless the case reaches the
stage of inquiry or trial by the court,
the power under Section 319 CrPC
cannot be exercised. In fact, this
proposition does not seem to have
been disturbed by the Constitution
Bench in Dharam Pal (CB) [Dharam
Pal v. State of Haryana, (2014) 3 SCC
306 :
AIR 2013 SC 3018] . The dispute
therein was resolved visualising a
situation wherein the court was
concerned with procedural delay and
was of the opinion that the Sessions
Court should not necessarily wait till
the stage of Section 319 CrPC is
reached to direct a person, not facing
trial, to appear and face trial as an
accused. We are in full agreement
with the interpretation given by the
Constitution Bench that Section 193
CrPC confers power of original
jurisdiction upon the Sessions Court
to add an accused once the case has
been committed to it.
54. In our opinion, the stage of
inquiry does not contemplate any
evidence in its strict legal sense, nor
could the legislature have
contemplated this inasmuch as the
stage for evidence has not yet
arrived. The only material that the
court has before it is the material
collected by the prosecution and the
court at this stage prima facie can
apply its mind to find out as to
whether a person, who can be an
accused, has been erroneously
omitted from being arraigned or has
29been deliberately excluded by the
prosecuting agencies. This is all the
more necessary in order to ensure
that the investigating and the
prosecuting agencies have acted
fairly in bringing before the court
those persons who deserve to be tried
and to prevent any person from being
deliberately shielded when they
ought to have been tried. This is
necessary to usher faith in the
judicial system whereby the court
should be empowered to exercise
such powers even at the stage of
inquiry and it is for this reason that
the legislature has consciously used
separate terms, namely, inquiry or
trial in Section 319 CrPC.
55. Accordingly, we hold that the
court can exercise the power
under Section 319 CrPC only after the
trial proceeds and commences with
the recording of the evidence and also
in exceptional circumstances as
explained hereinabove.
56. There is yet another set of
provisions which form part of inquiry
relevant for the purposes of Section
319 CrPC i.e. provisions of Sections
200, 201, 202, etc. CrPC applicable in
the case of complaint cases. As has
been discussed herein, evidence
means evidence adduced before the
court. Complaint case 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 CrPC 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,
30such evidence can be used only to
corroborate the evidence recorded
during the trial (sic or) for the purpose
of Section 319 CrPC, if so required.
What is essential for the purpose of
the section is that there should
appear some evidence against a
person not proceeded against and the
stage of the proceedings is irrelevant.
Where the complainant is circumspect
in proceeding against several
persons, but the court is of the opinion
that there appears to be some
evidence pointing to the complicity of
some other persons as well, Section
319 CrPC acts as an empowering
provision enabling the
court/Magistrate to initiate
proceedings against such other
persons. The purpose of Section
319 CrPC 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 CrPC at the
stage of trial in a complaint case
when the evidence of the complainant
as well as his witnesses are being
recorded.
6.1.4 While answering Questions (iii),
namely, whether the word ―evidence‖
used in Section 319(1) CrPC 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, this Court, in the aforesaid decision
has observed and held as under:
―58. To answer the questions and to
resolve the impediment that is being
faced by the trial courts in exercising
of powers under Section 319 CrPC,
the issue has to be investigated by
examining the circumstances which
give rise to a situation for the court to
invoke such powers. The
31circumstances 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 come 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 CrPC indicate that the
material has to be ―where … it
appears from the evidence‖ before the
court.
59. Before we answer this issue, let
us examine the meaning of the word
―evidence‖. According to Section 3 of
the Evidence Act, ―evidence‖ means
and includes:
―(1) all statements which the court
permits or requires to be made before
it by witnesses, in relation to matters
of fact under inquiry;
such statements are called oral
evidence; (2) all documents including
electronic records produced for the
inspection of the court;
such documents are called
documentary evidence.‖
xxx xxx xxx
78. It is, therefore, clear that the
word ―evidence‖ in Section 319 CrPC
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 the
power under Section 319 CrPC is to
be exercised and not on the basis of
32material collected during the
investigation.
xxx xxx xxx
82. This pretrial stage is a stage
where no adjudication on the
evidence of the offences involved
takes place and therefore, after the
material along with the chargesheet
has been brought before the court, the
same can be inquired into in order to
effectively proceed with framing of
charges. After the charges are
framed, the prosecution is asked to
lead evidence and till that is done,
there is no evidence available in the
strict legal sense of Section 3 of the
Evidence Act. The actual trial of the
offence by bringing the accused
before the court has still not begun.
What is available is the material that
has been submitted before the court
along with the charge sheet. In such
situation, the court only has the
preparatory material that has been
placed before the court for its
consideration in order to proceed with
the trial by framing of charges.
83. It is, therefore, not any material
that can be utilised, rather it is that
material after cognizance is taken by
a court, that is available to it while
making an inquiry into or trying an
offence, that the court can utilise 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. This would
33
harmonise such material with the
word ―evidence‖ as material that
would be supportive in nature to
facilitate the exposition of any other
accomplice whose complicity in the
offence may have either been
suppressed or escaped the notice of
the court.
84. The word ―evidence‖ therefore
has to be understood in its wider
sense both at the stage of trial and,
as discussed earlier, even at the
stage of inquiry, as used
under Section 319 CrPC. The court,
therefore, should be understood to
have the power to proceed against
any person after summoning him on
the basis of any such material as
brought forth before it. The duty and
obligation of the court becomes more
onerous to invoke such powers
cautiously on such material after
evidence has been led during trial.
85. In view of the discussion made
and the conclusion drawn
hereinabove, the answer to the
aforesaid question posed is that apart
from evidence recorded during trial,
any material that has been received
by the court after cognizance is taken
and before the trial commences, can
be utilised only for corroboration and
to support the evidence recorded by
the court to invoke the power
under Section 319 CrPC. The
―evidence‖ is thus, limited to the
evidence recorded during trial.
6.1.5 While answering Question (ii)
namely, whether the word ―evidence‖ used
in Section 319(1) CrPC means as arising in
examinationinchief or also together with
crossexamination, in the aforesaid
decision, this Court has observed and held
as under:
34
86. The second question referred to
herein is in relation to the word
―evidence‖ as used
under Section 319 CrPC, 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
examinationinchief. In Rakesh [(2001)
6 SCC 248 : 2001 SCC (Cri) 1090 :
AIR 2001 SC 2521] , it was held that:
(SCC p. 252, para 10)―10. … 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.‖
87. In Ranjit Singh [Ranjit Singh v.
State of Punjab, (1998) 7 SCC 149 :
1998 SCC (Cri) 1554 : AIR 1998 SC
3148] , this Court held that: (SCC p.
156, para 20)―20. … it is not necessary for the
court to wait until the entire
evidence is collected for exercising
the said powers.‖
88. In Mohd. Shafi [Mohd. Shafi v.
Mohd. Rafiq, (2007) 14 SCC 544 :
35
(2009) 1 SCC (Cri) 889 : AIR 2007 SC
1899] , it was held that the
prerequisite for exercise of power
under Section 319 CrPC is 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 crossexamination is over
and that there would be no illegality
in doing so. A similar view has been
taken by a twoJudge Bench
in Harbhajan Singh v. State of
Punjab [(2009) 13 SCC 608 : (2010) 1
SCC (Cri) 1135] . This Court
in Hardeep Singh [Hardeep Singh v.
State of Punjab, (2009) 16 SCC 785 :
(2010) 2 SCC (Cri) 355] seems to have
misread the judgment in Mohd. Shafi
[Mohd. Shafi v. Mohd. Rafiq, (2007)
14 SCC 544 : (2009) 1 SCC (Cri) 889 :
AIR 2007 SC 1899] , as it construed
that the said judgment laid down that
for the exercise of power
under Section 319 CrPC, the court
has to necessarily wait till the
witness is crossexamined and on
complete appreciation of evidence,
come to the conclusion whether there
is a need to proceed under Section
319 CrPC.
89. We have given our thoughtful
consideration to the diverse views
expressed in the aforementioned
cases. Once examinationinchief is
conducted, the statement becomes
part of the record. It is evidence as
per law and in the true sense, for at
best, it may be rebuttable. An
evidence being rebutted or
controverted becomes a matter of
consideration, relevance and belief,
which is the stage of judgment by the
court. Yet it is evidence and it is
material on the basis whereof the
court can come to a prima facie
opinion as to complicity of some other
36person who may be connected with
the offence.
90. As held in Mohd. Shafi [Mohd.
Shafi v. Mohd. Rafiq, (2007) 14 SCC
544 : (2009) 1 SCC (Cri) 889 : AIR
2007 SC 1899] and Harbhajan Singh
[(2009) 13 SCC 608 : (2010) 1 SCC
(Cri) 1135] , all that is required for the
exercise of the power under Section
319 CrPC 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
prerequisite 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 straitjacket
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
examinationinchief, it can exercise the
power under Section 319 CrPC 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 minitrial at
this stage by having examination and
crossexamination and thereafter
rendering a decision on the overt act
of such person sought to be added. In
fact, it is this minitrial that would
affect the right of the person sought to
be arraigned as an accused rather
than not having any cross-
examination at all, for in light of sub-
section (4) of Section 319 CrPC, 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
37
examinationinchief, 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,
examinationinchief untested by cross-
examination, undoubtedly in itself, is
an evidence.
91. Further, in our opinion, there does
not seem to be any logic behind
waiting till the crossexamination of
the witness is over. It is to be kept in
mind that at the time of exercise of
power under Section 319 CrPC, 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(es) prior to
passing of an order under Section
319 CrPC, as such a procedure is not
contemplated by CrPC. 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(es) is obliterating the role of
persons already facing trial. More
so, Section 299 CrPC enables the
court to record evidence in absence of
the accused in the circumstances
mentioned therein.
92. Thus, in view of the above, we
hold that power under Section
319 CrPC can be exercised at the
stage of completion of examinationin-
chief and the 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
38
of some other person(s), not facing the
trial in the offence.
6.1.6 While answering Question (iv),
namely, what is the degree of satisfaction
required for invoking the power
under Section 319 CrPC, this Court after
considering various earlier decisions on
this point, has observed and held as
under:
105. Power under Section 319 CrPC
is a discretionary and an
extraordinary power. It is to be
exercised sparingly and only in those
cases where the circumstances of the
case so warrant. It is not to be
exercised because the Magistrate or
the Sessions Judge is of the opinion
that some other person may also be
guilty of committing that offence. Only
where strong and cogent evidence
occurs against a person from the
evidence led before the court that
such power should be exercised and
not in a casual and cavalier manner.
106. Thus, we hold that though only
a prima facie case is to be
established from the evidence led
before the court, not necessarily
tested on the anvil of cross
examination, it requires much
stronger evidence than mere
probability of his complicity. The test
that has to be applied is one which is
more than prima facie case as
exercised at the time of framing of
charge, but short of satisfaction to an
extent that the evidence, if goes
unrebutted, would lead to conviction.
In the absence of such satisfaction,
the court should refrain from
exercising power under Section
319 CrPC. In Section 319 CrPC 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
39
which such person could be tried
together with the accused‖. The
words used are not ―for which such
person could be convicted‖. There is,
therefore, no scope for the court acting
under Section 319 CrPC to form any
opinion as to the guilt of the accused.
6.1.7 While answering Question (v),
namely, in what situations can the power
under Section 319 CrPC be exercised:
named in the FIR, but not chargesheeted
or has been discharged, this Court has
observed and held as under:
112. However, there is a great
difference with regard to a person
who has been discharged. A person
who has been discharged stands on
a different footing than a person who
was never subjected to investigation
or if subjected to, but not charge-
sheeted. Such a person has stood the
stage of inquiry before the court and
upon judicial examination of the
material collected during
investigation, the court had come to
the conclusion that there is not even a
prima facie case to proceed against
such person. Generally, the stage of
evidence in trial is merely proving the
material collected during investigation
and therefore, there is not much
change as regards the material
existing against the person so
discharged.
Therefore, there must exist compelling
circumstances to exercise such power.
The court should keep in mind that
the witness when giving evidence
against the person so discharged, is
not doing so merely to seek revenge
or is naming him at the behest of
someone or for such other extraneous
considerations. The court has to be
circumspect in treating such evidence
and try to separate the chaff from the
grain. If after such careful
examination of the evidence, the court
40
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 CrPC without
resorting to the provision of Section
319 CrPC directly.
xxx xxx xxx
116. Thus, it is evident that power
under Section 319 CrPC can be
exercised against a person
not subjected to investigation, or a
person placed in Column 2 of the
chargesheet and against whom
cognizance had not been taken, or a
person who has been discharged.
However, concerning a person who
has been discharged, no proceedings
can be commenced against him
directly under Section 319 CrPC
without taking recourse to provisions
of Section 300(5) read with Section
398 CrPC.
6.2 Considering the law laid down
by this Court in Hardeep Singh (supra)
and the observations and findings
referred to and reproduced hereinabove,
it emerges that (i) the Court can exercise
the power under Section 319 CrPC even
on the basis of the statement made in the
examinationinchief of the witness
concerned and the Court need not wait
till the crossexamination of such a
witness and the Court need not wait for
the evidence against the accused
proposed to be summoned to be tested by
cross examination; and (ii) 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 CrPC, provided from
the evidence (may be on the basis of the
evidence collected in the form of
statement made in the examinationinchief
of the witness concerned), it appears that
such person can be tried along with the
accused already facing trial.
41
6.3 In S. Mohammed Ispahani v.
Yogendra Chandak, (2017) 16 SCC
226, this Court has observed and held as
under: (SCC p. 243)
―35. It needs to be highlighted that
when a person is named in the FIR by
the complainant, but police, after
investigation, finds no role of that
particular person and files the charge-
sheet without implicating him, the
Court is not powerless, and at the
stage of summoning, if the trial court
finds that a particular person should
be summoned as accused, even
though not named in the chargesheet,
it can do so. At that stage, chance is
given to the complainant also to file a
protest petition urging upon the trial
court to summon other persons as
well who were named in the FIR but
not implicated in the chargesheet.
Once that stage has gone, the Court is
still not powerless by virtue of Section
319 CrPC. However, this section gets
triggered when during the trial some
evidence surfaces against the
proposed accused.‖
6.4 In the case of Rajesh v. State of
Haryana (2019) 6 SCC 368, after
considering the observations made by
this Court in Hardeep Singh (supra)
referred to hereinabove, this Court has
further observed and held that even in a
case where the stage of giving
opportunity to the complainant to file a
protest petition urging upon the trial court
to summon other persons as well who
were named in FIR but not implicated in
the chargesheet has gone, in that
case also, the Court is still not powerless
by virtue of Section 319 CrPC and even
those persons named in FIR but not
implicated in charge sheet can be
summoned to face the trial provided
during the trial some evidence surfaces
against the proposed accused.
42
7. Applying the law laid down by this
Court in the aforesaid decisions to the
case of the accused on hand, we are of
the opinion that learned Trial Court was
justified in summoning the private
respondents herein to face the trial as
accused on the basis of the deposition of
the appellant – injured eye witness. As
held by this Court in the aforesaid
decisions, the accused can be summoned
on the basis of even examinationinchief of
the witness and the Court need not wait
till his crossexamination. If on the basis
of the examinationinchief of the witness
the Court is satisfied that there is a prima
facie case against the proposed accused,
the Court may in exercise of powers
under Section 319 CrPC array such a
person as accused and summon him to
face the trial. At this stage, it is required
to be noted that right from the beginning
the appellant herein – injured eye
witness, who was the first informant,
disclosed the names of private
respondents herein and specifically
named them in the FIR. But on the basis
of some enquiry by the DSP they were not
chargesheeted. What will be the
evidentiary value of the enquiry report
submitted by the DSP is another
question. It is not that the investigating
officer did not find the case against the
private respondents herein and therefore
they were not charge sheeted. In any
case, in the examinationinchief of the
appellant injured eye witness, the names
of the private respondents herein are
disclosed. It might be that whatever is
stated in the examinationinchief is the
same which was stated in the FIR. The
same is bound to be there and ultimately
the appellant herein – injured eye
witness is the first informant and he is
bound to again state what was stated in
the FIR, otherwise he would be accused
of contradictions in the FIR and the
statement before the Court. Therefore, as
such, the learned Trial Court was
43
justified in directing to issue summons
against the private respondents herein to
face the trial.
8. Now, so far as the impugned judgment
and order passed by the High Court is
concerned, it appears that while
quashing and setting aside the order
passed by the learned Trial Court, the
High Court has considered/observed as
under:
―No evidence except the statement of
Sartaj Singh, which has already been
investigated into by the concerned
DSPs was relied upon by the trial
Court to summon, which was not
sufficient for exercising power under
Section 319 Cr.P.C.
As per statement of Sartaj Singh,
Palwinder Singh and Satkar Singh
gave him lathi blows on the head.
Manjeet Singh, Amarjeet Singh,
Rajwant Singh, Narvair Singh and
Sukhdev Singh were holding gandasi.
Manjeet Singh, Amarjeet Singha and
Rajwant Singh gave him gandasi
blows on the head and face. All the
injuries are stated to fall in the
offence under Sections 323, 324, 326,
341 read with Section 149 IPC. In
case, so many people as mentioned
above were giving gandasi and
lathies blows on the head, Sartaj
Singh was bound to have suffered
more injuries, which would not have
left him alive and probably he would
have been killed on the spot.
He seems to have escaped with only
such injuries as have invited offence
only under Sections 323, 324, 326,
341 read with Section 149 of IPC.
Therefore, the trial Court erred in
exercising his jurisdiction summoning
the other accused where exaggeration
and implication is evident on both
sides.‖
8.1 The aforesaid reasons assigned by
the High Court are unsustainable in law
44
and on facts. At this stage, the High
Court was not required to appreciate the
deposition of the injured eye witness and
what was required to be considered at
this stage was whether there is any
prima facie case and not whether on the
basis of such material the proposed
accused is likely to be convicted or not
and/or whatever is stated by the injured
eye witness in his examinationinchief is
exaggeration or not. The aforesaid
aspects are required to be considered
during the trial and while appreciating
the entire evidence on record. Therefore,
the High Court has materially erred in
quashing and setting aside the order
passed by the learned Trial Court
summoning the accused to face the trial
in exercise of powers under Section
319 CrPC, on the reasoning mentioned
hereinabove. Even the observations made
by the High Court referred to hereinabove
are on probability. Therefore, the
impugned judgment and order passed by
the High Court is not sustainable in law
and on facts and is beyond the scope and
ambit of Section 319 CrPC.
8.2 In view of the above and for the
reasons stated above, the present
appeals succeed. The impugned
judgment and order passed by the High
Court dated 28.08.2020 in revision
application bearing CRR No. 3238 of
2018 and CRMM No. 55631 of 2018
is hereby quashed and set aside and the
order passed by the learned Trial Court
summoning the private respondents
herein to face the trial is hereby restored.
The private respondents herein now to
face the trial as summoned by the
learned Trial Court. The present appeals
are allowed accordingly.‖
15. Section 319 Cr.P.C., lays down:-
“319. Power to proceed against other persons
appearing to be guilty of offence.
45
(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.”
16. Thus from the evidence placed before this Court it appears that Sk.
Nasir Ali was part of the group of accused persons who have been
charged with crime of committing the offences in this case and he has
been named by all the eye witnesses. As such he is to be tried along with
the persons facing trial.
17. The order under revision thus being not in accordance with law is set
aside.
18. The application under Section 319 Cr.P.C. stands allowed.
46
19. The trial Court to proceed against Sk. Nasir Ali of village Natungram as
per Section 319 (4) Cr.P.C.
20. CRR 71 of 2022 is thus allowed.
21. All connected applications, if any, stands disposed of.
22. Interim order, if any, stands vacated.
23. Copy of this judgment be sent to the learned Trial Court for necessary
compliance.
24. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)