Holding

Section 319 Cr.P.C. may be invoked by a court at any stage after filing the charge‑sheet and before judgment, based on evidence presented before the court (including examination‑in‑chief), with a satisfaction level higher than prima facie but less than certainty of conviction, and it extends to persons not in the FIR, not charge‑sheeted, and discharged persons subject to Sections 300 and 398.

Summary

The Supreme Court examined the scope of Section 319 of the Code of Criminal Procedure, 1973, which empowers a court to proceed against persons not originally accused if evidence shows their involvement. It held that the power can be exercised at any time after the charge‑sheet is filed and before judgment, provided the court is satisfied by evidence recorded in the court, including examination‑in‑chief, though not necessarily cross‑examined. The required satisfaction is stronger than a mere prima facie case but does not demand certainty of conviction. The provision applies to persons not named in the FIR, those named but not charge‑sheeted, and even discharged persons, subject to the procedural safeguards of Sections 300 and 398. The Court emphasized a purposive interpretation of "inquiry" and "trial" and rejected a restrictive view limiting the power to the trial stage alone. Consequently, the reference raised by the Court of Punjab and Haryana was answered, clarifying the ambit of Section 319.

Issues considered

When can the power under Section 319 Cr.P.C. be exercised?
Does the term "evidence" in Section 319(1) Cr.P.C. require cross‑examination or can it be based on examination‑in‑chief?
Is "evidence" under Section 319(1) Cr.P.C. limited to material recorded during trial or does it include investigation material?
What degree of satisfaction is required to invoke Section 319 Cr.P.C., and must the court be convinced of likely conviction?
Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR, named but not charge‑sheeted, or persons who have been discharged?

Legislation cited

Code of Criminal Procedure, 1973s. 173, s. 173(2), s. 193, s. 207, s. 208, s. 209, s. 227, s. 228, s. 230, s. 2(g), s. 300(5), s. 319, s. 398
Indian Evidence Act, 1872s. 3

Subjects

Section 319 CrPCPower to summon additional accusedEvidenceInquiryTrialSatisfaction standardDischarged accusedCriminal ProcedureJudicial interpretationDoctrine judex damnatur cum nocens absolvitur

Judgment

(2014] 2 S.C.R. 1

HARDEEP SINGH . A
v. ·, ,,\
~

STATE OF PUNJAB & ·ORS.
· ·(Criminal Appeal No. 1750 of 2008 etc.)
• ', ,... . • ,_! ~

,,JANUARY 10, 2014 . ~ ..
B
[P. SATHASIVAM, CJI, DR.. B.S. CHAUHAN, RANJANA ·
PRAKASH DESAI, RANJAN GOGOi, AND · .
.. S.A.. BOBDE, JJ.] . .
' .
, \ ,\ -

--· CODE OF•''-CRIMINAL .
PROCEDURE, 1973: -
c -

s.31.9 ~·Power to.proceed against other person appearing .
to be guilty pf offence.~ Stage of excise of power - Held: Power
u/s 319(1) can be' exercised at anytime after th'e charge-sheet
is filed and before the pronouncement of judgment - s. 319
uses the expressions 'inquiry'..and 'trial'..- Stage of inquiry D
commences, insofar 'as the. court is. concerned, with. filing of
charge-sheet and consideration of material collected by
prosecution, that is. mentioned in the charge-sheet for the
purpose of trying the. accused. -, As a trial c.ommences. after -
framing of charge, an inquiry can only be understood to be a E
. pre-trial inquiry - Inquiries u/ss 200, 201, 202 and uls 398 are
species of the in.quiry. contemplated bys. 319 '.'."" In order to
invoke the power uls 319, it is only a Court of Session or a
Court of Magistrate performing the duties as a court under
Cr.P.C. that can utilize the material beforeit for the purpose F
of the said Section'.'."" The stage of committal is.neither.an
inquiry nor a trial -The view in Dharamp Pal (CB) that.after
committal, cognizance of an offence can be taken by Court
of Session u/s 193 Cr.P.C against a person not named as an
accused but against whom materials are available from the G
papers filed by the police after completion of investigation and
Sessions Judge need not wait till 'evidence' uls 319 Cr.P.C.
• becomes available for summoning an additional accused, is
· concurred with - 'Trial' commences only on charges being
1 H
2 SUPREME COURT REPORTS (2014] 2 S.C.R.

A framed -- The view that in a criminal case, trial commences
on cognizance being taken, is not approved -- The
interpretation given by the Constitution Bench in- Dharam Pal
(CB) thats. 193 Cr.P.C. confers power of original jurisdiction
upon the Court of Session to add an accused once the case
B has been committed to it, is concurred with -- Maxims ]udex
damnatur cum nocens absolvitur' and 'a verbis legis non est
recedendum' - Interpretation of statutes.

s.319 rlw s. 227 - 'Evidence' for the purpose of s.319 -
C Connotation of - Held: For exercise of power u/s 319, the use
of word ·evidence' means material that has come before the
court during an inquiry or trial by it and not othf¥rwise -- Wo.rd
"evidence" in s.319 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
D evidence that can be taken into account by the Magistrate or
the court to decide whether power u/s 319 is to be exercised
and not on the basis of material collected during investigation.

s. 319 - Exercise of power uls 319 on the basis of
E examination-in-chief - Held: Once examination-in-chief is
conducted, the statement becomes part of the record -- It is
evidence as per law and in the true sense, though, it may be
rebuttable --Power u/s 319 can be exercised at the stage of
completion of examination-in- chief and court need not wait
F till said evidence is tested on cross-examination for it is the
satisf[3ction of court which can be gathered from the reasons
recorded by the court, in respect of complicity of some other
person(s), not facing the trial in the offence - Evidence Act,
1872 - s.3.

G s.319 - Nature of satisfaction required to invoke power
u/s 319 - Held: 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
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 3

complicity of person concerned - The test that has to be A
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 u/s 319 Cr. P. C. B

s.319 - Power to proceed against other person - Scope
of- Held: s.319 is an enabling provision, it empowers the court
to proceed against any person who is not an accused in a
case before it - A person whose name does not appear even
in the FIR or in the charge-sheet or whose name appears in C
the FIR and not in the main part of the charge-sheet but in
Column 2 and has not been summoned as an accused in
exercise of the powers u/s 193, can still be summoned by the
court, provided the court is satisfied that the conditions
provided in the said statutory provisions starid fulfilled -- D
Further, a person discharged can also be arraigned again as
an accused but only after an inquiry as contemplated by
ss.300(5) and 398 -- If during or after such inquiry, there
appears to be an evidence against such person, power u/s 319
can be exercised. E

s.319 r/w ss.398, 300(5) and 258 - Power to proceed
against a person who has been discharged - Held: A person
who has been discharged stands on a different footing than a
person who was never subjected to investigation or if subjected F
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 was not even a prima facie
case to proceed against such person - If after such careful
examination of the evidence, the court is of the opinion that G
there does exist evidence to pro~ed against the person so
discharged, it may take steps but only in accordance with s.
398 Cr. P. C. without resorting to the provision of s. 319 Cr. P. C.
directly.
H
4 SUPREME COURT REPORTS [2014] 2 S.C.R.

A WORDS AND PHRASES:

Words, 'course', 'inquiry' and 'trial' as occurring ins. 319
Cr. P. C. - Connotation of.

The instant reference arose out of different views
B expressed by the Supreme Court and High Courts on the
scope and extent of the powers of the courts under the
criminal justice system to arraign any person as an
accused during the course of inquiry or trial as
contemplated u/s 319 of the Code of Criminal Procedure,
C 1973(Cr.P.C.). The questions to be answered by the Court
were: "(i)What is the stage at which power u/s 319 Cr.P.C.
can be exercised? (ii) Whether the word "evidence" used
in s. 319(1) Cr.P.C. could only mean evidence tested by
·cross-examination or the court can exercise the power
D under the said provision even on the basis of the
statement made in the examination-in-chief of the witness
concerned? (iii) Whether the word "evidence" used in s.
319(1) Cr.P.C. has been used in a comprehensive sense
and includes the evidence collected during investigation
E 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 u/s 319 Cr.P.C. ·
to arraign an accused? Whether the power u/s 319(1)
Cr.P.C. can be exercised only if the court is satisfied that
F the accused summoned will in all likelihood convicted?
{v)Doestfie power u/s.319 Cr.P.C. extend to persons not
named in the FIR or named in the FIR but not charged or
who have been discharged?"
Answering the reference, the Court
G
HELD: 1.1 In Dharam Pal (CB)*, it has already been
held that after committal, cognizance of an offence can
be taken by the Court of Session against a person not
named as an accused but against whom materials are
H available from the papers filed by the police after
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 5

completion of investigation. Such cognizance can be A
taken u/s 193 Cr.P.C. and the Sessions Judge need not
wait till 'evidence' u/s 319 Cr.P.C. becomes available for
summoning an additional accused.Thus, the powers so
far as the Court of Session is concerned, to invokes. 319
Cr.P.C. at the stage of committal, has stood answered B
finally. [para 4 and 110] [23-G; 68-D]

*Dharam Pal & Ors. v. State of Haryana & Anr., AIR 2013
SC 3018 - relied on.

1.2 Section 319 Cr.P.C. springs out of the doctrine C
judex damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted) arid this doctrine
must be used as a beacon light while explaining the
ambit and the spirit underlying the enactment of s.319
Cr.P.C. It is the duty of the court to do justice by o
pun\15hing 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. [para 12] [28-D-E]

· Raghubans Dubey v. State of Bihar, 1967 SCR 423 =AIR E
1967 SC 1167 - referred to.

Question No.(i)

1.3 Section 319 Cr.P.C., significantly, uses two F
expressions that have to be taken note of. i.e. (1) 'inquiry'
and (2) 'trial'. The stage of inquiry commences, insofar as
the court is concerned, with the filing of the charge-sheet
and the consideration of the material collected by the
prosecution, that is mentioned in the charge-sheet for the G
purpose of trying the accused. This has to be understood
in terms of s. 2(g) Cr.P.C. [para 25 and 110] [33-F; 68-E]

State of U.P. v. Lakshmi Brahman & Anr. 1983 (2) SCR
· 537 =AIR 1983 SC 439; Raj Kishore Prasad v. State of Bihar
H
6 SUPREME COURT REPORTS [2014] 2 S.C.R.

A & Anr. 1996 (2) Suppl. SCR 125 =AIR 1996 SC 1931-
referred to.

1.4 As a trial commences after framing of charge, an
inquiry can only be understood to be a pre-trial inquiry.
Inquiries u/ss 200, 201, 202 Cr.P.C.; and u/s 398 Cr.P.C.
8
are species of the inquiry contemplated bys. 319 Cr.P.C.
In order to invoke the power u/s 319 Cr.P.C., it is only a
Court of Session or a Court of Magistrate performing the
duties as a court under the Cr.P.C. that can utilise the
material before it for the purpose of the said Section. The
C stage of committal is neither an inquiry nor a trial. [para
14, 2-t·and 110) [29-G-H; 32-E; 68-E-F]

Kishun Singh & Ors v. State of Bihar, (1993) 2 SCC 16
and Ranjit Singh v. State of Punjab, AIR 1998 SC 3148;
D Elachuri Venkatachinnayya. & Ors. v. King-Emperor (1920)
ILR 43 Mad 511; Mo/y &Anr. v. State of Kera/a 2004 (3) SCR
346 =AIR 2004 SC 1890; The State of Bihar v. Ram Naresh
Pandey & Anr. 1957 SCR 279 =AIR 1957 SC 389; Ratila/
Bhanji Mithani v. State of Maharashtra & Ors. 1979 (1) SCR
E 993 =AIR 1979 SC 94; V.C. Shukla v. State through C.8.1.
1980 SCR 380 =AIR 1980 SC 962; Union of India & Ors. v.
Major General Madan Lal Yadav (Retd.) 1996 (3) SCR 785
= AIR 1996 SC 1340; "Common Cause", A Registered
Society thr. its Director v. Union of India & Ors. 1996 (9)
F Suppl. SCR 296 = AIR 1997 SC 1539- referred to.
1.5 The law can be summarised to "the effect that as
'trial' means determination of issues adjudging the guilt
or the innocence of a person, the person has to be aware
of what is the case against him and it is only at the stage
G of framing of the charges that the court informs him of
the same, the 'trial' commences only on charges being
framed. Thus, the view that in a criminal case, trial
commences on cognizance being taken, is not approved.
[para 35] [38-C-D]
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 7

Sriramulu v. Veerasa/ingam, (1914) I.LR. 38 Mad. 585b A
- referred to.

In Re: Narayanaswamy Naidu v. Unknown 1 Ind Cas 228
- referred to.
Dagdu Govindshet Wani v. Punja Vedu Wani (1936) 38 B
Som.LR. 1189; Sahib Din v. The Crown (1922) I.LR. 3 Lah.
115; Fakhruddin v. The Crown, (1924) I.LR. 6 Lah. 176;
Labhsing v. Emperor (1934) 35 Cr.L. J. 1261 - disapproved.

1.6 Section 2(g) Cr.P.C. and the case law clearly c
envisage inquiry before the actual commencement of the
trial, and is an act conducted under Cr.P.C. by the
Magistrate or the court. The word 'inquiry' is, therefore,
not any inquiry relating to the investigation of the case
by the investigating agency but is an inquiry after the 0
case is brought to the notice of the court on the filing of
the charge-sheet. The court can thereafter proceed to
make inquiries and it is for this reason that an inquiry has
been given to mean something other than the actual trial.
[para 36] [38-E-F]
E
1.7 Even the word "course" occurring ins. 319
Cr.P.C., clearly indicates that the power can be exercised'·
only during the period when the inquiry has been
commenced and is going on or the trial which has
commenced and is going on. It covers the entire wide F
range of the process of the pre-trial and the trial stage.
[para 37] [38-G-H]

Commissioner of Income-tax, New Delhi (Now
Rajasthan) v. Mis. East West Import & Export (P) Ltd. (Now G
known as Asian Distributors Ltd.) Jaipur, 1989 (1) SCR 570
= AIR 1989 SC 836 State of Travancore-Cochin & Ors. v.
Shanmugha Vilas Cashewnut Factory, Qui/on, 1954 SCR 53
= AIR 1953 SC 333 - referred to.
H
8 SUPREME COURT REPORTS [2014] 2 S.C.R.

A 1.8 To say that powers uls 319 Cr.P.C. can be
exercised only during trial, would be reducing the impact
of the word 'inquiry' by the court. It. is a settled principle
of law that an interpretation which leads to the conclusion
that a word used by the legislature is redundant, should
B 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.
C [para 39] [39-E-F]

Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao
Jambekar & Anr., AIR 1965 SCR 328 =1965 SC 1457; The
Martin Bum Ltd. v. The Corporation of Calcutta, 1966 SCR
543 = AIR 1966 SC 529; M. V. Elisabeth & Ors. v. Harwan
D Investment & Trading Pvt. Ltd. Hanoekar House,
Swatontapeth, Vasco-De-Gama,Goa 1992 (1) SCR 1003 =
A1R 1993 SC 1014; Sultana Begum v. Prem Chand Jain,
1996 (9) Suppl. SCR 707 =AIR 1997 SC 1006; State of Bihar
& Ors. etc.etc. v. Bihar Distillery Ltd. etc. etc. 1996 (9) Suppl.
E SCR 479 = AIR 1997 SC 1511; Institute of Chartered
Accountants of India v. Mis. Price Waterhouse & Anr. 1997
(2) Suppl. SCR 267 = AIR 1998 SC 74; and The South
Central Railway Employees Co-operative Credit Society
Employees Union, Secundrabad v. The Registrar of Co-.
F operative Societies & Ors. 1998 (1) SCR 85 =AIR 1998 SC
703; Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors.
2012 (13) SCR 47 =AIR 2013 SC 30- referred to.

1.9 Thus, by no means it can be said that provisions
G of s. 319 Cr.P.C. cannot be pressed into service during
the course of 'inquiry'. The word 'inquiry' is not
surpulsage in the said provision. 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 uls 319(1) Cr.P.C.
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 9

can be exercised at any time after the charge-sheet is filed A
and before the pronouncement of judgment. [para 42-43)
[41-F-H]

1.1 O The stage of s.207/208 Cr.P.C., committal etc. is
only a pre-trial stage, and the Magistrate is required to 8
perform acts in the nature of administrative work rather
than judicial such as ensuring compliance of ss.207 and
208 Cr.P.C., and committing the matter if it is exclusively
triable by Court of Session. Therefore, it would be
legitimate to conclude that the Magistrate at the stage of
ss. 207 to 209 Cr.P.C. is forbidden, by express provision C
of s.319 Cr.P.C., to apply his minq to the merits of the
case and determine as to whether any accused needs to
b~ added or subtracted to face trial before the Court of
Session. It is thus aptly clear that until and unless the
case reaches the stage of inquiry or trial by the court, the D
power u/s 319 Cr.P.C. cannot be exercised. [para 44 and
49] [42-B-D; 44-C]

Mis. SW/L Ltd. v. State of Delhi & Anr. 2001 (1) Suppl.
=
SCR 527 AIR 2001 SC 2747 - referred to. E
1.11 The interpretation given by the Constitution
Bench in Dharam Pal (CB) that s. 193 Cr.P.C. confers.
power of original jurisdiction upon the Court of Session
to add an accused once the case has been committed to
it, is concurred with. [para 49) [44-D-E]
F

Question No.(iii)

2.1 The word 'evidence' in s. 319 Cr.P.C. has to be
broadly understood and not literally i.e. as evidence G
brought during a trial. Materials coming before the court
in course of enquiries u/ss 200, 201, 202 and 378 can be
used for corroboration of the evidence recorded in the
court after the trial commences, for the exercise of power
u/s 319 Cr.P.C., and also to add an accused whose name H
10 SUPREME COURT REPORTS [2014] 2 S.C.R.

A has been shown in Column 2 of the chargesheet. [para
11 O] [68-F-H]

Tomlin's Law Dictionary; Wigmore on Evidence -
referred to.

B 2.2 The definition of 'evidence' in s.3 of the Evidence
Act starts with the words, "Evidence means and
includes". Wherever the words "means and includes" are
used, it is an indication of the fact that the definition 'is a
hard and fast definition', and no other meaning can be
C assigned to the expression that is put down in the
definition. It indicates an exhaustive explanation of the
meaning which, for the purpo'ses of the Act, must
invariably be attached to these words or expression. The
definition of word "evidence" under the Evidence Act is
D exhaustive. Materials available in the charge-sheet or the
case diary do not constitute evidence. [para 55, 57, 58 and
61] [47-A, G-H; 48-A, F; 49-H; 50-A]

Mis. Mahalakshmi Oil Mills v. State of A.P. 1988 (2)
E Suppl. SCR 1088 = AIR 1989 SC 335; Punjab Land
Development and Reclamation Corporation Ltd. Chandigarh .
v. Presiding Officer, Labour Court, Chandigarh & Ors., (1990)
3 SCC 682; P. Kasilingam & Ors. v. P. S. G. College of
Technology & Ors. 1995 (2) SCR 1061 =AIR 1995 SC 1395;
Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner
F & Ors. 2007 (5) SCR 873 = AIR 2008 SC 968; and Ponds
India Ltd. (merged with H.L. Limited) v. Commissioner of
Trade Tax, Lucknow 2008 (9) SCR 496 = (2008) 8 SCC 369; .
Feroze N. botivala v. P.M. Wadhwani & Ors. 2002(4) Suppl.
SCR 416 = (2003) 1 SCC 433; Kalyan Kumar Gogoi v.
G Ashutosh Agnihotri & Anr. 2011(1) SCR 796 =AIR 2011 SC
760; Ameer Trading Corporation Ltd. v. Shapoorji Data
Processing Ltd. 2003 (5) Suppl. SCR 634 = AIR 2004 SC
355; Omkar Namdeo Jadhao & Ors v. Second Additional
Sessions Judge Buldana & Anr. 1996 SCR 158 = AIR 1997
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 11

_SC 331; and Ram Swaroop & Ors. v. State of Rajasthan AIR A
2004 SC 2~43; Podda Narayana & Ors. v. State of A.P., 1975
(0) Suppl. SCR 84 =AIR 1975 SC 1252; Sat Paul v. Delhi
Administration, 1976 (2) SCR 11 = AIR 1976 SC 294; and
State (Delhi Administration) v. Laxman Kumar & Ors. 1985
(2) Suppl. SCR 898 =AIR 1986 SC 250; Lok Ram v. Nihal B
Singh & Anr., 2006 (3) SCR 1018 =AIR 2006 SC 1892; Sunil
Mehta & Anr. v. State of Gujarat & Anr., JT 2013 (3) SC 328;
Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr.
2007 (10) SCR 385 = AIR 2008 SC 95; Lal Suraj@ Suraj
Singh & Anr. v. State of Jharkhand 2008 (17) SCR 1059 =c 1
(2009) 2 SCC 696; Rajendra Singh v. State of U.P. & Anr.
2007 (8) SCR 834 = AIR 2007 SC 2786 - referred to.
2.3 Ordinarily, it is only after the charges are framed
that the stage of recording of evidence is reached. A bare
perusal of s.227 Cr.P.C. would show that the legislature D
has used the terms "record of the case" and the
"documents submitted therewith". It is in this context that
the word 'evidence' as appearing in s.319 Cr.P.C. has to
be read and understood. The material collected at the
_stage of investigation can at best be used for a limited E
purpose as provided u/s 157 of the Evidence Act i.e. to
corroborate or contradict the statements of the witnesses
recorded before the court. Therefore, for the exercise of
power u/s 319 Cr.P.C., the use of word 'evidence' means
material that has come before the court during an inquiry F
or trial by it and not otherwise. If from the evidence led
in the trial the court is of the opinion that a person not
accused before it has also committed the offence, it may
summon such person u/s 319 Cr.P.C. [para 69) [52-E-H;
53~ G
2.4 With respect to documentary evidence, it is
sufficient, as can be seen from a bare perusal of s. 3 of
the Evidence Act as well as the decision of the
Constitution Bench*, that a document is required to be
produced and proved according to law to be called H
12 SUPREME COURT REPORTS [2014] 2 S.C.R.

A evidence. Whether such evidence is relevant, irrelevant,
admissible or inadmissible, is a matter of trial. [para 70]
[53-B-C]
Ramnarayan Mor & Anr. v. The State of Maharashtra
B 1964 SCR 1034 =AIR 1964 SC 949 - relied on.
2.5 It is, therefore, clear that the word "evidence" in
s.31-9 Cr.P.C. means only such evidence as is made
before the court, in relation to statements, and as
produced before the court, in relation to documents. It is
c only such evidence that can be taken into account by the
Magistrate or the court to decide whether power u/s 319
Cr.P.C. is to be exercised and not on the basis of material ·
collected during investigation. [para 71] [53-C-D]
Question No. (ii)
D
3.1 Once examination-in-chief is conducted, the
statement becomes part of the record. It is evidence as
per law and in the true sense, for at best, it may be
rebuttable. An evidence being rebutted or controverted
E becomes a matter of consideration, relevance and belief, -
which is the stage of judgment by the court. Yet it is
evidence and it is material on the basis whereof the court
can come to a prima facie opinion as to complicity of some
other person who may be connected with the offence.
F Therefore, even on the basis of examination-in-chief, the
court or the. Magistrate can proceed against a person as
long as the court is satisfied that the evidence appearing
against such person is such that it prima facie
necessitates bringing such person to face trial. [para 82-
G 83] [56-H; 57-A-B, G-H]
3.2 Thus, this Court holds that power u/s 319 Cr.P.C.
can be exercised at the stage of completion of
examination-in-chief and court does not need to wait till
the said evidence is tested on cross-examination for it is
H the satisfaction of the court which can be yathered from
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 13

the reasons recorded by the court, in respect of A
complicity of some other person(s), not facing the trial in
the offence. [para 85) [58-E-F]

Harbhajan Singh & Anr. v. State of Punjab & Anr. 2009
(11) SCR 1015 = (2009) 13 sec 608; and Mohd. Shafi v.
8
Mohd. Rafiq & Anr., 2007 (4) SCR 1023 =AIR 2007 SC 1899
- referred to.

Question No. 4

4.1 Section 319(1) Cr.P.C. empowers the court to c
proceed against other persons who appear to be guilty
. of offence, though not an accused before the court. The
word "appear" means "clear to the comprehension", or
a phrase near to, if not synonymous with "proved". It
imparts a lesser degree of probability than proof. What 0
is, therefore, necessary for the court is to arrive at a
satisfaction that the evidence adduced on behalf of the
prosecution, if unrebutted, may lead to conviction of the
persons sought to be added as an accused in the case.
- [para 86-87) [58-G-H; 59-C-D]
E
Pyare Lal Bhargava v. The State of Rajasthan 1963
Suppl. SCR 689 =AIR 1963 SC 1094, Ram Singh & Ors. v.
Ram Niwas & Anr. 2009 (8) SCR 878 = (2009) 14 SCC 25;
Vikas v. State of Rajasthan, 2013 (11) SCALE 23; Sarabjit
Singh & Anr. v. State of Punjab & Anr. 2009 (8) SCR 762 = F
AIR 2009 SC 2792; Brindaban Das & Ors. v. State of West
Bengal, 2009 (1) SCR 87 = AIR 2009 SC 1248; Michael
Machado & Anr. v. Central Bureau of Investigation & Ors.,
2000 (1) SCR 981 =AIR 2000 SC 1127; State of Kamataka
v. L. Munishwamy & Ors. 1977 (3) SCR 113 =AIR 1977 SC G
1489; All India Bank Officers' Confederation etc. v. Union of
··India & Ors. 1989 (3) SCR 850 =AIR 1989 SC 2045; Stree
Atyachar Virodhi Parishad v. Dilip Nathumal Chordia 1989
(1) SCR 560 = (1989) 1 SCC 715; State of M.P. v. Dr. Krishna
Chandra Saksena, 1996 (7) Suppl. SCR 503 = (1996) 11 H
14 SUPREME COURT REPORTS [2014] 2 S.C.R.

A SCC 439; and State of M.P. v. Mohan Lal Soni, AIR 2000
SC 2583; Dilawar Babu Kurane v. State of Maharashtra 2002
(1) SCR 75 = AIR 2002 SC 564; Uni9n of India v. Praful/a
Kumar Sama/ & Anr. 1979 (2) SCR 229 =AIR 1979 SC 366;
Suresh v. State of Maharashtra, AIR 2001 SC .1375; Niranjan
B Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya 1990
(3) SCR 633 = AIR 1990 SC 1962 and State of Maharashtra
v. Priya Sharan Maharaj 1997 (2) SCR 933 = AIR 1997 SC
2041; State of Bihar v. Ramesh Singh, 1978 (1) SCR 257 =
AIR 1977 SC 2018; Pa/anisamy Gounder & Anr. v. State,
C represented by Inspector of Police, (2005) 12 SCC 327 -
referred to.

4.2 Though u/s 319(4)(b) Cr.P.C. the accused
subsequently impleaded is to be treated as if he had
been an accused when the court initially took cognizance
D of the offence, the degree of satisfaction that will be
required for summoning a person u/s 319 Cr.P.C. would
be the same as for framing a charge. The difference in the
degree of satisfaction for summoning the original
accused and a subsequent accused is on account of the
E fact that the trial may have already commenced against -
the origina'I accused and it is in the course of such trial
that materials are disclosed against the newly summoned
accused. Fresh summoning of an accused will result in
delay of the trial - therefore, the degree of satisfaction for
F summoning the accused (original and subsequent) has
to be different. [para 110) (69-E-H]

4.3 Power u/s 319 Cr.P.C. is a discretionary and an
extra-ordinary power. It is to be exercised sparingly and
only in those cases where the circumstances of the case
G 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
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 15

that such power should be exercised and not in a casual A
and cavalier manner. [para 98] [63-E-F]
4.4 Thus, this Court holds 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
8
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 C
such satisfaction, the court should refrain from exercising
power u/s 319 Cr.P.C. In s.319 Cr.P.C. the purpose of
providing if 'it appears from the evidence that any person
not being the accused has committed any offence' is clear
from the words "for which such person could be tried D
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 u/s 319 Cr.P.C.
to form any opinion as to the guilt of the accused. [para
99] [63-G-H; 64-A-B] E

. Question No. V

5.1 Section 319 Cr.P.C. is an enabling provision, it
empowers the court to proceed against any person who
is not an accused in a case before it. A person whose F
name does not appear even in the FIR or in the charge-
sheet or whose name appears in the FIR and not in the
main part of the charge-sheet but in Column 2 and has
not been summoned as an accused in exercise of the
powers u/s 193 Cr.P.C. can still be summoned by the G
court, provided the court is satisfied that the conditions
provided in the said statutory provisions stand fulfilled.
1
Further, a person who has been discharged can be
· summoned u/s 319 Cr.P.C. provided from the evidence it
appears that such person can be tried along with the H
16 SUPREME COURT REPORTS [2014] 2 S.C.R.

·A accused already facing trial. However, in such a case, the
requirement of ss. 300 and 398 Cr.P.C. has to be complied
with before he can be summoned afresh. [para 103 and
11 O] [65-F-G; 70-8-C]

Anju Chaudhary v. State of U.P. & Anr. 2012 (13) SCR
B 901=(2013)6 SCC 384; Suman v. State of Rajasthan & Anr.,
AIR 2010 SC 518 - referred to.

5.2 There is a great difference with reqard to a person
who has been discharged, he stands on a different
C 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
D . conclusion that there was 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 ·
. E person so discharged. Therefore, there must exist
compelling circumstances to exercise such power. If after
careful examination of the evidence, the court is of the
opinion that there does exist evidence to proceed against
the person so discharged, it may take steps but only in
F accordance with s. 398 Cr.P.C. without resorting to the
provision of s. 319 Cr.P.C. directly. [para 104] [65-G-H; 66-
A-D]

Sohan Lal & Ors. v. State of Rajasthan 1990 (3) SCR 809
= (1990) 4 SCC 580; and Municipal Corporation of Delhi v.
G Ram Kishan Rohtagi & Ors. 1983 (1) SCR 884 = AIR 1983
SC 67 - referred to.

5.3 The expression "any person not being the
accused" occurring in s. 319 Cr.P.C. clearly covers any
H person who is not being tried already by the court and
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 17

the very purpose of enacting such a provision like s.319 A
(1) Cr.P .C. clearly shows that even persons who have
been dropped by the police during investigation but
against whom evidence showing their involvement in the
offence comes before the criminal court, are included in
the said expression. [para 100) (64-D, E-F] B
Joginder Singh & Anr. v. State of Punjab & Anr., [1979)
2 SCR 306 =AIR 1070 SC 339 - referred to.
5.4 Power u/s 398 Cr.P.C. is in the nature of revisional
power which can be exercised only by the High Court or c
the Sessions Judge, as the case may be. According to
s.300 (5) Cr.P.C., a person discharged u/s 258 Cr.P.C.
shall not be tried again for the same offence except with
the consent of the court by which he was discharged or
of any other court to which the first-mentioned court is
0
subordinate. Further, s. 398 Cr.P.C. provides that the High
Court or the Sessions Judge may direct the Chief Judicial
Magistrate by himself or by any of the Magistrate
subordinate to him to make an inquiry into the case
against any person who has already been discharged.
Both these provisions contemplate an inquiry to be E
conducted before any person, who has already been
discharged, is asked to again face trial if some evidence
appears against him. Section 319 Cr.P.C. can also be
invoked at the stage of inquiry. Inquiry as contemplated·
by s.300(5) Cr.P.C. and s.398 Cr.P.C. can also be an · F
inquiry u/s 319 Cr.P.C. Accordingly, a person discharged
can also be arraigned again as an accused but only after
an inquiry as contemplated by ss.300(5) and 398 Cr.P.C.
If during or after such inquiry, there appears to be
anevidence against such person, power u/s 319 Cr.P.C. G
can be exercised. [para 107-108) [66-H; 67-A-E]
Rakesh v. State of Haryana, 2001 (1) Suppl. SCR 1 =
AIR 2001 SC 2521; Dharam Pal & Ors. v. State of Haryana
& Anr. (2004) 13 SCC 9; Hardeep Singh vs. State of Punjab
2008 (15) SCR 735 - cited. H
18 SUPREME COURT REPORTS [2014] 2 S.C.R.

A Case Law Reference:
2008 (15) SCR 735 cited para 2
2001 (1) Suppl. SCR 1 cited para 2

B 2007 (4) SCR 1023 referred to para 2
2004 (13) sec 9 referred to para 3
AIR 201'3 SC relied en para 4
(1920) ILR 43 Mad 511 referred to para 21
c
1967 SCR 423 referred to Para 24
1983 (2) SCR 537 referred to Para 26
1996 (2) Suppl. SCR 125 referred to Para 26
D
2004 (3) SCR 346 referred to Para 27
1957 SCR 279 referred to Para 27
1979 (1) SCR 993 referred to Para 28
E 1980 SCR 380 referred to Para 29
1996 (3) SCR 785 referred to Para 30
1996 (9) Suppl. SCR 296 referred to Para 31

F 1 Ind Cas 228 referred to Para 33
(1914) I.LR. 38 Mad.-585 disapproved Para 33
(1936) 38 Bom.L.R. 1189 disapproved Para 34
(1922) I.LR. 3 Lah. 115 disapproved Para 34
G
(1924) l.L.R. 6 Lah. 176 disapproved Para 34
(1934) 35 Cr.L J. 1261 disapproved Para 34
1989 (1) SCR 570 referred to Para 37
H
HARDEEP SINGH v. STATE OF PUNJAB' & ORS. 19

1954 SCR 53 referred to Para 38 A
1965 SCR 328 referred to Para 41
1966 SCR 543 referred to Para 41
1992 (1) SCR 1003 referred to Para 41
B
1996 (9) Suppl. SCR 707 referred to Para 41
1996 (9) Suppl. SCR 479 referred to Para 41
.. ,
. . •, -
1997(2) Suppl. SCR 267 referred to Para ·41
1998 (1) SCR 85 referred to
c
Para 41
2012 (13) SCR 47 referred to Para 42
2001 (1) Suppl. SCR 527 ·referred to Para 46
, 1988 (2) Suppl. SCR 1088 referred to para 57 D

1995 (2) SCR 1061 referred to para 57
(1990) 3 sec 682 referred to para 57
2007 (5) SCR 873 referred to para 57 E
2008 (9) SCR 496 referred to para 57
2002 (4) Suppl. SCR 416 referred to para 58
2011 (1) SCR 796 referred to para 59
F
-2003 (5) Suppl. SCR 634 referred to. Para 60
1996 SCR 158 referred to Para 60
AIR 2004 SC 2943 referred to Para 60
G
1975 (0) Suppl. SCR 84 referred to Para 60
1976 (2) SCR 11 referred to Para 60
1985 (2) Suppl. SCR 898 referred to Para 60
H
20 SUPREME COURT REPORTS [2014) 2 S.C.R.

A 2006 (3) SCR 1018 referred to para 61
2006 (3) SCR 1018 referred to para 62
1964 SCR 1034 relied on para 62

B 2007 (10) SCR 385 referred to para 67
2008 (17) SCR 1059 referred to para 67
2007 (8) SCR 834 referred to para 68
2009 (11) SCR 1015 referred to para 81
c
1963 Suppl. SCR 689 referred to para 87
2009 (8). SCR 878 referred to para 87
2013 (11) SCALE 23 referred to para 88
D 2009 (8) SCR 762 referred to para 91
1996 (7) Suppl. SCR 503 referred to para 93
AIR 2000 SC 2583 referred to para 93

E 2002 (1) SCR 75 referred to para 94
1979 (2) SCR 229 referred to para 94
AIR 2001 SC 1375 referred to Para 95
1990 (3) SCR 633 referred to Para 95
F '
1997 (2) SCR 933 referred to Para 95
1978 (1) SCR 257 referred to para 96
(2005) 12 sec 327 referred to para 97
G
1979 (2) SCR 306 referred to para 100
2012 (13) SCR 901 referred to para 101
AIR 2010 SC 518 referred to para 102
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 21

1990 (3) SCR 809 referred to Para 105 A
1983 (1) SCR 884 referred to para 106
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1750 of 2008.
B
From the Judgment and Order dated 23.10.2006 of the
High Court of Punjab and Haryana at Chandigarh in Criminal
Revision No. 773 of 2006.
WITH
Crl. A. No. 1751 of 2008 & SLP (Crl.) No. 9184 of 2008. C

7209 of 2010, 5724, 5975 of 2009, 9040 of 2010, 533-1,
9157 of 2009 and 4503-4504 of 2012.
Sidharth Luthra, ASG, Ranjit Kumar, Dr. J.N. Dubey, P.S.
Narasimha, S.R. Singh, Rajiv Dhavan, Huzefa Ahmadi, Shekhar D
Naphade, Jitendera, Mohan Sharma, Ratnakar Das, Devender
Hooda, Sr. AAG, V. Madhukar, Deep Karan Dalal, Dr. Manish
Singhvi, AA~. Vijay Kr. Jain, Vibhakar Mishra, Ajay Garg, Amit
Kishor Sinha, SunU Kumar Verma, Abhisth Kumar, Kamaldeep
Gulati, Aniruddha p:·~ee, Charudatta Mahindrakar, Rucha E
A. Mayee, Pratibha J~i~, Kaushal Yadav, Anurag Dubey,
Meenesh Dubey, D.P. Pande,·Rajesh Pandey, Anu Sawhney,
Upasana D. Tiwari, S.R. Setia, Anshuman Ashok, Allanki
Ramesh, C.S.N. Mohan Rao, Rajesh Kumar, Shilpi Gupta, G.
Madhvi, K.V. Mohan, Ankur Yadav, Ujjabal Pandey, Sushant F
Kumar Yadav, Asha Gopalan Nair, Manish Mohan, Aditya Kr.
Choudhary, Aditya Pratap Singh, Parveen Kumar, Anita
Mohan, Umang Shankra, Shahsi Pathak, Sanjai Kumar Pathak,
R.K. Gupta, S.K. Gupta, M.K. Singh. Anand Kumar $ingh,
Shekhar Kumar, Ejaz Maqbool, 8.M. Mangukiya, V.H. Kanara, G
Mrigank Prabhakar, Tanima, Kishore, Rohan Sharma, Satinder
S. Gulati, Dinesh Sharma, Paritosh Anil, Anvita Cowstiish,
Kuldip Singh, Kunwar C.M. Khan, Aftab Ali Khan. Hemantika
Wahi, Pinky Behera, Shubangi Tuli, Meenkshi Arora, Jetendra
SiiJgh, Priyanka Singh, S.K. Sabharwal, C.D. Singh, Supriya H
22 SUPREME COURT REPORTS [2014] 2 S.C.R.

A Juneja, Sunny Chaudhary, Abhimanyu Singh, Gurmohan Singh
Bedi, Sakshi, Anshuman Shrivastava, Sameer Singh, Nitin
Singh, Pahlad Singh Sharma, Kamal Mohan Gupta, Ramesh
Kumar, Harkesh, Naresh Bakshi, Dr. Sukhdev Sharma, V.K.
Vasdev, P.S. Tripathi, R.C. Prakash, Filza Moonis, Anshuman
B Ashok, Dr. Kailash Chand, Abhisth Kumar, Gaurav, Vikrant
Yadav, Adarsh Upadhyay, Anis Ahmed Khan, Shoaib Ahmad
Khan, Amit Lubhaya, Ram Naresh Yadav, Pragati Neekhra for
the appearing parties.

The Judgment of the Court was delivered by
c
DR. B.S ..CHAUHAN, J. 1. This reference before us
arises out of a variety of views having been expressed by this
Court and several High Courts of the country on the scope and
D extent of the powers of the courts under the criminal justice _
system to arraign any person as an accused during the course
of inquiry or trial as contemplated under Section 319 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as
the ·cr.P.C.').

E 2. The initial reference was made by a two-Judge Bench
vide order dated 7 .11.2008 in the leading case of Hardeep
Singh (Crl. Appeal No. 1750 of 2008) where noticing the
conflict between the judgments in the case of Rakesh v. State .
of Haryana, AIR 2001 SC 2521; and a two-Judge Bench
F decision in the case of Mohd. Shafi v. Mohd. Rafiq &Anr., AIR
2007 SC 1899, a doubt was expressed about the correctness
of the view in the case of Mohd. Shafi (Supra). The doubts as
categorised in paragraphs 75 and 78 of the reference order
led to the framing of two questions by the said Bench which
G are reproduced hereunder:

"(1) When the power under sub-section (1) of Section 319
of the Code of addition of accused can be exercised by a
Court? Whether application under Section 319 is not
maintainable unless the cross-examination of the witness
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 23
[DR. B.S. CHAUHAN, J.]
is complete? A

(2) What is the test and what are the guidelines of
exercising power under sub-section (1) of Section 319 of
the Code? Whether such power can be exercised only if
the Court is satisfied that the accused summoned in all B
likelihood would be convicted?

3. The reference was desired to be resolved by a three-
Judge Bench whereafter the same came up for consideration
and vide order dated 8.12.2011, the Court opined that in view
of the reference made in the case of Dharam Pal & Ors. v. C
State of Haryana &Anr., (2004) 13 SCC 9, the issues involved
being· identical in nature, the sarne should be resolved by a
· Constitution Bench consisting of at least five Judges. The
Bench felt that since a three-Judge Bench has already referred
the matter of Dharam Pal (Supra) to a Constitution Bench, then D
in that event it would be appropriate that such overlapping
issues should also be resolved by a Bench of similar strength.

4. Reference made in the case of Dharam Pal (Supra)
• came to be answered in relation to the power of a Court of E
Sessions to invoke Section 319 Cr.P.C. at the stage of
committal of the case to a Court of Sessions. The said
reference was answered by the Constitution Bench in the case
of Dharam Pal & Or5. v. State of Haryana & Anr., AIR 2013
SC 3018 [hereinafter called 'Dharam Pal (CB)'], wherein it was
held that a Court of Sessions can with the aid of Section 193 F
Cr.P.C. proceed to array any other person and summon him
for being tried even if the provisions of Section 319 Cr.P.C.
could not be pressed in service at the stage of committal.

Thus, after the reference was made by a three-Judge G
Bench in the present case, the powers so far as the Court of
Sessions is concerned, to invoke Section 319 Cr.P.C. at the
stage of committal, stood answered finally in the aforesaid
background.
H
24 SUPREME COURT REPORTS [2014] 2 S.C.R.

A 5. On the consideration of the submissions raised and in
view of what has been noted above, the following questions are
to be answered by this Bench:

(i) What is the stage at which power under Section 319
B Cr.P.C. can be exercised?

(ii) Whether the word "evidence" used in Section 319(1)
Cr.P.C. could only mean evidence tested by cross-
examination or the court can exercise the power under the
said provision even on the basis of the statement made
c in the examination-in-chief of the witness concerned?

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

(iv) What is the nature of the satisfaction required to invoke
the power under Section 319 Cr.P.C. to arraign an
accused? Whether the power under Section 319(1)
Cr.P.C. can be exercised only if the court is satisfied that
the accused summoned will in all likelihood convicted?

(v) Does the power under Section 319 Cr.P.C. extend to
persons not named in the FIR or named in the FIR but not
F charged or who have been discharged?

6. In this reference what we are primarily concerned with,
is the stage at which such powers can be invoked and,
secondly, the material on the basis whereof the invoking of such
G powers can be justified. To add as a corollary to the same,
thirdly, the manner in which such powe~ has to be exercised,
also has to be considered.

7. The Constitutional mandate under Articles 20 and 21
of the Constitution of India, 1950 (hereinafter referred to as the
H 'Constitution') provides a protective umbrella for the smooth
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 25
[DR. 8.S. CHAUHAN, J.]

administration of justice making adequate provisions to ensure A
a fair and efficacious trial so that the accused does not get
prejudiced after the law has been put into motion to try him for
the offence but at the same time also gives equal protection
to victims and to the society at large to ensure that the guilty
does not get away from the clutches of law. For the B
empowerment of the courts to ensure that the criminal
administration of justice works properly, the law was
appropriately codified and modified by the legislature under the
Cr.P.C. indicating as to how the courts should proceed in order
to ultimately find out the truth so that an innocent does not get c
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 0
not go unpunished. The presumption of innocence is the
general law of the land as every man is presumed to be
innocent unless proven to be guilty.

8. Alternatively, certain statutory presumptions in relation
to certain class of offences have been raised against the E
accused whereby the presumption of guilt prevails till the
· accused discharges his burden upon an onus being cast upon·
him under the law to prove himself to be innocent. These
competing theories have been kept in mind by the legislature.
The entire effort, therefore, is not to allow the real perpetrator F
of an offence to get away unpunished. This is also a part of
fair trial and in our opinion, in order to achieve this very end
that the legislature thought of incorporating provisions of Section
319 Cr.P.C.
G
9. !t is with the said object in mind that a constructive and
purposive interpretation should be adopted that advances the
cause of justice and does not dilute the intention of the statute
conferring powers on the court to carry out the above mentioned
avowed object and purpose to try the person to the satisfaction H
26 SUPREME COURT REPORTS [2014] 2 S.C.R.

A of the court as an accomplice in the commission of the offence
that is subject matter of trial.

10. In order to answer the aforesaid questions posed, it
will be appropriate to refer to Section 351 of the Criminal
B Procedure Code, 1898 (hereinafter referred to as 'Old Code'),
where an analogous provision existed, empowering the court
to summon any person other than the accused if he is found to
be connected with the commission of the offence. However,
when the new Cr.P.C. was being drafted, regard was had to
C 41th Report of the Law Commission where in the paragraphs
24.80 and 24.81 recommendations were made to make this
provision more comprehensive. The said recommendations
read:

"24.80 It happens sometimes, though not very often, that
D 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 proper that Magistrate
should have the power to call and join him in proceedings.
E 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
F Section 351 fairly comprehensive, and we think it proper
to expressly provide for that situation.

24.81 Section 351 assumes that the Magistrate
proceeding under it has the power of taking cognizance
of the new case. It does not, however, say in what manner
G cognizance is taken by the Magistrate. The modes of
taking cognizance are mentioned in Section 190, and are
apparently exhaustive. The question is, whether against the
newly added accused, cognizance will be supposed to
have been taken on the Magistrates own information under
H Section 190(1), or only in the manner in which cognizance
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 27
[DR. B.S. CHAUHAN, J.]
was first taken of the offence against the accused. The A
question is important, because the methods of inquiry and
trial in the two cases differ. About the true position under
the existing law, there has been difference of opinion, and
we think it should be made clear. It seems to us that the
main purpose of this particular provision is that the whole B
case against all known suspects should be proceeded with
expeditiously and convenience requires that cognizance
against the newly added accused should be taken in the
. same manner against the other accused. We, therefore,
propose to recast Section 351 making it comprehensive c
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 he reheard in the presence of the newly
0
added accused."

11. Section 319 Cr.P.C. as it exists today, is quoted
hereunder:

"319 Cr.P.C. -Power to proceed against other E
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 F
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 G
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 sucb Court
for the purpose eHhe-inqulry lnlo, or trial of, the offence H
28 SUPREME COURT REPORTS (2014] 2 S.C.R.

A 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
B 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
c the inquiry or trial was commenced."

12. Section 319 Cr.P.C. springs out of the doctrine judex
damnatur cum nocens absolvitur (Judge is condemned when
guilty is acquitted) and this doctrine must be used as a beacon
. light while explaining the ambit and the spirit underlying the
0
enactment of Section 319 Cr.P.C.

It is the duty of the Court to do justice by punishing the real
culprit. Where the investigating agency for any reason does not
array one of the real culprits as an accused, the court is not
E powerless in calling the said accused to face trial. The question
remains under what circumstances and at what stage should
the court exercise its power as contemplated in Section 319
Cr.P.C.?

F The submissions that were raised before us covered a
very wide canvas and. the learned counsel have taken us
through various provisions of Cr.P.C. and the judgments that
have been relied on for the said purpose. The controversy
centers around the stage at which such powers can be invoked
G by the court and the material on the basis whereof such powers
can be exercised.

13. It would be necessary to put on record that the power
conferred under Section 319 Cr.P.C. is only on the court.

This has to be understood in the context that Section 319
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 29
[DR. B.S. CHAUHAN, J.]

Cr.P.C. empowers only the court to proceed against such A
person. The word "court" in our hierarchy of criminal courts has
been defined under Section 6 Cr.P.C., which includes the
Courts of Sessions, Judicial Magistrates, Metropolitan
Magistrates as well as Executive Magistrates. The Court of
Sessions is defined in Section 9 Cr.P.C. and the Courts of B
Judicial Magistrates has been defined under Section 11 thereof.
The Courts of Metropolitan Magistrates has been defined under
Section 16 Cr.P.C. The courts which can try offences committed
under the Indian Penal Code, 1860 or any offence under any
other law, have been specified under Section 26 Cr.P.C. read c
with First Schedule. The explanatory note (2) under the heading
of "Classification of Offences" under the First Schedule
specifies the expression 'magistrate of first class' and 'any
magistrate' to include Metropolitan Magistrates who are
empowered to try the offences under the said Schedule but 0
excludes Executive Magistrates.

14. It is at this stage the comparison of the words used
under Section 319 Cr.P.C. has to be understood distinctively
from the word used under Section 2(g) defining an inquiry other
than the trial by a magistrate or a court. Here the legislature has E
- used two words, namely the magistrate or court, whereas under
Section 319 Cr.P.C., as indicated above, only the word "court"
has been recited. This has been done by the legislature to
emphasise that the power under Section 319 Cr.P.C. is
exercisable only by the court and not by any officer not acting F
as a court. Thus, the magistrate not functioning or exercising
powers as a court can make an inquiry in particular proceeding
other than a trial but the material so collected would not be by
a court during the course of an inquiry or a trial. The conclusion
therefore, in short, is that in order to invoke the power under G
Section 319 Cr.P.C., it is only a Court of Sessions or a Court
of Magistrate performing the duties as a court under the Cr.P.C.
that can utilise the material before it for the purpose of the said
Section.
H
30 SUPREME COURT REPORTS [2014) 2 S.C.R.

A 15. Section 319 Cr.P.C. allows the court to proceed
against any person who is not an accused in a case before it.
Thus, the person against whom summons are issued in
exercise of such powers, has to necessarily not be an accused ·
already facing trial. He can either be a person named in Column
B 2 of the chargesheet filed under Section 173 Cr.P.C. or a
person whose name has been disclosed in any material before
the court that is to be considered for the purpose of trying the
offence, but not investigated. He has to be a person whose
complicity may be indicated and connected with the
c commission of the offence.

16. The legislature cannot be presumed to have imagined
all the circumstances and, therefore, it is the duty of the court
to give full effect to the words used by the legislature so as to
encompass any situation which the court may have to tackle
D while proceeding to try an offence and not allow a person who
deserves to be tried to go scot free by being not arraigned in
the trial in spite of possibility of his complicity which can be
gathered from the documents presented by the prosecution.

E 17. The court is the sole repository of justice and a duty is·
cast upon it to uphold the rule of law and, therefore, it will be
inappropriate to deny the existence of such powers with the
courts in our criminal justice system where it is not uncommon
that the real accused, at times, get away by manipulating the
F 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 he may be connected with the commission of the
offence.
G 18. Coming to the stage at which power under Section 319
Cr.P.C. can be exercised, in Dharam Pal (Supra), this Court
had noticed the conflict in the decisions of Kishun Singh & Ors
v. State of Bihar, (1993) 2 SCC 16 and Ranjit Singh v. State
of Punjab, AIR 1998 SC 3148, and referred the matter to the
H Constitution Bench. However, while referring the matter to a
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 31
[DR. B.S. CHAUHAN, J.]
Constitution Bench, this Court affirmed the judgment in Kishun A
Singh (Supra) and doubted the correctness of the judgment in
Ranjit Singh (Supra). In Ranjit Singh (Supra). this Court
observed that from the stage of committal till the Sessions Court
reaches the stage indicated in Section 230 Cr.P.C., that court
can deal with only the accused referred to in Section 209 B
Cr.P.C. and there is no intermediary stage till then for the
Sessions Court to add any other person to the array of the
·accused, while in Kishun Singh (Supra), this Court came to the
conclusion that even the Sessions Court has power under
Section 193 Cr.P.C. to take cognizance of the offence and c
summon other persons whose complicity in the commission of
the trial can prima facie be gathered from the materials
available on record and need not wait till the stage of Section
319 Cr.P.C. is reached. This Court in Dharam Pal (Supra) held
that the effect of Ranjit Singh (Supra) would be that in less
0
serious offences triable by a Magistrate, the said Court would
-have the power to proceed against those who are mentioned
in Column 2 of the charge-sheet, if on the basis of material on
record, the Magistrate disagrees with the conclusion reached
by the police, but, as far as serious offences triable by the
Court of Sessions are concerned, that court will have to wait E
till the stage of Section 319 Cr.P.C. is reached.

19. At the very outset, we may explain that the issue that
was being considered by this Court in Dharam Pal (CB), was
the exercise of such power at the stage of committal of a case F
and the court held that even if Section 319 Cr.P.C. could not
be invoked at that stage, Section 193 Cr.P.C. could be invoked
for the said purpose. We are not delving into the said issue
which had been answered by the five-Judge Bench of this
Court. However, we may clarify that the opening words of G
Section 193 Cr.P.C. categorically recite that the power of the
Court of Sessions to take cognizance would commence only
after committal of the case by a magistrate. The said provision
opens with a non-obstante clause. "except as otherwise
expressly provided by this code or by any other law for the time H
32 SUPREME COURT REPORTS [2014] 2 S.C.R.

A being in force". The Section therefore is clarified by the said
opening words which clearly means that if there is any other
provision under Cr.P.C., expressly making a provision for
exercise of powers by the court to take cognizance, then the
same would apply and the provisions of Section 193 Cr.P.C.
B would not be applicable.

20. In our opinion, Section 319 Cr.P.C. is an enabling
provision empowering the court to take appropriate steps for
proceeding against any person not being an accused for also
C 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 conflid so as to delve upon the situation that was dealt by
this Court in Dharam Pal (CB).

D 21. In E/achuri Venkatachinnayya & Ors. v. King-Emperor
(1920) ILR 43 Mad 511, this Court held that an inquiry is a stage
before the committal to a higher court. In fact, from a careful
reading of the judgments under reference i.e. Ranjit Singh
(Supra) and Klshun Singh (Supra), it emerges that there is no
E dispute even in these two cases that the stage of committal is .
neither an inquiry nor a trial, for in both the cases, the real
dispute was whether Section 193 Cr.P.C. can be invoked at
the time of committal to summon an accused to face trial who
is not already an accused. It can safely be said that both the
F cases are in harmony as to the said stage neither being a stage
of inquiry nor a trial.

22. Once the aforesaid sta!ld is clarified in relation to the
stage of committal before the Court of Sessions, the answer
G to the question posed now, stands focussed only on the stage
at wtiich such powers can be exercised by the court other than
the stage of committal and the material on the basis whereof
such powers can be invoked by the court.

Question No.(i) What is the stage at which power under
H Section 319 Cr.P.C. can be exercised?
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 33
[DR. B.S. CHAUHAN, J.]

23. The stage of inquiry and trial upon cognizance being A
taken of an offence, has been considered by a large numper
of decisions of this Court and that it may be useful to extract
the same hereunder for proper appreciation of the stage of
invoking of the powers under Section 319 Cr.P.C. to understand
the meaning that can be attributed to the word 'inquiry' and 'trial' B
as used under the Section.

24. In Raghubans Dubey v. State of Bihar, AIR 1967 SC
1167, this Court held :

" ... once cognizance has been taken by the Magistrate, C
he takes cognizance of an offence and not the offenders;
once he takes cognizance of-an offence it is his duty to
find out who the offenders really are and once he comes
to the conclusion that apart from the persons sent up by
the police some other persons are involved, it is his duty D
to proceed against those persons. The summoning of the
additional accused is part of the proceeding initiated by
his taking cognizance of an offence."

25. The stage of inquiry commences,cinsofar as the court E
is concerned, with the filing of the charge-sheet and the
consideration of the material collected by the prosecution, that
is mentioned in the charge-sheet for the purpose of trying the
accused. This has to be understood in terms of Section 2(g)
Cr.P.C., which defines an inquiry as follows: ·
F
"2(g) "inquiry" means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court."

26. In State of U.P. v.. Lakshmi Brahman & Anr., AIR 1983
SC 439, this Court held that from the stage of filing of charge- G
sheet to ensuring the compliance of provision of Section 207
Cr.P,C., the court is only at the stage of inquiry and no trial can
be said to have commenced. The above view has been held
to be per incurium in Raj Kishore Prasad v. State of Bihar &
Anr., AIR 1996 SC 1931, wherein this Court while observing ·H
...

34 . C:SUPREME COURT REPORTS· (2014] 2 S.C.R.

A that Section 319 (1) Cr.P.C. operates in an ongoing inquiry into,
or: trial of, an offence, held that at the stage of Section 209 :
Cr.P.C.~ the court is neither at the stage of inquiry nor at the •
stage. of trial. Even at the stage of. ensuring• compliance of.
Sections 207 arid 208 Cr.P.C.; it cannot be said that the court.
8 . is' at the stage of inquiry because there is no judicial application •
of mind and all that the Magistrate is required to do is to make.
the case/eady to be heard by the Court of Sessions.
' .; ' . . - •' -~. -

27. Trial is distinct from an inquiry and must necessarily
C succeed it. The purpose of the trial is to fasten the responsibility
upon a"perscin'.oii !tie basis.of facts presented-and evidence
·red in this behalf. In Mo1Y & Anr. v. Staie.of Kerala', AIR 2004
SC' 1890, this Court.'observed that !hough !he'word 'trial' is not>
defined in' tile code; it is· clearly distinguishable frorii inquiry.
. lnquir}t must always be'a.fciren.miier.to the·trtar?A three~Judge
D Bench of this'couri'Jn'The State of Bihar'V. Ram- Naresh.
Pandey &'Atif.;'A1Rr19sisc 389 held: · · · ·
'\< ;.. --~ ";\\' t__ ,... ·;·\'-1.-l~, '. ·._, -. _..... ___ <. - • • _,_ - ,..-.:,

'The words 'tried'- arid 'trial' appear to have rio fixed or
.,.
universa/meaning.
. ··-• r- :· , .... .,.. -~ ,·
f'jo. doubt, in •quite
........
.,..,,..~." • ••.
a .number .•
of
E ' · sections in the Code 'to which our attention has been
't '.' .drawn
''~ ''.'
the ''•
~-,.-
woids 'tried' and. 'trial' have beeri
, .. ,,., · • .,., ···· · _:
used in. the;
•r ,.,. - ''(: ·•"
·'·''sense of reference to a stage after the inquiry.' That
•. ;•. 'meaning' 'attaches·. to the words in those 'sections having.
i:. regard to the.contextin' which they are tised. There is no
F reason why where: these' words are
used irranother
.L :• contextJn the <;ode, they should riecessa~/y beJ![I1ited.
in their connotation and significance .. They are words
which must be. considered with regard to the parlicu/ar
context in which they are·used:and with regard to the
G . scheme and:··purposecof .. the ·provision :under
'consideration."" . ·: k : (Emphasis added) c;: •
. :.; ~ ". i ~ '.,, , , , r .: . :.~ , . . '~, ~ - -~ •·.._· ,·~~ •. ;) - ' ' J

, _ 28. In Ratilal Bhanji Mithani v.. State of Maharashtra &
6rs., AIR.197~_sc 94, this court held.: · · , .•

H "Once acha;.ge :is framed, the M~gistrate has no power
'
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 35
[DR. B.S. CHAUHAN, J.]

under Section 227 or any other provision of the Code to A
cancel the charge, and reverse the proceedings to the
stage of Section 253 and discharge the accused. The trial
in a warrant case starts with the framing of charge; prior
to it the proceedings are only an inquiry. After the framing
of charge if the accused pleads not guilty, the Magistrate B
is required to proceed with the trial in the manner
provided in Sections 254 to 258 to a logical end."
(Emphasis added)

29. In V.C. Shukla v. State through C.B.I., AIR 1980 SC
962, this Court held: C

" ... The proceedings starting with Section 238 cf the Code
including any discharge or framing of charges under
Section 239 or 240 amount to a trial... "
D
30. In Union of India & Ors. v. Major General Madan Lal
Yadav (Retd.), AIR 1996 SC 1340, a three-Judge Bench while
dealing with the proceedings in General Court Martial under the
provisions of the Army Act 1950, applied legal maxim "nullus
commodum capere potest de injuria sua propria" (no one can E
take advantage of his own wrong), and referred to various
dictionary meanings of the. word 'trial' and came to the
conclusion:

"It would, therefore, be clear that trial means act of proving
or judicial examination or determination of the issues F
including its own jurisdiction or authority in accordance
with law or _adjudging guilt or innocence of the accused
including all steps necessary thereto. The trial
commences with the performance of the first act or steps
necessary or essential to proceed with the trial. G
(Emphasis supplied)

xx xx
Our conclusion further gets fortified by the scheme of the
H
36 SUPREME COURT REPORTS (2014) 2 S.C.R.

A trial of a criminal case under the Code of Criminal
Procedure, 1973, viz., Chapter XIV "Conditions requisite
for initiation of proceedings" containing Sections 190 to
210, Chapter XVIII containing Sections 225 to 235 and
dealing with "trial before a Court of Sessions" pursuant
B to committal order under Section 209 and in Chapter XIX
"trial of warrant cases by Magistrates" containing
Sections 238 to 250 etc. It is settled law that under the
said Code trial commences the moment cognizance of
the offence is taken and process is issued to the accused
c for his appearance etc. Equally, at a sessions trial, the
court considers the committal order under Section 209
by the Magistrate and proceeds further. It takes
cognizance of the offence from that stage and proceeds
with the trial. The trial begins with the taking of the
cognizance of the offence an-d taking further steps to
D
conduct the trial." (Emphasis supplied)

31. In "Common Cause': A Registered Society thr. its
Directorv. Union of/ndia & Ors., AIR 1997 SC 1539, this Court
while dealing with the issue held:
E
"(i) In case of trials before Sessions Court the trials shall
be treated to have commenced when charges are framed
under Section 228 of the Code of Criminal Procedure,
1973 in the concerned cases.
F (ii) In cases of trials of warrant cases by Magistrates if the
cases are instituted upon police reports the trials shall
be treated to have commenced when charges are framed
under Section 240 of the Code of Criminal Procedure,
1973, while in trials of warrant cases by Magistrates when
G cases are instituted otherwise than on police report such
trials shall be treated to have commenced when charges
are framed against the concerned accused under
Section 246 of the Code of Criminal Procedure, 1973.

H (iii) In cases of trials of summons cases by Magistrates
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 37
[DR. B.S. CHAUHAN, J.]
the trials would be considered to have commenced when A
the accused who appear or are brought before the
Magistrate are asked under Section 251 whether they
plead guilty or have any defence to make. "(Emphasis
added)
B
32. In Raj Kishore Prasad (Supra), this Court said that as
soon as the prosecutor is present before the court and that
court hears the parties on framing of charges and discharge,
trial is said to have commenced and that there is no
· intermediate stage between committal of case and framing of C
charge.

33. In In Re: Narayanaswamy Naidu v. Unknown 1 Ind
· Cas 228, a Full Bench of the Madras High Court held that "Trial
begins when the accused is charged and called on to answer
and then the question before the Court is whether the accused D
is to be acquitted or convicted and not whether the complaint
is to be dismissed or the accused discharged." A similar view
has been taken by Madras High Court subsequently in
Sriramulu v, Veerasalingam, (1914) I.LR. 38 Mad. 585.
E
34. However, the Bombay High Court in Dagdu
Govindshet Wani v. Punja Vedu Wani (1936) 38 Born.LR.
1189 referring to Sriramulu (Supra) held :

"There is no doubt that the Court did take the view that
in a warrant case the trial only commences from the F
framing of the charge ..... But, according to my
experience of the administration of criminal justice in this
Presidency, which is not inconsiderable, the Courts here
have always accepted the definition of trial which has
been given in Gomer Sirda v. Queen-Empress, (1898) G
l.L.R. 25 Cal. 863, that is to say, trial has always been
understood to mean the proceeding which commences
when the case is called on with the Magistrate on the
Bench, the accused in the dock and the representatives
of the prosecution and, defence, if the accused be H
38 SUPREME COURT REPORTS [2014) 2 S.C.R.

A defended, present in Court for the hearing of the case."

A similar view has been taken by the Lahore High Court
in Sahib Din v. The Crown, (1922) I.LR. 3 Lah. 115, wherein
it was held that for the purposes of Section 350 of the Code, a
trial cannot be said to commence only when a charge is
B
framed. The trial covers the whole of the proceedings in a
warrant case. This case was followed in Fakhruddin v. The
Crown, (1924) I.LR. 6 Lah. 176; and in Labhsing v. Emperor,
(1934) 35 Cr.L J. 1261.

C 35. In view of the above, the law can be summarised to
the effect that as 'trial' means determination of issues adjudging
the guilt or the innocence of a person, the person has to be
aware of what is the case against him and it is only at the stage
of framing of the charges that the court informs him of the same,
o the 'trial' commences only on charges being framed. Thus, we
do not approve the view taken by the courts that in a criminal
case, trial commences on cognizance being taken.

36. Section 2(g) Cr.P.C. and the case laws referred to
above, therefore, clearly envisage inquiry before the actual
E
commencement of the trial, and is an act conducted under
Cr.P.C. by the Magistrate or the court. The word 'inquiry' is,
therefore, not any inquiry relating to the investigation of the case
by the investigating agency but is an inquiry after the case is
brought to the notice of the court on the filing of the charge-
F sheet. The court can thereafter proceed to make inquiries and
it is for this reason that an inquiry has been given to mean
something other than the actual trial.

37. Even the word "course" occurring in Section 319
G Cr.P.C., clearly indicates that the power can be exercised only
during the period when the inquiry has been commenced and
is going on or the trial which has commenced and is going on.
It covers the entire wide range of the process of the pre-trial
and the trial stage. The word "course" therefore, allows the court
H to invoke this power to proceed against any person from the
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 39
[DR. B.S. CHAUHAN, J.]
initial stage of inquiry upto the stage of the conclusion of the A
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 B
time; duration and not a fixed point of time. (See:
Commissioner of Income-tax, New Delhi (Now Rajasthan) v.
Mis. East West Import & Export (P) Ltd. (Now known as Asian .
Distributors Ltd.) Jaipur, AIR 1989 SC 836).

38. In a somewhat similar manner, it has been attributed C
t~ word "course" the meaning of being a gradual and
continuous flow advanced by journey or passage from one
place to another with reference to period of time when the
movement is in progress. (See: State of Travancore-Cochin
& Ors. v. Shanmugha Vilas Cashewnut Factory, Qui/on, AIR D
1953 SC 333).

39. To say that powers under Section 319 Cr.P.C. can be
exercised only during trial would be reducing the impact of the
word 'inquiry' by the court. It is a settled principle of law that an E
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" F
which means, "from the words of law, there must be no
departure" has to be kept in mind.

40. The court cannot proceed with an assumption that the
legislature enacting the statute has committed a mistake and
where the language of the statute is plain and unambiguous, G
the court cannot go behind the language of the statute so as to
add or subtract a word playing the role of a political reformer
or of a wise counsel to the legislature. The court has to proceed
on the footing that the legislature intended what it has said and
ieven if there is some defect in the phraseology etc., it is for H
40 SUPREME COURT REPORTS [2014] 2 S.C.R.

A others than the court to remedy that defect. The statute requires
to be interpreted without doing any violence to the language
used therein. The court cannot re-write, recast or reframe the
legislation for the reason that it has no power to legislate.

B 41. No word in a statute has to be construed as
surplusage. No word can be rendered ineffective or
purposeless. Courts are required to carry out the legislative
intent fully and completely. While construing a provision, full
effect is to be given to the language used therein, giving
C reference to the context and other provisions of the Statute. By
construction, a provision should not be reduced to a "dead
letter'' or "useless lumber''. An interpretation which renders a
provision an otiose should be avoided otherwise it would mean
that in enacting such a provision, the legislature was involved
in "an exercise in futility" and the product came as a
D "purposeless piece" of legislation and that the provision had
been enacted without any purpose and the entire exercise to
enact such a provision was "most unwarranted besides being
uncharitable." (Vide: Patel Chunibhai Dajibha etc. v.
Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC 1457;
iE The Martin Bum Ltd. v. The Corporation of Calcutta, AIR 1966
SC 529; M. V. Elisabeth & Ors. v. Harwan Investment &
Trading Pvt. Ltd. Hanoekar House, Swatontapeth, Vasco-De-
Gama, Goa, AIR 1993 SC 1014; Sultana Begum v. Prem
Chand Jain, AIR 1997 SC 1006; State of Bihar & Ors. etc.etc.
F v. Bihar Distillery Ltd. etc. etc., Al R 1997 SC 1511; Institute
of Chartered Accountants of India v. Mis. Price Waterhouse
& Anr., AIR 1998 SC 74; and The South Central Railway
Employees Co-operative Credit Society Employees Union,
Secundrabad v. The Registrar of Co-operative Societies &
G Ors., AIR 1998 SC 703).

42. This Court in Rohitash Kumar & Ors. v. Om Prakash
Sharma & Ors., AIR 2013 SC 30, after placing reliance on
various earlier judgments of this Court held:

H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 41
[DR. B.S. CHAUHAN, J.]
"The Court has to keep in mind the fact that, while A
interpreting the provisions of a Statute, it can neither add,
nor subtract even a single word... A section is to be
interpreted by reading all of its parts together, and it is
not permissible, to omit any part thereof. The Court
cannot proceed with the assumption that the legislature, B
while enacting the Statute has committed a mistake; it
must proceed on the footing that the legislature intended
what it has said; even if there is some defect in the
phraseology used by it in framing the statute, and it is
not open to the court to add and amend, or by c
construction, make up for the deficiencies, which have
been left in the Act ...... The Statute is not to be construed
in light of certain notions that the legislature might have
had in mind, or what the legislature is expected to have
said, or what the legislature might have done, or what the 0
duty of the legislature to have said or done was. The
Courts have to administer the law as they find it, and it
is not permissible for the Court to twist the clear language
of the enactment, in order to avoid any real, or imaginary
hardship which such literal interpretation may
cause ....... under the garb of interpreting the provision, E
the Court does not have the power to add or subtract even
a single word, as it would not amount to interpretation, but
legislation."

Thus, by no means it can be said that provisions of F
Section 319 Cr.P.C. cannot be pressed into service during the
course of 'inquiry'. The word 'inquiry' is not surpulsage in the
said provision.

43. Since after the filing of the charge-sheet, the court G
reaches the stage of inquiry and as soon as the court frames
the charges, the trial commences, and therefore, the power
under Section 319(1) Cr.P.C. can be exercised at any time
after the charge-sheet is filed and before the pronouncement
of judgment, except during the stage of Section 207/208 H
42 SUPREME COURT REPORTS [2014] 2 S.C.R.

A Cr.P.C., committal etc., which is only a pre-trial stage, intended
to put the process into motion. This stage cannot be said to
be a judicial step in the true sense for it only requires an
application of mind rather than a judicial application of mind.

44. At this pre-trial stage, the Magistrate is required to
B
perform acts in the nature of administrative work rather than
judicial such as ensuring compliance of Sections 207 and 208
Cr.P.C., and committing the matter if it is exclusively triable by
Sessions Court. Therefore, it would be legitimate for us to
conclude that the Magistrate at the stage of Sections 207 to
c 209 Cr.P.C. is forbidden, by express provision of Section 319
Cr.P.C., to apply his mind to the merits of the case and
determine as to whether ariy accused needs to be added or
subtracted to face trial before the Court of Sessions.

D 45. It may be pertinent to refer to the decision in the case
of Raj Kishore Prasad (supra) where, in order to avoid any
delay in trial, the court emphasised that such a power should
be exercised keeping in view the context in which the words
"inquiry'' and "trial" have been used under Section 319 Cr.P.C.
E and came to the conclusion that such a power is not available
at the pre-trial stage and should be invoked only at the stage
of inquiry or after evidence is recorded.

46. A two-Judge Bench of this Court in Mis. SWIL Ltd. v.
State of Delhi & Anr., AIR 2001 SC 2747, held that once the
F process has been issued, power under Section 319 Cr.P.C.
cannot be exercised as at that stage, since it is neither an
inquiry nor a trial.

In Ranjit Singh (Supra), the Court held :
G
"So from the stage of committal till the Sessions Court
reaches the stage indicated in Section 230 of the Code,
that court can deal with only the accused referred to in
Section 209 of the Code. There is no intermediary stage
till then for the Sessions Court to add any other person
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 43
[DR. B.S. CHAUHAN, J.]

to the array of the accused. Thus, once the Sessions A
Court takes cognizance of the offence pursuant to the
committal order, the only other stage when the court is
empowered to add any other person to the array of the
accused is after reaching evidence collection when
powers under Section 319 of the Code can be invoked" B

47. In Kishun Singh (Supra), the Court while considering
·the provision of the old Code, the Law Commission's
'Recommendation and the provisions in the Cr.P.c:, held that
Section 319 Cr.P.C. is an improved provision upon the earlier C
one. It has removed the difficulty of taking cognizance as
cognizance against the added per~on would be deemed to
have been taken as originally against the other co-accused.
Therefore, on Magistrate committing the case under Section
209 Cr.P.C. to the Court of Sessions, the bar of Section 193
Cr.P.C. gets lifted thereby investing the Court of Sessions D
complete and unfettered jurisdiction of the court of original
jurisdiction to take cognizance of the offence which would
include the summoning of the person or persons whose
complicity in the commission of the crime cal'I prima facie be
gathered from the material available on record, though who is E
not an accused before the court. ·

48. In Dharam Pal (CB), the Constitution Bench approved
the decision in Kishun Singh (Supra) that the Sessions Judge
has original power to sum"lon accused holding that "the F
Sessions Judge was entitled to issue summons under Section
193 Code of Criminal Procedure upon the case being
committed to him by the Mi;f]istrate. The key words in.Section
193 are that "no Court of Session shall take cognizance of
any offence as a Court of original jurisdiction unless the case G
has been committed to it by a Magistrate under this Code."
The above provision entails that a case must, first of all, be
committed to the Court of Session by the Magistrate . .The
·· second condition is that only after the case had been
committed to it, could the Court of Session take cognizance H
44 SUPREME COURT REPORTS [2014] 2 S.C.R.

A of the offence exercising original jurisdiction. Although, an
attempt has been made to suggest that the cognizance
indicated in Section 193 deals not with cognizance of an
offence, but of the commitment order passed by the teamed
Magistrate, we are not inclined to accept such a submission
B in the clear wordings of Section 193 that the Court of Session
may take cognizance of the offences under the said Section"

49. It is thus aptly clear that until and unless the case
reaches the stage of inquiry or trial by the court, the power
C under Section 319 Cr.P.C. cannot be exercised. In fact, this
proposition does not seem to have been disturbed by the
Constitution Bench in Dharam Pal (CB). The dispute therein _
was resolved visualizing a situation wherein the court was
concerned with procedural delay and was of the opinion that
the Sessions Court should not necessarily wait till the stage of
D Section 3t9 Cr.P.C. is reached to direct a person, not facing
trial, to appear and face trial as an accused. We are in full
agreement with the interpretation given by the Constitution
Bench that Section 193 Cr.P.C. confers power of original
jurisdiction upon the Sessions Court to add an accused once
E the case has been committed to it.

50. In our opinion, the stage of inquiry does not
contemplate any evidence in its strict legal sense, nor the
legislature could have contemplated this inasmuch as the stage
F for evidence has not yet arrived. The only material that the court
has before it is the material collected by the prosecution and
the court at this stage prima facie can apply its mind to find
out as to whether a person, who can be an accused, has been
erroneously omitted from being arraigned or has been
G 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
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 45
[DR. B.S. CHAUHAN, J.]

judicial system whereby the court should be empowered to A
exercise such powers even at the stage of inquiry and it is for
this reason that the legislature has cqnsciously used separate
terms, namely, inquiry or trial in Section 319 Cr.P.C.

Accordingly, we hold that the court can exercise the power B
under Section 319 Cr.P.C. only after the trial proceeds and
· commences with the recording of the evidence and also in
exceptional circumstances as explained herein above.

51. There is yet another set of provisions which form part
of inquiry relevant for the purposes of Section 319 Cr.P.C. i.e. C
provisions of Sections 200, 201, 202, etc. Cr.P.C. applicable
in the case of Complaint Cases. As has been discussed herein,
evidence means evidence adduced before the court. Complaint
Cases is a distinct category of criminal trial where some sort
of evidence in the strict legal sense of Section 3 of the Evidence D
. Act 1872, (hereinafter referred to as the 'Evidence Act') comes
before the court. There does not seem to be any restriction in
the provisions of Section 319 Cr.P.C. so as to preclude such
evidence as coming before the court in Complaint Cases even
before charges have been framed or the process has been E
issued. But at that stage as there is no accused before the
Court, such evidence can be used only to corroborate the
evidence recorded during the trial for the purpose of Section
319 Cr.P.C., if so required.
F
52. What is essential for the purpose of the section is that
there should appear some evidence against a person not
proceeded against and the stage of the proceedings is
irrelevant. Where the complainant is circumspect in proceeding
against several persons, but the court is of the opinion that there
appears to be some evidence pointing to the complicity of G
some other persons as well, Section 319 Cr.P.C. acts as an
empowering provision enabling the court/Magistrate to initiate
proceedings against such other persons. The purpose of
Section 319 Cr.P.C. is to do complete justice and to ensure
that persons who ought to have been tried as well are also tried. H
46 , SUPREME COURT REPORTS [2014] 2 S.C.R.

A Therefore, there does not appear to be any difficulty in invoking
powers, of Section 319 Cr.P.C. at the .stage of trial in a
complaint case when the evidence of the complainant as well.
as his witnesses is being recorded. · · · · ·

B 53. Thus, the application of the provisions of Section 319
Cr.P.C., at the stage of inquiry is to be understood in its correct
perspective. The power under.,Section 319 Cr.P.C. can be
exercised only on the basis .of the evidence adduced before.
the court during a trial. So far as its application during the course
of inquiry is concerned; it remains limited as referred.to
c hereinabove, adding a person as an accused: whose name has'
been mentioned in Column 2 of the charge sheet-or any' other
persori who might be an accomplice. ,
' ·r· , . . , · .-·· · t · · :,; : _ .
Question No.(iii) : :Whether the word "evidence'' used in
D Section 319(1) Cr.P.C .. has been:used in a comprehensive
sense and includes the evidence collected during investigation
or the.word "evidence" is limited.to the evidence recorded'
during trial?.· •. 1 ~. • c , t: ·,
: ~.,·.-., ,_':•:~;, :r:' ..: ' ' .... :.' ··,:._,.,;_ '.. ' r •.'"': <; '. ~ '. ·'
E ., ·... 54. To answer the questions and to resolve the impediment
that is being faced by the trial co'urts in exercising of powers ,
under SeCtion 319 Cr.P.C., the issue h'as to be investigated·
by examining the ·circumstances which give rise to a situation
for the court to invoke-such powers. The Circumstances that lead
to such inference being drawn up by the c<iurt for summoning'
F a person arise out of.the availability of the facts·and material
·that comes up before the court and are made the' basis for
summoning _such a person as an accomplice to the offence
alleged to have been committed. The material should disclose
the complicity of the person in the commission of the offence
G which has to be the material, that appears from the evidence
during the course: of any. inquiry into or. trial of offence. The'
words as used in Section 319 Cr.P.C; indicate that the material
has to be "where .... it appears from the evidence" before the
court. · ·' . '., '
I H

l ,I
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 47
[DR. B.S. CHAUHAN, J.]
55. Before we answer this issue, let us examine the A
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 B
fact under inquiry; such statements are called oral
evidence;

(2) all documents including electronic records produced for
the inspection of the Court, such statements are called
documentary evidence; C

. 56. According to Tomlin's Law Dictionary, Evidence is 'Yhe
·means from which an inference may logically be drawn as to
the existence of a fact. It consists of proof by testimony of
witnesses, on oath; or by writing or records." Bentham defines 0
'evidence'· as "any matter of fact, the effect, tendency or design
of which presented to mind, is to produce in the mind a
persuasion concerning the existence of some other matter of
fact- a persuasion either affirmative or disaffirmative of its
existence. Of the two facts so connected, the latter may be
distinguished as the principal fact, and the former as the E
evidentiary fact." According to Wigmore on Evidence, evidence
represents "any knowable fact or group of facts, not a legal or
a logical principle, considered with a view to its being offered
before a legal tribunal for the purpose of producing a
persuasion, positive or negative, on the part of the tribunal, F
as to the truth of a proposition, not of law, or of logic, on which
the determination of the tribunal is to be asked."

57. The provision and the above-mentioned definitions
clearly suggest that it is an exhaustive definition. Wherever the G
words "means and include" are used, it is an indication of the
fact that the definition 'is a hard and fast definition', and no other
meaning can be assigned to the expression that is put down
in the definition. It indicates an exhaustive explanation. of the
meaning which, for the purposes of the Act, must invariably be H
48 SUPREME COURT REPORTS [2014] 2 S.C.R.

A attached to these words or expression. (Vide: Mis.
Mahalakshmi Oil Mills v. State of A.P., AIR 1989 SC 335;
Punjab Land Development and Reclamation Corporation
Ltd., Chandigarh v. Presiding Officer, Labour Court,
Chandigarh & Ors., (1990) 3 SCC 682; P. Kasilingam & Ors.
B v. P.S.G. College of Technology & Ors., AIR 1995 SC 1395;
Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner
& Ors., AIR 2008 SC 968; and Ponds lndie Ltd. (merged with
H.L. Limited) v. Commissioner of Trade Tax. Lucknow, (2008)
8 sec 369).
c 58. In Feroze N. Dotivala v.,P.M. Wadhwani & Ors., (2003)
1 SCC 433, dealing with a similar issue, this Court observed
as under:

"Generally, ordinary meaning is to be assigned to any
D word or phrase used or defined in a statute. Therefore,
unless there is any vagueness or ambiguity, no occasion
will arise to interpret the term in a manner which may add
something to the meaning of the word which ordinarily
does not so mean by the definition itself, more
E particularly, where it is a restrictive definition. Unless there
are compelling reasons to do so, meaning of a restrictive
and exhaustive definition would not be expanded or
made extensive to embrace things which are strictly not
within the meaning of the word as defined."
F We, therefore proceed to examine the matter further on the
premise that the definition of word "evidence" under the
Evidence Act is exhaustive.

59. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr.,
G AIR 2011 SC 760, while dealing with the issue this Court held

"18. The word "evidence" is used in common parlance
in three different senses: (a) as equivalent to relevant, (b)
as equivalent to proof, and (c) as equivalent to the
H
HARDEEP SINGf-t v. STATE OF PUNJAB & ORS. 49
[DR. B.S. CHAUHAN, J.]
material, on the basis of which courts come to a A
conclusion about the existence or non-existence of
disputed facts. Though, in the definition of the word
"evidence" given in Section 3 of the Evidence Act one
finds only oral and documentary evidence, this word is
also used in phrases such as best evidence, B
circumstantial evidence, corroborative evidence,
derivative evidence, direct evidence, documentary
evidence, hearsay evidence, indirect evidence, oral
evidence, original evidence, presumptive evidence, ·
primary evidence, real evidence, secondary evidence, c
substantive evidence, testimonial evidence, etc."

60. In relation to a Civil Case, this court in Ameer Trading
Corporation Ltd. v. Shapoorji Data Processing Ltd., AIR 2004
SC 355, held that the examination of a witness would include
evidence-in-chief, cross-examination or re-examination. In D
Omkar Namdeo Jadhao & Ors' v. Second Additional
Sessions Judge Buldana & Anr., AIR 1997 SC 331; and Ram
Swaroop & Ors. v. State of Rajasthan, AIR 2004 SC 2943,
this Court held that statements recorded under Section 161
· Cr.P .C. during the investigation are not evidence. Such E
statements can be used at the trial only for contradictions or
omissions when the witness is examined in the court.

(See also: Podda Narayana & Ors. v. State of A.P., AIR
1975 SC 1252;.Sat Paul v.-Delhi Administration, AIR 1976 F
SC 294; and State (Delhi Administration) v. Laxman Kumar
& Ors., AIR 1986 SC 250).

61. In Lok Ram v. Nihal Singh & Anr., AIR 2006 SC 1892,
it was held that it is evident that a person, even though had
initially been named in the FIR as an accused, but not charge- G
sheeted, can also be added as an accused to face the trial.
The trial court can take such a step to add such persons as
accused only on the basis of evidence adduced before it and
not on the basis of materials available in the charge-sheet or
H
50 SUPREME COURT REPORTS (2014] 2 S.C.R.

A the case diary, because such materials contained in the charge-
. sheet or the case diary do not constitute evidence.

62. The majority view of the Constitution Bench in
Ramnarayan Mor & Anr. v. The State of Maharashtra, AIR
1964 SC 949 has been as under:
8
"9. It was urged in the alternative by counsel for the
appellants that even if the expression "evidence" may
include documents, such documents would only be those
which are duly proved at the enquiry for commitment,
C because what may be used in a trial, civil or criminal, to
support the judgment of a Court is evidence duly proved
according to law. But by the Evidence Act which applies
to the trial of all criminal cases, the expression
"evidence" is defined in Section 3 as meaning and
D including all statements which the Court permits or
requires to be made before it by witnesses, in relation to
matters of fact under enquiry and documents produced
for the inspection of the Court. There is no rest.'.;tion in
this definition to documents which are duly proved by
E evidence." (Emphasis added)

63. Similarly, this Court in Sunil Mehta & Anr. v. State of
Gujarat & Anr., JT 2013 (3) SC 328, held that "It is trite that
evidence within the meaning of the Evidence Act and so also
within the meaning of Section 244 of the Cr.P.C. is what is
F recorded in the manner stipulated under Section 138 in the
case of oral evidence. Documentary evidenee would similarly
be evidence only if the documents are proved in the manner
recognised and provided for under the Evidence Act unless of
course a statutory provision makes the document admissible
G as evidence without any formal proof thereof."

64. In Guriya @ Tabassum Tauquir & Ors. v. State of
Bihar & Anr., AIR 2008 SC 95, this Court held that in exercise
of the powers under Section 319 Cr.P.C., the court can add a
H new accused only on the basis of evidence adduced before it
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 51
[DR. B.S. CHAUHAN, J.]
and not on the basis of materials available in the charge sheet A
or the case diary.

65. In Kishun Singh (Supra), this Court held :

"11. On a plain reading of sub-section (1) of Section 319
there can be no doubt that it must appear from the B
evidence tendered in the course of any inquiry or trial
that any person not being the accused has committed
any offence for which he could be tried together with the
accused. This power (under Section 319(1)), it seems
clear to us, can be exercised only if it so appears from C
the evidence at the trial and not otherwise. Therefore, this
sub-section contemplates existence of some evidence
appearing in the course of trial wherefrom the court can
prima facie conclude that the person not arraigned
before it is also involved in the commission of the crime D
for which he can be tried with those already named by
the police. Even a person who has earlier been
discharged would fall within the sweep of the power
conferred by S. 319 of the Code. Therefore, stricto sensu,
Section 319 of the Code cannot be invoked in a case E
like the present one where no evidence has been led at
a trial wherefrom it can be said that the appellants
appear to have been involved in the commission of the
crime along with those already sent up for trial by the
prosecution.
F
12. But then it must be conceded that Section 319
covers the post-cognizance stage where in the course of
an inquiry or trial the involvement or complicity of a
person or persons not named by the investigating
agency has surfaced which necessitates the exercise of G
the discretionary ppwer conferred by the said
/ . . u
· prov1s1on .....

66. A similar view has been taken by this Court in Raj
Kishore Prasad (Supra), wherein it was held that in order to Hi
52 SUPREME COURT REPORTS (2014] 2 S.C.R.

A apply Section 319 Cr.P.C., it is essential that the need to
proceed against the person other than the accused appearing
to be guilty of offence arises only on evidence recorded in the
course of an inquiry or trial.

I! 67. In Lal Suraj @ Suraj Singh & Anr. v. State of
Jharkhand, (2009) 2 SCC 696, a two-Judge Bench of this
Court held that "a court framing a charge would have before it
all the materials on record which were required to be proved
by the prosecution. In a case where, however, the court
exercises its jurisdiction under Section 319 Cr.P.C., the power
C has to be exercised on the basis of the fresh evidence brought
before the court. There lies a fine but clear distinction."

68. A similar view has been reiterated by this Court in
Rajendra Singh v. State of UP. & Anr., AIR 2007 SC 2786,
D observing that court should not exercise the power under
Section 319 Cr.P.C. on the basis of materials available in the -
charge-sheet or the case diary, because such materials
contained in the charge-sheet or the case diary do not
constitute evidence. The word 'evidence' in Section 319 Cr.P.C.
E contemplates the ·evidence of witnesses given in the court .
...
69. Ordinarily, it is only after the charges are framed that
the stage of recording of evidence is reached. A bare perusal
of Section 227 Cr.P.C. would show that the legislature has used.
the terms "record of the case" and the "documents submitted
F therewith". It is iri this context that the word 'evidence' as
appearing in Section 319 Cr.P.C. has to be read and
understood. The material collected at\he stage of investigation
can at best be used for :a limited purpose as provided under
Section 157 of the ·Evidence Act ,i.e. to corroborate or
G contradict the statements Ot the witnesses recorded before the
court. Therefore, for the exercise of power under Section 319
Cr.P.C., the use of word 'evidence' means material that has
come before the court during an inquiry or trial by it and not
otherwise. If from the evidence led in the trial the court is of the
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 53
[DR. B.S. CHAUHAN, J.]
opinion that a person not accused before it has also committed A
the offence, it may summon such person under Section 319
Cr.P.C.

70. With respect to documentary evidence, it is sufficient,
as can be seen from a bare perusal of Section 3 of the B
Evidence Act as well as the decision of the Constitution Bench,
that a document is required to be produced and proved
according to law to be called evidence. Whether such evidence
is relevant, irrelevant, admissible or inadmissible, is a matter
of trial.
c
71. It is, therefore, clear that the word "evidence" in
Section 319 Cr.P.C. means only such evidence as is made
before the court, m relation to statements, and as produced
before the court, m relation to documents. It is only such
evidence that can be taken into account by the Magistrate or D
the Court to decide whether power under Section 319 Cr.P.C.
is to be exercised and not on the basis of material collected
during investigation.

72. The inquiry by the court is neither attributable to the E
· investigation nor the prosecution, but by the court itself for
collecting information to draw back a curtain that hides
something material. It is the duty of the court to do so and
therefore the power to perform this duty is provided under the
Cr.P.C.
F
73. The unveiling of facts other than the material collected
during investigation before the magistrate or court before trial
actually commences is part of the process of inquiry. Such facts
when recorded during trial are evidence. It is evidence only on
the basis whereof trial can be held, but can the same definition G
be extended for any other material collected during inquiry by
the magistrate or court for the purpose of Section 319 Cr.P.C.?

74. An inquiry can be conducted by the magistrate or court
at any stage during the proceedings before the court. This
H
54 SUPREME COURT REPORTS [2014] 2 S.C.R.

A power is preserved with the court and has to be read and
understood accordingly. The outcome of any such exercise
should not be an impediment in the speedy trial of the case.

75. Though the facts so received by the magistrate or the
court may not be evidence, yet it is some material that makes
8
things clear and unfolds concealed or deliberately suppressed
material that may facilitate the trial. In the context of Section 319
Cr.P.C. it is an information of complicity. Such material
therefore, can be used even though not an evidence in stricto
sensuo, but an information on record collected by the court
C during inquiry itself, as a prima facie satisfaction for exercising
the powers as presently involved.

76. This pre-trial stage is a stage where no adjudication
on the evidence of the offences involved takes place and
D therefore, after the material alongwith the charge-sheet has
been brought before the court, the same can be inquired into
in order to effectively proceed with framing of charges. After
the charges are framed, the prosecution is asked to lead
evidence and till that is done, there is no evidence available in
E 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
F material that has been placed before the court for its
consideration in order to proceed with the trial by framing of
charges.

77. It is, therefore, not any material that can be utilised,
rather it is that material after cognizance is taken by a court,
G that is available to it while making an inquiry into or trying an
offence, that the court can utilize or take into consideration for
supporting reasons to summon any person on the basis of
evidence adduced before the Court, who may be on the basis
. of such material, treated to be an accomplice in the
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 55
[DR. B.S. CHAUHAN, J.]
commission of the offence. The inference that can be drawn is A
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.
B
78. This would 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.
c
79. The word "evidence" therefore has to be understood
in its wider sense both at the stage of trial and, as discussed
~earlier, even at the stage of inquiry, as used under Section 319
Cr.P.C. The court, therefore, should be understood to have the
power to proceed against any person after summoning him on D
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.
E
80. In view of the discussion made and the conclusion
-drawn hereinabove, the answer to the aforesaid question
posed is that apart from evidence recorded during trial, any
material that has been received by the court after cognizance
is taken and before the trial commences, can be utilised only F
for corroboration and to support the evidence recorded by the
court to invoke the power under Section 319 Cr.P.C. The
'evidence' is thus, limited to the evidence recorded during trial.

Q.(ii) Does the word 'evidence' in Section 319 Cr.P.C. means
as arising in Examination-in-Chief or also together with Cross- G
Examination?

81. The second question referred to herein is in relation
to the word 'evidence· as used under Section 319 Cr.P.C.,
which leaves no room for doubt that the evidence as understood H
56 SUPREME COURT REPORTS [2014] 2 S.C.R.

A 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
B prosecution witnesses, therefore, is evidence which includes
the statement during examination-in-chief. In Rakesh (Supra),
it was held that "It is true that finally at the time of trial the
accused is to be given an opportunity to cross-examine the
witness to test its truthfulness. But that stage would not arise
c while exercising the court's power under Section 319 CrPC.
Once the deposition is recorded, no doubt there being no
cross-examination, it would be a prima facie material which
would enable the Sessions Court to decide whether powers
under Section 319 should be exercised or not." In Ranjit Singh
(Supra), this Court held that "it is not necessary for the court to
0
wait until the entire evidence is collected," for exercising the
s~id power. In Mohd. Shafi (Supra), it was held that the pre-
requisite for exercise of power under Section 319 Cr.P.C. was
the satisfaction of the court to proceed against a person who
is not an accused but against whom evidence occurs, for which
E the court can even wait till the cross examination is over and
that there would be no illegality in doing so. A similar view has .
been taken by a two-Judge Bench in the case of Harbhajan ·
Singh & Anr. v. State of Punjab & Anr. (2009) 13 SCC 608.
This Court in Hardeep Singh (Supra) seems to have misread
F the judgment in Mohd. Shafi (Supra), as it construed that the
said judgment laid down that for the exercise of power under
Section 319 Cr.P.C., the court has to necessarily wait till the
witness is cross examined and on complete appreciation of
evidence, come to the conclusion whether there is a need to
G proceed under Section 319 Cr.P.C.

82. We have given our thoughtful consideration to the
diverse views expressed in the aforementioned cases. Once
examination-in-chief is conducted, the statement becomes part
H of the record. It is evidence as per law and in the true sense,
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 57
[DR. B.S. CHAUHAN, J.]

for at best, it may be rebuttable. An evidence being rebutted A
or controverted becomes a matter of consideration, relevance
and belief, which is the stage of judgment by the court. Yet it is
evidence and it is material on the basis whereof the court can
come to a prima facie opinion as to complicity of some other
person who may be connected with the offence. B

83. As held in Mohd. Shafi (Supra) and Harbhajan Singh
(Supra), all that is required for the exercise of the power under
Section 319 Cr.P.C. is that, it must appear to the court that
some other person also who is not facing the trial, may also C
have been involved in the offence. The pre-requisite for the
exercise of this power is simi!ar to the prima facie view which
the magistrate must come to in order to take cognizance of
the offence. Therefore, no straight-jacket formula can and
should be laid with respect to conditions precedent for arriving
0
at such an opinion and, if the Magistrate/Court is convinced
even on the basis of evidence appearing in Examination-in-
Chief, it can exercise the power under Section 319 Cr.P.C. and
can proceed against such other person(s). It is essential to note
that the Section also uses the words 'such person could be
tried' instead of should be tried. Hence, what is required is not E
to have a mini-trial at this stage by having examination and
-cross-examination and thereafter rendering a decision on the
overt act of sucl'i person sought to be added. In fact, it is this
mini-trial that would affect the right of the person sought to be ,
arraigned as an accused rather than not having any cross- F
examination at all, for in light·of sub-section 4 of Section 319
Cr.P.C., the person would be entitled to a fresh trial where he
would have all the rights including the right to cross examine
prosecution witnesses and examine defence witnesses and
advance his arguments upon the same. Therefore, even on the G
basis of Examination-in-Chief, the Court or the Magistrate can
proceed against a person as long as the court is satisfied that
the evidence appearing against such person is such that it
prima facie necessitates bringing such person to face trial. In
fact, Examination-in-Chief untested by Cross Examination, H
58 S:UPREME COURT REPORTS [2014] 2 S.C.R.

-A undoubtedly in itself, is an evidence.

84. Further, in our opinion, there does not seem to be any
logic behind waiting till the cross-examination of the witness is
over. It is to be kept in mind that at the time of exercise of power
B under Section 319 Cr.P.C., the person sought to be arraigned
as an accused, is in no way participating in the trial. Even if
the cross-examination is to be taken into consideration, the
person sought to be arraigned as an accused cannot cross
examine the witness(s) prior to passing of an order under
Section 319 Cr.P.C., as such a procedure is not contemplated
C by the Cr.P.C. Secondly, invariably the State would not oppose
or object to naming of more persons as an accused as it would
in
only help the prosecution completing the chain of evidence,
unless the witness(s) is obliterating the role of persons already
facing trial. More so, Section 299 Cr.P.C. enables the court to
D record evidence in absence of the accused in the circumstances
mentioned therein.

85. Thus, in view of the above, we hold that power under
Section 319 Cr.P.C. can be exercised at the stage of
E completion of examination in chief and court does not need to
wait till the said evidence is tested on cross-examination for it
is the satisfaction of the court which can be gathered from the
reasons recorded by the court, in respect of complicity of some·
other person(s), not facing the trial in the offence.

F Q. (iv) What is the degree of satisfaction required for invoking
the power under Section 319 Cr.P.C.?

86. Section 319(1) Cr.P.C. empowers the court to proceed
against other persons who appear to be guilty of offence,
G though not an accused before the court.

The word "appear'' means "clear to the comprehension",
or a phrase near to, if not synonymous with "proved". It imparts
a lesser degree of probability than proof.
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 59
[DR. B.S. CHAUHAN, J.]
87. In Pyare Lal Bhargava v. The State of Fajasthan, AIR A
1963 SC 1094, a four-Judge Bench of this Court was
concerned with the meaning of the word 'appear'. The court held
that the appropriate meaning of the word 'appears' is 'seems'.
It imports a lesser degree of probability than proof. In Ram
Singh & Ors. v. Ram Niwas & Anr., {2009) 14 SCC 25, a two- B
Judge Bench of this Court was again required to examine the
_importance of the word 'appear' as appearing in the Section.
The Court held that for the fulfillment of the condition that it
appears to the court that a person had committed an offence,
the court must satisfy itself about the existence of an exceptional. c
circumstance enabling it to exercise an extraordinary
jurisdiction. What is, therefore, necessary for the court is to arrive
at a satisfaction that the evidence adduced on behalf of the
prosecution, if unrebutted, may lead to conviction of the persons
sought to be added as an accused in the case. D

88. At the time of taking cognizance, the court has to see
whether a prima facie case is made out to proceed against the
accused. Under Section 319 Cr.P.C., though the test of prima
facie case is the same, the degree of satisfaction that is
required is much stricter. A two-Judge Bench of this Court in E
Vikas v. State of Rajasthan, 2013 {11) SCALE 23, held that
on the objective satisfaction of the court a person may be
'arrested' or 'summoned', as the circumstances of the case may
require, if it appears from the evidence that any such person
not being the accused has committed an offence for which such F
person could be tried together with the already arraigned
accused persons.

89. In Rajendra Singh {Supra), the Court observed:

"Be it noted, the court need not be satisfied that he has G
committed an offence. It need only appear to it that he
has committed an offence. In other words, from the
evidence it need only appear to it that someone else has
committed an offence, to exercise jurisdiction under
Section 319 of the Code. Even then, it has a discretion H
60 SUPREME COURT REPORTS [2014) 2 S.C.R.

A not to proceed, since the expression used is "may" and
not "shall". The legislature apparently wanted to leave
that discretion to the trial court so as to enable it to
exercise its jurisdiction under this section. The
expression "appears" indicates an application of mind by
B the court to the evidence that has come before it and then
taking a decision to proceed under Section 319 of the
Code or not. "

90. In Mohd. Shafi (Supra), this Court held that it is evident
C that before a court exercises its discretionary jurisdiction in
terms of Section 319 Cr.P.C., it must arrive at a satisfaction
that there exists a possibility that the accused so ~ummoned
in all likelihood would be convicted.

91. In Sarabjit Singh &Anr. v. State of Punjab &Anr., AIR
D 2009 SC 2792, while explaining the scope of Section 319
Cr.P.C., a two-Judge Bench of this Court observed:

" .... For the aforementioned purpose, the courts are
required to apply stringent tests; one of the tests being
whether evidence on record is such which would
E
reasonably lead to conviction of the person sought to be
summoned ...... Whereas the test of prim a facie case
may be sufficient for taking cognizance of an offence at
the stage of framing of charge, the court must be satisfied·
that there exists a strong suspicion. While framing charge
F in terms of Section 227 of the Code, the court must
consider the entire materials on record to form an
opinion that the evidence if unrebutted would lead to a
judgment of conviction. Whether a higher standard be set
up for the purpose of invoking the jurisdiction under
G Section 319 of the Code is the question. The answer to
these questions should be rendered in the affirmative.
Unless a higher standard for the purpose of forming an
opinion to summon a person as an additional accused
is laid down, the ingredients thereof viz. (i) an
H extraordinary case, and (ii) a case for sparingly (sic
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 61
[DR. B.S. CHAUHAN, J.]
sparing) exercise of jurisdiction, would not be satisfied." A
(Emphasis added)

92. In Brindaban Das & Ors. v. State of West Bengal, AIR
2009 SC 1248, a two-Judge Bench of this Court took a similar
view observing that the court is required to consider whether B
such evidence would be sufficient to convict the person being
summoned. Since issuance of summons under Section 319
Cr.P.C. entails a de novo trial and a large number of witnesses
may have been examined and their re-examination could
prejudice the prosecution and delay the trial, the trial court has C
to exercise such discretion with great care and perspicacity.

A similar'view has been re-iterated by this Court in
Michael Machado & Anr. v. Central Bureau of Investigation
& Ors., AIR 2000 SC 1127.
D
93. However, there is a series of cases wherein this Court
while dealing with the provisions of Sections 227, 228, 239,
240, 241, 242 and 245 Cr.P.C., has consistently held that the
court at the stage of framing of the charge has to apply its mind
to the question whether or not there is any ground for presuming E
the commission of an offence by the accused. The court has
to see as to whether the material brought on record reasonably
connect the accused with the offence. Nothing more is required
to be enquired into. While dealing with the aforesaid provisions,
the test of prima facie case is to be applied. The Court has to
find out whether the materials offered by the prosecution to be F
adduced as evidence are sufficient for the court to proceed
against the accused further. (Vide: State of Kamataka v. L.
Munishwamy & Ors., AIR 1977 SC 1489; All India Bank
Officers' Confederation etc. v. Union of India & Ors., AIR 1989
SC 2045; Stree Atyachar Virodhi Parishad v. Dilip Nathumal G
Chordia, (1989) 1 SCC 715; State of M.P. v. Dr. Krishna
Chandra Saksena, (1996) 11 SCC 439; and State of M.P. v.
Mohan Lal Soni, AIR 2000 SC 2583).

94. In Di/awar Babu Kurane v. State of Maharashtra, AIR H
62 SUPREME COURT REPORTS [2014} 2 S.C.R.

A 2002 SC 564, this Court while dealing with the provisions of
Sections 227 and 228 Cr.P.C., placed a very heavy reliance
on the earlier judgment of this Court in Union of India v. Prafulla
Kumar Sama/ & Anr., AIR 1979 SC 366 and held that while
considering the question of framing the charges, the court may
B weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has
been made out and whether the materials placed before this
Court disclose grave suspicion against the accused which has
not been properly explained. In such ari~ventuality, the court is
C justified in framing the charges and proceeding with the trial.
The court has to consider the broad probabilities of the case,
the total effect of the evidence and the documents produced
before the court but court should not make a roving enquiry into
the pros and cons of the matter and weigh evidence as if it is
conducting a trial.
0
95. In Suresh v. State of Maharashtra, AIR 2001 SC 1375,
this Court after taking note of the earlier judgments in Niranjan
Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, AIR
1990 SC 1962 and State of Maharashtra v. Priya Sharan
E Maharaj, AIR 1997 SC 2041, held as under:

"9...... .at the stage of Sections 227 and 228 the Court is
required to evaluate the material and documents on
record with a view to finding out if the facts emerging
F therefrom taken at their face value disclose the existence
of all the ingredients constituting the alleged offence. The
Court may, for this limited purpose, sift the evidence as
it cannot be expected even at that initial stage to accept
all that the prosecution states as gospel truth even if it is
opposed to common sense or the broad probabilities of
G
the case. Therefore, at the stage of framing of the charge
the Court has to consider the material with a view to find
out if there is ground for presuming that the accused has
committed the offence or that there is not sufficient ground
for proceeding against him and not for the purpose of
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 63
[DR. B.S. CHAUHAN, J.]

arriving at the conclusion that it is not likely to lead to a A
conviction." (Emphasis supplied)

96. Similarly in State of Bihar v. Ramesh Singh, AIR 1977
SC 2018, while dealing with the issue, this Court held:

" ...... If the evidence which the Prosecutor proposes to 8
adduce to prove the guilt of the accused even if fully
accepted before it is challenged in cross-examination or
rebutted by the defence evidence, if any, cannot show that
the accused committed the offence, then there will be no
sufficient ground for proceeding with the trial ..... "· C

·- 97. In Palanisamy Gounder & Anr. 'V. State, represented
by Inspector of Police, (2005) 12 SCC 327, this Court
deprecated the practice of invoking the power under Section
319 Cr.P.C. just to conduct a fishing inquiry, as in that case, o
the trial court exercised that power just to find out the real truth,
though there was no valid ground to proceed against the
person summoned by the court.

98. Power under Section 319 Cr.P.C. is a discretionary _
and an extra-ordinary power. It is to be exercised sparingly and E
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 F
led before the court that such power should be exercised and
not in a casual and cavalier manner.

99. Thus, we hold that though only a prima facie case is
to be established from the evidence led before the court not G
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 H
64 SUPREME COURT REPORTS [2014] 2 S.C.R.

A unrebutted, would lead to conviction. In the absence of such
satisfaction, the court .should refrain from exercising power
under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose
of providing if 'it appears from the evidence that any person not
being the accused has committed any offence' is clear from the
B words "for which such person could be tried together with the
accused." The words used are not 'for which such person could
be convicted'. There is, therefore, no scope for the Court acting
under Section 319 Cr.P.C. to form any opinion as to the guilt
of the accused.

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

100. In Joginder Singh & Anr. v. State of Punjab & Anr.,
o AIR 1979 SC 339, a three-Judge Bench of this Court held that
as regards the contention that the phrase "any person not being
the ace.used" occurring in Section 319 Cr.P.C. excludes from
its operation an accused who has been released by the police _
under Section 169 Cr.P.C. and has been shown in Column 2
E of the charge-sheet, the contention has merely to be rejected.
The said expression clearly covers any person who is not being
tried already by the Court and the very purpose of enacting such
a provision like Section 319 (1) Cr.P.C. clearly shows that even
persons who have been dropped by the police during
F inve·stigation but against whom evidence showing their
involvement in the offence comes before the criminal court, are
included in the said expression.

101. In Anju Chaudhary v. State of U.P. & Anr., (2013) 6
SCC 384, a two-Judge Bench of this Court held that even in
G the cases where report under Section 173(2) Cr.P.C. is filed
in the court and investigation records the name of a person in
Column 2, or even does not name the person as an accused
at all, the court in exercise of its powers vested under Section
319 Cr.P.C. can summon the person as an accused and even
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 65
[DR. B.S. CHAUHAN, J.]
at that stage of summoning, no hearing is contemplated under A
the law.

102. In Suman v. State of Rajasthan & Anr., AIR 2010 SC
518, a two-Judge Bench of this Court observed that there is
nothing in the language of this sub-section from which it can B
be inferred that a person who is named in the FIR or complaint,
but against whom charge-sheet is not filed by the police, cannot
be proceeded against even though in the course of any inquiry
into or trial of any offence, the court finds that such person has
committed an offence for which he could be tried together with C
the other accused. In Lal Suraj (Supra), a two-Judge Bench held
that there is no dispute with the legal proposition that even if a
1 person had not been charge-sheeted, he may come within the

purview of the description of such a person as contained in
Section 319 Cr.P.C. A similar view had been taken in Lok Ram
(Supra), wherein it was held that a person, though had initially D
been named in the FIR as an accused, but not charge-sheeted,
can also be added to face the trial.

103. Even the Constitution Bench in Dharam Pal (CB) has
.. held that the Sessions Court can also exercise its original E
jurisdiction and summon a person as an accused in case his
name appears in Column 2 of the chargesheet, once the case
had been committed to it. It means that a person whose name
does not appear even in the FIR or in the chargesheet or whose
name appears in the FIR and not in the main part of the F
chargesheet but.in Column 2 and has not been summoneq as
an accused in exercise of the powers under Section 193
Cr.P.C. can still be summoned by the court,. provided the court
is satisfied that the conditions provided in the said statutory
provisions stand fulfilled.
G
104. However, there is a great difference with regard to a
person who has been discharged. A person who has been
discharged stands on a different footing than a person who was
never subjected to investigation or if subjected to, but not
charge-sheeted. Such a person has stood the stage of inquiry H
66 SUPREME COURT REPORTS [2014] 2 S.C.R.

A 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
B therefore, there is not much change as regards the material
existing against the person so discharged. Therefore, there
must exist compelling circumstances to exeri;ise such power.
The Court should keep in· mind. that the witness when giving
evidence against the person so discharged, is not doing so
c merely to seek revenge or is naming him at the behest of
someone or for such other extraneous considerations. The
court has to be circumspect in treating such evidence and try
to separate the chaff from the grain. If after such careful
examination of the evidence, the court is of the opinion that there
does exist evidence to proceed against the·person so
0
discharged, it may take steps but only in accordance with
Section 398 Cr.P.C. without resorting to the provision of
Section 319 Cr.P.C. directly. · -

105: In Schan Lal & or5. v. State of Rajasthan, (1990) 4.
- E SCC 580, a two-Judge Bench of this Court held that once an
accused has been discharged, the procedure for ·enquiry
envisaged under Section 398 Cr.P.C. cannot be circumvented
by prescribing to procedure under Section 319 Cr.P.C.

F 106. In Municipal Corporation of Delhi v. Ram Kishan
Rohtagi & Ors., AIR 1983 SC 67, this Court held that if the
prosecution can at any stage produce evidence which satisfies
thecourt that those who have not been arraigned as accused
or against whom proceedings have been quashed, have also
G committed the offence, the Court can take cognizance against
them under Section 319 Cr.P.C. and try them along with the
other accused.

107. Power under Section 398 Cr.P.C. is in the nature of
revisional power which can be exercised only by the High Court
H ·or the Sessions Judge, as the case may be. According to
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 67
[DR. B.S. CHAUHAN, J.]
Section 300 (5) Cr.P.C., a person discharged under Section A
258 Cr.P.C. shall not be tried again for the same offence except
with the consent of the Court by which he was discharged or
of any other Court to which the first-mentioned Court is
subordinate. Further, Section 398 Cr.P.C. provides that the
High Court or the Sessions Judge may direct the Chief Judicial B
Magistrate by himself or by any of the Magistrate subordinate
to him to make an inquiry into the case against any person who
has already been discharged.

108. Both these provisions contemplate an inquiry to be C
conducted before any person, who has already been
discharged, is asked to again face trial if some evidence
appears against him. As held earlier, Section 319 Cr.P.C. can
also be invoked at the stage of inquiry. We do not see any
reason why inquiry as contemplated by Section 300(5) Cr.P.C.
and Section 398 Cr.P.C. cannot be an inquiry under Section D
319 Cr.P.C. Accordingly, a person discharged can also be
arraigned again as an accused but only after an inquiry as
contemplated by Sections 300(5) and 398 Cr.P.C. If during or
after such inquiry, there appears to be an evidence against such
person, power under Section 319 Cr.P.C. can be exercised. E
We may clarify that the word 'trial' under Section 319 Cr.P.C.
would be eclipsed by virtue of above provisions and the same
cannot be invoked so far as a person discharged is concerned, ·
but no more.
F
109. Thus, it is evident that power under Section 319
Cr.P.C. can be exercised against a person not subjected to
investigation, or a person placed in the Column 2 of the
Charge-Sheet and against whom cognizance had not been
taken, or a person who has been discharged. However, G
concerning a person who has been discharged, no
proceedings can be commenced against him directly under
Section 319 Cr.P.C. without taking recourse to provisions of
Section 300(5) read with Section 398 Cr.P.C.
H
68 SUPREME COURT REPORTS [2014] 2 S.C.R.

A 110. We accordingly sum up our conclusions as follows:

Question Nos.1 & Ill

Q.1 What is the stage at which power under Section 319
Cr.P.C. can be exercised?
B
AND

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

A. In Dharam Pal's case, the Constitution Bench has
already held that after committal, cognizance of an offence can
be taken against a person not named as an accused but
D against whom materials are available from the papers filed by
the police after completion of investigation. Such cognizance
can be taken under Section 193 Cr.P.C. and the Sessions
Judge need not wait till 'evidence' under Section 319 Cr.P.C.
becomes available for summoning an additional accused.
E
Section 319 Cr.P.C., significantly, uses two expressions
that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial
commences after framing of charge, an inquiry can only be·
understood to be a pre-trial inquiry. Inquiries under Sections
200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are
F species of the inquiry contemplated by Section 319 Cr.P.C.
Materials coming before the Court in course.of such enquiries
can be used for corroboration of the evidence recorded in the
court after the trial commences, for the exercise of power under
Section 319 Cr.P.C., and also to add an accused whose name
G has been shown in Column 2 of the chargesheet.

In view of the above position the word 'evidence' in Section
319 Cr.P.C. has to be broadly understood and not literally i.e.
as evidence brought during a trial.
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 69
[DR. B.S. CHAUHAN, J.]
Question No. II A

Q.11 Whether the word "evidence" used in Section 319(1)
Cr.P.C. could only mean evidence tested by cross-examination
or the court can exercise the power under the said pr0vision
even on the basis of the statement made in the examination- B
in-chief of the witness concerned?

A. Considering the fact that under Section 319 Cr.P.C. a
person against whom material is disclosed is only summoned
to face the trial and in such an event under Section 319(4)
Cr.P.C. the proceeding against such person is to commence C
from the stage of taking of cognizance, the Court need not wait
for the evidence against the accused proposed to be
summoned to be tested by cross-examination.

Question No. IV D
Q.IV What is the nature of the satisfaction required to
invoke the power under Section 319 Cr.P.C. to arraign an
accused? Whether the power under Section 319 (1) Cr.P.C.
can be exercised only if the court is satisfied that the accused
summoned will in all likelihood be convicted? E

A. Though under Section 319(4)(b) Cr.P.C. the accused
subsequently impleaded is to be treated as if he had been an
accused when the Court initially took cognizance of the offence,
the degree of satisfaction that will be required for summoning F
a person under Section 319 Cr.P.C. would be the same as for
framing a charge. The difference in the degree of satisfaction
for summoning the original accused and a subsequent accused
is on account of the fact that the trial may have already
commenced against the original accused and it is in the course G
of such trial that materials are disclosed against the newly
summoned accused. Fresh summoning of an accused will
result in delay of the trial - therefore the degree of satisfaction
for summoning the accused (original and subsequent) has to
be different.
H
70 SUPREME COURT REPORTS [201412 S.C.R.

A Question No.V
Q.V Does the power under Section 319 Cr.P.C. extend to
persons not named in the FIR or named in the FIR but not
chargesheeted or who have been discharged?
B A. A person not named in the FIR or a person though
named in the FIR but has not been chargesheeted or a person
who has been discharged can be summoned under Section
319 Cr.P.C. provided. from the evidence it appears that such
person can be tried along with the accused already facing trial.
C However, in so far as an accused who has been discharged
is concerned the requirement of Sections 300 and 398 Cr.P.C.
has to be complied with before he can be summoned afresh;

The matters be placed before the appropriate Bench for
0 final disposal in accordance with law explained hereinabove.

R.P. Reference Answered.