HARINARAYAN G. BAJAJversusSTATE OF MAHARASHTRA & ORS.

                   [201 O] 1 S.C.R. 171

                 HARINARAYAN G. BAJAJ                        A
                             v.
           STATE OF MAHARASHTRA & ORS.
            (Criminal Appeal No. 28 of 2010)
                    JANUARY 6, 2010
                                                             B
      [V.5. SIRPURKAR AND DR. MUKUNDAKAM
                   SHARMA, JJ.]

     Code of Criminal Procedure, 1973 - s. 319(4)(a) and (b);
244 - Criminal proceedings - New accused joined to the C
proceedings after charges framed against the original
accused - Right of newly added accused for initiation of
proceedings qua him from the stage of s. 244 and right to
cross-examine the witnesses before framing of charges -
Held: The whole inquiry in respect of the newly added accused D
should commence afresh from the stage of s. 244 - Such
accused had the right to cross-examine the witnesses.

     Words and Phrases: 'Commence afresh' and
'Proceedings' - Meaning of, in the context of s. 319(4)(a)   E
Cr.P.C.

     In a criminal proceeding u/s. 406 r/w s. 114 IPC, after
the charges were framed against respondent Nos. 2 to
4, appellant filed an application u/s. 319 Cr.P.C.,
requesting to array respondent No. 5 as a co-accused. F
The application was allowed. Respondent No. 5 filed an
application seeking to commence the proceedings qua
him, from the stage of inquiry i.e. from the stage of s. 244
Cr.P.C. and to allow cross-examination of prosecution
witnesses at the stage of evidence before charge. G
Application was allowed. Trial court also split the trial of
respondent No. 5 from the trial of respondent Nos. 2 to
4. The order as regards splitting of trial was quashed by
High Court Appellant's application, seeking quashing of
                            171                              H
    172      SUPREME COURT REPORTS            [2010] 1 S.C.R.


A the order, whereby trial court had ordered de novo
  proceedings as against respondent No. 5 from the stage
  of inquiry, was rejected by High Court.

     · Dismissing the appeal, the Court
B      HELD: 1.1. Section 319 Cr.P.C. suggests that there
  is no escape from commencing the proceedings afresh
  and also that the witnesses have to be re-heard. Clause
  (a) of Section 319 (4) is the basic provision and the use
  of the words 'proceedings' and the term 'commence
C afresh' has its own significance. If the plea that the newly
  joined accused has no right of cross-examination is
  accepted, it would mean that on being joined under
  Section 319 (1) Cr.P.C., the only step that would be
  required would be framing of charge against him. In that
D event, there would be a complete denial to such accused
  of an important right of cross-examination of the
  witnesses before the framing of the charge and it would
  only mean that such accused would remain a mute
  spectator till the framing of the charge. [Para 11] [179-E-
E HJ
       1.2. The Court would also give a meaningful
  interpretation to the word 'proceedings' which has been
  deliberately used by the Leglst$ure. The Legislature
  does not use the word 'trial' which essentially begins after
F framing of the charge. If the legislature had intended that
  the newly joined accused should not get the right of ·
  cross-examining the witnesses examined before framing
  of the charge, it might have used the word 'trial'. The
  deliberate use of the word 'proceedings' would then
G include not only the trial but also the inquiry which
  commences with Section 244 Cr.P.C. artd ends with the
  framing of the charge under Section 246 Cr.P.C. [Para 12]
  [180-A-C)
          1.3. The terminology 'commence afresh' has also its
H
         HARINARAYAN G. BAJAJ v. STATE OF               173
               MAHARASHTRA & ORS.
  own force. It indicates that the whole inquiry which A
  commences from Section 244 Cr.P.C. must begin afresh.
  The interpretation given to the word 'proceedings' by the
  Court, is buttressed by the language of Section 319(b)
  Cr.P.C. The plain language takes back the whole
  proceedings to the stage of taking cognizance. B
  Therefore, the language of Section 319 Cr.P .C. itself
  pushes the proceedings back to the stage of inquiry,
  once the order under Section 319 (1) Cr.P.C. is passed
  by the Court and a new accused is joined therein. [Para
  12) [180-C-E]                                             C
     1.4. If the interpretation that Section 319(4) does not
 require de novo inquiry, is to be accepted then a
 complainant, wherein it is a case of multiple accused, may
 mischievously join only few of them and after getting the
 charge framed, make an application under Section 319          D
 Cr.P.C. to join some other accused persons who would
 then have no right of cross-examination of the witnesses
 and who would be required to be the mute spectators to
 the charge being framed against which they could have
 successfully resisted by cross-examining the witnesses.       E
 [Para 13) [180-E-G]
       1.5. Before summoning the accused under Section
 319(1) Cr.P.C., there is no requirement of allowing such
 accused person to cross-examine the witnesses. That
 stage comes only after an accused is summoned under F
 sub-Section (1). Therefore, it would be a case where the
 newly added accused who has not had the advantage of
 hearing the evidence would be put to prejudice because
 firstly, he has not heard the evidence and secondly, he
 cannot even cross-examine those witnesses in the G
 warrant trial based on a private complaint. [Para 14) [180-
 G-H; 181-A-B]
     2.1. Right to cross-examine the witnesses who are
' examined before framing of the charge is a very precious     H
    174      SUPREME COURT REPORTS              (2010) 1 S.C.R.


A right because it is only by cross-examination that the
  accused can show to the court that there is no need of a
  trial against him. It is to be seen that before framing of the
  charge under Section 246, the Magistrate has to form an
  opinion about there being ground for presuming that the
B accused had committed offence triable under the
  Chapter. If it is held that there is no right of cross-
  examination under Section 244, then the accused would
  have no opportunity to show to the Magistrate that the
  allegations are groundless and that there is no scope for
c framing a charge against him. [Para 16) [181-D-F]
          Ajay Kumar Ghose v. State of Jharkhand 2009 (4) SCR
    515, relied on.
       2.2. Under Section 244, Cr. P.C. the accused has a
  right to cross-examine the witnesses and in the matter of
0
  Section 319, Cr. P.C. when a new accused is summoned,
  he would have similar right to cross-examine the witness
  examined during the inquiry afresh. Again, the witnesses
  would have to be re-heard and then there would be such
  a right. Merely presenting such witnesses for cross-
E examination would be of no consequence. [Para 17) (182-
  B-C]
          Shashi Kant Singh v. Tarkeshwar Singh and Anr. 2002
    (5) sec 738, relied on.
F         Rakesh v. State of Haryana 2001 (6) SCC 248,
    distinguished.
      R.S. Nayak v. A.R. Antulay 1986 (2) SCC 716; Michael
  Machado v. Central Bureau of Investigation 2000 (3) SCC
G 263; Ram Gopal and Anr. v. State 1999 CrLJ 1865, referred
    to.
                        Case Law Reference:
          2009 ( 4 ) SCR 515     Relied on.           Para 16
H         2002 (5) sec 738       Ri>!ied on.          Para 17
         HARINARAYAN G. BAJAJ v. STATE OF                     175
              MAHARASHTRA & ORS.
     2001 (6) sec 248           Distinguished.         Para 19       A
     1999 Crl. L.J. 1865        Referred to.           Para 20
     1986 (2) sec 716           Referred to.           Para 21
     2000 (3) sec 262           Referred to.           Para 22
                                                                     B
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 28 of 2010.

    From the Judgment & Order dated 5.6.2008 of the High
Court of Bombay in Criminal Application No. 1455 of 2008.            c
     Shekhar Naphade, Gaurav Goel (for E.C. Agrawala),
Sanjay V. Kharde, Asha G. Nair, A.H.H. Ponda, Girish B.
Kedia, Rakhi Ray, S.S. Ray, Bina Gupta for the appearing
parties.
                                                                     D
     The Judgment of the Court was delivered by

     V.S. SIRPURKAR, J. 1. Leave granted.

      2. Interpretation of Section 319 of the Code of Criminal
Procedure (hereinafter called "Cr.P.C." for short) and, more         E
particularly, Sub-Section (4) thereof has fallen for consideration
in this appeal.

     3. The factual scenario: A complaint was filed against
three accused persons, being respondent Nos. 2, 3 and 4              F
herein for offence under Section 406 read with Section 114 of
the Indian Penal Code (for short 'IPC') in the Court of the
Metropolitan Magistrate. We need not go into the facts stated
in the said complaint in view of the narrow question which falls
for consideration in this appeal. The Trial Court took the           G
cognizance of the offences on 03.04.1998 and issued process
against respondent Nos. 2 to 4. The Trial Court proceeded to
examine the witnesses before framing the charge. Number of
revisions including the discharge application were filed by the
accused and the trial went on up to 15.09.2005 when the              H
    176     SUPREME COURT REPORTS                  (2010] 1 S.C.R.

A Bombay High Court expedited the trial. On 13.06.2006, the
  cross-examination of the first witness of the prosecution at the
  stage of evidence before charge was completed by the
  Advocate of the accused persons. This cross-examination ran
  into 115 pages. Since the matter could not be finished up to
B the date fixed by the Bombay High Court, it was extended up
  to 30.06.2006 for completion of trial. The time was further
  extended till December, 2006 and further up to 31.05.2007. In
  the meantime, the second witness was cross-examined which
  cross-examination consisted of 148 pages. Likewise, third
c witness of the prosecution was also examined on 11.05.2007.
  The Trial Court discharged Shri Pramod Banka and Smt. Rani
  V. Agrawal and framed charges against the third respondent
  herein. The time was again extended by the High Court till
  31.12.2007. This was challenged by way of the revision by the
0 appellant, which was allowed. The third respondent also filed
  a revision which was dismissed by the High Court and the High
  Court directed the Trial Court to frame charge against
  respondent No. 2 to 4 also under the provisions of Sections
  403, 409 read with Section 34, IPC. Ultimately, the charges
E came to be framed against respondent Nos. 2 to 4 on
  28.11.2007.

       4. At this stage, on 15.12.2007, the appellant herein filed
  an application under Section 319 Cr.P.C. requesting to array
  respondent' No.5 herein as a co-accused in the said
F proceedings. On 31.12.2007, this application was allowed and
  the summons was issued to the 5th respondent, Creative
  Garments Ltd. a company incorporated under the Companies
  Act through its Managing Director.

G        5. On 03.01.2008, the 5th respondent preferred an
    application to the Trial Court to commence the proceedings qua
    the 5th respondent from the stage of inquiry i.e. from the stage
    of Section 244, Cr.P.C. and to allow the cross-examination of
    the witnesses of the prosecution at the stage of evidence before
    charge. On 22.02.2008, this application came to be allowed.
H
       HARINARAYAN G. BAJAJ v. STATE OF                     177
    MAHARASHTRA & ORS. [V.S. SIRPURKAR, J.]

However, the Trial Court split the trial of respondent No.5 and    A
the other respondent Nos. 2 to 4. Respondent Nos. 2 to 4
challenged the order dated 22.02.2008 splitting the trial. That
order was quashed by the High Court by an order dated
31.03.2008. Further, an application came to be made by
respondents on 15.04.2008 seeking the clarification of the High    B
Court's order which clarification was given by the High Court
on 23.04.2008 holding that the order was restricted only to the
aspect of splitting of trial and not to any other matter.

     6. The appellant also filed a criminal application on         C
30.04.2008 seeking the quashing of the order dated
22.02.2008 by which the Trial Court had ordered the de novo
proceedings as against respondent No.5 from the stage of
inquiry. Further, a direction was sought to straightaway frame
charge against respondent No.5 for the same offence with
which respondent Nos. 2 to 4 were charged. The High Court,         D
however, rejected this application by the complainant (appellant
herein) and held that there could be no dispute that the Court
must commence de novo proceedings against respondent No.
5 and it further observed that mere delay which might be caused
to the complaint would be of no consequence.                       E

     7. Shri Naphade, learned Senior Counsel appearing on
behalf of the complainant-appellant urges that the High Court
has erred in confirming the order of the Trial Court permitting
the de novo proceedings against respondent No.5 in the sense       F
that it allowed the further cross-examination of the witnesses
who were already examined before framing the charge.
Contention by learned Senior Counsel is that there would be
no question of such a permission of the cross-examination of
the witnesses who were examined before framing of the charge       G
since firstly, the charge against the other accused persons has
already been framed and secondly, there is no such right of
cross-examination under Section 244, 245 and 246, Cr.P.C.
The Counsel argues that the term 'evidence' as mentioned in
Section 244, Cr.P.C. does not necessarily include the cross-       H
    178      SUPREME COURT REPORTS                  [2010) 1 S.C.R.


A examination of the witnesses who were examined at that stage.
  The further contention of the counsel is that Section 319 (4),
  Cr.P.C. does not require a de novo inquiry as has been
  ordered by the Trial Court and affirmed by the High Court.
  Reliance was placed on Rakesh v. State of Haryana [2001 (6)
B SCC 248), Ram Gopal & Anr. V. State of U.P. [1999 Crl. L.J.
  1865) and Michael Machado v. Central Bureau of
  Investigation [2000 (3) SCC 262).

        8. As against this, Shri Ponda, learned Counsel appearing
C on behalf of the respondent accused urged that the analysis of
  Section 319 Cr.P.C. itself would show that there has to be de
  novo inquiry in the sense that the newly joined accused in such
  a trial must be given a right to cross-examine the witnesses
  who were examined prior to the framing of charge. He pointed
  out that if the interpretation as canvassed by the appellant is
D given, then there is a likelihood of the complainant taking
  advantage of his own wrong and such an interpretation would
  give rise to a mischief.

       9. Learned counsel pointed out that the rulings pointed out
E by the appellant were not applicable to the controversy. Learned
  Counsel also urged that the use of the word 'evidence' in
  Sections 244, 245, 246, Cr.P.C. supports that the accused
  under those Sections have the right of cross-examination and,
  more particularly, if such a right is not spelt out from the
F language, then it would only mean that the accused in the
  warrant trial based on the complaint case would have to
  helplessly watch the charge being framed. This is all the more
  true, according to learned Counsel, in a case where accused
  has been joined under Section 319, Cr.P.C. On these rival
G contentions, it is to be seen whether the Trial Court and the High
  Court were right in ordering a de novo inquiry. ·

        10. The relevant part of Section 319, Cr.P.C. is as under
    319 (1):

H         "(1) Where, in the course of any inquiry into, or trial of,
       HARINARAYAN G. BAJAJ v. STATE OF                     179
    MAHARASHTRA & ORS. [V.S. SIRPURKAR, J.]
            an offence, it appears from the evidence that any      A
            person not being the accused has committed any
            offence for which such person could be tried
            together with the accused, the Court may proceed
            against such person for the offence which he
            appears to have committed.                             B

             (2) . xxx xxx

             (3)   xxx xxx
      (4)   Where the Court proceeds against such person           c
            under sub-Section (1), then-

             (a)   the proceedings in respect of such person
                   shall be commenced afresh, and witnesses
                   re-heard.
                                                                   D
             (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
                   an inquiry or trial was commenced."             E

      11. Even a glance at this Section suggests that there is
no escape from commencing the proceedings afresh and also
that the witnesses have to be re-heard. Clause (a) is the basic
provision and the use of the words 'proceedings' and the term
                                                                   F
'commence afresh' has its own significance. If we accept the
contention of Shri Naphade that the newly joined accused has
no right of cross-examination, it would mean that on being
joined under Section 319 (1), Cr.P.C., the only step that would
be required would be framing of charge against him. In that,       G
there would be a complete denial to such accused of an
important right of cross-examination of the witnesses before the
framing of the charge. It would only then mean that such
accused would remain a mute spectator till the framing of the
charge.
                                                                   H
    180     SUPREME COURT REPORTS                   [2010] 1 S.C.R.


A         12.- We would also give a meaningful interpretation to the
    word 'proceedings' which has been deliberately used by the
    Legislature. The Legislature does not use the word 'triaf which
    essentially begins after framing of the charge. If the Legislature
    had intended that the newly joined accused should not get the
B   right of cross-examining the witnesses examined before
    framing of the charge, it might have used the word 'triaf. The
    deliberate use of the word 'proceedings' would then include not
    only the trial but also the inquiry which commences with Section
    244, Cr.P.C. and ends with the framing of the charge under
C   Section 246, Cr.P.C. The terminology 'commence afresh' has
    also its own force. It indicates that the whole inquiry which
    commences from Section 244 Cr.P.C. must begin afresh. The
    interpretation that we give to the words 'proceedings' is
    buttressed by the language of 319 (b}, Cr.P.C. The plain
    language takes back the whole proceedings to the stage of
0
    taking cognizance. If we accept the contention of the appellant
    herein, then sub-clause (b) would be rendered otiose. We have,
    therefore, no doubt that the language of Section 319, Cr.P.C.
    itself pushes the proceedings back to the stage of inquiry, once
    the order under Section 319 (1) Cr. P.C. is passed by the Court
E   and a new accused is joined therein.

        13. There is one more angle and that is the angle of
  mischief. If the interpretation given by the appellant is to be
  accepted then a complainant, wherein it is a case of multiple
F accused, may mischievously join only few of them and after
  getting the charge framed, make an application under Section
  319, Cr.P.C. to join some other accused persons who would
  then have no right of cross-examination of the witnesses and
  who would be required to be the mute spectators to the charge
G being framed against which they could have successfully
  resisted by cross-examining the witnesses.

        14. There is one more aspect that before summoning the
    accused under Section 319 (1), Cr.P.C. there is no requirement
    of allowing such accused person to cross-examine the
H
       HARINARAYAN G. BAJAJ v. STATE OF                       181
    MAHARASHTRA & ORS. [V.S. SIRPURKAR, J.]
witnesses. That stage comes only after an accused is A
summoned under sub-Section (1 ). Therefore, it would be a case
where the newly added accused who has not had the
advantage of hearing the evidence would be put to prejudice
because firstly, he has not heard the evidence and secondly,·
he cannot even cross-examine those witnesses in the warrant B
trial based on a private complaint.

      15. This brings us to the question argued by Shri Naphade
on the basic right of cross-examination to the accused in the
proceedings under Section 244, Cr.P.C. In fact, in view of our        G
interpretation of Section 319(4), it is really not necessary to go
into that question. However, since the Learned Senior Counsel
argues that there is no right at all to give opportunity of cross-
examination to any accused whether brought before the Court
initially or by way of Section 319(1), we proceed to consider
the question.                                                         D

       16. This Court has already held that right to cross-examine
the witnesses who are examine~ before framing of the charge
 is a very precious right because it is only by cross-examination
that the accused can show to the Court that there is no need          E
of a trial against him. It is to be seen that before framing of the
charge under Section 246, the Magistrate has to form an
opinion about there being ground for presuming that the
accused had committed offence triable under the Chapter. If it
is held that there is no right of cross-examination under Section     F
244, then the accused would have no opportunity to show to
the Magistrate that the allegations are groundless and that there
is no scope for framing a charge against him. In Ajoy Kumar
Ghose v. State of Jharkhand [Criminal Appeal No. 485 of
2009], one of us 0/.S. Sirpurkar, J.) held that there is a right to   G
the accused to cross-examine the witnesses examined before
framing the charge and that the said right is extremely
important. It is observed in para 25:

     "the right of cross-examination is a very salutary right and
     the accused would have to be given an opportunity to             H
    182       SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A         c:ross-examine the witnesses who have been offered at the
          ~;tage of Section 244 (1) Cr.P.C."

       '17. Therefore, the situation is clear that under Section 244,
  Cr. P.C. the accused has a right to cross-examine the
  witnesses and in the matter of Section 319, Cr. P.C. when a
8
  new accused is summoned, he would have similar right to
  cross-examine the witness examined during the inquiry afresh.
  Again, the witnesses would have to be re-heard and then there
  would be such a right. Merely presenting such witnesses for
C cross-examination would be of no consequence. ~his Court has
  already held so in Shashi Kant Singh v. Tarkeshwar Singh &
  Anr. [2002 (5) sec 738].

         18. Though a feeble attempt was made to argue that in
  that ruling the Supreme Court had expressed, 'in short there
D has to be a de novo trial against him. The provision of de novo
  trial is mandatory' and therefore, it is only a 'triaf whic~: has to
  be ordered and not the 'proceedings'. The argument is
  absolutely incorrect because in Sh'ashi Kant Singh'case (cited
  supra), the Court was dealing with a warrant trial case, not
E based on a private complaint and, therefore, the Supreme Court
  used the words de novo trial. The High court has correctly
  appretciated this provision.

      19. This takes us to the rulings cited which we must
F consider. In Rakesh v. State of Haryana this Court framed the
  question in paragraph 3 in the following words:

          "Whether the statement of a prosecution witness without
          the said witness having been cross-examined constitutes
          "evidence" within the meaning of Section 319, Cr.P.C."
G
          It is in that behalf that the Court expressed:-

          ".... the contention that the term 'evidence' as used in
          Section 319 Criminal Procedure Code would mean
          evidence which is tested by cross examination cannot be
H         accepted"
       HARINARAYAN G. BAJAJ v. STATE OF                        183
    MAHARASHTRA & ORS. [V.S. SIRPURKAR, J.]
     The Court, however, immediately expressed that the               A
question of discharging the evidence by cross-examination
would arise only after the addition of the accused and that there
was no question of cross-examining the witnesses prior to
adding such person as accused. It was further said that the
Section does not contemplate an additional stage of first             B
summoning the person and giving him the opportunity to cross-
examine ttie witness who has deposed against him and thereby
testing whether such person to be added as accused or not.
Once the Sessions Court records the statement of the
witnesses, it would be part of the evidence. Therefore, it was        c
in different factual situation that this Court had made those
observations. We do not think that such observations can be
taken advantage of. This is apart from the fact that the Court
has specifically held that the interpretation of the evidence was
only for the purpose of Section 319, Cr.P.C.
                                                                      D
      20. To the similar effect was the ruling relied upon by the
 appellant in Ram Gopa/ & Anr. v. State [1999 CrLJ 1865]. In
fact Ram Gopal's case is also restricted to the interpretation
 of the word 'evidence' as is used under Section 319, Cr.P.C.
Though there are some other observations in respect of                E
 Section 244, Cr. P.C., we do not think that the observations in
paragraph 29 are correct. In fact the observations in paragraph
35 therein clarified the ratio of that decision. In that view, that
judgment will be of no help.
                                                                      F
     21. Our attention was also invited to R.S. Nayak v. A.R.
Antulay [1986 (2) SCC 716] paragraphs 45 and 46. We do
not think that there is any need on our part to comment on this
case, more particularly, to assess the scope of Sections 244
and 245, Cr. P.C. because if Section 319 (4) Cr.P.C. is               G
interpreted in the manner that we have interpreted it, there would
not necessity of going into the scope of Section 244, Cr.P.C.
as because of that interpretation all the proceedings would be
relegated back and start afresh whereby there would be clear
scope and right for the newly added accused to hear the               H
   184      SUPREME COURT REPORTS                 [2010] 1 S.C.R.

A evidence of witnesses examined before framing of charge and
  to cross-examine them.

       22. A reference was also made to Michael Machado v.
  Central Bureau of Investigation [2000 (3) SCC 262]. However,
  in our opinion Michael Machado's case is not an authority on
8
  the true scope of Section 319 (4) Cr.P.C.

       23. Shri Naphade also tried to suggest by taking us to the
  old Section 252, Cr.P.C. to suggest that there is no right of
  cross-examination. As we have already clarified, once we
C interpret the provisions of Section 319 (4), Cr.P.C. to mean that
  the proceedings have to go back and have to be commenced
  afresh and the witnesses have also to be re-heard, then the
  right of cross-examination would be innate and under the
  circumstances there would be no necessity of specifically
D commenting upon the scope of Section 244, Cr.P.C.

       24. In view of what we have held, we find that the High
  Court's judgment confirming the Trial Court's judgment is
  correct and we see no reason to interfere with the same. The
E appeal has no merits and is, therefore, dismissed.

   K.K.T.                                      Appeal dismissed.