JOGENDRA YADAV & ORS.versusSTATE OF BIHAR &ANR.

                     [2015) 9 S.C.R. 69


               JOGENDRAYADAV & ORS.                           A
                             v.
                 STATE OF BIHAR &ANR.
             (Criminal Appeal No. 343 of2012)
                                                              B
                      JULY 15, 2015
         [S.A. BOBDE AND R.K. AGRAWAL, JJ.]
     Code of Criminal Procedure, 1973:

    ss. 319, 227 - Nature and power under- Discussed.
                                                              c
      ss. 319, 227 - Discharge uls.227 in case of person
added as accused u/s.319-Permissibility- Held: A person
who is added as accused uls. 319 is not entitled to the remedy
of discharge uls. 227 since it would be contrary to the scheme D
and intent of Code - The exercise of the power uls. 319 must
be placed on a higher pedestal - The accused summoned
u/s.319 are entitled to invoke remedy under law against
an illegal or improper exercise of the power uls.319, but
cannot have the effect of the order undone by seeking a E
discharge uls.227 of the Code.

    s. 319-Accused since inception and accused added ul
s.319- Distinction between.
                                                              F
    Dismissing the appeal, the Court

     HELD: 1. A perusal of Section 319, Cr.P.C. shows
that a person who is not an accused may be added as
an accused only when it appears from the evidence G
that he has committed any offence for which he could
be tried together with the accused. The Section says
that in such an eventuality, the Court "may proceed
against such person" for the offence which he appears
to have committed. Section 227 of the Cr.P.C. on the H
             .            69
70        SUPREME COURT REPORTS               [2015] 9 ~.C.R.


A other hand, provides that an accused may be
  discharged if the Judge construes that there is no
  sufficient ground for the proceedings against him. Both
  these provisions, in essence, therefore, have the .
  opposite effect. The power under Section 319 of the
B Cr.P.C. results in the summoning and consequent
  commencement of the proceedings against a person·
  who was hitherto not an accused and the power under
  Section 227 of the Cr.P.C., results in termination of
  proceedings against the person who is an accused.
C [Paras 6, 7 and 8] [74-H; 75-A, C, D-E]

          2. There is material difference between an accused
     since inception and accused who has been added as
     such under Section 319 of the Cr.P.C.An accused since
D    inception is not necessarily heard before he is added
     as an accused. However, a person who is added as an
     accused under Section 319 of the Cr.P.C., is necessarily
     heard before being so added. Often he gets a further
     hearing if he challenges the summoning order before
E    the High Court. It seems incongruous and indeed
     anomalous if the two sections are construed to mean
     that a person who is added as an accused by the court
     after considering the evidence against him can avail
F    remedy of discharge on the ground that there is no
     sufficient material against him.         Moreover, the
     extraordinary power under Section 319, Cr.P.C., can be
     exercised only if very strong and cogent evidence
     occurs against a person from the evidence led before
·G   the Court. [Para 9] [75-G-H; 76-A-C]

       3. A person is added as an accused under Section
  319 of the Cr.P.C., on the basis of evidence; whereas
  an accused is discharged under Section 227 of the
H Cr.P.C., on a sifting of material collected i.e. "the record
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR.                 71


of the case and the document submitted herewith" in A
order to find out whether or not there is sufficient ground
for proceeding against the accused. In fact, the mandate
of Section 228, Cr.P.C., is that the Judge only need be of
"opinion that there is ground for presuming that the
accused has committed an offence ..... " before framing B
a charge. An order for addition of an accused made
after considering the evidence cannot be undone by
coming to the conclusion that there is no sufficient
ground for proceeding against the accused without
appreciation of evidence. [Para 11] [77-F; 78-A-B]          C

  Hardeep Singh v. State of Punjab and Ors. (2014) 3
  SCC 92: 2014 (2) SCR 1; Ajay Kumar Parmar v. State
  ofRajasthan (2012) 12 sec 406: 2012 (8) SCR
  970; New India Assurance Co. Ltd. v. Nus/i Neville          D
  Wadia and Anr. (2008) 3 sec 279: 2007 (13) SCR
  598 - relied on.
               Case Law Reference
2014 (2) SCR 1           relied on.              Para 9       E
2012 (8) SCR 970         relied on.              Para 11
2007 (13) SCR 598        relied on.              Para 12
    CRIMINAL APPELLATE JURISDICTION·: Criminal
Appeal No. 343 of2012                                         F

    From the Judgment and Order dated 24.11.2010 of the
High Court of Judicature at Patna in Cr. Misc. No. 12193 of
2008
                                                              G
    Sishir Pinaki, Shailendra Kumar, Suryodaya Prakash
Tiwari, Amit Pawan for the Appellants.

    Gopal Singh, Prerna Singh, Shekhar Prit Jha, Dr.. Richa
Awasthi Dubey for the Respondents.
                                                              H
72        SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A        The Judgment of the Court was delivered by

         S. A. BOBDE, J. 1. This is an appeal by four persons
  who have been added as accused under Section 319 of the
  Code of Criminal Procedure. 1973 (for short 'the Cr.P.C.') in
B Sessions Trial No.446/2002 for an offence under Section 302
  read with Sections 149 and 323 of the Indian Penal Code,
   1860 (for short 'the IPC') and Section 27 oftheArmsAct, 1959.
  The trial is being held in respect of the murder of one Saryug
  Yadav. On 04.06.2000, FIR was lodged by an informant under
C Sections 149, 302 and 323 of the IPC against 8 accused. A
  charge-sheet was submitted on 23.04.2001 only against four
  persons. Later on, a supplementary charge-sheet was
  submitted on 31.01.2003 by which one BhankharYadavwas
  included. A final form was submitted excluding the four
D appellants herein viz. Jogendra Yadav. Kailash Yadav, Kusum
  Pahalwan, Brijendra Yadav from the array of parties. On
  18.02.2003, the Magistrate accepted the charge-sheet and
  the final form while taking cognizance of the offence. The case
  was committed to the Court of Sessions.
E
         2. In the course of the trial, the evidence of the widow and
  two sons of the deceased were recorded. On the basis of the
  evidence the Additional Sessions Judge on 05.02.2005 under
  Section 31-9 of the Cr.P.C. issued notice to the appellants
F asking them to show cause as to why they should not be added
  as accused. After giving an opportunity to the appellants to
  file a reply, the learned Additional Sessions Judge summoned
  the appellants as accused for being added to the proceedings.
  It is nobody's case that they were not heard before such
G summon. In any case after the appellants were added, they
  preferred an application under Section 482 of the Cr.P.C.
  before the High Court, which was pending for a long time. They
  finally withdrew this application since they had got relief by
H way of discharge under Section 227 of the Cr.P.C. The
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR.                      73
              [S. A. BOBDE, J.]

respondent State preferred a Criminal Revision Application A
before the High Court. The High Court set aside the Order
dated 23.09.2006 in Criminal Revision Application passed by
the Additional Sessions Judge by which the appellants were
discharged. While setting aside the order, the High Court
made several observations on the merits of the case as well B
as on the material that was taken into account before
discharging the appellants - accused. The High Court also
observed that the order by which the appellants were added
under Section 319 of the Cr.P.C. was not challenged and was
allowed to become final. This may not actually be accurate C
since, as noted above, the appellants had in fact challenged
the order but had withdrawn the application under Section 482
of the Cr.P.C.

     3. The High Court also observed that the order of discharge   D
virtually nullifies the order under Section 319 of the Cr.P.C.
made earlier by which the accused were added. It is this last
observation which has been put in issue before us.

     4. Mr. Sishir Pinaki, learned counsel for the appellants      E
submitted that Section 227 of the Cc.P.C. can be availed of by
an accused, even if he is added as an accused under Section
319 of the Cr. P. C. since the effect of adding such a person is
that he becomes newly added accused who is entitled to avail
of all the remedies available to him under the Cr.P.C., in         F
particular, the remedy of discharge. It is, therefore, necessary
to construe Section 227 and Section 319 of the Cr.P.C.

     5. Provisions of Sections 227 and 319 of the Cr.P.C. are
read as under:                                                     G

  "227. Discharge.- If, upon consideration of the record of
  the case and the documents submitted therewith, and
  after hearing the submissions of the accused and the
  prosecution in this behalf, the Judge considers that there       H
74          SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A       is not sufficient ground for proceeding against the
        accused, he shall discharge the accused and record his
        reasons for so doing.

        319. Power to proceed against other persons
B       appearing to be guilty of offence.-

        ill Where, in the course of any inquiry into, or trial of, an
        offeace, it appears from the evidence that any person
        not being the accused has committed any offence for
c       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.

        ill Where such person is not attending the Court, he may
        be arrested or summoned, as the circumstances of the
D
        case may require, forthe purpose aforesaid .

        .Ql Any person attending the Court although not under
        arrest or upon a summons, may be detained by such
        Court for the purpose of the inquiry into, or trial of, the
E       offence which he appears to have committed .

        .(12 Where the Court proceeds against any person under
        sub-section (1), then-

F       .{fil the proceedings in respect of such person shall be
        commenced a fresh, and the witnesses re- heard;

        ill subject to the provisions of clause (a), the case may
        proceed as if such person had been an accused person
G       when the Court took cognizance of the offence upon which
        the inquiry or trial was commenced."

          6. On a perusal of Section 319 of the Cr.P.C., it is apparent
     that a person who is not an accused may be added as an
H    accused only when it appears from the evidence that he has
     committed any offence forwhich he could be tried together
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR.                      75
              [S. A. BOBDE, J.]

with the accused. The Section says that in.such an eventw=ility,   A
the Court "may proceed against such person" for the offence
which he appears to have committed. In other words, a person
who is not an accused becomes liable to be added where he
appears to have committed an offence. Thereupon, the effect
is that the Court may proceed against such a person.               B

      7. Secti.on 227 of the Cr.P.C. on the other hand, provides
that an accused may be discharged if the Judge construes
that there is no sufficient ground for the proceedings against
him. In other words, ifthe Judge is of the view that there are no C
sufficient grounds for the proceedings against the accused,
he may be discharged, whereupon the proceedings against
him are dropped.

     8. It is apparent that both these provisions, in essence,     o
have the opposite effect. The power under Section 319 of the
Cr.P.C. results in the summoning and consequent
commencement of the proceedings against a person who was
hitherto not an accused and the power under Section 227 of
the Cr.P.C., results in termination of proceedings against the     E
person who is an accused.

      9. It was, however, urged by learned counsel for the
appellants that in order to avail of the remedies of discharge
under Section 227 of the Cr.P.C., the only qualification F
necessary is that the person should be accused. Learned
counsel submitted that there is no difference between an
accused since inception and accused who has been added
as such under Section 319 of the Cr.P.C. It is, however, not
possible to accept this submission since there is a material G
difference between the two. An accused since inception is
not necessarily heard before he is added as an accused.
However, a person who is added as an accused under Section
319 of the Cr.P.C., is necessarily heard before being so added.
Often he gets a further hearing if he challenges the summoning H
    76        SUPREME COURT REPORTS                   [2015] 9 S.C.R.


    A order before the High Court and further. It seems incongruous
      and indeed anomalous if the two sections are construed to
      mean that a person who is added as an accused by the court
      after considering the evidence against him can avail remedy
      of discharge on the ground that there is no sufficient material
    B against him. Moreover, it is settled that the extraordinary power
      under Section 319 of the Cr.P.C., can be exercised only if very
      strong and cogent evidence occurs against a person from the
      evidence led before the Court. It is now settled vide the
      Constitution Bench decision in Hardeep Singh v. State of
    C Punjab ancJ. Others [(2014) 3 SCC 92] that the standard of
      proof employed for summoning a person as an accused under
      Section 319 of the Cr.PC., is higherthan the standard of proof
      employed for framing a charge against an accused. The Court
      observed for the purpose of Section 319 of the Cr.P.C., that
    0
      "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 the conviction of a
      person sought to be added as the accused in the case." As
    E regards the degree of satisfaction necessary for framing a
      charge this Court observed in para 100:-

          "100. 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 of the Cr.P.C., has
    F
          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 the commission
          of an offence by the accused. The court has to see as to
    G     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
    H     materials offered by the prosecution to be adduced as
 JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR.                      77
               [S. A. BOBDE, J.]

  evidence are sufficient for the court to proceed against          A
  the accused further".

  The Court concluded in para 106 as follows:-

   "106. Thus, we hold that though only a pnina facie case
                                                                    B
   is to be established from the evidence led before the
   court, not necessarily tested on the anvil of cross-
   examination, it requires much stronger evidence than
   mere probability of his complicity. The test that has to
   be applied is one which is more than prima facie case            c
   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 ... ..... "

     10. Thus it does not stand to reason that a person who is
                                                                    0
summoned as an accused to stand trial and added as such to
the proceedings on the basis of a stricter standard of proof
can be allowed to be discharged from the proceedings on the
basis of a lesser standard of proof such as a prima facie
connection with the offence necessary for charging the              E
accused.

     11. This view is further fortified by the fact that a person
is added as an accused under Section 319 of the Cr. P. C., on
the basis of evidence; whereas an accused is discharged F
under Section 227 of the Cr.P.C., on a sifting of material
collected i.e. "the record of the case and the document
submitted herewith" in order to find out whether or not there is
sufficient ground for proceeding against the accused. In fact it
may be noted that the mandate of Section 228, Cr.P.C., is that G
the Judge only need t5e of "opinion that there is ground for
presuming that the accused has committed an offence ..... "
before framing a charge. In fact this Court has held in Ajay
Kumar Parmar v. State of Rajas than reported in (2012) 12
SCC 406 that appreciation of evidence at the stage of Section H
78         SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A    227 of the Cr.P.C., is not permissible (vide para 17). It is,
     therefore, clear that an order for addition of an accused made
     after considering the evidence cannot be undone by coming
     to the conclusion that there is no sufficient ground for
     proceeding against the accused without appreciation of
B    evidence.

           12. We are not unmindful of the fact that the interpretation
     placed by us on the scheme of Sections 319 and 227 makes
     Section 227 unavailable to an accused who has been added
C    under Section 319 of the Cr. P. C. We are of the view, for the
     reasons given above that this must necessarily be so since a
     view to the contrary would renderthe exercise undertaken by
     a Court under Section 319 of the Cr.P.C., for summoning an
     accused, on the basis of a higher standard of proof totally
D    infructuous and futile if the same court were to subsequently
     discharge the same accused by exercise of the power under
     Section 227 of the Cr.P.C., on the basis of a mere prima facie
     view. The exercise of the power under Section 319 of the
     Cr.P.C., must be placed on a higher pedestal. Needless to
E    say the accused summoned under Section 319 of the Cr.PC.,
     are entitled to invoke remedy under law against an illegal or
     improper exercise of the power under Section 319, but cannot
     have the effect of the order undone by seeking a discharge
F    under Section 227 of the Cr.P.C. If allowed to, such an action
     of discharge would not be in accordance with the purpose of
     the Cr. P. C in enacting Section 319 which empowers the Court
     to summon a person for being tried along with the other
     accused where it appears from the evidence that he has
G    committed an offence. It would be apposite to refer to the
     principle of purposive construction of a statute invoked by this
     Court in New India Assurance Co. Ltd. v. Nus/i Neville
     Wadia and Anr. (2008) 3 SCC 279, which is as under:

       "51 ........ With a view to readthe provisions of the Act in
H
       a proper and effective manner, we are of the opinion
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR.                      79
              [S. A. BOBDE, J.]

   that literal interpretation, if given, rnay give rise to an     A
   anomaly or absurdity which must be avoided. So as to
   enable a superior court to interpret a statute in a
   reasonable manner, the court must place itself in the
   chair of a reasonable legislator/author. So done, the
   rules of purposive construction have to be resorted to          B
   which would require the construction of the Act in such
  .a manner so as to see that the object of the Act is
   fulfilled, which in turn would lead the beneficiary under
   the statutory scheme to fulfil its constitutional obligations
   as held by the Court inter a/ia in Ashoka Marketing Ltd.        c
  52. Barak in his exhaustive work on "Purposive
  Construction" explains various meanings attributed to
  the term ''purpose". It would be in the fitness of discussion
  to refer to Purposive Construction in Bara k's words:            D

  "Hart and Sachs also appear to treat 'purpose' as a
  subjective concept. I say 'appear' because, although
  Hart and Sachs claim that the interpreter should imagine
  himself or herself in the legislator's shoes, they               E
  introduce two elements of objectivity: First, the
  interpreter should assume that the legislature is
  composed of reasonable people seeking ·to achieve
  reasonable goals in a reasonable manner; and second,
  the interpreter should accept the non-rebuttable                 F
  presumption that members of the legislative body
  sought to fulfil their constitutional duties in good faith.
  This formulation allows the interpreter to inquire not into
  the subjective intent of the author, but rather the intent
  the author would .have had, had he or she acted                  G
  reasonably."

       13. Ms. Prerna Singh, learned counsel for the State also
submitted that a person who is an accused under Section 319
ought not to be given an opportunity to avail of the remedy of H
80          SUPREME COURT REPORTS                   [2015] 9 S.C.R.

A    discharge under Section 227 since it would be contrary to the
     scheme and intent of the Cr.P.C.

          14. We have no difficulty in accepting this submission for
     the reasons stated above. We are also satisfied that it would
s    not result in any undue hardships to the accused since the
     remedy before a superior court is available.

           15. In the result, we see no merit in the appeal which is
     liable to be dismissed.
c          16. The criminal appeal is dismissed in view of the above.

     Devika Gujral                                   Appeal dismissed.