Holding

Section 319(4) mandates a de novo trial for a person summoned under Section 319, and the phrase ‘could be tried together with the accused’ in Section 319(1) is directory, so the summons remains effective even after the original trial concludes.

Summary

Shashikant Singh was convicted of murdering his brother, and during the trial the court, under Section 319 of the CrPC, summoned another person (respondent No. I) who appeared to have committed the same offence. The trial of the original accused, Chandra Shekhar Singh, concluded before the summoned person could be tried. The High Court held that the order under Section 319 was void for lack of jurisdiction because the original trial had ended. On appeal, the Supreme Court examined the meaning of the phrase ‘could be tried together with the accused’ in Section 319(1) and held that it is directory, while Section 319(4) imposes a mandatory requirement of a fresh, de novo trial for the newly added person. Consequently, the order to summon the respondent remained valid despite the earlier trial’s conclusion. The appeal was allowed, the High Court’s order set aside, and the matter remanded for further consideration; the application for impleadment was dismissed.

Issues considered

Whether a person summoned under Section 319(1) of the CrPC can be tried after the trial of the original accused has concluded.
Whether the words ‘could be tried together with the accused’ in Section 319(1) are mandatory or directory.
Whether Section 319(4) imposes a mandatory fresh trial for the newly added person.

Legislation cited

Code of Criminal Procedure, 1973s. 190, s. 193, s. 209, s. 319(1), s. 319(4)

Subjects

Section 319 CrPCde novo trialnewly added accusedstatutory interpretationcriminal proceduredirectory provisionmandatory provision

Judgment

A SHASHIKANT SINGH
v.
TARKESHWAR SINGH AND ORS.

APRIL 24, 2002

B• [UMESH C. BANERJEE ANO Y.K. SABHARWAL, JJ.]

Code of Criminal Procedure, 1973-Section 319-Power to proceed
against persons other than the accused who appear to be guilty of offence-
C Conclusion of trial in respect of accused before the Court-Summoning of
newly added person for. trial pursuant to order passed by court-Effect of-
Held, such person can be tried for the offence for which he is summoned after
the conclusion of the trial since fresh trial in respect of newly added person
is mandatory whereas the mandate that 'newly added accused could be tried
together with the accused is directory.
D
Interpretation of Statutes~Provision capable of two possible
constructions-Scope of-Court to adopt a reasonable and common sense
approach rather than construction which would lead to absurd results.

Words and Phrases :
E
'Could be tried together with the accused'-Interpretation of-In the
context of Section 319 of the Code of Criminal Procedure, 1973.

The questiof! \~hich arose for consideration is, can a person summoned
pursuant to an o~l passed by a court in exercise of power conferred by
F Section 319 of the Code of Criminal Procedure, 1973 be tried for the offence
for which he is summoned after the conclusion of the trial wherein such an
order of summoning was passed.

Allowing the appeal, the Court

G HELD: 1.1. The effect of the conclusion of the trial against the accused
who was being proceeded with when the order was passed under Section
319(1) for proceeding against the newly added person, is to be examined in
the light of Section 319(4) which stipulates a de novo trial in respect of the
newly added persons and certain well settled principles of interpretation.
(405-A, B]
H
SHASHIKANT SINGH v. TARKESHW AR SINGH 401
1.2. The intention of the provision is that where in the course of any A
enquiry into, or trial of, an offence, it appears to the court from the evidence
that any person not being the accused has committed any offence, the Court
may proceed against him for the offence which he appears to have committed.
At that stage, the court would consider that such a person could be tried
together with the accused who is already before the Court facing the trial. B
The safeguard provided in respect of such person is that, the proceedings right
from the beginning have mandatorily to be commenced afresh and the
.. witnesses re-heard. There has to be a de novo trial against him which is
mandatory provision. It vitally affects the rights of a person so br011ght before
the Court. It would not be sufficient to only tender the witnesses for the cross-
examination of such a person. They have to be examined afresh. Fresh C
examination-in-chief and not only their presentation for the purpose of the
cross-examination of the newly added accused is the mandate of Section
319(4). The words 'could be tried together with the accused' in Section 319(1),
appear to be only directory, 'Could be' cannot under these circumstances be
held to be 'must be'. The provision cannot be interpreted to mean that since
the trial in respect of a person who was before the Court has concluded with D
the result that the newly added person cannot be' tried together with the
accused who was before the Court when order under Section 319(1) was
passed, the order would become ineffective and inoperative, nullifying the
opinion earlier formed by the Court on the basis of evidence before it that
the newly added person appear to have committed the offence resulting in E
an order for his being brought before this Court [405-E, F, G, H; 406-A]

1.3. The mandate of the law of fresh trial is mandatory whereas the
mandate ihat newly added accused could be tried together with the accused
is directory. [406-C]
F
1.4. On facts, the court could not have intended while concluding the
trial against the accused to nullify its earlier order directing issue or warrants
against other accused. The construction to be placed on such a provision has
to commend to justice and reason. The words 'could be tried together with
the accused' in Section 319(1) cannot be said to be capable of only one
construction. If it was so, approach to be adopted would be different since G
the intention of the Parliament is to be respected despite the consequences of
interpretation. There is, however, a scope for two possible constructions. That
being the position, a reasonable and common sense approach deserves to be
adopted and preferred rather than a construction that would lead to absurd
results of other accused escaping the trial despite passing of an order against H
402 SUPREME COURT REPORTS (2002) 3 S.C.R.

A him on Court's satisfaction under Section 319(1) and despite the fact that the
proceedings against him have to commence afresh. Thus the fact that trial
against the accused has already concluded is of no consequence in so far as
other accused is concerned. (406-D, E, F]

Municipal Corporation ofDelhi v. Ram Kishan Rohtagi and Ors., [1983] I
B SCC I and Michael Machado and Anr. v. Central Bureau of Investigation and
Anr., (2000] 3 SCC 262, distinguished.

Kishun Singh and Ors. v. State of Bihar, (1993) 2 SCC 16, referred to.

Craies on Statute Law, 7th Edn., referred to.
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
547 of 2000.

From the Judgment and Order dated 24.7.2001 of the Patna High Court
in Crl. R. No. 269 of 2001.
D
P.S. Mishra, S. Chandra Shekhar, Vishnu Sharma, Upendra Mishra and
Tathagat Harsh Vardhan for the Appellants.

S.B. Sanyal, Neeraj Shekhar, Ambhoj Kumar Sinha and Kumar Rajesh
Singh for B.B. Singh, for the Respondents.
E
The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. Leave granted.

Can a person summoned pursuant to an order passed by a court in
F exercise of power conferred by Section 319 of the Code of Criminal Procedure,
1973 (the Code) be tried for the offence for which he is summoned after the
conclusion of the trial wherein such an order of summoning was passed, is
the question that falls for determination in this appeal. Such a question
regarding the interpretation of Section 319 of the Code has arisen for the first
time. The answer would depend upon the interpretation of the words 'could
G be tried together with the accused' in Section 319 of tlie Code. The question
has come up for consideration under the following circumstances:

• On the statement of Shashikant Singh, a case under Section 302/34 IPC
and under Section 27 of the Arms Act for murder of his brother Shivakant '
H Singh was registered aga,mst:fi".e,~~~~ri~- i~clud~ng_ respondent No. l and also
SHASHIKANT SINGH v. TARKESHWAR SINGH [Y.K. SABHARWAL, J.] 403

one Chandra Shekhar Singh. On completion of investigation, police submitted A
charge-sheet against Chandra Shekhar Singh showing the other accused as
absconders and as far as respondent No. I is concerned investigation was
... shown to be pending. Against Chandra Shekhar Singh, the Court of Sessions
framed charge under Section 302 IPC and Section 27 of the Arms Act.

By order dated 7th April, 200 I, learned Additional Sessions Judge held B
that from the evidence of prosecution witnesses it appears that respondent
No. I and two others have committed the offence of the murder of Shivakant
~

• Singh. The warrants of arrest against these persons were directed to be issued
so that they may be tried together with the accused-Chandra Shekhar Singh.
This order was challenged by respondent No. I in a criminal revision petition c
(Criminal Revision No. 269/200 I) filed in the High Court of Judicature at
Patna.

During the pendency of the aforesaid revision petition, the learned
- Sessions Judge concluded the trial against Chandra Shekhar Singh and
believing the ocular testimony, by judgment dated 16th July, 2001, Chandra D
Shekhar Singh was convicted for the offence under Section 302 IPC and
Section 27 of the Arms Act. In the revision petition, it was contended on
behalf of respondent No. I that since the trial in respect of Chandra Shekhar
Singh has already been concluded and no session trial is pending before the
trial court, Section 319 would not be applicable as the said provision is E
applicable only when the trial against another accused is pending and in the
absence of pendency of such a trial, the court is not competent to proceed
against respondent No. I. The High Court by the impugned judgment accepted
the aforesaid contention and held that the order dated 7th April, 200 I is
without jurisdiction. The order dated 7th April, 200 I was quashed without
• -< issue of notice to the petitioner but on hearing the counsel for the State of F
Bihar. The other contentions urged during the heariPg of the revision petition
that (i) the investigation against respondent No. I was kept pending and on
that score, the Court had no power to summon the said respondent under
Section 319 of the Code; (ii) the order dated 7th April, 2001 is illegal as no
reasons have been assigned for proceeding against respondent No. I and; (iii)
G
the order was too cryptic, were not gone into by the High Court.

The trial against Chandra Shekhar Singh was pending on 7th April,
• > 2001 when the order under Section 319(1) of the Code was passed by the
Court of Sessions. Thus, the order when passed cannot be said to be without
jurisdiction on the stated ground since at that stage, the trial against Chandra H
404 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Shekhar Singh was pending and respondent No. I summoned under Section
3 I 9 could be tried together with him. However, the trial against Chandra
Shekhar Singh concluded .before. respondent No. I could be brought before
the Sessions Court. Therefore, the question is, can respondent No. I, after
being summoned under Section 3 I 9 of the Code, be tried in the absence of
B trial pending against Chandra Shekhar Singh. In other words, the aspect to be
determined is as to whether the order dated 7th April, 200I would .become
ineffective and inoperative as a result of the conclusion of trial against Chandra
Shekhar Singh before respondent No. I could be proceeded with for the offence
for which warrants were issued against him by the Sessions Court pursuant
to an order passed under Section 3 I 9 of the Code. That section reads as
C under:

"319. Power to proceed against other persons appearing to be
guilty of offence-( 1) Where, in the course of any inquiry int~ or trial

D
of, an offence, it appears from the evidence that any person not being
the accused has committed any offence for which such person could
be tried together with the accused, the Court may proceed against
such person for the offence which he· appears to have committed.
-
(2) Where such person is not attending the Court, he may be arrested
or summoned, as the circumstances of the case may require, for the
purpose aforesaid.
E
(3) Any person attendin~ the Court, although not under arrest or upon
a summons, may be detained by such Court for the purpose of the
inquiry into, or trial of, the offence which he appears to have
committed. •
F (4) Where the Court proceeds against any person under sub-section
(1), then-

(a) the proceedings in respect of such person shall be commenced
afresh, and the witnesses re-heard;

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

, Clearly, the proceedings against the person summoned under sub-section
H (I) are required to be commenced afresh and the witnesses reheard. The
SHASHIKANT SINGH v. TARKESHW AR SINGH [Y.K. SABHARWAL, J.] 405

entire proceedings have to recommence from the beginning of the trial. All A
the witnesses have to be examined afresh. Opportunity has to be granted to
such a person to cross-examine those witnesses. There has to be a de novo

... trial. The effect of the conclusion of the trial against the accused who was
being proceeded with when the order was passed under Section 3 19( I) for
proceeding ~gains! the newly added person, is to be examined in the light of B
sub-section (4) of Section 319 which stipulates a de novo. trial in respect of
the newly added persons and certain well settled principles of interpretation.

When a statute is passed for the purpose of enabling something to be
done, and prescribes the way in which it is to be done, it may be either an
absolute enactment or a directory enactment. The difference being that an C
absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if
a directory enactment be obeyed or .fulfilled substantially. No universal rule
can be laid down as to whether mandatory enactments shall be considered
directory only or obligatory with an implied nullification for disobedience. It
is the duty of courts of justice to try to get at the real intention of the
legislature by carefully attending to the whole scope of the statute to be D
con~trued. (Craies On Statute Law, 7th Edn. Pages 260-262).

The intention of the provision here is that where in the course of any
enquiry into, or trial of; an offence, it appears to the court from the evidence
that any person not being the accused has committed any offence, the court E
may proceed against him for the offence which he appears to have committed.
At that stage, the court would consider that such a person could be tried
together with the accused who is already before the Court facing the trial.
The safeguard provided in respect of such person is that, the proceedings
right from the beginning have mandatorily to be commenced afresh and the
witnesses re-heard. In short, there has to be a de novo trial against him. The F
provision of de novo trial is mandatory. It vitally affects the rights of a
person so brought before t1ie Court. It would not be sufficient to only tender
the witnesses for the cross-examination of such a person. They have to be
examined afresh. Fresh examination in chief and not only their presentation
for the purpose of the cross-examination of the newly added accused is the G
mandate of Section 319(4). The words 'could be tried together with the
accused' in Section 319(1), appear to be only directory. 'Could be' cannot

- ~
under these circumstances be held to be 'must be'. The provision cannot be
interpreted to mean that since the trial. in respect of a person who was before
the C.ourt has concluded with the result that the newly added person cannot
be fried together with the accused who was before the Court when order H

•
406 SUPREME COURT REPORTS [2002) 3 S.C.R.

A under Section 319( l) was passed, the order would become ineffective and
inoperative, nullifying the opinion earlier formed by the Court on the basis
of evidence before it that the newly added person appears to have committed
the offence resulting in an order for his being brought before the Court.

Where a statute does not consist merely of one enactment, but contains
B a number of different provisions regulating the manner in which something
is to be done, it often happens that some of these provisions are to be treated
as being directory only, while others are to be considered absolute and
essential; that is to say, some of the provisions may be disregarded without
rendering invalid the thing to be done, but others not. (Craies On Statute
C Law, 7th Edn. Pages 266-267).

The mandate of the law of fresh trial is mandatory whereas the mandate
that newly added accused could be tried together with the accused is direc!ory.

On facts, the court could not have intended while concluding the trial
D against Chandra Shekhar Singh, to nullify its earlier order directing issue of
warrants against respondent No. I. The construction to be placed on a provision
like this has to commend to justice and reason. It has to be reasonable
construction to promote the ends of justice. The words 'could be' tried together
with the accused' in Section 319(1) cannot be said to be capable of only one
construction. If it was so, approach to be adopted would be different since the
E intention of the Parliament is to be respected despite the consequences of
interpretation. There is, however, a scope for two possible constructions.
That being the position, a reasonable and common sense approach deserves
to be adopted and preferred rather than a construction that would lead to
absurd results of respondent No. I escaping the trial despite passing of an
F order against him on Court's satisfaction under Section 3 I 9(1) and despite
the fact that the proceedings against him have to commence afresh. In this
view, the fact that trial against Chandra Shekhar Singh has already concluded
is of no consequence insofar as respondent No. I is concerned.

Reliance by learned counsel for the respondent No. l has been placed
G on Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., [I983]
I SCC l] in support of the contention that respondent No. I could be tried
only with Chandra Shekhar Singh and his trial having concluded, respondent
No. I cannot be now tried pursuant to order under Section 319(1) of the
Code. This Court in the cited decision was not concerned with the issue
which has fallen for consideration before us. The same is the position in
H respect of Michael Machado and Anr. v. Central Bureau of Investigation and

•
j._

SHASHIKANT SINGH v. TARKESHWAR SINGH [Y.K. SABHARWAL, J.] 407

Anr., [2000] 3 sec 262. There this Court considered the scope of the provision A
as to the circumstances under which the Court may proceed to make an order
under Section 319 and not the question as to the effect of the conclusion of
the trial after passing an order under Section 319(1). None of these decisions
have any relevance for determining the point in issue.

A magistrate is empowered to take cognizance of an offence in the B
manner provided under Section 190 of the Code. Section 209 enjoins upon
a magistrate. to commit the case to the Court of Session when it appears to
~
the magistrate that the offence is triable exclusively by the Court of Session.
" Section 193 provides for the power of the Court of Session to take cognizance
of any offence. It uses the expression 'cognizance of any offence' and not
that of 'offender'. These three provisions read with Section 319 make it clear
c
that the words 'could be tried together with the accused' in Section 319 is
only for the purpose finding out whether such a person could be put on trial
for the offence. Once it is so found, as already stated, sub-section (4) of
-· Section 319 comes into play. On the magistrate committing the case under
Section 209 to the Court of Session, the bar of Section 193 is lifted thereby D
investing the Court of Session complete and unfettered jurisdiction of Court
.... of original jurisdiction to take cogniZ<.11ce of the offence which could include
' summoning of the person or persons whose complicity in the commission of
crime can, prima facie, be gathered from the material on record. (see Kishun
Singh and Ors. v State of Bihar, [ 1993] 2 SCC 16.
E
In view of the 2foresaid legal position, the High Court was clearly in
error in coming to the conclusion that the order dated 7th April, 2001 had
become without jurisdiction as a result of the conclusion of trial against
Chandra Shekhar Singh. The impugned order of the High Court is, therefore,
.( set aside. F
The High Court did not go into the other contentions as urged on behalf
of respondent No. 1 and decided the Criminal Revision No. 269/2001 only
on the point aforenoted. In this view, we would remand the Criminal Revision
No. 269/2001 to the High Court for fresh decision to consider the other
contentions urged ty Respondent No. I. G
The appeal is allowed in the above terms. The application for
impleadment is, however, dismissed. The High Court would do well to
expeditiously decide the matter preferably within a period of three months.

NJ. Appeals allowed. H