Holding

A trial court has jurisdiction to add any person not previously accused as an accused under Section 319 CrPC on the basis of evidence adduced before it, and there was no delay that barred the application.

Summary

The complainant filed a murder complaint in which the respondents were initially named in the FIR but were later omitted from the array of accused by a Special Investigating Officer after an alibi investigation and were not included in the charge‑sheet. The complainant later moved the trial court under Section 319 of the Code of Criminal Procedure (CrPC) to have the respondents added as accused. The trial court rejected the petition, and the High Court affirmed the rejection, citing alleged delay and reliance on the investigating officer’s satisfaction. On appeal, the Supreme Court held that a trial court has clear jurisdiction to add any person not previously accused as an accused under Section 319, provided it is satisfied on the basis of evidence adduced before it, and that the omission of the respondents could be rectified despite earlier police satisfaction. The Court found no delay in filing the petition and criticized the High Court’s reliance on the investigating officer’s satisfaction over the complainant’s evidence. Consequently, the appeal was allowed and the trial court was directed to proceed against the respondents under Section 319.

Issues considered

Whether Section 319 CrPC empowers a trial court to add persons omitted from the accused after investigation, based on evidence adduced before the court.
Whether the delay in filing a petition under Section 319 bars the addition of the respondents as accused.
Whether the High Court could give primacy to the investigating officer’s satisfaction over the complainant’s evidence in deciding the application under Section 319.

Legislation cited

Code of Criminal Procedure, 1973s. 319, s. 319(4)(1)(b)

Subjects

Section 319 CrPCaddition of accusedcriminal proceduredelay in filingevidence reliabilitysuo motu jurisdictionalibi investigationcharge‑sheet

Judgment

Y. SARABA REDDY A
v.
PUTHUR RAMI REDDY AND ORS.

MAY 7, 2007

[DR. ARIJIT PASA YAT, P.K. BALASUBRAMANYAN AND D.K. JAIN, JJ.] B

Code of Criminal Procedure, 1973-s.319-Scope and ambit a/-
Omission of the name ofa person from the array of accused, after investigation
by Special Investigating Officer-Their names found in the FIR and statement C
of witnesses-Application u/s 319-Rejection of by trial Court-Affirmation
thereof by High Court on the ground of delay and after examining reliability
of evidence of the complainant-On appeal-Held: Power u/s 319 can be
exercised suo motu or on application-However, it is extraordinary power,
which should be used very sparingly-Trial Court has the jurisdiction to add
a person in the array of accused and face trial-Such addition can be done D
only on the basis of evidence adduced before it and not on the basis of
material in the charge-sheet or case diary, as the same does not constitute
evidence-There was no belated approach-Calling of records from
Investigating Officer for deciding reliability of version of complainant is
unusual procedure-Hence direction to trial Court to take steps for
proceedings u/s 319. E
A complaint was lodged by PW-1 (complainant) against the respondent-
accused for having caused death of the deceased. Investigation was taken up.
On an application made by the accused, matter was investigated by Deputy
Superintendent of Police and on the basis of its report, their names were F
deleted from the array of accused. They were not included in the charge-sheet.
After complainant (PWl) was examined, he filed a petition u/s 319 Cr.P.C.
for arraying the respondents as accused. Trial Court rejected the application
on the ground that omission of their names were directed on satisfaction by
the Superintendent of Police. State as well as complainant filed Revision
Petitions. High Court called for the records from the Investigating Officer to G
satisfy as to whether the version of PW-1 was reliable or not. Then it affirmed
the order of trial court and also held that there was delay in filing the
application. Hence the present appeal.

Allowing the appeal, the Court
69 H
70 SUPREME COURT REPORTS [2007) 6 S.C.R.

A HELD: 1.1. On a careful reading of Section 319 Cr.P.C. and in view of r
law laid down by the courts, it becomes clear that the trial court has undoubted
jurisdiction to add any person not being the accused before it to face the trial
along with other accused person, if the Court is satisfied at any stage of the
proceedings on the evidence adduced that the persons who have not been
arrayed as accused should face the trial. It is further evident that such person
B even though had initially been named in the FIR as an accused, but not charge
sheeted, can be added 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 the case
>
diary, because such materials contained in the charge sheet or the case diary
C do not constitute evidence. [Para 12) [74-G-H; 75-A-B)

Joginder Singh and Anr. v. State of Punjab and Anr., AIR (1979) SC
339 and Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors.,
[1982) l sec 2, relied on.

D 1.2. Power under Section 319 Cr.P.C. can be exercised by the Court
suo mo/u or on application by someone including accused already before it. If
it is satisfied that any person other than accused has committed an offence
he is to be tried together with the accused. The power is discretionary and
such discretion must be exercised judicially having regard to the facts and
circumstances of the case. Undisputably, it is an extraordinary power which
E is conferred on the Court and should be used very sparingly and only if
compelling reasons exist for taking action against a person against whom
action had not been taken earlier. The word 'evidence' in Section 319
contemplates the evidence of witnesses given in Court. Under Sub-section 4
(l)(b) of Section 319, it is specifically made clear that it will be presumed
F that newly added person had been an accused person when the Court took
cognizance of the offence upon which the inquiry or (rial was commenced.
That would show that by virtue of Sub-section 4(1 Xb), a legal fiction is created
that cognizance would be presumed to have been taken so far as newly added
accused is concerned. [Para 13) [75-C-E)

G Lok Ram v. Nihal Singh and Anr., [2006) 10 sec 192, relied on.

2.1. High Court has failed to notice the fact that there was in fact no
delay in making the application. Though the charge sheet was filed on 7.11.97,
charges were framed on 25.8.2003. The order sheet shows that the delay
cannot in any way be attributed to the complainant. If the satisfaction of the
H Investigating Officer or Supervising Officer is to be treated as determinative,
Y. SARABAREDDYv. PUTHURRAMIREDDY [PASAYAT,J.) 71
"''. then the very purpose of Section 319 Cr.P.C. would be frustrated. Though it A
cannot always be the satisfaction of the Investigating Officer which is to
prevail, yet in the instant case the High Court has not found the evidence of
PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence
for the purposes of Section 310 Cr.P.C. it was required to be analysed. The
conclusion that the Investigating Officer's satisfaction should be given
primacy is unsustainable. The High Court was not justified in holding that B
there was belated approach. [Para 8) (73-D-E]

2.2. The conclusion of the High Court after calling for the records from
the Investigation Officer to satisfy itself and deciding whether version of PW-
1 was to be accepted or not is a very unusual procedure adopted. Hence trial
court is directed to take steps for proceeding against the respondents in terms
c
of Section 319 Cr. P.C. [Paras 15 and 16) [75-F-G)

CRIMINAL APPELLA.TE JURISDICTION : Criminal Appeal No. 689 of
2007.

From the Final Judgment and Order dated 7.10.2005 of the High Court D
of Andhra Prades~ at Hyderabad in Crl. Rev. Case No. 1551 of2004.

Sanjay R. Hedge, Aadish Reddy, Vikrant Yadav and Anil Kr. Mishra for
the Appellant.

Jitendra Sharma, B.K. Pal, P.N. Jha and D. Bharathi Reddy for the E
Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.
F
2. Challenge in this appeal is to the order passed by a learned Single
_, Judge of the Andhra Pradesh High Court dismissing the revision petitions
filed by the appellant and the State questioning the correctness of the order
passed by the learned Vlth Additional Sessions Judge, Gooty, (Fast Track
Court), Gooty.
G
3. Background facts as projected by the appellant in a nutshell are as
follows:

-J 4. On 26.07.:997 at about 6 p.m., while Yeddula Siva Prasad Reddy
(hereinafter referred to as the 'deceased') was coming on a motorbike, accused
persons armed with deadly weapons, attacked and killed him. Appellant who H
72 SUPREME COURT REPORTS (2007] 6 S.C.R.

A was examined as P.W. l lodged complaint with the police and investigation r
was taken up. On an application made by the respondents in Crl.R.C.No.1551
of 2004, the Superintendent of Police, Anantapur District got the matter
investigated by the Deputy Superintendent of Police, Guntakal and on the
basis of his report, names of the present respondents were deleted from the
array of accused. They were not included in the charge sheet filed on
B 07.11.1997. Thereafter, the case was committed to Sessions Court on 10.11.1997
and numbered as S.C.No.3 78 of 1998. There was delay in progress of the trial.
P.W. l was examined on 7.7.2004. Thereafter, a petition in terms of Section 319
of the Code of Criminal Procedure, 1973 (in short the 'Code') was filed for
arraying the present respondents as accused. The learned Sessions Judge
c dismissed the petition by order, giving a somewhat conclusive finding that
the present respondents have not participated in the offence.

5. The trial Court rejected the application made in terms of Section 319
of the Code primarily on the ground that the plea of alibi raised by the
respondent was investigated by the Deputy Superintendent of Police under
D the instructions of the Superintendent of Police and on his satisfying about
the substance in the plea of accused about their non-involvement, directed
the omission of their names. Though their names were deleted from the array
of accused their names were found in the FIR and statement of witnesses.
Assailing the same, firstly the State filed Crl.R.C.No.1476 of2004 and thereafter
appellant (PW-I the de facto complainant) filed Crl.R.C. No.1551 of 2004
E before the High Court. The High Court found no infirmity in the trial Court's
order and additionally found that the charge sheet was filed on 7.11.1997.
Neither the public prosecutor nor the appellant took any steps immediately.
Only on 7. 7.2004 an application was filed. The High Court found that first of
all the appellant and the public prosecutor should not have kept quiet for
F such a long period of about 7 years. The fact that they kept silent for such
a long period, according to High Court, shows that the plea of alibi which was
found to be true by the Special Investigating Officer who enquired into that
aspect was true. The High Court also accepted that there was force in the
contention that on account of political factions the respondents were falsely
implicated and on account of change of government, the public prosecutor
G had filed the petition. Since the Deputy Superintendent of Police had found
the plea of alibi to be correct, the fact that the witnesses during trial stated
otherwise was really of no consequence.

6. In support of the appeal, learned counsel for the appellant submitted ,__
H that the orders of the trial Court as well as that of the High Court cannot be
Y. SARABA REDDY v. PUTHUR RAMI REDDY [PASAYA T,J.] 73
maintained. The alleged occurrence took place on 26. 7.1997. The charge sheet A
was filed on 7.11.1997 and charges were framed on 25.8.2003. The delay in
framing of charges cannot in any way be attributed to the complainant. PW-
1 was examined on 7. 7.2004 and immediately after his evidence was recorded,
the application in terms of Section 319 of the Code was filed. There was,
therefore, no scope for the High Court to hold that there was delay in making
the application. Before the charges were framed there was no scope for any B
application being filed in terms of Section 319 of the Code.

7. In response, learned counsel for the respondents submitted that after
a thorough investigation, the Investigating Officer had accepted the plea of
alibi. The High Court was justified in rejecting the prayer made by the C
prosecution and the complainant.

8. We find that the High Court has failed to notice the fact that there
was in fact no delay in making the application. Though the charge sheet was
filed on 7.11.1997, charges were framed on 25.8.2003. The order sheet shows
that the delay cannot in any way be attributed to the complainant. There is D
a basic fallacy in the approach of the High Court. It called for the file to be
satisfied as to whether the enquiry conducted was to be preferred to the
evidence of PW-I. If the satisfaction of the Investigating Officer or Supervising
Officer is to be treated as determinative, then the very purpose of Section 319
of the Code would be frustrated. Though it cannot always be the satisfaction
of the Investigating Officer which is to prevail, yet in the instant case the E
High Court has not found the evidence of PW-I to be unworthy of acceptance.
Whatever be the worth of his evidence for the purposes of Section 319 of
the Code it was required to be analysed. The conclusion that the IO's
satisfaction should be given primacy is unsustainable. The High Court was
not justified in holding that there was belated approach. F
9. The scope and ambit of Sec. 319 of the Code have been elucidated
in several decisions of this Court. In Joginder Singh and Anr. v. State of
Punjab and Anr., AIR (1979) SC 339, it was observed:

"6. A plain reading of Sec. 319 (1) which occurs in Chapter XXIV G
dealing with general provisions as to inquiries and trials, clearly shows
that it applies to all the Courts including a Sessions Court and as such
a Sessions Court will have the power to add any person, not being
the accused before it, but against whom there appears during trial
sufficient evidence indicating his involvement in the offence, as an
accused and direct him to be tried along with the other accused ...... " H
/
74 SUPREME COURT REPORTS [2007) 6 S.C.R.

A 10. It was further observed in paragraph 9:

"9. As regards the contention that the phrase 'any person not being
the accused' occurred in Sec. 319 excludes from its operation an
accused who has been released by the police under Sec. 169 of the
Code and has been shown in column No. 2 of the charge sheet, the
B contention has merely to be stated 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 Sec. 319(1)
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
c in the said expression."

I I. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and
Ors., [1983] 1 SCC 2 after referring to the decision in Joginder Singh's case
(supra), it was observed:-

D "19. In these circumstances, therefore, if the prosecution can at any
stage produce evidence which satisfies the Court that the other accused
or those who have not been arrayed as accused against whom >
proceedings have been quashed have also committed the offence the
Court can take cognizance against them and try them along with the
other accused. But, we would hasten to add that this is really un
E extraordinary power which is conferred on the Court and should be
used very sparingly and only if compelling reasons exist for taking
cognizance against the other person against whom action has not
been taken. More than this we would not like to say anything further
at this stage. We leave the entire matter to the discretion of the Court
F concerned so that it may act according to Jaw. We would, however,
make it plain that the mere fact that the proceedings have been
quashed against respondent Nos. 2 to 5 will not prevent the court .r-
from exercising its discretion if it is fully satisfied that a case for taking
cognizance against them has been made out on the additional evidence
led before it."
G
12. On a careful reading of Sec. 319 of the Code as well as the aforesaid
two decisions, it becomes clear that the trial court has undoubted jurisdiction
to add any person not being the accused before it to face the trial along with
other accused persons, if the Court is satisfied at any stage of the proceedings
on the evidence adduced that the persons who have not been arrayed as
H accused should face the trial. It is further evident that such person even
Y. SARABAREDDYv. PUTHURRAMIREDDY [PASAYAT,J.) 75

though had initially been named in the F.l.R. as an accusea, but not charge A
sheeted, can also be added 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 the
case diary, because such materials contained in the charge sheet or the case
diary do not constitute evidence. Of course, as evident from the decision
reported in Sohan Lal and Ors. v. State of Rajas than, AIR (1990) SC 2158 the B
position of an accused who has been discharged stands on a different
footing.

13. Power under Section 319 of the Code can be exercised by the Court
suo motu or on an application by someone including accused already before C
it. If it is satisfied that any person other than accused has committed an
offence he is to be tried together with the accused. The power is discretionary
and such discretion must be exercised judicially having regard to the facts
and circumstances of the case. Undisputedly, it is an extraordinary power
which is conferred on the Court and should be used very sparingly and only
if compelling reasons exist for taking action against a person against whom D
action had not been taken earlier. The word "evidence" in Section 319
contemplates that evidence of witnesses given in Court. Under Sub-section
(4 )(I )(b) of the aforesaid provision, it is specifically made clear that it will be
presumed that newly added person had been an accused person when the
Court took cognizance of the offence upon which the inquiry or trial was
commenced. That would show that by virtue of Sub-section (4)(1)(b) a legal E
fiction is created that cognizance would be presumed to have been taken so
far as newly added accused is concerned.

14. The above position was highlighted in Lok Ram v. Nihal Singh and
Anr., (2006] 10 sec 192.
F
--'.
15. The conclusion of the High Court after calling for the records from
the Investigating Officer to satisfy itself and deciding whether version of PW-
l was to be accepted or not is a very unusual procedure adopted.

16. In the result, the High Court's order is clearly indefensible and is
set aside. The trial Court shall take steps for proceeding against the respondents G
in terms of Section 319 of the Code. We make it clear that by allowing this
appeal we are not expressing any opinion on the merits of the case.

K.K.T. Appeal allowed.