# 2 S.C.R. 1 HARDEEP SINGH v. ~ ·, ,,\ STATE OF PUNJAB & ·ORS

- **Citation:** [2014] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2014-01-10
- **Case number:** Criminal Appeal No. 1750 of 2008
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-1-hardeep-singh-v-state-of-punjab-ors-29841
- **Pages:** 70

## Headnote

(2014] 2 S.C.R. 1
HARDEEP SINGH .
v.
~ ·,
,,\
STATE OF PUNJAB & ·ORS.
·
·(Criminal Appeal No. 1750 of 2008 etc.)
•
', ,...
. •
,_!
~
,,JANUARY 10, 2014 .
~ ..
[P. SATHASIVAM, CJI, DR .. B.S. CHAUHAN, RANJANA ·
PRAKASH DESAI, RANJAN GOGOi, AND · .
.. S.A .. BOBDE, JJ.] . .
'
.
,
\ ,\ -
· CODE OF CRIMINAL PROCEDURE, 1973:
--
•''-
.
-
-
s.31.9 ~·Power to.proceed against other person appearing .
to be guilty pf offence.~ Stage of excise of power - Held: Power
u/s 319(1) can be' exercised at anytime after th'e charge-sheet
A
B
c
is filed and before the pronouncement of judgment - s. 319
uses the expressions 'inquiry'..and 'trial'..- Stage of inquiry D
commences, insofar 'as the. court is. concerned, with. filing of
charge-sheet and consideration of material collected by
prosecution, that is. mentioned in the charge-sheet for the
purpose of trying the. accused. -, As a trial c.ommences. after
-
framing of charge, an inquiry can only be understood to be a E
. pre-trial inquiry - Inquiries u/ss 200, 201, 202 and uls 398 are
species of the in.quiry. contemplated bys. 319 '.'."" In order to
invoke the power uls 319, it is only a Court of Session or a
Court of Magistrate performing the duties as a court under
Cr.P.C. that can utilize the material beforeit for the purpose
F
of the said Section'.'."" The stage of committal is.neither.an
inquiry nor a trial -The view in Dharamp Pal (CB) that.after
committal, cognizance of an offence can be taken by Court
of Session u/s 193 Cr.P.C against a person not named as an
accused but against whom materials are available from the G
papers filed by the police after completion of investigation and
Sessions Judge need not wait till 'evidence' uls 319 Cr.P.C.
• becomes available for summoning an additional accused, is
· concurred with -
'Trial' commences only on charges being
1
H
2
SUPREME COURT REPORTS
(2014] 2 S.C.R.
A framed -- The view that in a criminal case, trial commences
on cognizance being taken, is not approved -- The
interpretation given by the Constitution Bench in- Dharam Pal
(CB) thats. 193 Cr.P.C. confers power of original jurisdiction
upon the Court of Session to add an accused once the case
B has been committed to it, is concurred with -- Maxims ]udex
damnatur cum nocens absolvitur' and 'a verbis legis non est
recedendum' - Interpretation of statutes.
s.319 rlw s. 227 - 'Evidence' for the purpose of s.319 -
C
Connotation of - Held: For exercise of power u/s 319, the use
of word ·evidence' means material that has come before the
court during an inquiry or trial by it and not othf¥rwise -- Wo.rd
"evidence" in s.319 means only such evidence as is made
before the court, in relation to statements, and as produced
before the court, in relation to documents It is only such
D evidence that can be taken into account by the Magistrate or
the court to decide whether power u/s 319 is to be exercised
and not on the basis of material collected during investigation.
s. 319 - Exercise of power uls 319 on the basis of
E examination-in-chief - Held: Once examination-in-chief is
conducted, the statement becomes part of the record -- It is
evidence as per law and in the true sense, though, it may be
rebuttable --Power u/s 319 can be exercised at the stage of
completion of examination-in- chief and court need not wait
F
till said evidence is tested on cross-examination for it is the
satisf[3ction of court which can be gathered from the reasons
recorded by the court, in respect of complicity of some other
person(s), not facing the trial in the offence - Evidence Act,
1872 - s.3.
G
s.319 - Nature of satisfaction required to invoke power
H
u/s 319 - Held: Though only a prima facie case is to be
established from the evidence led before the court not
necessarily tested on the anvil of cross-examination, it
requires much stronger evidence than mere probability of
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
3
complicity of person concerned - The test that has to be
A
applied is one which is more than prima facie case a

## Text

_Characters 0–39,969 of 133,150. This is a partial read: ask again with offset=39969 for what follows._

(2014] 2 S.C.R. 1
HARDEEP SINGH .
v.
~ ·,
,,\
STATE OF PUNJAB & ·ORS.
·
·(Criminal Appeal No. 1750 of 2008 etc.)
•
', ,...
. •
,_!
~
,,JANUARY 10, 2014 .
~ ..
[P. SATHASIVAM, CJI, DR .. B.S. CHAUHAN, RANJANA ·
PRAKASH DESAI, RANJAN GOGOi, AND · .
.. S.A .. BOBDE, JJ.] . .
'
.
,
\ ,\ -
· CODE OF CRIMINAL PROCEDURE, 1973:
--
•''-
.
-
-
s.31.9 ~·Power to.proceed against other person appearing .
to be guilty pf offence.~ Stage of excise of power - Held: Power
u/s 319(1) can be' exercised at anytime after th'e charge-sheet
A
B
c
is filed and before the pronouncement of judgment - s. 319
uses the expressions 'inquiry'..and 'trial'..- Stage of inquiry D
commences, insofar 'as the. court is. concerned, with. filing of
charge-sheet and consideration of material collected by
prosecution, that is. mentioned in the charge-sheet for the
purpose of trying the. accused. -, As a trial c.ommences. after
-
framing of charge, an inquiry can only be understood to be a E
. pre-trial inquiry - Inquiries u/ss 200, 201, 202 and uls 398 are
species of the in.quiry. contemplated bys. 319 '.'."" In order to
invoke the power uls 319, it is only a Court of Session or a
Court of Magistrate performing the duties as a court under
Cr.P.C. that can utilize the material beforeit for the purpose
F
of the said Section'.'."" The stage of committal is.neither.an
inquiry nor a trial -The view in Dharamp Pal (CB) that.after
committal, cognizance of an offence can be taken by Court
of Session u/s 193 Cr.P.C against a person not named as an
accused but against whom materials are available from the G
papers filed by the police after completion of investigation and
Sessions Judge need not wait till 'evidence' uls 319 Cr.P.C.
• becomes available for summoning an additional accused, is
· concurred with -
'Trial' commences only on charges being
1
H
2
SUPREME COURT REPORTS
(2014] 2 S.C.R.
A framed -- The view that in a criminal case, trial commences
on cognizance being taken, is not approved -- The
interpretation given by the Constitution Bench in- Dharam Pal
(CB) thats. 193 Cr.P.C. confers power of original jurisdiction
upon the Court of Session to add an accused once the case
B has been committed to it, is concurred with -- Maxims ]udex
damnatur cum nocens absolvitur' and 'a verbis legis non est
recedendum' - Interpretation of statutes.
s.319 rlw s. 227 - 'Evidence' for the purpose of s.319 -
C
Connotation of - Held: For exercise of power u/s 319, the use
of word ·evidence' means material that has come before the
court during an inquiry or trial by it and not othf¥rwise -- Wo.rd
"evidence" in s.319 means only such evidence as is made
before the court, in relation to statements, and as produced
before the court, in relation to documents It is only such
D evidence that can be taken into account by the Magistrate or
the court to decide whether power u/s 319 is to be exercised
and not on the basis of material collected during investigation.
s. 319 - Exercise of power uls 319 on the basis of
E examination-in-chief - Held: Once examination-in-chief is
conducted, the statement becomes part of the record -- It is
evidence as per law and in the true sense, though, it may be
rebuttable --Power u/s 319 can be exercised at the stage of
completion of examination-in- chief and court need not wait
F
till said evidence is tested on cross-examination for it is the
satisf[3ction of court which can be gathered from the reasons
recorded by the court, in respect of complicity of some other
person(s), not facing the trial in the offence - Evidence Act,
1872 - s.3.
G
s.319 - Nature of satisfaction required to invoke power
H
u/s 319 - Held: Though only a prima facie case is to be
established from the evidence led before the court not
necessarily tested on the anvil of cross-examination, it
requires much stronger evidence than mere probability of
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
3
complicity of person concerned - The test that has to be
A
applied is one which is more than prima facie case as
exercised at the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes unrebutted,
would lead to conviction - In the absence of such satisfaction,
the court should refrain from exercising power u/s 319 Cr. P. C.
B
s.319 - Power to proceed against other person - Scope
of- Held: s.319 is an enabling provision, it empowers the court
to proceed against any person who is not an accused in a
case before it - A person whose name does not appear even
in the FIR or in the charge-sheet or whose name appears in C
the FIR and not in the main part of the charge-sheet but in
Column 2 and has not been summoned as an accused in
exercise of the powers u/s 193, can still be summoned by the
court, provided the court is satisfied that the conditions
provided in the said statutory provisions starid fulfilled --
D
Further, a person discharged can also be arraigned again as
an accused but only after an inquiry as contemplated by
ss.300(5) and 398 -- If during or after such inquiry, there
appears to be an evidence against such person, power u/s 319
can be exercised.
E
s.319 r/w ss.398, 300(5) and 258 - Power to proceed
against a person who has been discharged - Held: A person
who has been discharged stands on a different footing than a
person who was never subjected to investigation or if subjected
F
to, but not charge-sheeted - Such a person has stood the
stage of inquiry before the court and upon judicial examination
of the material collected during investigation, the court had
come to the conclusion that there was not even a prima facie
case to proceed against such person - If after such careful
examination of the evidence, the court is of the opinion that G
there does exist evidence to pro~ed against the person so
discharged, it may take steps but only in accordance with s.
398 Cr. P. C. without resorting to the provision of s. 319 Cr. P. C.
directly.
H
4
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
WORDS AND PHRASES:
Words, 'course', 'inquiry' and 'trial' as occurring ins. 319
Cr. P. C. - Connotation of.
The instant reference arose out of different views
B expressed by the Supreme Court and High Courts on the
scope and extent of the powers of the courts under the
criminal justice system to arraign any person as an
accused during the course of inquiry or trial as
contemplated u/s 319 of the Code of Criminal Procedure,
C 1973(Cr.P.C.). The questions to be answered by the Court
were: "(i)What is the stage at which power u/s 319 Cr.P.C.
can be exercised? (ii) Whether the word "evidence" used
in s. 319(1) Cr.P.C. could only mean evidence tested by
·cross-examination or the court can exercise the power
D under the said provision even on the basis of the
statement made in the examination-in-chief of the witness
concerned? (iii) Whether the word "evidence" used in s.
319(1) Cr.P.C. has been used in a comprehensive sense
and includes the evidence collected during investigation
E or the word "evidence" is limited to the evidence
recorded during trial? (iv) What is the nature of the
satisfaction required to invoke the power u/s 319 Cr.P.C. ·
to arraign an accused? Whether the power u/s 319(1)
Cr.P.C. can be exercised only if the court is satisfied that
F the accused summoned will in all likelihood convicted?
{v)Doestfie power u/s.319 Cr.P.C. extend to persons not
named in the FIR or named in the FIR but not charged or
who have been discharged?"
G
Answering the reference, the Court
HELD: 1.1 In Dharam Pal (CB)*, it has already been
held that after committal, cognizance of an offence can
be taken by the Court of Session against a person not
named as an accused but against whom materials are
H available from the papers filed by the police after
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
5
completion of investigation. Such cognizance can be A
taken u/s 193 Cr.P.C. and the Sessions Judge need not
wait till 'evidence' u/s 319 Cr.P.C. becomes available for
summoning an additional accused.Thus, the powers so
far as the Court of Session is concerned, to invokes. 319
Cr.P.C. at the stage of committal, has stood answered
B
finally. [para 4 and 110] [23-G; 68-D]
*Dharam Pal & Ors. v. State of Haryana & Anr., AIR 2013
SC 3018 - relied on.
1.2 Section 319 Cr.P.C. springs out of the doctrine C
judex damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted) arid this doctrine
must be used as a beacon light while explaining the
ambit and the spirit underlying the enactment of s.319
Cr.P.C. It is the duty of the court to do justice by o
pun\15hing the real culprit. Where the investigating agency
for any reason does not array one of the real culprits as
an accused, the court is not powerless in calling the said
· accused to face trial. [para 12] [28-D-E]
· Raghubans Dubey v. State of Bihar, 1967 SCR 423 =AIR
E
1967 SC 1167 - referred to.
Question No.(i)
1.3 Section 319 Cr.P.C., significantly, uses two
F
expressions that have to be taken note of. i.e. (1) 'inquiry'
and (2) 'trial'. The stage of inquiry commences, insofar as
the court is concerned, with the filing of the charge-sheet
and the consideration of the material collected by the
prosecution, that is mentioned in the charge-sheet for the G
purpose of trying the accused. This has to be understood
in terms of s. 2(g) Cr.P.C. [para 25 and 110] [33-F; 68-E]
State of U.P. v. Lakshmi Brahman & Anr. 1983 (2) SCR
· 537 =AIR 1983 SC 439; Raj Kishore Prasad v. State of Bihar
H
6
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A & Anr. 1996 (2) Suppl. SCR 125 =AIR 1996 SC 1931referred to.
1.4 As a trial commences after framing of charge, an
inquiry can only be understood to be a pre-trial inquiry.
8
Inquiries u/ss 200, 201, 202 Cr.P.C.; and u/s 398 Cr.P.C.
are species of the inquiry contemplated bys. 319 Cr.P.C.
In order to invoke the power u/s 319 Cr.P.C., it is only a
Court of Session or a Court of Magistrate performing the
duties as a court under the Cr.P.C. that can utilise the
material before it for the purpose of the said Section. The
C stage of committal is neither an inquiry nor a trial. [para
14, 2-t·and 110) [29-G-H; 32-E; 68-E-F]
Kishun Singh & Ors v. State of Bihar, (1993) 2 SCC 16
and Ranjit Singh v. State of Punjab, AIR 1998 SC 3148;
D Elachuri Venkatachinnayya. & Ors. v. King-Emperor (1920)
ILR 43 Mad 511; Mo/y & Anr. v. State of Kera/a 2004 (3) SCR
346 =AIR 2004 SC 1890; The State of Bihar v. Ram Naresh
Pandey & Anr. 1957 SCR 279 =AIR 1957 SC 389; Ratila/
Bhanji Mithani v. State of Maharashtra & Ors. 1979 (1) SCR
E 993 =AIR 1979 SC 94; V.C. Shukla v. State through C.8.1.
1980 SCR 380 =AIR 1980 SC 962; Union of India & Ors. v.
Major General Madan Lal Yadav (Retd.) 1996 (3) SCR 785
= AIR 1996 SC 1340; "Common Cause", A Registered
Society thr. its Director v. Union of India & Ors. 1996 (9)
F Suppl. SCR 296 = AIR 1997 SC 1539- referred to.
1.5 The law can be summarised to "the effect that as
'trial' means determination of issues adjudging the guilt
or the innocence of a person, the person has to be aware
of what is the case against him and it is only at the stage
G of framing of the charges that the court informs him of
the same, the 'trial' commences only on charges being
framed. Thus, the view that in a criminal case, trial
commences on cognizance being taken, is not approved.
[para 35] [38-C-D]
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
7
Sriramulu v. Veerasa/ingam, (1914) I.LR. 38 Mad. 585b
A
- referred to.
In Re: Narayanaswamy Naidu v. Unknown 1 Ind Cas 228
- referred to.
Dagdu Govindshet Wani v. Punja Vedu Wani (1936) 38
B
Som.LR. 1189; Sahib Din v. The Crown (1922) I.LR. 3 Lah.
115; Fakhruddin v. The Crown, (1924) I.LR. 6 Lah. 176;
Labhsing v. Emperor (1934) 35 Cr.L. J. 1261 - disapproved.
1.6 Section 2(g) Cr.P.C. and the case law clearly c
envisage inquiry before the actual commencement of the
trial, and is an act conducted under Cr.P.C. by the
Magistrate or the court. The word 'inquiry' is, therefore,
not any inquiry relating to the investigation of the case
by the investigating agency but is an inquiry after the
0
case is brought to the notice of the court on the filing of
the charge-sheet. The court can thereafter proceed to
make inquiries and it is for this reason that an inquiry has
been given to mean something other than the actual trial.
[para 36] [38-E-F]
E
1.7 Even the word "course" occurring ins. 319
Cr.P.C., clearly indicates that the power can be exercised'·
only during the period when the inquiry has been
commenced and is going on or the trial which has
commenced and is going on. It covers the entire wide
F
range of the process of the pre-trial and the trial stage.
[para 37] [38-G-H]
Commissioner of Income-tax, New Delhi (Now
Rajasthan) v. Mis. East West Import & Export (P) Ltd. (Now
G
known as Asian Distributors Ltd.) Jaipur, 1989 (1) SCR 570
= AIR 1989 SC 836 State of Travancore-Cochin & Ors. v.
Shanmugha Vilas Cashewnut Factory, Qui/on, 1954 SCR 53
= AIR 1953 SC 333 - referred to.
H
8
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
1.8 To say that powers uls 319 Cr.P.C. can be
exercised only during trial, would be reducing the impact
of the word 'inquiry' by the court. It. is a settled principle
of law that an interpretation which leads to the conclusion
that a word used by the legislature is redundant, should
B be avoided as the presumption is that the legislature has
deliberately and consciously used the words for carrying
out the purpose of the Act. The legal maxim 'a verbis legis
non est recedendum' which means, "from the words of
law, there must be no departure" has to be kept in mind.
C [para 39] [39-E-F]
Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao
Jambekar & Anr., AIR 1965 SCR 328 =1965 SC 1457; The
Martin Bum Ltd. v. The Corporation of Calcutta, 1966 SCR
543 = AIR 1966 SC 529; M. V. Elisabeth & Ors. v. Harwan
D Investment & Trading Pvt. Ltd. Hanoekar House,
Swatontapeth, Vasco-De-Gama,Goa 1992 (1) SCR 1003 =
A1R 1993 SC 1014; Sultana Begum v. Prem Chand Jain,
1996 (9) Suppl. SCR 707 =AIR 1997 SC 1006; State of Bihar
& Ors. etc.etc. v. Bihar Distillery Ltd. etc. etc. 1996 (9) Suppl.
E SCR 479 = AIR 1997 SC 1511; Institute of Chartered
Accountants of India v. Mis. Price Waterhouse & Anr. 1997
(2) Suppl. SCR 267 = AIR 1998 SC 74; and The South
Central Railway Employees Co-operative Credit Society
Employees Union, Secundrabad v. The Registrar of Co-.
F operative Societies & Ors. 1998 (1) SCR 85 =AIR 1998 SC
703; Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors.
2012 (13) SCR 47 =AIR 2013 SC 30- referred to.
1.9 Thus, by no means it can be said that provisions
G of s. 319 Cr.P.C. cannot be pressed into service during
the course of 'inquiry'. The word 'inquiry' is not
surpulsage in the said provision. Since after the filing of
the charge-sheet, the court reaches the stage of inquiry
and as soon as the court frames the charges, the trial
commences and, therefore, the power uls 319(1) Cr.P.C.
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
9
can be exercised at any time after the charge-sheet is filed
A
and before the pronouncement of judgment. [para 42-43)
[41-F-H]
1.1 O The stage of s.207/208 Cr.P.C., committal etc. is
only a pre-trial stage, and the Magistrate is required to
8
perform acts in the nature of administrative work rather
than judicial such as ensuring compliance of ss.207 and
208 Cr.P.C., and committing the matter if it is exclusively
triable by Court of Session. Therefore, it would be
legitimate to conclude that the Magistrate at the stage of
ss. 207 to 209 Cr.P.C. is forbidden, by express provision
C
of s.319 Cr.P.C., to apply his minq to the merits of the
case and determine as to whether any accused needs to
b~ added or subtracted to face trial before the Court of
Session. It is thus aptly clear that until and unless the
case reaches the stage of inquiry or trial by the court, the
D
power u/s 319 Cr.P.C. cannot be exercised. [para 44 and
49] [42-B-D; 44-C]
Mis. SW/L Ltd. v. State of Delhi & Anr. 2001 (1) Suppl.
SCR 527 = AIR 2001 SC 2747 - referred to.
1.11 The interpretation given by the Constitution
Bench in Dharam Pal (CB) that s. 193 Cr.P.C. confers.
power of original jurisdiction upon the Court of Session
to add an accused once the case has been committed to
it, is concurred with. [para 49) [44-D-E]
Question No.(iii)
E
F
2.1 The word 'evidence' in s. 319 Cr.P.C. has to be
broadly understood and not literally i.e. as evidence G
brought during a trial. Materials coming before the court
in course of enquiries u/ss 200, 201, 202 and 378 can be
used for corroboration of the evidence recorded in the
court after the trial commences, for the exercise of power
u/s 319 Cr.P.C., and also to add an accused whose name
H
10
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A has been shown in Column 2 of the chargesheet. [para
11 O] [68-F-H]
Tomlin's Law Dictionary; Wigmore on Evidence -
referred to.
B
2.2 The definition of 'evidence' in s.3 of the Evidence
Act starts with the words, "Evidence means and
includes". Wherever the words "means and includes" are
used, it is an indication of the fact that the definition 'is a
hard and fast definition', and no other meaning can be
C assigned to the expression that is put down in the
definition. It indicates an exhaustive explanation of the
meaning which, for the purpo'ses of the Act, must
invariably be attached to these words or expression. The
definition of word "evidence" under the Evidence Act is
D exhaustive. Materials available in the charge-sheet or the
case diary do not constitute evidence. [para 55, 57, 58 and
61] [47-A, G-H; 48-A, F; 49-H; 50-A]
Mis. Mahalakshmi Oil Mills v. State of A.P. 1988 (2)
E Suppl. SCR 1088 = AIR 1989 SC 335; Punjab Land
Development and Reclamation Corporation Ltd. Chandigarh .
v. Presiding Officer, Labour Court, Chandigarh & Ors., (1990)
3 SCC 682; P. Kasilingam & Ors. v. P. S. G. College of
Technology & Ors. 1995 (2) SCR 1061 =AIR 1995 SC 1395;
Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner
F & Ors. 2007 (5) SCR 873 = AIR 2008 SC 968; and Ponds
India Ltd. (merged with H.L. Limited) v. Commissioner of
Trade Tax, Lucknow 2008 (9) SCR 496 = (2008) 8 SCC 369; .
Feroze N. botivala v. P.M. Wadhwani & Ors. 2002(4) Suppl.
SCR 416 = (2003) 1 SCC 433; Kalyan Kumar Gogoi v.
G Ashutosh Agnihotri & Anr. 2011(1) SCR 796 =AIR 2011 SC
760; Ameer Trading Corporation Ltd. v. Shapoorji Data
Processing Ltd. 2003 (5) Suppl. SCR 634 = AIR 2004 SC
355; Omkar Namdeo Jadhao & Ors v. Second Additional
Sessions Judge Buldana & Anr. 1996 SCR 158 = AIR 1997
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
11
_SC 331; and Ram Swaroop & Ors. v. State of Rajasthan AIR
A
2004 SC 2~43; Podda Narayana & Ors. v. State of A.P., 1975
(0) Suppl. SCR 84 =AIR 1975 SC 1252; Sat Paul v. Delhi
Administration, 1976 (2) SCR 11 = AIR 1976 SC 294; and
State (Delhi Administration) v. Laxman Kumar & Ors. 1985
(2) Suppl. SCR 898 =AIR 1986 SC 250; Lok Ram v. Nihal
B
Singh & Anr., 2006 (3) SCR 1018 =AIR 2006 SC 1892; Sunil
Mehta & Anr. v. State of Gujarat & Anr., JT 2013 (3) SC 328;
Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr.
2007 (10) SCR 385 = AIR 2008 SC 95; Lal Suraj@ Suraj
Singh & Anr. v. State of Jharkhand 2008 (17) SCR 1059 = c 1
(2009) 2 SCC 696; Rajendra Singh v. State of U.P. & Anr.
2007 (8) SCR 834 = AIR 2007 SC 2786 - referred to.
2.3 Ordinarily, it is only after the charges are framed
that the stage of recording of evidence is reached. A bare
perusal of s.227 Cr.P.C. would show that the legislature
D
has used the terms "record of the case" and the
"documents submitted therewith". It is in this context that
the word 'evidence' as appearing in s.319 Cr.P.C. has to
be read and understood. The material collected at the
_stage of investigation can at best be used for a limited
E
purpose as provided u/s 157 of the Evidence Act i.e. to
corroborate or contradict the statements of the witnesses
recorded before the court. Therefore, for the exercise of
power u/s 319 Cr.P.C., the use of word 'evidence' means
material that has come before the court during an inquiry
F
or trial by it and not otherwise. If from the evidence led
in the trial the court is of the opinion that a person not
accused before it has also committed the offence, it may
summon such person u/s 319 Cr.P.C. [para 69) [52-E-H;
53~
G
2.4 With respect to documentary evidence, it is
sufficient, as can be seen from a bare perusal of s. 3 of
the Evidence Act as well as the decision of the
Constitution Bench*, that a document is required to be
produced and proved according to law to be called
H
12
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A evidence. Whether such evidence is relevant, irrelevant,
admissible or inadmissible, is a matter of trial. [para 70]
[53-B-C]
Ramnarayan Mor & Anr. v. The State of Maharashtra
B 1964 SCR 1034 =AIR 1964 SC 949 - relied on.
2.5 It is, therefore, clear that the word "evidence" in
s.31-9 Cr.P.C. means only such evidence as is made
before the court, in relation to statements, and as
produced before the court, in relation to documents. It is
c only such evidence that can be taken into account by the
Magistrate or the court to decide whether power u/s 319
Cr.P.C. is to be exercised and not on the basis of material ·
collected during investigation. [para 71] [53-C-D]
D
Question No. (ii)
3.1 Once examination-in-chief is conducted, the
statement becomes part of the record. It is evidence as
per law and in the true sense, for at best, it may be
rebuttable. An evidence being rebutted or controverted
E becomes a matter of consideration, relevance and belief, -
which is the stage of judgment by the court. Yet it is
evidence and it is material on the basis whereof the court
can come to a prima facie opinion as to complicity of some
other person who may be connected with the offence.
F Therefore, even on the basis of examination-in-chief, the
court or the. Magistrate can proceed against a person as
long as the court is satisfied that the evidence appearing
against such person is such that it prima facie
necessitates bringing such person to face trial. [para 82G 83] [56-H; 57-A-B, G-H]
3.2 Thus, this Court holds that power u/s 319 Cr.P.C.
can be exercised at the stage of completion of
examination-in-chief and court does not need to wait till
the said evidence is tested on cross-examination for it is
H the satisfaction of the court which can be yathered from
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
13
the reasons recorded by the court, in respect of A
complicity of some other person(s), not facing the trial in
the offence. [para 85) [58-E-F]
Harbhajan Singh & Anr. v. State of Punjab & Anr. 2009
(11) SCR 1015 = (2009) 13 sec 608; and Mohd. Shafi v.
8
Mohd. Rafiq & Anr., 2007 (4) SCR 1023 =AIR 2007 SC 1899
- referred to.
Question No. 4
4.1 Section 319(1) Cr.P.C. empowers the court to c
proceed against other persons who appear to be guilty
.. of offence, though not an accused before the court. The
word "appear" means "clear to the comprehension", or
a phrase near to, if not synonymous with "proved". It
imparts a lesser degree of probability than proof. What 0
is, therefore, necessary for the court is to arrive at a
satisfaction that the evidence adduced on behalf of the
prosecution, if unrebutted, may lead to conviction of the
persons sought to be added as an accused in the case.
- [para 86-87) [58-G-H; 59-C-D]
E
Pyare Lal Bhargava v. The State of Rajasthan 1963
Suppl. SCR 689 =AIR 1963 SC 1094, Ram Singh & Ors. v.
Ram Niwas & Anr. 2009 (8) SCR 878 = (2009) 14 SCC 25;
Vikas v. State of Rajasthan, 2013 (11) SCALE 23; Sarabjit
Singh & Anr. v. State of Punjab & Anr. 2009 (8) SCR 762 =
F
AIR 2009 SC 2792; Brindaban Das & Ors. v. State of West
Bengal, 2009 (1) SCR 87 = AIR 2009 SC 1248; Michael
Machado & Anr. v. Central Bureau of Investigation & Ors.,
2000 (1) SCR 981 =AIR 2000 SC 1127; State of Kamataka
v. L. Munishwamy & Ors. 1977 (3) SCR 113 =AIR 1977 SC
G
1489; All India Bank Officers' Confederation etc. v. Union of
··India & Ors. 1989 (3) SCR 850 =AIR 1989 SC 2045; Stree
Atyachar Virodhi Parishad v. Dilip Nathumal Chordia 1989
(1) SCR 560 = (1989) 1 SCC 715; State of M.P. v. Dr. Krishna
Chandra Saksena, 1996 (7) Suppl. SCR 503 = (1996) 11
H
14
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A SCC 439; and State of M.P. v. Mohan Lal Soni, AIR 2000
SC 2583; Dilawar Babu Kurane v. State of Maharashtra 2002
(1) SCR 75 = AIR 2002 SC 564; Uni9n of India v. Praful/a
Kumar Sama/ & Anr. 1979 (2) SCR 229 =AIR 1979 SC 366;
Suresh v. State of Maharashtra, AIR 2001 SC .1375; Niranjan
B Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya 1990
(3) SCR 633 = AIR 1990 SC 1962 and State of Maharashtra
v. Priya Sharan Maharaj 1997 (2) SCR 933 = AIR 1997 SC
2041; State of Bihar v. Ramesh Singh, 1978 (1) SCR 257 =
AIR 1977 SC 2018; Pa/anisamy Gounder & Anr. v. State,
C represented by Inspector of Police, (2005) 12 SCC 327 -
referred to.
4.2 Though u/s 319(4)(b) Cr.P.C. the accused
subsequently impleaded is to be treated as if he had
been an accused when the court initially took cognizance
D of the offence, the degree of satisfaction that will be
required for summoning a person u/s 319 Cr.P.C. would
be the same as for framing a charge. The difference in the
degree of satisfaction for summoning the original
accused and a subsequent accused is on account of the
E fact that the trial may have already commenced against -
the origina'I accused and it is in the course of such trial
that materials are disclosed against the newly summoned
accused. Fresh summoning of an accused will result in
delay of the trial - therefore, the degree of satisfaction for
F summoning the accused (original and subsequent) has
to be different. [para 110) (69-E-H]
4.3 Power u/s 319 Cr.P.C. is a discretionary and an
extra-ordinary power. It is to be exercised sparingly and
only in those cases where the circumstances of the case
G so warrant. It is not to be exercised because the
Magistrate or the Sessions Judge is of the opinion that
some other person may also be guilty of committing that
offence. Only where strong and cogent evidence occurs .
against a person from the evidence led before the court
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
15
that such power should be exercised and not in a casual
A
and cavalier manner. [para 98] [63-E-F]
4.4 Thus, this Court holds that though only a prima
facie case is to be established from the evidence led
before the court not necessarily tested on the anvil of 8
cross examination, it requires much stronger evidence
than mere probability of his complicity. The test that has
to be applied is one which is more than prima facie case
as exercised at the time of framing of charge, but short
of satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence of C
such satisfaction, the court should refrain from exercising
power u/s 319 Cr.P.C. In s.319 Cr.P.C. the purpose of
providing if 'it appears from the evidence that any person
not being the accused has committed any offence' is clear
from the words "for which such person could be tried
D
together with the accused." The words used are not 'for
which such person could be convicted'. There is,
therefore, no scope for the court acting u/s 319 Cr.P.C.
to form any opinion as to the guilt of the accused. [para
99] [63-G-H; 64-A-B]
E
. Question No. V
5.1 Section 319 Cr.P.C. is an enabling provision, it
empowers the court to proceed against any person who
is not an accused in a case before it. A person whose
name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the
main part of the charge-sheet but in Column 2 and has
F
not been summoned as an accused in exercise of the
powers u/s 193 Cr.P.C. can still be summoned by the G
court, provided the court is satisfied that the conditions
provided in the said statutory provisions stand fulfilled.
1 Further, a person who has been discharged can be
· summoned u/s 319 Cr.P.C. provided from the evidence it
appears that such person can be tried along with the
H
16
SUPREME COURT REPORTS
[2014] 2 S.C.R.
·A accused already facing trial. However, in such a case, the
requirement of ss. 300 and 398 Cr.P.C. has to be complied
with before he can be summoned afresh. [para 103 and
11 O] [65-F-G; 70-8-C]
Anju Chaudhary v. State of U.P. & Anr. 2012 (13) SCR
B 901=(2013)6 SCC 384; Suman v. State of Rajasthan & Anr.,
AIR 2010 SC 518 - referred to.
5.2 There is a great difference with reqard to a person
who has been discharged, he stands on a different
C footing than a person who was never subjected to
investigation or if subjected to, but not charge-sheeted.
Such a person has stood the stage of inquiry before the
court and upon judicial examination of the material
collected during investigation, the court had come to the
D . conclusion that there was not even a prima facie case to
proceed against such person. Generally, the stage of
evidence in trial is merely proving the material collected
during investigation and, therefore, there is not much
change as regards the material existing against the ·
. E person so discharged. Therefore, there must exist
compelling circumstances to exercise such power. If after
careful examination of the evidence, the court is of the
opinion that there does exist evidence to proceed against
the person so discharged, it may take steps but only in
F accordance with s. 398 Cr.P.C. without resorting to the
provision of s. 319 Cr.P.C. directly. [para 104] [65-G-H; 66A-D]
Sohan Lal & Ors. v. State of Rajasthan 1990 (3) SCR 809
= (1990) 4 SCC 580; and Municipal Corporation of Delhi v.
G Ram Kishan Rohtagi & Ors. 1983 (1) SCR 884 = AIR 1983
SC 67 - referred to.
5.3 The expression "any person not being the
accused" occurring in s. 319 Cr.P.C. clearly covers any
H person who is not being tried already by the court and
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
17
the very purpose of enacting such a provision like s.319
A
(1) Cr.P .C. clearly shows that even persons who have
been dropped by the police during investigation but
against whom evidence showing their involvement in the
offence comes before the criminal court, are included in
the said expression. [para 100) (64-D, E-F]
B
Joginder Singh & Anr. v. State of Punjab & Anr., [1979)
2 SCR 306 =AIR 1070 SC 339 - referred to.
5.4 Power u/s 398 Cr.P.C. is in the nature of revisional
power which can be exercised only by the High Court or c
the Sessions Judge, as the case may be. According to
s.300 (5) Cr.P.C., a person discharged u/s 258 Cr.P.C.
shall not be tried again for the same offence except with
the consent of the court by which he was discharged or
of any other court to which the first-mentioned court is 0
subordinate. Further, s. 398 Cr.P.C. provides that the High
Court or the Sessions Judge may direct the Chief Judicial
Magistrate by himself or by any of the Magistrate
subordinate to him to make an inquiry into the case
against any person who has already been discharged.
Both these provisions contemplate an inquiry to be
E
conducted before any person, who has already been
discharged, is asked to again face trial if some evidence
appears against him. Section 319 Cr.P.C. can also be
invoked at the stage of inquiry. Inquiry as contemplated·
by s.300(5) Cr.P.C. and s.398 Cr.P.C. can also be an · F
inquiry u/s 319 Cr.P.C. Accordingly, a person discharged
can also be arraigned again as an accused but only after
an inquiry as contemplated by ss.300(5) and 398 Cr.P.C.
If during or after such inquiry, there appears to be
anevidence against such person, power u/s 319 Cr.P.C.
G
can be exercised. [para 107-108) [66-H; 67-A-E]
Rakesh v. State of Haryana, 2001 (1) Suppl. SCR 1 =
AIR 2001 SC 2521; Dharam Pal & Ors. v. State of Haryana
& Anr. (2004) 13 SCC 9; Hardeep Singh vs. State of Punjab
2008 (15) SCR 735 - cited.
H
18
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
Case Law Reference:
2008 (15) SCR 735
cited
para 2
2001 (1) Suppl. SCR 1
cited
para 2
B
2007 (4) SCR 1023
referred to
para 2
2004 (13) sec 9
referred to
para 3
AIR 201'3 SC
relied en
para 4
c
(1920) ILR 43 Mad 511
referred to
para 21
1967 SCR 423
referred to
Para 24
1983 (2) SCR 537
referred to
Para 26
1996 (2) Suppl. SCR 125
referred to
Para 26
D
2004 (3) SCR 346
referred to
Para 27
1957 SCR 279
referred to
Para 27
1979 (1) SCR 993
referred to
Para 28
E
1980 SCR 380
referred to
Para 29
1996 (3) SCR 785
referred to
Para 30
1996 (9) Suppl. SCR 296
referred to
Para 31
F
1 Ind Cas 228
referred to
Para 33
(1914) I.LR. 38 Mad.-585
disapproved
Para 33
(1936) 38 Bom.L.R. 1189
disapproved
Para 34
(1922) I.LR. 3 Lah. 115
disapproved
Para 34
G
(1924) l.L.R. 6 Lah. 176
disapproved
Para 34
(1934) 35 Cr.L J. 1261
disapproved
Para 34
1989 (1) SCR 570
referred to
Para 37
H
HARDEEP SINGH v. STATE OF PUNJAB' & ORS.
19
1954 SCR 53
referred to
Para 38
A
1965 SCR 328
referred to
Para 41
1966 SCR 543
referred to
Para 41
1992 (1) SCR 1003
referred to
Para 41
B
1996 (9) Suppl. SCR 707
referred to
Para 41
1996 (9) Suppl. SCR 479
referred to
Para 41
.. ,
..
•,
-
1997(2) Suppl. SCR 267
referred to
Para ·41
c
1998 (1) SCR 85
referred to
Para 41
2012 (13) SCR 47
referred to
Para 42
2001 (1) Suppl. SCR 527 · referred to
Para 46
, 1988 (2) Suppl. SCR 1088 referred to
para 57
D
1995 (2) SCR 1061
referred to
para 57
(1990) 3 sec 682
referred to
para 57
2007 (5) SCR 873
referred to
para 57
E
2008 (9) SCR 496
referred to
para 57
2002 (4) Suppl. SCR 416
referred to
para 58
2011 (1) SCR 796
referred to
para 59
F
-2003 (5) Suppl. SCR 634
referred to.
Para 60
1996 SCR 158
referred to
Para 60
AIR 2004 SC 2943
referred to
Para 60
1975 (0) Suppl. SCR 84
referred to
Para 60
G
1976 (2) SCR 11
referred to
Para 60
1985 (2) Suppl. SCR 898
referred to
Para 60
H
20
SUPREME COURT REPORTS
[2014) 2 S.C.R.
A
2006 (3) SCR 1018
referred to
para 61
2006 (3) SCR 1018
referred to
para 62
1964 SCR 1034
relied on
para 62
B
2007 (10) SCR 385
referred to
para 67
2008 (17) SCR 1059
referred to
para 67
2007 (8) SCR 834
referred to
para 68
c
2009 (11) SCR 1015
referred to
para 81
1963 Suppl. SCR 689
referred to
para 87
2009 (8). SCR 878
referred to
para 87
2013 (11) SCALE 23
referred to
para 88
D
2009 (8) SCR 762
referred to
para 91
1996 (7) Suppl. SCR 503
referred to
para 93
AIR 2000 SC 2583
referred to
para 93
E
2002 (1) SCR 75
referred to
para 94
1979 (2) SCR 229
referred to
para 94
AIR 2001 SC 1375
referred to
Para 95
F
1990 (3) SCR 633
referred to
Para 95
'
1997 (2) SCR 933
referred to
Para 95
1978 (1) SCR 257
referred to
para 96
(2005) 12 sec 327
referred to
para 97
G
1979 (2) SCR 306
referred to
para 100
2012 (13) SCR 901
referred to
para 101
AIR 2010 SC 518
referred to
para 102
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
21
1990 (3) SCR 809
referred to
Para 105
1983 (1) SCR 884
referred to
para 106
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1750 of 2008.
A
B
From the Judgment and Order dated 23.10.2006 of the
High Court of Punjab and Haryana at Chandigarh in Criminal
Revision No. 773 of 2006.
WITH
Crl. A. No. 1751 of 2008 & SLP (Crl.) No. 9184 of 2008.
C
7209 of 2010, 5724, 5975 of 2009, 9040 of 2010, 533-1,
9157 of 2009 and 4503-4504 of 2012.
Sidharth Luthra, ASG, Ranjit Kumar, Dr. J.N. Dubey, P.S.
Narasimha, S.R. Singh, Rajiv Dhavan, Huzefa Ahmadi, Shekhar
D
Naphade, Jitendera, Mohan Sharma, Ratnakar Das, Devender
Hooda, Sr. AAG, V. Madhukar, Deep Karan Dalal, Dr. Manish
Singhvi, AA~. Vijay Kr. Jain, Vibhakar Mishra, Ajay Garg, Amit
Kishor Sinha, SunU Kumar Verma, Abhisth Kumar, Kamaldeep
Gulati, Aniruddha p:·~ee, Charudatta Mahindrakar, Rucha
E
A. Mayee, Pratibha J~i~, Kaushal Yadav, Anurag Dubey,
Meenesh Dubey, D.P. Pande,·Rajesh Pandey, Anu Sawhney,
Upasana D. Tiwari, S.R. Setia, Anshuman Ashok, Allanki
Ramesh, C.S.N. Mohan Rao, Rajesh Kumar, Shilpi Gupta, G.
Madhvi, K.V. Mohan, Ankur Yadav, Ujjabal Pandey, Sushant
F
Kumar Yadav, Asha Gopalan Nair, Manish Mohan, Aditya Kr.
Choudhary, Aditya Pratap Singh, Parveen Kumar, Anita
Mohan, Umang Shankra, Shahsi Pathak, Sanjai Kumar Pathak,
R.K. Gupta, S.K. Gupta, M.K. Singh. Anand Kumar $ingh,
Shekhar Kumar, Ejaz Maqbool, 8.M. Mangukiya, V.H. Kanara,
G
Mrigank Prabhakar, Tanima, Kishore, Rohan Sharma, Satinder
S. Gulati, Dinesh Sharma, Paritosh Anil, Anvita Cowstiish,
Kuldip Singh, Kunwar C.M. Khan, Aftab Ali Khan. Hemantika
Wahi, Pinky Behera, Shubangi Tuli, Meenkshi Arora, Jetendra
SiiJgh, Priyanka Singh, S.K. Sabharwal, C.D. Singh, Supriya
H
22
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A Juneja, Sunny Chaudhary, Abhimanyu Singh, Gurmohan Singh
Bedi, Sakshi, Anshuman Shrivastava, Sameer Singh, Nitin
Singh, Pahlad Singh Sharma, Kamal Mohan Gupta, Ramesh
Kumar, Harkesh, Naresh Bakshi, Dr. Sukhdev Sharma, V.K.
Vasdev, P.S. Tripathi, R.C. Prakash, Filza Moonis, Anshuman
B Ashok, Dr. Kailash Chand, Abhisth Kumar, Gaurav, Vikrant
Yadav, Adarsh Upadhyay, Anis Ahmed Khan, Shoaib Ahmad
Khan, Amit Lubhaya, Ram Naresh Yadav, Pragati Neekhra for
the appearing parties.
c
The Judgment of the Court was delivered by
DR. B.S .. CHAUHAN, J. 1. This reference before us
arises out of a variety of views having been expressed by this
Court and several High Courts of the country on the scope and
D extent of the powers of the courts under the criminal justice _
system to arraign any person as an accused during the course
of inquiry or trial as contemplated under Section 319 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as
the ·cr.P.C.').
E
2. The initial reference was made by a two-Judge Bench
vide order dated 7 .11.2008 in the leading case of Hardeep
Singh (Crl. Appeal No. 1750 of 2008) where noticing the
conflict between the judgments in the case of Rakesh v. State .
of Haryana, AIR 2001 SC 2521; and a two-Judge Bench
F decision in the case of Mohd. Shafi v. Mohd. Rafiq & Anr., AIR
2007 SC 1899, a doubt was expressed about the correctness
of the view in the case of Mohd. Shafi (Supra). The doubts as
categorised in paragraphs 75 and 78 of the reference order
led to the framing of two questions by the said Bench which
G are reproduced hereunder:
H
"(1) When the power under sub-section (1) of Section 319
of the Code of addition of accused can be exercised by a
Court? Whether application under Section 319 is not
maintainable unless the cross-examination of the witness
HARDEEP SINGH v. STATE OF PUNJAB & ORS.
23
[DR. B.S. CHAUHAN, J.]
is complete?
(2) What is the test and what are the guidelines of
exercising power under sub-section (1) of Section 319 of
the Code? Whether such power can be exercised only if
A
the Court is satisfied that the accused summoned in all
B
likelihood would be convicted?
3. The reference was desired to be resolved by a threeJudge Bench whereafter the same came up for consideration
and vide order dated 8.12.2011, the Court opined that in view
of the reference made in the case of Dharam Pal & Ors. v.
C
State of Haryana & Anr., (2004) 13 SCC 9, the issues involved
being· identical in nature, the sarne should be resolved by a
· Constitution Bench consisting of at least five Judges. The
Bench felt that since a three-Judge Bench has already referred
the matter of Dharam Pal (Supra) to a Constitution Bench, then
D
in that event it would be appropriate that such overlapping
issues should also be resolved by a Bench of similar strength.
4. Reference made in the case of Dharam Pal (Supra)
• came to be answered in relation to the power of a Court of
E
Sessions to invoke Section 319 Cr.P.C. at the stage of
committal of the case to a Court of Sessions. The said
reference was answered by the Constitution Bench in the case
of Dharam Pal & Or5. v. State of Haryana & Anr., AIR 2013
SC 3018 [hereinafter called 'Dharam Pal (CB)'], wherein it was
held that a Court of Sessions can with the aid of Section 193
Cr.P.C. proceed to array any other person and summon him
for being tried even if the provisions of Section 319 Cr.P.C.
could not be pressed in service at the stage of committal.
F
Thus, after the reference was made by a three-Judge
G
Bench in the present case, the powers so far as the Court of
Sessions is concerned, to invoke Section 319 Cr.P.C.