# JOGINDER SINGH & ANR v. STATE OF PUNJAB & ANR

- **Citation:** [1979] 2 S.C.R. 306
- **Court:** Supreme Court of India
- **Decided:** 1978-11-16
- **Case number:** Criminal Appeal No. 501 of 1977
- **Bench:** V. R. Krishna Iyer, V. D. Tulzapurkar, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joginder-singh-anr-v-state-of-punjab-anr-7514
- **Pages:** 9

## Headnote

Code of Criminal Procedure 1973 (Act 2 of 1974), s. 319-Scope of-Sessions Court l-vhether has power to add any person as an accused in the absence
of any committal order-Sections 193 and 209 whether bar to the Court of
Sess1"ons taking cognizance of offence as a court of original jurisdiction.
C
A criminal complaint was registered against five persons, amongst whom the
D
E
F
H
two appellants were included. The r:olice having found that the two appellants
\Vere innocent, charge-sheeted the remaining three persons.
They were committed to trial.
At the trial after evidence showing the appellants' involvement in the crime
was recorded the prosecution moved an application that they be tried, along
with the three accused. The Sessions Judge directed the appellants to stand trial,
together with the other accused.
Their revision application to the High Co11rt
was dismissed.
In their appeal to this Court it \vas contended that, ( 1) sections 193 and
209 Cr.P.C. were a bar to the Court of Sessions taking cognizance of any
offence 26 a court of original jurisdk:tion and (2) s. 319 was inapplicable to.
the facts of this case because that section in so far as it is applicable to a
Sessions Court would be subject to or subordinate to s. 193 and the phrase "any
person not being the accused" occurring in the section excludes from it'l operation an accused who had been released by the police.
Dismissing the appeal,
HELD: (1) A plain reading of s. 319(1) clearly shows that it applies to
all the courts including a Sessions C'ourt and as such a Sessions Court will
have the power to add any pers0'3. not being the accused before it but against
whom there appears during trial sufficient evidence indicating his inYolvement
in the offence, as an accused and direct him to be tried alongwith the other
"ccused. [31 JE·F]
(2) (a) Both under s. 193 and s. 209 the commitment is of 'the case' and
not of 'the accused' whereas under the equivalent provision of the old Code
viz., s. 193 ( 1) and s. 207 A it was 'the accused' who W26 committed and not
·~he cas~·-
[312D]
(b) Although there cannot be a committal of the case without there being
an accused person before the court, this only means that before a case in respect
of an offence is committed there must be tome accused suspected to b'' involved
in the crime before the Court but once the ca6e in respect of the offence qua
those accused who were before the Court is committed then the cognizance of
the offence can be said to have been taken properly by the Sessions Court and
tlle bar of s. 193 'would be out of the way. [312E]
•
. ,
'r
•
•
•
'. •
I
-~ \
JOGil'DER SINGH v. PUNJAB (Tulziipurkar, J.)
3 07
(c) The summoning of additional persons who appear to be involved in the
crime from the evidence led during the trial and directing them to stand their
trial alongwith those who had aheady been committed must be regarded as
in<:idental to such cognizance and a part of the normal process that follows it;
otherwise the C'Onferal of the power under s. 319 ( 1) upon the Sessions Court
would be rendt~red nugatory. [312F]
(d) Section 319 (4) (b) which enacts a deeming provision provides
that
where the Court proceeds against any person under subMsection ( 1), the case
ma.y proceed as if such person had been an accused person when the Court tcok
cognizance of the offence upon which the inquiry or trial was commenced; in
other words, such person must be deemed to be an accused at the time of
commitment because it is at that point of time the Sessions Court in law takes
cognizance of the offence.
[312G]
A
B
(3) Under s. 193 read with s. 209 of the Code when a case is committed
C
to the Court of Sessions in respect of an offence the Court of Sessions takes
cognizance of the offence and not of the 2.ccused and once the Session Court
is properly seized of the case as a result of the committal order against some
accused the power under s. 31_9(1) can come into play and such Court can add
any person, not an accused before it,

## Text

A
B
306
JOGINDER SINGH & ANR.
v.
STATE OF PUNJAB & ANR.
November 16, 1978
[V. R. KRISHNA IYER, V. D. TULZAPURKAR AND R. S. PATHAK, JJ.j
Code of Criminal Procedure 1973 (Act 2 of 1974), s. 319-Scope of-Sessions Court l-vhether has power to add any person as an accused in the absence
of any committal order-Sections 193 and 209 whether bar to the Court of
Sess1"ons taking cognizance of offence as a court of original jurisdiction.
C
A criminal complaint was registered against five persons, amongst whom the
D
E
F
H
two appellants were included. The r:olice having found that the two appellants
\Vere innocent, charge-sheeted the remaining three persons.
They were committed to trial.
At the trial after evidence showing the appellants' involvement in the crime
was recorded the prosecution moved an application that they be tried, along
with the three accused. The Sessions Judge directed the appellants to stand trial,
together with the other accused.
Their revision application to the High Co11rt
was dismissed.
In their appeal to this Court it \vas contended that, ( 1) sections 193 and
209 Cr.P.C. were a bar to the Court of Sessions taking cognizance of any
offence 26 a court of original jurisdk:tion and (2) s. 319 was inapplicable to.
the facts of this case because that section in so far as it is applicable to a
Sessions Court would be subject to or subordinate to s. 193 and the phrase "any
person not being the accused" occurring in the section excludes from it'l operation an accused who had been released by the police.
Dismissing the appeal,
HELD: (1) A plain reading of s. 319(1) clearly shows that it applies to
all the courts including a Sessions C'ourt and as such a Sessions Court will
have the power to add any pers0'3. not being the accused before it but against
whom there appears during trial sufficient evidence indicating his inYolvement
in the offence, as an accused and direct him to be tried alongwith the other
"ccused. [31 JE·F]
(2) (a) Both under s. 193 and s. 209 the commitment is of 'the case' and
not of 'the accused' whereas under the equivalent provision of the old Code
viz., s. 193 ( 1) and s. 207 A it was 'the accused' who W26 committed and not
·~he cas~·-
[312D]
(b) Although there cannot be a committal of the case without there being
an accused person before the court, this only means that before a case in respect
of an offence is committed there must be tome accused suspected to b'' involved
in the crime before the Court but once the ca6e in respect of the offence qua
those accused who were before the Court is committed then the cognizance of
the offence can be said to have been taken properly by the Sessions Court and
tlle bar of s. 193 'would be out of the way. [312E]
•
. ,
'r
•
•
•
'. •
I
-~ \
JOGil'DER SINGH v. PUNJAB (Tulziipurkar, J.)
3 07
(c) The summoning of additional persons who appear to be involved in the
crime from the evidence led during the trial and directing them to stand their
trial alongwith those who had aheady been committed must be regarded as
in<:idental to such cognizance and a part of the normal process that follows it;
otherwise the C'Onferal of the power under s. 319 ( 1) upon the Sessions Court
would be rendt~red nugatory. [312F]
(d) Section 319 (4) (b) which enacts a deeming provision provides
that
where the Court proceeds against any person under subMsection ( 1), the case
ma.y proceed as if such person had been an accused person when the Court tcok
cognizance of the offence upon which the inquiry or trial was commenced; in
other words, such person must be deemed to be an accused at the time of
commitment because it is at that point of time the Sessions Court in law takes
cognizance of the offence.
[312G]
A
B
(3) Under s. 193 read with s. 209 of the Code when a case is committed
C
to the Court of Sessions in respect of an offence the Court of Sessions takes
cognizance of the offence and not of the 2.ccused and once the Session Court
is properly seized of the case as a result of the committal order against some
accused the power under s. 31_9(1) can come into play and such Court can add
any person, not an accused before it, as an 2ccused and direct him to be tried
alongwith the other accused for the offence which such added accused appears
to have committed, from the evidence recorded at the trial.
Looking at the
D
provisicia from this angle there \vould be no question of reading s. 319(1)
subject or subordinate to s. 193. [313H-314B]
(4) The expression "any person not being the rc.::used", clearly covers any
person who is not being tried already by the Court. The very purpose of enactM
ing such a provision like s. 319(1) clearly shows that even persons, who have
been dropped by the police during investigation but against whom evidence
E
showing their involvement in the offence comes before the criminal court are
inclL!ded in the said expression.
[314C-D]
Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 referred to.
I'utananchala China Lingaiah v. The State and Anr. 1977 Crl.I ... J. 415 over ..
ruled.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 501 of
1977 .
Appeal by special leave from the Judgment and Order dated 24th
November, 1977 of the Punjab and Haryana High Court in Criminal
Revision No. 909 of 1977.
R. P. Sharma for the Appellant>.
Hardev Singh for the Respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J.-This appeal by special leave is directed against
the order ot the Punjab and Haryana High Court in Criminal Revision
F
G
No. 909 of 1977, whe.reby the High Court confirmed the order passed
H
by the Additional Sessions Judge, Ludhiana on October 19, 1977 directing that the attendance of the two appellants (Joginder Singh and
308
SUPREME COURT REPORTS ,
(1979] 2 s.c.R.
A.
Ram Singh) be procured and th:!y be ordered to stand trial together
with three accused who had been committed to his Court to stand
their trial for offences under ss. 452, 308 and 323 each read with
34 I.P.C.
B
c
D
E
F
G
H
The facts giving rise to the appeal may be stated thus : At the
instance of one Mohinder Singh a criminal case was registered at
Police Station Dakha against Joginder Singh, Ram Singh (the two
appellants), Bhan Singh, Darshan Singh and Ranjit Singh on the allegation that each one armed with a "Toki" had entered his house on
April 30, 1977 at 10.00 a.m. and had caused a number ,)f rnjuries to
Ajaib Singh and Bir Singh who were present in the hou&" with the respective weapons.
It was further alleged by Mohinder
Singh that
Darshan Singh op=ned the attack with "Toki" blow from reverse side
on Ajaib Singh's head whereas Ram Singh had dealt him blows with
the butt of his gun and when Bir Singh tried to rescue Ajaib Singh,
Joginder Singh and Ranjit Singh gave blows on his head and that on
medical examination Aj aib Singh was found to have four injuries by
blunt weapons and Bir Singh was found to have suffered one injury
with a blunt weapon. During the investigation the police found J oginder Singh and Ram Singh (the appellants) to be innocent and, therefore a charge-sheet was submitted by the police only against the remaining three accused Bhan Singh, Darshan Singh and Ranjit Singh.
The learned Magistrate who held a preliminary inquiry committed the
three accused Bhan Singh, Darshan Singh and Ranjit Singh to the
Sessions Court and the learned Additional Sessions Judge, Ludhiana,
framed charges against the three accused for offences under ss. 452/
308/323 read with s. 34 I.P.C. but at the trial evidence of Mohinder
Singh and Ajaib Singh was recorded during the course of which both
of them implicated Joginder Singh and Ram Singh in the incident.
Thereupon at the instance of Mohinder Singh, the Pnblic Prosecutor
moved an application before the learned Additional Sessions Judge for
summoning and trying Joginder Singh and Ram Singh along with the
three accused, who were already facing their trial. The application was
opposed by the counsel for the accused principally on the ground that
the Sessions Judge had no jurisdiction or power to summon the two
appellants and direct them to be made accused to stand their trial along
with three accused because they had neither been charge-sheeted nor
committed and the Sessions Court had no jurisdiction or power directly
to take cognizance against them in respect of any offences said to have
been committed by them.
The learned Additional Sessions Judge
negatived the said contention and presumably exercising his powers
under s. 319 of the Code of Criminal Procedure', 1973 passed an order
on October 19, 1977 directing that the attendance of the two appellants
•
•
, '
'I:
•
•
•
l
.TOGJNDER SINGH v. PJ!NJAB (Tu/zapurkar, J.)
3 09
be procured and further directing that they should stand their trial
together with the three accused.
Feeling aggrieved by this order the
appellants filed a Criminal Revision Application No. 909/1977 to the
High Court but the High Court dismissed the Revisional Application
on November 24, 1977.
The appellants have come up in appeal to
this Court by special leave.
Counsel for the appellant raised two contentions in support of the
appeal. In the first place relying upon sections 193 and 209 of the
Code of Criminal Procedure counsel contended that there was a bar
to the Court of Sessions taJcing congnizance of any offence as a Court
A
B
of original jurisdiction unless the appellants were committed to it by a
C
Magistrate under the Code and it was pointed out that admittedly in
the instant case though the F.I.R. had involved the two appellants in
the alleged incident, on investigation the police had found no material
against them with the result the police had submitted a charge-sheet
only against the three accused and not the appellants and even the Committal Order passed by the Magistrate was only in respect of the three
D
accused and, therefore, it was not open to the learned Additional
Sessions Judge, Ludhiana, to taJce the impugned action against the
appellants. Secondly, counsel contended that the only provision in the
Criminal Procedure Code which empowered the Court to try anybody
not prosecuted by the police, was to be found in s. 319 but that provision
was inapplicable; to the facts of the present case for two reasons, first,
E
that s. 319 in so far as it is applicable to Sessions Court would be subject to or subordinate to s. 193 and second, the phrase "any person
not being the accused" occurring in the section excludes from its operation an accused who had been released by the police under s. 169 of
the Code, and had been shown in column No. 2 of the charge-sheet.
Reliance was placed by the counsel npon a decision of the Andbra
F
Pradesh High Court in Patananchala China Lingaiali v. The State and
Another.(') On the other band, counsel for the respondents contended
that there has been a change in the phraseology in ss. 193 and 209 of
the Code of Criminal Procedure, 1973 as compared to the equivalent
provisions contained in the old Code with the result it was not the
accused but the case which got committed to the Court of Sessions and
G
once the Court of Sessions had upon such commitment seisin of the
case it was open to it to exercise the power under s. 319. It was further
urged that there was no warrant to read s. 319 subject or subordinate
to s. 193 ,. "' ; hat it covered cases of suspects like the two appellants
and, therefc»·c. the High Court was right in upholding the order of the
learned Add;!ional Sessions Judge, Ludhiana.
H
(l) 1977 Cr\ L. J. 415
A
B
c
D
E
F
G
8
310
SUPREME COURT REPORTS
[1979] 2 S.C.R.
The r~al question centres around the scope and ambit of s. 319 of
the Code of Criminal Procedure 1973, under which a power has been
cooferred upon a criminal Court to add a person, not being the accused
before it and against whom during the trial evidence comes forth showing his involvement in the offence, as an accused and try him along
with those that are being tried and the question is whether a Sessions
Court can add such a person as an accused in the absence of any committal order having been passed against him ? Sub-ss. ( 1) and ( 4)
of s. 319 are material in this behalf and the said provisions run thus :
"319. Power to proceed against other persons appearing to be
guiUy of offence.
(1) where, in the course of any inquiry into, or trial 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.
( 4) Where the Court proceeds against any person under
sub-section ( 1) , then-
( a) the proceedings in respect oE such person shall be
commenced afresh, and the witnesses re-heard;
(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."
Under the 1898 Code the eqnivalent provision was to be found in
s. 351 (1) under which it was provided that any person attending a
criminal Court, although not under arrest or upon a summons, may
be detailed by such Court for the purpose of inquiry into or trial of any
offence of which such Court can take cognizance and which, from the
evidence, may appear to have been committed, and may be proceeded
against as though he had been arrested or summoned; sub-s. (2) provided that in such a situation the evidence shall be re-heard in the
presence of the newly added accused. With regard to this old provision,
the Law Commission in its 41st Report (vide para 24.80) observed
t.':at the power conferred upon a criminal Court thereunder could be
exercised only if such person happened to be '1ttending the Court and
he could then be detained and proceeded against, but there was no
express provisiol\ in section 351 for summoning such a person if he
was not present in Court, and, therefore, a fairly comprehensive provision was recommended which now forms the subject-matter of the
•
•
,..,__
I
T
' .
y
•
•
•
\
• •
-.<
.TOGINDER SINGH v. PUNJAB (Tulzapurkar. J.)
311
present section 319(1). The Law Commission further observed in its
said Report (vide para 24.81) tliat the old secoou 351 assumed that
the Magistrate proceeding under it had the power of taking cognizance
of the new case but did not say in what manner cognizance was taken
by the Magistrate and the question was whether against the newly added
accnsed, cognizance will be supposed to have been taken on the Magistrate's own information under section 190 ( 1) ( c) or only in the manner
in which cognizance was first taken of the offence against the other
accused and the question was important because the methods of inquiry
and trial in the two cases differed; the Law Commission felt that the
main purpose of this particular provision was that the whole case against
all known suspects should be proceeded with expeditiously and convenience require& that cognizance against the newly added accused
should be taken in the same manner as against the other accnsed and
the Law Commission, therefore. proposed that a new provision should
be incorporated providing that there will be no difference in the mode
of taking cognizance if a new person was added as an accused during
A
B
c
the proceedings and that is how clause (b) of sub-s. (4) of s. 319 caVIe
to be enacted as set out above which incorporates a deeming provision.
The above recommendation of the Law Commission in its 41 st Report
clearly brings out the true scope and ambit of the power that was intendD
ed to be conferred upon a criminal Court under the present section
319(1).
A plain reading of section 319 ( 1), which occurs in Chapter XXIV E
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, but the question
is whether it has power to do so withouMhere being a committal order
against such person ? In this context the provisions of ss. 193 and 209
of the present Code ·vis-a-vis the equivalent provisions under the old
Code will have to be considered. Section 193 ands. 209 of the pres-ent
Code run as follows :
"193. Cognizance of offences by Courts of Session.-Except as otherwise expressly provided by this Cod~ or by any
other law for the time being in force, no Court of Session shall
take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate
F
G
under this Code."
H
"209. Commitment of case to Court of Session when offence is triable exclusively by it.-When in a case instituted on
A.
B
c
D
E
F
G
312
SUPREME COURT REPORTS
(1979] 2 S.C.R.
a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the
offence is triable exclusively by the Court of Session, he
shall-
( a) commit the case to the Court of Session :
(b) subject to the provisions of this Code relating to bail,
remand the accused to custody during, and until the
conclusion of, the trial;
( c) send to that Court the record of the case and the documents and articles, if any, which are to be produced
in evidence;
(d) notify the Public Prosecutor of the commitment of the
case to the Court of Session."
It will be noticed that both under s. 193 ands. 209 the commitment is
of 'the case' and not of 'the accused' whereas under the equivalent
provision o[ the old Code viz. s. 193 ( 1) and s. 307 A it was 'the
accused' who was committed and not 'the case'. It is true that there
cannot be a committal of the case without there being an accused person before the Court, but this only means that before a case in respect
of an offence is committed there must be some accused suspected to be
involved in the crime before the Court but once the case in respect of
the offence qua those accused who are before the Court is committed
then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of s. 193 would be out of the
way and summoning of additional persons who appear to be involved
in the crime from the evidence led during the trial and directing them
to stand their trial along with those who had already been committed
must be regarded as incidental to such cognizance and a part of the
normal process that follows it; otherwise the conferal of the power under
s. 319(1) upon the Sessions Court would be rendered nugatory. Further section 319 ( 4) (b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added acc:i!>-
ed. Under that provision it is provided that where the Court proceeds
against any person under sub--s. ( 1) then 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;
in other words, such person must be deemed to be an accused at the
time of commitment because it is at that point of time the ~-essions
Coun in law takes cognizance of the offence.
H
In the above context it will be useful to refer to a decision of this
Court in Raghubans Dubey v. State of Bihar(') where this Court has
(I) AIR 1%7 SC 1167.
' .
"
•
...
..
ti
;
"
'
•
•·
•
"";
,>-
JOGINDER SINGH \i. PUNJAB (Tulzapurkar, J.)
313
explained what is meant by taking cognizance of an offence. The appellant was one of the 15 persons mentioned as the assailants in the First
Information Report. Dnring the investigation the police accepted the
appellant's plea of alibi and filed a charge-sheet against the others for
offences under ss. 302, 201 and 149 l.P.C., before the Sub-Divisional
Magistrate. The Sub-Divisional Magistrate recorded that the appellant
was discharged and transferred the case for inquiry to another Magistrate, who, after examining two witnesses, ordered the issue of a nonbailable warrant against the appellant, for proceeding against him along
with the other accused under s. 207A of the old Code. The order was
confirmed by the Sessions Court and the High Court and in further
appeal to this Court it was held first, that there could be no discharge
of the appellant as he was not included in the charge-sheet submitted
before the Magistrate by the police and, second, that the appellant could
be proceeded against along with other accused under s. 207A Cr. P.C.
and this Court confirmed the order of the Magistrate.
One of the
contentions urged before this Court was that the Magistrate had taken
cognizance of the offence so far as the other accused were concerned
but not as regards the appellant and with regard to this contention
(Sikri J. as he then was) obserevd as follows :-
"In our opinion, once cognizance has been taken by the
Magistrate, he takes cognizance of an offence and not the
offenders; once he takes cognizance of an offence it is his
duty to find out who the offenders reaily are and once he
comes to the conclusion that apart from the persons sent up
by the police some other persons are involved, it is his duty
to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking
cognizance of an offence. As pointed out by this Court in
Pravin Chandra Mody v. State of Andhra Pradesh(') the
term "complaint" would include allegations made
against
persons unknown. If a Magistrate takes cognizance under s.
190 ( !) (a) on the basis of a complaint of facts he would take
cognizance and a proceeding would be instituted even though
persons who had committed the offence were not known at
that time.
The same position prevails, in our view, under
s. 190 ( 1 )(b) ."
lt will thus appear clear that under section 193 read whh s. 209
of the Code when a case is committed to the Court of Sessions in respect
of an offence the Court of Sessions takes cognizance of the offence and
(l) [1965] l S. C.R. 269.
'--.;;
2-978SCI/78
8
c
E
F
G
ii
A
B
314
SUPREME COURT REPORTS
[1979] 2 s.c.R.
not• of the accused and once the Sessions Court is properly seized· of
the case as a result of the committal order against some accused the
power under s. 319(1) can come into play and such Court can add any
person, not an accused before it, as an accused and direct him to be
tried along with the other accused for the offence which such added
accused appears to have committed from the evidence recorded at the
trial.
Looking at the provision from this angle there would be no
question of readings. 319(1) subject or subordinate to s. 193.
As regards the contention that the phrase "any person not being
the accused" occuring ins. 319 excludes from its operation an accused
who has been released by the police under s. 169 of the Code and bas
C
been shown in column No. 2 of the Charge--sheet, the 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 s. 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
D
comes before the Criminal Court are included in the said expression.
The decision of Andhra Pradesh High Court in Patananchala China
Lingdjah v. The State and Another (supra) relied upon by the appellants has erroneously regarded the change in phraseology made in ss.
193 and 209 of the current Code as inconsequential and has further
E
failed to note the impact of the deeming provision introduced for the
first time in cl. (b) of s. 319 ( 4). That decision must be he!d to be
F
erroneous.
•
"#
In our view, the High Court was right in confirming the order passed
by the learned Additional Sessions Judge against the two appellants and
the appeal is, therefore, dismissed.
N. V.K.
Appeal dismissed.