# ~ v. STATE OF PUNJAB & ORS - **Citation:** [2008] 15 S.C.R. 735 - **Court:** Supreme Court of India - **Decided:** 2008-11-07 - **Case number:** Criminal Appeal No. 1750 of 2008 - **Bench:** C.K. Thakker, D.K. Jain - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-state-of-punjab-ors-23979 - **Pages:** 31 ## Headnote Code of Criminal Procedure, 1973: s. 319 - Power under - Scope of - Application under, c whether maintainable barely on the basis of examination-inchief of the witness or aftar cross-examination of the witness ,, - Conflicting decisions on the point by coordinate Benches of Supreme Court - Another judgment of Supreme Court in the opinion of the Court substantially curtailing discretionary 'D poweruls. 319 (1)-Hence, the questions as to (i) when should the power uls. 319 be exercised and (ii) what are the test and guidelines for exercising the power uls. 319 referred to larger Bench of Supreme Court for consideration. s. 319 - Applications under - On the basis of evidence ~E of prosecution witness - Rejection of, by courts below - On appeal, held: On facts, the person whose name appeared in FIR and was arrested from the scene of occurrence, ought to have been included in the charge-sheet- The order rejecting ~ application in respect of the other persons was not unlawful F as nothing was found against them. s. 173 - Report under - Held: Should contain only the information - Investigating Officer is not expected to record findings of fact nor to give clean chit by exercising power of a cs Court or judicial Authority. Instant appeals are emanating as a result of cross ""' FIRs for the same incident. Appellants in Criminal Appeal No. 1750 of 2008 filed FIR for commission of offences ul .. 735 H 736 SUPREME COURT REPORTS [2008] 15 S.C.R. A ss. 307, 336 and 427 r/w ss. 1208, 148 and 149 IPC and u/ss. 25, 27, 54 and 59 of Arms Act, 1959. Respondent )... Nos. 2 and 3 (the accused) made applications to the police that they were falsely implicated and hence sought ~- inquiry into the matter. lnqu.iry was made by the police B and in the report it was stated that respondent Nos. 2 and 3 were falsely implicated. As a result, both the accused were discharged. During trial, PW 2 in his examinationin-chief stated that both the accused were present at the time of inCident with weapons,. The name of respondent c No .. 2 was ·also mentioned in FIR. On the basis of the evidence of PW 2, prosecution filed application uts·. 319 · Cr.P.C. to include respondent Nos. 2 and 3 as accused and to summon them for trial. Trial court rejected the iapplication. The order was confirmed by High Court.. ·.o Hence the present appeal. Appellants in Criminal ·Appeal No.1751 of 2008 had lodged FIR u/ss .. 307, 326. 336, 447, 427 r/w ss. 148 and 149 IPC and u/ss. 25, 27, 54 and 49 of Arms Act. Name of respondent No. 2 was not included in charge-sheet. PW.5 E Stated during trial that respondent No. 2 was one of the members of unlawful assembly. In view of that, prosecution filed application u/s. 319 Cr.P.C. to include his name as accused and to summon him. The application was rejected by trial court and in Revision by High Court. F Hence the present appeal. ~ Referring two questions for consideration to three ~· .~ Judges Bench, the Court HELD: 1.1 ·Sometimes. while hearing a case against G one or more accused, it appears to a court from the evidence that some person other than the accused before itis also involved in that ven/ offence. Section 319 Cr.P.C. ~ empowers a court to proceed against any person if it ). ap·pears from the evidence that such person has also H •- ' HARDEEP SINGH v. STATE OF PUNJAB & ORS. 737 . committed an offence for which he can be tried together A with other accused. [Paras 26 and 27] [747-H; 748-A, H; 749-A] 1.2. The primary object underlying Section 319 is that the whole case against all the accused should be tried 8 and disposed of not only expeditiously but also simultaneously. Justice. and convenience both require that cognizance against thei newly added accused should be taken in the same caSE! and in the same manner as- • against the original accused. The pQwer must be conceded as incidental and ancillary to the main power · C to take cognizance as part of normal process in the administration of criminal justice. [Para 28] [749-B-C] J ## Text _Characters 0–39,988 of 58,849. This is a partial read: ask again with offset=39988 for what follows._ (2008] 15 S.C.R. 735 HARDEEP SINGH A ~ v. STATE OF PUNJAB & ORS. l (Criminal Appeal No. 1750 of 2008) NOVEMBER 7, 2008 .8 [C.K. THAKKER AND D.K. JAIN, JJ.] Code of Criminal Procedure, 1973: s. 319 - Power under - Scope of - Application under, c whether maintainable barely on the basis of examination-inchief of the witness or aftar cross-examination of the witness ,, - Conflicting decisions on the point by coordinate Benches of Supreme Court - Another judgment of Supreme Court in the opinion of the Court substantially curtailing discretionary 'D poweruls. 319 (1)-Hence, the questions as to (i) when should the power uls. 319 be exercised and (ii) what are the test and guidelines for exercising the power uls. 319 referred to larger Bench of Supreme Court for consideration. s. 319 - Applications under - On the basis of evidence ~E of prosecution witness - Rejection of, by courts below - On appeal, held: On facts, the person whose name appeared in FIR and was arrested from the scene of occurrence, ought to have been included in the charge-sheet- The order rejecting ~ application in respect of the other persons was not unlawful F as nothing was found against them. s. 173 - Report under - Held: Should contain only the information - Investigating Officer is not expected to record findings of fact nor to give clean chit by exercising power of a cs Court or judicial Authority. Instant appeals are emanating as a result of cross ""' FIRs for the same incident. Appellants in Criminal Appeal No. 1750 of 2008 filed FIR for commission of offences ul .. 735 H 736 SUPREME COURT REPORTS [2008] 15 S.C.R. A ss. 307, 336 and 427 r/w ss. 1208, 148 and 149 IPC and u/ss. 25, 27, 54 and 59 of Arms Act, 1959. Respondent )... Nos. 2 and 3 (the accused) made applications to the police that they were falsely implicated and hence sought ~- inquiry into the matter. lnqu.iry was made by the police B and in the report it was stated that respondent Nos. 2 and 3 were falsely implicated. As a result, both the accused were discharged. During trial, PW 2 in his examinationin-chief stated that both the accused were present at the time of inCident with weapons,. The name of respondent c No .. 2 was ·also mentioned in FIR. On the basis of the evidence of PW 2, prosecution filed application uts·. 319 · Cr.P.C. to include respondent Nos. 2 and 3 as accused and to summon them for trial. Trial court rejected the iapplication. The order was confirmed by High Court.. ·.o Hence the present appeal. Appellants in Criminal ·Appeal No.1751 of 2008 had lodged FIR u/ss .. 307, 326. 336, 447, 427 r/w ss. 148 and 149 IPC and u/ss. 25, 27, 54 and 49 of Arms Act. Name of respondent No. 2 was not included in charge-sheet. PW.5 E Stated during trial that respondent No. 2 was one of the members of unlawful assembly. In view of that, prosecution filed application u/s. 319 Cr.P.C. to include his name as accused and to summon him. The application was rejected by trial court and in Revision by High Court. F Hence the present appeal. ~ Referring two questions for consideration to three ~· .~ Judges Bench, the Court HELD: 1.1 ·Sometimes. while hearing a case against G one or more accused, it appears to a court from the evidence that some person other than the accused before itis also involved in that ven/ offence. Section 319 Cr.P.C. ~ empowers a court to proceed against any person if it ). ap·pears from the evidence that such person has also H •- ' HARDEEP SINGH v. STATE OF PUNJAB & ORS. 737 . committed an offence for which he can be tried together A with other accused. [Paras 26 and 27] [747-H; 748-A, H; 749-A] 1.2. The primary object underlying Section 319 is that the whole case against all the accused should be tried 8 and disposed of not only expeditiously but also simultaneously. Justice. and convenience both require that cognizance against thei newly added accused should be taken in the same caSE! and in the same manner as- • against the original accused. The pQwer must be conceded as incidental and ancillary to the main power · C to take cognizance as part of normal process in the administration of criminal justice. [Para 28] [749-B-C] Joginder Singh and Anr. v. State of Punjab and Anr. 1979 (1) SCC 345; Municipal Corporation of Delhi v. Ram Kishan , D Rohtagi and Ors. 1983 (1) SCC 1; Shashikant Singh v. Tarkeshwar Singh and Anr. (2002) 5 SCC 738; Michael Machado and Anr. V. Central Bureau of Investigation and Anr., 2000 (3) SCC 262 and Bholu Ram v. State of Punjab and Anr. JT 2008 (9) SC 504, relied on. E **Mohd~ Shafi v. Mohd. Rafiq and Anr., (2007) 4 SCR 1023, held inapplicable. Krishnappa v. State of Kamataka, 2004 (7) SCC 792; Y. -1 Saraba Reddy v. Puthur Rami Reddy and Anr. 2007 (6) SCR F . 68 and Guriya and Ors. v. State of Bihar and Anr., 2007 (8) sec 224, referred to. 2.1. It is not correct to say that the term 'evidence' used in sub-section (1) of Section 319 Cr.P.C. would mean evidence which is tested by cross-examination. The G question of testing the evidence by cross,-examination · would arise only after addition of the accused. There is no -'-· question of cross-examining the witness prior to adding . such person as accused. Section does not contemplate an additional stage of first summoning the person and H 738 SUPREME COURT REPORTS [2008]' .15 .s. c .. R. A ~giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding ,J... whether such. person should or should not be added as ace.used. The word. "evidence" occurring in sub-section (1) of Section 319 is used in comprehensive and broad 8 sense which would also include the material collected by the investigating officer and the evi.dence which comes before the Court and from which the Court is satisfied that p'erson not arraig;ned before it is invc>'lved in the commission of. the crime. [Para 54] [757-E-H; 758-A] y c .. *Rakesh and Anr. v. State of Haryana, 2001 (6) SCC 248 and State of H.P. V. Surinder Mohan and Ors. 2000 (2)· sec 396, relied on. 2.2. It is settled law that at the stage of issuing· D summons or process, a court has to see whether there is prima facie case against the person sought to be summoned or against whom process is sought to be "'f issued. At' that stage, there is no question of giving an opportunity of hearing to such person. The entire E scheme of Cr.P.C. is that an accused does not come into picture at all till process is issued. Till summons or process is issued against the accused, he has no right of audience and in that case, it cannot be said that on being satisfied on the basis of examination-in-chief, an F application under Section 319 Cr.P.C. is not maintainable. )' [Para 58] [758-0-E, G] \ Nagavva v. Veeranna, (1976) 3 SCC 736, relied on. 2.3. When a person who is not shown as an accused G is .sought to be ~dded on the basis of evidence, in exercise of power under Section 319 Cr.P.C. he is not before .th.e Court. Otl'ler accused against whom the trial has commenced are very mu~h before. the Court and generally they are represented by an advocate/advocates. H In the evide~ce of a '!\{itnes~, when role Ql other person , HARDEEP SINGH v. STATE OF PUNJAB & ORS. 739 i.e. other than the accused is described by prosecution A witnesses, normally, accused who are already on record are not affected. Grant or rejection of application under Section 319 would generally not alter their position. Therefore, holding that unless the cross-examination of a ·witness by accused who were already on record is B over and complete, no power under Section 319 can be exercised, does not appear to be sound. [Para 59] [759"' A~C] '"'( 2.4. Cr.P.C. has taken care by sufficiently protecting and safeguarding the interest of such added accused. c Sub-section (4) of .Section 319 expressly provides that where the Court exercises power under sub-section (1) and proceeds against a person not arrayed as an accused, "the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard". Thus, after D exercise of power by the Court under Section 319(1),. such added accused would be placed in the same position as other accused and will get all rights an · accused c~n get under Cr.P.C. The proceedings against the added accused shall be commenced afresh and E witnesses will be reheard. Their evidence, prior to addition, of the accused cannot be used against the accused who · was not there earlier. The question of prejudice, hence, does not arise at all. [Para 60) [759-D-F] 3.1. In Criminal Appeal No. 1750 of 2008, the final F report submitted by the Superintendent of Police (D), to Senior Superintendent of Police, under Section 173 Cr.P.C. is not in consonance with law. The report contemplated by Section 173 should contain the G information required by the said provision. The Investigating Officer is not expected to record findings of fact nor to give cleafl chit by exercising power of a court , ..... or judicial authority. In the instant case 1 however, the Superintendent of Police not only refers to investigation · made by him and the statements recorded in the course H. 740 ·: SUPREME COURT REPORTS [2008] 15 S.C.R. A of investigation but records a 'finding' that the statements were 'correct~. Investigating Officer was .required. to ~ submit report·in·terms of Section 173 Cr.P.C. [Paras 66, 70 and 72] [760-G; 762-E-F; 763-F] B 3.2. Prima facie, in the light.of fac~ual scenario, nam.e of respon~eht No. 2 ought to have been included in the charge sheet and the application under Section 319 Cr.P.C. deserves to be allowed. His name finds place in the FIR. Not only that he was present at the place of r ·offence with a weapon (gan"dasi) but was also arrested by c the police from the scene of offence. His name was, ·however, excluded and charge sheet was not submitted in pursuance of an application made by his father. ft was the allegation of the complainant that the said action was taken with a view to oblige his father who was Chairman D of Panchayat Samiti. [Paras 65 and 73] [760-E-F; 763-G] 3.3. So far as respondent No. 3 is concerned, he was y· not charge-sheeted. Both the Courts considered the report oUhe Investigating Officer and held that the action E of non"'issuing of process against him could not be held illegal or unlawful. Hence, the order cannot be termed unlawful or unwarranted which requires interference. [Para 64] [760-C-D] 4. In Criminal Appeal No. 1751 · of 2008, there was F. nothing against respondent No.2 ·and the report )- submitted by the Investigating Officer had been accepted by the trial Court as well as by the High Court and there is no infirmity therein. [Para 6.3] [760-8] G 5. *Rakesh's case ruled that an application under Section 319 Cr.P.C. ·is maintainable even without c9mpletion of cross-examination of a witness. Mohd. Shafi's** case held that satisfaction under Section 319 Cr.P .C. could be arrived at only after cross-examination of H the witness_is over. Thus the.re are conflicting decisions of HARDEEP SINGH v. STATE OF PUNJAB & ORS. 741 co.;.ordinate B.enches. The test formulated in Mohd. Shafi's A case substantially curtails discretionary power of the Court conferred by Cr.P.C. under sub-section (1) of Section 319.This point also requires fresh consideration. Therefore, the following two questions are referred for the consideration of a Bench of three Judges i.e. (1) When B the power under sub-section (1) of Section 319 Cr.P.C. 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 ' is complete? and (2) What is the test and what are the c guidelines of exercising power under sub-section (1) of Section 319 Cr.P .C.? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted? (Paras 46, 55, 62 78 and 79] [754-C; 758-A-B; 760-A; 765-C-F] Case Law Reference: 1979 (1) sec 345 1983 (1) sec 1 (2002) s sec 738 2000 (3) sec 262 Relied on. Relied on. Relied on. Relied on. Relied on. Referred to. Referred to. Referred to. Para 29 Para 31 Para 34 Para 35 Para 43 ·Para 38 Para 39 Para 41 D E F JT 2008 (9) SC 504 2004 (7) sec 192 2007 (6) SCR 68 2001 (8) sec 224 2007 (4) SCR 1023 2001 (6) sec 248 2000 (2) sec 396 held inapplicable. Para 45 1.G 1976 ·(3) sec 736 Relied on. Relied on. Relied on. Para 48 Para 53 Para 58 H 742 SUPREME COURT REPORTS [2008] 15 S.C.R. . A ·CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1750 of 2008 . . .... . •. from the Judgment and final ·Order dated 23.10.2006 of ·; the High Court of Punjab and Haryana at Char.idigarh1n Criminal 8 ,,F.~.ev~sion No. 773 of 2006. . .~; . ~ WITH Criminal Appeal No. 1751 of 2008. C Vibhakar Misra, Abhisth Kumar, K.K. Pandey, Sc;itinder Singh Gulati and Kamaldeep Gulati for the Appellant. KK. Khurana, Add!. A.G., Ajay Pal, Addi. A.G., AK. Mehta . and Kuldip Singh for the Respondents. o The Judgment of the Court was delivered by C.K. THAKKER, J. 1. Leave granted. 2. Both the parties in the High Court have filed present appeals against the judgment and order passed by the High E Cot,J~~ 9f Punjab & Haryana, dated October 23, 2006 in Criminal Revision Nos. 773 of 2006 and 1648 of 2006. . · F 3. To appreciate the contentions raised by the parties, it wou1d be appropriate to narrate few facts. : 4. In the appeal arising out of Special Leave Petition (Crl.) No. 166 of 2007, the case of the prosecution is that an auction for leasing the land was held by the Gram Panchayat of village "lndrapuri, Tehsil Samana, District Patiala on April 21, 2004 for . cultivation on yearly basis (Eksali) for the ye~r 2004-05. The G b.id of the appellant was accepted and lease was granted in his favour. The appellant was thus in possession of the land. · , 5. "According to the prosecution, on June 24, 2004, the appellant was ploughi.ng the land. The accus~d persons went H there with deadly weapons and caused injuries to the appellant ·' ·- I HARDEEP SINGH v. STATE OF PUNJAB & ORS .. 743 [G.K. THAKKER, J.] as well as other prosecution witnesses. First Information Report A (FIR) was lodged against the accused at Police Station Sadar, Samana for commission of offences punishable under Sections 307, 326, 336 and 427 read with Sections 1208, 148 and 149 of the Indian Penal Code, 1860 (IPC) as also for offences punishable under Sections 25, 27, 54 and 59 of the Arms Act, B 1959. Accused were arrested. Vijay Preet Singh (respondent No. 2) was one of them. . --1 6. It is the allegation of the appellant that Vijay Preet Singhrespondent No.2 herein is the son of Sukhvinder Singh, c Chairman of Panchayat Samiti, Samana. The said Sukhvinder Singh interfered with the investigation. With a view to get the name of his son Vijay Preet Singh deleted by exercising influence.on Police Authorities, he made an application on June 26, 2004, i.e. within two days of the incident, lodging of FIR and arrest of Vijay Preet Singh to Senior Superintendent of Police D (SSP), Patiala, Inter alia, stating therein that Vijay Preet Singh was resident of village Meayalkhurd, was studying in 10+2 class and at the time of occurrence he waz not there but was at his residence and was falsely implicated in the case. He, therefore, asked the Senior Superintendent of Police (SSP) to make an E inquiry either himself or through some senior officer so that justice be done to Vijay Preet Singh. -- 7~ It also appears that Jagtar Singh-respondent No.3 herein also made a similar application on July 03, 2004 to F Deputy Inspector General (DIG), Patiala asserting that in an incident dated June 24, 2004, his name was not mentioned in the FIR, but he had been falsely involved and he was likely to be arrested. His name was given by some persons due to grudge by the complainant side. There was a cross-case also. G He, therefore, prayed that an inquiry may be conducted through an independent officer and the applicant may not be arrested till he is proved guilty. -"' 8. It appears that an inquiry was conducted by police and a ~eport was submitted by Superintendent of Police (0), Patiala H 744 SUPREME COURT REPORTS [2008] 15 S.C.R. A to SSP, Patiala on July 12, 2004 wherein it was stated that respondent Nos. 2 and 3 i.e. V!jay Preet Singh and Jagtar Singh had not committed any offence and they were falsely implicated. A recommendation was, therefore, made not to initiate·proceedings against both of them. Both the persons 8 were, therefore, discharged. 9. During the course of trial, however, depositions of witnesses were recorded. PW2 Hardeep Singh, in his deposition, stated that Vijay Preet Singh as also Jagtar Singh, respondents Nos. 2 and 3 were present at the time of incident C with weapons. So far as respondent No.2:-Vijay Preet Singh is concerned, his name was mentioned in the FIR. He participated in ·the incident and v.'as having a weapon with him (gandasi). He was also arrested by the police from the pla~e of offence. Similarly, respondent No.3-Jagtar Singh was present with soti. D He also participated in the incident by raising lalkaras. In furtherance of common object, all the accused assaulted the complainant party and committed the offences with which they were charged. It is on the basis of the report submitted by Superintendent of Police (D), Patiala to Senior Superintendent E of Police, Patiala that they were discharged. An application was, therefore, made by the Addi. Public Prosecutor under Section · -- 319 of the Code of Criminal Procedure, 1973 (hereinafter F G H · referred to as 'the Code') to include respondent Nos. 2 and 3 as accused and to summon them for trial. 10. The Court of the Addi. Sessions Judge, Patiala, • however, by an order dated January 12, 2006 rejected the application observing that he did not find sufficient grounds to proceed against Vijay Preet Singh and Jagtar Singh: 11. Being aggrieved by the said order, the appellant herein approached the High Court of Punjab & Haryana by filing Criminal Revision No. 773 of 2007. The High Court, however, dismissed the Revision and confirmed the order passed by the trial Court: The said order is challenged in the present appeal. ' • ,l ,):.- i Jt ---( • HARDEEP SINGH v. STATE OF PUNJAB & ORS. 745 [C.K. THAKKER, J.] ,._ · 12. In the appeal arising out of Special Leave Petition A (Crl.) No. 2051 of 2007, the case of the appellant was that the accused [complainant party in SLP (Crl.) No. 166 of2007] had formed unlawful assembly and committed offences punishable under Sections 307, 326, 336, 447, 427 read with Sections 148 and 149, Indian Penal Code (IPC) as also under Sections 25, B 27, 54 and 59 of the Arms Act, 1959. Cross FIR was, therefore, filed on the same day i.e. on June 24, 2004. --.( 13. According to the appellant, respondent No.2-Kashmir Singh, son of S. Sucha Singh was very much present but his c name was not included in the charge-sheet and as per the report submitted by the Police Authorities, said Kashmir Singh was innocent. During the course of trial, however, PW5Jagdeep Singh stated that Kashmir Singh was also present and was one of the members of unlawful assembly. An application D was, therefore, made to the trial Court (Addi. Sessions Judge) by the Addi. Public Prosecutor under Section 319 of the Code to include the name of Kashmir Singh as an accused and to issue summons to hi_m. The prayer was, however, rejected by the trial Court which was challenged by the appellant herein by filing Criminal Revision No. 1648 of 2006, but it was also E dismissed by the High Court. The said order is challenged by the appellant in this Court. 14. Notice in SLP (Crl) No. 166 of 2007 was issued on January 22, 2007. In the other matter, i.e. SLP (Crl) No. 205 of F 2007, notice was issued on April 02, 2007. Both the cases were ordered to be heard together. The Registry was directed to list the matter for final hearing on a non-miscellaneous day and that is how the matters have been placed before us. 15. We have heard learned counsel for the parties. G 16. The learned counsel for the appellant in the appeal arising out of SLP (Crl) No. 166 of 2007 submitted that the order passed by the trial Court and confirmed by the High Court is clearly erroneous and deserves to be set aside. It was H 746 SUPREME COURT REPORTS [2008] 15 S.C.R. ~ A submitted that so far as Vijay Preet Singh is concerned, he was ).. very much present at the time of incident with a weapon ' ~ (gandasi), his name was included in the First Information Report i ~ (FIR) and he was also arrested by the police from the place of ; offence since he actually participated in the crime. The B Investigating Agency was, therefore, wholly wrong in deleting his name. and in reporting that Vijay Preet Singh was not present at the time of incident and he reached at the place of offence after the incident was over. Such report was made only with a view to oblige Sukhvinder Singh, father of Vijay Preet )-- c Singh who was Chairman of Panchayat Samiti, Samana. Even otherwise, during the course of trial, the prosecution evidence revealed that Vijay Preet Singh was present at the time of incident. A clear case for application of Section 319 of the Code had been made out and the trial Court was wrong in ' D rejecting the application to join Vijay PreetSingh as an accused 1 and to issue summons to him. Similar error was committed by r the High Court. • 17. Likewise, the Investigating Agency wrongly recommended deletion of name of Jagtar Singh. From the E examination of prosecution witnesses, it was clear that Jagtar Singh was also present at the time of incident with weapon and he participated in the crime. An application under Section 319 of the Code, hence, ought to have been allowed. F 18. It was submitted .that even if name of a particular person :itis not mentioned in the FIR as an accused, he can, later on, be added as an accused and a summons can be issued by a Court in exercise of power under Section 319 of the Code. It t:: was, therefore, submitted that the order passed by the trial ; I G Court and confirmed by the High Court deserves to be set aside and the appeal deserves to be allowed. 19. The learned counsel for respondent Nos. 2 and 3, on the other hand, supported the order passed by the trial Court ).. and confirmed by the High Court. H ... ( HARDEEP SINGH v. STATE OF PUNJAB & ORS. [C.K. THAKKER, J.] 747 20. It was stated that an inquiry had been conducted by A the Investigating Agency and on the basis of statements recorded during investigation, it was proved that respondEfot Nos.2-Vijay Preet Singh reached at the spot after the incident was over and hence, he could not be joined as accused though his name was found in FIR and he was arrested by police and B accordingly report was made to delete his name. 21. So far as Jagtar Singh is concerned, his name was not mentioned in the FIR. During the investigation also, nobody stated that Jagtar Singh participated in the incident and, hence, C his name was deleted. 22. According to the counsel, only at the time of trial, with a view to falsely implicate respondent Nos. 2 and 3, prosecution witnesses had named them. The trial Court, therefore, rightly rejected the prayer and the High Court confirmed it. No case D for interference by this Court in exercise of discretionary jurisdiction under Article 136 of the Constitution has been made out and the appeal deserves to be dismissed. 23. The learned counsel for the State also supported the respondents and prayed for dismissal of the appeal. 24. In the cross-appeal, learned counsel for the appellant submitted that Kashmir Singh was present and participated in E the incident. In the course of trial, the prosecution witnesses, expressly stated about the presence and participation of F respondent No.2-Kashmir Singh and the action of non-issuance of summons to respondent No.2-Kashmir Singh by the trial Court and confirmed by the High Court is erroneous and the appeal deserves to be allowed. 25. The learned counsel for Kashmir Singh supported the order and prayed for dismissal of appeal. The counsel for the State also prayed for dismissal of appeal. G 26. Now, Section 319 of the Code empowers a Court to proceed against any person if it appears from the evidence that H 748 SUPREME COURT REPORTS [2008] 15 S.C.R. I ) A such person has also committed an offence for which he can B c D E F G H be tried together with other accused. The said section reads . .L a~ under; 319. Power to proceed against other persons appearing to be. guilty 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 had committed any offence for which such person could be tried together with the accused,· the Court may proceed against such person for the offence which· he appears to have committed. (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detailed by such Court 'i , for the purpose of the inquiry into, or trial of, 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 of such person shall be commenced afresh, and 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. · (emphasis supplied) 27. Sometimes while hearing a case against one or more >- accused, it appears to a Court from the evidence that some y ~ ~ HARDEEP SINGH v. STATE OF PUNJAB & ORS. 749 [C.K. THAKKER, J.] person other than the accused before it is also involved in that A very offence. It is only proper that a Court should have power to summon such person by joining him as an accused in the case. 28. The primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice. 29. Before three decades, in Joginder Singh & Anr. v. State of Punjab & Anr., (1979) 1 SCC 345, charge sheet was submitted against certain accused. During trial, however, evidence of some of the witnesses was recorded who implicated the appellants. A Public Prosecutor, therefore, moved an application to summon them and to try them along with other accused. The application was granted. The order was challenged by the appellants. 30. This Court considered the relevant provisions of the Code of Criminal Procedure, 1898 (old Code), Forty-first Report of the Lay.i Commission, the amendment made in the present Code and held that the Court could add any person, not accused before it, as accused and direct him to be tried along with the other accused for the offence or offences the added accused appears to have committed. 31. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., (1983) 1 SCC 1, the Food Inspector, noticing adulteration in 'Morton Toffees', filed a complaint against the Company, its Managing Director as well as Directors under the Prevention of Food Adulteration Act, 1954. The Managing Director and Directors approached the High Court by invoking 8 c D E F G H 750 SUPREME COURT REPORTS [2008] 15 S.C.R. A Section 482 of the Code for quashing of proceedings which was granted and the proceedings against them were quashed. The question before this Court was whether Section 319 of the Code could be invoked once criminal proceedings against a person were quashed. B 32. Replying the question in the affirmative and quoting with approval observations in Joginder Singh, this Court held that if it appears to the Court that any person not being the accused before it, but against whom there appears, during trial, sufficient evidence indicating his involvement in the offence, he can be C summoned. D E 33. The Court, however, was conscious of the extraordinary nature of the power under Section 319 of the Code and stated; "f.YV)e would hasten to add that this is really an 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 concerned so that it may act according to law". (emphasis supplied) F 34. In Shashikant Singh v. Tarkeshwar Singh & Anr., (2002) 5 sec 738, during the pendency of trial of an accused, another person was summoned by the trial Court under Section 319 of the Code. But by the time he could be brought before the Court, the trial against the accused was over. It was held G by this Court that the words "could be tried together with the accused" in Section 319(1) were merely directory and ifthe trial against the other accused is over, such a person who was subsequently added as an accused, could be tried after the conclusion of the trial of the main accused. H 35. In Michael Machado & Anr. V. Central Bureau of HARDEEP SINGH v. STATE OF PUNJAB & ORS. 751 -f [C.K. THAKKER, J.] Investigation & Anr., (2000) 3 SCC 262, considering the basic A A requirements of Section 319 of the Code, this Court said; . "The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other B person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the c offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already ID arraigned accused ~' . .... 36. Highlighting the underlying object of the provision, the Court proceeded to state; "But even then, what is conferred on the Court is only a 3 discretion as could be discerned from the words "the E Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across F evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be G remembered that there is no compelling duty in the Court to proceed against other persons". 37. Observing that there was no reasonable prospect of conviction of the persons sought to be arraigned as accused, H 752 SUPREME COURT REPORTS [2008] 15 S.C.R. A the Court held that no order could be made under Section 319 of the Code. ;.. 38. In Krishnappa v. State of Karnataka, (2004) 7 SCC 792, applying Ram Kishan Rohtagi and' Michael Machado, the 8 Court ruled that the power to summon art accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused. 39. In Y. Saraba Reddy v. Puthur Rami Reddy & Anr., ~ , C (2007) 4 SCC 773 : (2007) 6 SCR 68, a three-Judge Bench of this Court to which one of us was a party (D.K. Jain,· J.), a similar situation arose. In the FIR, names of certain persons were mentioned. On an application by those persons, the matter was investigated ·by the Deputy Superintendent of Police and D the report was submitted that they were not present at the time of incident. On the basis of the report, their names were deleted from the array of accused. The case was then committed to the Court of Session. PW1, in his examination involved the said persons and an application under Section 319 E of the Code was filed for issuing summons to them. The trial Court rejected the application primarily on the ground that the plea of alibi was investigated by the Deputy Superintendent of Police and was found to be correct. The High Court did not find infirmity in the order. The action was challenged in this Court. F 40. Allowing the appeal and setting aside the order of the High Court, Dr. Pasayat, J. said; "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 ca-nnot always be the satisfaction G 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 319 of the Code it was required to be analysed. The conclusion that the /O's satisfaction should H HARDEEP SINGH v. STATE OF PUNJAB & ORS. 753 [C.K. THAKKER, J.] be given primacy is unsustainable". A (emphasis supplied) 41. In Guriya & Ors. v. State of Bihar & Anr., (2007) 8 SCC 224, appellants were not arrayed as accused. On the basis of B prosecution evidence, however, an application under Section 319 of the Code was filed which was allowed by the High Court and appellants were added as accused. Appellants questioned the legality of the order . ... 42. This Court allowed the appeal, set aside the order of c the High Court and dismissed the application filed under Section 319 of the Code observing that there was no material against appellants, their names were not found in FIR, no overt act had been attributed to them and the protest petition filed ----\ by the complainant against them had also been dismissed. D 43. Very recently, in Bholu Ram v. State of Punjab & Anr., - JT 2008 (9) SC 504, we were called upon to consider such a situation. Referring to earlier decisions, we held that such a course is open to a Court and power under Section 319 of the E Code can be exercised by the Court to issue summons to a person who was not originally shown as an accused. Such an order cannot be said to be illegal, unlawful or otherwise -- objectionable. ~- 44. It is, however, submitted on behalf of the accused that F in the instant case, an application was made by the Public Prosecutor before the cross-examination of PW2-Hardeep Singh was over. It was strenuously contended that for application of Section 319 of the Code and exercise of power to proceed against person other than the person shown as an accused, there must be an evidence before the Court and such G satisfaction can be arrived at by the Court only upon completion of cross-examination. 45. In this connection, reference was made to a two Judge H Bench decision of this Court in Mohd. Shafi v. Mohd. Rafiq & ' ~ 754 SUPREME COURT REPORTS [2008] 15 S.C.R. A Anr., (2007) 4 SCR 1023. In Mohd. Shafi, an FIR was lodged .A against the accused alleging the commission of an offence punishable under Section 302, IPC. The police submitted charge-sheet against K but not against M (appellant), At the trial, PW1 was examined and in his examination-in-chief, he B asserted that M also participated in the' incident. An application was filed for summoning him under Section 319 of the Code which was rejected by the trial Court but allowed by the High Court. M approached this Court. ).-- G 46. Allowing the appeal and setting aside the order passed by the High Court, this Court observed that the order passed by the High Court was not sustainable. It was held that satisfaction under Section 319 of the Code could be arrived at only after cross-examination of the witness is over. The D Court stated; I- "The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive - at his satisfaction. If he thought that the matter should receive his due consideration only after the crossE examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same". (emphasis supplied) ..... F 47. The counsel submitted that admittedly in the instant .lr case, cross-examination of PW2-Hardeep Singh was not over. In the course of cross-examination by some of the accused persons, the learned Additional Public Prosecutor moved the Court under Section 319 of the Code and further crossG examination was deferred. It was, therefore, submitted that no order under Section 319 could be made and the application was liable to be dismissed. 48. The learned counsel for the complainant, however, H placed reliance on a two Judge Bench decision in Rakesh & HARDEEP SINGH v. STATE OF PUNJAB & ORS. 755 [C.K. THAKKER, J.] Anr. V. State of Haryana, (2001) 6 SCC 248. An identical issue A ~ was raised there. The father of the prosecutrix lodged an FIR alleging commission of offences under Sections 363, 366 and 376, IPC by Rakesh and others. According to the complainant, his daughter was taken by three persons due to previous enmity with the object of committing rape. The girl was then found with B P. After the investigation, charges were framed only against P. At the trial, however, certain witnesses were examined and on the basis of their evidence, the Public Prosecutor filed an - -