# YASHODHAN SINGH & ORS v. THE STATE OF UTTAR PRADESH & ANR

- **Citation:** 2023 INSC 652
- **Court:** Supreme Court of India
- **Decided:** 2023-07-18
- **Case number:** Criminal Appeal No. 2186 of 2023
- **Bench:** B. V. Nagarathna, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yashodhan-singh-ors-v-the-state-of-uttar-pradesh-anr-36562
- **Pages:** 25

## Headnote

Code of Criminal Procedure, 1973 - s.319 - Principle of
hearing a person who is summoned u/s. 319 Cr.P.C. - Applicability
of - Respondent no.2-complainant got an FIR registered u/ss. 147,
148, 149, 302, 452, 307, 504 of IPC - A charge-sheet was filed
against the accused persons but the names of appellants were not
mentioned in it as their role was under investigation - Respondent
no.2 filed application u/s. 319 Cr.P.C. to summon appellants - Trial
Court summoned appellants to join trial - High Court affirmed the
order passed by the trial Court - Before the Supreme Court,
appellant contended that either the summoning order may be set
aside in light of paragraph 9 of the Jogendra Yadav case as no
opportunity of hearing that was provided to the appellants, at the
time of order of summoning or the Jogendra Yadav case may be
referred to a larger Bench if not followed in the instant case - Held:
Merely because in certain proceedings the persons summoned had
been provided an opportunity of being heard cannot be the same
thing as stating that it is a mandatory requirement or a precondition
that at the time of summoning a person u/s. 319 of the Cr.P.C., he
should be given an opportunity of being heard - Paragraph 9 cannot
be considered to be ratio of the Jogendra Yadav judgment - The
judgment in Jogendra Yadav does not calls for any re-consideration
and observation in paragraph 9 is relatable only to the facts of the
said case - Thus, the principle of hearing a person who is summoned
cannot be read into s. 319 Cr.P.C, such a procedure is not at all
contemplated therein.
Code of Criminal Procedure, 1973 - s.319 - Object and
purpose - discussed.
Dismissing the appeal, the Court
HELD: 1. The Constitution Bench of this Court in Hardeep
Singh, it is noted that an inquiry is contemplated as against a
[2023] 10 S.C.R. 1196 : 2023 INSC 652
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person who has been discharged prior to the commencement of
the trial in terms of Section 227 Cr.P.C. as extracted above but
on an inquiry, if it appears that there is evidence against such a
discharged person, then power under Section 319 Cr.P.C. can be
exercised against such a discharged person. This clearly would
mean that when a person who is not discharged but is to be
summoned as per Section 319 Cr.P.C. on the basis of satisfaction
derived by the court on the evidence on record, no inquiry or
hearing is contemplated. This would clearly indicate that principle
of natural justice and an opportunity of hearing a person
summoned under 319 Cr.P.C. are not at all contemplated. Such a
right of inquiry would accrue only to a person who is already
discharged in the very same proceeding prior to the
commencement of the trial. This is different from holding that a
person who has been summoned as per Section 319 Cr.P.C. has
a right of being heard in accordance with the principles of natural
justice before being added as an accused to be tried along with
other accused. [Para 23][1212-D-G]
2. Further, when a person is summoned as an accused under
Section 319 Cr.P.C. which is based on the satisfaction recorded
by the Trial Court on the evidence that has emerged during the
course of trial so as to try the person summoned as an accused
along with the other accused, the summoned accused cannot seek
discharge. It is necessary to state that discharge as contemplated
under Section 227 Cr.P.C. is at a stage prior to the commencement
of the trial and immediately after framing of charge but when
power is exercised the under Section 319 Cr.P.C. to summon a
person to be added as an accused in the trial to be tried along
with other accused, such a person cannot seek discharge as the
court would have exercised the power under Section 319 Cr.P.C.
based on a satisfaction derived from the evidence that has
emerged during the evidence recorded in the course of trial and
such satisfaction is of a higher degree than the satisfaction which
is derived by the court at the time of framing of charge.
[Para 24][121

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SUPREME COURT REPORTS
[2023] 10 S.C.R.
YASHODHAN SINGH & ORS.
v.
THE STATE OF UTTAR PRADESH & ANR.
(Criminal Appeal No. 2186 of 2023)
JULY 18, 2023
[B. V. NAGARATHNA AND UJJAL BHUYAN, JJ.]
Code of Criminal Procedure, 1973 - s.319 - Principle of
hearing a person who is summoned u/s. 319 Cr.P.C. - Applicability
of - Respondent no.2-complainant got an FIR registered u/ss. 147,
148, 149, 302, 452, 307, 504 of IPC - A charge-sheet was filed
against the accused persons but the names of appellants were not
mentioned in it as their role was under investigation - Respondent
no.2 filed application u/s. 319 Cr.P.C. to summon appellants - Trial
Court summoned appellants to join trial - High Court affirmed the
order passed by the trial Court - Before the Supreme Court,
appellant contended that either the summoning order may be set
aside in light of paragraph 9 of the Jogendra Yadav case as no
opportunity of hearing that was provided to the appellants, at the
time of order of summoning or the Jogendra Yadav case may be
referred to a larger Bench if not followed in the instant case - Held:
Merely because in certain proceedings the persons summoned had
been provided an opportunity of being heard cannot be the same
thing as stating that it is a mandatory requirement or a precondition
that at the time of summoning a person u/s. 319 of the Cr.P.C., he
should be given an opportunity of being heard - Paragraph 9 cannot
be considered to be ratio of the Jogendra Yadav judgment - The
judgment in Jogendra Yadav does not calls for any re-consideration
and observation in paragraph 9 is relatable only to the facts of the
said case - Thus, the principle of hearing a person who is summoned
cannot be read into s. 319 Cr.P.C, such a procedure is not at all
contemplated therein.
Code of Criminal Procedure, 1973 - s.319 - Object and
purpose - discussed.
Dismissing the appeal, the Court
HELD: 1. The Constitution Bench of this Court in Hardeep
Singh, it is noted that an inquiry is contemplated as against a
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person who has been discharged prior to the commencement of
the trial in terms of Section 227 Cr.P.C. as extracted above but
on an inquiry, if it appears that there is evidence against such a
discharged person, then power under Section 319 Cr.P.C. can be
exercised against such a discharged person. This clearly would
mean that when a person who is not discharged but is to be
summoned as per Section 319 Cr.P.C. on the basis of satisfaction
derived by the court on the evidence on record, no inquiry or
hearing is contemplated. This would clearly indicate that principle
of natural justice and an opportunity of hearing a person
summoned under 319 Cr.P.C. are not at all contemplated. Such a
right of inquiry would accrue only to a person who is already
discharged in the very same proceeding prior to the
commencement of the trial. This is different from holding that a
person who has been summoned as per Section 319 Cr.P.C. has
a right of being heard in accordance with the principles of natural
justice before being added as an accused to be tried along with
other accused. [Para 23][1212-D-G]
2. Further, when a person is summoned as an accused under
Section 319 Cr.P.C. which is based on the satisfaction recorded
by the Trial Court on the evidence that has emerged during the
course of trial so as to try the person summoned as an accused
along with the other accused, the summoned accused cannot seek
discharge. It is necessary to state that discharge as contemplated
under Section 227 Cr.P.C. is at a stage prior to the commencement
of the trial and immediately after framing of charge but when
power is exercised the under Section 319 Cr.P.C. to summon a
person to be added as an accused in the trial to be tried along
with other accused, such a person cannot seek discharge as the
court would have exercised the power under Section 319 Cr.P.C.
based on a satisfaction derived from the evidence that has
emerged during the evidence recorded in the course of trial and
such satisfaction is of a higher degree than the satisfaction which
is derived by the court at the time of framing of charge.
[Para 24][1212-G-H; 1213-A-B]
3. Merely because in certain proceedings the persons
summoned had been provided an opportunity of being heard
cannot be the same thing as stating that it is a mandatory
YASHODHAN SINGH & ORS. v. THE STATE OF UTTAR
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requirement or a precondition that at the time of summoning a
person under Section 319 of the Cr.P.C., he should be given an
opportunity of being heard. That is not the mandate of law
inasmuch as Section 319 clearly uses the expression "to proceed"
which means to proceed with the trial and not to jeopardise the
trial at the instance of the person(s) summoned by conducting a
mini trial or a trial within a trial thereby derailing the main trial of
the case and particularly against the accused who are already
facing trail and who may be in custody. A person who is summoned
in exercise of the power under Section 319 Cr.P.C. cannot hijack
the trial so to say and deviate from its focus and take it to a tangent
in order to bolster his own case in a bid to escape trial. All that is
contemplated when a person is summoned to appear is to
ascertain that he is the very person who was summoned and if
any summoned person fails to appear on the given date. On the
appearance of the summoned person, no procedure of an inquiry
or opportunity of being heard is envisaged before been added as
an accused to the list of accused already facing trial unless such a
summoned person had already been discharged, in which event,
an inquiry is contemplated as discussed above. Thus, the
contention that a summoned person must be given an opportunity
of being heard before being added as an accused to face the trial
is clearly not contemplated under Section 319 Cr.P.C. It is also
observed by this Court in Hardeep Singh that such a summoned
person can assail a summoning order before a superior
Court and will also have the right of cross examining the witnesses
as well as can let in his defence evidence, if any. [Para 32]
[1219-D-H; 1220-A-B]
4. The lateral entry of a person summoned in exercise of
power under Section 319 Cr.P.C. is only to face the trial along
with other accused. This, being a salutary provision in order to
meet the ends of justice, the same cannot be diluted by importing
within the scope of Section 319 Cr.P.C. principles of natural justice
which in any case would be followed during the trial. It is well
settled that principles of natural justice cannot be applied in straitjacket formula and they would depend upon the facts of each case
and the object and purpose to be achieved under a provision of
law. [Para 33][1220-B-C]
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5. The judgment in Jogendra Yadav does not call for any
re-consideration and the said observation in paragraph 9 is
relatable only to the facts of the said case. Thus, the principle of
hearing a person who is summoned cannot be read into Section
319 Cr.P.C. Such a procedure is not at all contemplated therein.
In the circumstances, this Court does not accept the contentions
of the appellants herein. [Para 34][1220-D-E]
Sukhpal Singh Khair v. State of Punjab (2023) 1 SCC
289; Brijendra Singh & Ors. v/s. State of Rajasthan
(2017) 7 SCC 706 : [2017] 3 SCR 374; Hardeep Singh
vs. State of Punjab & Ors. (2014) 3 SCC 92 : [2014] 2
SCR 1 - followed.
Jogendra Yadav and Ors. vs. State of Bihar and Anr.
(2015) 9 SCC 244 : [2015] 9 SCR 69; Ram Janam
Yadav & Ors. vs. State of U.P. & Anr. SLP (Crl.)
No.3199/2021 - referred to.
Case Law Reference
[2015] 9 SCR 69
referred to
Para 8
[2014] 2 SCR 1
followed
Para 17
[2017] 3 SCR 374
followed
Para 21
(2023) 1 SCC 289
followed
Para 21
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2186 of 2023.
From the Judgment and Order dated 03.01.2023 of the High Court
of Judicature at Allahabad in CRLR No. 4235 of 2022.
S. Nagamuthu, Sr. Adv., Ram Kishor Singh Yadav, Kaushal Yadav,
Nandlal Kumar Mishra, Dr. Ajay Kumar, Dr. Sushil Balwada, Vivekanand
Rana, Pramod Kumar, Srilok Nath Rath, Ms. Reena Rao, Advs. for the
Appellants.
Ratnakar Dash, Sr. Adv., Shashank Shekhar Singh, Yatharth Singh,
Ms. Amrita Panda, Advs. for the Respondents.
The following Judgment of the Court was delivered:
JUDGMENT
Leave granted.
2. This appeal arises out of an Order dated 03.01.2023 passed by
the High Court at Allahabad in Criminal Revision No.4235 of 2022.
YASHODHAN SINGH & ORS. v. THE STATE OF UTTAR
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3. Briefly stated, the facts of the case according to the
Complainant-Respondent No.2 herein are that he got registered an FIR
bearing No.186/2018 on 09.06.2018 at around 21.45 at P.S. Hathras
Junction District Hathras Uttar Pradesh under Sections 147, 148, 149,
302, 452 307, 504 of the Indian Penal Code (for short, "IPC") against
the appellants herein alleging that appellant Nos. 1-7 (summoned accused)
went to the Complainant-Respondent No.2's house and started hurling
abuses and firing, which consequently resulted in the Complainant's
injuries and the death of his two brothers. A charge sheet was filed
against the accused persons but the names of the appellants were not
mentioned in it as their role was still under investigation.
4. The Complainant filed an application before the Additional
Sessions Judge Court No.1, Hathras in Case Crime No.186 of 2018
under Section 319 Cr.P.C. to summon the appellants herein on the basis
of his evidence pursuant to which the Additional Sessions Judge passed
an Order dated 23.09.2022 summoning the accused to join the trial.
5. Aggrieved by the said Order of the Additional Sessions Judge
Court No.1, Hathras, the appellants approached the High Court of
Judicature at Allahabad by way of Criminal Revision No.4235 of 2022.
The High Court by way of the impugned Order dated 03.01.2023
dismissed the same and affirmed the Order passed by the Additional
Sessions Judge Court No.1, Hathras in Case Crime No.186 of 2018
dated 23.09.2022, to summon the appellants.
6. Hence, this appeal.
7. We have heard Shri S. Nagamuthu, learned senior counsel for
the appellants and Dr. Sushil Balwada, learned counsel for appellantNos.
1, 3 and 4; Shri Ratnakar Dash, learned senior counsel for the State and
Shri Yatharth Singh, learned counsel for the complainant, at length.
8. Vide Order dated 08.05.2023, this Court issued notice and the
matter was directed to be listed in the second week of July, 2023. For
the sake of immediate reference, the said Order is extracted as under -
"We have heard Mr. S. Nagamuthu, learned senior counsel
appearing for the petitioners.
Delay condoned.
This is a case where by the impugned order the High Court
has dismissed the revision challenging the order passed under
Section 319 of the Cr.P.C. summoning the petitioners.
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In the course of his submission, Mr. Nagamuthu drew our
attention to the judgment of this Court in the case of Jogendra
Yadav and Ors. vs. State of Bihar and Anr., reported in (2015) 9
SCC 244. Therein, he pointed out that this Court has found that
since a person who is added under Section 319 Cr.P.C. is
necessarily heard before he was so added and often gets a further
hearing if he challenges the summoning order he cannot avail the
remedy of discharge.
This Court may not have been inclined to interfere with the
impugned order but would have been inclined to reserve the remedy
of seeking discharge, if so advised at the appropriate stage.
We have the benefit of hearing Mr. Yatharth Singh, learned
counsel appearing on behalf of the respondent no.2-complaint on
caveat.
We are of the view that this aspect must be gone into if the
court is to take a view which is at variance with the view taken in
the judgment of Jogendra Yadav and Ors. (supra).
Issue notice.
The petitioners may serve dasti also to the standing counsel
for the State of Uttar Pradesh.
List the matter in the second week of July 2023."
On a reading of the same, it is evident that this Court was inclined
to issue notice to the respondent(s) having regard to the submission made
by Shri S. Nagamuthu, learned senior counsel in the context of the
judgment of this Court in the case of Jogendra Yadav and Ors. vs. State
of Bihar and Anr., reported in (2015) 9 SCC 244 ('Jogendra Yadav').
9. Shri S. Nagamuthu, learned senior counsel, at the outset
submitted that paragraph 9 of Jogendra Yadav has categorically recorded
that when an accused is summoned in exercise of the power under
Section 319 of the Criminal Procedure Code, 1973 ('Cr.P.C' for short),
such an accused has to be heard before being added as an accused to
face trial; that such an accused has a further right of hearing if he
challenges the summoning order before the High Court and further before
this court. In light of the observations of this Court in Jogendra Yadav,
the right of an accused, who is summoned to be heard before being
added asan accused has been recognised by this Court; that in the instant
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case because there was no such hearing that was provided to the
appellants, who were added as accused, in light of the aforesaid judgment,
the impugned order may be set aside and the matter may be remanded
to the Sessions Court for giving an opportunity to the appellants of being
heard before being added as accused.
10. In this context, learned senior counsel drew our attention to
another Order of this Court in the case of Ram Janam Yadav &Ors. V/
s. State of U.P. & Anr. in SLP (Crl.) No.3199/2021('Ram Janam Yadav'),
wherein this Court had directed that an Amicus Curiae be appointed to
consider the question which emanated from the judgment in Jogendra
Yadav and to refer the matter to a larger Bench, to decide: (1) as to,
whether, an accused, who is impleaded under Section 319 of the Cr.P.C.,
is entitled to file an application for discharge and (2) whether, a person
before being impleaded as an accused is entitled to prior hearing or not.
Of course, it was also pointed out that ultimately the said matter was not
referred to answer the said questions as this Court found that in the said
case the accused had, in fact, been given an opportunity of hearing and,
therefore, held that the issues raised would be purely academic in nature.
11. Emphasising the importance of the principles of natural justice
in a criminal trial, learned senior counsel Sri Nagamuthu, submitted that
if such a hearing is not provided to the accused then the rights of the
persons summoned to be added as an accused would be jeopardised. In
this regard, learned Senior Counsel also submitted that the invocation of
power under Section 319 of the Cr.P.C. is one to proceed with the trial
on the basis of the evidence already recorded and that the satisfaction
of the Sessions Court/Trial Court in such a case would be an objective
satisfaction and not a subjective one and, therefore, in order to ensure
that the right of the persons summoned to be added as an accused is
enforced,it is necessary that such a person is heard before his addition
asan accused to be tried along with other accused already facing trial.
12. It was next contended that if ultimately the person summoned
is not given a right to seek discharge which he is also entitled to seek, it
becomes all the more crucial that on notice being issued to the person to
be added as an accused, he is heard in the first instance and, thereafter,
an order is passed on his addition to the list of accused to be tried along
with other accused.
According to him, though Section 319 Cr.P.C. is silent as to
opportunity of hearing before being added as an accused, the same has
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to be read into the provision which would be in compliance to the principle
of natural justices. In this connection, he has referred to the development
of law regarding filing of protest petition against a closure report.
13. Learned counsel appearing for the other appellants also
submitted that in the instant case, the appellants were named in the FIR
but in the final report, their names were not mentioned. No protest petition
was filed as against the said final report. It is only at the stage of trial
that the summoning order was passed by the Sessions Court, which
could not have invoked Section 319 of the Cr.P.C. to summon the
appellants herein to be added to the list of accused when their names did
not figure in the final report.
14. Therefore, it was contented on behalf of the appellants that
either the judgment in Jogendra Yadav be complied with by granting an
opportunity of hearing to the appellants herein or the matter may be
referred to a larger Bench in case this Bench is not inclined to follow the
said judgment.
15. Per contra, learned senior counsel appearing for the State
and also learned counsel appearing for the complainant contended that
the observations of this Court in Jogendra Yadav as well as the observations
of this Court in Ram Janam Yadav have to be construed only from the
perspective of the peculiar facts of the said cases.
16. Learned senior counsel appearing for the State drew our
attention to paragraph 2 of Jogendra Yadav to contend that in the said
case, the Additional Sessions Judge had in fact issued notice to the
appellants therein to show cause as to why they should not be added as
accused. After giving an opportunity to the appellants therein to file a
reply, the Additional Sessions Judge summoned the appellants as accused
for being added to the proceedings. Therefore, it was a case where the
accused therein had been heard before such summons was issued. It
was contended that it is in the aforesaid context, that this Court had
observed that the persons to be summoned as an accused would be
heard before being added. The said observations of this Court in
paragraph 9 must be read in the context of the facts of the said case and
not taken out of its context and blown out of proportion.
In order tobuttress this submission, it was pointed out that in the
order passed by this Court subsequently in the case of Ram Janam Yadav,
the reference to a larger Bench was not taken forward by noticing that
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in the said case, it was not necessary to refer the questions of law to a
larger Bench as in that case also, the persons who had been summoned
as accused were in fact, given an opportunity of being heard and hence,
the aforesaid two cases would turn on their own peculiar facts. In other
words, what was sought to be contended was that an opportunity of
being heard to the persons summoned under Sections 319 of the Cr.P.C.
was on the facts of those cases and that cannot be made a rule or
principle, which is applicable to all cases having regard to the object and
purpose of Section 319 of the Cr.P.C.
17. Learned counsel appearing for the complainant also supported
the arguments of the learned senior counsel appearing for the State and
contended that if the submissions of learned senior counsel for the
appellants are to be accepted, then the entire trial of the accused would
be disrupted and there would be a trial within the trial, a concentric
circle, and there can be no conclusion of a trial on a timely basis which
would vitiate the salutary principle of speedy trial which is recognized
under Article 21 of the Constitution of India as well as the right of the
victims to get justice. According to the learned Counsel, if the submissions
of learned Counsel for the appellants is to be accepted by this Court, it
would not only jeopardise a criminal trial but also prejudice the rights of
the accused already facing trial and who possibly may be in custody
during their trial. In other words, the persons who are to be added as an
accused and summoned under Section 319 of the Cr.P.C. may come out
with their own pleas and contentions which would have to be first
considered by the Trial Court/Sessions Court and this would not only
cause delay in the progress of the main trial. It was submitted that Section
319 of the Cr.P.C. is a wholesome provision which has to be invoked by
the Sessions Court having regard to the evidence that has emerged in
the trial and on the satisfaction derived by the trial court as has been
envisaged by this Court in the case of Hardeep Singh V/s. State of
Punjab &Ors. (2014) 3 SCC 92 ("Hardeep Singh"). Therefore, the said
contentions of the learned counsel for the appellants may not be accepted
was the joint plea of learned counsel for the respondents.
18. Having heard learned senior counsel and learned counsel for
the respective parties, at the outset, we would refer to the Order dated
8.5.2023 passed by this Court and the context in which notice was issued
to the respondent(s) herein. The said context can be clearly discerned
by the fact that Mr. Nagamuthu, learned senior counsel contended that
in paragraph 9 of the judgment in Jogendra Yadav, it is clearly indicated
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that the right of hearing must be afforded to a person summoned before
being added as an accused in the trial, and therefore, the impugned order
stood vitiated.
19. Before we proceed, we would refer to Sections 227 and 319
of the Cr.P.C., which are extracted as under:
"227. Discharge.- If, upon consideration of the record of the
case and the documents submitted therewith, and after hearing
the submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the accused
and record his reasons for so doing.
"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
has committed any offence for which such person could be tried
together with the accused, the Court may proceed against such
person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be
arrested or summoned, as the circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending the Court, although not under
arrest or upon a summons, may be detained by such Court for the
purpose of the inquiry into, or trial of, the offence which he appears
to have committed.
(4) Where the Court proceeds against any person under sub-section
(1), then -
 (a) the proceedings in respect of such person shall be commenced
afresh, and the witnesses re-heard;
 (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."
20. Section 227 Cr.P.C. provides for discharge of an accused if
the court finds that there is no sufficient grounds or reasons for proceeding
against him. Consequently, the proceeding against discharged person is
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dropped. On the other hand, under Section 319 Cr.P.C., a person who
has not been named as an accused is summoned to be tried along with
other accused while section 227 Cr.P.C. results in conclusion of
proceedings against a person who is an accused on his discharge. On
the other hand, a person who is not an accused is summoned to be tried
along with other accused under Section 319 Cr.P.C.
21. A reading of the said Section would clearly indicate that power
is given to the Court to proceed against any other person appearing to be
guilty of an offence. The expression 'proceed' as appearing in Section
319 Cr.P.C. is of significance. The exercise of power under Section 319
Cr.P.C. is not at the initial stage where cognizance is taken of the offence
and the summoning order is passed before committal of the matter to
the Sessions Court. That power exercised under Section 190 of the Cr.P.C.
is quite distinct from the power exercised by the Trial Court/Sessions
Court under Section 319 of the Cr.P.C. In our view, much significance
turns on the expression 'proceed' in Section 319 Cr.P.C. The said Section
came up for consideration before this Court in innumerable
cases.However, it is of relevance to mention Constitution Bench
judgments in Hardeep Singh; Sukhpal Singh Khair vs. State of Punjab,
(2023) 1 SCC 289, ("Sukhpal Singh Khair") and in Brijendra Singh &Ors.
v/s. State of Rajasthan (2017) 7 SCC 706, ("Brijendra Singh").
22. The relevant paragraphs in Hardeep Singh can be crystallised
as under: -
(i) The Constitution Bench of this Court was concerned with three
aspects: firstly, the stage at which powers under Section 319 Cr.P.C.
can be invoked; secondly, the materials on the basis whereof the invoking
of powers under Section 319 Cr.P.C. can be justified; and thirdly, the
manner in which powers under Section 319 Cr.P.C. have to be exercised.
While answering the five questions referred to the Constitution Bench in
paragraph 117, it was concluded as under:
"117. We accordingly sum up our conclusions as follows:
Questions (i) and (iii)
- What is the stage at which power under Section 319 CrPC
can be exercised?
AND
- Whether the word "evidence" used in Section 319(1) CrPC
has been used in a comprehensive sense and includes the
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evidence collected during investigation or the word "evidence"
is limited to the evidence recorded during trial?
Answer
117.1. In Dharam Pal case [Dharam Pal v. State of
Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018] , the Constitution
Bench has already held that after committal, cognizance of an
offence can be taken against a person not named as an accused
but against whom materials are available from the papers filed by
the police after completion of the investigation. Such cognizance
can be taken under Section 193 CrPC and the Sessions Judge
need not wait till "evidence" under Section 319 CrPC becomes
available for summoning an additional accused.
117.2. Section 319 CrPC, significantly, uses two expressions
that have to be taken note of i.e. (1) inquiry (2) trial. As a trial
commences after framing of charge, an inquiry can only be
understood to be a pre-trial inquiry. Inquiries under Sections 200,
201, 202 CrPC, and under Section 398 CrPC are species of the
inquiry contemplated by Section 319 CrPC. Materials coming
before the court in course of such inquiries can be used for
corroboration of the evidence recorded in the court after the trial
commences, for the exercise of power under Section 319 CrPC,
and also to add an accused whose name has been shown in Column
2 of the charge-sheet.
117.3. In view of the above position the word "evidence" in
Section 319 CrPC has to be broadly understood and not literally
i.e. as evidence brought during a trial.
Question (ii)-Whether the word "evidence" used in Section
319(1) CrPC could only mean evidence tested by crossexamination or the court can exercise the power under the
said provision even on the basis of the statement made in the
examination-in-chief of the witness concerned?
Answer
117.4. Considering the fact that under Section 319 CrPC a
person against whom material is disclosed is only summoned to
face the trial and in such an event under Section 319(4) CrPC the
proceeding against such person is to commence from the stage of
taking of cognizance, the court need not wait for the evidence
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against the accused proposed to be summoned to be tested by
cross-examination.
Question (iv)-What is the nature of the satisfaction required
to invoke the power under Section 319 CrPC to arraign an
accused? Whether the power under Section 319(1) CrPC can
be exercised only if the court is satisfied that the accused
summoned will in all likelihood be convicted?
Answer
117.5. Though under Section 319(4)(b) CrPC the accused
subsequently impleaded is to be treated as if he had been an
accused when the court initially took cognizance of the offence,
the degree of satisfaction that will be required for summoning a
person under Section 319 CrPC would be the same as for framing
a charge [Ed. : The conclusion of law as stated in para 106, p.
138c-d, may be compared:"Thus, we hold 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 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". See also especially in para
100 at p. 136f-g.] . The difference in the degree of satisfaction
for summoning the original accused and a subsequent accused is
on account of the fact that the trial may have already commenced
against the original 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 summoning the accused
(original and subsequent) has to be different.
Question (v)-Does the power under Section 319 CrPC extend
to persons not named in the FIR or named in the FIR but not
charge-sheeted or who have been discharged?
Answer
117.6. A person not named in the FIR or a person though named
in the FIR but has not been charge-sheeted or a person who has
been discharged can be summoned under Section 319 CrPC
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provided from the evidence it appears that such person can be
tried along with the accused already facing trial. However, insofar
as an accused who has been discharged is concerned the
requirement of Sections 300 and 398 CrPC has to be complied
with before he can be summoned afresh.
(ii) While answering the questions aforesaid, this Court observed
in Hardeep Singh that if 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. The entire effort, therefore, is
not to allow the real perpetrator of an offence to get away unpunished.
It is with the said object in mind that a constructive and purposive
interpretation should be adopted that advances the cause of justice and
does not dilute the intention of the statute conferring powers on the
court to carry out the avowed object and purpose to try the person to the
satisfaction of the court as an accomplice in the commission of the offence
that is the subject matter of trial. It was pertinently observed by this
Court that the desire to avoid trial is so strong that an accused makes
efforts at times to get himself absolved even at the stage of investigation
or inquiry even though he may be connected with the commission of the
offence.
(iii) While distinguishing a trial from an enquiry, it was observed
by this Court that trial follows an inquiry and the purpose of the trial is to
fasten the responsibility upon a person on the basis of facts presented
and evidence led. Emphasising on the word "course" used in Section
319 Cr.P.C., it was observed that the said power can be invoked under
the said provision against any person from the initial stage of inquiry by
the court up to the stage of conclusion of the trial. 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. Thus, the power
under Section 319(1) Cr.P.C. can be exercised at any time after the
charge-sheet is filed before the pronouncement of judgment, except during
the stage of Sections 207/208 Cr.P.C., committal, etc.
(iv) Elaborating the nuances of Section 319 Cr.P.C., it was further
observed in Hardeep Singh that what is essential for the purpose of
Section 319 Cr.P.C. is that there should appear some evidence against a
person not proceeded against; the stage of the proceedings is irrelevant.
Section 319 Cr.P.C. is an empowering provision particularly where the
complainant is circumspect in proceeding against several persons, but
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the court is of the opinion that there appears to be some evidence pointing
to the complicity of some other persons as well.
(v) It was further observed that circumstances which lead to the
inference being drawn up by the court for summoning a person under
Section 319 arise out of the availability of the facts and material that
come up before the court. The material should disclose complicity of the
person in the commission of the offence which has to be the material
that appears from the evidence during the course of any inquiry into or
trial of offence.
(vi) It was also observed by this Court in Hardeep Singh that
apart from evidence in the strict legal sense recorded during trial, any
material that has been received by the court after cognizance is taken
and before the trial commences, can be utilised only for corroboration
and to support the evidence recorded by the court to invoke the power
under Section 319 Cr.P.C. Holding that the expression "evidence" must
be given a broad meaning, it was observed that material which is not
exactly evidence recorded before the court, but is a material collected
by the court, can be utilised to corroborate evidence already recorded
for the purpose of summoning any other person, other than the accused.
Such material would be supportive in nature to facilitate the exposition
of any other accomplice whose complicity in the offence may have been
suppressed or had escaped the notice of the court. Therefore, any material
brought before the court even prior to the trial can be read within the
meaning of the expression "evidence" for the purpose of Section 319
Cr.P.C. While considering the evidence that emanates during the trial, it
was observed by this Court that evidence recorded by way of
examination-in-chief and which is untested by cross-examination is
nevertheless evidence which can be considered by the court for the
exercise of power under Section 319 Cr.P.C. so long as, it would appear
to the court that some other person who is not facing the trial, may also
have been involved in the offence.
(vii) Further, Section 319 Cr.P.C. also uses the words "such person
could be tried", which means not to have a mini-trial at the stage of
Section 319 Cr.P.C. by having examination and cross-examination and
thereafter coming to a prima facie conclusion on the overt act of such
person sought to be added. Such a mini-trial will affect the right of the
person sought to be arraigned as an accused rather than not having any
cross-examination at all. As under Section 319 (4) Cr.P.C., such a person
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has the right to cross-examine the prosecution witnesses and examine
the defence witnesses and advance his arguments. It was further observed
that the power under Section 319 Cr.P.C. can be exercised even after
completion of examination-in-chief and the court does not have to wait
till the said evidence is tested on cross-examination, for it is the satisfaction
of the court which can be gathered from the reasons recorded by the
court, in respect of complicity of some other persons, not facing the trial
in the offence.
(viii) 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. Therefore, such satisfaction is sina qua non
for exercise of power under Section 319 Cr.P.C. Ultimately, the exercise
of power is for the trial of such persons summoned together with the
accused already on trial and not for conviction with the accused.
Therefore, at that stage, the court need not form any definite opinion as
to the guilt of the accused.
(ix) This Court further observed that the difference in the degree
of satisfaction for summoning the original accused and a subsequent
accused is on account of the fact that the trial may have already
commenced against the original accused and it is in the course of such
trial that materials are disclosed against the newly summoned accused.
Hence, the degree of satisfaction for summoning the original accused
and the accused summoned subsequently during the course of trial is
different.
(x) It was further observed by this Court that a person, whose
name does not appear even in the FIR or in the charge-sheet or whose
name appears in 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 under Section 193 Cr.P.C. can still be summoned by the
court, provided the court is satisfied that the conditions provided in the
said statutory provisions stand fulfilled. However, a person who has
already been discharged stands on a different footing than a person who
was never subjected to investigation or if subjected to, but not chargesheeted. 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 is not even a prima
facie case to proceed against such person. Therefore, the court must
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keep in mind that the witness when giving evidence against the person
so discharged, is not doing so merely to seek revenge or is naming him at
the behest of someone or for such other extraneous considerations.
(xi) This Court further observed that it has to be circumspect in
treating such evidence and try to separate the chaff from the grain. If
after such 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 accordance with Section 398 Cr.P.C. without
resorting to the provision of Section 319 Cr.P.C. directly. Section 398
Cr.P.C. is in the nature of a revisional power which can be exercised
only by the High Court or the Sessions Judge, as the case may be.
However, a person discharged can also be arraigned again as an accused
but only after an inquiry as contemplated by Sections 300(5) and 398
Cr.P.C. If during or after such inquiry, there appears to be an evidence
against such person, power under Section 319 Cr.P.C. can be exercised.
23. From the aforesaid observations of the Constitution Bench of
this Court in Hardeep Singh, it is noted that an inquiry is contemplated
as against a person who has been discharged prior to the commencement
of the trial in terms of Section 227 Cr.P.C. as extracted above but on an
inquiry, if it appears that there is evidence against such a discharged
person, then power under Section 319 Cr.P.C. can be exercised against
such a discharged person. This clearly would mean that when a person
who is not discharged but is to be summoned as per Section 319 Cr.P.C.
on the basis of satisfaction derived by the court on the evidence on
record, no inquiry or hearing is contemplated. This would clearly indicate
that principle of natural justice and an opportunity of hearing a person
summoned under 319 Cr.P.C. are not at all contemplated. Such a right
of inquiry would accrue only to a person who is already discharged in
the very same proceeding prior to the commencement of the trial.