YASHODHAN SINGH & ORS. versus THE STATE OF UTTAR PRADESH & ANR. on 18 July 2023

[2023] 10 S.C.R.

YASHODHAN SINGH & ORS.

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THE STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 2186 of 2023)

JULY 18, 2023

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[B. V. NAGARATHNA AND UJJAL BHUYAN, JJ.]

Code of Criminal Procedure, 1973 – s.319 – Principle ofhearing a person who is summoned u/s. 319 Cr.P.C. – Applicabilityof – Respondent no.2-complainant got an FIR registered u/ss. 147,C148, 149, 302, 452, 307, 504 of IPC – A charge-sheet was filedagainst the accused persons but the names of appellants were notmentioned in it as their role was under investigation – Respondentno.2 filed application u/s. 319 Cr.P.C. to summon appellants – TrialCourt summoned appellants to join trial – High Court affirmed theDorder passed by the trial Court – Before the Supreme Court,appellant contended that either the summoning order may be setaside in light of paragraph 9 of the Jogendra Yadav case as noopportunity of hearing that was provided to the appellants, at thetime of order of summoning or the Jogendra Yadav case may bereferred to a larger Bench if not followed in the instant case – Held:

EMerely because in certain proceedings the persons summoned hadbeen provided an opportunity of being heard cannot be the samething as stating that it is a mandatory requirement or a preconditionthat at the time of summoning a person u/s. 319 of the Cr.P.C., heshould be given an opportunity of being heard – Paragraph 9 cannot Fbe considered to be ratio of the Jogendra Yadav judgment – Thejudgment in Jogendra Yadav does not calls for any re-considerationand observation in paragraph 9 is relatable only to the facts of thesaid case – Thus, the principle of hearing a person who is summonedcannot be read into s. 319 Cr.P.C, such a procedure is not at allcontemplated therein.GCode of Criminal Procedure, 1973 – s.319 – Object andpurpose – discussed.

Dismissing the appeal, the Court

HELD: 1. The Constitution Bench of this Court in HardeepHSingh, it is noted that an inquiry is contemplated as against a

person who has been discharged prior to the commencement ofthe trial in terms of Section 227 Cr.P.C. as extracted above buton an inquiry, if it appears that there is evidence against such adischarged person, then power under Section 319 Cr.P.C. can beexercised against such a discharged person. This clearly wouldmean that when a person who is not discharged but is to besummoned as per Section 319 Cr.P.C. on the basis of satisfactionderived by the court on the evidence on record, no inquiry orhearing is contemplated. This would clearly indicate that principleof natural justice and an opportunity of hearing a personsummoned under 319 Cr.P.C. are not at all contemplated. Such aright of inquiry would accrue only to a person who is alreadydischarged in the very same proceeding prior to thecommencement of the trial. This is different from holding that aperson who has been summoned as per Section 319 Cr.P.C. hasa right of being heard in accordance with the principles of naturaljustice before being added as an accused to be tried along withother accused. [Para 23][1212-D-G]

2. Further, when a person is summoned as an accused underSection 319 Cr.P.C. which is based on the satisfaction recordedby the Trial Court on the evidence that has emerged during thecourse of trial so as to try the person summoned as an accusedalong with the other accused, the summoned accused cannot seekdischarge. It is necessary to state that discharge as contemplatedunder Section 227 Cr.P.C. is at a stage prior to the commencementof the trial and immediately after framing of charge but whenpower is exercised the under Section 319 Cr.P.C. to summon aperson to be added as an accused in the trial to be tried alongwith other accused, such a person cannot seek discharge as thecourt would have exercised the power under Section 319 Cr.P.C.based on a satisfaction derived from the evidence that hasemerged during the evidence recorded in the course of trial andsuch satisfaction is of a higher degree than the satisfaction whichis 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 personssummoned had been provided an opportunity of being heardcannot be the same thing as stating that it is a mandatory A

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Arequirement or a precondition that at the time of summoning aperson under Section 319 of the Cr.P.C., he should be given anopportunity of being heard. That is not the mandate of lawinasmuch as Section 319 clearly uses the expression “to proceed”which means to proceed with the trial and not to jeopardise thetrial at the instance of the person(s) summoned by conducting aBmini trial or a trial within a trial thereby derailing the main trial ofthe case and particularly against the accused who are alreadyfacing trail and who may be in custody. A person who is summonedin exercise of the power under Section 319 Cr.P.C. cannot hijackthe trial so to say and deviate from its focus and take it to a tangentCin order to bolster his own case in a bid to escape trial. All that iscontemplated when a person is summoned to appear is toascertain that he is the very person who was summoned and ifany summoned person fails to appear on the given date. On theappearance of the summoned person, no procedure of an inquiryor opportunity of being heard is envisaged before been added asDan accused to the list of accused already facing trial unless such asummoned person had already been discharged, in which event,an inquiry is contemplated as discussed above. Thus, thecontention that a summoned person must be given an opportunityof being heard before being added as an accused to face the trialEis clearly not contemplated under Section 319 Cr.P.C. It is alsoobserved by this Court in Hardeep Singhthat such a summonedperson can assail a summoning order before a superiorCourt and will also have the right of cross examining the witnessesas well as can let in his defence evidence, if any. [Para 32][1219-D-H; 1220-A-B]F

4. The lateral entry of a person summoned in exercise ofpower under Section 319 Cr.P.C. is only to face the trial alongwith other accused. This, being a salutary provision in order tomeet the ends of justice, the same cannot be diluted by importingwithin the scope of Section 319 Cr.P.C. principles of natural justiceGwhich in any case would be followed during the trial. It is wellsettled that principles of natural justice cannot be applied in strait-jacket formula and they would depend upon the facts of each caseand the object and purpose to be achieved under a provision oflaw. [Para 33][1220-B-C]H

5. The judgment in Jogendra Yadavdoes not call for anyre-consideration and the said observation in paragraph 9 isrelatable only to the facts of the said case. Thus, the principle ofhearing a person who is summoned cannot be read into Section319 Cr.P.C. Such a procedure is not at all contemplated therein.In the circumstances, this Court does not accept the contentionsof the appellants herein. [Para 34][1220-D-E]

Sukhpal Singh Khair v. State of Punjab (2023) 1 SCC289; Brijendra Singh & Ors. v/s. State of Rajasthan(2017) 7 SCC 706 : [2017] 3 SCR 374; Hardeep Singhvs. State of Punjab & Ors. (2014) 3 SCC 92 : [2014] 2SCR 1 – followed.

Jogendra Yadav and Ors. vs. State of Bihar and Anr.(2015) 9 SCC 244 : [2015] 9 SCR 69; Ram JanamYadav & Ors. vs. State of U.P. & Anr. SLP (Crl.)No.3199/2021 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2186 of 2023.

From the Judgment and Order dated 03.01.2023 of the High Courtof 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, VivekanandRana, Pramod Kumar, Srilok Nath Rath, Ms. Reena Rao, Advs. for theAppellants.

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 bythe High Court at Allahabad in Criminal Revision No.4235 of 2022.

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A3. Briefly stated, the facts of the case according to theComplainant-Respondent No.2 herein are that he got registered an FIRbearing No.186/2018 on 09.06.2018 at around 21.45 at P.S. HathrasJunction District Hathras Uttar Pradesh under Sections 147, 148, 149,302, 452 307, 504 of the Indian Penal Code (for short, “IPC”) againstthe appellants herein alleging that appellant Nos. 1-7 (summoned accused)Bwent to the Complainant-Respondent No.2’s house and started hurlingabuses and firing, which consequently resulted in the Complainant’sinjuries and the death of his two brothers. A charge sheet was filedagainst the accused persons but the names of the appellants were notmentioned in it as their role was still under investigation.

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4. The Complainant filed an application before the AdditionalSessions Judge Court No.1, Hathras in Case Crime No.186 of 2018under Section 319 Cr.P.C. to summon the appellants herein on the basisof his evidence pursuant to which the Additional Sessions Judge passedan Order dated 23.09.2022 summoning the accused to join the trial.

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5. Aggrieved by the said Order of the Additional Sessions JudgeCourt No.1, Hathras, the appellants approached the High Court ofJudicature at Allahabad by way of Criminal Revision No.4235 of 2022.The High Court by way of the impugned Order dated 03.01.2023dismissed the same and affirmed the Order passed by the AdditionalESessions Judge Court No.1, Hathras in Case Crime No.186 of 2018dated 23.09.2022, to summon the appellants.

6. Hence, this appeal.

7. We have heard Shri S. Nagamuthu, learned senior counsel forthe appellants and Dr. Sushil Balwada, learned counsel for appellantNos.F1, 3 and 4; Shri Ratnakar Dash, learned senior counsel for the State andShri Yatharth Singh, learned counsel for the complainant, at length.

8. Vide Order dated 08.05.2023, this Court issued notice and thematter was directed to be listed in the second week of July, 2023. Forthe sake of immediate reference, the said Order is extracted as under - “We have heard Mr. S. Nagamuthu, learned senior counselappearing for the petitioners.

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Delay condoned.

This is a case where by the impugned order the High Courthas dismissed the revision challenging the order passed underSection 319 of the Cr.P.C. summoning the petitioners.

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In the course of his submission, Mr. Nagamuthu drew ourattention to the judgment of this Court in the case of JogendraYadav and Ors. vs. State of Bihar and Anr., reported in (2015) 9SCC 244. Therein, he pointed out that this Court has found thatsince a person who is added under Section 319 Cr.P.C. isnecessarily heard before he was so added and often gets a furtherhearing if he challenges the summoning order he cannot avail theremedy of discharge.

This Court may not have been inclined to interfere with theimpugned order but would have been inclined to reserve the remedyof seeking discharge, if so advised at the appropriate stage.

We have the benefit of hearing Mr. Yatharth Singh, learnedcounsel appearing on behalf of the respondent no.2-complaint oncaveat.

We are of the view that this aspect must be gone into if thecourt is to take a view which is at variance with the view taken inthe judgment of Jogendra Yadav and Ors. (supra).

Issue notice.

The petitioners may serve dasti also to the standing counselfor 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 inclinedto issue notice to the respondent(s) having regard to the submission madeby Shri S. Nagamuthu, learned senior counsel in the context of thejudgment of this Court in the case of Jogendra Yadav and Ors. vs. Stateof Bihar and Anr., reported in (2015) 9 SCC 244 (‘Jogendra Yadav’).

9. Shri S. Nagamuthu, learned senior counsel, at the outsetsubmitted that paragraph 9 of Jogendra Yadavhas categorically recordedthat when an accused is summoned in exercise of the power underSection 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 toface trial; that such an accused has a further right of hearing if hechallenges the summoning order before the High Court and further beforethis court. In light of the observations of this Court in Jogendra Yadav,the right of an accused, who is summoned to be heard before beingadded asan accused has been recognised by this Court; that in the instant AB

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Acase because there was no such hearing that was provided to theappellants, who were added as accused, in light of the aforesaid judgment,the impugned order may be set aside and the matter may be remandedto the Sessions Court for giving an opportunity to the appellants of beingheard before being added as accused.

B10. In this context, learned senior counsel drew our attention toanother 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 toconsider the question which emanated from the judgment in JogendraYadav and to refer the matter to a larger Bench, to decide: (1) as to,Cwhether, 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 personbefore 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 notreferred to answer the said questions as this Court found that in the saidDcase 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 justicein a criminal trial, learned senior counsel Sri Nagamuthu, submitted thatif such a hearing is not provided to the accused then the rights of theEpersons summoned to be added as an accused would be jeopardised. Inthis regard, learned Senior Counsel also submitted that the invocation ofpower under Section 319 of the Cr.P.C. is one to proceed with the trialon the basis of the evidence already recorded and that the satisfactionof the Sessions Court/Trial Court in such a case would be an objectivesatisfaction and not a subjective one and, therefore, in order to ensureFthat the right of the persons summoned to be added as an accused isenforced,it is necessary that such a person is heard before his additionasan accused to be tried along with other accused already facing trial.

12. It was next contended that if ultimately the person summonedis not given a right to seek discharge which he is also entitled to seek, itGbecomes all the more crucial that on notice being issued to the person tobe 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 alongwith other accused.

According to him, though Section 319 Cr.P.C. is silent as toHopportunity of hearing before being added as an accused, the same has to be read into the provision which would be in compliance to the principleof natural justices. In this connection, he has referred to the developmentof law regarding filing of protest petition against a closure report.

13. Learned counsel appearing for the other appellants alsosubmitted that in the instant case, the appellants were named in the FIRbut in the final report, their names were not mentioned. No protest petitionwas filed as against the said final report. It is only at the stage of trialthat the summoning order was passed by the Sessions Court, whichcould not have invoked Section 319 of the Cr.P.C. to summon theappellants herein to be added to the list of accused when their names didnot figure in the final report.

14. Therefore, it was contented on behalf of the appellants thateither the judgment in Jogendra Yadav be complied with by granting anopportunity of hearing to the appellants herein or the matter may bereferred to a larger Bench in case this Bench is not inclined to follow thesaid judgment.

15. Per contra, learned senior counsel appearing for the Stateand also learned counsel appearing for the complainant contended thatthe observations of this Court in Jogendra Yadav as well as the observationsof this Court in Ram Janam Yadav have to be construed only from theperspective of the peculiar facts of the said cases.

16. Learned senior counsel appearing for the State drew ourattention to paragraph 2 of Jogendra Yadav to contend that in the saidcase, the Additional Sessions Judge had in fact issued notice to theappellants therein to show cause as to why they should not be added asaccused. After giving an opportunity to the appellants therein to file areply, the Additional Sessions Judge summoned the appellants as accusedfor being added to the proceedings. Therefore, it was a case where theaccused therein had been heard before such summons was issued. Itwas contended that it is in the aforesaid context, that this Court hadobserved that the persons to be summoned as an accused would beheard before being added. The said observations of this Court inparagraph 9 must be read in the context of the facts of the said case andnot taken out of its context and blown out of proportion.

In order tobuttress this submission, it was pointed out that in theorder 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 A

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Ain the said case, it was not necessary to refer the questions of law to alarger Bench as in that case also, the persons who had been summonedas accused were in fact, given an opportunity of being heard and hence,the aforesaid two cases would turn on their own peculiar facts. In otherwords, what was sought to be contended was that an opportunity ofbeing heard to the persons summoned under Sections 319 of the Cr.P.C.Bwas on the facts of those cases and that cannot be made a rule orprinciple, which is applicable to all cases having regard to the object andpurpose of Section 319 of the Cr.P.C.

17. Learned counsel appearing for the complainant also supportedthe arguments of the learned senior counsel appearing for the State andCcontended that if the submissions of learned senior counsel for theappellants are to be accepted, then the entire trial of the accused wouldbe disrupted and there would be a trial within the trial, a concentriccircle, and there can be no conclusion of a trial on a timely basis whichwould vitiate the salutary principle of speedy trial which is recognizedDunder Article 21 of the Constitution of India as well as the right of thevictims to get justice. According to the learned Counsel, if the submissionsof learned Counsel for the appellants is to be accepted by this Court, itwould not only jeopardise a criminal trial but also prejudice the rights ofthe accused already facing trial and who possibly may be in custodyduring their trial. In other words, the persons who are to be added as anEaccused and summoned under Section 319 of the Cr.P.C. may come outwith their own pleas and contentions which would have to be firstconsidered by the Trial Court/Sessions Court and this would not onlycause delay in the progress of the main trial. It was submitted that Section319 of the Cr.P.C. is a wholesome provision which has to be invoked byFthe Sessions Court having regard to the evidence that has emerged inthe trial and on the satisfaction derived by the trial court as has beenenvisaged by this Court in the case of Hardeep SinghV/s. State ofPunjab &Ors. (2014) 3 SCC 92 (“Hardeep Singh”). Therefore, the saidcontentions of the learned counsel for the appellants may not be acceptedwas the joint plea of learned counsel for the respondents.G

18. Having heard learned senior counsel and learned counsel forthe respective parties, at the outset, we would refer to the Order dated8.5.2023 passed by this Court and the context in which notice was issuedto the respondent(s) herein. The said context can be clearly discernedby the fact that Mr. Nagamuthu, learned senior counsel contended thatHin paragraph 9 of the judgment in Jogendra Yadav, it is clearly indicated that the right of hearing must be afforded to a person summoned beforebeing added as an accused in the trial, and therefore, the impugned orderstood vitiated.

19. Before we proceed, we would refer to Sections 227 and 319of the Cr.P.C., which are extracted as under:

“227. Discharge.- If, upon consideration of the record of thecase and the documents submitted therewith, and after hearingthe submissions of the accused and the prosecution in this behalf,the Judge considers that there is not sufficient ground forproceeding against the accused, he shall discharge the accusedand record his reasons for so doing.

“319. Power to proceed against other persons appearing to beguilty 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 accusedhas committed any offence for which such person could be triedtogether with the accused, the Court may proceed against suchperson for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may bearrested or summoned, as the circumstances of the case mayrequire, 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 thepurpose of the inquiry into, or trial of, the offence which he appearsto 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 commencedafresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceedas if such person had been an accused person when the Courttook cognizance of the offence upon which the inquiry or trialwas commenced.”

20. Section 227 Cr.P.C. provides for discharge of an accused ifthe court finds that there is no sufficient grounds or reasons for proceedingagainst him. Consequently, the proceeding against discharged person is A

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Adropped. On the other hand, under Section 319 Cr.P.C., a person whohas not been named as an accused is summoned to be tried along withother accused while section 227 Cr.P.C. results in conclusion ofproceedings against a person who is an accused on his discharge. Onthe other hand, a person who is not an accused is summoned to be triedalong with other accused under Section 319 Cr.P.C.B

21. A reading of the said Section would clearly indicate that poweris given to the Court to proceed against any other person appearing to beguilty of an offence. The expression ‘proceed’ as appearing in Section319 Cr.P.C. is of significance. The exercise of power under Section 319Cr.P.C. is not at the initial stage where cognizance is taken of the offenceCand the summoning order is passed before committal of the matter tothe Sessions Court. That power exercised under Section 190 of the Cr.P.C.is quite distinct from the power exercised by the Trial Court/SessionsCourt under Section 319 of the Cr.P.C. In our view, much significanceturns on the expression ‘proceed’ in Section 319 Cr.P.C. The said SectionDcame up for consideration before this Court in innumerablecases.However, it is of relevance to mention Constitution Benchjudgments 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”).

E22. The relevant paragraphs in Hardeep Singh can be crystallisedas under: –

(i) The Constitution Bench of this Court was concerned with threeaspects: firstly, the stage at which powers under Section 319 Cr.P.C.can be invoked; secondly, the materials on the basis whereof the invokingof powers under Section 319 Cr.P.C. can be justified; and thirdly, theFmanner in which powers under Section 319 Cr.P.C. have to be exercised.While answering the five questions referred to the Constitution Bench inparagraph 117, it was concluded as under:

“117. We accordingly sum up our conclusions as follows:Questions (i) and (iii)G

— What is the stage at which power under Section 319 CrPCcan be exercised?

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— Whether the word “evidence” used in Section 319(1) CrPCHhas been used in a comprehensive sense and includes the 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 ofHaryana, (2014) 3 SCC 306 : AIR 2013 SC 3018] , the ConstitutionBench has already held that after committal, cognizance of anoffence can be taken against a person not named as an accusedbut against whom materials are available from the papers filed bythe police after completion of the investigation. Such cognizancecan be taken under Section 193 CrPC and the Sessions Judgeneed not wait till “evidence” under Section 319 CrPC becomesavailable for summoning an additional accused.

117.2. Section 319 CrPC, significantly, uses two expressionsthat have to be taken note of i.e. (1) inquiry (2) trial. As a trialcommences after framing of charge, an inquiry can only beunderstood to be a pre-trial inquiry. Inquiries under Sections 200,201, 202 CrPC, and under Section 398 CrPC are species of theinquiry contemplated by Section 319 CrPC. Materials comingbefore the court in course of such inquiries can be used forcorroboration of the evidence recorded in the court after the trialcommences, for the exercise of power under Section 319 CrPC,and also to add an accused whose name has been shown in Column2 of the charge-sheet.

117.3. In view of the above position the word “evidence” inSection 319 CrPC has to be broadly understood and not literallyi.e. as evidence brought during a trial.

Question (ii)—Whether the word “evidence” used in Section319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under thesaid provision even on the basis of the statement made in theexamination-in-chief of the witness concerned?

Answer

117.4. Considering the fact that under Section 319 CrPC aperson against whom material is disclosed is only summoned toface the trial and in such an event under Section 319(4) CrPC theproceeding against such person is to commence from the stage oftaking of cognizance, the court need not wait for the evidence A

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against the accused proposed to be summoned to be tested bycross-examination.

Question (iv)—What is the nature of the satisfaction requiredto invoke the power under Section 319 CrPC to arraign anaccused? Whether the power under Section 319(1) CrPC canbe exercised only if the court is satisfied that the accusedsummoned will in all likelihood be convicted?

Answer

117.5. Though under Section 319(4)(b) CrPC the accusedsubsequently impleaded is to be treated as if he had been anaccused when the court initially took cognizance of the offence,the degree of satisfaction that will be required for summoning aperson under Section 319 CrPC would be the same as for framinga charge [Ed. : The conclusion of law as stated in para 106, p.138c-d, may be compared:”Thus, we hold that though only a primafacie case is to be established from the evidence led before thecourt, not necessarily tested on the anvil of cross-examination, itrequires much stronger evidence than mere probability of hiscomplicity. The test that has to be applied is one which is morethan prima facie case as exercised at the time of framing of charge,but short of satisfaction to an extent that the evidence, if goesunrebutted, would lead to conviction”. See also especially in para100 at p. 136f-g.] . The difference in the degree of satisfactionfor summoning the original accused and a subsequent accused ison account of the fact that the trial may have already commencedagainst the original accused and it is in the course of such trialthat materials are disclosed against the newly summoned accused.Fresh summoning of an accused will result in delay of the trialtherefore the degree of satisfaction for summoning the accused(original and subsequent) has to be different.

Question (v)—Does the power under Section 319 CrPC extendto persons not named in the FIR or named in the FIR but notcharge-sheeted or who have been discharged?

Answer

117.6. A person not named in the FIR or a person though namedin the FIR but has not been charge-sheeted or a person who hasbeen discharged can be summoned under Section 319 CrPC

provided from the evidence it appears that such person can betried along with the accused already facing trial. However, insofaras an accused who has been discharged is concerned therequirement of Sections 300 and 398 CrPC has to be compliedwith before he can be summoned afresh.

(ii) While answering the questions aforesaid, this Court observedin Hardeep Singhthat if the investigating agency for any reason doesnot array one of the real culprits as an accused, the court is not powerlessin calling the said accused to face trial. The entire effort, therefore, isnot to allow the real perpetrator of an offence to get away unpunished.It is with the said object in mind that a constructive and purposiveinterpretation should be adopted that advances the cause of justice anddoes not dilute the intention of the statute conferring powers on thecourt to carry out the avowed object and purpose to try the person to thesatisfaction of the court as an accomplice in the commission of the offencethat is the subject matter of trial. It was pertinently observed by thisCourt that the desire to avoid trial is so strong that an accused makesefforts at times to get himself absolved even at the stage of investigationor inquiry even though he may be connected with the commission of theoffence.

(iii) While distinguishing a trial from an enquiry, it was observedby this Court that trial follows an inquiry and the purpose of the trial is tofasten the responsibility upon a person on the basis of facts presentedand evidence led. Emphasising on the word “course” used in Section319 Cr.P.C., it was observed that the said power can be invoked underthe said provision against any person from the initial stage of inquiry bythe court up to the stage of conclusion of the trial. Since after the filingof the charge-sheet, the court reaches the stage of inquiry and as soonas the court frames the charges, the trial commences. Thus, the powerunder Section 319(1) Cr.P.C. can be exercised at any time after thecharge-sheet is filed before the pronouncement of judgment, except duringthe stage of Sections 207/208 Cr.P.C., committal, etc.

(iv) Elaborating the nuances of Section 319 Cr.P.C., it was furtherobserved in Hardeep Singhthat what is essential for the purpose ofSection 319 Cr.P.C. is that there should appear some evidence against aperson not proceeded against; the stage of the proceedings is irrelevant.Section 319 Cr.P.C. is an empowering provision particularly where thecomplainant is circumspect in proceeding against several persons, but A

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Athe court is of the opinion that there appears to be some evidence pointingto the complicity of some other persons as well.

(v) It was further observed that circumstances which lead to theinference being drawn up by the court for summoning a person underSection 319 arise out of the availability of the facts and material thatBcome up before the court. The material should disclose complicity of theperson in the commission of the offence which has to be the materialthat appears from the evidence during the course of any inquiry into ortrial of offence.

(vi) It was also observed by this Court in Hardeep Singh thatCapart from evidence in the strict legal sense recorded during trial, anymaterial that has been received by the court after cognizance is takenand before the trial commences, can be utilised only for corroborationand to support the evidence recorded by the court to invoke the powerunder Section 319 Cr.P.C. Holding that the expression “evidence” mustbe given a broad meaning, it was observed that material which is notDexactly evidence recorded before the court, but is a material collectedby the court, can be utilised to corroborate evidence already recordedfor the purpose of summoning any other person, other than the accused.Such material would be supportive in nature to facilitate the expositionof any other accomplice whose complicity in the offence may have beenEsuppressed or had escaped the notice of the court. Therefore, any materialbrought before the court even prior to the trial can be read within themeaning of the expression “evidence” for the purpose of Section 319Cr.P.C. While considering the evidence that emanates during the trial, itwas observed by this Court that evidence recorded by way ofexamination-in-chief and which is untested by cross-examination isFnevertheless evidence which can be considered by the court for theexercise of power under Section 319 Cr.P.C. so long as, it would appearto the court that some other person who is not facing the trial, may alsohave been involved in the offence.

(vii) Further, Section 319 Cr.P.C. also uses the words “such personGcould be tried”, which means not to have a mini-trial at the stage ofSection 319 Cr.P.C. by having examination and cross-examination andthereafter coming to a prima facie conclusion on the overt act of suchperson sought to be added. Such a mini-trial will affect the right of theperson sought to be arraigned as an accused rather than not having anyHcross-examination at all. As under Section 319 (4) Cr.P.C., such a person

has the right to cross-examine the prosecution witnesses and examinethe defence witnesses and advance his arguments. It was further observedthat the power under Section 319 Cr.P.C. can be exercised even aftercompletion of examination-in-chief and the court does not have to waittill the said evidence is tested on cross-examination, for it is the satisfactionof the court which can be gathered from the reasons recorded by thecourt, in respect of complicity of some other persons, not facing the trialin the offence.

(viii) The test that has to be applied is one which is more thanprima facie case as exercised at the time of framing of charge, butshort of satisfaction to an extent that the evidence, if goes unrebutted,would lead to conviction. Therefore, such satisfaction is sina qua nonfor exercise of power under Section 319 Cr.P.C. Ultimately, the exerciseof power is for the trial of such persons summoned together with theaccused already on trial and not for conviction with the accused.Therefore, at that stage, the court need not form any definite opinion asto the guilt of the accused.

(ix) This Court further observed that the difference in the degreeof satisfaction for summoning the original accused and a subsequentaccused is on account of the fact that the trial may have alreadycommenced against the original accused and it is in the course of suchtrial that materials are disclosed against the newly summoned accused.Hence, the degree of satisfaction for summoning the original accusedand the accused summoned subsequently during the course of trial isdifferent.

(x) It was further observed by this Court that a person, whosename does not appear even in the FIR or in the charge-sheet or whosename appears in the FIR and not in the main part of the charge-sheetbut in Column 2 and has not been summoned as an accused in exerciseof the powers under Section 193 Cr.P.C. can still be summoned by thecourt, provided the court is satisfied that the conditions provided in thesaid statutory provisions stand fulfilled. However, a person who hasalready been discharged stands on a different footing than a person whowas never subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the courtand upon judicial examination of the material collected during investigation,the court had come to the conclusion that there is not even a primafacie case to proceed against such person. Therefore, the court must A

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Akeep in mind that the witness when giving evidence against the personso discharged, is not doing so merely to seek revenge or is naming him atthe behest of someone or for such other extraneous considerations.

(xi) This Court further observed that it has to be circumspect intreating such evidence and try to separate the chaff from the grain. IfBafter such careful examination of the evidence, the court is of the opinionthat 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. withoutresorting to the provision of Section 319 Cr.P.C. directly. Section 398Cr.P.C. is in the nature of a revisional power which can be exercisedonly by the High Court or the Sessions Judge, as the case may be.CHowever, a person discharged can also be arraigned again as an accusedbut only after an inquiry as contemplated by Sections 300(5) and 398Cr.P.C. If during or after such inquiry, there appears to be an evidenceagainst such person, power under Section 319 Cr.P.C. can be exercised.

23. From the aforesaid observations of the Constitution Bench ofDthis Court inHardeep Singh, it is noted that an inquiry is contemplatedas against a person who has been discharged prior to the commencementof the trial in terms of Section 227 Cr.P.C. as extracted above but on aninquiry, if it appears that there is evidence against such a dischargedperson, then power under Section 319 Cr.P.C. can be exercised againstEsuch a discharged person. This clearly would mean that when a personwho 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 onrecord, no inquiry or hearing is contemplated. This would clearly indicatethat principle of natural justice and an opportunity of hearing a personsummoned under 319 Cr.P.C. are not at all contemplated. Such a rightFof inquiry would accrue only to a person who is already discharged inthe very same proceeding prior to the commencement of the trial. Thisis different from holding that a person who has been summoned as perSection 319 Cr.P.C. has a right of being heard in accordance with theprinciples of natural justice before being added as an accused to be triedGalong with other accused.

24. Further, when a person is summoned as an accused underSection 319 Cr.P.C. which is based on the satisfaction recorded by theTrial Court on the evidence that has emerged during the course of trialso as to try the person summoned as an accused along with the otherHaccused, the summoned accused cannot seek discharge. It is necessary to state that discharge as contemplated under Section 227 Cr.P.C. is at astage prior to the commencement of the trial and immediately after framingof charge but when power is exercised theunder Section 319 Cr.P.C. tosummon a person to be added as an accused in the trial to be tried alongwith other accused, such a person cannot seek discharge as the courtwould have exercised the power under Section 319 Cr.P.C. based on asatisfaction derived from the evidence that has emerged during theevidence recorded in the course of trial and such satisfaction is of ahigher degree than the satisfaction which is derived by the court at thetime of framing of charge.

25. Learned senior counsel Sri S. Nagamuthu strenuouslycontended that a person summoned in exercise of power under Section319 Cr.P.C. must be given an opportunity of being heard before beingadded as an accused to the trial to be tried along with the other accusedand that such person must have an opportunity of filing an applicationseeking discharge. The same are clearly not envisaged in view of thejudgment inHardeep Singh and hence the said contentions are rejected.

Moreover, there is no finality attached to Section 319 Cr.P.C. Itonly indicates commencement of trial qua the added accused.Therationale is that a person need not be heard before being added on arrayedas an accused. Reference to and reliance placed upon opportunity ofhearing to a complainant in the form of protest petition when a closurereport is filed in wholly misplaced because there is finality in a closurereport; therefore the complainant is given an opportunity.

26. In Sukhpal Singh Khair, a Constitution Bench of this Courtof which one of us was a member (Nagarathna, J.), adumbrated on themeaning of the expression “conclusion of trial” in the context of Section319 read with other allied Sections of the Cr.P.C. and after referring toseveral decisions of this Court including Hardeep Singh (supra)answered the question referred to as under:

“39.(I) Whether the trial court has the power under Section319CrPC for summoning additional accused when the trial withrespect to other co-accused has ended and the judgment ofconviction rendered on the same date before pronouncing thesummoning order?

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where there is a judgment of conviction of the accused. In thecase of acquittal, the power should be exercised before theorder of acquittal is pronounced. Hence, the summoning orderhas to precede the conclusion of trial by imposition of sentencein the case of conviction. If the order is passed on the sameday, it will have to be examined on the facts and circumstancesof each case and if such summoning order is passed eitherafter the order of acquittal or imposing sentence in the case ofconviction, the same will not be sustainable.

40. (II) Whether the trial court has the power under Section319 CrPC for summoning additional accused when the trial inrespect of certain other absconding accused (whose presence issubsequently secured) is ongoing/pending, having been bifurcatedfrom the main trial?

The trial court has the power to summon additional accusedwhen the trial is proceeded in respect of the absconding accusedafter securing his presence, subject to the evidence recordedin the split-up (bifurcated) trial pointing to the involvement ofthe accused sought to be summoned. But the evidence recordedin the main concluded trial cannot be the basis of thesummoning order if such power has not been exercised in themain trial till its conclusion.

41. (III) What are the guidelines that the competent court mustfollow while exercising power under Section 319CrPC?

41.1. If the competent court finds evidence or if applicationunder Section 319 CrPC is filed regarding involvement of anyother person in committing the offence based on evidence recordedat any stage in the trial before passing of the order on acquittal orsentence, it shall pause the trial at that stage.

41.2. The court shall thereupon first decide the need orotherwise to summon the additional accused and pass ordersthereon.

41.3. If the decision of the court is to exercise the power underSection 319 CrPC and summon the accused, such summoningorder shall be passed before proceeding further with the trial inthe main case.

41.4. If the summoning order of additional accused is passed,depending on the stage at which it is passed, the court shall alsoapply its mind to the fact as to whether such summoned accusedis to be tried along with the other accused or separately.

41.5. If the decision is for joint trial, the fresh trial shall becommenced only after securing the presence of the summonedaccused.

41.6. If the decision is that the summoned accused can betried separately, on such order being made, there will be noimpediment for the court to continue and conclude the trial againstthe accused who were being proceeded with.

41.7. If the proceeding paused as in para 41.1 above, is in acase where the accused who were tried are to be acquitted, andthe decision is that the summoned accused can be tried afreshseparately, there will be no impediment to pass the judgment ofacquittal in the main case.

41.8. If the power is not invoked or exercised in the main trialtill its conclusion and if there is a split-up (bifurcated) case, thepower under Section 319CrPC can be invoked or exercised onlyif there is evidence to that effect, pointing to the involvement ofthe additional accused to be summoned in the split-up (bifurcated)trial.

41.9. If, after arguments are heard and the case is reservedfor judgment the occasion arises for the Court to invoke andexercise the power under Section 319CrPC, the appropriate coursefor the court is to set it down for re-hearing.

41.10. On setting it down for re-hearing, the above laid downprocedure to decide about summoning; holding of joint trial orotherwise shall be decided and proceeded with accordingly.

41.11. Even in such a case, at that stage, if the decision is tosummon additional accused and hold a joint trial the trial shall beconducted afresh and de novo proceedings be held.

41.12. If, in that circumstance, the decision is to hold a separatetrial in case of the summoned accused as indicated earlier:

(a) The main case may be decided by pronouncing theconviction and sentence and then proceed afresh againstsummoned accused.

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A(b) In the case of acquittal the order shall be passed to thateffect in the main case and then proceed afresh againstsummoned accused.

27. In Brijendra Singh, after referring to Hardeep Singh,thisCourt considered the question as to the degree of satisfaction that isBrequired for invoking the powers under Section 319 Cr.P.C. and therelated question, namely, as to, in what situations, this power should beexercised in respect of a person named in the FIR but not charge-sheeted.This Court held that once the trial court finds that there is some “evidence”against such a person on the basis of which it can be gathered that heappears to be guilty of the offence, there can be exercise of powerCunder Section 319 Cr.P.C. It was observed that the evidence in thiscontext means the material that is brought before the court during trial.Insofar as the material or evidence collected by the Investigating Officer(IO) at the stage of inquiry is concerned, it can be utilised forcorroboration and to support the evidence recorded by court to invokeDthe power under Section 319 Cr.P.C. This Court distinguished betweenthe degree of satisfaction arrived at while exercising power under Section319 Cr.P.C. which is greater than the degree which is warranted at thetime of framing of charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs againsta person from the evidence led before the court, that such power shouldEbe exercised. Such power should not be exercised in a casual or a cavaliermanner. The prima facie opinion which is to be formed requires strongerevidence than mere probability of a person’s complicity were theobservations of this Court.

Holding that in the said case there was no satisfaction, the orderFpassed under Section 319 Cr.P.C. summoning the appellant therein wasset aside by this Court.

28. It is in light of the aforesaid judgments, we have to considerthe judgment of this Court in Jogendra Yadav which is the basis of thearguments of SriNagamuthu, learned senior counsel appearing for theGappellants. As already noted, in the said case, the Additional SessionsJudge had issued notice to the appellants therein under Section 319 ofthe Cr.P.C. to show cause as to why they should not be added as accusedand an opportunity was provided to the appellants therein to file theirreply and after being heard, the summoned appellants therein were addedHas accused to the proceedings. It was nobody’s case that they were not heard before such summoning order was passed. Despite that, the saidorder was challenged and ultimately the matter came up before thisCourt. This Court in the course of its judgment referred to the object andpurpose of Section 319 of the Cr.P.C. and distinguished it fromSection227, which provides for discharge by observing as under –

“6. On a perusal of Section 319 of the Cr.P.C., it is apparent thata person who is not an accused may be added as an accused onlywhen it appears from the evidence that he has committed anyoffence for which he could be tried together with the accused.The Section says that in such an eventuality, the Court “mayproceed against such person” for the offence which he appearsto have committed. In other words, a person who is not an accusedbecomes liable to be added where he appears to have committedan offence. Thereupon, the effect is that the Court may proceedagainst such a person.

7. Section 227 of the Cr.P.C. on the other hand, provides that anaccused may be discharged if the Judge construes that there is nosufficient ground for the proceedings against him. In other words,if the Judge is of the view that there are no sufficient grounds forthe proceedings against the accused, he may be discharged,whereupon the proceedings against him are dropped.

8. It is apparent that both these provisions, in essence, have theopposite effect. The power under Section 319 of the Cr.P.C. resultsin the summoning and consequent commencement of theproceedings against a person who was hitherto not an accusedand the power under Section 227 of the Cr.P.C., results intermination of proceedings against the person who is an accused.”

29. The sheet anchor of the arguments advanced on behalf of theappellants is what has been observed by this Court in the said judgmentin paragraph 9, which reads as under –

“9. It was, however, urged by learned counsel for the appellantsthat in order to avail of the remedies of discharge under Section227 of the Cr.P.C., the only qualification necessary is that theperson should be accused. Learned counsel submitted that thereis no difference between an accused since inception and accusedwho has been added as such under Section 319 of the Cr.P.C. Itis, however, not possible to accept this submission since there is a A

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Amaterial difference between the two. An accused since inceptionis not necessarily heard before he is added as an accused.However, a person who is added as an accused under Section319 of the Cr.P.C., is necessarily heard before being so added.Often he gets a further hearing if he challenges the summoningorder before the High Court and further. It seems incongruousBand indeed anomalous if the two sections are construed to meanthat a person who is added as an accused by the court afterconsidering the evidence against him can avail remedy of dischargeon the ground that there is no sufficient material against him.Moreover, it is settled that the extraordinary power under SectionC319 of the Cr.P.C., can be exercised only if very strong and cogentevidence occurs against a person from the evidence led beforethe Court.”

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Much emphasis has been laid on the expression “a person who isDadded as an accused under Section 319 of the Cr.P.C. is necessarilyheard before being so added” as extracted supra. Therefore, it wascontended on behalf of appellants that in the instant case, there being noopportunity to the appellants herein of being heard, the summoning orderitself was vitiated and, therefore, the impugned order of the High CourtEmay be set aside as also the order passed by the Sessions Courtsummoning the accused.

30. It is necessary to consider the contentions of the learnedcounselfor the appellants in the light of what has been observed inparagraph 9 extracted above and in light of what has been observed bythis Court in the subsequent paragraphs and having regard to the earlierFjudgments of this Court referred to above in detail.

31. In paragraph 13 of Jogendra Yadav, it has been observed thatthe exercise of power under Section 319 of the Cr.P.C. must be placedon a higher pedestal.Needless to say, the accused summoned underSection 319 of the Cr.P.C. are entitled to invoke the remedy under lawGagainst an illegal or improper exercise of power under Section 319 ofthe Cr.P.C. but that cannot have the effect of the order being undone byseeking a discharge under Section 227 of the Cr.P.C. Therefore, thisCourt categorically held that a person, who is summoned under Section319 of the Cr.P.C. cannot avail the remedy of discharge under SectionH227 of the Cr.P.C. In that context, this Court, as already noted, discussed the difference between Sections 227 and 319 of the Cr.P.C, as extractedabove. This Court in the subsequent paras of the said judgment has alsonot stated that if a person is to be summoned under Section 319 of theCr.P.C. to be added as an accused, then an opportunity must be given tosuch a person and only after hearing him, he could be added as an accusedin the trial. We do not find that the ratio ofJogendra Yadavturns on thesaid aspect. However, it is contented by learned Senior counsel ShriNagamuthu that what has been observed in paragraph 9 of the saidjudgment will make it a necessary mandate or a rule that a person whois to be summoned under Section 319 of the Cr.P.C. to be added as anaccused will necessarily be heard before being so added. Paragraph 9cannot be considered tobe the ratio of the said judgment. Further, thecontext in which the observations are made in paragraph must relate tothe facts of the said case where an opportunity was in fact provided tothe persons summoned therein.

Similarly, in the case of Ram Janam Yadav,on facts, it was noticedthat the person summoned was, in fact, provided an opportunity of hearing.

32. Merely because in certain proceedings the persons summonedhad been provided an opportunity of being heard cannot be the samething as stating that it is a mandatory requirement or a pre-condition thatat the time of summoning a person under Section 319 of the Cr.P.C., heshould be given an opportunity of being heard.That is not the mandate oflaw inasmuch as Section 319 clearly uses the expression “toproceed”which means to proceed with the trial and not to jeopardise thetrial at the instance of the person(s) summoned by conducting a minitrial or a trial within a trial thereby derailing the main trial of the case andparticularly against the accused who are already facing trail and whomay be in custody. A person who is summoned in exercise of the powerunder Section 319 Cr.P.C. cannot hijack the trial so to say and deviatefrom its focus and take it to a tangent in order to bolster his own case ina bid to escape trial. All that is contemplated when a person is summonedto appear is to ascertain that he is the very person who was summonedand if any summoned person fails to appear on the given date. On theappearance of the summoned person, no procedure of an inquiry oropportunity of being heard is envisaged before been added as an accusedto the list of accused already facing trial unless such a summoned personhad already been discharged, in which event, an inquiry is contemplatedas discussed above. Thus, the contention that a summoned person mustbe given an opportunity of being heard before being added as an accused AB

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to face the trial is clearly not contemplated under Section 319 Cr.P.C. Itis also observed by this Court inHardeep Singhthat such a summonedperson can assail a summoning order before a superior Court and willalso have the right of cross examining the witnesses as well as can let inhis defence evidence, if any.

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33. Thus, the lateral entry of a person summoned in exercise ofpower under Section 319 Cr.P.C. is only to face the trial along with otheraccused. This, being a salutary provision in order to meet the ends ofjustice, the same cannot be diluted by importing within the scope ofSection 319 Cr.P.C. principles of natural justice which in any case wouldbe followed during the trial.

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It is well settled that principles of natural justice cannot be appliedin strait-jacket formula and they would depend upon the facts of eachcase and the object and purpose to be achieved under a provision of law.

34. In view of the aforesaid discussion, we do not think that theDjudgment in Jogendra Yadavcalls for any re-consideration and the saidobservation in paragraph 9 as extracted supra is relatable only to thefacts of the said case. Thus, the principle of hearing a person who issummoned cannot be read into Section 319 Cr.P.C. Such a procedure isnot at all contemplated therein. In the circumstances, we do not acceptthe contentions of the appellants herein.

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35. At this stage, learned senior counsel and learned counsel forthe appellants submitted that the appellants would appear before theSessions Court on the next date of hearing, i.e., 31.07.2023 and wouldseek all remedies available to them in law.

The submissions of learned senior counsel and learned counselfor the appellantsare placed on record.

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Thus, we find no merit in the appeal which is accordingly dismissed.

Pending application(s) shall stand disposed of.

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Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeal dismissed.

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