Rimpy Sharma and Another Vs State of Hp and Another

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

	Cr. MMO No.	: 1008 of 2024
	Reserved on	: 08.07.2025
	Decided on	: 07.10.2025
Rimpy Sharma & Another		…Petitioners
	Versus
State of Himachal Pradesh	& Another	…Respondents

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Coram

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The Hon’ble Mr. Justice Virender Singh, Judge.

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Whether approved for reporting?¹ Yes.

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For the petitioner : Ms. Ragini Dogra, Advocate. For the respondent : Mr. Anup Rattan, Advocate General with Mr. H.S. Rawat, Additional Advocate General for respondent No.1. Mr. Ajay Kochhar, Senior Advocate with Ms. Akanksha Chauhan, Advocate for respondent No.2.

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Virender Singh, Judge

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Petitioners, have filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the 'BNSS'), for quashing of order dated 11.09.2024, passed in Cr.MA No.174 of 2024 , titled as State of H.P. versus Rikhi

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1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

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Ram, passed by the Court of learned Additional Sessions Judge, Hamirpur, District Hamirpur (hereinafter referred to as the ‘trial Court’).

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Vide order dated 11.09.2024, the learned trial Court has summoned the petitioners for the commission of offences punishable under Sections 304 and 323 read with Section 34 of the IPC.

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For the sake of convenience, the petitioners are hereinafter referred to as the ‘additional accused’ and respondent No.2 as ‘complainant’

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Brief facts, leading to filing of the present petition, before this Court, as borne out from the record, may be summed up, as under:

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4.1. On 2.1.2022, Up Pradhan Nanwan, telephonically informed the police of Police Station Barsar, about the quarrel, which had taken place in village Vyar and requested to send the police, upon which SI Sukhdev Raj along with other police official, reached at village Vyar Kalan. SI Sukhdev Raj telephonically informed that a person, namely Gauri Nand Sharma, who became unconscious in the quarrel, has been taken to CH Barsar

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for treatment, upon which, ASI Ajayab Singh reached at Civil Hospital Barsar, where complainant Gaytri Devi and Gauri Nand Sharma, who was unconscious, were found to be admitted for treatment. Their medicolegal examination was conducted.

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4.2. The Medical Officer has mentioned three injuries on the person of Gaytri Devi and Xray was advised to be conducted, whereas, on the MLC of Gauri Nand, four injuries were stated to have been found on his person and he has been declared as brought dead.

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4.3. Thereafter, Gaytri Devi, got recorded her statement, under Section 154 Cr.PC, in which, she has disclosed that she is resident of the address, as mentioned in the statement, and is a home maker. Her husband expired in an accident, when he was serving in the Army. She had two children, both were married and residing with their families at Chandigarh. Her brotherinlaw is also residing with them at Chandigarh.

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4.4. According to the complainant, she and her brotherinlaw had a civil litigation with Rikhi Ram and Lakshman Dass. Complainant and her brotherinlaw

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( devar ) Gauri Nand were constructing a bathroom, upon which Rikhi Ram etc., had obtained stay from the Court. Thereafter, their lawyer informed that Rikhi Ram had made an application, in the Court, by saying no objection with regard to the construction of the bathroom. Thereafter, the complainant and her brotherinlaw Gauri Nand Sharma came back from Chandigarh on 26.12.2021.

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4.5. On 2.1.2022, at about 11.30 a.m., Up Pradhan Gram Panchayat Nanwan Shyam Lal Sharma came to the spot. At that time, Rikhi Ram, Lakshman Dass, Roshni Devi Rimpy Sharma and Vipin Kumar, were also present, on the spot. Up Pradhan Shyam Lal Sharma, Santosh Kumari and Somlata tried to pacify both the parties and in order to discuss the matter, said Shyam Lal Sharma, Santosh Kumari and Somlata, had gone to the backyard of the house of the complainant.

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4.6. Roshani Devi wife of Rikhi Ram, had said to her husband that ‘in dono ka kanda kad do’ . Rikhi Ram had dragged Gauri Nand, who was sitting on the chair and made him fall on the ground. Thereafter, Roshani Devi and Rimpy went to kitchen, from where, Roshani Devi

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brought knife and given to her husband Rikhi Ram. The complainant did not know as to what Rikhi Ram was having in his hand, with which, he had attacked upon the complainant and Gauri Nand on their head.

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4.7. Thereafter, Rikhi Ram, Lakshman Dass, Roshani Devi, Rimpy Sharma and Vipin Kumar, attacked on Gauri Nand Sharma. Rikhi Ram was having a knife in his hand, Lakshman was having chair, and Rimpy Sharma was having some heavy object. Vipin Kumar and Roshani Devi had beaten the complainant and Gauri Nand with fist blows. After beating them, all of them had fled away.

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4.8. Gauri Nand sustained injuries over his forehead, palm of his right hand, head and other parts of the body, whereas, the complainant sustained injuries on her right hand, head and other parts of the body. Thereafter, Up Pradhan Shyam Lal Sharma made a call on 108 number. Subsequently, ambulance reached there and the complainant and Gauri Nand in unconscious condition were taken for treatment to CH Barsar, where the Medical Officer declared Gauri Nand Sharma, as brought dead.

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4.9. Lastly, the complainant has got recorded the fact that Rikhi Ram, Lakshman Dass, Roshani Devi, Rimpy Sharma and Vipin Kumar, with their common intention, had beaten the complainant and her brotherinlaw Gauri Nand, due to which Gauri Nand had expired. As such, she has requested to take action against Rikhi Ram, Lakshman Dass, Roshani Devi, Rimpy Sharma and Vipin Kumar.

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On the basis of the above facts, the police registered FIR, under Sections 302, 323, 34 of the IPC and the criminal machinery swung into motion.

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The accused persons were arrested and after completion of the investigation, the police filed charge sheet, before the learned trial Court, under Sections 304, 323, and 34 of the IPC, against Rikhi Ram, Lakshman Dass and Roshani Devi and Section 302 IPC was deleted, in this case, on the basis of the medical evidence.

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The chargesheet was filed in the Court of learned Judicial Magistrate First Class, Barsar. Thereafter, the same was committed to the Court of Sessions, vide order dated 12.05.2022, from where, the same has been assigned to the learned trial Court.

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Learned trial Court, on finding a prima facie

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case, for commission of offence punishable under Sections 304, 323, 34 against accused Rikhi Ram, Lakshman Dass and Roshani Devi, has framed the charges against them and when the charges, so framed, were put to the aforesaid accused, they pleaded not guilty and claimed to be tried.

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Consequently, the prosecution was directed to adduce evidence. On 16.08.2023, statement of PW1, Shyam Lal was recorded and thereafter the matter was adjourned for PWs on 16.10.2023 and 20.01.2024. On 11.03.2024, complainant Gaytri Devi, appeared in the witness box as PW2. In the examinationinchief, she has made the following statement:

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“Again stated that Vipin was videographing the proceedings. I told Rimpi that Gauri Nand is your Chacha and you should not hit him, then Rimpi called Vipin and Vipin also assaulted Gauri Nand.”

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On the basis of the above facts, the prosecution has moved an application, under Section 319 of the Cr.PC, for summoning Vipin Kumar and Rimpy Sharma, as additional accused, in the present case. The said application has been contested by accused Rikhi Ram,

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Roshani Devi and Lakshman Dass by filing reply. The complainant has supported the prayer as made in the application.

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The learned trial Court, thereafter allowed the said application, vide order dated 11.09.2024 and the additional accused were ordered to be summoned for the commission of the offence punishable under Sections 304, 323, 34 IPC.

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Aggrieved from the said order, the present petition has been filed by the additional accused, assailing the order passed by the learned trial Court, on the ground that there are inherent contradictions in the contents of the FIR, as well as, deposition made by complainant with regard to the presence and role attributed to the additional accused including the fact that there is nothing in her statement, which corroborates with the articles recovered, in the present case, raising a serious doubt on the veracity of the complainant/PW2.

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The order has further been assailed on the ground that the learned trial Court has wrongly mentioned that there was only one eye witness, however, as a matter

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of fact, there were two eye witnesses i.e. PW2 and one Shakuntala Devi, whose statement, under Section 161 Cr.PC, has duly been recorded, in which, no specific role has been attributed to the additional accused.

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Impugned order has further been assailed on the ground that in order to exercise the powers, under Section 319 Cr.PC, much stronger evidence more than mere possibility of complicity, is required, whereas, the learned trial Court has wrongly relied upon the deposition of PW2, overlooking and undermining the other parts of evidence, which forms the term ‘Evidence’, as defined under Section 319 Cr.PC. Ingredients of Section 319 Cr.PC, have not been fulfilled, in the present case, as the test, which is required is more than a prima facie case or mere possibility of complicity.

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According to the additional accused, the evidence, so relied upon by the learned trial Court, does not constitute strong and cogent evidence sufficient enough to summon the additional accused.

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The impugned order has also been assailed on the ground that the absence of statement of PW2, under

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Section 161 Cr.PC, demonstrates the fact that she was not examined by the police and her improved version does not carry any substance and weight to summon the additional accused.

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On the basis of the above facts, Ms. Ragini Dogra, Advocate, appearing for the additional accused, has argued that the present petition may kindly be allowed by setting aside the order dated 11.09.2024, passed by the learned trial Court.

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The prayer, so made, has been opposed by Mr. Anup Rattan, learned Advocate General, assisted by Mr. H.S. Rawat, Additional Advocate General, appearing on behalf of respondent No.1 and Mr. Ajay Kochhar, Senior Advocate, assisted by Ms. Akanksha Chauhan, Advocate for respondent No.2/complainant, on the ground that from the time of lodging the FIR and till the conclusion of investigation, as well as, in the statement made by the complainant, on oath, before the learned trial Court, specific allegations have been levelled against the additional accused and the learned trial Court has rightly

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summoned the additional accused, in the present case, as such, a prayer has been made to dismiss the petition.

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Learned trial Court, in the present case, has allowed the application of the prosecution, filed, under Section 319 Cr.PC, on the basis of the statement of PW2 Gaytri Devi, who, while appearing in the witness box, deposed, on oath, that ‘Vipin was videographing the proceedings. I told Rimpi that Gauri Nand is your Chacha and you should not hit him, then Rimpi called Vipin and Vipin also assaulted Gauri Nand’.

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In such situation, the first and foremost question, which arises for determination, before this Court, is whether the judicial discretion, which has been exercised, by the learned trial Court, can be interfered, by this Court, on the basis of the arguments, so advanced by the learned counsel appearing for the additional accused, who have challenged the order passed by the learned trial Court, by way of the present petition.

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Learned counsel appearing for the additional accused, in order to buttress her contentions, has also relied upon the fact that the learned trial Court has not

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considered the fact that additional accused No.1 was interceding between the persons, involved in the scuffle and ran towards the backside of the house, to call Panchayat members for intercession, whereas, according to her, additional accused No.2, was not even present on the spot, where the alleged scuffle took place. Rather, he was standing near the gate. In this regard, learned counsel appearing for the additional accused has relied upon, the statements of the witnesses, recorded under Section 161 Cr.PC.

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The prosecution has moved the application, after the names of additional accused, appear in the statement of PW2, which has been reproduced, as above. The said statement of PW2, has not been tested in the crossexamination, by the learned counsel representing the accused persons before the learned trial Court.

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The Constitutional Bench of the Hon’ble Supreme Court in Hardeep Singh versus State of Punjab

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& Others, (2014) 3 Supreme Court Cases 92 , has

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elaborately discussed the provisions of Section 319 Cr.PC,

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by highlighting the object that the real culprit should not get away unpunished. In addition to this, the Hon’ble Supreme Court has also discussed the term ‘Evidence’, as used by the legislature in its wisdom, in Section 319 Cr.PC.

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In this matter, Hon’ble Supreme Court has answered the reference made by a three Judge Bench, and has formulated the following five questions:

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“6. On the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this Bench:

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6.1. (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

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6.2. (ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. 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 inchief of the witness concerned?

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6.3. (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has 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?

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6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?

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6.5. (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?”

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In the above case, the Hon’ble Supreme Court has also discussed the object of Section 319 Cr.PC. Relevant paragraphs 9 to 13 of the judgment, are reproduced, as under:

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“9. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Cr.P.C. 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 above mentioned 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 subject matter of trial.

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10. In order to answer the aforesaid questions posed, it will be appropriate to refer to Section 351 of the Criminal Procedure Code, 1898

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(hereinafter referred to as `Old Code’), where an analogous provision existed, empowering the court to summon any person other than the accused if he is found to be connected with the commission of the offence. However, when the new Cr.P.C. was being drafted, regard was had to 41st Report of the Law Commission where in the paragraphs 24.80 and 24.81 recommendations were made to make this provision more comprehensive. The said recommendations read:

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“24.80. Section 351 Limited to offenders in Courts . It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is proper that Magistrate should have the power to call and join him in proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in Section 351 for summoning such a person if he is not present in court. Such a provision would make Section 351 fairly comprehensive, and we think it proper to expressly provide for that situation.

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24.81. How is cognizance taken?  Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in Section 190, and are apparently exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrates own information under Section 190(1), or only in the manner in which cognizance was first taken of the offence against the accused. The question is important, because the methods of inquiry and

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trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is that the whole case against all known suspects should be proceeded with expeditiously and convenience requires that cognizance against the newly added accused should be taken in the same manner against the other accused. We, therefore, propose to recast Section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must he reheard in the presence of the newly added accused.”

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11. Section 319 Cr.P.C. as it exists today, is quoted hereunder:

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“ 319 Cr.P.C. 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.

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(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.

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(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.

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(4) Where the Court proceeds against any person under subsection (1), then

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(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;

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(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.”

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12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.

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13. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.?”

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The Hon’ble Supreme Court, while answering

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the questions, which were formulated, by their lordships, has held, in paragraphs 57 to 118 of the judgment, as under:

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57. Thus, the application of the provisions of Section 319 Cr.P.C., at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 Cr.P.C. can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry

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is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge sheet or any other person who might be an accomplice. Question No.(iii) : Whether the word "evidence" used in Section 319(1) Cr.P.C. has 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?

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58. To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 Cr.P.C., the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that comes up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the 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. The words as used in Section 319 Cr.P.C. indicate that the material has to be “where ….it appears from the evidence” before the court.

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59. Before we answer this issue, let us examine the meaning of the word ‘evidence’. According to Section 3 of the Evidence Act, ‘evidence’ means and includes:

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(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

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(2) all documents including electronic records produced for the inspection of the Court, such statements are called documentary evidence;

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60. According to Tomlin’s Law Dictionary, Evidence is

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“the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writing or records.”

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61. Bentham defines ‘evidence’ as

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“any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact a persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact.”

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62. According to Wigmore on Evidence, evidence represents

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“any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked.”

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63. The provision and the abovementioned definitions clearly suggest that it is an exhaustive definition. Wherever the words “means and include” are used, it is an indication of the fact that the definition ‘is a hard and fast definition’, and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning

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which, for the purposes of the Act, must invariably be attached to these words or expression. (Vide: M/s. Mahalakshmi Oil Mills v. State of A.P., AIR 1989 SC 335; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh & Ors., (1990) 3 SCC 682; P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., AIR 1995 SC 1395; Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner & Ors., AIR 2008 SC 968; and Ponds India Ltd. (merged with H.L. Limited) v. Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369).

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64. In Feroze N. Dotivala v. P.M. Wadhwani & Ors., (2003) 1 SCC 433, dealing with a similar issue, this Court observed as under:

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“14. Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the word as defined.”

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65. We, therefore proceed to examine the matter further on the premise that the definition of word “evidence” under the Evidence Act is exhaustive.

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66. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., AIR 2011 SC 760, while dealing with the issue this Court held :

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“33. The word “evidence” is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or nonexistence of disputed facts. Though, in the definition of the word “evidence” given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.”

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67. In relation to a Civil Case, this Court in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., AIR 2004 SC 355, held that the examination of a witness would include evidence inchief, crossexamination or reexamination. In Omkar Namdeo Jadhao & Ors v. Second Additional Sessions Judge Buldana & Anr., AIR 1997 SC 331; and Ram Swaroop & Ors. v. State of Rajasthan, AIR 2004 SC 2943, this Court held that statements recorded under Section 161 Cr.P.C. during the investigation are not evidence. Such statements can be used at the trial only for contradictions or omissions when the witness is examined in the court. (See also: Podda Narayana & Ors. v. State of A.P., AIR 1975 SC 1252; Sat Paul v. Delhi Administration, AIR 1976 SC 294; and State (Delhi Administration) v. Laxman Kumar & Ors., AIR 1986 SC 250).

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68. In Lok Ram v. Nihal Singh & Anr., AIR 2006 SC 1892, it was held that it is evident that a person,

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‘even though had initially been named in the FIR as an accused, but not chargesheeted, can also be added as an accused to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the chargesheet or the case diary, because such materials contained in the chargesheet or the case diary do not constitute evidence.

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(emphasis supplied)

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69. The majority view of the Constitution Bench in Ramnarayan Mor & Anr. v. The State of Maharashtra, AIR 1964 SC 949 has been as under:

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“9. It was urged in the alternative by counsel for the appellants that even if the expression “evidence” may include documents, such documents would only be those which are duly proved at the enquiry for commitment, because what may be used in a trial, civil or criminal, to support the judgment of a Court is evidence duly proved according to law. But by the Evidence Act which applies to the trial of all criminal cases, the expression “evidence” is defined in Section 3 as meaning and including all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry and documents produced for the inspection of the Court. There is no restriction in this definition to documents which are duly proved by evidence.”

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(Emphasis added)

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70. Similarly, this Court in Sunil Mehta & Anr. v. State of Gujarat & Anr., JT 2013 (3) SC 328, held that

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“16. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Cr.P.C. is what is recorded in the manner

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stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.”

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71. In Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr., AIR 2008 SC 95, this Court held that in exercise of the powers under Section 319 Cr.P.C., the court can add a new accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary.

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65. In Kishun Singh (Supra), this Court held :

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“11. On a plain reading of subsection (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power (under Section 319(1)), it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by S. 319 of the Code. Therefore, stricto sensu, Section 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in

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the commission of the crime along with those already sent up for trial by the prosecution. 12. But then it must be conceded that Section 319 covers the postcognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision…..”

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73. A similar view has been taken by this Court in Raj Kishore Prasad (Supra), wherein it was held that :

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“8. …..in order to apply Section 319 Cr.P.C., it is essential that the need to proceed against the person other than the accused appearing to be guilty of offence arises only on evidence recorded in the course of an inquiry or trial.’

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74. In Lal Suraj @ Suraj Singh & Anr. v. State of Jharkhand, (2009) 2 SCC 696, a twoJudge Bench of this Court held that

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“16. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 Cr.P.C., the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.”

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75. A similar view has been reiterated by this Court in Rajendra Singh v. State of U.P. & Anr., AIR 2007 SC 2786, observing that court should not exercise the power under Section 319 Cr.P.C. on the basis of materials available in the chargesheet or the case diary, because such materials contained in the chargesheet or the case diary do not constitute evidence. The word ‘evidence’ in Section 319 Cr.P.C. contemplates the evidence of witnesses given in the court.

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76. Ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached. A bare perusal of Section 227 Cr.P.C. would show that the legislature has used the terms “record of the case” and the “documents submitted therewith”. It is in this context that the word ‘evidence’ as appearing in Section 319 Cr.P.C. has to be read and understood. The material collected at the stage of investigation can at best be used for a limited purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict 4 Page 49 the statements of the witnesses recorded before the court. Therefore, for the exercise of power under Section 319 Cr.P.C., the use of word `evidence’ means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319 Cr.P.C.

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77. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial.

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78. It is, therefore, clear that the word “evidence” in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.

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79. The inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. It is the duty of the court to do so and therefore the power to perform this duty is provided under the Cr.P.C.

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80. The unveiling of facts other than the material collected during investigation before the magistrate or court before trial actually commences is part of the process of inquiry. Such facts when recorded during trial are evidence. It is evidence only on the basis whereof trial can be held, but can the same definition be extended for any other material collected during inquiry by the magistrate or court for the purpose of Section 319 Cr.P.C.?

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81. An inquiry can be conducted by the magistrate or court at any stage during the proceedings before the court. This power is preserved with the court and has to be read and understood accordingly. The outcome of any such exercise should not be an impediment in the speedy trial of the case. Though the facts so received by the magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 Cr.P.C. it is an information of complicity. Such material therefore, can be used even though not an evidence in stricto sensuo, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved.

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82. This pretrial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the

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material alongwith the chargesheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the chargesheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges.

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83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilize or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is 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. This would harmonise such material with the word ‘evidence’ as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court.

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84. The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even

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at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.

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85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence 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. The ‘evidence’ is thus, limited to the evidence recorded during trial.

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Q.(ii) Does the word ‘evidence’ in Section 319 Cr.P.C. means as arising in examinationinchief or also together with crossexamination?

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81. The second question referred to herein is in relation to the word evidence as used under Section 319 Cr.P.C., which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examinationinchief. In Rakesh (Supra), it was held that

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“10. It is true that finally at the time of trial the accused is to be given an opportunity to crossexamine the witness to test its truthfulness. But that stage would not arise while exercising the court’s power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not.”

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87. In Ranjit Singh (Supra), this Court held that

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“20. ….it is not necessary for the court to wait until the entire evidence is collected for exercising the said power”.

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88. In Mohd. Shafi (Supra), it was held that the prerequisite for exercise of power under Section 319 Cr.P.C. was the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross examination is over and that there would be no illegality in doing so. A similar view has been taken by a twoJudge Bench in the case of Harbhajan Singh & Anr. v. State of Punjab & Anr. (2009) 13 SCC 608. This Court in Hardeep Singh (Supra) seems to have misread the judgment in Mohd. Shafi (Supra), as it construed that the said judgment laid down that for the exercise of power under Section 319 Cr.P.C., the court has to necessarily wait till the witness is cross examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 Cr.P.C.

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89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once

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examinationinchief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of 5 Page 56 judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.

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90. As held in Mohd. Shafi (Supra) and Harbhajan Singh (Supra), all that is required for the exercise of the power under Section 319 Cr.P.C. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straightjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination inChief, it can exercise the power under Section 319 Cr.P.C. and can proceed against such other person(s). It is essential to note that the Section also uses the words ‘such person could be tried’ instead of should be tried. Hence, what is required is not to have a minitrial at this stage by having examination and crossexamination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this minitrial that would affect the right of the person sought to be arraigned as an accused rather than not having any crossexamination at all, for in light of subsection 4 of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights

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including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of ExaminationinChief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, ExaminationinChief untested by Cross Examination, undoubtedly in itself, is an evidence.

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91. Further, in our opinion, there does not seem to be any logic behind waiting till the crossexamination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the crossexamination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness(s) prior to passing of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(s) is obliterating the role of persons already facing trial. More so, Section 299 Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein.

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92. Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on crossexamination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of

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complicity of some other person(s), not facing the trial in the offence.

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Q. (iv) What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C.?

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93. Section 319(1) Cr.P.C. empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word “appear” means “clear to the comprehension”, or a phrase near to, if not synonymous with “proved”. It imparts a lesser degree of probability than proof.

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94. In Pyare Lal Bhargava v. The State of Rajasthan, AIR 1963 SC 1094, a fourJudge Bench of this Court was concerned with the meaning of the word ‘appear’. The court held that the appropriate meaning of the word ‘appears’ is ‘seems’. It imports a lesser degree of probability than proof. In Ram Singh & Ors. v. Ram Niwas & Anr., (2009) 14 SCC 25, a twoJudge Bench of this Court was again required to examine the importance of the word ‘appear’ as appearing in the Section. The Court held that for the fulfillment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as an accused in the case.

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95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima

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facie case is the same, the degree of satisfaction that is required is much stricter. A two Judge Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

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96. In Rajendra Singh (Supra), the Court observed: “Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is “may” and not “shall”. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression “appears” indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not.”

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97. In Mohd. Shafi (Supra), this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.

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98. In Sarabjit Singh & Anr. v. State of Punjab & Anr., AIR 2009 SC 2792, while explaining the scope of Section 319 Cr.P.C., a twoJudge Bench of this Court observed:

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“21. ….For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned……

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22. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.

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23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied.”

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(Emphasis added)

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99. In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC 1248, a twoJudge Bench of this Court took a similar view observing that :

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“25. ...the court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their reexamination could prejudice the prosecution and delay the trial,

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the trial court has to exercise such discretion with great care and perspicacity.

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(emphasis supplied)

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A similar view has been reiterated by this Court in Michael Machado & Anr. v. Central Bureau of Investigation & Ors., AIR 2000 SC 1127.

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100. However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The Court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further. (Vide: State of Karnataka v. L. Munishwamy & Ors., AIR 1977 SC 1489; All India Bank Officers' Confederation etc. v. Union of India & Ors., AIR 1989 SC 2045; Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715; State of M.P. v. Dr. Krishna Chandra Saksena, (1996) 11 SCC 439; and State of M.P. v. Mohan Lal Soni, AIR 2000 SC 2583).

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101. In Dilawar Babu Kurane v. State of Maharashtra, AIR 2002 SC 564, this Court while dealing with the provisions of Sections 227 and 228 Cr.P.C., placed a very heavy reliance on the earlier judgment of this Court in Union of India v. Prafulla Kumar Samal &

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Anr., AIR 1979 SC 366 and held that while considering the question of framing the charges, the court may weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before this Court disclose grave suspicion against the accused which has not been properly explained. In such an eventuality, the court is justified in framing the charges and proceeding with the trial. The court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but court should not make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial.

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102. In Suresh v. State of Maharashtra, AIR 2001 SC 1375, this Court after taking note of the earlier judgments in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, AIR 1990 SC 1962 and State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 SC 2041, held as under:

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“9.……at the stage of Sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of

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arriving at the conclusion that it is not likely to lead to a conviction.”

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(Emphasis supplied)

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96. Similarly in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, while dealing with the issue, this Court held:

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“4. ……If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial…..”

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104. In Palanisamy Gounder & Anr. v. State, represented by Inspector of Police, (2005) 12 SCC 327, this Court deprecated the practice of invoking the power under Section 319 Cr.P.C. just to conduct a fishing inquiry, as in that case, the trial court exercised that power just to find out the real truth, though there was no valid ground to proceed against the person summoned by the court.

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105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

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106. 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 CrossExamination, it

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requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

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Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not chargesheeted or has been discharged?

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107. In Joginder Singh & Anr. v. State of Punjab & Anr., AIR 1979 SC 339, a three Judge Bench of this Court held that as regards the contention that the phrase “any person not being the accused” occurring in Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police under Section 169 Cr.P.C. and has been shown in Column 2 of the charge sheet, the contention has merely to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319 (1) Cr.P.C. clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence

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comes before the criminal court, are included in the said expression.

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108. In Anju Chaudhary v. State of U.P. & Anr., (2013) 6 SCC 384, a twoJudge Bench of this Court held that even in the cases where report under Section 173(2) Cr.P.C. is filed in the court and investigation records the name of a person in Column 2, or even does not name the person as an accused at all, the court in exercise of its powers vested under Section 319 Cr.P.C. can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law.

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109. In Suman v. State of Rajasthan & Anr., AIR 2010 SC 518, a twoJudge Bench of this Court observed that

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“17. ...there is nothing in the language of this subsection from which it can be inferred that a person who is named in the FIR or complaint, but against whom chargesheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence, the court finds that such person has committed an offence for which he could be tried together with the other accused.

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110. In Lal Suraj (supra), a twoJudge Bench held that there is no dispute with the legal proposition that even if a person had not been chargesheeted, he may come within the purview of the description of such a person as contained in Section 319 Cr.P.C. A similar view had been taken in Lok Ram (Supra), wherein it was held that a person, though had initially been named in the FIR as an accused, but not chargesheeted, can also be added to face the trial.

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111. Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet 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.

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112. However, there is a great difference with regard to a person who has been discharged. A person who has 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. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The Court should 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. The court 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

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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.

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113. In Sohan Lal & Ors. v. State of Rajasthan, (1990) 4 SCC 580, a twoJudge Bench of this Court held that once an accused has been discharged, the procedure for enquiry envisaged under Section 398 Cr.P.C. cannot be circumvented by prescribing to procedure under Section 319 Cr.P.C.

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114. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., AIR 1983 SC 67, this Court held that :

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“19. ...if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them under Section 319 Cr.P.C. and try them along with the other accused.

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115. Power under Section 398 Cr.P.C. is in the nature of revisional power which can be exercised only by the High Court or the Sessions Judge, as the case may be. According to Section 300 (5) Cr.P.C., a person discharged under Section 258 Cr.P.C. shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the firstmentioned Court is subordinate. Further, Section 398 Cr.P.C. provides that the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make an inquiry into the case against any person who has already been discharged. Both these provisions contemplate an inquiry

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to be conducted before any person, who has already been discharged, is asked to again face trial if some evidence appears against him. As held earlier, Section 319 Cr.P.C. can also be invoked at the stage of inquiry. We do not see any reason why inquiry as contemplated by Section 300(5) Cr.P.C. and Section 398 Cr.P.C. cannot be an inquiry under Section 319 Cr.P.C. Accordingly, 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. We may clarify that the word ‘trial’ under Section 319 Cr.P.C. would be eclipsed by virtue of above provisions and the same cannot be invoked so far as a person discharged is concerned, but no more.

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116. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge Sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no 7 Page 73 proceedings can be commenced against him directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C.

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117. We accordingly sum up our conclusions as follows:

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Question Nos.1 & III

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Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised? AND

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Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has 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?

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Answer.

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117.1. In Dharam Pal's case, 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 investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.

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117.2. Section 319 Cr.P.C., 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 pretrial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.

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117.3. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

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Question No. II Whether the word "evidence" used in Section 319(1) Cr.P.C.

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could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made in the examinationinchief of the witness concerned?

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Answer .

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117.4.Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by crossexamination.

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Question No. IV – What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

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Answer .

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117.5.Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial

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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.

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Question No.V – Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?

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Answer.

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117.6. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.

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118. The matters be placed before the appropriate Bench for final disposal in accordance with law explained hereinabove.”

¶291

Judging the facts and circumstances of the

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present case, in the light of the decision of the Constitutional Bench of the Hon’ble Supreme Court, in Hardeep Singh ’s case (supra) the arguments of the learned counsel appearing for the additional accused, qua

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the fact that in the statements recorded, under Section 161 Cr.PC, by the police, no role has been attributed to the additional accused, is liable to be ignored, as PW2, on oath, has specifically levelled the allegations, against the additional accused.

¶296

Not only this, in the FIR, in question, the complainant has specifically named additional accused Vipin Kumar and Rimpy Sharma, by levelling specific allegations against them. In the FIR, she has specifically got recorded that Rikhi Ram, Lakshman Dass, Roshani Devi, Rimpy Sharma, additional accused No.1 and Vipin Kumar, additional accused No.2, had attacked Gauri Nand Sharma.

¶297

Not only this, the complainant has also got lodged that additional accused No.2 Vipin and accused Roshani Devi had beaten Gauri Nand Sharma with fist blows. Additional accused No.1 Rimpy Sharma, was having, heavy object in her hand. However, the police has filed the chargesheet only against accused Rikhi Ram, Lakshman Dass and Roshani Devi, relying upon the statements of the alleged eye witnesses Shyam Lal,

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Santosh Kumari and Somlata, recorded under Section 161 Cr.PC, by pleading that the evidence is not sufficient against them. As such, they were recommended to be discharged, under the provisions of Section 169 Cr.PC.

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The statements, recorded, under Section 161 Cr.PC, do not fall within the definition of ‘Evidence’, as held by Hon’ble Supreme Court in Rajendra Singh versus State of U.P. & Another, (2007) 7 Supreme Court Cases

¶302

378. Relevant paragraph 10 of the judgment, is reproduced, as under:

¶303

“10. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative

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if the trial of the coaccused has been concluded, has been considered in Shashikant

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Singh v. Tarkeshwar Singh (2002) 5 SCC 738 . and it was held as under in para 9 of the report :

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"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the crossexamination of the newly added accused is the mandate of Section 319(4). The words ’could be tried together with the accused’ in Section 319(1), appear to be only directory. ’Could be’ cannot under these circumstances be held to be ’must be’. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become

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ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."

¶312

Therefore the mere fact that trial of coaccused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26.5.2005 as infructuous.”

¶313

A feeble attempt has also been made by Ms. Ragini Dogra, learned counsel appearing for the additional accused, when she has argued that no documentary evidence has been adduced, by the prosecution, against the additional accused.

¶314

The said argument is liable to be ignored on the ground that FIR is not encyclopedia of the events and after lodging the FIR, the role of the complainant comes to an end and thereafter, the investigation is to be conducted by the police.

¶315

The statement, recorded under Section 161 Cr.PC, does not fall within the definition of ‘Evidence’, as such, nonexplanation of the complainant, qua the alleged heavy object, which is stated to be in the hand of Rimpy

¶316

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Sharma, additional accused No.1, is not fatal to the case of the prosecution, at this stage, as, the complainant has specifically alleged about the involvement of both the additional accused, in the crime, in question, while appearing in the witnessbox, as well as, in the FIR.

¶319

When the complainant has deposed, on oath, with regard to the specific role, attributed against additional accused, then, the said statement falls within the term ‘Evidence’, which is more than a prima facie case. 35. So far as the examinationinchief of the complainant is concerned, in order to exercise the powers under Section 319 Cr.PC, there is no legal requirement that the said statement should be tested, in the cross examination, by the learned defence counsel, as, held by Hon’ble Supreme Court, in Sartaj Singh versus State of Haryana & Another, AIR 2021 Supreme Court 1513 , Relevant paragraph 7 of the judgment, is reproduced, as under:

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“7. Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, we are of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the

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basis of the deposition of the appellant– injured eye witness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examinationinchief of the witness and the Court need not wait till his cross examination. If on the basis of the examinationinchief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial. At this stage, it is required to be noted that right from the beginning the appellant herein – injured eye witness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not chargesheeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not chargesheeted. In any case, in the examinationinchief of the appellant injured eye witness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examinationinchief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein – injured eye witness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the Court. Therefore, as such, the learned Trial Court was justified in directing to issue summons against the private respondents herein to face the trial.”

¶324

The Hon’ble Supreme Court in a recent decision

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in Criminal Appeal No.3008 of 2025 , titled Shiv Baran

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versus State of U.P. & Another, 2025 INSC 860, has again reiterated the principle, upon which, the powers, under Section 319 Cr.PC could be exercised by the Court. Relevant paragraphs 9 to 11 of the judgment, are reproduced, as under:

¶329

“9. This Court, in Ramesh Chandra Srivastava v. State of U.P. (2021) 12 SCC 608 , reiterated that the power under Section 319 CrPC should only be exercised when strong and cogent evidence is presented against a person and the test to be applied is one that is more than a prima facie case, as applied at the time of framing of charges.

¶330

10. The Court, under this Section, can also proceed against a person who, though named in FIR, is not implicated by the Investigating Officer in the chargesheet, provided the statutory mandates are fulfilled. In S. Mohammed Ispahani v. Yogendra Chandak (2017) 16 SCC 226 , it was observed :

¶331

“35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the chargesheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the chargesheet. Once

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that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.”

¶335

(Emphasis supplied)

¶336

[See also Hardeep Singh (supra); and Labhuji Amratji Thakor (supra)]

¶337

11. Most recently, this Court in Omi v. State of M.P. (2025) 2 SCC 621 , summarized the principles that need to be kept in mind for the summoning of additional accused :

¶338

“19. The principles of law as regards Section 319CrPC may be summarised as under:

¶339

19.1. On a careful reading of Section 319 CrPC as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not chargesheeted, can also be added to face the trial.

¶340

19.2. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the chargesheet or the case diary, because such materials contained in the chargesheet or the case diary do not constitute evidence.

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19.3. The power of the court under Section 319 Cr.PC is not controlled or governed by naming or not naming of the person concerned in the FIR. Nor the same is dependent upon submission of the chargesheet by the police against the person concerned. As regards the contention that the phrase “any person not being the accused” occurred in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the chargesheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression.

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19.4. It would not be proper for the trial court to reject the application for addition of new accused by considering records of the investigating officer. When the evidence of complainant is found to be worthy of acceptance then the satisfaction of the investigating officer hardly matters. If satisfaction of investigating officer is to be treated as determinative then the purpose of Section 319 would be frustrated.”

¶345

(Emphasis supplied)

¶346

It the facts and circumstances of the present

¶347

case are seen, in the light of the decision of the Hon’ble

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Supreme Court, as referred to above, when, the witness has deposed, on oath, by levelling the specific allegations, against the additional accused, then, the presence, as well as, the role attributed to the additional accused, in the crime, in question, can be said to be existing in favour of the prosecution, certainly, which is more than a prima facie case and on the basis of the said evidence, additional accused can be directed to face the trial.

¶350

At the cost of repetition, the complainant, right from the time of lodging the FIR, as well as, while appearing in the witnessbox, as PW2, has specifically deposed against the additional accused. As such, there is no occasion for this Court to interfere with the well reasoned order passed by the learned trial Court.

¶351

Consequently, the present petition is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.

¶352

Send down the record.

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( Virender Singh ) October 07, 2025 ( ps ) Judge

Rimpy Sharma and Another v. State of Hp and Another

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Rimpy Sharma and Another v. State of Hp and Another

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