Holding

Section 319 Cr.P.C. may be exercised when prima facie evidence indicates that a person not yet accused has committed an offence that can be tried with the existing accused, and the court need not await the completion of cross‑examination to satisfy itself of this.

Summary

The case arose from a violent incident in Patiala where several persons were charged under the IPC and Arms Act. Two of the accused, Vijay Preet Singh and Jagtar Singh, were initially discharged based on a police inquiry report that they were falsely implicated. During trial, prosecution witnesses identified them as participants, leading the Additional Public Prosecutor to file applications under Section 319 of the Cr.P.C. to add them as accused. The trial court and the High Court rejected these applications, prompting appeals to the Supreme Court, which also considered the propriety of the police report under Section 173. The Court examined conflicting precedents on whether Section 319 can be invoked before cross‑examination of witnesses is completed and what test governs the exercise of this power. It held that the power may be exercised when prima facie evidence shows a person’s involvement, without waiting for cross‑examination, and that the court need only be reasonably satisfied of the person’s culpability. Consequently, the appeals were dismissed, affirming the lower courts' orders.

Issues considered

When can the power under Section 319 Cr.P.C. be exercised to add an accused during trial?
Is an application under Section 319 maintainable only after the cross‑examination of the witness is complete?
What is the appropriate test and guidelines for exercising the power under Section 319?
Does the court need to be satisfied that the person to be summoned is likely to be convicted?

Legislation cited

Arms Act, 1959s. 25, s. 27, s. 54, s. 59
Code of Criminal Procedure, 1973s. 173, s. 319
Indian Penal Code, 1860s. 1208, s. 148, s. 149, s. 307, s. 326, s. 336, s. 427

Subjects

Section 319addition of accusedevidencecross‑examinationcriminal procedurediscretionary powercharge sheetSection 173Supreme Court

Judgment

(2008] 15 S.C.R. 735

HARDEEP SINGH A
~ v.
STATE OF PUNJAB & ORS.
l (Criminal Appeal No. 1750 of 2008)

NOVEMBER 7, 2008
.8
[C.K. THAKKER AND D.K. JAIN, JJ.]

Code of Criminal Procedure, 1973:

s. 319 - Power under - Scope of - Application under, c
whether maintainable barely on the basis of examination-in-
chief of the witness or aftar cross-examination of the witness
,, - Conflicting decisions on the point by coordinate Benches
of Supreme Court - Another judgment of Supreme Court in
the opinion of the Court substantially curtailing discretionary 'D
poweruls. 319 (1)-Hence, the questions as to (i) when should
the power uls. 319 be exercised and (ii) what are the test and
guidelines for exercising the power uls. 319 referred to larger
Bench of Supreme Court for consideration.

s. 319 - Applications under - On the basis of evidence ~E

of prosecution witness - Rejection of, by courts below - On
appeal, held: On facts, the person whose name appeared in
FIR and was arrested from the scene of occurrence, ought to
have been included in the charge-sheet- The order rejecting
~ application in respect of the other persons was not unlawful F
as nothing was found against them.

s. 173 - Report under - Held: Should contain only the
information - Investigating Officer is not expected to record
findings of fact nor to give clean chit by exercising power of a cs
Court or judicial Authority.

Instant appeals are emanating as a result of cross
FIRs for the same incident. Appellants in Criminal Appeal
""' No. 1750 of 2008 filed FIR for commission of offences ul
.. 735 H
736 SUPREME COURT REPORTS [2008] 15 S.C.R.

A ss. 307, 336 and 427 r/w ss. 1208, 148 and 149 IPC and
)...
u/ss. 25, 27, 54 and 59 of Arms Act, 1959. Respondent
Nos. 2 and 3 (the accused) made applications to the
~-
police that they were falsely implicated and hence sought
inquiry into the matter. lnqu.iry was made by the police
B and in the report it was stated that respondent Nos. 2 and
3 were falsely implicated. As a result, both the accused
were discharged. During trial, PW 2 in his examination-
in-chief stated that both the accused were present at the
time of inCident with weapons,. The name of respondent
c No .. 2 was ·also mentioned in FIR. On the basis of the
evidence of PW 2, prosecution filed application uts·. 319
· Cr.P.C. to include respondent Nos. 2 and 3 as accused
and to summon them for trial. Trial court rejected the i-
application. The order was confirmed by High Court..
Hence the present appeal.
·.o
Appellants in Criminal ·Appeal No.1751 of 2008 had
lodged FIR u/ss.. 307, 326. 336, 447, 427 r/w ss. 148 and
149 IPC and u/ss. 25, 27, 54 and 49 of Arms Act. Name of
respondent No. 2 was not included in charge-sheet. PW.5
E Stated during trial that respondent No. 2 was one of the
members of unlawful assembly. In view of that,
prosecution filed application u/s. 319 Cr.P.C. to include
his name as accused and to summon him. The application
was rejected by trial court and in Revision by High Court.
F Hence the present appeal. ~

Referring two questions for consideration to three ~·
.~

Judges Bench, the Court

HELD: 1.1 ·Sometimes. while hearing a case against
G one or more accused, it appears to a court from the
evidence that some person other than the accused before
itis also involved in that ven/ offence. Section 319 Cr.P.C. ~

empowers a court to proceed against any person if it ).
ap·pears from the evidence that such person has also
H •-
'
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 737

. committed an offence for which he can be tried together A
with other accused. [Paras 26 and 27] [747-H; 748-A, H;
749-A]
1.2. The primary object underlying Section 319 is that
the whole case against all the accused should be tried
8
and disposed of not only expeditiously but also
simultaneously. Justice. and convenience both require
that cognizance against thei newly added accused should
be taken in the same caSE! and in the same manner as- •
against the original accused. The pQwer must be
conceded as incidental and ancillary to the main power · C
to take cognizance as part of normal process in the
administration of criminal justice. [Para 28] [749-B-C]
Joginder Singh and Anr. v. State of Punjab and Anr. 1979
(1) SCC 345; Municipal Corporation of Delhi v. Ram Kishan , D
Rohtagi and Ors. 1983 (1) SCC 1; Shashikant Singh v.
Tarkeshwar Singh and Anr. (2002) 5 SCC 738; Michael
Machado and Anr. V. Central Bureau of Investigation and
Anr., 2000 (3) SCC 262 and Bholu Ram v. State of Punjab
and Anr. JT 2008 (9) SC 504, relied on. E

**Mohd~ Shafi v. Mohd. Rafiq and Anr., (2007) 4 SCR
1023, held inapplicable.
Krishnappa v. State of Kamataka, 2004 (7) SCC 792; Y.
-1 Saraba Reddy v. Puthur Rami Reddy and Anr. 2007 (6) SCR F
. 68 and Guriya and Ors. v. State of Bihar and Anr., 2007 (8)
sec 224, referred to.
2.1. It is not correct to say that the term 'evidence' used
in sub-section (1) of Section 319 Cr.P.C. would mean
evidence which is tested by cross-examination. The G
question of testing the evidence by cross,-examination ·
would arise only after addition of the accused. There is no
-'-· question of cross-examining the witness prior to adding .
such person as accused. Section does not contemplate
an additional stage of first summoning the person and H
738 SUPREME COURT REPORTS [2008]' .15 .s. c. R.

A ~giving him an opportunity of cross-examining the witness
,J...
who has deposed against him and thereafter deciding
whether such. person should or should not be added as
ace.used. The word. "evidence" occurring in sub-section
(1) of Section 319 is used in comprehensive and broad
8 sense which would also include the material collected by
the investigating officer and the evi.dence which comes
before the Court and from which the Court is satisfied that
p'erson not arraig;ned before it is invc>'lved in the
commission of. the crime. [Para 54] [757-E-H; 758-A] y
c .. *Rakesh and Anr. v. State of Haryana, 2001 (6) SCC 248
and State of H.P. V. Surinder Mohan and Ors. 2000 (2)· sec
396, relied on.
2.2. It is settled law that at the stage of issuing·
D summons or process, a court has to see whether there
is prima facie case against the person sought to be
summoned or against whom process is sought to be "'f
issued. At' that stage, there is no question of giving an
opportunity of hearing to such person. The entire
E scheme of Cr.P.C. is that an accused does not come into
picture at all till process is issued. Till summons or
process is issued against the accused, he has no right
of audience and in that case, it cannot be said that on
being satisfied on the basis of examination-in-chief, an
F application under Section 319 Cr.P.C. is not maintainable. )'
[Para 58] [758-0-E, G]
\
Nagavva v. Veeranna, (1976) 3 SCC 736, relied on.

2.3. When a person who is not shown as an accused
G is .sought to be ~dded on the basis of evidence, in
exercise of power under Section 319 Cr.P.C. he is not
before .th.e Court. Otl'ler accused against whom the trial
has commenced are very mu~h before. the Court and
generally they are represented by an advocate/advocates.
H In the evide~ce of a '!\{itnes~, when role Ql other person
, HARDEEP SINGH v. STATE OF PUNJAB & ORS. 739

i.e. other than the accused is described by prosecution A
witnesses, normally, accused who are already on record
are not affected. Grant or rejection of application under
Section 319 would generally not alter their position.
Therefore, holding that unless the cross-examination of
a ·witness by accused who were already on record is B
over and complete, no power under Section 319 can be
exercised, does not appear to be sound. [Para 59] [759"'
A~C]
'"'(
2.4. Cr.P.C. has taken care by sufficiently protecting
and safeguarding the interest of such added accused. c
Sub-section (4) of .Section 319 expressly provides that
where the Court exercises power under sub-section (1)
and proceeds against a person not arrayed as an
accused, "the proceedings in respect of such person shall
be commenced afresh, and witnesses re-heard". Thus, after D
exercise of power by the Court under Section 319(1),.
such added accused would be placed in the same
position as other accused and will get all rights an ·
accused c~n get under Cr.P.C. The proceedings against
the added accused shall be commenced afresh and E
witnesses will be reheard. Their evidence, prior to addition,
of the accused cannot be used against the accused who
· was not there earlier. The question of prejudice, hence,
does not arise at all. [Para 60) [759-D-F]

3.1. In Criminal Appeal No. 1750 of 2008, the final F
report submitted by the Superintendent of Police (D), to
Senior Superintendent of Police, under Section 173
Cr.P.C. is not in consonance with law. The report
contemplated by Section 173 should contain the
information required by the said provision. The G
Investigating Officer is not expected to record findings of
fact nor to give cleafl chit by exercising power of a court ,
..... or judicial authority. In the instant case 1 however, the
Superintendent of Police not only refers to investigation ·
made by him and the statements recorded in the course H.
740 ·: SUPREME COURT REPORTS [2008] 15 S.C.R.

A of investigation but records a 'finding' that the statements
~
were 'correct~. Investigating Officer was .required. to
submit report·in·terms of Section 173 Cr.P.C. [Paras 66,
70 and 72] [760-G; 762-E-F; 763-F]

3.2. Prima facie, in the light.of fac~ual scenario, nam.e
B of respon~eht No. 2 ought to have been included in the
charge sheet and the application under Section 319
Cr.P.C. deserves to be allowed. His name finds place in
the FIR. Not only that he was present at the place of
·offence with a weapon (gan"dasi) but was also arrested by
r
c the police from the scene of offence. His name was,
·however, excluded and charge sheet was not submitted
in pursuance of an application made by his father. ft was
the allegation of the complainant that the said action was
taken with a view to oblige his father who was Chairman
D of Panchayat Samiti. [Paras 65 and 73] [760-E-F; 763-G]

3.3. So far as respondent No. 3 is concerned, he was y·
not charge-sheeted. Both the Courts considered the
report oUhe Investigating Officer and held that the action
E of non"'issuing of process against him could not be held
illegal or unlawful. Hence, the order cannot be termed
unlawful or unwarranted which requires interference.
[Para 64] [760-C-D]

4. In Criminal Appeal No. 1751 · of 2008, there was
F. nothing against respondent No.2 ·and the report )-

submitted by the Investigating Officer had been accepted
by the trial Court as well as by the High Court and there
is no infirmity therein. [Para 6.3] [760-8]

G 5. *Rakesh's case ruled that an application under
Section 319 Cr.P.C. ·is maintainable even without
c9mpletion of cross-examination of a witness. Mohd.
Shafi's** case held that satisfaction under Section 319
Cr.P .C. could be arrived at only after cross-examination of
the witness_is over. Thus the.re are conflicting decisions of
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 741

co.;.ordinate B.enches. The test formulated in Mohd. Shafi's A
case substantially curtails discretionary power of the
Court conferred by Cr.P.C. under sub-section (1) of
Section 319.This point also requires fresh consideration.
Therefore, the following two questions are referred for the
consideration of a Bench of three Judges i.e. (1) When B
the power under sub-section (1) of Section 319 Cr.P.C. of
addition of accused can be exercised by a Court?
Whether application under Section 319 is not
maintainable unless the cross-examination of the witness '
is complete? and (2) What is the test and what are the c
guidelines of exercising power under sub-section (1) of
Section 319 Cr.P .C.? Whether such power can be
exercised only if the Court is satisfied that the accused
summoned in all likelihood would be convicted? (Paras
46, 55, 62 78 and 79] [754-C; 758-A-B; 760-A; 765-C-F]
D
Case Law Reference:
1979 (1) sec 345 Relied on. Para 29
1983 (1) sec 1 Relied on. Para 31
E
(2002) s sec 738 Relied on. Para 34
2000 (3) sec 262 Relied on. Para 35
JT 2008 (9) SC 504 Relied on. Para 43
2004 (7) sec 192 Referred to. ·Para 38 F

2007 (6) SCR 68 Referred to. Para 39
2001 (8) sec 224 Referred to. Para 41
2007 (4) SCR 1023 held inapplicable. Para 45 1.G
2001 (6) sec 248 Relied on. Para 48
2000 (2) sec 396 Relied on. Para 53
1976 ·(3) sec 736 Relied on. Para 58
H
742 SUPREME COURT REPORTS [2008] 15 S.C.R.

.A ·CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1750 of 2008 .
. .... .
·'
•. from the Judgment and final ·Order dated 23.10.2006 of
·; the High Court of Punjab and Haryana at Char.idigarh1n Criminal
,,F.~.ev~sion No. 773 of 2006. .
8
.~; . ~

WITH

Criminal Appeal No. 1751 of 2008.

C Vibhakar Misra, Abhisth Kumar, K.K. Pandey, Sc;itinder
Singh Gulati and Kamaldeep Gulati for the Appellant.

KK. Khurana, Add!. A.G., Ajay Pal, Addi. A.G., AK. Mehta
. and Kuldip Singh for the Respondents.

o The Judgment of the Court was delivered by

C.K. THAKKER, J. 1. Leave granted.

2. Both the parties in the High Court have filed present
appeals against the judgment and order passed by the High
E Cot,J~~ 9f Punjab & Haryana, dated October 23, 2006 in Criminal
Revision Nos. 773 of 2006 and 1648 of 2006. . · ·-I
3. To appreciate the contentions raised by the parties, it
wou1d be appropriate to narrate few facts.
F : 4. In the appeal arising out of Special Leave Petition (Crl.)
No. 166 of 2007, the case of the prosecution is that an auction
for leasing the land was held by the Gram Panchayat of village
"lndrapuri, Tehsil Samana, District Patiala on April 21, 2004 for
. cultivation on yearly basis (Eksali) for the ye~r 2004-05. The
G b.id of the appellant was accepted and lease was granted in
his favour. The appellant was thus in possession of the land.

· , 5. "According to the prosecution, on June 24, 2004, the
appellant was ploughi.ng the land. The accus~d persons went
H there with deadly weapons and caused injuries to the appellant
HARDEEP SINGH v. STATE OF PUNJAB & ORS .. 743
[G.K. THAKKER, J.]

as well as other prosecution witnesses. First Information Report A
(FIR) was lodged against the accused at Police Station Sadar,
Samana for commission of offences punishable under Sections
307, 326, 336 and 427 read with Sections 1208, 148 and 149
of the Indian Penal Code, 1860 (IPC) as also for offences
punishable under Sections 25, 27, 54 and 59 of the Arms Act, B
1959. Accused were arrested. Vijay Preet Singh (respondent
No. 2) was one of them.

. --1 6. It is the allegation of the appellant that Vijay Preet Singh-
respondent No.2 herein is the son of Sukhvinder Singh,
Chairman of Panchayat Samiti, Samana. The said Sukhvinder c
Singh interfered with the investigation. With a view to get the
name of his son Vijay Preet Singh deleted by exercising
influence.on Police Authorities, he made an application on June
26, 2004, i.e. within two days of the incident, lodging of FIR and
arrest of Vijay Preet Singh to Senior Superintendent of Police D
(SSP), Patiala, Inter alia, stating therein that Vijay Preet Singh
was resident of village Meayalkhurd, was studying in 10+2 class
and at the time of occurrence he waz not there but was at his
residence and was falsely implicated in the case. He, therefore,
asked the Senior Superintendent of Police (SSP) to make an E
inquiry either himself or through some senior officer so that
justice be done to Vijay Preet Singh.

7~ It also appears that Jagtar Singh-respondent No.3
--
herein also made a similar application on July 03, 2004 to
Deputy Inspector General (DIG), Patiala asserting that in an
F
incident dated June 24, 2004, his name was not mentioned in
the FIR, but he had been falsely involved and he was likely to
be arrested. His name was given by some persons due to
grudge by the complainant side. There was a cross-case also.
He, therefore, prayed that an inquiry may be conducted through G
an independent officer and the applicant may not be arrested
till he is proved guilty.
-"'
8. It appears that an inquiry was conducted by police and
a ~eport was submitted by Superintendent of Police (0), Patiala H
744 SUPREME COURT REPORTS [2008] 15 S.C.R.
•'
A to SSP, Patiala on July 12, 2004 wherein it was stated that
,l
respondent Nos. 2 and 3 i.e. V!jay Preet Singh and Jagtar
Singh had not committed any offence and they were falsely
,):.-
implicated. A recommendation was, therefore, made not to i
initiate·proceedings against both of them. Both the persons J-
8 were, therefore, discharged.
t
9. During the course of trial, however, depositions of
witnesses were recorded. PW2 Hardeep Singh, in his
deposition, stated that Vijay Preet Singh as also Jagtar Singh,
respondents Nos. 2 and 3 were present at the time of incident
C with weapons. So far as respondent No.2:-Vijay Preet Singh is
concerned, his name was mentioned in the FIR. He participated
in ·the incident and v.'as having a weapon with him (gandasi).
He was also arrested by the police from the pla~e of offence.
Similarly, respondent No.3-Jagtar Singh was present with soti.
D He also participated in the incident by raising lalkaras. In
furtherance of common object, all the accused assaulted the
complainant party and committed the offences with which they
were charged. It is on the basis of the report submitted by
Superintendent of Police (D), Patiala to Senior Superintendent
E of Police, Patiala that they were discharged. An application was,
therefore, made by the Addi. Public Prosecutor under Section ·
- - 319 of the Code of Criminal Procedure, 1973 (hereinafter
· referred to as 'the Code') to include respondent Nos. 2 and 3
as accused and to summon them for trial.
F
10. The Court of the Addi. Sessions Judge, Patiala,
•
however, by an order dated January 12, 2006 rejected the
application observing that he did not find sufficient grounds to
proceed against Vijay Preet Singh and Jagtar Singh:

G 11. Being aggrieved by the said order, the appellant herein
approached the High Court of Punjab & Haryana by filing
Criminal Revision No. 773 of 2007. The High Court, however,
dismissed the Revision and confirmed the order passed by the
trial Court: The said order is challenged in the present appeal.
H
---(

• HARDEEP SINGH v. STATE OF PUNJAB & ORS.
[C.K. THAKKER, J.]
745

,._ · 12. In the appeal arising out of Special Leave Petition A
(Crl.) No. 2051 of 2007, the case of the appellant was that the
accused [complainant party in SLP (Crl.) No. 166 of2007] had
formed unlawful assembly and committed offences punishable
under Sections 307, 326, 336, 447, 427 read with Sections 148
and 149, Indian Penal Code (IPC) as also under Sections 25, B
27, 54 and 59 of the Arms Act, 1959. Cross FIR was, therefore,
filed on the same day i.e. on June 24, 2004.

--.( 13. According to the appellant, respondent No.2-Kashmir
Singh, son of S. Sucha Singh was very much present but his
name was not included in the charge-sheet and as per the
c
report submitted by the Police Authorities, said Kashmir Singh
was innocent. During the course of trial, however, PW5-
Jagdeep Singh stated that Kashmir Singh was also present and
was one of the members of unlawful assembly. An application
was, therefore, made to the trial Court (Addi. Sessions Judge) D
by the Addi. Public Prosecutor under Section 319 of the Code
to include the name of Kashmir Singh as an accused and to
issue summons to hi_m. The prayer was, however, rejected by
the trial Court which was challenged by the appellant herein by
filing Criminal Revision No. 1648 of 2006, but it was also E
dismissed by the High Court. The said order is challenged by
the appellant in this Court.

14. Notice in SLP (Crl) No. 166 of 2007 was issued on
January 22, 2007. In the other matter, i.e. SLP (Crl) No. 205 of F
2007, notice was issued on April 02, 2007. Both the cases
were ordered to be heard together. The Registry was directed
to list the matter for final hearing on a non-miscellaneous day
and that is how the matters have been placed before us.

15. We have heard learned counsel for the parties. G

16. The learned counsel for the appellant in the appeal
arising out of SLP (Crl) No. 166 of 2007 submitted that the
order passed by the trial Court and confirmed by the High Court
is clearly erroneous and deserves to be set aside. It was H
746 SUPREME COURT REPORTS [2008] 15 S.C.R.
~

A submitted that so far as Vijay Preet Singh is concerned, he was
)..
very much present at the time of incident with a weapon ' ~
i
(gandasi), his name was included in the First Information Report ~
;
(FIR) and he was also arrested by the police from the place of
offence since he actually participated in the crime. The
B Investigating Agency was, therefore, wholly wrong in deleting
his name. and in reporting that Vijay Preet Singh was not
present at the time of incident and he reached at the place of
offence after the incident was over. Such report was made only
with a view to oblige Sukhvinder Singh, father of Vijay Preet )--

c Singh who was Chairman of Panchayat Samiti, Samana. Even
otherwise, during the course of trial, the prosecution evidence
revealed that Vijay Preet Singh was present at the time of
incident. A clear case for application of Section 319 of the
Code had been made out and the trial Court was wrong in
rejecting the application to join Vijay PreetSingh as an accused '
D 1
and to issue summons to him. Similar error was committed by
r
the High Court.
•
17. Likewise, the Investigating Agency wrongly
recommended deletion of name of Jagtar Singh. From the
E examination of prosecution witnesses, it was clear that Jagtar
Singh was also present at the time of incident with weapon and
he participated in the crime. An application under Section 319
of the Code, hence, ought to have been allowed.

F 18. It was submitted .that even if name of a particular person :it-
is not mentioned in the FIR as an accused, he can, later on,
be added as an accused and a summons can be issued by a
Court in exercise of power under Section 319 of the Code. It t::
;
was, therefore, submitted that the order passed by the trial I

Court and confirmed by the High Court deserves to be set
G
aside and the appeal deserves to be allowed.

19. The learned counsel for respondent Nos. 2 and 3, on
the other hand, supported the order passed by the trial Court )..

and confirmed by the High Court.
H
...
( HARDEEP SINGH v. STATE OF PUNJAB & ORS. 747
[C.K. THAKKER, J.]

20. It was stated that an inquiry had been conducted by A
the Investigating Agency and on the basis of statements
recorded during investigation, it was proved that respondEfot
Nos.2-Vijay Preet Singh reached at the spot after the incident
was over and hence, he could not be joined as accused though
his name was found in FIR and he was arrested by police and B
accordingly report was made to delete his name.

21. So far as Jagtar Singh is concerned, his name was
not mentioned in the FIR. During the investigation also, nobody
stated that Jagtar Singh participated in the incident and, hence, C
his name was deleted.

22. According to the counsel, only at the time of trial, with
a view to falsely implicate respondent Nos. 2 and 3, prosecution
witnesses had named them. The trial Court, therefore, rightly
rejected the prayer and the High Court confirmed it. No case D
for interference by this Court in exercise of discretionary
jurisdiction under Article 136 of the Constitution has been made
out and the appeal deserves to be dismissed.

23. The learned counsel for the State also supported the
E
respondents and prayed for dismissal of the appeal.

24. In the cross-appeal, learned counsel for the appellant
submitted that Kashmir Singh was present and participated in
the incident. In the course of trial, the prosecution witnesses,
expressly stated about the presence and participation of F
respondent No.2-Kashmir Singh and the action of non-issuance
of summons to respondent No.2-Kashmir Singh by the trial
Court and confirmed by the High Court is erroneous and the
appeal deserves to be allowed.
G
25. The learned counsel for Kashmir Singh supported the
order and prayed for dismissal of appeal. The counsel for the
State also prayed for dismissal of appeal.

26. Now, Section 319 of the Code empowers a Court to
proceed against any person if it appears from the evidence that H
I
)

748 SUPREME COURT REPORTS [2008] 15 S.C.R.

A such person has also committed an offence for which he can
be tried together with other accused. The said section reads ..L
a~ under;

319. Power to proceed against other persons appearing
B to be. guilty of offence.-(1) Where, in the course of any
inquiry into, or trial of, an offence, it appears from the
evidence that any person not being the accused had
committed any offence for which such person could be
tried together with the accused,· the Court may proceed
against such person for the offence which· he appears to
c have committed.

(2) Where such person is not attending the Court he may
be arrested or summoned, as the circumstances of the
case may require, for the purpose aforesaid.
D
(3) Any person attending the Court although not under
arrest or upon a summons, may be detailed by such Court 'i ,
for the purpose of the inquiry into, or trial of, the offence
which he appears to have committed.
E (4) Where the Court proceeds against any person under
sub-section (1) then-

(a) the proceedings in respect of such person
shall be commenced afresh, and witnesses
F re-heard;

(b) subject to the provisions of clause (a), the
case may proceed as if such person had
been an accused person when the Court
took cognizance of the offence upon which
G the inquiry or trial was commenced. ·
(emphasis supplied)

27. Sometimes while hearing a case against one or more >-
accused, it appears to a Court from the evidence that some
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 749
[C.K. THAKKER, J.]

person other than the accused before it is also involved in that A
very offence. It is only proper that a Court should have power
to summon such person by joining him as an accused in the
case.

28. The primary object underlying Section 319 is that the 8
whole case against all the accused should be tried and
disposed of not only expeditiously but also simultaneously.
Justice and convenience both require that cognizance against
the newly added accused should be taken in the same case
and in the same manner as against the original accused. The
power must be conceded as incidental and ancillary to the main
c
power to take cognizance as part of normal process in the
administration of criminal justice.

29. Before three decades, in Joginder Singh & Anr. v.
State of Punjab & Anr., (1979) 1 SCC 345, charge sheet was D
submitted against certain accused. During trial, however,
y
evidence of some of the witnesses was recorded who
implicated the appellants. A Public Prosecutor, therefore,
moved an application to summon them and to try them along
with other accused. The application was granted. The order was E
challenged by the appellants.

30. This Court considered the relevant provisions of the
Code of Criminal Procedure, 1898 (old Code), Forty-first
Report of the Lay.i Commission, the amendment made in the
~ F
present Code and held that the Court could add any person,
not accused before it, as accused and direct him to be tried
along with the other accused for the offence or offences the
added accused appears to have committed.

31. In Municipal Corporation of Delhi v. Ram Kishan G
Rohtagi & Ors., (1983) 1 SCC 1, the Food Inspector, noticing
adulteration in 'Morton Toffees', filed a complaint against the
~
Company, its Managing Director as well as Directors under the
Prevention of Food Adulteration Act, 1954. The Managing
Director and Directors approached the High Court by invoking H
750 SUPREME COURT REPORTS [2008] 15 S.C.R.

A Section 482 of the Code for quashing of proceedings which
was granted and the proceedings against them were quashed.
The question before this Court was whether Section 319 of the
Code could be invoked once criminal proceedings against a
person were quashed.
B
32. Replying the question in the affirmative and quoting with
approval observations in Joginder Singh, this Court held that if
it appears to the Court that any person not being the accused
before it, but against whom there appears, during trial, sufficient
evidence indicating his involvement in the offence, he can be
C summoned.

33. The Court, however, was conscious of the extraordinary
nature of the power under Section 319 of the Code and stated;

D "f.YV)e would hasten to add that this is really an extraordinary
power which is conferred on the Court and should be used
very sparingly and only if compelling reasons exist for
taking cognizance against the other person against whom
action has not been taken. More than this we would not
like to say anything further at this stage. We leave the
E
entire matter to the discretion of the court concerned so
that it may act according to law".

(emphasis supplied)

F 34. In Shashikant Singh v. Tarkeshwar Singh & Anr.,
(2002) 5 sec 738, during the pendency of trial of an accused,
another person was summoned by the trial Court under Section
319 of the Code. But by the time he could be brought before
the Court, the trial against the accused was over. It was held
G by this Court that the words "could be tried together with the
accused" in Section 319(1) were merely directory and ifthe trial
against the other accused is over, such a person who was
subsequently added as an accused, could be tried after the
conclusion of the trial of the main accused.

H 35. In Michael Machado & Anr. V. Central Bureau of
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 751
-f
[C .K. THAKKER, J.]

Investigation &Anr., (2000) 3 SCC 262, considering the basic A
A
requirements of Section 319 of the Code, this Court said; .

"The basic requirement for invoking the above section is
that it should appear to the Court from the evidence
collected during trial or in the inquiry that some other
B
person, who is not arraigned as an accused in that case ,
had committed an offence for which that person could be
tried together with the accused already arraigned. It is not
enough that the Court entertained some doubt, from the
evidence, about the involvement of another person in the
offence. In other words, the Court must have reasonable
c
satisfaction from the evidence already collected regarding
two aspects. First is that the other person has committed
an offence. Second is that for such offence that other
person could as well be tried along with the already
arraigned accused ~' . ID
.... 36. Highlighting the underlying object of the provision, the
Court proceeded to state;

"But even then, what is conferred on the Court is only a 3
E
discretion as could be discerned from the words "the
Court may proceed against such person". The
discretionary power so conferred should be exercised only
to achieve criminal justice. It is not that the Court should
turn against another person whenever it comes across
evidence connecting that another person also with the F
offence . A judicial exercise is called for keeping a
conspectus of the case, including the stage at which the
trial has proceeded already and the quantum of evidence
collected till then, and also the amount of time which the
Court had spent for collecting such evidence. It must be G
remembered that there is no compelling duty in the Court
to proceed against other persons".

37. Observing that there was no reasonable prospect of
conviction of the persons sought to be arraigned as accused, H
752 SUPREME COURT REPORTS [2008] 15 S.C.R.

A the Court held that no order could be made under Section 319
of the Code. ;..

38. In Krishnappa v. State of Karnataka, (2004) 7 SCC
792, applying Ram Kishan Rohtagi and' Michael Machado, the
Court ruled that the power to summon art accused is an
8
extraordinary power conferred on the Court and it should be
used very sparingly and only if compelling reasons exist for
taking cognizance against the person other than the accused.

39. In Y. Saraba Reddy v. Puthur Rami Reddy & Anr., ~ ,
C (2007) 4 SCC 773 : (2007) 6 SCR 68, a three-Judge Bench
of this Court to which one of us was a party (D.K. Jain,· J.), a
similar situation arose. In the FIR, names of certain persons
were mentioned. On an application by those persons, the matter
was investigated ·by the Deputy Superintendent of Police and
D the report was submitted that they were not present at the time
of incident. On the basis of the report, their names were
deleted from the array of accused. The case was then
committed to the Court of Session. PW1, in his examination
involved the said persons and an application under Section 319
E of the Code was filed for issuing summons to them. The trial
Court rejected the application primarily on the ground that the
plea of alibi was investigated by the Deputy Superintendent of
Police and was found to be correct. The High Court did not find
infirmity in the order. The action was challenged in this Court.
F 40. Allowing the appeal and setting aside the order of the
High Court, Dr. Pasayat, J. said; "If the satisfaction of the
Investigating Officer or Supervising Officer is to be treated as
determinative, then the very purpose of Section 319 of the Code
would be frustrated. Though it ca-nnot always be the satisfaction
G of the Investigating Officer which is to prevail, yet in the instant
case the High Court has not found the evidence of PW-1_ to be
unworthy of acceptance. Whatever be the worth of his evidence
for the purposes of Section 319 of the Code it was required to
be analysed. The conclusion that the /O's satisfaction should
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 753
[C.K. THAKKER, J.]

be given primacy is unsustainable". A

(emphasis supplied)

41. In Guriya & Ors. v. State of Bihar & Anr., (2007) 8 SCC
224, appellants were not arrayed as accused. On the basis of
prosecution evidence, however, an application under Section B
319 of the Code was filed which was allowed by the High Court
and appellants were added as accused. Appellants questioned
the legality of the order.
...
42. This Court allowed the appeal, set aside the order of c
the High Court and dismissed the application filed under
Section 319 of the Code observing that there was no material
against appellants, their names were not found in FIR, no overt
act had been attributed to them and the protest petition filed
by the complainant against them had also been dismissed. D
----\

- 43. Very recently, in Bholu Ram v. State of Punjab & Anr.,
JT 2008 (9) SC 504, we were called upon to consider such a
situation. Referring to earlier decisions, we held that such a
course is open to a Court and power under Section 319 of the
Code can be exercised by the Court to issue summons to a E
person who was not originally shown as an accused. Such an
order cannot be said to be illegal, unlawful or otherwise

-- ~-
objectionable.

44. It is, however, submitted on behalf of the accused that F
in the instant case, an application was made by the Public
Prosecutor before the cross-examination of PW2-Hardeep
Singh was over. It was strenuously contended that for
application of Section 319 of the Code and exercise of power
to proceed against person other than the person shown as an G
accused, there must be an evidence before the Court and such
satisfaction can be arrived at by the Court only upon completion
of cross-examination.

45. In this connection, reference was made to a two Judge
Bench decision of this Court in Mohd. Shafi v. Mohd. Rafiq & H
'
~

754 SUPREME COURT REPORTS [2008] 15 S.C.R.

A Anr., (2007) 4 SCR 1023. In Mohd. Shafi, an FIR was lodged
.A
against the accused alleging the commission of an offence
punishable under Section 302, IPC. The police submitted
charge-sheet against K but not against M (appellant), At the
trial, PW1 was examined and in his examination-in-chief, he
B asserted that M also participated in the 'incident. An application
was filed for summoning him under Section 319 of the Code
which was rejected by the trial Court but allowed by the High
Court. M approached this Court.
).--
46. Allowing the appeal and setting aside the order passed
G
by the High Court, this Court observed that the order passed
by the High Court was not sustainable. It was held that
satisfaction under Section 319 of the Code could be arrived
at only after cross-examination of the witness is over. The
Court stated;
D I-
"The Trial Judge, as noticed by us, in terms of Section 319
of the Code of Criminal Procedure was required to arrive
at his satisfaction . If he thought that the matter should
-
receive his due consideration only after the cross-
E examination of the witnesses is over, no exception thereto
could be taken far less at the instance of a witness and
when the State was not aggrieved by the same".

(emphasis supplied) .....
F 47. The counsel submitted that admittedly in the instant .lr

case, cross-examination of PW2-Hardeep Singh was not over.
In the course of cross-examination by some of the accused
persons, the learned Additional Public Prosecutor moved the
Court under Section 319 of the Code and further cross-
G examination was deferred. It was, therefore, submitted that no
order under Section 319 could be made and the application
was liable to be dismissed.

48. The learned counsel for the complainant, however,
placed reliance on a two Judge Bench decision in Rakesh &
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 755
[C.K. THAKKER, J.]

Anr. V. State of Haryana, (2001) 6 SCC 248. An identical issue A
~ was raised there. The father of the prosecutrix lodged an FIR
alleging commission of offences under Sections 363, 366 and
376, IPC by Rakesh and others. According to the complainant,
his daughter was taken by three persons due to previous enmity
with the object of committing rape. The girl was then found with B
P. After the investigation, charges were framed only against P.
At the trial, however, certain witnesses were examined and on
the basis of their evidence, the Public Prosecutor filed an
- -<f application under Section 319 of the Code for arraying persons
other than P as additional accused. The prayer was granted. c
The order was confirmed by the High Court. The appellants
approached this Court. The question before this Court was
whether the statement of a prosecution-witness without such
="!'
witness having been cross-examined, constituted 'evidence'
within the meaning of Section 319 of the Code.
D
49. Replying the question in the affirmative, noticing
conflicting views of different High Courts and holding that the
term 'evidence' used in sub-section (1) of Section 319 of the
Code is comprehensive, the Court stated;
E
"Once the Sessions Court records a statement of the
witness it would be part of the evidence. It is true that finally
at the time of trial the accused is to be given an opportunity
to cross-examine the witness to test its truthfulness. But that
stage would not arise while exercising court's power under F
...,
Section 319 Cr.P.C. Once the deposition is recorded, no
doubt there being no cross-examination, it would be a
prima fade material, which would enable the sessions
court to decide whether powers under Section 319 should
be exercised or not. Sub-section (1) of Section 319 itself
G
provides that in the course of any inquiry into, or trial of,
an offence, it appears from the evidence that any persons
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'
H
756 SUPREME COURT REPORTS [2008] 15 S.C.R.
·...
A which he appears to have committed". )..

50. The Court added;
"Hence, it is difficult to accept the contention of the learned
counsel for the appellants that the term 'evidence' as used
B in Section 319 Criminal Procedure Code would mean
evidence which is tested by cross examination. The
question of testing the evidence by cross-examination
would arise only after addition of the accused. There is no ,,_ ~--
~

question of cross-examining the witness prior to adding
c such person as accused. Section does not contemplate
an additional stage of first summoning the person and
giving him an opportunity of cross-examining the witness
.,:
who has deposed against him and thereafter deciding
whether such person is to be added as accused or not.
D Word "evidence" occurring in sub-section is used in
comprehensive and broad sense which would also include
the material collected by the investigating officer and the
material or evidence which comes before the Court and
from which the Court can prima facie conclude that person
E not arraigned before it is involved in the commission of the
crime".

51. Thus, once the Sessions Court records a statement
of a witness, it becomes a part of evidence. It is true that finally
at the time of trial, the accused must be given an opportunity
.~
F to cross-examine the witness to test truthfulness of such
~
statement. But that stage would come only after the person is
added as an accused. The Code in such situation has afforded ~

sufficient protection by enacting sub-section (4).

G 52. When an examination-in-chief of a witness is over,
there being no cross-examination, it would be merely prima _{
facie material. But it would enable the Sessions Court to decide I

whether powers under Section 319 of the Code should be >--
exercised or not. Sub-section (1) of Section· 319 itself provides
H that in the course of any inquiry into, or trial of, an offence, it
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 757
[C.K. THAKKER, J.]

"'
I
appears from the evidence that any person not being ~he A
~ 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.
B
53. In State of H.P. v. Surinder Mohan & Ors., (2000) 2
SCC 396, this Court negatived the contention that befqre
granting pardon under Section 306 of the Code, accused
~
~
should be permitted to cross examine such person whose
evidence is recorded by the Magistrate. The Court held that at
the time of investigation or inquiry into an offence, the accused
c
cannot claim any right under law to cross-examine the witness.
The right to cross-examine arises only at the time of trial. During
the course of investigation by the police, the question of cross-
examination by the accused does not arise. Under Section 2po
of the Code, when the Magistrate before taking cognizance of D
the offence, that is, before issuing process holds an inquiry, the
.., accused has no locus standi or right to be heard, and,
•· therefore, there is no question of cross-examination of the
witness.
E
54. It is thus difficult to accept the contention of the learned
counsel for the appellants that the term 'evidence' used in s~b-
section (1) of Section 319 of the Code would mean evidence
which is tested by cross examination. The question of testing
the evidence by cross-examination would arise only after F
addition of the accused. There is no question of cross-
examining the witness prior to adding such person as accused.
Section does not contemplate an additional stage of first
summoning the person and giving him an opportunity of cros s- 1

examining the witness who has deposed against him and
G
thereafter deciding whether such person should or should not
be added as accused. Theword "evidence" occurring in sub-
section (1) of Section 319 is used in comprehensive and broad
-4 sense which would also include the material collected by the
investigating officer and the evidence which comes before the
H
--~·

758 SUPREME COURT REPORTS [2008] 15 S.C.R.

·A Court and from which the Court is satisfied that person not
arraigned before it is involved in the commission of the crime.

55~ Rakesh thus ruled that an application under Section
319 of the Code is maintainable even without completion of
B cross'"examination of a witness. If the Court is satisfied on the
basis of examination-in-chief of a witness that a person not
shown to be an accused appears to have committed an offence,
it can exercise the power under Section 319 of the Code.

56. According to Mohd. Shafi, however, no such order can
C be passed by a Court under Section 319 unless the cross-
examination of the witness is complete.

57. Both the cases i.e. Rakesh and Mohd. Shafi were
decided by a two Judge Bench. Whereas Rakesh was decided
0 in 2000, Mohd. Shafi was decided in 2007. In Mohd. Shafi,
however, the attention of the Court was not invited to Rakesh.

58. We may only observe that it is settled law that at the
stage of issuing summons or process, a Court has to see
whether there is prima facie case against the person sought
E to be summoned or against whom process is sought to be
issued. At that stage, there is no question of giving an
opportunity of hearing to such person. The entire scheme of the
Code is that an accused does not come into picture at all till
process is issued. As held by this Court in several cases
F including a leading decision in Nagavva v. Veeranna, (1976)
3 sec 736, the accused at pre-process stage has no locus
standi and is not entitled to be heard on the question whether
the process should be issued against him or not. It may,
therefore, be said that till summons or process is issued against
G the accused, he has no right of audience and in that case, it
cannot be said that on being satisfied on the basis of
examination-in-chief, an application under Section 319 of the
Code is not maintainable.

59. There is yet another reason which is also very relevant
H
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 759
~
[C.K. THAKKER, J.]

and material. When a person who is not shown as an accused A
A_
is sought to be added on the basis of evidence in exercise of
power under Section 319 of the Code, he is nbt before the
Court. Other accused against whom the trial has commenced
are very much before the Court and generally they are
represented by an advocate/advocates. In the evidence of a B
witness, when role of other person i.e. other than the accused
is described by prosecution witnesses, normally, accused who
are already on record are not affected. Grant or rejection of
~
-I application under Section 319 would generally not alter their
position. In our considered opinion, therefore, holding that c
unless the cross-examination of a witness by accused who were
already on record is over and complete, no power under
Section 319 of the Code can be exercised, does not appear
to be sound.

60. The matter can still be looked at from another angle. D
The Code has taken care by sufficiently protecting and
safeguarding the interest of such added accused. Sub-section
(4) of Section 319 expressly provides that where the Court
exercises power under sub-section (1) and proceeds against
a person not arrayed as an accused, "the proceedings in E
respect of such person shall be commenced afresh, and
witnesses re-heard". Thus, after exercise of power by the Court
under Section 319(1 ), such added accused would be placed
in the same position as other accused and will get all rights an
j accused can get under the Code. The proceedings against the F
.. added accused shall be commenced afresh and witnesses will
be reheard. Their evidence, prior to addition of the accused
cannot be used against the accused who was not there earlier.
The question of prejudice, hence, does not arise at all.
G
61. It was submitted on behalf of the appellants that being
.... a decision of two Judge Bench, Rakesh was binding upon
Mohd. Shafi and the subsequent decision thus is per incurium.
_... The accused, on the other hand, submitted that being latest in
point of time, Mohd. Shafi should be followed by this Court.
H
760 SUPREME COURT REPORTS [2008} 15 S.C.R.
~

A 62. In our considered opinion, however, in the light of ...'
).._
conflicting decisions of co-ordinate Benches, (both of two
Hon'ble Judges), it woul~ be appropriate if we refer the matter
'
to a Bench of three Hon'bl~ Judges. \..---

63. In the case on hand, in an appeal arising out Special
B
Leave Petition (Crl) No. 2051 of 2007 (Manjit Pal Singh v. ,t
State of Punjab & Anr.), there was nothing against respondent
No.2-Kashmir Singh and the report submitted by the
investigating Officer had been accepted by the trial Court as ~·
~'
well as by the High Court and there is no infirmity therein.
c
64. Likewise, in an appeal arising out of Special Leave
Petition (Crl) No. 166 of 2007 (Hardeep Singh v. State of
Punjab & Ors.), Jagtar Singh was not charge-sheeted. Both the
Courts considered the report of the Investigating Officer and
D held that the action of non-issuing of process against Jagtar
Singh could not be held illegal or unlawful. We are of the view l

that the order cannot be termed unlawful or unwarranted which
.., }
i'
requires interference.

65. As far as Vijay Preet Singh is concerned, the matter
E
stands on a different footing. His name finds place in the FIR.
Not only that he was present at the place of offence with a -:-

weapon (gandasi) but was also arrested by the police from the
scene of offence. His name was, however, excluded and charge
sheet was not submitted in pursuance of an application made
F by his father. It was the allegation of the complainant that the ~
.J
said action was taken with a view to oblige Sukhvinder Singh, I

father of Vijay Preet Singh who was Chairman of Panchayat
Samiti.
'""

G · 66. We are further of the view that the final report submitted
by the Superintendent of Police (D), Patiala to Senior
Superintendent- of Police, Patiala on July 12, 2004 under
Section 173 of the Code is also not in consonance with law. ).

67. The said section provides for submission of final report -
H
,

-I

'
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 761
[C.K. THAKKER, J.]

by the Police Officer on completion of investigation. Sub- A
sections (1) and (2) of the said section are relevant and read
""' thus; ,'

173. Report of police officer on completion of
· investigation.- (1) Every investigation under this Chapter 8
shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of
the police station shall forward to a Magistrate empowered
-1 to take cognizance of the offence on a police report, a
report in the form prescribed by the State Government, c
stating -

(a) the names of the parties;

(b) the nature of the information;
D
(c) the names ofthe persons who appear to be acquainted
with the circumstances of the case;

(d) whether any offence appears to have been committed
and, if so, by whom; E
(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so,
whether with or without sureties;
F
i (g) whether he has been forwarded in custody under
section 170.

(ii) The officer shall also communicate, in such manner as
may be prescribed by the State Government, the action
taken by him, lO the person, if any, by whom the information G
relating to the commission of the offence was .first given.

68. Sub-section (1) of Section 173 of the Code lays down
...: that every investigation must be completed without unnecessary
delay. Slackness or inordinate delay on the part of the H
~~

762 SUPREME COURT REPORTS [2008] 15 S.C.R. '

A investigating agency may result in the disappearance of
material evidence which might otherwise be available and may )...
prevent effective detection of the crime. It may also result into
unnecessary detention of the accused in custody. ~-

B 69, Sub-section (2) enacts that as soon as investigation ·~
is completed, the officer in charge of the police station shall
forward a report to a Magistrate empowered to take
-~
cognizance of-the offence on a police report in the form
'.._
p~escribed by the State Government, stating (i) the names of
the parties; (ii) the nature of the information; (iii) the names of t
c the persons who appear to be acquainted with the
'-
j.·

circumstances of the case; (iv) whether any offence appears
to have been committed and, if so, by whom; (v) whether the
accused has been arrested; (vi) whether he has been released
on his bond and, if so, whether with or without sureties; (vii)
D whether he has been forwarded in custody under section 170.
He shall also communicate to the informant the action taken by
him. ..,
70. The report contemplated by Section 173 should
E contain the information required by the said provision. The
Investigating Officer is not expected to record findings of fact
nor to give clean chit by exercising power of a Court or judicial
authority. In the instant caGe, however, the Superintendent of
Police not only refers to investigation made by him and the
F statements recorded in the course of investigation but records
a 'finding' that the statements were 'correct'. Vijay Preet Singh l
was not present at the place of offence when the incident took \---

place but reached after the occurrence was over. Thereafter
police had arrested him. Likewise, Jagtar Singh was not
present at the spot at the time of occurrence.
G
{--
71.. The report stated;
,.
"However, Vijay Preet Singh is totally innocent because he
came there after finalizing of the occurrence. The police >-
H had already been there after reaching him and the fight

\
I
HARDEEP SINGH v. STATE OF PUNJAB & ORS. 763
[C.K. THAKKER, J.]

stood already finished. Moreover, Balbir Singh Dhanoa and A
~ Hardeep Singh named Jagtar Singh son of Suchha Singh
resident of Fatehmajri later on. This fact is also totally
wrong because the son-in-law of Joginder Singh was
expired a few days earlier. He was found to be at the
ceremony of taking the bones with other men and women. B
Except this, this fact has also come in the notice that
Hardeep Singh has stated in FIR that he was taken this
land on lease. He went there to cultivate but prior to the
~ occurrence Davinder Singh party had already cultivated his
c
~

' corn yield and jantars in this land, which was already 2 feet
in height. If he wanted to cultivate then he could cultivate
this land alone. What was the necessity to come with these
group of men. It is evident therefrom that these all men
armed with their weapons came to get possession of this
land forcibly after making a plan. The statement which was
D
given by Balbir Singh Dhanoa that he had deposited his
·gun at Verma Gun House, Model Town, Patiala on 2.6.04
'T'
has been deposited with connivance. Because Inspector
Rajesh Chijjar snatched gun from Balbir Singh Dhanoa
with the help of his employees. Later on Dhanoa party got
the weapons forcibly from the police due to a big gathering E
of men. It is recommended to take legal action against
Verma Gun House, Patiala".

72. We may only state that the Investigating Officer was
required to submit report in terms of Section 173 of the Code F
and nothing more. He should not record a finding nor he can
give clean chit which is a function and power of the Magistrate
who will exercise the said power as provided in the Code.

73. Prima facie, in the light of factual scenario, the
G
submission on behalf of the appellant is well-founded that name
of Vijay Preet Singh ought to have been included in the charge
sheet and the application under Section 319 of the Code
... deserves to be allowed. The learned counsel for the accused,
however, referring to Mohd. Shafi, submitted that in the said
H
764 SUPREME COURT REPORTS [2008] 15 S.C.R.

A decision, this Court held.that the jurisdiction under Section 319
o·f the Code can be exercised by the Court only if the Court is A.
~atisfied that in all likelihood such pers9n would be co~victed.

'· ., 74. The Court in ·Mohd. Shafi, stated;
B ··~From the decisions of this Court, as· noticed. above, it is
· evident that before a court exercises its discretionary
jurisdiction in terms of Section 319 of the Code of Criminal
Procedure, it must arrive at the satisfaction that there exists
a possibility that the accused so summoned is in all
c likelihood would be convicted. Such satisfaction can be
arrived at inter alia upon completion of ·the cross- t
·.
examination of the said witness. For the said purpose, the
court concerned may also like to consider other evidence".

D (emphasis supplied)

[see also Kai/ash v. State of Rajasthan.& Anr., JT 2008
(3) SC 279]

75. \Nith respect, the above observations do not appear
E to be in consonance with statutory provisions or previous
decisions of this Court. We have reproduced Section 319 of
the Code in the earlier part of the judgment. Bare reading of
sub-section (1) leaves no room of doubt what it requires. It
states that for addition of accused, it must appear to the Court
F from the evidence that any person not being the accused has
y ·,
committed any offence for which such person shouid be tried
along with other accused.

76. In Joginder Singh, a three-Judge Bench of this Court
stated;
G
"A plain reading of Section 319(1), which occurs in
Chapter XXIV dealing with general provisions as to
inquiries and trials, clearly shows that it applies to all the
· Courts including a Sessions Court and as such a Sessions '·
H Court will have the power to add any person, not being the
---l,
(

HARDEEP SINGH v. STATE OF PUNJAB & ORS. 765
iii;;( [C.K. THAKKER, J.]

A accused before it, but against whom there appears during A
trial sufficient evidence indicating his involvement in the
offence, as an accused and direct him to be tried along
with the other accused ... "
-1 I 77. In Michael Mechdo, this Court held that the Court must
~
B
have reasonable satisfaction from the evidence led that the
other person has committed an offence.
78. In Krishnappa, it was observed that such power should
-I
be exercised if there are compelling reasons and in Mohd.
Shafi this Court has held that such power can be exercised only c
if the Court is satisfied that the accused so summoned is in
al/ likelihood would be convicted. The test formulated in Mohd.
Shafi substantially curtails discretionary power of the Court
conferred by the Code under sub-section (1) of Section 319.
Even on this point, therefore, the matter requires fresh D
consideration.
'r
79. We, therefore, refer the following two questions for the
consideration of a Bench of three Hon'ble Judges;
(1) When the power under sub-section (1) of Section 319
E
of the Code of addition of accused can be exercised by a
Court? Whether application under Section 319 is not
maintainable unless the cross-examination of the witness
is complete?
.., (2) What is the test and what are the guidelines of F
exercising power under sub-section (1) of Section 319 of
the Code? Whether such power can be exercised only if
the Court is satisfied that the accused summoned in all
likelihood would be convicted?
80. We direct the Registry to place the matter before the G
Hon'ble the Chief Justice of India for taking an appropriate
action.
-"
81. Ordered accordingly.
K.K.T.
. Appeal dismissed . H