JAMIN & ANR. v. STATE OF UTTAR PRADESH & ANR

Citation: 2025 INSC 330, [2025] 3 S.C.R. 638

Court: Supreme Court of India

Bench: J.B. Pardiwala and Manoj Misra, JJ.

Judgment text

SUPREME COURT OF INDIA Jamin & Anr. v. State of Uttar Pradesh & Anr. Criminal Appeal No. 1184 of 2025 [2025] 3 S. C. R. 638 : 2025 INSC 330 Jamin & Anr. v. State of Uttar Pradesh & Anr. (Criminal Appeal No. 1184 of 2025) 06 March 2025 [J. B. Pardiwala* and Manoj Misra, JJ. ] Issue for Consideration (i) Whether the High Court was right in exercising its revisional jurisdiction for the purpose of setting aside the order of the Trial Court rejecting the second application preferred by the respondent no. 2 u/s. 319 of the CrPC; (ii) Whether the order dated 21. 02. 2024 passed by the Trial Court to give effect to the order passed by the High Court directing it to reconsider the application u/s. 319 of CrPC would relate back and replace its earlier order dated 19. 07. 2010 rejecting the s. 319 application; (iii) Whether the Trial Court could have entertained an application filed u/s.

319 of the CrPC after the conclusion of the trial, more particularly when no stay on trial had been granted by the High Court; (iv) Whether the High Court should have given an opportunity of hearing to the proposed accused before deciding the revision petition filed against the rejection of application u/s. 319 of the CrPC by the Trial Court. If yes, whether the order dated 14. 09. 2021 passed by the High Court in exercise of its revisional jurisdiction was passed without issuing notice to the appellants and providing them an opportunity of hearing. Headnotes† Code of Criminal Procedure, 1973 - ss. 319, 397, 401 - Whether the High Court was right in exercising its revisional jurisdiction for the purpose of setting aside the order of the Trial Court rejecting the second application preferred by the respondent no. 2 u/s.

319 of the CrPC: Held: The High Court in exercise of its revisional jurisdiction was justified in setting aside the order passed by the Trial Court rejecting the second application preferred by respondent no. 2 u/s. 319 of the CrPC as the same was found to have been passed contrary * Author Jamin & Anr. v. State of Uttar Pradesh & Anr. to the settled position of law, suffering from a patent illegality, thus, leading to serious miscarriage of justice - Once a superior court deems fit to interfere with an order passed by a subordinate court, then any rectifications to such order passed in exercise of revisional powers u/s. 401 r/w. s.

397 of the CrPC must be treated on the same footing as rectifications made by an appellate court and as a result would relate back to the time the original order was passed - By virtue of relating back of the order passed by the High Court in a revision petition, the summoning order passed by the Trial Court in compliance with the order of the High Court would also relate back to the initial order rejecting the second application u/s. 319, and therefore could be said to have been passed before the conclusion of the trial - Unlike cases where an application u/s. 319 is being decided in the first instance by the Trial Court, the conclusion of trial will have no bearing on the adjudication of an application u/s. 319 in terms of the directions of the High Court passed in exercise of revisional jurisdiction. [Paras 115(a),115(b), 115(c), 115(d)] Code of Criminal Procedure, 1973 - s. 319 - Whether the order dated 21. 02.

2024 passed by the Trial Court to give effect to the order passed by the High Court directing it to reconsider the application u/s. 319 of CrPC would relate back and replace its earlier order dated 19. 07. 2010 rejecting the s. 319 application: Held: The summoning order dated 21. 02. 2024 was passed by the Trial Court in pursuance of the directions issued by the High Court vide the revisional order dated 14. 09. 2021 - Therefore, the same should be construed as an extension of the revisional order passed by the High Court - The combined effect of the revisional order passed by the High Court and the summoning order passed by the Trial Court dated 21. 02. 2024 would be that the order of the Trial Court dated 19. 07. 2010 rejecting the second s. 319 application stood replaced and substituted by the summoning order dated 21. 02. 2024 - Thus, although the summoning order in the present case came to be passed on 21. 02.

2024, that is, after the conclusion of the trial, yet, it would be deemed to have been passed on 19. 07. 2010 by virtue of the law expounded by this Court in Maru Ram case and Krishnaji Dattatreya Bapat case. [Para 115(f)] Code of Criminal Procedure, 1973 - s. 319 - Whether the Trial Court could have entertained an application filed u/s. 319 of 640 the CrPC after the conclusion of the trial, more particularly when no stay on trial had been granted by the High Court: Held: The High Court in exercise of its revisional jurisdiction directed the Trial Court to reconsider the application u/s. 319 of CrPC - The revisional jurisdiction of the High Court cannot be rendered nugatory solely because the trial was not stayed by the High Court and stood concluded before the High Court could pass the order in exercise of its revisional jurisdiction - Therefore, unlike cases where an application u/s.

319 is being decided in the first instance by the Trial Court, the conclusion of trial will not have a bearing on the adjudication of an application u/s. 319 in terms of the directions of the High Court passed by way of a revisional order. [Paras 100, 101] Code of Criminal Procedure, 1973 - s. 319 - Whether the High Court should have given an opportunity of hearing to the proposed accused before deciding the revision petition filed against the rejection of application u/s. 319 of the CrPC by the Trial Court - If yes, whether the order dated 14. 09. 2021 passed by the High Court in exercise of its revisional jurisdiction was passed without issuing notice to the appellants and providing them an opportunity of hearing: Held: s.

319 does not contemplate that a summoned person must be given an opportunity of being heard before being added as an accused to face the trial - A right of hearing would accrue only to a person who is already discharged in the very same proceeding prior to the commencement of the trial - This is different from holding that a person who has been summoned as per s. 319 CrPC has a right of being heard in accordance with the principles of natural justice before being added as an accused to be tried along with the other accused - However, after the rejection of an application u/s. 319, a right enures in favour of the proposed accused - Thereafter, if in exercise of revisional jurisdiction, the High Court is to pass an order which is prejudicial to the benefit which had already enured in favour of the proposed accused, then the High Court is obligated in law to provide an opportunity of hearing to the proposed accused - This is also the mandate as contained in sub-section (2) of s.

401 of the CrPC - In the instant case, a perusal of the order dated 14. 09. 2021 passed in Revision Petition No. 400/2010 clearly indicates that the appellants were respondent nos. 2 and 4, respectively, before the High Court - Jamin & Anr. v. State of Uttar Pradesh & Anr. Hence, there is no merit in the submission of the appellants that the order rejecting the 2nd application u/s. 319 of the CrPC was set aside by the High Court without providing any opportunity of hearing to them. [Paras 114, 115(g)] Code of Criminal Procedure, 1973 - s. 319 - Object, Purpose and Scope: Held: s. 319 has been included in the statute book with the object of ensuring effective administration of justice - The legislature enacted s.

319 to eliminate any situation wherein the courts would feel helpless in proceeding against any person who appears to be guilty of committing an offence, more particularly, in cases where the investigating agency or prosecution files chargesheet only against a few persons in relation to an offence and leaves out a few others either intentionally or unintentionally - The said section empowers the courts to proceed with persons who are not the accused before it, upon satisfaction of the conditions prescribed in the provision - The intention behind giving a wide interpretation to s. 319 is to ensure that the perpetrator of a crime does not get away unpunished - The legislature incorporated the provision with the purpose of empowering the courts to find out the real culprits without getting hindered by procedural impediments so that the guilty does not go unpunished. [Paras 34, 37] Code of Criminal Procedure, 1973 - Sub-section (1) to s.

319 - Essential requirements: Held: A bare perusal of sub-section (1) of s. 319 brings out three essential requirements that must be fulfilled for invoking the powers thereunder: a. First, there must be an ongoing inquiry or trial in respect of the original accused person(s); and b. Secondly, in the course of such proceedings, evidence must have come on record to show that any person other than the original accused has committed any offence; and c. Thirdly, the person sought to be summoned could be tried together with the original accused for such offence. [Para 39] Code of Criminal Procedure, 1973 - s. 319 - Summoning order u/s. 319 of CrPC - When a person was not chargesheeted by the investigating agency: Held: A summoning order issued u/s.

319 of the CrPC cannot be quashed only on the ground that even though the proposed accused 642 were named in the FIR or complaint, the police did not include their names in the chargesheet - In other words, if the evidence tendered in the course of any inquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been chargesheeted by the investigating agency or may have been discharged at an earlier stage. [Para 44] Code of Criminal Procedure, 1973 - Sub-section (4) of s. 319: Held: Sub-section (4) of s.

319 mandates that a fresh trial or a de novo trial is to be conducted in respect of the persons summoned under sub-section (1) so as to ensure that such persons are not deprived of the opportunity to present their case and examine the witnesses properly - The requirement of a de novo trial in sub-section (4)(a) is quite different from the notion of a split up or separate trial as provided u/s. 317 of the CrPC - The provision of a de novo trial is to safeguard the right of fair trial to be provided to the new persons summoned u/s. 319(1). [Para 45] Code of Criminal Procedure, 1973 - s. 319 - Stage at which power u/s. 319 of the CrPC can be exercised - Discussed. [Paras 47-60] Code of Criminal Procedure, 1973 - s. 319 - Meaning of the expression "could be tried together with the accused" - Discussed. [Paras 61-68] Code of Criminal Procedure, 1973 - s. 319 - Mechanism for exercise of powers u/s.

319 in cases where the trial is over but the revisional order relates back to the date of the rejection of an application under the said section by the Trial Court: Held: In cases where the trial is over but the revisional order relates back to the date of the rejection of an application under the said section by the Trial Court - It is axiomatic that in such a case there is no occasion for a joint trial to be conducted with the original accused persons - Therefore, when the order of the High Court passed in revision after the conclusion of trial relates back to the order of the Trial Court passed before the conclusion of trial, it must be taken to mean that the new accused would be proceeded against in a separate trial - Such a situation shall be governed by Jamin & Anr. v. State of Uttar Pradesh & Anr.

the guidelines provided in Sukhpal Singh Khaira case - There is no requirement for a decision by the Trial Court on the question of separation of trial in cases like the present one since the trial has already concluded in respect of the original accused and the only manner in which the order of the High Court can be given effect to is by proceeding in a separate trial qua the new accused persons. [Para 96] Case Law Cited Sukhpal Singh Khaira v. State of Punjab [2022] 10 SCR 156 : (2023) 1 SCC 289 - followed. Municipal Corpn. of Delhi v. Ram Kishan Rohtagi [1983] 1 SCR 884 : (1983) 1 SCC 1; Kishun Singh v. State of Bihar [1993] 1 SCR 31 : (1993) 2 SCC 16; Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : (2014) 3 SCC 92; R. Dineshkumar @ Deena v. State represented by Inspector of Police & Ors. [2015] 5 SCR 605 : (2015) 7 SCC 497; Amit Kapoor v. Ramesh Chander [2012] 7 SCR 988 : (2012) 9 SCC 460; Maru Ram v.

Union of India [1981] 1 SCR 1196 : (1981) 1 SCC 107; Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [1970] 1 SCR 322 : (1969) 2 SCC 74; Pasupuleti Venkateswarlu v. Motor and General Traders [1975] 3 SCR 958 : (1975) 1 SCC 770; Uday Mohanlal Acharya v. State of Maharashtra [2001] 2 SCR 878 : (2001) 5 SCC 453; Yashodhan Singh v. State of U. P. [2023] 10 SCR 1196 : (2023) 9 SCC 108; Manharbhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel [2012] 8 SCR 1015 : (2012) 10 SCC 517 relied on. Shashikant Singh v. Tarkeshwar Singh & Anr. [2002] 3 SCR 400 : (2002) 5 SCC 738; Subhash Sahebrao Deshmukh v. Satish Atmaraman Talekar & Ors. (2020) 6 SCC 625; Sarojben Ashwinkumar Shah v. State of Gujarat [2011] 9 SCR 1138 : (2011) 13 SCC 316; Devendra Kumar Pal v. State of Uttar Pradesh & Anr. , 2024 SCC OnLine SC 2487; Raj Kishore Prasad v. State of Bihar [1996] Supp. 2 SCR 125 : (1996) 4 SCC 495; Suman v. State of Rajasthan (2010) 1 SCC 250; U. J. S. Chopra v.

State of Bombay [1955] 2 SCR 94 : 1955 SCC OnLine SC 57; Ramesh Kumar v. Kesho Ram (1992) Supp. 2 SCC 623 - referred to. Books and Periodicals Cited Law Commission of India, 41st Report. 644 List of Acts Code of Criminal Procedure, 1973; Code of Criminal Procedure, 1898. List of Keywords Section 319 of CrPC; Revisional jurisdiction of High Court; Expression "could be tried together with the accused; Stage of summoning u/s. 319 of CrPC; Opportunity of hearing; Stay of trial; De novo trial; Right of fair trial; Stay on trial. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1184 of 2025 From the Judgment and Order dated 01. 04. 2024 of the High Court of Judicature at Allahabad, Lucknow Bench in A482 no. 2399 of 2024 Appearances for Parties Advs. for the Appellants: Siddharth Aggarwal, Sr. Adv. , Anshuman, Shaantanu Devansh, Ms. Rudrali Patil, Ayush Shrivastava. Advs. for the Respondents: Shaurya Sahay, Aditya Kumar. Judgment / Order of the Supreme Court Judgment J.

B. Pardiwala, J. For the convenience of exposition, this judgment is divided into the following parts: - INDEX* A. FACTUAL MATRIX ............................................................................... 3 B. SUBMISSIONS ON BEHALF OF THE APPELLANTS ........................ 11 C. SUBMISSIONS ON BEHALF OF THE RESPONDENT ...................... 20 * Ed. Note: Pagination as per the original Judgment. Jamin & Anr. v. State of Uttar Pradesh & Anr. D. ISSUES FOR DETERMINATION .......................................................... 25 E. ANALYSIS ............................................................................................. 26 (i) Legislative history, ingredients and scope of Section 319 of the CrPC ................................................................................. 26 (ii) Stage at which power under Section 319 of the CrPC can be exercised ...............................................................................

39 (iii) Meaning of the expression "could be tried together with the accused" ..................................................................................... 54 (iv) Peculiar facts of the present case not fully covered by the guidelines issued by this Court in its decisions in Sukhpal Singh Khaira and Hardeep Singh ............................................. 59 (v) Whether the High Court was right in exercising its revision jurisdiction to set aside the order of the Trial Court rejecting the second application preferred by the respondent no. 2 under section 319 of the CrPC? ............................................... 61 (vi) The order passed by the High Court in exercise of its revision jurisdiction would relate back to and replace the order passed by the Trial Court rejecting the application under Section 319 of the CrPC ..........................................................................

65 (vii) Right of the proposed accused to be heard at the stage of summoning under Section 319 of CrPC .................................. 87 F. CONCLUSION ....................................................................................... 93 1. Leave granted. 2. This appeal arises from the judgment and order passed by the High Court of Judicature at Allahabad, Lucknow Bench dated 01. 04. 2024 in Criminal Application No. 2399 of 2024 filed by the appellants herein under Section 482 of the Code of Criminal Procedure, 1973 (the "CrPC") by which the High Court rejected the application and thereby affirmed the order passed by the Sessions Court summoning the appellants herein as accused under Section 319 of the CrPC in the Session Trial No. 582 of 2009. 646 A. FACTUAL MATRIX 3. On 14. 04. 2009, the respondent no. 2 herein lodged a First Information Report ("FIR") No.

99/2009 in the Police Station Bilgram, Hardoi, Uttar Pradesh for the offence punishable under Sections 147, 148, 149 and 302 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") respectively against five persons namely Irshad, Irfan, Abdul, Jamin and Akil in connection with the murder of his brother. The FIR alleged that the appellants herein namely, Jamin and Akil exhorted the other co-accused to kill the deceased and as a result of such instigation, the said co-accused fired at the deceased using their pistols resulting into his death. 4. On conclusion of the investigation, the police filed chargesheet no. 07/2009 dated 14. 07. 2009 against two accused persons, namely Irshad and Irfan for the alleged offence. The police by way of Parcha No. CD 16 dated 14. 07. 2009 informed the court concerned that the investigation qua the remaining accused persons, namely Abdul, Jamin and Akil was ongoing.

The chargesheet contained a list of 18 witnesses which the State proposed to examine in support of the charges. 5. On 27. 10. 2009, the Trial Court framed charge for the offence under Sections 147, 148, 149 and 302 of the IPC respectively against the accused persons who were named in the chargesheet who in turn pleaded not guilty and claimed to be tried. 6. While the trial against the chargesheeted accused persons namely Irshad and Irfan was in progress, the respondent no. 2 filed an application under Section 319 of the CrPC praying to summon the other three persons named in the FIR to face the trial along with the chargesheeted accused persons. 7. On 29. 01.

2010, the Trial Court rejected the aforesaid application on the ground that a person could be summoned by the trial court in exercise of its powers under Section 319 of the CrPC provided that there is cogent and reliable evidence indicating towards the complicity of such person in the commission of an offence for which he could be tried together with the accused persons already put to trial. The Trial Court noted that PW-1 and PW-2 respectively had yet not been cross-examined and it was not clear whether the I. O. intended to file chargesheet against the persons sought to be summoned, therefore Jamin & Anr. v. State of Uttar Pradesh & Anr. it declined the prayer to summon under Section 319 of the CrPC.

The relevant extracts from the said order are reproduced hereinbelow: "Hence, from the aforesaid principles it is cleared that till date, cross examination of Pw-1 & Pw-2 has not been done and it is also not cleared that the chargesheet against the application by the accused u/s 319 CrPC is being filed or not Investigation have been completed or not and if final report have been filed then is it pending in Add District Court or till now investigation is going on? Whenever it would not be cleared and until and unless such evidence has not been filed by prosecution that such evidence against proposed accused is enough to punished the them until then summoned to accused is not justifiable. Hence, application not accepted and is deserved to be dismissed/rejected. " 8. A revision petition bearing no. 203 of 2010 was filed by the respondent no. 2 before the High Court against the order of the Trial Court dated 29. 01. 2010 referred to above. The High Court vide order dated 14. 05.

2010 directed the Trial Court to reconsider the prayer of the respondent no. 2 for summoning the proposed accused persons under Section 319 of the CrPC after the cross-examination of PW-1 and PW-2 respectively was over. In the meantime, the evidence of PW-1 and PW-2 was recorded on 01. 12. 2009, 02. 04. 2010 and 15. 05. 2010 respectively. The relevant extracts from the said order are reproduced hereinbelow: "It appears that the revisionist is the complainant and his petition under section 319 CrPC for summoning additional accused has been rejected by the court concerned on the ground that cross-examination of PW-1 and 2 had not taken place. The learned trial court is expected to consider the revisionist's prayer after the cross-examination is over. With the aforesaid observation, the revision is finally disposed of. " 9. Thereafter, on 10. 06. 2010, the respondent no.

2 filed a second application under Section 319 of the CrPC before the Trial Court with a prayer to summon the three persons named in the FIR as 648 accused in addition to the accused persons named in the chargesheet. The Additional District & Sessions Judge, Hardoi vide order dated 19. 07. 2010 rejected the said application on the ground that the evidence recorded in the course of the trial did not warrant the summoning of the said three persons as accused. The Trial Court noted that that while exercising jurisdiction under Section 319 of the CrPC, it is necessary to see whether there is sufficient and cogent evidence to take cognizance and if not, then the persons sought to be summoned as accused cannot be asked to face the trial. The Court observed that the complainant had no idea as regards the identity of the proposed accused persons, namely, Abdul, Jamin and Akil and no explanation was forthcoming as to how their names came to be included in the FIR. 10.

In such circumstances referred to above, the respondent no. 2 preferred revision petition bearing no. 400/2010 before the High Court seeking to challenge the order dated 19. 07. 2010. 11. During the pendency of the revision petition, the Additional District & Sessions Judge, Hardoi vide the judgment and order dated 19. 10. 2011, held Irshad and Irfan guilty of the offence of murder and sentenced them to life imprisonment and fine. The trial accordingly stood concluded. 12. Long after the conclusion of the trial, the High Court,though aware of conclusion of the trial of the co-accused,set aside the order of the Trial Court dated 19. 07. 2010, vide order dated 14. 09. 2021 passed in criminal revision petition no. 400/2010, while observing as under: a.

First, merely on the basis of a statement made by a prosecution witness that not a single person in the village was known to him, the Trial Court could not have concluded that the proposed accused were not present at the scene of the crime; and b. Secondly, no final report was submitted by the police against the proposed accused, exonerating them from the alleged crime. The High Court held that a person not named in the FIR or if named in the FIR but not chargesheeted, could be summoned under Section 319 of the CrPC if the court was prima facie satisfied that such person had also committed the offence and he could be tried along with the other accused for the alleged offence on the basis of the evidence recorded in Jamin & Anr. v. State of Uttar Pradesh & Anr. the course of inquiry into or trial of an offence.

In light of the aforesaid observations, the High Court allowed the revision petition and directed the Trial Court to reconsider the application under Section 319 of the CrPC submitted by the complainant (the respondent no. 2 herein) within three months from the date of its order. The relevant observations made by the High Court are reproduced herein below: "8 The proposed accused are named in the FIR. The plaintiff has been examined as PW-1, he has confirmed the statements in his FIR. Just because he said that he did not know anyone by name in that village, it cannot be assumed that he did not know the proposed accused. In the cross-examination he was not specifically asked to identify the proposed accused, in such a situation it cannot be justified to conclude that he did not know the proposed accused. It is noteworthy here that the original trial has been completed and the accused have been found guilty. Annexure-1, submitted along with the supplementary affidavit dated 24. 11.

2020 submitted by the reviewer, is reflected in the copy of the decision. [... ] In the light of the legal principles propounded by the Honorable Supreme Court and the above analysis, it is clear that the impugned order passed by the trial court is erroneous, because on the basis of mere statement of PW that he did not know any person in the village by name before the incident. Considering that he did not even know the proposed accused and the investigation against the proposed accused seems to be prevalent, neither the final report was given against them nor the rejection of the chargesheet application cannot be called legal and justified, as a result deserves to be set aside. 9 This revision is accepted. The impugned order dated 19. 07. 2010 passed by the trial court is set aside.

The 650 trial court is ordered to again consider the application submitted by the plaintiff under Section 319 CrPC in the light of all the evidence and well-established legal principles and pass an order as per law within three months of receiving the copy of the order. " 13. On the strength of the order passed by the High Court referred to above, the respondent no. 2 filed another application dated 22. 09. 2021 under Section 319 of the CrPC before the Additional District and Session Judge and prayed to summon the proposed accused in the trial. The Additional District and Sessions Judge vide order dated 21. 02. 2024 allowed the said application on the ground that the oral evidence of the witnesses recorded by the Trial Court clearly revealed the involvement of the proposed accused, viz. , Abdul, Jamin and Akil along with the accused who stood convicted. Since one of the proposed accused namely, Abdul had passed away, the court summoned Jamin and Akil to face the trial. 14.

The appellants being dissatisfied with the summoning order, challenged the same by filing an application under Section 482 of the CrPC and prayed that the order be quashed and set aside. The challenge to the summoning order was essentially on the ground that the appellants had been summoned in a trial which stood concluded on 19. 10. 2011 that is, almost 13 years before the summoning order was passed. 15. The High Court vide the impugned order dated 01. 04. 2024, rejected the aforesaid application of the appellants filed under Section 482 of the CrPC and thereby affirmed the summoning order passed by the Additional District and Sessions Judge. The High Court held that Section 319(4) of the CrPC provides that where the court proceeds against any person under sub-section (1) of Section 319, the proceedings in respect of such person is supposed to commence afresh and the witnesses are to be re-heard with respect to the proposed accused so summoned.

The conclusion of trial against the other accused persons would not cause any prejudice to the appellants as they would be afforded an opportunity to defend themselves in a fresh trial. In view of the aforesaid, the High Court found no illegality in the order summoning the appellants herein under Section 319 of the CrPC. The relevant observations made by the High Court are reproduced hereinbelow: Jamin & Anr. v. State of Uttar Pradesh & Anr. "27. ln the present case, the witnesses PW-1 and PW-2 have stated about that the previously tried accused had shot at the victim at the exhortation of the applicant. The trial stands concluded by the judgment and order dated 19. 10. 2011 wherein it was held that the accused persons Irshad and Irfan created an unlawful assembly with the other accused persons and they killed the deceased Arif by shooting at him with a firearm. In case the aforesaid evidence remains unrebutted, the same would lead to conviction of the applicant. 28.

Therefore, there is no illegality in the order summoning the applicant under Section 319 CrPC. 29. Section 482 CrPC saves the inherent powers of the High Court to make such orders as may be necessary to secure the ends of justice. Non-summoning of accused persons against whom there was ample evidence warranting their trial, would defeat the ends of justice. The order rejecting the application under Section 319 CrPC was set aside by this Court in exercise of its revisional jurisdiction and it is only thereafter, that the trial Court has summoned the applicants under Section 319 CrPC. Any interference with the order summoning the applicants to face trial would in fact defeat the ends of justice, which would be contrary to the object for which the inherent powers of this Court are meant to be exercised. 30. In view of the foregoing discussion, the application filed under Section 482 CrPC lacks merit and the same is hereby dismissed. " B. SUBMISSIONS ON BEHALF OF THE APPELLANTS 16. Mr.

Siddharth Aggarwal, the learned Senior Counsel appearing for the appellants addressed himself on the following questions: (i) Whether the Trial Court could have entertained an application filed under Section 319 of the CrPC almost twelve years after the conclusion of the main trial and in the absence of any proceedings pending before it? 652 (ii) Whether the application under Section 319 of the CrPC dated 22. 09. 2021 could have been filed by the respondent no. 2 on the strength of the order of the High Court dated 14. 09. 2021? (iii) Whether the order dated 14. 09. 2021 could have been passed by the High Court without issuing notice to the appellants? (iv) What is the effect of the conclusion of the trial on the revision petition pending before the High Court, more particularly when the proceedings of trial were not stayed by the High Court? (v) Whether there was sufficient material on record to summon the appellants under Section 319 of the CrPC? 17.

As regards the question whether the Trial Court could have entertained the application filed under Section 319 of the CrPC after the conclusion of the trial, the learned counsel made the following submissions: a) The conditions for the exercise of power by the Trial Court under Section 319(1) of the CrPC are: (i) that there must be any inquiry into, or trial of, an offence; (ii) that in course of that inquiry or trial, it must appear from the evidence that any person, who is not the accused, has committed any offence for which he could be tried together with the accused. If the aforesaid conditions are satisfied, the person sought to be summoned can be asked to appear "in the course of any inquiry into, or trial of, an offence". In other words, the summoning order should be passed at a stage anterior to the date of pronouncement of the judgment, in the trial. b) However, in the present matter, the application under Section 319 of the CrPC, which was allowed vide order dated 21. 02.

2024, was made 13 years after the judgment & order of conviction of the chargesheeted accused persons. Therefore, the Additional Sessions Judge, Hardoi could not have exercised its powers under Section 319 of the CrPC as he became functus officio with the passing of the order of conviction and sentence. c) The High Court failed to take into consideration the law laid down by a Constitution Bench of this Court in Singh Khaira v. Jamin & Anr. v. State of Uttar Pradesh & Anr. State of Punjab reported in (2023) 1 SCC 289 wherein it was held that the summoning order under Section 319 of the CrPC had to be necessarily passed before the order of sentence is passed where a finding of conviction was returned. Accordingly, the appellants could not have been summoned by the Trial Court in 2024, long after the conclusion of the proceedings of Sessions Trial No.

582 of 2009 resulting into conviction and sentence of life imprisonment being passed against the original accused, namely Irshad and Irfan. Therefore, the order dated 21. 02. 2024 passed by the Additional District and Sessions Judge, Hardoi was not merely a procedural lapse but rather a violation of the substantive rights of the appellants. d) The respondent no. 2 also failed to inform the Trial Court about the pendency of the Revision Petition no. 400/2010 before the High Court and the High Court was also not informed about the conclusion of trial qua the chargesheeted accused persons. e) The decision of this Court in Shashikant Singh v. Tarkeshwar Singh & Anr. reported in (2002) 5 SCC 738 isdistinguishable from the present case as having been passed in a very different set of facts and thus would not come to the aid of the respondents.

The facts in Shashikant Singh (supra) were that a revision petition was preferred against the order of the Trial Court allowing the application under Section 319 of the CrPC and summoning the proposed accused. Thereafter, the trial came to be concluded during the pendency of the revision petition. In Shashikant Singh (supra), the application under Section 319 was allowed at a time when the Trial Court still had the jurisdiction and therefore, the matter was remanded by this Court to the High Court for fresh consideration on merits. However, contrary to the facts in Shashikant Singh (supra), in the present matter, the Revision Petition no. 400 of 2010 was preferred by the respondent no. 2 against the order of the Trial Court rejecting the application under Section 319 on merits.

Thus, while in Shashikant Singh (supra) the summoning order was issued during the pendency of the trial, in the present case the summoning order came to be issued long after the conclusion of the trial and is, thus, bad in law as the Trial Court became functus officio with the conclusion of the trial and could not have passed the summoning order. 654 f) Further, this Court in Hardeep Singh v. State of Punjab reported in (2014) 3 SCC 92 has held that the powers under Section 319 of the CrPC should be exercised sparingly. The evidence on record warranting exercise of this power must be such that if it goes unrebutted then it would lead to a conviction. In the present case, the appellants were named in the FIR and were subjected to investigation and yet were not arrayed as accused in the chargesheet dated 14. 07. 2009.

g) The record of the Trial Court indicates that the investigation qua the appellants was closed for want of sufficient material against them and therefore the investigating officer decided not to file chargesheet against the appellants. h) The oral evidence of PW-1 and PW-2, respectively, before the Trial Court also failed to inspire any confidence for the purpose of summoning the appellants as the testimony of PW-1 was not believable. It was pointed out that PW-1 himself had deposed that he did not know anyone from the village to which the appellants belonged and the testimony of PW-2 by itself could not have been relied upon as the respondent no. 2 did not name himself as an eye-witness in his complaint or in his statement recorded under Section 161 of the CrPC or in his substantive evidence before the court. 18. As regards the question whether the High Court could have passed the order dated 14. 09.

2021 without issuing notice and granting an opportunity of being heard to the appellants, the counsel made the following submissions: a) Upon rejection of the application under Section 319 of the CrPC dated 10. 06. 2010 by the Trial Court, the respondent no. 2 preferred Revision Petition no. 400 of 2010 before the High Court. However, contrary to the settled position of law, the appellants were not joined as parties to the said revision petition. b) Further, the said revision petition remained pending for 11 years before the High Court and in the interregnum, the appellants were not heard at any stage. Therefore, the order directing the Trial Court to reconsider the application under Section 319 came to be passed on 14. 09. 2021 without affording the appellants any opportunity to be heard. Jamin & Anr. v. State of Uttar Pradesh & Anr. c) The order dated 14. 09. 2021 could be said to be contrary to the law laid down by this Court in Manharbhai Muljibhai Kakadia v.

Shaileshbhai Mohanbhai Patel reported in (2012) 10 SCC 517 and Subhash Sahebrao Deshmukh v. Satish Atmaraman Talekar & Ors. reported in (2020) 6 SCC 625 wherein the right to be heard has been recognised and it was held that an opportunity of hearing is to be mandatorily granted to a proposed accused in revisional proceedings. 19. As regards the question pertaining to the legal effect of the conclusion of trial on the revision proceedings pending before the High Court, more particularly when the High Court had not stayed the proceedings of the trial, the counsel submitted the following: a) Upon conclusion of trial, as a natural corollary, any interim proceedings arising therefrom would come to an end as the Trial Court becomes functus officio unless a specific stay on such trial proceeding has been granted by a higher court. b) In the present matter, the Trial Court became functus officio on 19. 10. 2011 i. e.

, the date on which it pronounced the judgment of conviction and sentence against the original accused persons namely, Irshad and Irfan, and was thereafter shorn of the jurisdiction to entertain a subsequent application under Section 319 of the CrPC as no proceedings were pending before it. As such, no order for summoning the appellants could have been passed by the Trial Court, especially because the High Court in its revisional jurisdiction had not passed any order for staying the trial proceedings or restraining the Trial Court from pronouncing the final judgment against the other accused persons during the pendency of the revision petition c) The principle that the Trial Court cannot exercise its powers under Section 319 of the CrPC after conclusion of the trial has been duly recognized by this Court in its decision in Sukhpal Singh Khaira (supra). 20.

As regards the question whether there was sufficient material on record to summon the appellants to face trial, the counsel submitted as follows: a) No chargesheet had been filed against the appellants nor was any evidence adduced to point towards the involvement of the appellants in the alleged offence. b) The application under Section 319 of the CrPC was not preferred by the prosecution but by the complainant. c) The Case Diary No. 19 dated 05. 09. 2009 also recorded that action against Abdul, Jamin and Akil was not required as their presence at the spot of the crime had not been confirmed. d) The second application under Section 319 of the CrPC dated 10. 06. 2010 was rejected by the Trial Court inter alia on the ground that upon examination of PW-1, it became evident that the complainant did not know the appellants herein and no explanation had been offered as to how the complainant mentioned their names in the FIR.

Further, it was observed that investigation against the proposed accused persons was ongoing and no final report against them had been submitted by the police. e) After due consideration of all the materials and evidence collected during investigation, the prosecution arrived at a decision that no case was made out against the appellants herein and accordingly decided not to file a supplementary chargesheet against them. Similarly, after considering the oral evidence on record, the Trial Court recorded a finding that no prima facie case was made out against the appellants and accordingly rejected the application filed under Section 319 of the CrPC. f) Even after the filing of the criminal revision petition before the High Court against the rejection of the application under Section 319, no stay on the trial proceedings was granted by the High Court and the respondent no.

2 also did not seek an early hearing of the revision petition despite being aware of the fact that the trial was about to conclude. g) The impugned order of the High Court also noted that the counsel for the complainant did not apprise the Trial Court of the pendency of the revision petition. C. SUBMISSIONS ON BEHALF OF THE RESPONDENT 21. Mr. Shaurya Sahay, the learned counsel appearing for the State of Uttar Pradesh, addressed himself primarily on the following two aspects: Jamin & Anr. v. State of Uttar Pradesh & Anr. (i) The issue of summoning of proposed accused under Section 319 of the CrPC after conclusion of trial is well settled in law and in light of the said settled position the summoning order issued in the present case cannot be said to be erroneous in law. (ii) The impact and purport of Section 319(4) to the extent it contemplates re-hearing of the witnesses and fresh commencement of trial had been correctly considered by the High Court while passing the impugned order.

22. As regards the first proposition, the counsel submitted as follows: a) This Court in its decision in Sukhpal Singh Khaira (supra), inter alia, laid down the following guidelines to be followed by a court while deciding an application under Section 319 of the CrPC: i. If the competent court finds cogent evidence or if an application is made under Section 319 of the CrPC showing involvement of any other person in the commission of the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, the court shall stop the proceedings of the trial at that stage and proceed to decide the application filed under Section 319 of the CrPC first before proceeding further with the trial. ii.

If the court decides to summon an accused under Section 319 of the CrPC, such summoning order shall be passed before proceeding further with the trial in the main case and depending upon the stage at which the order is passed, the court shall apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. iii. If the power under Section 319 of the CrPC is not invoked or exercised in the main trial till its conclusion and if there is a split-up case, such power can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated trial). b) In the present matter, the High Court in its impugned order has recorded that as per Section 319(4), the trial against the accused 658 sought to be summoned has to be commenced afresh and the witnesses have to be re-heard.

Therefore, the conclusion of the trial against the original accused persons would not cause any prejudice to the appellants. c) The aforesaid finding of the High Court falls squarely within the ambit of paragraphs 41. 3 and 41. 6 of Sukhpal Singh Khaira (supra). The relevant guidelines laid down in Sukhpal Singh Khaira (supra) and relied upon by the counsel are reproduced below: "41. 3. If the decision of the court is to exercise the power under Section 319 CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. .......... 41. 6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with. " d) The impugned order also finds sustenance from the decision of this Court in Sarojben Ashwinkumar Shah v.

State of Gujarat reported in (2011) 13 SCC 316 wherein while laying down the principles applicable to Section 319 of the CrPC, it was held that regard must be had to the constraints imposed by sub-Section (4) of Section 319 that the proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial. e) The decision of this Court in Devendra Kumar Pal v. State of Uttar Pradesh & Anr. reported in 2024 SCC OnLine SC 2487 has referred to the Constitution Bench judgment in Sukhpal Singh Khaira (supra) and held that if a summoning order is passed after the passing of order of acquittal in the case of acquittal or after the passing of order on sentence in the case of conviction, the same may not be sustainable. 23. As regards the impact and purport of Section 319(4) with respect to re-hearing of the witnesses and fresh commencement of trial, the counsel made the following submissions: Jamin & Anr. v. State of Uttar Pradesh & Anr.

a) The High Court in the impugned order has observed that the revisional power of the High Court under Sections 397 and 401 of the CrPC respectively is plenary and there are no limitations to reverse an order rejecting the Section 319 application in order to ensure that actual perpetrators of the crime are rightly brought before the court to face trial. b) The High Court has further recorded in the impugned order that merely because the trial against the original accused persons stood concluded during the pendency of the revision, the power of revision cannot be limited, more particularly when the Trial Court had recorded that the murder was committed by the original accused due to the exhortation of the persons sought to be summoned under Section 319 of the CrPC.

c) The principles governing the exercise of jurisdiction under Section 319 were laid down by this Court in Hardeep Singh (supra) wherein it was observed that it is the duty of the court to do justice by punishing the real culprit. d) As regards the satisfaction of the court before it proceeds to exercise its power under Section 319 of the CrPC, the Constitution Bench in Hardeep Singh (supra) has held as follows: "105. Power under Section 319 CrPC 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. 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 cross- examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case 660 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused. " e) In the present case, both the Trial Court and High Court concurrently held that the summoning of the appellants was warranted in view of the evidence that had come on record during the course of the trial. The appellants were accused of having exhorted the original accused persons and therefore primafacie could be said to have abetted the commission of the offence of murder. 24. In such circumstances referred to above, the counsel appearing for the respondent State submitted that the Trial Court was justified in summoning the appellants as accused in exercise of its powers under Section 319 CrPC. D. ISSUES FOR DETERMINATION 25.

Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for our consideration: (i) Whether the High Court was right in exercising its revisional jurisdiction for the purpose of setting aside the order of the Trial Court rejecting the second application preferred by the respondent no. 2 under section 319 of the CrPC? (ii) Whether the order dated 21. 02. 2024 passed by the Trial Court to give effect to the order passed by the High Court directing it to reconsider the application under Section 319 of CrPC would relate back and replace its earlier order dated 19. 07. 2010 rejecting the Section 319 application? Jamin & Anr. v. State of Uttar Pradesh & Anr. (iii) Whether the Trial Court could have entertained an application filed under Section 319 of the CrPC after the conclusion of the trial, more particularly when no stay on trial had been granted by the High Court?

(iv) Whether the High Court should have given an opportunity of hearing to the proposed accused before deciding the revision petition filed against the rejection of application under Section 319 of the CrPC by the Trial Court? If yes, whether the order dated 14. 09. 2021 passed by the High Court in exercise of its revisional jurisdiction was passed without issuing notice to the appellants and providing them an opportunity of hearing? E. ANALYSIS (i) Legislative history, ingredients and scope of Section 319 of the CrPC 26. Section 319 of the CrPC empowers the court to proceed against other persons appearing to be guilty of offence. The section is reproduced below: "319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then 662 (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. " 27. Before the enactment of CrPC in 1973, Section 351 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the Code, 1898") was the provision corresponding to Section 319 of the CrPC. Section 351 of the Code, 1898 is reproduced hereinbelow: "351. Detention of offenders attending court.

(1) Any person attending a Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. (2) When the detention takes place in the course of an inquiry under Chapter XVIII or after a trial has been begun the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard. " 28. A perusal of Section 351 of the Code, 1898 indicates that under the old provision the court was empowered to proceed only against a person who was attending the Court and who also appeared to have committed the offence from the evidence adduced before the Court, of which such Court can take cognizance, by detaining such a person for the purpose of enquiry or trial.

Sub-section (2) provided that in respect of such person, the proceedings shall have to be commenced afresh and the witnesses re-heard. 29. The expression "any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed" used in Section 351 clearly indicates two aspects, namely: a. First, that it must appear from the evidence that a person who is attending the Court has committed an offence; and Jamin & Anr. v. State of Uttar Pradesh & Anr. b. Secondly, that the offence is such that the Court can take cognizance. 30. Therefore, what becomes clear from the aforesaid is that there was a lacuna in Section 351 of the Code, 1898 as it did not cover two important situations: a. First, the situation where the person who appears to have committed an offence during the course of the enquiry into or trial was not attending the Court; and b. Secondly, the manner in which the cognizance will be taken as against that person. 31.

In order to make Section 351 comprehensive, the Law Commission, realizing the above two grey areas, in its 41st report, recommended for suitable amendment of the said provision. The relevant recommendation of the Law Commission is reproduced hereinbelow: "24. 80. 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 only proper that a Magistrate should have the power to call and join him in the 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. 24. 81.

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 Magistrate's own information under Section 190(1)(c), or only in 664 the manner in which cognizance was first taken of the offence against the accused. The question is important, because the methods of inquiry and 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 as 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 of a new person is added as an accused during the proceedings. " (Emphasis supplied) 32. The aforesaid indicates that the Law Commission made two recommendations: a. First, to add an accused who is not before the Court but connected with that offence; and b. Secondly,the mode of taking cognizance as against the newly added accused shall be the same as against the other accused. 33. Pursuant to the above recommendation, Section 319 was enacted in CrPC with suitable modifications.

A perusal of Section 319 of CrPC makes it manifest that any person, not being the accused before the court, who also appears to have committed an offence from the evidence adduced before the court during the course of any enquiry into or trial of an offence for which cognizance has already been taken, regardless of whether such person is attending the court or not, can be summoned. If he is added as an accused pursuant to the said decision of the court, the mode of taking cognizance in respect of such person would the same as in the case of the already arraigned accused. In other words, he is deemed to have been an accused when the Court originally took cognizance of the offence earlier. For this purpose, a legal fiction is created in Clause (b) of sub-section (4) of Section 319 of CrPC. Jamin & Anr. v. State of Uttar Pradesh & Anr. 34. Section 319 has been included in the statute book with the object of ensuring effective administration of justice.

The legislature enacted Section 319 to eliminate any situation wherein the courts would feel helpless in proceeding against any person who appears to be guilty of committing an offence, more particularly, in cases where the investigating agency or prosecution files chargesheet only against a few persons in relation to an offence and leaves out a few others either intentionally or unintentionally. The said section empowers the courts to proceed with persons who are not the accused before it, upon satisfaction of the conditions prescribed in the provision. 35. The scope of power under Section 319 CrPC was explained by this Court in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi reported in (1983) 1 SCC 1 wherein it was held that cognizance against a proposed accused can be taken under Section 319 even if the proceedings against him have been quashed earlier. The relevant observations are reproduced as under: "19.

In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law.

We would, however, make it plain that the mere fact that the proceedings have been quashed against Respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it. " (Emphasis supplied) 666 36. Further, this Court, in Kishun Singh v. State of Bihar reported in (1993) 2 SCC 16, observed that even a person who has been discharged earlier would fall within the sweep of Section 319 of the CrPC subject to other requirements for applicability of the provision being satisfied. The relevant observations are reproduced hereinbelow: "11. On a plain reading of sub-section (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, 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 Section 319 of the Code. " (Emphasis supplied) 37. A perusal of the aforesaid decisions of this Court indicates that the intention behind giving a wide interpretation to Section 319 is to ensure that the perpetrator of a crime does not get away unpunished. The legislature incorporated the provision with the purpose of empowering the courts to find out the real culprits without getting hindered by procedural impediments so that the guilty does not go unpunished. 38.

While discussing the spirit underlying Section 319 of the CrPC, this Court in Hardeep Singh (supra)observed that the provision is based on the doctrine judex damnatur cum nocens absolvitur which means that "the Judge is condemned when guilty is acquitted". The Court further observed that this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC. The relevant portions from the said decision discussing the spirit of the provision and the approach which the courts must adopt while interpreting the provision are reproduced hereinbelow: Jamin & Anr. v. State of Uttar Pradesh & Anr. "8.

The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law.

It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. 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 CrPC. 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 abovementioned avowed 668 object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject-matter of trial. --xxx-- 12. Section 319 CrPC 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 CrPC. 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 CrPC? " (Emphasis supplied) 39. A bare perusal of sub-section (1) of Section 319 brings out three essential requirements that must be fulfilled for invoking the powers thereunder: a. First, there must be an ongoing inquiry or trial in respect of the original accused person(s); and b. Secondly, in the course of such proceedings, evidence must have come on record to show that any person other than the original accused has committed any offence; and c. Thirdly, the person sought to be summoned could be tried together with the original accused for such offence. 40. This Court in Raj Kishore Prasad v.

State of Bihar reported in (1996) 4 SCC 495 held that Section 319 deals only with a situation in which the complicity of the persons sought to be arrayed as accused comes to light from the evidence taken and recorded in the course of an inquiry or trial. This Court in its decision in Suman v. State of Rajasthan reported in (2010) 1 SCC 250 held that a case can be proceeded with under Section 319 if, based upon Jamin & Anr. v. State of Uttar Pradesh & Anr. the evidence brought on record in the course of any inquiry into, or trial of an offence, the court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. 41. The standard of such prima facie satisfaction to be formed from the evidence produced during the course of trial or inquiry has been explained by this court in Hardeep Singh (supra). The relevant observations from the said decision are reproduced below: "105.

Power under Section 319 CrPC 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. 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 cross- examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.

In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused. " (Emphasis supplied) 670 42. As regards the requirement of evidence and the standard for testing such evidence, Hardeep Singh (supra) indicates as follows: a. First, it is not necessary for the evidence tendered to be tested by way of cross-examination for establishing the involvement of an additional accused; and b.

Secondly,the threshold for establishing the involvement of an additional accused is more than that of a prima facie case as exercised at the time of framing of charge, but less than such a satisfaction that the evidence, if goes unrebutted, would lead to conviction. 43. Further, the exercise of powers under Section 319 is not inhibited with respect to who can be summoned as an accused. This Court in Hardeep Singh (supra) has clarified in express terms that Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the chargesheet and against whom cognizance had not been taken, or even a person who has been discharged. However, as regards a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC.

Such a person can be proceeded against under Section 319 only if during or after an inquiry under Section 300(5) read with Section 398, there appears to be evidence against such person which may indicate that they committed any offence for which they could be tried together with the accused. 44. Therefore, a summoning order issued under Section 319 of the CrPC cannot be quashed only on the ground that even though the proposed accused were named in the FIR or complaint, the police did not include their names in the chargesheet. In other words, if the evidence tendered in the course of any inquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been chargesheeted by the investigating agency or may have been discharged at an earlier stage. 45.

Sub-section (4) of Section 319 mandates that a fresh trial or a de novo trial is to be conducted in respect of the persons summoned under sub-section (1) so as to ensure that such persons are not deprived of the opportunity to present their case and examine the witnesses properly. The requirement of a de novo trial in sub-section Jamin & Anr. v. State of Uttar Pradesh & Anr. (4)(a) is quite different from the notion of a split-up or separate trial as provided under Section 317 of the CrPC. The provision of a de novo trial is to safeguard the right of fair trial to be provided to the new persons summoned under Section 319(1). 46. However, while the provision of de novo or fresh trial under Section 319(4) is mandatory, the said sub-section is applicable only in cases where the court proceeds against any person under sub-section (1). Thus, a de novo trial can be commenced in respect of the proposed accused only if the power under sub-section (1) has been validly exercised by the court.

In other words, sub-section (4) is subject to sub-section (1) and thus also to the expression "could be tried together with the accused" mentioned in sub-section (1). (ii) Stage at which power under Section 319 of the CrPC can be exercised 47. The principal contention of the appellants is that the Trial Court could not have allowed the application under Section 319 of the CrPC after the conclusion of the trial of the original accused. In other words, the appellants have contended that once the stage of trial was over by virtue of pronouncement of judgment of conviction and sentence, it was not open anymore to the Trial Court to issue summons against the appellants. 48. To better appreciate and address the aforesaid contention of the appellants, it is important to understand the stage at which the power under Section 319 of the CrPC can be exercised.

A bare perusal of the sub-section (1) of Section 319 of the CrPC indicates that the power thereunder can be exercised "in the course of an inquiry into, or trial of, an offence". 49. A Constitution Bench of this Court in Hardeep Singh(supra) was called upon to resolve, inter alia, the issue of the stage at which an order under Section 319 could be passed. This Court considered the meaning and scope of the words "course", "inquiry" and "trial" appearing in sub-section (1) in detail and inter alia made the following observations: a. The stage of committal can neither be said to fall under the meaning of the expression "inquiry" or "trial" and thus the powers under Section 319 cannot be exercised at the stage of committal of proceedings. 672 b. The stage of trial commences upon the framing of charges. c.

Inquiry does not include the stage of investigation by the investigating authorities and refers to the stage which commences upon the case being brought to the notice of the court upon filing of the chargesheet. d. The power under Section 319(1) CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage, intended to put the process into motion. e. The application of the provisions of Section 319 CrPC, at the stage of inquiry remains limited to 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. f. The word "course" appearing in sub-section (1) signifies that the power under Section 319 can be exercised when either the inquiry, or trial, has been commenced and is going on. 50.

The relevant observations made by this Court in Hardeep Singh (supra) in the context of the stage at which the powers under Section 319 can be exercised by the courts are reproduced hereinbelow: "38. In view of the above, the law can be summarised to the effect that as "trial" means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the "trial" commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken. 39. Section 2(g) CrPC and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under CrPC by the Magistrate or the court.

The word "inquiry" is, therefore, not any inquiry relating to the investigation of the case by the investigating agency Jamin & Anr. v. State of Uttar Pradesh & Anr. but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial. 40. Even the word "course" occurring in Section 319 CrPC, clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the entire wide range of the process of the pre-trial and the trial stage. The word "course" therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry up to the stage of the conclusion of the trial.

The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. [... ] --xxx-- 42. To say that powers under Section 319 CrPC can be exercised only during trial would be reducing the impact of the word "inquiry" by the court. It is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim a verbis legis non est recedendum which means, "from the words of law, there must be no departure" has to be kept in mind. --xxx-- 47.

Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, 674 etc. which is only a pre-trial stage, intended to put the process into motion. [... ] --xxx-- 53. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 CrPC cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018]. [... ] 54.

In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried.

This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC. 55. Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove. --xxx-- Jamin & Anr. v. State of Uttar Pradesh & Anr. 57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC 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 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. " (Emphasis supplied) 51. In Sukhpal Singh Khaira (supra), a Constitution Bench of this Court was called upon to authoritatively consider the stage at which a trial could be said to have been concluded for the purposes of Section 319 of the CrPC. The Court, inter alia, framed the following two questions: a. Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order? b.

Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial? 52. Answering the first question, the Court observed that where there is a judgment of conviction the power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. As regards cases where the summoning order and order of conviction/acquittal are passed on the same day, the Court held that it will have to be examined on the facts and circumstances of each case and if such summoning order is found to have been passed either after the order of acquittal or imposing sentence in the case of conviction, the same would not be sustainable. 676 53.

With the regard to the second question, the Court observed that the trial court has the power to summon additional accused during the proceeding of split-up trial (i. e. , trial of the accused which had been separated or bi