Trial

Konina Mandal, Assistant Professor, JGLS

Elements of Fair Trial
Universally accepted that a person accused should not be punished unless is guilt has been
established through a fair trial. Fair trial cannot be explained in absolute terms, it’s a
relative concept and can be measured only in relation to the gravity of the accusation, time
and resources which the society can afford to spend, quality of resources, social values etc.
Besides degree of fairness, essential attributes of a fair trial can be identified.

• Universal Declaration of Human Rights

Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.(Article 10)
Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary
for his defence. (Article 11)
Adversary system
• Prosecutor (State) accuses defendant (accused) of the commission of some crime
and law requires him to prove beyond reasonable doubt. Judge is the umpire.
Truth emerges from facts through effective and constant challenges.
• In India, the system confers on the accused not only the right to be defended by a
lawyer of his choice, but also confers on indigent accused right to legal aid at the
state’s cost.
• The Code has also altered notions of the judge umpire – he is not to remain
passive but play a positive and active role for protecting public interests as well as
individual interests of the accused. For eg – charge is framed by the court not
prosecution (s228,240), Court is empowered to call any person as a witness
though not called by any party(s. 311), the court can examine accused at any time
seeking explanations (s.313)etc.
Presumption of innocence
• Principle of cardinal importance in the criminal justice administration.
The burden of proving guilt beyond reasonable doubt of the accused
is upon the prosecution and unless it relieves itself of the burden the
courts cannot record a finding of guilt.
• Every trial begins with the presumption of innocence in favour of the
accused and is the governing principle throughout the trial.
Independent, Impartial and Competent Judge
• Separation of judiciary from executive

• Judge or Magistrate must not be connected with the prosecution or interested in

prosecution.
S. 479 - No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any
case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or
made by himself.
Explanation.-A Judge or Magistrate shall not be deemed to be a party to, or personally interested in, any case by reason only that he is concerned
therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed or any other
place in which any other transaction material to the case is alleged to have occurred and made an inquiry in connection with the case.

• Fair trial requires public hearing in open court.

S.327 - The place in which may Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court,
to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the
public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.
 Venue of the Trial
• The place or inquiry of the trial is laid down in s.177-189. If the place of trial is
highly inconvenient to the accused and causes impediments in defence
preparation, the trial at such a place cannot be considered fair. Apart from
exceptional circumstances, it would be convenient to both the prosecution and
defence is trial is conducted by court in whose local jurisdiction the crime was
committed.
Right of the Accused to know the accusation
• Accused must be informed of accusations.

228. Framing of charge.— Where the Judge frames any charge under clause (b) of sub-section
(1), the charge shall be read and explained to the accused and the accused shall be asked whether
he pleads guilty of the offence charged or claims to be tried
240. Framing of charge.—
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he
pleads guilty of the offence charged or claims to be tried.
246. Procedure where accused is not discharged
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he
pleads guilty or has any defence to make.
Accused to be tried in his presence
• Personal presence of the accused is important except in certain circumstances.

205. Magistrate may dispense with personal attendance of accused.—(1) Whenever a Magistrate issues a
summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to
appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of
the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the
manner hereinbefore provided

317. Provision for inquiries and trial being held in the absence of accused in certain cases.—(1) At any stage of
an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal
attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently
disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense
with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the
proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal
attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or
trial, or order that the case of such accused be taken up or tried separately
 Evidence to be taken in presence of Accused
• 273. Evidence to be taken in presence of accused.—Except as otherwise expressly provided,
all evidence taken in the course of the trial or other proceeding shall be taken in the presence of
the accused, or, when his personal attendance is dispensed with, in the presence of his pleader:
• 1[Provided that where the evidence of a woman below the age of eighteen years who is alleged
to have been subjected to rape or any other sexual offence, is to be recorded, the court may take
appropriate measures to ensure that such woman is not confronted by the accused while at the
same time ensuring the right of cross-examination of the accused.]

• 279. Interpretation of evidence to accused or his pleader.—(1) Whenever any evidence is

given in a language not understood by the accused, and he is present in Court in person, it shall
be interpreted to him in open Court in a language understood by him.
• (2) If he appears by pleader and the evidence is given in a language other than the language of
the Court, and not understood by the pleader, it shall be interpreted to such pleader in that
language.
• (3) When documents are put for the purpose of formal proof, it shall be in the discretion of the
Court to interpret as much thereof as appears necessary.
• Right of Accused person to cross-examine prosecution witness and produce
evidence in defence
• Right of the accused person to have a expeditious trial
• Reasoned Decision
• Doctrine of Autrefois Acquit and Autrefois Convict – Double Jeopardy
• Right to be defended by a lawyer
Article 22 —No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds
for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
s.303 - Right of person against whom proceedings are instituted to be defended.—Any person accused of an offence before a
Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice

• Legal Aid at State Expense

If right to counsel is essential to fair trial, it is also equally important to ensure that the accused has necessary means to engage a lawyer for his
defence.
Article 39A: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular,
provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.
See s.304
PLEAS OF AUTREFOIS ACQUIT AND
CONVICT
• Pleas are taken as a BAR TO CRIMINAL TRIAL on acquittal or conviction.

• Based on Nemo debet bis vexari

• Doctrine of Double Jeopardy

• Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once. This is
called Doctrine of Double Jeopardy. The objective of this article is to avoid harassment, which must be caused for
successive criminal proceedings, where the person has committed only one crime. There is a maxim related to this
– nemo debet bis vexari. This means that no man shall be put twice in peril for the same offence.
• There are two aspects of Doctrine of Jeopardy viz. autrefois convict and autrefois acquit. Autrefois convict means
that the person has been previously convicted in respect of the same offence. The autrefois acquit means that the
person has been acquitted on a same charge on which he is being prosecuted.

• Refer to Section 300 Cr.PC

Trial before Court of Session
Court of Session CANNOT directly take cognizance of any offence triable by such
court according to the First Schedule except in cases under 199(2.)
Case must be committed by Magistrates u/s 209.

Section 225 - In every trial before a Court of Session, the prosecution shall be
conducted by a Public Prosecutor.

• There are three requirements that need to be kept in mind before Sessions
Trial
 Accused has a right to be defended
 Court shall assign pleader for his defense
 Accused should be furnished with copies of documents
STEPS IN THE TRIAL
• 225. Trial to be conducted by Public Prosecutor.—In every trial before a
Court of Session, the prosecution shall be conducted by a Public Prosecutor.

• 226. Opening case for prosecution.—When the accused appears or is brought

before the Court in pursuance of a commitment of the case under section 209, the
prosecutor shall open his case by describing the charge brought against the accused and
stating by what evidence he proposes to prove the guilt of the accused.

• 227. Discharge.—If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions of the accused and the
prosecution in this behalf, the Judge considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the accused and record his reasons
for so doing.
Framing and Explaining Charge
228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is
of opinion that there is ground for presuming that the accused has committed an offence
which—
• (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused
and, by order, transfer the case for trial to the Chief Judicial Magistrate, 3[or any other Judicial
Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate,
or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and
thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial
of warrant-cases instituted on a police report;
• (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read
and explained to the accused and

• the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried
Conviction on Plea of Guilty

• 229. Conviction on plea of guilty.—If the accused pleads guilty, the

Judge shall record the plea and may, in his discretion, convict him
thereon

• If accused is convicted on plea of guilty, the judge shall unless he

proceeds in accordance with the provisions of 360, hear the accused on
question of sentence and pass sentence according to law.
Date for prosecution evidence
• 230. Date for prosecution evidence.—If the accused refuses
to plead, or does not plead, or claims to be tried or is not convicted
under section 229, the Judge shall fix a date for the examination of
witnesses, and may, on the application of the prosecution, issue any
process for compelling the attendance of any witness or the production
of any document or other thing
Evidence for prosecution
• 231. Evidence for prosecution.—(1) On the date so fixed, the
Judge shall proceed to take all such evidence as may be produced in
support of the prosecution.
• (2) The Judge may, in his discretion, permit the cross-examination of
any witness to be deferred until any other witness or witnesses have
been examined or recall any witness for further cross-examination.
Record in trial before Court of Session
• 276. Record in trial before Court of Session.—
• (1) In all trials before a Court of Session, the evidence of each witness shall,
as his examination proceeds, be taken down in writing either by the
presiding Judge himself or by his dictation in open Court, or under his
direction and superintendence, by an officer of the Court appointed by him
in this behalf.
• 3[(2) Such evidence shall ordinarily be taken down in the form of a
narrative, but the presiding Judge may, in his discretion, take down, or cause
to be taken down, any part of such evidence in the form of question and
answer.]
• (3) The evidence so taken down shall be signed by the presiding Judge and
shall form part of the record
• 277. Language of record of evidence.—In every case where
evidence is taken down under section 275 or 276,—
• (a) if the witness gives evidence in the language of the Court, it shall be
taken down in that language;
• (b) if he gives evidence in any other language, it may, if practicable, be
taken down in that language, and if it is not practicable to do so, a true
translation of the evidence in the language of the Court shall be prepared
as the examination of the witness proceeds, signed by the Magistrate or
presiding Judge, and shall form part of the record;
• (c) where under clause (b) evidence is taken down in a language other than
the language of the Court, a true translation thereof in the language of the
Court shall be prepared as soon as practicable, signed by the Magistrate or
presiding Judge, and shall form part of the record:
• Provided that when under clause (b) evidence is taken down in English and
a translation thereof in the language of the Court is not required by any of
the parties, the Court may dispense with such translation
Steps to follow prosecution evidence
• Oral arguments and memorandum of arguments on behalf of
prosecution
• 314. Oral arguments and memorandum of arguments.—
• (1) Any party to a proceeding may, as soon as may be, after the close of his evidence, address
concise oral arguments, and may, before he concludes the oral arguments, if any, submit a
memorandum to the Court setting forth concisely and under distinct headings, the arguments in
support of his case and every such memorandum shall form part of the record.
• (2) A copy of every such memorandum shall be simultaneously furnished to the opposite party.
• (3) No adjournment of the proceedings shall be granted for the purpose of filing the written
arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant
such adjournment.
• (4) The Court may, if it is of opinion that the oral arguments are not concise or relevant, regulate
such argument
313 Statement
• II) Explanation of Accused
• 313. Power to examine the accused.—
• (1) In every inquiry or trial, for the purpose of enabling the accused
personally to explain any circumstances appearing in the evidence
against him, the Court—
• (b) shall, after the witnesses for the prosecution have been
examined and before he is called on for his defence, question him
generally on the case

Refer to Nar Singh v State of Haryana

• 3) Hearing the parties
232. Acquittal.—
If, after taking the evidence for the prosecution, examining the accused and
hearing the prosecution and the defence on the point, the Judge considers that
there is no evidence that the accused committed the offence, the Judge
shall record an order of acquittal

4) Order of Acquittal to expedite the conclusion of sessions trial to avoid

unnecessary harassment to the accused.
no evidence – means not enough to show the accused has committed the
offence – not the value – also must record reasons as order of acquittal is
usually subject to appeal
Evidence for Defence
• Examination of witnesses for defence
• 233. Entering upon defence.—
• (1) Where the accused is not acquitted under section 232, he shall be called
upon to enter on his defence and adduce any evidence he may have in
support thereof.
• (2) If the accused puts in any written statement, the Judge shall file it with
the record.
• (3) If the accused applies for the issue of any process for compelling the
attendance of any witness or the production of any document or thing, the
Judge shall issue such process unless he considers, for reasons to be
recorded, that such application should be refused on the ground that it is
made for the purpose of vexation or delay or for defeating the ends of
justice.
Steps to follow defence evidence
• Court witnesses if any as provided by 311
• 234. Arguments.—When the examination of the witnesses (if any)
for the defence is complete, the prosecutor shall sum up his case and
the accused or his pleader shall be entitled to reply:
• Provided that where any point of law is raised by the accused or his
pleader, the prosecution may, with the permission of the Judge, make
his submissions with regard to such point of law.
Judgement
• 235. Judgment of acquittal or conviction.—(1) After hearing
arguments and points of law (if any), the Judge shall give a judgment
in the case.
• (2) If the accused is convicted, the Judge shall, unless he proceeds in
accordance with the provisions of section 360, hear the accused
on the questions of sentence, and then pass sentence on him according
to law
 TRIAL OF WARRANT CASES BY
MAGISTRATES
Trial of warrant cases come under two heads

Cases instituted upon police Cases instituted otherwise

report than on police report
(s238-243) (s.244-247)

The difference in procedure is understandable. In cases instituted on police report, lot of record
made during the investigation by the police is made available to the court and the accused person.
Such record obviously cannot be made available in cases instituted otherwise. Therefore, it
becomes necessary to provide special procedures to enable the accused to acquaint himself with
the facts of the case on which the prosecution will rely on before he is called upon to defend
himself.
Cases instituted on Police Report - Steps :-

1) Supply of copies and documents to the accused – s 207 r/w s238

2) If after considering :-
• Police report
• Examining the accused
• Giving prosecution and accused opportunity of being heard
Magistrate considers the charge preferred against the accused is groundless –
DISCHARGE him and record reasons. – s.239

3) After considering the materials if Magistrate is of opinion that there is ground for
presuming accused has committed an offence - he shall FRAME CHARGES against the
accused. Charge read over and explained and ask whether accused pleads guilty or
not. S.- 240
4) Conviction on plea of guilty – IF accused pleads guilty – Magistrate records the
plea and MAY CONVICT him. NOT obligatory for Magistrate to convict him even
if he pleads guilty he may proceed with trial – s.241

5) Evidence for prosecution – IF he REFUSES to plead or does not plead or

claims to be tried or Magistrate does not convict him - Magistrate fixes date for
EXAMINATION OF WITNESSES. S.242 ( Here, the Magistrate takes evidence in
support of prosecution – he may permit cross-examination, recall witnesses for
cross-examination etc.)

6) Evidence for Defence – After prosecution evidence over – accused shall be

called upon to enter his defence and produce his evidence. S.243
Cases instituted otherwise than on police report –
Steps :-
1) Evidence for Prosecution – When accused appears or is brought before the
Magistrate he should proceed to hear the prosecution and take all evidence –
s.244.

2) Discharge of accused – If Magistrate upon taking all evidence considers no

case against accused has been made out he shall discharge the accused. He is
empowered to discharge the accused at even a previous stage if he considers
charge to be groundless. S.245
Normally, a person cannot be discharged unless the prosecution evidence is not
taken but 245(2) is an exception to the rule. If the accused after his appearance in
court convinces the court that allegations in the complaint, even if proved, would
not amount to an offence, the Magistrate can discharge him.
3) FRAMING OF CHARGE - If Magistrate is of the opinion that prima facie case
made out against the accused – he frames charges - charge read and explained –
asked whether he pleads guilty or any defence to make – if he pleads guilty –
Magistrate MAY convict him – alternatively if he doesn’t plead guilty - he is given
an opportunity to cross-examine prosecution witnesses.(s. 246)
4) Evidence for defence - Accused called upon to enter his defence – s.243
provision follows. (s.247)

CONCLUSION OF TRIAL
Acquittal/Conviction – In every case where charge is framed, if Magistrate finds
accused not guilty –records order of acquittal. If he accused is guilty – hear him on
sentencing and pass sentence. S.248
Absence of Complainant – When complainant is absent on day fixed for hearing
the Magistrate may discharge the accused if proceedings instituted upon complaint.
Compensation for accusation without reasonable cause – s.250
TRIAL OF SUMMONS CASES BY
MAGISTRATES
1) Substance of accusation to be stated – not necessary to frame formal charge –
s.251
2) Conviction on plea of guilty - If accused pleads guilty – Magistrate may convict
him – s252
3) Conviction on plea of guilty in absence of accused in petty cases – If summons
issued under 206 and accused desires to plead guilty without appearing -
allowed – speedy disposal of cases – s.253
4) Procedure when not convicted – Proceeds to hear the prosecution and accused
and take evidence. Magistrate may issue process to compel attendance of
witnesses – s.254
5) Acquittal or conviction – s. 255
SUMMARY TRIALS
• Summary trial is the name given to trials where cases are disposed of
speedily and the procedure are simplified and the recording of such
trials are done summarily.
• The main purpose of summary trials is to expeditiously dispose of
cases as the caseload on the judiciary is immense and continues to
grow. Summary trials also seek to uphold the legal maxim, “Justice
delayed is justice denied.” Summary trials allow for the people to
procure justice even for small offences that may otherwise have taken
years to complete legal proceedings.
• Legal provisions for Summary trials are provided for under Sections
260-265 of the Code of Criminal Procedure.
• Sections 260 and 261 provide the type of cases that can be heard by first class and second class Magistrates
respectively.

• In case of any Chief J Magistrate or Metropolitan Magistrate or any first class Magistrate the following
cases may be tried:
1. Offences which cannot be punished with the death penalty, life imprisonment or imprisonment exceeding 2 years.
2. Theft provided in sections 379, 380 and 381 of the IPC as long as the value of item stolen does not exceed 2000
rupees.
3. Receiving or retaining any stolen property under 2000 rupees given in Section 411 of the Indian Penal Code.
4. Assisting in the concealment of any stolen property under 2000 rupees given in Section 414 of IPC.
5. Lurking, trespass breaking in of houses under Section 454 of IPC.
6. Criminal intimidation and insult with intent to provoke under Sections 506 and 504 respectively.
7. Abetment of any of the above offences will also be tried in a summary trial.

• In case of Magistrates of Second class the following offence can be tried if the High Court empowers
him to do so;
1. Offences which can be punished with imprisonment of less than 6 months with or without a fine.
2. Any offences that can be punished with a fine.
3. Abetment or attempt to commit the above offences.
• Section 262 of Code of Criminal Procedure provides that a
summary trial will follow the same procedure as a summons trial
which is much less formal. The procedure for a summary trial can
thus be given as;
Nar Singh v. State of Haryana
(2015) 1 SCC 496
• On 6/3/2005, Rajbir went to sleep on the street on a cot at about 7.30 p.m. and Daya Nand (P.W. 7) also went to
sleep in his house at about 9.00 p.m. At 11.00 P.M., Daya Nand heard the sound of vomiting of his brother and he
came out and found his brother Rajbir crying in pain. Daya Nand called his father Chander Bhan and both of them
noticed injuries on the forehead of Rajbir with profuse bleeding. He also went to call the doctor but the doctor
refused to accompany him. When Daya Nand returned Rajbir had already succumbed to injuries.
• Law was set in motion by Daya Nand and FIR was registered under Section 302, IPC. PW-14 had taken up the
investigation and inquest was conducted on the body of the deceased Rajbir. Dr. J.K. Bhalla (PW-10) conducted
autopsy on the body of deceased Rajbir and a country-made bullet was seized from the occipital area of the brain of
deceased Rajbir. Dr. Bhalla opined that the death was due to injury to the brain and he issued Ex P-13-post mortem
certificate
• Site plan of the scene of occurrence was prepared and material objects were seized. The appellant-accused was
arrested on 14/3/2005 and based on his confession statement, a pistol was recovered behind a water tank in the
house of the appellant-accused.
• On completion of the investigation, charge sheet was filed against the appellant under Section 302 IPC, and Section
25(1B) of the Arms Act.
• Upon consideration of the evidence, trial court convicted the appellant
under Section 302 IPC and Section 25(1B) of the Arms Act and
sentenced him to undergo imprisonment as aforesaid.

• On appeal, the High Court affirmed the conviction for both the
offences and imposed sentence of imprisonment on the appellant.

• Being aggrieved, the appellant has preferred this appeal by special

leave.
• Being based on circumstantial evidence, prosecution relied on the following circumstances to establish
the guilt of the accused:-

• (i) Motive – evidence of PW-8, mother of the deceased, who had spoken about an incident that had
happened 18 years ago when Rajbir- the deceased and Hoshiar Singh– father of the accused were
bringing 'boorada' from village Satnali in a mechanised cart and that the said cart overturned on the way
and Hoshiar Singh died in the accident due to which the appellant and his family had a grudge against
Rajbir, as they felt that Rajbir had killed his father. She further stated that about four years back, the
accused threatened Rajbir that he would avenge the murder of his father;

• (ii) Evidence of PW-11 Ranbir Singh, who deposed that on 06.03.2005 when he came out of his house at
about 11.00 p.m., he saw the appellant Nar Singh running in the street. PW-11 also claims to have heard
the sound of fire-arm shot;

• (iii) Disclosure statement of the appellant which led to the recovery of country-made pistol (chambered
for .315” and .303” caliber firearms) from behind the water tank of appellant's house;

• (iv) Exhibit P-13 and evidence of PW-10, Dr. J.K. Bhalla, who conducted post mortem on the body of
the deceased Rajbir and recovery of a bullet from occipital area of the brain of deceased Rajbir; and

• (v) Opinion of the Ballistic Expert (Ext. P-12) that the country-made bullet had been fired from the
country-made pistol recovered in pursuance of the disclosure statement of the accused and not from any
other firearm.
• Trial court as well as the High Court held that the above circumstances are
proved by the prosecution and that they form a complete chain
establishing guilt of the accused resulting in conviction of the appellant.

• While doing so, trial court relied upon the Forensic Science Laboratory
Report (FSL) (Ex P-12) as a vital piece of evidence against the
appellant.

• The High Court also relied upon FSL report as a material evidence to
sustain the conviction of the appellant.
 Appellant’s Contention
• The only incriminating circumstantial evidence against the appellant was Ex P-12
FSL report and the same was not put to the appellant while he was being
questioned under Section 313.

• It was submitted that Section 313 Cr.P.C. makes it mandatory to put all the
incriminating evidence and circumstances to the accused and Ex P-12 FSL
report, which is the basis for conviction of the appellant, has not been put to the
accused and non-questioning of the accused as to the vital piece of evidence is
fatal to the prosecution case and vitiates the conviction
 State Contention
• Learned counsel contended that non-questioning of accused as to Ex P 12 FSL
report and expert opinion during questioning under Section 313 Cr.P.C. by
itself will not vitiate the trial and the accused has to establish the prejudice
caused to him.

• It was submitted that omission to put the FSL report and expert opinion to the
appellant under Section 313 Cr.P.C. and that prejudice being caused to the
appellant was neither raised in the trial court nor before the High Court and
it is not open to the appellant to raise such a plea in this Court for the first
time
• Whether non- compliance of the mandatory provisions of Section 313 Cr.P.C.
vitiates the trial and conviction of the appellant??

There are two kinds of examination under Section 313 Cr.P.C :-

• at any stage of the inquiry or trial;
• while the second takes place after the prosecution witnesses are examined and
before the accused is called upon to enter upon his defence.

The former is particular and optional; but the latter is general and mandatory.
In Usha K. Pillai v. Raj K. Srinivas & Ors., (1993) 3 SCC 208, this Court held that
the Court is empowered by Section 313 (1) clause (a) to question the accused at any
stage of the inquiry or trial; while Section 313(1) clause (b) obligates the Court
to question the accused before he enters his defense on any circumstance
appearing in prosecution evidence against him.
• The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation
to the accused to enable the accused to explain each and every circumstance
appearing in the evidence against him.
• The provisions of this section are mandatory and cast a duty on the court to
afford an opportunity to the accused to explain each and every circumstance and
incriminating evidence against him.
• The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere
formality. Section 313 Cr.P.C. prescribes a procedural safeguard for an accused,
giving him an opportunity to explain the facts and circumstances appearing
against him in the evidence and this opportunity is valuable from the standpoint of
the accused.
• The real importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the
Court to question the accused properly and fairly so as to bring home to him
the exact case he will have to meet and thereby, an opportunity is given to
him to explain any such point
• The word “may” in clause (a) of sub-section (1) in Section 313 of the Code
indicates, without any doubt, that even if the court does not put any question under
that clause the accused cannot raise any grievance for it. But if the court fails to
put the needed question under clause (b) of the sub-section it would result in
a handicap to the accused and he can legitimately claim that no evidence,
without affording him the opportunity to explain, can be used against him. It
is now well settled that a circumstance about which the accused was not asked to
explain cannot be used against him.”
• Main contention of the appellant is that since the material evidence Ex-P12 and
Ballistic Expert opinion was not put to him in his statement under Section
313 Cr.P.C., it must be completely excluded from consideration and barring
the same, there is no other evidence to sustain the conviction
• Undoubtedly, the importance of a statement under Section 313 Cr.P.C.,
insofar as the accused is concerned, can hardly be minimised.

• If an objection as to Section 313 Cr.P.C. statement is taken at the earliest

stage, the Court can make good the defect and record additional
statement of the accused as that would be in the interest of all.

• When objections as to defective Section 313 Cr.P.C. statement is raised in

the appellate court, then difficulty arises for the prosecution as well as the
accused. When the trial court is required to act in accordance with
the mandatory provisions of Section 313 Cr.P.C., failure on the part
of the trial court to comply with the mandate of the law, in our view,
cannot automatically inure to the benefit of the accused.
• Any omission on the part of the Court to question the accused on any
incriminating circumstance would not ipso facto vitiate the trial,
unless some material prejudice is shown to have been caused to the
accused. Insofar as non-compliance of mandatory provisions
of Section 313 Cr.P.C.

• So far as Section 313 Cr.P.C. is concerned, undoubtedly, the attention of

the accused must specifically be brought to inculpable pieces of
evidence to give him an opportunity to offer an explanation, if he
chooses to do so.
Whether Trial vitiated?
• The question whether a trial is vitiated or not depends upon the degree of the error and
the accused must show that non-compliance of Section 313 Cr.P.C. has materially
prejudiced him or is likely to cause prejudice to him.

• Merely because of defective questioning under Section 313 Cr.P.C., it cannot be

inferred that any prejudice had been caused to the accused, even assuming that some
incriminating circumstances in the prosecution case had been left out

• When prejudice to the accused is alleged, it has to be shown that accused has suffered
some disability or detriment in relation to the safeguard given to him under Section
313 Cr.P.C.

• Such prejudice should also demonstrate that it has occasioned failure of justice to the
accused. The burden is upon the accused to prove that prejudice has been caused to
him or in the facts and circumstances of the case, such prejudice may be implicit
and the Court may draw an inference of such prejudice
 Recourse
• If all the relevant questions were not put to accused by the trial court and when the
accused has shown that prejudice was caused to him, the appellate court is
having power to remand the case to examine the accused again under Section
313 Cr.P.C. and

• may direct remanding the case again for re-trial of the case from that stage
of recording of statement under Section 313 Cr.P.C. and the same cannot be
said to be amounting to filling up lacuna in the prosecution case.
• i) Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the
appellate court to examine and further examine the convict or the counsel appearing for the accused and
the said answers shall be taken into consideration for deciding the matter.

• If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the
court may assume that the accused has no acceptable explanation to offer;
• ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no
prejudice was caused or no failure of justice was occasioned, the appellate court will hear and
decide the matter upon merits.

• (iii) If the appellate court is of the opinion that non-compliance with the provisions of Section
313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate
court may direct retrial from the stage of recording the statements of the accused from the point where
the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and
the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of
the matter afresh;

• (iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long
time already spent in the trial of the case and the period of sentence already undergone by the convict
and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view
the prejudice caused to the accused.
• While we are of the view that the matter has to be remitted to the trial court for proceeding
afresh from the stage of Section 313 Cr.P.C. questioning, we are of the view when there is
omission to put material evidence to the accused in the course of examination
under Section 313 Cr.P.C., prosecution is not guilty of not adducing or suppressing such
evidence; it is only the failure on the part of the learned trial court
• Coming to the facts of this case, FSL Report (Ex-P12) was relied upon both by the trial court as
well as by the High Court. The objection as to the defective 313 Cr.P.C. statement has not
been raised in the trial court or in the High Court and the omission to put the question
under Section 313 Cr.P.C., and prejudice caused to the accused is raised before this Court
for the first time.
• In our view, accused is not entitled for acquittal on the ground of non-compliance of
mandatory provisions of Section 313 Cr.P.C.
• We agree to some extent that the appellant is prejudiced on account of omission to put the
question as to the opinion of Ballistic Expert (Ex- P12) which was relied upon by the trial
court as well as by the High Court.
• Trial court should have been more careful in framing the questions and in ensuring that all
material evidence and incriminating circumstances were put to the accused.
• However, omission on the part of the Court to put questions under Section 313 Cr.P.C.
cannot enure to the benefit of the accused.
• The conviction of the appellant under Section 302 IPC and Section 25
(IB) of the Arms Act by the trial court in Sessions Case No. 40/2005
and the sentence imposed on him as affirmed by the High Court is set
aside.

• The matter is remitted back to the trial court for proceeding with the
matter afresh from the stage of recording statement of the accused
under Section 313 Cr.P.C. The trial court shall examine the accused
afresh under Section 313 Cr.P.C. in the light of the above observations
and in accordance with law.
Summoning of additional accused
• 319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the
evidence that any person not being the accused has committed any offence for which
such person could be tried together with the accused, the Court may proceed against such
person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the
circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be
detained by such Court for the purpose of the inquiry into, or trial of, the offence which he
appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, 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.
Hardeep Singh v State of Punjab
• This reference before us arises out of a variety of views having been expressed by
this Court and several High Courts of the country on the scope and extent of the
powers of the courts under the criminal justice system to arraign any person
as an accused during the course of inquiry or trial as contemplated
under Section 319.
Issues
(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? – INQUIRY and Trial

(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-
examination or the court can exercise the power under the said provision even on the basis of the statement made
in the examination-in-chief of the witness concerned? Yes, without cross examination possible if sufficient
evidence on record.

(i) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes
the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during
trial? ‘evidence’ is thus, limited to the evidence recorded during trial.

(i) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an
accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the
accused summoned will in all likelihood convicted? Degree of satisfaction diff – but presumed same
cognizance

(ii) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not
charged or who have been discharged? – YES can be summoned
• 12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens
absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be
used as a beacon light while explaining the ambit and the spirit underlying the enactment
of Section 319 Cr.P.C.
• It is the duty of the Court to do justice by punishing the real culprit. Where the
investigating agency for any reason does not array one of the real culprits as an accused,
the court is not powerless in calling the said accused to face trial. The question
remains under what circumstances and at what stage should the court exercise its
power as contemplated in Section 319 Cr.P.C.?
• 13. It would be necessary to put on record that the power conferred under Section
319 Cr.P.C. is only on the court. This has to be understood in the context that Section
319 Cr.P.C. empowers only the court to proceed against such person.
• It is at this stage the comparison of the words used under Section 319 Cr.P.C. has to be
understood distinctively from the word used under Section 2(g) defining an inquiry other
than the trial by a magistrate or a court. Here the legislature has used two words, namely
the magistrate or court, whereas under Section 319 Cr.P.C., as indicated above, only
the word “court” has been recited. This has been done by the legislature to
emphasize that the power under Section 319 Cr.P.C. is exercisable only by the court
and not by any officer not acting as a court.
• Thus, the magistrate not functioning or exercising powers as a court can make an
inquiry in particular proceeding other than a trial but the material so collected
would not be by a court during the course of an inquiry or a trial. The
conclusion therefore, in short, is that in order to invoke the power under Section
319 Cr.P.C., it is only a Court of Sessions or a Court of Magistrate
performing the duties as a court under the Cr.P.C. that can utilise the
material before it for the purpose of the said Section.
• Section 319 Cr.PC. allows the court to proceed against any person who is not an
accused in a case before it. Thus, the person against whom summons are issued in
exercise of such powers…
• He can either be a person named in Column 2 of the chargesheet filed
under Section 173 Cr.P.C. or a person whose name has been disclosed in any
material before the court that is to be considered for the purpose of trying the
offence, but not investigated. He has to be a person whose complicity may be
indicated and connected with the commission of the offence necessarily not be an
accused already facing trial.
• Coming to the stage at which power under Section 319 Cr.P.C. can be exercised, in
Dharam Pal (Supra), this Court had noticed the conflict in the decisions of Kishun Singh
& Ors v. State of Bihar, (1993) 2 SCC 16 and Ranjit Singh v. State of Punjab, AIR 1998
SC 3148, and referred the matter to the Constitution Bench. However, while referring the
matter to a Constitution Bench, this Court affirmed the judgment in Kishun Singh
(Supra) and doubted the correctness of the judgment in Ranjit Singh (Supra).
• In Ranjit Singh (Supra), this Court observed that from the stage of committal till the
Sessions Court reaches the stage indicated in Section 230 Cr.P.C., (date for prosecution
evidence)that court can deal with only the accused referred to in Section 209 Cr.P.C.
and there is no intermediary stage till then for the Sessions Court to add any other
person to the array of the accused, while in Kishun Singh (Supra), this Court came to
the conclusion that even the Sessions Court has power under Section 193 Cr.P.C. to
take cognizance of the offence and summon other persons whose complicity in the
commission of the trial can prima facie be gathered from the materials available on
record and need not wait till the stage of Section 319 Cr.P.C. is reached.
• This Court in Dharam Pal (Supra) held that the effect of Ranjit Singh (Supra) would be
that in less serious offences triable by a Magistrate, the said Court would have the
power to proceed against those who are mentioned in Column 2 of the charge-sheet, if
on the basis of material on record, the Magistrate disagrees with the conclusion reached
by the police, but, as far as serious offences triable by the Court of Sessions are
concerned, that court will have to wait till the stage of Section 319 Cr.P.C. is
reached.
• 19. At the very outset, we may explain that the issue that was being considered by this
Court in Dharam Pal (CB), was the exercise of such power at the stage of committal
of a case and the court held that even if Section 319 Cr.P.C. could not be invoked at
that stage, Section 193 Cr.P.C. could be invoked for the said purpose. We are not
delving into the said issue which had been answered by the five-Judge Bench of
this Court.
• However, we may clarify that the opening words of Section 193 Cr.P.C. categorically
recite that the power of the Court of Sessions to take cognizance would commence only
after committal of the case by a magistrate. The said provision opens with a non-
obstante clause “except as otherwise expressly provided by this code or by any other
law for the time being in force”. The Section therefore is clarified by the said opening
words which clearly means that if there is any other provision under Cr.P.C., expressly
making a provision for exercise of powers by the court to take cognizance, then the
same would apply and the provisions of Section 193 Cr.P.C. would not be applicable.
• 20. In our opinion, Section 319 Cr.P.C. is an enabling provision empowering the court to
take appropriate steps for proceeding against any person not being an accused for also
having committed the offence under trial. It is this part which is under reference
before this Court and therefore in our opinion, while answering the question
referred to herein, we do not find any conflict so as to delve upon the situation that
was dealt by this Court in Dharam Pal (CB).
• 1. In Elachuri Venkatachinnayya & Ors. v. King-Emperor (1920) ILR 43 Mad 511,
this Court held that an inquiry is a stage before the committal to a higher court. In
fact, from a careful reading of the judgments under reference i.e. Ranjit Singh
(Supra) and Kishun Singh (Supra), it emerges that there is no dispute even in these
two cases that the stage of committal is neither an inquiry nor a trial, for in
both the cases, the real dispute was whether Section 193 Cr.P.C. can be
invoked at the time of committal to summon an accused to face trial who is
not already an accused. It can safely be said that both the cases are in
harmony as to the said stage neither being a stage of inquiry nor a trial.
• 22. Once the aforesaid stand is clarified in relation to the stage of committal
before the Court of Sessions, the answer to the question posed now, stands focused
only on the stage at which such powers can be exercised by the court other than
the stage of committal and the material on the basis whereof such powers can be
invoked by the court.
Question No.(i) What is the stage at which power under Section 319 Cr.P.C. can be
exercised?

• The stage of inquiry and trial upon cognizance being taken of an offence, has been considered
by a large number of decisions of this Court and that it may be useful to extract the same
hereunder for proper appreciation of the stage of invoking of the powers under Section
319 Cr.P.C. to understand the meaning that can be attributed to the word ‘inquiry’ and ‘trial’ as
used under the Section.

24. In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, this Court held :
“…once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not
the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders
really are and once he comes to the conclusion that apart from the persons sent up by the police
some other persons are involved, it is his duty to proceed against those persons. The summoning
of the additional accused is part of the proceeding initiated by his taking cognizance of an
offence.”
• The stage of inquiry commences, insofar as the court is concerned, with the filing
of the charge-sheet and the consideration of the material collected by the
prosecution, that is mentioned in the charge-sheet for the purpose of trying
the accused. This has to be understood in terms of Section 2(g) Cr.P.C., which
defines an inquiry as follows:“2(g) “inquiry” means every inquiry, other than a
trial, conducted under this Code by a Magistrate or Court.”
• In State of U.P. v. Lakshmi Brahman & Anr., AIR 1983 SC 439, this Court held
that from the stage of filing of charge-sheet to ensuring the compliance of
provision of Section 207 Cr.P.C., the court is only at the stage of inquiry and no
trial can be said to have commenced. The above view has been held to be per
incurium in Raj Kishore Prasad v. State of Bihar & Anr., AIR 1996 SC 1931,
wherein this Court while observing that Section 319 (1) Cr.P.C. operates in an
ongoing inquiry into, or trial of, an offence, held that at the stage of Section
209 Cr.P.C., the court is neither at the stage of inquiry nor at the stage of
trial. Even at the stage of ensuring compliance of Sections
207 and 208 Cr.P.C., it cannot be said that the court is at the stage of inquiry
because there is no judicial application of mind and all that the Magistrate is
required to do is to make the case ready to be heard by the Court of Sessions.
• Trial is distinct from an inquiry and must necessarily succeed it. The purpose of
the trial is to fasten the responsibility upon a person on the basis of facts presented
and evidence led in this behalf. The word ‘trial’ is not defined in the Code, it is
clearly distinguishable from inquiry. Inquiry must always be a forerunner to the
trial.
• 28. In Ratilal Bhanji Mithani v. State of Maharashtra & Ors., AIR 1979 SC 94,
this Court held :
“Once a charge is framed, the Magistrate has no power under Section 227 or any other
provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section
253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior
to it the proceedings are only an inquiry. After the framing of charge if the accused pleads not
guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections
254 to 258 to a logical end.” (Emphasis added)
• The word ‘inquiry’ is, therefore, not any inquiry relating to the investigation of the case
by the investigating agency 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.
• 37. Even the word “course” occurring in Section 319 Cr.P.C., 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 upto the stage of the conclusion of the trial.
• 43. 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) Cr.P.C. can be exercised at any time after the charge-sheet is
filed and before the pronouncement of judgment, except during the stage of Section
207/208 Cr.P.C., committal etc., which is only a pre-trial stage, intended to put the
process into motion. This stage cannot be said to be a judicial step in the true sense for it
only requires an application of mind rather than a judicial application of mind.
• At this pre-trial stage, the Magistrate is required to perform acts in the nature of
administrative work rather than judicial such as ensuring compliance of Sections
207 and 208 Cr.P.C., and committing the matter if it is exclusively triable by
Sessions Court. Therefore, it would be legitimate for us to conclude that the
Magistrate at the stage of Sections 207 to 209 Cr.P.C. is forbidden, by express
provision of Section 319 Cr.P.C., to apply his mind to the merits of the case and
determine as to whether any accused needs to be added or subtracted to face trial
before the Court of Sessions.
• 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 Cr.P.C. cannot be exercised.
• In our opinion, the stage of inquiry does not contemplate any evidence in its
strict legal sense, nor the legislature could 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 Cr.P.C.
• There is yet another set of provisions which form part of inquiry relevant for
the purposes of Section 319 Cr.P.C. i.e. provisions of Sections 200, 201, 202,
etc. Cr.P.C. applicable in the case of Complaint Cases.
• As has been discussed herein, evidence means evidence adduced before the
court. Complaint Cases is a distinct category of criminal trial where some
sort of evidence in the strict legal sense of Section 3 of the Evidence Act
1872, (hereinafter referred to as the ‘Evidence Act’) comes before the court.
• There does not seem to be any restriction in the provisions of Section
319 Cr.P.C. so as to preclude such evidence as coming before the court
in Complaint Cases even before charges have been framed or the
process has been issued.
• But at that stage as there is no accused before the Court, such evidence can
be used only to corroborate the evidence recorded during the trial for the
purpose of Section 319 Cr.P.C., if so required.
• 52. What is essential for the purpose of the section is that there should appear
some evidence against a person not proceeded against and the stage of the
proceedings is irrelevant. Where the complainant is circumspect in proceeding
against several persons, but the court is of the opinion that there appears to be
some evidence pointing to the complicity of some other persons as well, Section
319 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to
initiate proceedings against such other persons. The purpose of Section
319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have
been tried as well are also tried. Therefore, there does not appear to be any
difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a
complaint case when the evidence of the complainant as well as his witnesses is
being recorded.
• 53. Thus, the application of the provisions of Section 319 Cr.P.C., at the stage of
inquiry is to be understood in its correct perspective. The power under Section
319 Cr.P.C. can be exercised only on the basis of the evidence adduced before
the court during a trial. So far as its application during the course of inquiry
is concerned, it remains limited as referred to hereinabove, adding a person
as an accused, whose name has been mentioned in Column 2 of the charge
sheet or any other person who might be an accomplice.
Question No.(iii) : Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a
comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited
to the evidence recorded during trial?

• To answer the questions and to resolve the impediment that is being faced by the
trial courts in exercising of powers under Section 319 Cr.P.C., the issue has to be
investigated by examining the circumstances which give rise to a situation for the
court to invoke such powers. The circumstances that lead to such inference
being drawn up by the court for summoning a person arise out of the
availability of the facts and material that comes up before the court and are
made the basis for summoning such a person as an accomplice to the offence
alleged to have been committed.
• The material should disclose the complicity of the person in the commission of the
offence which has to be the material that appears from the evidence during the
course of any inquiry into or trial of offence. The words as used in Section
319 Cr.P.C. indicate that the material has to be “where ….it appears from the
evidence” before the court.
Before we answer this issue, let us examine the meaning of the word ‘evidence’.
According to Section 3 of the Evidence Act, ‘evidence’ means and includes:
(1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are called
oral evidence; (2) all documents including electronic records produced for the
inspection of the Court, such statements are called documentary evidence;

The provision and the above-mentioned definitions clearly suggest that it is an

exhaustive definition. Wherever the words “means and include” are used, it is an
indication of the fact that the definition ‘is a hard and fast definition’, and no other
meaning can be assigned to the expression that is put down in the definition. It
indicates an exhaustive explanation of the meaning which, for the purposes of the
Act, must invariably be attached to these words or expression.
• The word “evidence” in Section 319 Cr.P.C. means only such evidence as is made before the
court, in relation to statements, and as produced before the court, in relation to documents. It is
only such evidence that can be taken into account by the Magistrate or the Court to decide
whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material
collected during investigation.
• 72. The inquiry by the court is neither attributable to the investigation nor the
prosecution, but by the court itself for collecting information to draw back a curtain that
hides something material. It is the duty of the court to do so and therefore the power to
perform this duty is provided under the Cr.P.C.
• 73. The unveiling of facts other than the material collected during investigation before the
magistrate or court before trial actually commences is part of the process of inquiry. Such
facts when recorded during trial are evidence. It is evidence only on the basis whereof trial can
be held, but can the same definition be extended for any other material collected during inquiry
by the magistrate or court for the purpose of Section 319 Cr.P.C.?
• 74. An inquiry can be conducted by the magistrate or court at any stage during the proceedings
before the court. This power is preserved with the court and has to be read and understood
accordingly. The outcome of any such exercise should not be an impediment in the speedy trial
of the case.
• 75. Though the facts so received by the magistrate or the court may not be evidence, yet it
is some material that makes things clear and unfolds concealed or deliberately suppressed
material that may facilitate the trial. In the context of Section 319 Cr.P.C. it is an
information of complicity. Such material therefore, can be used even though not an
evidence in stricto sensuo, but an information on record collected by the court during
inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved.
• This pre-trial stage is a stage where no adjudication on the evidence of the offences
involved takes place and therefore, after the material along with the charge-sheet
has been brought before the court, the same can be inquired into in order to
effectively proceed with framing of charges. After the charges are framed, the
prosecution is asked to lead evidence and till that is done, there is no evidence available
in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence
by bringing the accused before the court has still not begun. What is available is the
material that has been submitted before the court along with the charge-sheet. In such
situation, the court only has the preparatory material that has been placed before the
court for its consideration in order to proceed with the trial by framing of charges.
• 77. It is, therefore, not any material that can be utilised, rather it is that material after
cognizance is taken by a court, that is available to it while making an inquiry into
or trying an offence, that the court can utilize or take into consideration for
supporting reasons to summon any person on the basis of evidence adduced before
the Court, who may be on the basis of such material, treated to be an accomplice in
the commission of the offence. The inference that can be drawn is that material which is
not exactly evidence recorded before the court, but is a material collected by the court,
can be utilised to corroborate evidence already recorded for the purpose of summoning
any other person, other than the accused.
• 78. This would harmonise such material with the word ‘evidence’ as material
that would be supportive in nature to facilitate the exposition of any other
accomplice whose complicity in the offence may have either been suppressed or
escaped the notice of the court.
• 79. The word “evidence” therefore has to be understood in its wider sense
both at the stage of trial and, as discussed earlier, even at the stage of inquiry,
as used under Section 319 Cr.P.C. The court, therefore, should be understood to
have the power to proceed against any person after summoning him on the basis of
any such material as brought forth before it. The duty and obligation of the court
becomes more onerous to invoke such powers cautiously on such material after
evidence has been led during trial.
• 80. In view of the discussion made and the conclusion drawn hereinabove, the
answer to the aforesaid question posed is that apart from evidence recorded
during trial, any material that has been received by the court after
cognizance is taken and before the trial commences, can be utilised only for
corroboration and to support the evidence recorded by the court to invoke
the power under Section 319 Cr.P.C. The ‘evidence’ is thus, limited to the
evidence recorded during trial.
Q.(ii) Does the word ‘evidence’ in Section 319 Cr.P.C. means as arising
in Examination-in-Chief or also together with Cross- Examination?
• 81. The second question referred to herein is in relation to the word `evidence` as used
under Section 319 Cr.P.C., which leaves no room for doubt that the evidence as understood
under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during
trial and the documentary evidence in accordance with the Evidence Act, which also includes
the document and material evidence in the Evidence Act.
• Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence
which includes the statement during examination-in-chief. In Rakesh (Supra), it was held that
“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 the
court’s power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no
cross-examination, it would be a prima facie material which would enable the Sessions Court to
decide whether powers under Section 319 should be exercised or not.” In Ranjit Singh (Supra),
this Court held that “it is not necessary for the court to wait until the entire evidence is
collected,” for exercising the said power. In Mohd. Shafi (Supra), it was held that the pre-
requisite for exercise of power under Section 319 Cr.P.C. was the satisfaction of the court to
proceed against a person who is not an accused but against whom evidence occurs, for which
the court can even wait till the cross examination is over and that there would be no illegality in
doing so. A similar view has been taken by a two-Judge Bench in the case of Harbhajan Singh &
Anr. v. State of Punjab & Anr. (2009) 13 SCC
• This Court in Hardeep Singh (Supra) seems to have misread the judgment in
Mohd. Shafi (Supra), as it construed that the said judgment laid down that for the
exercise of power under Section 319 Cr.P.C., the court has to necessarily wait till
the witness is cross examined and on complete appreciation of evidence, come to
the conclusion whether there is a need to proceed under Section 319 Cr.P.C.
• 82. We have given our thoughtful consideration to the diverse views expressed in
the aforementioned cases. Once examination-in-chief is conducted, the
statement becomes part of the record. It is evidence as per law and in the true
sense, for at best, it may be rebuttable. An evidence being rebutted or
controverted becomes a matter of consideration, relevance and belief, which
is the stage of judgment by the court. Yet it is evidence and it is material on
the basis whereof the court can come to a prima facie opinion as to complicity
of some other person who may be connected with the offence.
• As held in Mohd. Shafi (Supra) and Harbhajan Singh (Supra), all that is required for the
exercise of the power under Section 319 Cr.P.C. is that, it must appear to the court
that some other person also who is not facing the trial, may also have been involved
in the offence. The pre-requisite for the exercise of this power is similar to the
prima facie view which the magistrate must come to in order to take cognizance of
the offence. Therefore, no straight-jacket formula can and should be laid with
respect to conditions precedent for arriving at such an opinion and, if the
Magistrate/Court is convinced even on the basis of evidence appearing in
Examination-in-Chief, it can exercise the power under Section 319 Cr.P.C. and can
proceed against such other person(s).
• It is essential to note that the Section also uses the words ‘such person could be tried’
instead of should be tried. Hence, what is required is not to have a mini-trial at this stage
by having examination and cross-examination and thereafter rendering a decision on the
overt act of such person sought to be added. In fact, it is this mini-trial that would affect
the right of the person sought to be arraigned as an accused rather than not having any
cross-examination at all, for in light of sub-section 4 of Section 319 Cr.P.C., the person
would be entitled to a fresh trial where he would have all the rights including the right to
cross examine prosecution witnesses and examine defence witnesses and advance his
arguments upon the same. Therefore, even on the basis of Examination- in-Chief, the
Court or the Magistrate can proceed against a person as long as the court is
satisfied that the evidence appearing against such person is such that it prima facie
necessitates bringing such person to face trial. In fact, Examination-in-Chief
untested by Cross Examination, undoubtedly in itself, is an evidence.
• 84. Further, in our opinion, there does not seem to be any logic behind waiting till
the cross-examination of the witness is over. It is to be kept in mind that at the
time of exercise of power under Section 319 Cr.P.C., the person sought to be
arraigned as an accused, is in no way participating in the trial. Even if the cross-
examination is to be taken into consideration, the person sought to be arraigned as
an accused cannot cross examine the witness(s) prior to passing of an order
under Section 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C.
Secondly, invariably the State would not oppose or object to naming of more
persons as an accused as it would only help the prosecution in completing the
chain of evidence, unless the witness(s) is obliterating the role of persons already
facing trial. More so, Section 299 Cr.P.C. enables the court to record evidence in
absence of the accused in the circumstances mentioned therein.
• 85. Thus, in view of the above, we hold that power under Section 319 Cr.P.C.
can be exercised at the stage of completion of examination in chief and court
does not need to wait till the said evidence is tested on cross-examination for it
is the satisfaction of the court which can be gathered from the reasons recorded by
the court, in respect of complicity of some other person(s), not facing the trial in
the offence.
Q. (iv) What is the degree of satisfaction required for invoking the power
under Section 319 Cr.P.C.?
• Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.
• 99. 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 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if
‘it appears from the evidence that any person not being the accused has committed any offence’
is clear from the words “for which such person could be tried together with the accused.” The
words used are not ‘for which such person could be convicted’. There is, therefore, no scope for
the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.
Q.(v) In what situations can the power under this section be exercised: Not named in
FIR; Named in the FIR but not charge-sheeted or has been discharged?
• 109. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not
subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against
whom cognizance had not been taken, or a person who has been discharged. However, concerning
a person who has been discharged, no proceedings can be commenced against him directly
under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section
398 Cr.P.C.
• Power under Section 398 Cr.P.C. is in the nature of revisional power which can be exercised only by the
High Court or the Sessions Judge, as the case may be. According to Section 300 (5) Cr.P.C., a person
discharged under Section 258 Cr.P.C. shall not be tried again for the same offence except with the
consent of the Court by which he was discharged or of any other Court to which the first-mentioned
Court is subordinate. Further, Section 398 Cr.P.C. provides that the High Court or the Sessions Judge
may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to
make an inquiry into the case against any person who has already been discharged.
• 108. Both these provisions contemplate an inquiry to be conducted before any person, who has already
been discharged, is asked to again face trial if some evidence appears against him. As held
earlier, Section 319 Cr.P.C. can also be invoked at the stage of inquiry. We do not see any reason why
inquiry as contemplated by Section 300(5) Cr.P.C. and Section 398 Cr.P.C. cannot be an inquiry
under Section 319 Cr.P.C. Accordingly, a person discharged can also be arraigned again as an accused
but only after an inquiry as contemplated by Sections 300(5) and 398 Cr.P.C. If during or after such
inquiry, there appears to be an evidence against such person, power under Section 319 Cr.P.C. can be
exercised.