Jamin vs. State Of Uttar Pradesh

REPORTABLE
2025 INSC 330
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1184 OF 2025
(ARISING OUT OF SLP (Crl.) NO. 6320 OF 2024)


JAMIN & ANR. ... APPELLANTS

VERSUS

STATE OF UTTAR PRADESH & ANR. ... RESPONDENTS




J U D G M E N T

Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.03.06
16:56:09 IST
Reason:

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
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


SLP (Crl.) No. 6320 of 2024 Page 1 of 97

(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








SLP (Crl.) No. 6320 of 2024 Page 2 of 97

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.
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


SLP (Crl.) No. 6320 of 2024 Page 3 of 97

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


SLP (Crl.) No. 6320 of 2024 Page 4 of 97

be summoned, therefore 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


SLP (Crl.) No. 6320 of 2024 Page 5 of 97

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 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.


SLP (Crl.) No. 6320 of 2024 Page 6 of 97

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
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


SLP (Crl.) No. 6320 of 2024 Page 7 of 97

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
hereinbelow:
“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
trial court is ordered to again consider the application


SLP (Crl.) No. 6320 of 2024 Page 8 of 97

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


SLP (Crl.) No. 6320 of 2024 Page 9 of 97

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:
“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


SLP (Crl.) No. 6320 of 2024 Page 10 of 97

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?
(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?


SLP (Crl.) No. 6320 of 2024 Page 11 of 97

(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.


SLP (Crl.) No. 6320 of 2024 Page 12 of 97

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. 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.


SLP (Crl.) No. 6320 of 2024 Page 13 of 97

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 is distinguishable 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


SLP (Crl.) No. 6320 of 2024 Page 14 of 97

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.
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


SLP (Crl.) No. 6320 of 2024 Page 15 of 97

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.
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


SLP (Crl.) No. 6320 of 2024 Page 16 of 97

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


SLP (Crl.) No. 6320 of 2024 Page 17 of 97

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


SLP (Crl.) No. 6320 of 2024 Page 18 of 97

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.


SLP (Crl.) No. 6320 of 2024 Page 19 of 97

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:
(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


SLP (Crl.) No. 6320 of 2024 Page 20 of 97

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 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


SLP (Crl.) No. 6320 of 2024 Page 21 of 97

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.


SLP (Crl.) No. 6320 of 2024 Page 22 of 97

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:
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.


SLP (Crl.) No. 6320 of 2024 Page 23 of 97

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
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


SLP (Crl.) No. 6320 of 2024 Page 24 of 97

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 prima facie 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?


SLP (Crl.) No. 6320 of 2024 Page 25 of 97

(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


SLP (Crl.) No. 6320 of 2024 Page 26 of 97

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 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.




SLP (Crl.) No. 6320 of 2024 Page 27 of 97

(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
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


SLP (Crl.) No. 6320 of 2024 Page 28 of 97

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 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


SLP (Crl.) No. 6320 of 2024 Page 29 of 97

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


SLP (Crl.) No. 6320 of 2024 Page 30 of 97

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.
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


SLP (Crl.) No. 6320 of 2024 Page 31 of 97

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)

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


SLP (Crl.) No. 6320 of 2024 Page 32 of 97

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:
“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


SLP (Crl.) No. 6320 of 2024 Page 33 of 97

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 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--



SLP (Crl.) No. 6320 of 2024 Page 34 of 97

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


SLP (Crl.) No. 6320 of 2024 Page 35 of 97

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 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


SLP (Crl.) No. 6320 of 2024 Page 36 of 97

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)
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


SLP (Crl.) No. 6320 of 2024 Page 37 of 97

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 (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


SLP (Crl.) No. 6320 of 2024 Page 38 of 97

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


SLP (Crl.) No. 6320 of 2024 Page 39 of 97

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.
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


SLP (Crl.) No. 6320 of 2024 Page 40 of 97

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 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 .



SLP (Crl.) No. 6320 of 2024 Page 41 of 97

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,
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


SLP (Crl.) No. 6320 of 2024 Page 42 of 97

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--
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


SLP (Crl.) No. 6320 of 2024 Page 43 of 97

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


SLP (Crl.) No. 6320 of 2024 Page 44 of 97

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.
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 bifurcated from
the main trial), subject to the evidence recorded in the split-up (bifurcated)
trial pointing to the involvement of the accused sought to be summoned. The
Court clarified that the evidence recorded in the main concluded trial cannot
be the basis of the summoning order if such power has not been exercised in
the main trial till its conclusion.
54. The Court also approved its earlier decision in Shashikant Singh (supra)
wherein it was held that the expression “could be tried together with the
accused” used in Section 319 does not mandate that the proposed accused
has to be jointly tried with the original accused. It was held by this Court
that at the time of deciding to proceed against the proposed accused under
Section 319, the court is also required to apply its mind and take a decision
as to whether the proceedings shall continue jointly with the original accused
or separately for the proposed accused.


SLP (Crl.) No. 6320 of 2024 Page 45 of 97

55. The relevant portions from the reasoning assigned by the Court in arriving
at the aforesaid conclusions are reproduced hereinbelow:
“23. […] Therefore, it would be open for the court to
summon such a person so that he could be tried together
with the accused and such power is exclusively of the
court. Obviously, when such power is to summon the
additional accused and try such a person with the
already charged accused against whom the trial is
proceeding, it will have to be exercised before the
conclusion of trial. The connotation “conclusion of
trial” in the present case cannot be reckoned as the
stage till the evidence is recorded, but, is to be
understood as the stage before pronouncement of the
judgment as already held in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2
SCC (Cri) 86] since on judgment being pronounced
the trial comes to a conclusion since until such time
the accused is being tried by the court .
--xxx--
27. From a perusal of the provisions extracted above, it
is seen that if the Sessions Court while analysing the
evidence recorded finds that there is no evidence to hold
the accused for having committed the offence, the Judge
is required to record an order of acquittal. In that case,
there is nothing further to be done by the learned Judge
and therefore the trial concludes at that stage. In such
cases where it arises under Section 232 CrPC and an
order of acquittal is recorded and when there are more
than one accused or the sole accused, have/has been
acquitted, in such cases, that being the end of the trial
by drawing the curtain, the power of the court to
summon an accused based on the evidence as
contemplated under Section 319 CrPC will have to be
invoked and exercised before pronouncement of
judgment of acquittal. There shall be application of
mind also, as to whether separate trial or joint trial is
to be held while trying him afresh. After such order it
will be open to pronounce the judgment of acquittal of
the accused who was tried earlier .


SLP (Crl.) No. 6320 of 2024 Page 46 of 97

--xxx--
29. The above aspects would indicate that even after the
pronouncement of the judgment of conviction, the trial
is not complete since the learned Sessions Judge is
required to apply her/his mind to the evidence which is
available on record to determine the gravity of the
charge for which the accused is found guilty; the role
of the particular accused when there is more than one
accused involved in an offence and in that light, to
award an appropriate sentence. Therefore, it cannot be
said that the trial is complete on the pronouncement of
the judgment of conviction alone, though it may be so
in the case of acquittal as contemplated under Section
232 CrPC, since in that case there is nothing further
to be done by the learned Judge except to record an
order of acquittal which results in conclusion of trial .
--xxx--
32. Therefore, from a perusal of the provisions and
decisions of this Court, it is clear that the conclusion
of the trial in a criminal prosecution if it ends in
conviction, a judgment is considered to be complete in
all respects only when the sentence is imposed on the
convict, if the convict is not given the benefit of Section
360 CrPC . Similarly, in a case where there are more
than one accused and if one or more among them are
acquitted and the others are convicted, the trial would
stand concluded as against the accused who are
acquitted and the trial will have to be concluded against
the convicted accused with the imposition of sentence.
When considered in the context of Section 319 CrPC,
there would be no dichotomy as argued, since what
becomes relevant here is only the decision to summon a
new accused based on the evidence available on record
which would not prejudice the existing accused since in
any event they are convicted.
--xxx--
34. Though Section 319 CrPC provides that such
person summoned as per sub-section (1) thereto could
be jointly tried together with the other accused,
keeping in view the power available to the court under


SLP (Crl.) No. 6320 of 2024 Page 47 of 97

Section 223 CrPC to hold a joint trial, it would also be
open to the learned Sessions Judge at the point of
considering the application under Section 319 CrPC
and deciding to summon the additional accused, to
also take a decision as to whether a joint trial is to be
held after summoning such accused by deferring the
judgment being passed against the tried accused. If a
conclusion is reached that the fresh trial to be
conducted against the newly added accused could be
separately tried, in such event it would be open for the
learned Sessions Judge to order so and proceed to pass
the judgment and conclude the trial insofar as the
accused against whom it had originally proceeded and
thereafter proceed in the case of the newly added
accused. However, what is important is that the
decision to summon an additional accused either suo
motu by the court or on an application under Section
319 CrPC shall in all eventuality be considered and
disposed of before the judgment of conviction and
sentence is pronounced, as otherwise, the trial would
get concluded and the court will get divested of the
power under Section 319 CrPC . Since a power is
available to the court to decide as to whether a joint trial
is required to be held or not, this Court was justified in
holding the phrase, “could be tried together with the
accused” as contained in Section 319(1)CrPC, to be
directory as held in Shashikant Singh [Shashikant
Singh v. Tarkeshwar Singh, (2002) 5 SCC 738 : 2002
SCC (Cri) 1203] which in our opinion is the correct
view.
35. One other aspect which is necessary to be clarified
is that if the trial against the absconding accused is
split up (bifurcated) and is pending, that by itself will
not provide validity to an application filed under
Section 319CrPC or the order of court to summon an
additional accused in the earlier main trial if such
summoning order is made in the earlier concluded
trial against the other accused . This is so, since such
power is to be exercised by the court based on the
evidence recorded in that case pointing to the
involvement of the accused who is sought to be


SLP (Crl.) No. 6320 of 2024 Page 48 of 97

summoned. If in the split up (bifurcated) case, on
securing the presence of the absconding accused the
trial is commenced and if in the evidence recorded
therein it points to the involvement of any other person
as contemplated in Section 319CrPC, such power to
summon the accused can certainly be invoked in the
split up (bifurcated) case before conclusion of the trial
therein .”
(Emphasis supplied)

56. Further, this Court in Sukhpal Singh Khaira (supra) also laid down certain
guidelines for the exercise of power by the courts under Section 319 of the
CrPC. These guidelines are reproduced below:
“ 41.(III) What are the guidelines that the competent
court must follow while exercising power under Section
319CrPC?

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

41.2. The court shall thereupon first decide the need or
otherwise to summon the additional accused and pass
orders thereon.

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 .

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


SLP (Crl.) No. 6320 of 2024 Page 49 of 97

41.5. If the decision is for joint trial, the fresh trial shall
be commenced only after securing the presence of the
summoned accused.

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.

41.7. If the proceeding paused as in para 41.1 above, is
in a case where the accused who were tried are to be
acquitted, and the decision is that the summoned
accused can be tried afresh separately, there will be no
impediment to pass the judgment of acquittal in the main
case.

41.8. If the power is not invoked or exercised in the
main trial till its conclusion and if there is a split-up
(bifurcated) case, the power under Section 319 CrPC
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 .

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

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

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



SLP (Crl.) No. 6320 of 2024 Page 50 of 97

41.12. If, in that circumstance, the decision is to hold
a separate trial in case of the summoned accused as
indicated earlier:
(a) The main case may be decided by pronouncing
the conviction and sentence and then proceed
afresh against summoned accused .
(b) In the case of acquittal the order shall be passed
to that effect in the main case and then proceed
afresh against summoned accused.”
(Emphasis supplied)

57. The guidelines laid down by this Court contemplate several situations as to
how the trial of the accused summoned under Section 319 should take place.
Paragraph nos. 41.1 to 41.4 lay down the chronology of steps to be taken
while deciding an application under Section 319 that is:
a. First , the court has to decide the need for summoning an accused under
Section 319;
b. Secondly , if the court reaches the conclusion that a person is required
to be arrayed as an accused under Section 319, then the summoning
order in respect thereof must be passed before the conclusion of the
trial of the original accused;
c. Thirdly , depending on the stage of the trial at which the summoning
order under Section 319 is passed, the court also has to decide whether
the newly arrayed accused will be jointly or separately tried with the
original accused.


SLP (Crl.) No. 6320 of 2024 Page 51 of 97

58. Paragraph 41.8 of the guidelines clarifies that the power under Section 319
can be invoked only during the pendency of trial of the original accused
person(s). To illustrate, say in a case with accused ‘A’ and accused ‘B’ the
trial was split-up by the court in respect of accused ‘B’ because he was found
to be absconding, then the main trial in respect of the accused ‘A’ can
continue separately without any hindrance or delay. In a situation where the
main trial in respect of accused ‘A’ has already concluded and only the split-
up trial in respect of accused ‘B’ remains pending, the power under Section
319 can be invoked even in such split-up proceedings provided that it
appears from the evidence recorded in such split-up trial proceedings that a
person not being the accused has committed any offence which could be
tried together with accused ‘B’ whose culpability is being adjudicated in the
split-up trial. It is apposite to mention here that if the evidence recorded
during the course of the main trial in respect of accused ‘A’ indicates towards
the complicity of an additional accused person, but the same has already
concluded, then, by using such evidence, the power under Section 319
cannot be invoked during the split-up trial in respect of accused ‘B’. For a
person to be summoned under Section 319 in the split-up trial, the condition
precedent is that the evidence taken in the split-up trial by itself should
indicate towards the involvement of the proposed accused in the offence.


SLP (Crl.) No. 6320 of 2024 Page 52 of 97

59. Further, it is clear from Paragraph nos. 41.5, 41.6, 41.7, 41.9, 41.10, 41.11
and 41.12, respectively, that a de novo or a fresh trial is mandatory upon
summoning of an accused person under Section 319. If upon such
summoning, the court decides to conduct a joint trial of the proposed
accused with the original accused, then the trial will be conducted afresh for
the newly arrayed accused. On the other hand, if the decision of the court is
to conduct a separate trial for the newly arrayed accused, then the main trial
in respect of the original accused can be concluded without any impediment
and the fresh trial of the new accused persons can be conducted separately.
60. Therefore, conducting a fresh trial in respect of the proposed accused after
the conclusion of the main trial is not permissible unless an order separating
the trial of the original accused with that of the proposed accused is passed
by the court before the original trial stands concluded. This stage is reached
after the summoning order has been made during the pendency of the trial
in respect of the original accused. From the above exposition of law, it is
clear that passing of a summoning order before the conclusion of trial is a
requirement that flows from sub-section (1) of Section 319. This
requirement is in no way qualified by the provision of a fresh trial under sub-
section (4) and thus, cannot be the basis to allow a summoning order to be
passed after the conclusion of trial in the absence of a decision by the court


SLP (Crl.) No. 6320 of 2024 Page 53 of 97

to proceed against the proposed accused under sub-section (1) of Section
319 of the CrPC during the pendency of the trial.
(iii) Meaning of the expression “could be tried together with the
accused”
61. In our considered view, the expression “could be tried together with the
accused” lays down a necessary requirement that the persons sought to be
arrayed as accused under Section 319 should be capable of being jointly tried
with the original accused irrespective of whether they are actually tried
together or not. This Court in its decision in R. Dineshkumar @ Deena v.
State represented by Inspector of Police & Ors. reported in (2015) 7 SCC
497 observed that the expression “could be tried together” as appearing in
Section 319 of the CrPC is to be construed in the context of Section 223 of
the CrPC which provides for circumstances under which different persons
may be tried together. The relevant observations are reproduced below:
“ 8. […] The section authorises the court making any
inquiry into or conducting the trial of an offence to
“proceed” against any person (other than the accused
facing trial) subject to two conditions (i) that from the
“evidence” it appears to the court that such a person
“has committed any offence”, and (ii) that such a person
“could be tried together with the accused”.

9. We shall first consider the question as to when could
a person appearing to have committed an offence “ be
tried together with the accused ” already facing trial?



SLP (Crl.) No. 6320 of 2024 Page 54 of 97

10. Section 223 CrPC provides for the joint trial of
different accused in certain circumstances. It
enumerates different contingencies in which different
persons may be charged and tried together. As rightly
noticed by the High Court, the only clause if at all
relevant for the purpose of the present case is Section
223(d) which stipulates that persons accused of different
offences committed in the course of the same transaction
could be charged and tried together. ”
(Emphasis supplied)

62. Section 223 of the CrPC provides for certain situations and contingencies in
which different persons may be charged and tried together. This Court in R.
Dineshkumar (supra) had the occasion to consider the meaning of the
expression “same transaction” and held that joint trial of persons accused of
different offences committed in the course of same transaction is permissible
under Section 319 where the offences are not wholly unconnected.
63. What is discernible from the principles expounded in R. Dineshkumar
(supra) is that for offences committed in the same transaction, the court
should ideally arraign all the concerned persons as accused at the same time.
Even if a person is not arraigned as an accused, he could be arraigned as an
accused under Section 319 provided, inter alia , he “could be tried together”
with the originally chargesheeted accused. Therefore, what follows is that a
person must be arraigned as an accused under Section 319 when the persons
originally chargesheeted are still accused persons and their culpability is yet
to be decided.


SLP (Crl.) No. 6320 of 2024 Page 55 of 97

64. The power under Section 319 can only be exercised in a situation where the
Trial Court is seized of the offence committed in the “same transaction”.
When the trial is concluded, such court becomes functus officio and the
power to summon persons under Section 319 for the offences alleged to have
been committed in the same transaction no longer vests with the said court
as the new persons sought to be summoned cannot be tried together with the
original accused.
65. While it is mandatory for the court to arrive at an objective satisfaction, on
the basis of the evidence adduced in the course of inquiry or trial, that the
proposed accused appears to have committed an offence, the court is also
duty bound in law to ascertain whether the proposed accused could be tried
with the original accused for the commission of the offence which he
appears to have committed. Undoubtedly, it is open for the court to take a
decision as to whether it wishes to try the proposed accused jointly with the
original accused or proceed against him in a separate trial, however, the stage
for exercise of such a discretion can only arise if the aforesaid two obligatory
conditions are satisfied. By implication, both the aforesaid conditions can
only be satisfied if the court proceeds against the proposed accused before
the conclusion of the trial as with the conclusion of trial the possibility of
fulfilment of the twin conditions of “in the course of trial” and “could be
tried together” ceases to exist.


SLP (Crl.) No. 6320 of 2024 Page 56 of 97

66. We may clarify with a view to obviate any confusion that the requirement
placed by the expression “could be tried together with the accused” for
exercise of power under sub-section (1) of Section 319 is mandatory in the
sense that a joint trial of the original accused and proposed accused must be
possible. However, whether a joint trial, or a separate trial, is held is left to
the discretion of the Trial Court. As a result, passing of the summoning order
before the conclusion of trial is mandatory. It cannot be said for a moment
that passing of the summoning order before the conclusion of trial is
directory merely because sub-section (4) provides for conduct of a fresh trial
in respect of the additional accused.
67. This Court in its decisions in Shashikant Singh (supra) and Sukhpal Singh
Khaira (supra) has clarified that the expression “could be” tried together
with the accused is only directory i.e., an expression of possibility and
should not be construed to mean “must be”. The dictum laid in the aforesaid
cases is that conclusion of the trial qua the original accused would not act as
an impediment for the court to proceed with the trial of the proposed accused
who were summoned under Section 319 of the CrPC before the conclusion
of the original trial. In other words, if a summoning order under Section 319
of the CrPC is passed against the proposed accused during the pendency of
the trial in respect of the original accused, then even if such trial concludes
before the court is able to proceed with the proposed accused, that would not


SLP (Crl.) No. 6320 of 2024 Page 57 of 97

prevent the court from proceeding in a separate trial against the proposed
accused.
68. Thus, what has been emphasised by this Court in the aforesaid decisions is
that if the Trial Court, after applying its mind as regards the fulfilment of the
twin conditions under sub-section (1) of Section 319, decides to summon the
proposed accused for facing trial, then the mere fact that the main trial stands
concluded during the pendency of a revision petition against the summoning
order before the High Court, would not incapacitate the Trial Court from
proceeding with the summoned proposed accused in a separate trial even
after conclusion of the main trial. In other words, the summoning order
would not become ineffective and inoperative so as to nullify the opinion
earlier formed by the court on the basis of evidence before it that the newly
added person appears to have committed the offence if the trial against the
additional accused does not commence before the conclusion of the main
trial in respect of the original accused. The expression “could be tried
together with the accused” does not fetter the power of the Trial Court under
Section 319 to conduct trial of the proposed accused persons even after the
conclusion of the main trial provided the summoning order is passed before
such conclusion. It is in this context that this Court stated that the said
expression is to be construed as directory and not mandatory.


SLP (Crl.) No. 6320 of 2024 Page 58 of 97

(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
69. The dictum that flows from the aforesaid discussion is that the power under
Section 319 of the CrPC must be exercised by the court against the proposed
accused before the conclusion of the trial in respect of the original accused.
However, the factual matrix of the case at hand is one of its kind and requires
us to take a step forward into a territory which this Court has not had the
occasion to tread in any of its earlier decisions including those in Sukhpal
Singh Khaira (supra) , Hardeep Singh (supra) and Shashikant Singh
(supra) all of which have been discussed in detail by us.
70. The facts in the present case compared to those in Shashikant Singh (supra)
are distinguishable to the extent that the summoning order in the latter case
was passed before the conclusion of trial and the same was overturned by
the High Court in exercise of its revisional powers on the sole ground that
the trial in respect of the original accused had concluded during the
pendency of the revision. However, this Court gave a purposive
interpretation to Section 319 and set aside the order of the High Court and
remanded the matter back for a fresh consideration. The decision in
Shashikant Singh (supra) was later approved by the Constitution Bench in
Sukhpal Singh Khaira (supra) as the summoning order in Shashikant


SLP (Crl.) No. 6320 of 2024 Page 59 of 97

Singh (supra) was passed by the Trial Court before the conclusion of the
trial.
71. In Sukhpal Singh Khaira (supra) , the question to be decided was limited to
the extent whether the summoning order could have been passed by the Trial
Court after the passing of the order of conviction and sentence.

72. The peculiarity of the present case lies in the fact that although the
application under Section 319 of the CrPC was rejected before the
conclusion of the trial, the same came to be allowed after the conclusion of
the trial, and the case was remanded by the High Court for a fresh
consideration due to a patent illegality in the order of rejection passed by the
Trial Court.
73. The facts in detail are that the Trial Court had rejected the second application
filed under Section 319 by the respondent no. 2 whilst the trial was pending.
The respondent no. 2 preferred a revision before the High Court against the
rejection of his application. This rejection order came to be set aside by the
High Court subsequent to the conclusion of the trial by the Sessions Court.
The High Court directed the Trial Court to consider the application afresh
and in compliance with the same, the respondent no. 2, though not required
as per the High Court’s order, moved a third application under Section 319
rd
of the CrPC almost 10 years after the conclusion of trial. The 3 application
under Section 319 of the CrPC came to be allowed by the Sessions Court


SLP (Crl.) No. 6320 of 2024 Page 60 of 97

and challenge to the same by the appellants under Section 482 of the CrPC
came to be rejected vide the impugned order passed by the High Court.
74. The fundamental difference between the case at hand and Shashikant Singh
(supra) is that although the application under Section 319 was considered
by the Trial Court before the conclusion of the trial, yet the summoning order
could not be passed before the conclusion of trial as the trial stood concluded
during the pendency of the revision petition before the High Court. Thus,
what falls for our consideration is the legal effect of the order of the High
Court setting aside the rejection of the second application by the Trial Court
long after the conclusion of the trial. More particularly, what needs to be
determined is the interplay between power of courts under Section 319 vis-
à-vis the revisional power of the High Court under Sections 397 to 401 of
the CrPC.

(v) 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?
75. We are in seisin of the fact that the order dated 14.09.2021 passed by the
High Court in Revision Petition No. 400/2010, before it was acted upon, was
not challenged by the appellants before any forum and thus could be said to


SLP (Crl.) No. 6320 of 2024 Page 61 of 97

have attained finality. What is impugned before us is the order passed by the
High Court rejecting the Section 482 petition filed against the order of the
Trial Court allowing the application under Section 319 of the CrPC and
summoning the appellants as accused to face trial. However, to have a
comprehensive overview of the matter and considering the peculiar
circumstances in which the order in Revision Petition 400/2010 came to be
passed, we deem it appropriate to examine whether the High Court was right
in exercising its revisional jurisdiction to set aside the order of the Trial
Court rejecting the application under Section 319 and directing it to consider
the same afresh.
76. Explaining the scope of revisional jurisdiction under Section 397 of the
CrPC, this Court in Amit Kapoor v. Ramesh Chander reported in (2012) 9
SCC 460 made the following observations:
“ 12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the
legality and regularity of any proceedings or order made
in a case. The object of this provision is to set right a
patent defect or an error of jurisdiction or law. There
has to be a well-founded error and it may not be
appropriate for the court to scrutinise the orders,
which upon the face of it bears a token of careful
consideration and appear to be in accordance with law .
If one looks into the various judgments of this Court, it
emerges that the revisional jurisdiction can be invoked
where the decisions under challenge are grossly
erroneous, there is no compliance with the provisions
of law, the finding recorded is based on no evidence,
material evidence is ignored or judicial discretion is


SLP (Crl.) No. 6320 of 2024 Page 62 of 97

exercised arbitrarily or perversely. These are not
exhaustive classes, but are merely indicative. Each
case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional jurisdiction
itself should not lead to injustice ex facie . Where the
Court is dealing with the question as to whether the
charge has been framed properly and in accordance
with law in a given case, it may be reluctant to interfere
in exercise of its revisional jurisdiction unless the case
substantially falls within the categories aforestated.
Even framing of charge is a much advanced stage in the
proceedings under the CrPC.

18. It may also be noticed that the revisional
jurisdiction exercised by the High Court is in a way
final and no inter court remedy is available in such
cases. Of course, it may be subject to jurisdiction of this
Court under Article 136 of the Constitution of India.
Normally, a revisional jurisdiction should be exercised
on a question of law. However, when factual
appreciation is involved, then it must find place in the
class of cases resulting in a perverse finding. Basically,
the power is required to be exercised so that justice is
done and there is no abuse of power by the court.
Merely an apprehension or suspicion of the same
would not be a sufficient ground for interference in
such cases .
--xxx--
20. The jurisdiction of the court under Section 397 can
be exercised so as to examine the correctness, legality
or propriety of an order passed by the trial court or the
inferior court, as the case may be. Though the section
does not specifically use the expression “prevent abuse
of process of any court or otherwise to secure the ends
of justice”, the jurisdiction under Section 397 is a very
limited one. The legality, propriety or correctness of an


SLP (Crl.) No. 6320 of 2024 Page 63 of 97

order passed by a court is the very foundation of
exercise of jurisdiction under Section 397 but
ultimately it also requires justice to be done. The
jurisdiction could be exercised where there is palpable
error, non-compliance with the provisions of law, the
decision is completely erroneous or where the judicial
discretion is exercised arbitrarily . […]”
(Emphasis supplied)

77. A perusal of the aforesaid decision indicates that the scope of revisional
jurisdiction is limited and is to set right a patent illegality or defect of law in
the order of a subordinate court. The power of revision is not as extensive as
that under Section 482 of the CrPC and should not be exercised lightly.
78. The High Court passed the order dated 14.09.2021 setting aside the order of
the Trial Court on two grounds:
a. First , the mere fact that chargesheet had not been filed against the
proposed accused despite there being a FIR against them cannot be a
ground for not proceeding against them under Section 319 of the CrPC.
b. Secondly , the Trial Court wrongly assumed that as the first informant/
respondent no. 2 didn’t know the proposed accused persons by name
and hence their presence at the time of the commission of the offence
was not established.
79. The High Court observed that the settled position of law was that the filing
or non-filing of a chargesheet would not have any effect on the power of the
court to proceed against the proposed accused under Section 319 of the


SLP (Crl.) No. 6320 of 2024 Page 64 of 97

CrPC. Thus, we are of the view that the High Court was right in exercising
its revisional jurisdiction as the order was passed to set aside the order of a
subordinate court which was based on a misapplication of the settled
position of law and thus could be said to have been suffering from a patent
illegality.
80. In such circumstances, the High Court set aside the order of the Trial Court
and directed it to reconsider the application under Section 319 within a
period of three months. The question that now arises is whether any
meaningful effect can be given to the order of the High Court for a fresh
consideration of the application under Section 319 of the CrPC after the
conclusion of the main trial.

(vi) Whether the order passed by the High Court in exercise of its
revisional jurisdiction would relate back to the order passed by the
Trial Court rejecting the application under Section 319 of the
CrPC
81. This Court in Hardeep Singh (supra) observed that Section 319 casts a duty
upon the courts to give full effect to the words used by the legislature to
ensure that no person who deserves to be tried is able to go scot-free. The
relevant paragraphs are reproduced below:


SLP (Crl.) No. 6320 of 2024 Page 65 of 97

“18. The legislature cannot be presumed to have
imagined all the circumstances and, therefore, it is the
duty of the court to give full effect to the words used by
the legislature so as to encompass any situation which
the court may have to tackle while proceeding to try an
offence and not allow a person who deserves to be tried
to go scot-free by being not arraigned in the trial in spite
of the possibility of his complicity which can be gathered
from the documents presented by the prosecution.

19. The court is the sole repository of justice and a duty
is cast upon it to uphold the rule of law and, therefore,
it will be inappropriate to deny the existence of such
powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at times,
get away by manipulating the investigating and/or the
prosecuting agency. The desire to avoid trial is so strong
that an accused makes efforts at times to get himself
absolved even at the stage of investigation or inquiry
even though he may be connected with the commission
of the offence.”

82. In Shashikant Singh (supra) , this Court emphasised on the duty of the
courts to give a meaningful or rather a purposeful interpretation to Section
319 so as to fulfil its avowed objective of ensuring that no person who is
guilty of an offence goes unpunished. The Court observed thus:
“8. When a statute is passed for the purpose of enabling
something to be done, and prescribes the way in which
it is to be done, it may be either an absolute enactment
or a directory enactment. The difference being that an
absolute enactment must be obeyed or fulfilled exactly,
but it is sufficient if a directory enactment be obeyed or
fulfilled substantially. No universal rule can be laid
down as to whether mandatory enactments shall be
considered directory only or obligatory with an implied
nullification for disobedience. It is the duty of courts of
justice to try to get at the real intention of the legislature
by carefully attending to the whole scope of the statute


SLP (Crl.) No. 6320 of 2024 Page 66 of 97

to be construed. (Craies on Statute Law, 7th Edn., pp.
260-62.)

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

83. A strict application of the dictum as laid in Sukhpal Singh Khaira (supra)
as regards the stage of passing of summoning order under Section 319 of the


SLP (Crl.) No. 6320 of 2024 Page 67 of 97

CrPC to the peculiar facts in the present case may be antithetical to the very
object of Section 319 and would render the order of the High Court nugatory
and incapable of being given effect to despite having been passed to rectify
a patent mistake committed by the Trial Court. In our considered view, the
aforesaid would lead to a serious miscarriage of justice. Such a result is also
contrary to the principle enshrined in the legal maxim nullum tempus aut
locus occurrit regi which means that “crime never dies”.
84. The facts of the case on hand are peculiar and require us to go one step ahead
of our present understanding of Section 319. We are of the view that the
answer to present conundrum lies in determining the legal effect of the order
passed by the High Court in exercise of its revisional jurisdiction and
whether it operates from the date on which it came to be passed or would it
relate back to the date of the order of the Trial Court against which it was
passed.

85. This Court in Maru Ram v. Union of India , reported in (1981) 1 SCC 107
held that:
“ 56. We are mindful of one anomaly and must provide
for its elimination. If the Trial Court acquits and the
higher Court convicts and it so happens that the
acquittal is before Section 433-A came into force and the
conviction after it, could it be that the convicted person
would be denied the benefit of prospectivity and
consequential non-application of Section 433-A merely
because he had the bad luck to be initially acquitted?
We think not. When a person is convicted in appeal, it
follows that the appellate Court has exercised its power


SLP (Crl.) No. 6320 of 2024 Page 68 of 97

in the place of the original court and the guilt,
conviction and sentence must be substituted for and
shall have retroactive effect from the date of judgment
of the Trial Court. The appellate conviction must relate
back to the date of the Trial Court's verdict and
substitute it . In this view, even if the appellate Court
reverses an earlier acquittal rendered before Section
433-A came into force but allows the appeal and
convicts the accused, after Section 433-A came into
force, such persons will also be entitled to the benefit of
the remission system prevailing prior to Section 433-A
on the basis we have explained. An appeal is a
continuation of an appellate judgment as a
replacement of the original judgment . [Freedom
Behind Bars — Criminology and Consciousness, Series
I, 1979, Maharshi European Research University Press
Publication, p. 73]”
(Emphasis supplied)


86. The judgment in Maru Ram (supra) is relevant to the extent that the order
of the appellate court relates back to the order of the Trial Court on the
premise that an appeal is a continuation of trial and an appellate judgment is
a replacement of the original judgment.
87. Once the High Court i.e., a superior court deems fit to interfere with an order
of a subordinate court, then any rectifications made to the order passed by
the subordinate court by such superior court in exercise of revisional powers
under Section 401 read with Section 397 of the CrPC must be treated on the
same footing as rectifications made by an appellate court and relate back to
the original order.


SLP (Crl.) No. 6320 of 2024 Page 69 of 97

88. This Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya
Bapat reported in (1969) 2 SCC 74 observed thus:
“ 6. Now when the aid of the High Court is invoked on
the revisional side it is done because it is a superior
court and it can interfere for the purpose of rectifying
the error of the court below . Section 115 of the Code of
Civil Procedure circumscribes the limits of that
jurisdiction but the jurisdiction which is being exercised
is a part of the general appellate jurisdiction of the High
Court as a superior court. It is only one of the modes of
exercising power conferred by the statute; basically
and fundamentally it is the appellate jurisdiction of the
High Court which is being invoked and exercised in a
wider and larger sense. We do not, therefore, consider
that the principle of merger of orders of inferior courts
in those of superior Courts would be affected or would
become inapplicable by making a distinction between
a petition for revision and an appeal .

7. It may be useful to refer to certain other decisions
which by analogy can be of some assistance in deciding
the point before us. In U.J.S. Chopra v. State of
Bombay [1955 SCC OnLine SC 57 : AIR 1955 SC 633],
the principle of merger was considered with reference
to Section 439 of the Criminal Procedure Code which
confers revisional jurisdiction on the High Court. In
the majority judgment it was held, inter alia, that a
judgment pronounced by the High Court in the
exercise of its appellate or revisional jurisdiction after
issue of a notice and a full hearing, in the presence of
both the parties would replace the judgment of the
lower court thus constituting the judgment of the High
Court—the only final judgment to be executed in
accordance with law by the Court below . […] ”
(Emphasis supplied)



SLP (Crl.) No. 6320 of 2024 Page 70 of 97

89. The reasoning assigned by this Court in Krishnaji Dattatreya Bapat (supra)
and U.J.S. Chopra v. State of Bombay reported in 1955 SCC OnLine SC
57 when read with the reasoning in Maru Ram (supra) would indicate that
the order of the High Court in exercise of its revisional jurisdiction relates
back to and replaces the order of the Trial Court. It is of no consequence that
the exercise of revisional jurisdiction is discretionary as opposed to appellate
jurisdiction. It is settled law that an appellate court exercises its power in the
place of the original court and the order passed by such court shall have
retroactive effect from the date of judgment of the Trial Court. Similarly,
once the High Court, being the superior court, decides to interfere with the
order of the Trial Court and passes an order in exercise of its revisional
jurisdiction with the purpose of rectifying any errors in the same, such order
will replace the order of the Trial Court.
90. What can be discerned from the aforesaid is that if the High Court passes an
order in exercise of its revisional jurisdiction either setting aside or
modifying the order of the Trial Court for the purpose of Section 319, the
same would relate back to the original order passed by the Trial Court and
substitute it to the extent of modification.
91. Besides above, the normal rule is that in any litigation the rights and
obligations of the parties are adjudicated upon as they obtain at the
commencement of the lis . But this is subject to an exception. Wherever


SLP (Crl.) No. 6320 of 2024 Page 71 of 97

subsequent events of facts or law which have a material bearing on the
entitlement of the parties to the relief or on aspects which bear on the
moulding of the relief occur, the court is not precluded from taking a
‘cautious cognizance of the subsequent changes of fact and law to mould the
relief ( See: Ramesh Kumar v. Kesho Ram reported in 1992 Supp (2) SCC
623) . Justice Krishna Iyer in Pasupuleti Venkateswarlu v. Motor and
General Traders , reported in (1975) 1 SCC 770 has observed thus:
“4. … It is basic to our processual jurisprudence that the right to relief
must be judged to exist as on the date a suitor institutes the legal
proceeding. Equally clear is the principle that procedure is the
handmaid and not the mistress of the judicial process. If a fact, arising
after the lis has come to court and has a fundamental impact on the
right to or the manner of moulding it, is brought diligently to the
notice of the tribunal, it cannot blink at it or be blind to events which
stultify or render inept the decretal remedy. Equity justifies bending
the rules of procedure, where no specific provision or fair play is
violated, with a view to promote substantial justice - subject, of
course, to the absence of other disentitling factors or just
circumstances. Nor can we contemplate any limitation on this power
to take note of updated facts to confine it to the trial court. If the
litigation pends, the power exists, absent other special circumstances
repelling resort to that course in law or justice. Rulings in this point
are legion, even as situations for applications of this equitable rule
are myriad.”

Though the aforesaid observations are in the context of civil proceedings,
the legal principle enshrined therein is based on a well-known latin maxim
“ actus curaie neminen gravabit ” – “an act of court shall prejudice no man”,


SLP (Crl.) No. 6320 of 2024 Page 72 of 97

which is of universal application. As a sequitur, no man should suffer
because of the fault of the court or delay in the procedure.
92. In the present case, the High Court, in exercise of its revisional jurisdiction,
set aside the order of the Trial Court rejecting the second application under
Section 319 of the CrPC and directed the Trial Court to reconsider the
application under Section 319. At the stage of issuing the aforesaid
direction, the High Court was conscious that the trial had concluded, yet to
do substantial justice, it deemed it necessary to issue such a direction. In
doing so, the High Court’s order, which relates back to the date of the Trial
Court’s order, did not mandate the Trial Court to do something which was
barred by law because, as already noticed above, holding a joint trial is
directory. Therefore, in complying with the said direction of the High Court,
the Trial Court committed no act which was prohibited by law.
93. There is not an iota of doubt that if the Trial Court would have proceeded
against the appellants under Section 319 of the CrPC in the absence of the
order passed by the High Court in the revision petition, the same would have
been illegal for having being done after the conclusion of the trial of the
original accused in light of the clear guidelines laid down in Sukhpal Singh
Khaira (supra) . However, by virtue of relating back of the order passed by
the High Court in the revision petition, the summoning order passed by the
Trial Court in compliance with the order of the High Court would also relate


SLP (Crl.) No. 6320 of 2024 Page 73 of 97

back to the initial order rejecting the second application under Section 319,
and for this reason could be said to have been passed before the conclusion
of the trial.
94. This Court in Sukhpal Singh Khaira (supra) had no occasion to consider a
factual situation like the one at hand, and thus the guidelines laid down by
the Constitution Bench did not prescribe anything as regards the application
of Section 319 of the CrPC in the context of revisional jurisdiction of the
High Court. In such circumstances, the spirit underlying Section 319
requires us to adopt an approach which furthers and fulfils the object of the
provision rather than rendering it nugatory.
95. If the order of the High Court passed in its revisional jurisdiction is not
related back, the consequence would be that although from the evidence, it
appears that there are some other persons who might be involved in the
offence, yet those persons will go scot-free solely because the Trial Court
erred in not exercising its powers under Section 319 which it ought to have.
Relating back the High Court’s revisional order to the date of the Trial
Court’s order strikes a balance between the interests of the newly summoned
persons and the general public/victims without causing prejudice to either.
96. While we have clarified the position of the effect of an order passed in
exercise of revisional jurisdiction on an order passed under Section 319, we
deem it equally necessary to address the mechanism for exercise of powers


SLP (Crl.) No. 6320 of 2024 Page 74 of 97

under Section 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. 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 the guidelines provided in Sukhpal Singh Khaira (supra), more
particularly, by the guideline in para 41.6 thereof which states that “ 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. ” We
clarify with a view to obviate any confusion that 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.
97. We deem it appropriate to refer to the decision of this Court in Uday
Mohanlal Acharya v. State of Maharashtra reported in (2001) 5 SCC 453 .


SLP (Crl.) No. 6320 of 2024 Page 75 of 97

In the said case, the appellant before this Court was an accused in relation
to certain offences for which he was remanded to judicial custody. Upon
expiry of sixty days, the accused-appellant moved an application for the
grant of default bail as no chargesheet was filed by the investigating agency.
However, the application came to be rejected by the Magistrate who took
the view that provisions of Section 167(2) would not be applicable to the
offence committed under the Maharashtra Protection of Interest of
Depositors (in Financial Establishments) Act, 1999 (“ MPID Act ”). The
appellant filed a revision before the High Court against the order passed by
the Magistrate. During the pendency of the revision, chargesheet was filed
by the investigating authorities. In such circumstances, although the High
Court set aside the order of the Magistrate on the ground that Section 167(2)
of the CrPC would apply to offences under the MPID Act yet it held that the
accused-appellant was not entitled to be released on bail as chargesheet had
come to be filed during the pendency of the revision thereby rendering the
right accrued in favour of the appellant unenforceable. The matter travelled
to this Court, wherein G.B. Pattanaik, J. speaking for himself and U.C.
Banerjee, J. took the view that a purposive interpretation had to be given to
the proviso to sub-section (2) of Section 167 of the CrPC and the object of
the proviso to curb the mischief of indefinite and prolonged investigation


SLP (Crl.) No. 6320 of 2024 Page 76 of 97

had to be kept in mind while interpreting the provision. The relevant
paragraphs from the said decision are reproduced hereinbelow:
“10. In Bipin Shantilal Panchal (Dr) v. State of
Gujarat [(1996) 1 SCC 718 : 1996 SCC (Cri) 200] , a
three-Judge Bench decision, this Court referred to the
proviso to sub-section (2) of Section 167 of the Code of
Criminal Procedure and held that though the aforesaid
provisions would apply to an accused under the NDPS
Act, but since the charge-sheet had already been filed
and the accused is in custody on the basis of orders of
remand passed under other provisions of the Code the
so-called indefeasible right of the accused must be held
to have been extinguished, as was held by the
Constitution Bench in Sanjay Dutt [(1994) 5 SCC 410 :
1994 SCC (Cri) 1433] . The Court observed thus: (SCC
p. 720, para 4)
“ Therefore, if an accused person fails to exercise
his right to be released on bail for the failure of the
prosecution to file the charge-sheet within the
maximum time allowed by law, he cannot contend
that he had an indefeasible right to exercise it at
any time notwithstanding the fact that in the
meantime the charge-sheet is filed. But on the
other hand if he exercises the right within the time
allowed by law and is released on bail under such
circumstances, he cannot be rearrested on the
mere filing of the charge-sheet , as pointed out
in Aslam Babalal Desai v. State of
Maharashtra [(1992) 4 SCC 272 : 1992 SCC (Cri)
870].”
--xxx--
13. […] In such a case, therefore, even if the
application for consideration of an order of being
released on bail is posted before the court after some
length of time, or even if the Magistrate refuses the
application erroneously and the accused moves the
higher forum for getting a formal order of being
released on bail in enforcement of his indefeasible


SLP (Crl.) No. 6320 of 2024 Page 77 of 97

right, then filing of challan at that stage will not take
away the right of the accused . […]

With the aforesaid interpretation of the expression
“availed of” if the charge-sheet is filed subsequent to
the availing of the indefeasible right by the accused then
that right would not stand frustrated or extinguished,
necessarily therefore, if an accused entitled to be
released on bail by application of the proviso to sub-
section (2) of Section 167, makes the application
before the Magistrate, but the Magistrate erroneously
refuses the same and rejects the application and then
the accused moves the higher forum and while the
matter remains pending before the higher forum for
consideration a charge-sheet is filed, the so-called
indefeasible right of the accused would not stand
extinguished thereby, and on the other hand, the
accused has to be released on bail . Such an accused,
who thus is entitled to be released on bail in enforcement
of his indefeasible right will, however, have to be
produced before the Magistrate on a charge-sheet being
filed in accordance with Section 209 and the Magistrate
must deal with him in the matter of remand to custody
subject to the provisions of the Code relating to bail and
subject to the provisions of cancellation of bail, already
granted in accordance with the law laid down by this
Court in the case of Mohd. Iqbal v. State of
Maharashtra [(1996) 1 SCC 722 : 1996 SCC (Cri)
202].”
(Emphasis supplied)

98. We are conscious of the fact that unlike Section 167(2), where an
indefeasible right accrues in favour of the accused upon the expiry of the
period of sixty/ninety days, Section 319 is a discretionary provision and no
right can be said to accrue in the applicant upon making of the application
under Section 319. However, as held by this Court in a number of its


SLP (Crl.) No. 6320 of 2024 Page 78 of 97

decisions, Section 319 casts a duty on the court to ensure that any person
who appears to have committed the crime must be brought before the court
and tried along with other accused. In the present case, the application under
Section 319 was made by the respondent no. 2 during the pendency of the
trial. As per the guidelines laid down in Sukhpal Singh Khaira (supra) , if
an application under Section 319 is made before a trial court, the court must
stop the trial and proceed to determine the application first before
proceeding further with the trial. In the present case, the Trial Court
considered the application under Section 319 of the CrPC and after rejecting
the same proceeded with the trial and concluded the same. The High Court,
in exercise of its revisional jurisdiction, held that the rejection of the
application under Section 319 by the Trial Court suffered from a patent
illegality and thus directed the Trial Court to reconsider the application. In
such circumstances, more particularly, keeping in mind the avowed
objective of Section 319 of the CrPC, it cannot be held that the order passed
by the High Court in revision cannot be given effect to merely because the
trial came to be concluded before an order could be passed by the High
Court. The present, unlike the facts in Sukhpal Singh Khaira (supra), is not
a case wherein the application under Section 319 came to be filed or decided
by the Trial Court after the conclusion of the trial. Instead, the case at hand
is one wherein the application under Section 319 though decided at the


SLP (Crl.) No. 6320 of 2024 Page 79 of 97

correct stage, came to be decided wrongly owing to a patent illegality
committed by the Trial Court. In such circumstances, an approach which
gives full effect to the legislative intention behind Section 319 of the CrPC
must be adopted.
99. Having discussed the position of law on the exercise of power under Section
319 of the CrPC, we shall now proceed to apply them to the facts of the
present case. The sequence of applications under Section 319 of the CrPC
and the consequential High Court proceedings arising therefrom are
tabulated below:
A PPLICATION
C OURT D ATE OF
R EMARKS
UNDER
S ECTION 319
THE
O RDER
Trial Court 29.01.2010 The first application was
rejected .

Grounds:
• Investigation against the
proposed accused was
ongoing and remained
pending.
• The cross-examination of
PW-1 & PW-2 was
incomplete.

High
Court
First
Application
14.05.2010 The revision application
against the order dated
29.01.2010 was allowed .

Direction:
• To the Trial Court to
consider application
under Section 319 after


SLP (Crl.) No. 6320 of 2024 Page 80 of 97

the cross-examination of
PW-1 & PW-2.

Trial Court 19.07.2010 The second application was
rejected on merits.

Trial was concluded on 19.10.2011 – Original accused
were convicted and, inter alia, sentenced to life
imprisonment.
High
Court
14.09.2021 The revision application
against the order dated
19.07.2010 was allowed on
merits.

Direction:
Second
Application
dated
10.06.2010
• To the Trial Court to
reconsider the application
under Section 319 within
three months from the
date of the order.

Note:
• It was noted by the High
Court that the trial in
respect of the original
accused had already
concluded.

Trial Court 21.02.2024 The third application was
allowed on merits.

Direction:
Third
Application
dated
22.09.2021

(the
complainant
renewed the
prayer under
Section 319)
• To summon the appellants
herein as accused.

Note:
• It was recorded that the
Trial Court had been
authorized by the order
dated 14.09.2021 of the
High Court to allow the


SLP (Crl.) No. 6320 of 2024 Page 81 of 97

application under Section
319.

High
Court
01.04.2024 The application preferred by
the appellants herein under
Section 482 of the CrPC was
dismissed and the order dated
21.02.2024 was upheld.

Note:
• It was recorded that as per
Section 319(4), the trial
against the summoned
accused has to be
commenced afresh and
the witnesses re-heard.
Therefore, the conclusion
of trial in respect of the
accused summoned
originally would not
cause any prejudice to the
appellants herein.


100. What is clear from the above is that as the Trial Court rejected the application
under Section 319, no summoning order could be passed before the
conclusion of trial. However, the High Court in exercise of its revisional
jurisdiction set aside the said order and directed the Trial Court to reconsider
the application under Section 319.
101. We have discussed in the preceding parts of this judgment that 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


SLP (Crl.) No. 6320 of 2024 Page 82 of 97

High Court could pass the order in exercise of its revisional jurisdiction.
Therefore, unlike cases where an application under Section 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 under Section 319
in terms of the directions of the High Court passed by way of a revisional
order.
102. As discussed hereinabove, an order passed by the High Court in exercise of
its revisional jurisdiction would relate back to the order of the Trial Court.
In the present case, the Trial Court in its discretion rejected the second
application filed under Section 319 before the conclusion of trial vide order
dated 19.07.2010. The High Court, more than ten years after the conclusion
of trial, set aside the said order and directed the Trial Court to reconsider the
application under Section 319 afresh. In our considered view, such order
passed by the High Court on the second application under Section 319
travels back to 19.07.2010 i.e., the date when the Trial Court rejected the
said application. The effect of the order of the High Court relating back to
the original order of the Trial Court is that the Trial Court cannot be
considered functus officio as regards considering the application under
Section 319 after the conclusion of the trial. We say so because the Trial
Court, in considering the application under Section 319 after the conclusion


SLP (Crl.) No. 6320 of 2024 Page 83 of 97

of the trial, is merely giving effect to a revisionary order directing it to
freshly consider the application which it had originally rejected.
103. Ordinarily, an application under the Section 319 cannot be moved after the
conclusion of trial as a necessary corollary of the dictum laid down in
Sukhpal Singh Khaira (supra) . However, the peculiar facts and
circumstances presented by the case on hand indicate that an application
under Section 319 dated 10.06.2010 was directed to be considered afresh by
the High Court vide order dated 14.09.2021 and, therefore, the third
application dated 22.09.2021 was not even required, though moved by the
respondent no. 2 in pursuance of the order of the High Court order dated
14.09.2021 allowing the revision petition. Accordingly, the summoning
order, in exercise of the powers under Section 319, came to be passed by the
Trial Court on 21.02.2024.
104. The summoning order dated 21.02.2024 was passed by the Trial Court in
pursuance of the direction issued by the High Court vide its revisional order
dated 14.09.2021. Therefore, it has to been seen 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 on 21.02.2024 is that the order of the Trial Court dated
19.07.2010 rejecting the second Section 319 application is replaced and
substituted by the summoning order dated 21.02.2024. Thus, although the


SLP (Crl.) No. 6320 of 2024 Page 84 of 97

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 (supra) and Krishnaji Dattatreya Bapat (supra) . Thus, as the
summoning order can be deemed to have been passed before the conclusion
of the trial, there is no impediment for the Trial Court to proceed with the
appellants in the manner envisaged under Section 319 of the CrPC. As the
summoning order passed in compliance with the order passed by High Court
in revision takes effect from the date of the original order, this ensures that
there is compliance with the dictum laid in Sukhpal Singh Khaira (supra)
that the summoning order has to be necessarily passed before the conclusion
of the trial.
105. We are also of the view that the relating back of the order of the High Court
is not going to cause any prejudice to the appellants. Considering that the
original trial has already concluded, there will have to be a separate trial so
far as the appellants are concerned. Section 319(4)(a) takes care of the rights
of the newly summoned persons by providing that “the proceedings in
respect of such person shall be commenced afresh, and the witnesses re-
heard”.
106. In view of the aforesaid, we have arrived at the conclusion that the order
passed in revision by the High Court cannot be rendered ineffective merely


SLP (Crl.) No. 6320 of 2024 Page 85 of 97

on procedural grounds especially when it involves substantive rights of the
parties and seeks to cure a patent illegality. However, it is apposite to clarify
in the same breath that although the law allows for travelling back of the
revisional order of the High Court, yet it is far from ideal to do so after the
passage of a substantial period of time, in this case, ten years after the
conclusion of trial. The correct approach to be adopted in cases like this is
that the High Court should direct the Trial Court to stay its proceedings till
the revision proceedings in respect of Section 319 are disposed of. At the
same time, the High Court must also expedite the revision proceedings so as
to ensure that unreasonable delay is not caused in the conclusion of trial.
107. The High Court in its impugned order has rightly observed that the
summoning order dated 21.02.2024 was passed in compliance with the order
passed by the High Court in exercise of its revisional jurisdiction. It further
correctly observed that the order passed by the High Court in exercise of its
revisional jurisdiction was in furtherance of the object of Section 319 of the
CrPC which is to ensure that the actual perpetrators of a crime are arraigned
as accused to face trial. The High Court was also right in observing that the
conclusion of the trial qua the original accused would not prejudice the
appellants in any manner and their interest would be safeguarded by sub-
section (4) of Section 319 of the CrPC. The High Court also noted that the
summoning order, though having been passed after the conclusion of the


SLP (Crl.) No. 6320 of 2024 Page 86 of 97

trial, cannot be said to be vitiated in the peculiar facts and circumstances of
the case. For all the reasons that we have assigned in the preceding parts of
this judgment, we do not see any reason to interfere with the impugned order
passed by the High Court.

(vii) Right of the proposed accused to be heard at the stage of
summoning under Section 319 of CrPC
108. Before we part with the matter, we deem it necessary to address the
submissions of the appellants as regards the violation of their right to be
heard before the passing of the order in Revision Petition 400/2010 by the
High Court.
109. As regards the right of the proposed accused to be heard before an
application under Section 319 is allowed by the court, we are in respectful
agreement with a recent pronouncement of this Court in Yashodhan Singh
v. State of U.P. reported in (2023) 9 SCC 108 wherein it has been held that
Section 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.
The relevant observations from the said decision are reproduced
hereinbelow:
“ 23. From the aforesaid observations of the Constitution
Bench of this Court in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2


SLP (Crl.) No. 6320 of 2024 Page 87 of 97

SCC (Cri) 86] , it is noted that an inquiry is
contemplated as against a person who has been
discharged prior to the commencement of the trial in
terms of Section 227 CrPC as extracted above but on an
inquiry, if it appears that there is evidence against such
a discharged person, then power under Section 319
CrPC can be exercised against such a discharged
person. This clearly would mean that when a person
who is not discharged but is to be summoned as per
Section 319 CrPC on the basis of satisfaction derived by
the court on the evidence on record, no inquiry or
hearing is contemplated. This would clearly indicate
that principle of natural justice and an opportunity of
hearing a person summoned under 319 CrPC are not
at all contemplated. Such a right of inquiry 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 Section 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 other accused .

--xxx--

35. This Court in the subsequent paragraphs
of Jogendra Yadav [Jogendra Yadav v. State of Bihar,
(2015) 9 SCC 244 : (2015) 3 SCC (Cri) 756] has also
not stated that if a person is to be summoned under
Section 319 CrPC to be added as an accused, then an
opportunity must be given to such a person and only
after hearing him, he could be added as an accused in
the trial. We do not find that the ratio of Jogendra
Yadav [Jogendra Yadav v. State of Bihar, (2015) 9 SCC
244 : (2015) 3 SCC (Cri) 756] turns on the said aspect.

36. However, it is contented by the learned Senior
Counsel Shri Nagamuthu that what has been observed
in para 9 of Jogendra Yadav [Jogendra Yadav v. State of
Bihar, (2015) 9 SCC 244 : (2015) 3 SCC (Cri) 756] will
make it a necessary mandate or a rule that a person who
is to be summoned under Section 319 CrPC to be added
as an accused will necessarily be heard before being so


SLP (Crl.) No. 6320 of 2024 Page 88 of 97

added. Para 9 cannot be considered to be the ratio
of Jogendra Yadav [Jogendra Yadav v. State of Bihar,
(2015) 9 SCC 244 : (2015) 3 SCC (Cri) 756] . Further,
the context in which the observations are made in the
paragraph must relate to the facts of the said case where
an opportunity was in fact provided to the persons
summoned therein.

37. Similarly, in Ram Janam Yadav [Ram Janam
Yadav v. State of U.P., (2023) 9 SCC 130] , on facts, it
was noticed that the person summoned was, in fact,
provided an opportunity of hearing.

38. Merely because in certain proceedings the persons
summoned had been provided an opportunity of being
heard cannot be the same thing as stating that it is a
mandatory requirement or a precondition that at the
time of summoning a person under Section 319 CrPC,
he should be given an opportunity of being heard. That
is not the mandate of law inasmuch as Section 319
clearly uses the expression “to proceed” which means
to proceed with the trial and not to jeopardise the trial
at the instance of the person(s) summoned by
conducting a mini trial or a trial within a trial thereby
derailing the main trial of the case and particularly
against the accused who are already facing trial and
who may be in custody.

39. A person who is summoned in exercise of the power
under Section 319 CrPC cannot hijack the trial so to say
and deviate from its focus and take it to a tangent in
order to bolster his own case in a bid to escape trial. All
that is contemplated when a person is summoned to
appear is to ascertain that he is the very person who was
summoned and if any summoned person fails to appear
on the given date. On the appearance of the summoned
person, no procedure of an inquiry or opportunity of
being heard is envisaged before been added as an
accused to the list of accused already facing trial
unless such a summoned person had already been
discharged, in which event, an inquiry is contemplated
as discussed above .


SLP (Crl.) No. 6320 of 2024 Page 89 of 97

40. Thus, the contention that a summoned person must
be given an opportunity of being heard before being
added as an accused to face the trial is clearly not
contemplated under Section 319 CrPC . It is also
observed by this Court in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2
SCC (Cri) 86] that such a summoned person can assail
a summoning order before a superior Court and will
also have the right of cross-examining the witnesses as
well as can let in his defence evidence, if any.”
(Emphasis supplied)

110. However, in the facts of the present case, the application under Section 319
was rejected by the Trial Court but the revision against such rejection was
entertained by the High Court without allegedly putting the proposed
accused to notice. Upon a careful perusal of the decision in Yashodhan
Singh (supra) , we are of the view that the right of hearing is not available to
the proposed accused only in the first instance, that is only at the stage when
the application is being heard for the first time.
111. However, after the rejection of an application under Section 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 has enured in favour of the proposed accused, then the
High Court is required to provide an opportunity of hearing to the proposed
accused. This is also the mandate as contained in sub-section (2) of Section
401 of the CrPC. The said provision is reproduced hereinbelow:


SLP (Crl.) No. 6320 of 2024 Page 90 of 97

“ 401. High Court’s powers of revision.
(1) In the case of any proceeding the record of which has
been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion,
exercise any of the powers conferred on a Court of
Appeal by sections 386, 389, 390 and 391 or on a Court
of Session by section 307, and, when the Judges
composing the Court of Revision are equally divided in
opinion, the case shall be disposed of in the manner
provided by section 392.
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or
by pleader in his own defence .
(3) Nothing in this section shall be deemed to authorise
a High Court to convert a finding of acquittal into one
conviction.
(4) Where under this Code an appeal lies and no appeal
is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the High
Court by any person and the High Court is satisfied that
such application was made under the erroneous belief
that no appeal lies thereto and that it is necessary in the
interests of Justice so to do, the High Court may treat
the application for revision as a petition of appeal and
deal with the same accordingly.”
(Emphasis supplied)

112. The aforesaid principle was also recognised by this Court in Manharbhai
Muljibhai Kakadia (supra) . The relevant portion of the said decision is
reproduced below:
“ 48. In a case where the complaint has been dismissed
by the Magistrate under Section 203 of the Code either


SLP (Crl.) No. 6320 of 2024 Page 91 of 97

at the stage of Section 200 itself or on completion of
inquiry by the Magistrate under Section 202 or on
receipt of the report from the police or from any person
to whom the direction was issued by the Magistrate to
investigate into the allegations in the complaint, the
effect of such dismissal is termination of complaint
proceedings. On a plain reading of sub-section (2) of
Section 401, it cannot be said that the person against
whom the allegations of having committed the offence
have been made in the complaint and the complaint has
been dismissed by the Magistrate under Section 203, has
no right to be heard because no process has been issued.
The dismissal of complaint by the Magistrate under
Section 203—although it is at preliminary stage—
nevertheless results in termination of proceedings in a
complaint against the persons who are alleged to have
committed the crime. Once a challenge is laid to such
order at the instance of the complainant in a revision
petition before the High Court or the Sessions Judge,
by virtue of Section 401(2) of the Code, the suspects get
the right of hearing before the Revisional Court
although such order was passed without their
participation. The right given to “accused” or “the
other person” under Section 401(2) of being heard
before the Revisional Court to defend an order which
operates in his favour should not be confused with the
proceedings before a Magistrate under Sections 200,
202, 203 and 204. In the revision petition before the
High Court or the Sessions Judge at the instance of the
complainant challenging the order of dismissal of
complaint, one of the things that could happen is
reversal of the order of the Magistrate and revival of
the complaint. It is in this view of the matter that the
accused or other person cannot be deprived of hearing
on the face of the express provision contained in
Section 401(2) of the Code. The stage is not important
whether it is pre-process stage or post process stage .”
(Emphasis supplied)



SLP (Crl.) No. 6320 of 2024 Page 92 of 97

113. In view of the principles explained in Manharbhai Muljibhai Kakadia
(supra) , the right of hearing is available to the proposed accused at the stage
of revision as the High Court by setting aside the order rejecting the
application under Section 319 may revive the proceedings against the
proposed accused under Section 319. Providing the proposed accused with
a mandatory right of hearing allows him to defend himself against a
prejudicial order that may be passed in the course of the hearing of the
revision petition.
114. However, 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. Hence, we do not find any merit
nd
in the submission of the appellants that the order rejecting the 2 application
under Section 319 of the CrPC was set aside by the High Court without
providing any opportunity of hearing to them.

F. CONCLUSION
115. We summarise our findings on the issues framed for consideration as
follows:
a. 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 under Section 319 of the


SLP (Crl.) No. 6320 of 2024 Page 93 of 97

CrPC as the same was found to have been passed contrary to the
settled position of law, suffering from a patent illegality, thus, leading
to serious miscarriage of justice.
b. 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 under Section 401 read with Section 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.
c. 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 under Section 319,
and therefore could be said to have been passed before the conclusion
of the trial.
d. Unlike cases where an application under Section 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 under Section 319 in
terms of the directions of the High Court passed in exercise of
revisional jurisdiction.


SLP (Crl.) No. 6320 of 2024 Page 94 of 97

e. The legal effect of the order passed by the High Court relating back
to the original order of the Trial Court is that the Trial Court would
not be rendered functus officio for the purpose of considering the
application under Section 319 after the conclusion of the trial. We say
so because the Trial Court, in considering the application under
Section 319 after the conclusion of the trial, merely gave effect to a
revisional order directing it to consider the application afresh which it
had originally rejected.
f. 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 Section 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


SLP (Crl.) No. 6320 of 2024 Page 95 of 97

law expounded by this Court in Maru Ram (supra) and Krishnaji
Dattatreya Bapat (supra) .
g. Section 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 Section 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 under Section
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 Section 401 of the
CrPC.
116. For all the foregoing reasons, the appeal fails and is hereby dismissed.


SLP (Crl.) No. 6320 of 2024 Page 96 of 97

117. The Trial Court is directed to take necessary steps in furtherance of the
summoning order dated 21.02.2024 to ensure that the appellants are
produced before the court to face the trial.
118. Pending application(s), if any, shall stand disposed of.

.……………………………J.
(J.B. Pardiwala)


………………………………J.
(Manoj Misra)
New Delhi.
th
6 March, 2025.


SLP (Crl.) No. 6320 of 2024 Page 97 of 97