Sec.319 Cr.P.C. = whether, in the facts and circumstances of the case, the Trial Court was justified in summoning the appellants herein to face the trial in exercise of powers under Section 319 of the CrPC? = As observed hereinabove, the appellants herein were also named in the FIR. However, they were not shown as accused in the challan/charge­sheet. As observed hereinabove, nothing is on record whether at any point of time the complainant was given an opportunity to submit the protest application against non­filing of the charge­sheet against the appellants. In the deposition before the Court, P.W.1 and P.W.2 have specifically stated against the appellants herein and the specific role is attributed to the accused­appellants herein. Thus, the statement of P.W.1 and P.W.2 before the Court can be said to be “evidence” during the trial and, therefore, on the basis 31 of the same and as held by this Court in the case of Hardeep Singh (supra), the persons against whom no charge­sheet is filed can be summoned to face the trial. Therefore, we are of the opinion that no error has been committed by the Courts below to summon the appellants herein to face the trial in exercise of power under Section 319 of the CrPC.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
CRIMINAL APPEAL NO. 813 OF 2019
[Arising out of SLP (Crl.) No. 1189 of 2019]
Rajesh & Ors. .. Appellants
Versus
State of Haryana .. Respondents
J U D G M E N T
M. R. Shah, J.

  1. Leave granted.
  2. Feeling aggrieved and dissatisfied with the impugned
    judgment and order dated 19.12.2018 passed by the High Court
    of Punjab & Haryana at Chandigarh in Criminal Revision – CRR
    No. 521 of 2018 by which the High Court has dismissed the said
    revision petition preferred by the appellants herein and has
    confirmed the order dated 28.10.2017 passed by the learned Trial
    Court, by which the appellants herein were summoned to face
    the trial for the offences under Sections 148, 149, 323, 324, 325,
    2
    302, 307 and 506 of the IPC, the appellants herein have preferred
    the present appeal.
  3. The facts leading to the present appeal in nutshell are as
    under:
    That one Hukum Singh lodged one FIR No. 180 on 12.06.2016 at
    Police Station Sadar, Panipat against ten accused, including the
    appellants herein for the offences under Sections 148, 149, 323,
    324, 325, 302, 307 and 506 of the IPC. It was alleged that on
    12.06.2016 at about 1.30 pm, he along with his son Bhajji and
    Hari son of Parkash were going from Panipat to his village
    Chhajpur Khurd on his tractor. His son had parked his
    motorcycle in front of the shop of Nande at bus stand. Therefore,
    his son Bhajji and Hari son of Parkash alighted from the tractor
    to pick up the motorcycle. When his son picked up the
    motorcycle, in the meantime, Sunil son of Jagpal came on
    Splendor motorcycle. Ravit son of Ramesh and Vicky son of
    Jaswant were sitting on pillion behind him on motorcycle.
    Sheela son of Paras was on his motorcycle Pulsar and Sumit son
    of Jagdish, Rinku son of Rai Singh were sitting behind him on his
    motorcycle. Sunder son of Om Singh was on motorcycle Bullet
    and Rajesh son of Prem and Sanjay son of Bishni were sitting
    3
    behind him on the said motorcycle. Ankush son of Rajinder was
    on his motorcycle make Splendor and Jagdish son of Devi Singh
    and Tejpal son of Nar Singh were sitting behind him. Joni son of
    Sahab Singh was on his motorcycle Bullet and Sachin son of
    Khilla was sitting behind him. They were armed with swards,
    pistols, hockeys, iron bars and gandasi etc. They attacked his
    son Bhajji and Hari son of Parkash. Ravit son of Ramesh was
    armed with a hockey, Vicky son of Jaswant was armed with
    wooden baton, Sheela son of Paras was armed with gandasi.
    Sumit son of Jagdish was armed with pistol, Rinky son of Rai
    Singh was armed with iron bar, Sunder son of Om Singh was
    armed with wooden baton, Rajesh son of Prem was armed with
    sword, Jagdish son of Devi Singh was armed with lathi, Tejpal
    son of Nar Singh was armed with iron bar, Joni son of Sahab
    Singh was armed with wooden handle of spade, Sachin son of
    Ruhla Ram was armed with sword and Joginder son of Sahi Ram
    was having gandasi with him. Rajesh son of Prem exhorted to
    kill both of them because they were pressing hard for their
    ejectment from panchayat land. Pursuant to exhortation,
    accused inflicted injuries to his son and Hari son of Parkash with
    their respective weapons. When he raised alarm, accused sped
    4
    away on their motorcycles threatening to kill them in case any
    action is taken against them. In the meantime, his brother
    Mahender came there and they removed both the injured to Prem
    Hospital where Hari son of Parkash succumbed to his injuries on
    14.06.2016 during treatment.
    3.1 That all the accused named in the FIR were arrested. The
    Investigating Officer conducted the investigation and found ten
    persons involved in the said incident. However, the Investigating
    Officer found that the appellants herein (six in numbers) were not
    present at the site of incident. That the Investigating Officer
    submitted his report under Section 173(2) of the CrPC against
    four accused only. That, thereafter the Investigating Agency
    conducted further investigation by Jagdeep Singh HPS, DSP,
    Panipat. It appears that a report under Section 173(8) of the
    CrPC was also submitted. According to the Investigating Officer,
    on the date of the commission of the offence the appellants
    herein were not present at the place of occurrence, rather they
    were found on different places which have been found by the
    Investigating Agency also. It appears that thereafter, as the
    appellants herein were in custody, the SHO, Police Station Sadar
    filed the applications before the Judicial Magistrate, First Class,
    5
    Panipat on 01.09.2016 and 28.10.2016 submitting that after
    investigation no challan is filed against the appellants herein and
    no evidence is found against them and, therefore, they may be
    discharged/released. That the learned Magistrate directed to
    release the appellants. That, thereafter the trial proceeded
    further against the remaining accused against whom the
    challan/charge­sheet was filed. The prosecution examined two
    witnesses – P.W.1, the original informant and P.W.2, Bhajji, the
    injured eye witness. Both of them corroborated the case of the
    prosecution and categorically stated that the appellants herein
    were also present at the time of incident. Both of them were
    cross­examined by the defence. That, thereafter the original
    informant P.W.1 submitted the application before the learned
    Magistrate under Section 319 of the CrPC to summon the
    appellants herein to face the trial for the offences under Sections
    148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. It was the
    case on behalf of the original informant that P.W.1 and P.W.2
    who were examined during the course of the trial, in their
    depositions both of them have corroborated the case of the
    prosecution and the statements which they had made before the
    police have also been found corroborated and their statements
    6
    before the Court are part of the application filed and, therefore
    the appellants herein who were named in the FIR are to be
    summoned to face the trial. That, by a detailed judgment and
    order, the learned Magistrate in exercise of powers under Section
    319 of the CrPC has directed to issue summons against the
    appellants herein to face the trial along with the other co­accused
    for the offences under Sections 148, 149, 323, 324, 325, 302,
    307 and 506 of the IPC
    3.2 The order passed by the learned Magistrate has been
    confirmed in revision by the High Court by the impugned
    judgment and order. Hence the present appeal by the appellants
    herein who are issued the summons to face the trial in exercise of
    powers under Section 319 of the CrPC.
  4. Shri R. Basant, learned Senior Advocate has appeared on
    behalf of the appellants herein.
    4.1 Shri Basant, learned Senior Advocate appearing on behalf of
    the appellants has vehemently submitted that, in the facts and
    circumstances of the case, the learned Magistrate has erred in
    summoning the appellants herein to face the trial in exercise of
    powers under Section 319 of the CrPC.
    7
    4.2 It is vehemently submitted by Shri Basant, learned Senior
    Advocate appearing on behalf of the appellants that both, the
    High Court as well as the learned Trial Court have not properly
    appreciated the scope and ambit of the powers to be exercised
    under Section 319 of the CrPC. Relying upon the decision of
    this Court in the case of Hardeep Singh v. State of Punjab
    (2014) 3 SCC 92, it is submitted by the learned Senior Advocate
    appearing on behalf of the appellants that, as observed and held
    by this Court, the power under Section 319 of the CrPC is a
    discretionary and an extraordinary power and it is to be exercised
    sparingly and only in those cases where the circumstances of the
    case so warrant.
    4.3 It is submitted by the learned Senior Advocate appearing on
    behalf of the appellants that the learned Magistrate has
    mechanically passed the order despite the fact that there was no
    strong and cogent evidence on record even at the time of the trial.
    4.4 It is further submitted by the learned Senior Advocate
    appearing on behalf of the appellants that, in the present case, as
    such, the investigating agency thoroughly investigated the case
    when all the appellants were in judicial custody and after taking
    into account all the facts and evidence, came to the conclusion
    8
    that all the appellants were innocent as they were not present at
    the place of incident and thereafter submitted the report under
    Section 173(2) of the CrPC and filed the challan only against four
    accused persons and did not file the challan against the
    appellants herein. It is submitted that not only that, even
    thereafter also, further investigation was carried out by the DCP
    who submitted the report under Section 173(8) of the CrPC and
    in that report also all the appellants were found innocent. It is
    submitted that, therefore, the SHO, Police Station Sadar
    submitted the applications praying for discharge of the
    appellants specifically stating that the appellants are innocent
    and the learned Magistrate allowed the said discharge
    applications, though opposed by the complainant. It is
    submitted that, therefore, once the learned Magistrate discharged
    the appellants on the applications submitted by the SHO, Police
    Station, Sadar, thereafter solely on the basis of depositions of
    P.W.1 and P.W.2 which was nothing but reiteration of what they
    stated in their statements before the police, the learned
    Magistrate was not justified in summoning the appellants herein
    to face the trial in exercise of powers under Section 319 of the
    CrPC.
    9
    4.5 Relying upon the decision of this Court in the case of
    Bijendra Singh v. State of Rajasthan (2017) 7 SCC 706, it is
    vehemently submitted by Shri Basant, learned Senior Advocate
    appearing on behalf of the appellants that, as observed by this
    Court, merely on the basis of the deposition of the complainant
    and some other persons, with no other material to support their
    so­called verbal/ocular version, no person can be arrayed as an
    accused in exercise of powers under Section 319 of the CrPC. It
    is submitted by the learned Senior Advocate appearing on behalf
    of the appellants that, as observed by this Court in the aforesaid
    decision, such an “evidence” recorded during the trial is nothing
    more than the statements which was already there under Section
    161 of the CrPC recorded at the time of investigation of the case.
    Relying upon the aforesaid decision, it is vehemently submitted
    by the learned Senior Advocate appearing on behalf of the
    appellants that, in any case, the learned Magistrate was bound to
    look into the evidence collected by the investigating officer during
    investigation which suggested that the accused were not present
    at the time of commission of the offence. It is submitted that, in
    the present case, the learned Magistrate on the applications
    submitted by the SHO in fact discharged the accused­appellants
    10
    herein and allowed the applications submitted by the SHO in
    which it was categorically stated that the appellants are innocent
    and that they were not present at the time of the incident. It is
    submitted that therefore the High Court has erred in dismissing
    the revision petition and confirming the order passed by the
    learned Magistrate in summoning the accused­appellants herein
    to face the trial for the offences under Sections 148, 149, 323,
    324, 325, 302, 307 and 506 of the IPC, which was passed in
    exercise of powers under Section 319 of the CrPC.
  5. Learned counsel appearing on behalf of the respondentState of Haryana has supported the order passed by the learned
    Magistrate as well as the impugned judgment and order passed
    by the High Court. He has also relied upon some of the
    observations made by this Court in the case of Hardeep Singh
    (supra) and even some of the observations made by this Court in
    the case of Bijendra Singh (supra).
    5.1 It is vehemently submitted by the learned counsel appearing
    on behalf of the State that it is not correct to state that the
    appellants herein were discharged by the learned Magistrate on
    the applications filed by the SHO, It is submitted that the SHO
    11
    submitted the applications to discharge the appellants from the
    custody and to release them as they were in jail and those
    applications came to be allowed. It is submitted that therefore
    the orders dated 01.09.2016 and 28.10.2016 cannot be said to
    be the orders of discharge in stricto sensu, as sought to be
    contended on behalf of the appellants.
    5.2 It is submitted that, in the present case, even at the initial
    stage when the investigating officer submitted the report under
    Section 173(2) of the CrPC and the challan was filed only against
    four accused persons, out of ten accused persons named in the
    FIR and the remaining six accused (appellants herein) were
    dropped, nothing is on record that the learned Magistrate
    accepted the report/closure report against the appellants and,
    that too, by following the procedure as required as per the
    decision of this Court in the case of Bhagwant Singh v.
    Commissioner of Police (1985) 2 SCC 537. It is submitted
    that, as per settled law, before even accepting the closure report,
    an opportunity is required to be given to the informant to submit
    the objections/protest and only thereafter the closure report can
    be accepted. It is submitted that, in the present case, no such
    12
    procedure was followed. It is submitted that thereafter when in
    the examination­in­chief/cross­examination, P.W.1 and P.W.2,
    who are the informant and the injured eye witness respectively,
    categorically deposed that the appellants were also present at the
    time of the incident and they actively participated in commission
    of offence and, therefore, in the facts and circumstances of the
    case, the learned Magistrate was justified in issuing the
    summons against the appellants to face the trial along with the
    other co­accused. It is submitted that, therefore, the order
    passed by the learned Trial Court is rightly confirmed by the High
    Court by the impugned judgment and order.
    5.3 Making the above submissions, it is prayed to dismiss the
    present appeal.
  6. Heard learned counsel appearing on behalf of the respective
    parties at length. We have also perused and considered the
    orders passed by the High Court as well as the learned Trial
    Court in depth.
    6.1 At the outset, it is required to be noted that, in the present
    case, what is under challenge is the impugned order passed by
    the High Court dismissing the revision application and
    confirming the order passed by the learned Trial Court
    13
    summoning the accused in exercise of powers under Section 319
    of the CrPC and to face the trial for the offences under Sections
    148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. It is
    required to be noted that, in the present case, the original
    complainant­first informant specifically named ten persons as
    accused, including the appellants herein. However, thereafter
    after the investigation, the investigating officer filed the chargesheet/challan against four accused persons only and no
    challan/charge­sheet was filed against the appellants herein.
    Nothing is on record whether at that time any specific closure
    report was submitted by the investigating officer or not. Nothing
    is on record whether at that stage an opportunity was given to
    the complainant/original informant to submit any protest
    application or not. Assuming that non­filing of the chargesheet/challan against the remaining accused named in the FIR
    can be said to be a closure report, in that case also, as per the
    settled proposition of law and more particularly, the decision of
    this Court in the case of Bhagwant Singh (supra), before
    accepting the closure report, the Magistrate is bound to issue
    notice to the complainant/original informant and the
    complainant/original informant is required to be given an
    14
    opportunity to submit the protest application and, thereafter,
    after giving an opportunity to the complainant/original
    informant, the Magistrate may either accept the closure report or
    may not accept the closure report and direct to proceed further
    against those persons for whom the closure report was
    submitted. In the present case, nothing is on record that such
    a procedure was followed by the learned Magistrate. That,
    thereafter the trial proceeded against the four accused persons
    against whom the charge­sheet/challan was filed. During the
    trial, the depositions of P.W.1 and P.W.2 were recorded. Both of
    them were even cross­examined. In the deposition, P.W.1 and
    P.W.2 specifically stated the overacts by the appellants herein
    and the role played by them and categorically stated that at the
    time of the incident/commission of the offence, the appellants
    herein were also present and they participated in the commission
    of the offence. That, thereafter, on the application submitted by
    the original complainant submitted under Section 319 of the
    CrPC, the learned Magistrate found a prima facie case against the
    appellants herein and summoned the appellants herein to face
    the trial along with other co­accused. The said order has been
    confirmed by the High Court. Therefore, the short question
    15
    posed for the consideration of this Court is whether, in the facts
    and circumstances of the case, the Trial Court was justified in
    summoning the appellants herein to face the trial in exercise of
    powers under Section 319 of the CrPC?
  7. While considering the aforesaid question/issue, few
    decisions of this Court are required to be referred to and
    considered.
    7.1 The first decision which is required to be considered is a
    decision of the Constitution Bench of this Court in the case of
    Hardeep Singh (supra) which has been consistently followed by
    this Court in subsequent decisions.
    7.2 In the case of Hardeep Singh (supra), this Court had the
    occasion to consider in detail the scope and ambit of the powers
    of the Magistrate under Section 319 of the CrPC; the object and
    purpose of Section 319 of the CrPC etc. In the said case, the
    following five questions fell for consideration before this Court:
    “(i) What is the stage at which power under Section
    319 CrPC can be exercised?
    (ii) Whether the word “evidence” used in Section
    319(1) CrPC could only mean evidence tested by
    cross­examination or the court can exercise the
    power under the said provision even on the basis of
    the statement made in the examination­in­chief of
    the witness concerned?
    16
    (iii) Whether the word “evidence” used in Section
    319(1) CrPC has been used in a comprehensive sense
    and includes the evidence collected during
    investigation or the word “evidence” is limited to the
    evidence recorded during trial?
    (iv) What is the nature of the satisfaction required
    to invoke the power under Section 319 CrPC to
    arraign an accused? Whether the power under
    Section 319(1) CrPC can be exercised only if the
    court is satisfied that the accused summoned will in
    all likelihood be convicted?
    (v) Does the power under Section 319 CrPC extend
    to persons not named in the FIR or named in the FIR
    but not charged or who have been discharged?”
    7.3 While considering the aforesaid questions, this Court
    observed and held as under:
    “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.
  8. 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?
  9. The submissions that were raised before us
    covered a very wide canvas and the learned counsel
    have taken us through various provisions of CrPC
    and the judgments that have been relied on for the
    said purpose. The controversy centres around the
    stage at which such powers can be invoked by the
    17
    court and the material on the basis whereof such
    powers can be exercised.
  10. Section 319 CrPC allows the court to proceed
    against any person who is not an accused in a case
    before it. Thus, the person against whom summons
    are issued in exercise of such powers, has to
    necessarily not be an accused already facing trial. He
    can either be a person named in Column 2 of the
    charge­sheet filed under Section 173 CrPC or a
    person whose name has been disclosed in any
    material before the court that is to be considered for
    the purpose of trying the offence, but not
    investigated. He has to be a person whose complicity
    may be indicated and connected with the commission
    of the offence.
  11. 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 scot­free 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.
  12. 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.
  13. In our opinion, Section 319 CrPC is an
    enabling provision empowering the court to take
    appropriate steps for proceeding against any person
    18
    not being an accused for also having committed the
    offence under trial. …..
  14. Since after the filing of the charge­sheet, 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 charge­sheet is
    filed and before the pronouncement of judgment,
    except during the stage of Sections 207/208 CrPC,
    committal, etc. which is only a pre­trial stage,
    intended to put the process into motion. This stage
    cannot be said to be a judicial step in the true sense
    for it only requires an application of mind rather than
    a judicial application of mind. At this pre­trial stage,
    the Magistrate is required to perform acts in the
    nature of administrative work rather than judicial
    such as ensuring compliance with Sections 207 and
    208 CrPC, and committing the matter if it is
    exclusively triable by the Sessions Court. Therefore,
    it would be legitimate for us to conclude that the
    Magistrate at the stage of Sections 207 to 209 CrPC
    is forbidden, by express provision of Section 319
    CrPC, to apply his mind to the merits of the case and
    determine as to whether any accused needs to be
    added or subtracted to face trial before the Court of
    Session.
  15. 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. …………
  16. 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
    19
    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.
  17. 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.
  18. …….. What is essential for the purpose of the
    section is that there should appear some evidence
    against a person not proceeded against and the stage
    of the proceedings is irrelevant. Where the
    complainant is circumspect in proceeding against
    several persons, but the court is of the opinion that
    there appears to be some evidence pointing to the
    complicity of some other persons as well, Section 319
    CrPC acts as an empowering provision enabling the
    court/Magistrate to initiate proceedings against such
    other persons. The purpose of Section 319 CrPC is to
    do complete justice and to ensure that persons who
    ought to have been tried as well are also tried.
    Therefore, there does not appear to be any difficulty
    in invoking powers of Section 319 CrPC at the stage
    of trial in a complaint case when the evidence of the
    complainant as well as his witnesses are being
    recorded.”
    7.4 While answering question No. (iii), namely whether the word
    “evidence” used in Section 319(1) of the CrPC has been used in a
    20
    comprehensive sense and includes the evidence collected during
    investigation or the word “evidence” is limited to the evidence
    recorded during trial, this Court, in the aforesaid decision has
    observed and held as under:
    “58. To answer the questions and to resolve the
    impediment that is being faced by the trial courts in
    exercising of powers under Section 319 CrPC, the
    issue has to be investigated by examining the
    circumstances which give rise to a situation for the
    court to invoke such powers. The circumstances that
    lead to such inference being drawn up by the court
    for summoning a person arise out of the availability
    of the facts and material that come up before the
    court and are made the basis for summoning such a
    person as an accomplice to the offence alleged to
    have been committed. The material should disclose
    the complicity of the person in the commission of the
    offence which has to be the material that appears
    from the evidence during the course of any inquiry
    into or trial of offence. The words as used in Section
    319 CrPC indicate that the material has to be “where
    … it appears from the evidence” before the court.
  19. Before we answer this issue, let us examine
    the meaning of the word “evidence”. According to
    Section 3 of the Evidence Act, “evidence” means and
    includes:
    “(1) all statements which the court permits or
    requires to be made before it by witnesses, in
    relation to matters of fact under inquiry;
    such statements are called oral evidence;
    (2) all documents including electronic records
    produced for the inspection of the court;
    such documents are called documentary
    evidence.”
    21
  20. It is, therefore, clear that the word “evidence”
    in Section 319 CrPC means only such evidence as is
    made before the court, in relation to statements, and
    as produced before the court, in relation to
    documents. It is only such evidence that can be
    taken into account by the Magistrate or the court to
    decide whether the power under Section 319 CrPC is
    to be exercised and not on the basis of material
    collected during the investigation.
  21. This pre­trial stage is a stage where no
    adjudication on the evidence of the offences involved
    takes place and therefore, after the material along
    with the charge­sheet has been brought before the
    court, the same can be inquired into in order to
    effectively proceed with framing of charges. After the
    charges are framed, the prosecution is asked to lead
    evidence and till that is done, there is no evidence
    available in the strict legal sense of Section 3 of the
    Evidence Act. The actual trial of the offence by
    bringing the accused before the court has still not
    begun. What is available is the material that has
    been submitted before the court along with the
    charge­sheet. In such situation, the court only has
    the preparatory material that has been placed before
    the court for its consideration in order to proceed
    with the trial by framing of charges.
  22. It is, therefore, not any material that can be
    utilised, rather it is that material after cognizance is
    taken by a court, that is available to it while making
    an inquiry into or trying an offence, that the court
    can utilise or take into consideration for supporting
    reasons to summon any person on the basis of
    evidence adduced before the court, who may be on
    the basis of such material, treated to be an
    accomplice in the commission of the offence. The
    inference that can be drawn is that material which is
    not exactly evidence recorded before the court, but is
    a material collected by the court, can be utilised to
    corroborate evidence already recorded for the
    22
    purpose of summoning any other person, other than
    the accused. ……..
  23. The word “evidence” therefore has to be
    understood in its wider sense both at the stage of
    trial and, as discussed earlier, even at the stage of
    inquiry, as used under Section 319 CrPC. The court,
    therefore, should be understood to have the power to
    proceed against any person after summoning him on
    the basis of any such material as brought forth
    before it. The duty and obligation of the court
    becomes more onerous to invoke such powers
    cautiously on such material after evidence has been
    led during trial.
  24. In view of the discussion made and the
    conclusion drawn hereinabove, the answer to the
    aforesaid question posed is that apart from evidence
    recorded during trial, any material that has been
    received by the court after cognizance is taken and
    before the trial commences, can be utilised only for
    corroboration and to support the evidence recorded
    by the court to invoke the power under Section 319
    CrPC. The “evidence” is thus, limited to the evidence
    recorded during trial.”
    7.5 While answering question No. (ii), namely whether the word
    “evidence” used in Section 319(1) of the CrPC means as arising in
    examination­in­chief or also together with cross­examination, in
    the aforesaid decision, this Court has observed and held as
    under:
    “86. The second question referred to herein is in
    relation to the word “evidence” as used under Section
    319 CrPC, which leaves no room for doubt that the
    evidence as understood under Section 3 of the
    Evidence Act is the statement of the witnesses that
    23
    are recorded during trial and the documentary
    evidence in accordance with the Evidence Act, which
    also includes the document and material evidence in
    the Evidence Act. Such evidence begins with the
    statement of the prosecution witnesses, therefore, is
    evidence which includes the statement during
    examination­in­chief. In Rakesh [(2001) 6 SCC 248 :
    2001 SCC (Cri) 1090 : AIR 2001 SC 2521] , it was
    held that: (SCC p. 252, para 10)
    “10. … It is true that finally at the time of
    trial the accused is to be given an opportunity to
    cross­examine the witness to test its
    truthfulness. But that stage would not arise
    while exercising the court’s power under Section
    319 CrPC. Once the deposition is recorded, no
    doubt there being no cross­examination, it would
    be a prima facie material which would enable the
    Sessions Court to decide whether powers under
    Section 319 should be exercised or not.”
  25. In Ranjit Singh [Ranjit Singh v. State of
    Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 :
    AIR 1998 SC 3148] , this Court held that: (SCC p.
    156, para 20)
    “20. … it is not necessary for the court to
    wait until the entire evidence is collected for
    exercising the said powers.”
  26. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq,
    (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR
    2007 SC 1899] , it was held that the prerequisite for
    exercise of power under Section 319 CrPC is the
    satisfaction of the court to proceed against a person
    who is not an accused but against whom evidence
    occurs, for which the court can even wait till the
    cross­examination is over and that there would be no
    illegality in doing so. A similar view has been taken
    by a two­Judge Bench in Harbhajan Singh v. State of
    Punjab [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135]
    . This Court in Hardeep Singh [Hardeep
    Singh v. State of Punjab, (2009) 16 SCC 785 : (2010)
    2 SCC (Cri) 355] seems to have misread the judgment
    24
    in Mohd. Shafi[Mohd. Shafi v. Mohd. Rafiq, (2007) 14
    SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC
    1899] , as it construed that the said judgment laid
    down that for the exercise of power under Section
    319 CrPC, the court has to necessarily wait till the
    witness is cross­examined and on complete
    appreciation of evidence, come to the conclusion
    whether there is a need to proceed under Section 319
    CrPC.
  27. We have given our thoughtful consideration
    to the diverse views expressed in the aforementioned
    cases. Once examination­in­chief is conducted, the
    statement becomes part of the record. It is evidence
    as per law and in the true sense, for at best, it may
    be rebuttable. An evidence being rebutted or
    controverted becomes a matter of consideration,
    relevance and belief, which is the stage of judgment
    by the court. Yet it is evidence and it is material on
    the basis whereof the court can come to a prima facie
    opinion as to complicity of some other person who
    may be connected with the offence.
  28. As held in Mohd. Shafi [Mohd. Shafi v. Mohd.
    Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 :
    AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13
    SCC 608 : (2010) 1 SCC (Cri) 1135] , all that is
    required for the exercise of the power under Section
    319 CrPC is that, it must appear to the court that
    some other person also who is not facing the trial,
    may also have been involved in the offence. The
    prerequisite for the exercise of this power is similar to
    the prima facie view which the Magistrate must come
    to in order to take cognizance of the offence.
    Therefore, no straitjacket formula can and should be
    laid with respect to conditions precedent for arriving
    at such an opinion and, if the Magistrate/court is
    convinced even on the basis of evidence appearing in
    examination­in­chief, it can exercise the power under
    Section 319 CrPC and can proceed against such
    other person(s). It is essential to note that the section
    also uses the words “such person could be tried”
    25
    instead of should be tried. Hence, what is required is
    not to have a mini­trial at this stage by having
    examination and cross­examination and thereafter
    rendering a decision on the overt act of such person
    sought to be added. In fact, it is this mini­trial that
    would affect the right of the person sought to be
    arraigned as an accused rather than not having any
    cross­examination at all, for in light of sub­section (4)
    of Section 319 CrPC, the person would be entitled to
    a fresh trial where he would have all the rights
    including the right to cross­examine prosecution
    witnesses and examine defence witnesses and
    advance his arguments upon the same. Therefore,
    even on the basis of examination­in­chief, the court
    or the Magistrate can proceed against a person as
    long as the court is satisfied that the evidence
    appearing against such person is such that it prima
    facie necessitates bringing such person to face trial.
    In fact, examination­in­chief untested by crossexamination, undoubtedly in itself, is an evidence.
  29. Further, in our opinion, there does not seem
    to be any logic behind waiting till the crossexamination of the witness is over. It is to be kept in
    mind that at the time of exercise of power under
    Section 319 CrPC, the person sought to be arraigned
    as an accused, is in no way participating in the trial.
    Even if the cross­examination is to be taken into
    consideration, the person sought to be arraigned as
    an accused cannot cross­examine the witness(es)
    prior to passing of an order under Section 319 CrPC,
    as such a procedure is not contemplated by CrPC.
    Secondly, invariably the State would not oppose or
    object to naming of more persons as an accused as it
    would only help the prosecution in completing the
    chain of evidence, unless the witness(es) is
    obliterating the role of persons already facing trial.
    More so, Section 299 CrPC enables the court to
    record evidence in absence of the accused in the
    circumstances mentioned therein.
    26
  30. Thus, in view of the above, we hold that
    power under Section 319 CrPC can be exercised at
    the stage of completion of examination­in­chief and
    the court does not need to wait till the said evidence
    is tested on cross­examination for it is the
    satisfaction of the court which can be gathered from
    the reasons recorded by the court, in respect of
    complicity of some other person(s), not facing the
    trial in the offence.”
    7.6 While answering question No. (iv), namely what is the degree
    of satisfaction required for invoking the power under Section 319
    of the CrPC, this Court after considering various earlier decisions
    on the point, has observed and held as under:
  31. 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.
  32. Thus, we hold that though only a prima
    facie case is to be established from the evidence led
    before the court, not necessarily tested on the anvil of
    cross­examination, it 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
    27
    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.”
    7.7 While answering question No. (v), namely in what situations
    can the power under Section 319 of the CrPC be exercised:
    named in the FIR, but not charge­sheeted or has been
    discharged, this Court has observed and held as under:
    “112. However, there is a great difference with
    regard to a person who has been discharged. A
    person who has been discharged stands on a
    different footing than a person who was never
    subjected to investigation or if subjected to, but not
    charge­sheeted. Such a person has stood the stage of
    inquiry before the court and upon judicial
    examination of the material collected during
    investigation, the court had come to the conclusion
    that there is not even a prima facie case to proceed
    against such person. Generally, the stage of evidence
    in trial is merely proving the material collected during
    investigation and therefore, there is not much change
    as regards the material existing against the person so
    discharged. Therefore, there must exist compelling
    circumstances to exercise such power. The court
    should keep in mind that the witness when giving
    evidence against the person so discharged, is not
    doing so merely to seek revenge or is naming him at
    the behest of someone or for such other extraneous
    considerations. The court has to be circumspect in
    28
    treating such evidence and try to separate the chaff
    from the grain. If after such careful examination of
    the evidence, the court is of the opinion that there
    does exist evidence to proceed against the person so
    discharged, it may take steps but only in accordance
    with Section 398 CrPC without resorting to the
    provision of Section 319 CrPC directly.
  33. Thus, it is evident that power under 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 a person who has
    been discharged. However, concerning a person who
    has been discharged, no proceedings can be
    commenced against him directly under Section 319
    CrPC without taking recourse to provisions of Section
    300(5) read with Section 398 CrPC.”
    7.8 Considering the law laid down by this Court in the case of
    Hardeep Singh (supra) and the observations and findings
    referred to and reproduced hereinabove, it emerges that (i) the
    Court can exercise the power under Section 319 of the CrPC even
    on the basis of the statement made in the examination­in­chief of
    the witness concerned and the Court need not wait till the crossexamination of such a witness and the Court need not wait for
    the evidence against the accused proposed to be summoned to be
    tested by cross­examination; and (ii) a person not named in the
    FIR or a person though named in the FIR but has not been
    charge­sheeted or a person who has been discharged can be
    29
    summoned under Section 319 of the CrPC, provided from the
    evidence (may be on the basis of the evidence collected in the
    form of statement made in the examination­in­chief of the
    witness concerned), it appears that such person can be tried
    along with the accused already facing trial.
    7.9 In the case of S. Mohammed Ispahani v. Yogendra
    Chandak (2017) 16 SCC 226 in para 35, this Court has observed
    and held as under:
    “35. It needs to be highlighted that when a person
    is named in the FIR by the complainant, but police,
    after investigation, finds no role of that particular
    person and files the charge­sheet without implicating
    him, the Court is not powerless, and at the stage of
    summoning, if the trial court finds that a particular
    person should be summoned as accused, even
    though not named in the charge­sheet, it can do so.
    At that stage, chance is given to the complainant also
    to file a protest petition urging upon the trial court to
    summon other persons as well who were named in
    the FIR but not implicated in the charge­sheet. Once
    that stage has gone, the Court is still not powerless
    by virtue of Section 319 CrPC. However, this section
    gets triggered when during the trial some evidence
    surfaces against the proposed accused.”
    7.10 Thus, even in a case where the stage of giving
    opportunity to the complainant to file a protest petition urging
    upon the trial Court to summon other persons as well who were
    named in the FIR but not implicated in the charge­sheet has
    30
    gone, in that case also, the Court is still not powerless by virtue
    of Section 319 of the CrPC and even those persons named in the
    FIR but not implicated in the charge­sheet can be summoned to
    face the trial provided during the trial some evidence surfaces
    against the proposed accused.
  34. Applying the law laid down by this Court in the aforesaid
    decisions to the facts of the case on hand, we are of the opinion
    that, in the facts and circumstances of the case, neither the
    learned Trial Court nor the High Court have committed any error
    in summoning the appellants herein to face the trial along with
    other co­accused. As observed hereinabove, the appellants
    herein were also named in the FIR. However, they were not
    shown as accused in the challan/charge­sheet. As observed
    hereinabove, nothing is on record whether at any point of time
    the complainant was given an opportunity to submit the protest
    application against non­filing of the charge­sheet against the
    appellants. In the deposition before the Court, P.W.1 and P.W.2
    have specifically stated against the appellants herein and the
    specific role is attributed to the accused­appellants herein.
    Thus, the statement of P.W.1 and P.W.2 before the Court can be
    said to be “evidence” during the trial and, therefore, on the basis
    31
    of the same and as held by this Court in the case of Hardeep
    Singh (supra), the persons against whom no charge­sheet is
    filed can be summoned to face the trial. Therefore, we are of the
    opinion that no error has been committed by the Courts below to
    summon the appellants herein to face the trial in exercise of
    power under Section 319 of the CrPC.
  35. Now, so far as the submissions made on behalf of the
    appellants herein relying upon the orders passed by the learned
    Magistrate dated 01.09.2016 and 28.10.2016 that once the
    appellants herein were discharged by the learned Magistrate on
    an application submitted by the Investigating Officer/SHO and,
    therefore, thereafter it was not open to the learned Magistrate to
    summon the accused to face the trial in exercise of power under
    Section 319 of the CrPC is concerned, it appears that there is
    some mis­conception on the part of the appellants. At the
    outset, it is required to be noted that the orders dated
    01.09.2016 and 28.10.2016 cannot be said to be the orders
    discharging the accused. If the applications submitted by the
    Investigating Officer/SHO and the orders passed thereon are
    considered, those were the applications to discharge/release the
    32
    appellants herein from custody as at that stage the appellants
    were in judicial custody. Therefore, as such, those orders
    cannot be said to be the orders of discharge in stricto sensu.
    Those are the orders discharging the appellants from custody.
    Under the circumstances, the submission on behalf of the
    accused that as they were discharged by the learned Magistrate
    and therefore it was not open to the learned Magistrate to
    exercise the power under Section 319 of the CrPC and to
    summon the appellants to face the trial, cannot be accepted.
  36. In view of the above and for the reasons stated above, we
    see no reason to interfere with the impugned judgment and
    order passed by the High Court confirming the order passed by
    the learned Magistrate summoning the accused­appellants
    herein to face the trial in exercise of the power under Section
    319 of the CrPC. We are in complete agreement with the view
    taken by the High Court. No interference is called for by this
    Court. In the facts and circumstance of the case and for the
    reasons stated hereinabove, the present appeal fails and
    deserves to be dismissed and is according dismissed.
    33
    ……………………………………..J.
    [L. NAGESWARA RAO]
    NEW DELHI; ……………………………………..J.
    MAY 1, 2019. [M.R. SHAH]