Compiled by Adv Mir Nagman Ali
Bombay High Court Nagpur Bench
Some important Citations on addition of accused
Hardeep Singh Vs Punjab
2014 AIR(SC) 1400 : 2014 AIR(SCW) 667 : 2014 All.M.R.(Cri) 801 : 2014 (1) Bom.C.R.(Cri.) 772 : 2014 DGLS(SC) 35 : 2014 (1) JT 412 : 2014 (1) Scale 241 : 2014 (3) SCC 92 : 2014 (1) Supreme 132
Code of Criminal Procedure, 1973, Secs. 193, 200, 201, 202, 319 & 398 - Scope and extent of - Powers of Courts - To arraign any person as accused - During course of inquiry - What is stage at which power under section 319 Code of Criminal Procedure can be exercised? - Whether word "evidence" used in section 319(1) Code of Criminal Procedure has been used in a comprehensive sense and includes evidence collected during investigation or word "evidence" is limited to evidence recorded during trial? - Held, after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under section 193 Code of Criminal Procedure and Sessions Judge need not wait till evidence under section 319 becomes available for summoning an additional accused. Section 319., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under sections 200, 201, 202 Code of Criminal Procedure; and under section 398 Code of Criminal Procedure are species of inquiry contemplated by section 319. Materials coming before Court in course of such enquiries can be used for corroboration of evidence recorded in Court after trial commences, for texercise of power under section 319, and also to add an accused whose name has been shown in Column 2 of charge-sheet. Word evidence in section 319 Code of Criminal Procedure has to be broadly understood and not literally i.e. as evidence brought during a trial. (Para 110)
R.J. Lakhia v. State of Gujarat, 1982 Cri LJ 1687 (Guj) and Amarjit Singh v. State of Punjab, 1983 Cri LJ NOC 98
There are two decisions, one of Punjab High Court and the other of Gujarat High Court which have taken the view that examination-in-chief of a witness alone without his cross-examination cannot be said to be such evidence upon which the Court can act under S.319, Cr. P.C. because such evidence in examination-in-chief is nothing but incomplete statement of a witness.
Supreme Court in Delhi Municipality v. Ram Kishan AIR 1983 SC 67 : (1983 Cri LJ 159)
has clearly cautioned that the provision of Section 319, Cr. P.C. should be used very sparingly.
SANNAREVANAPPA BHARAMAJAPPA KALAL VS KARNATAKA [1991 CRI. L. J. 21]
Golam Mondal v. Nazam Hossain (1987) 2 Crimes, 307: (1987 Cri LJ 729).
f the provisions of Section 319, Cr. P.C. are closely perused, it follows that the trial Court committed serious error in acting only on the evidence-in-chief and taking cognizance of the offence against the petitioners as well. The order, therefore, is unsustainable and the same has to be set aside with liberty to the prosecution to move the trial Court when there is evidence as required under law before the trial Court to act under Section 319, Cr. P.C.
RAKESH VS STATE OF HARYANA
2001 AIR(SC) 2521 : 2001 AIR(SCW) 2703 : 2003 (Supp.1) Bom.C.R. 291 : 2001 DGLS(SC) 906 : 2001 (5) JT 639 : 2001 (4) Mh.L.J. 596 : 2001 (4) Scale 522 : 2001 (6) SCC 248 : 2001 (5) Supreme 300 :
Held, it is difficult to accept that term 'evidence' as used in section 319 would mean evidence which is tested by cross-examination. Question of testing evidence by cross-examination would arise only after addition of accused. Word 'evidence' occuring in sub-section is used in comprehensive and broad sense which would include material collected by Investigating Officer and material or evidence which comes before Court and from which Court can prima facie conclude that person not arraigned before it is involved in commission of crime. Hence, once Sessions Court records statement of witness it would be part of evidence. It is true that finally at time of trial accused is to be given opportunity to cross-examine witness to test its truthfulness. But that stage would not arise while exercising Court's power under section 319 of Code. 1998(7) S.C.C. 149 relied upon. (Paras 10, 12 & 13)
(Ranjit Singh v. State of Punjab)10, 1998(7) S.C.C. 149.
In paragraph 10, the Court held that sub-section (1) of section 319 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. The Court has also clarified that :
"Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers
Balvinder Singh v. State of Haryana)1, 1996(3) Rec.Cri.R. 231, (Joginder Singh v. State of Punjab)2, 1999(1) Rec.Cri.R. 561; (Dharam Pal v. Hardial Singh)3, 1999(2) Rec.Cri.R. 165 and (Rakesh Batra v. State of Haryana)4, 2000(4) Rec.Cri.R. 10,
has arrived at the conclusion that statement of the complainant without cross-examination is not admissible in evidence and, therefore, the order of the Sessions Judge exercising powers under section 319 of the Criminal Procedure Code summoning additional persons as accused on the basis of the said statement was not lawful. The Court arrived at the conclusion that the word evidence used in section 319 of the Code means admissible evidence and the statement of a witness when he is yet to be cross-examined cannot be treated as evidence in the eyes of law.
State v. Kishori etc.)5, 1999(1) Rec.Cri.R. 2000; High Court of (Punjab and Harayana) in (Chanan v. State of Punjab)6, 1999(1) Rec.Cri.R. 371 and the High Court of Allahabad in (Ram Gopal v. State of U.P.)7, 1999(2) Rec.Cri.R. 534
have taken a contrary view and have held that the term evidence in section 319, Criminal Procedure Code does not contemplate cross-examination by persons who are to be summoned as accused to join trial. It does not contemplate of creating of additional stage of cross-examination of prosecution witnesses by those persons who are to be summoned and added as accused.