REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1750 OF 2008

Hardeep Singh Versus State of Punjab & Ors. With

Appellant

Respondents

CRIMINAL APPEAL NO. 1751 o 2008 Manjit Pal Singh Versus State of Punjab & Anr. With SPECIAL LEA!E PETITION "CRL.# NO. $18% o 2008 Babubhai Bhimabhai Bo hiria & Anr. Appellants Respondents Appellant

Versus State of !ujarat & Ors. With Respondents

Page 1

SPECIAL LEA!E PETITION "CRL.# NO. 720$ o 2010 Rajendra Sharma & Anr. Appellants

Versus State of M.P. & Anr. With SPECIAL LEA!E PETITION "CRL.# NO. 572% o 200$ Respondents

Ra"inder #umar & Anr. Versus State of Har$ana & Ors. With

Appellants

Respondents

SPECIAL LEA!E PETITION "CRL.# NO. 5$75 o 200$

%ej Pal & Anr. Versus State of Har$ana & Ors. With

Appellants

Respondents

SPECIAL LEA!E PETITION "CRL.# NO. $0%0 o 2010 &uned Pahal'an Versus State of (.P.& Anr. With Respondents Appellant

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SPECIAL LEA!E PETITION "CRL.# NO. 5&&1 o 200$ Rajesh ) Sanjai Versus State of (.P. & Anr. With SPECIAL LEA!E PETITION "CRL.# NO. $157 o 200$ Ramdhan Mali & Anr. Versus State of Rajasthan & Anr. With SPECIAL LEA!E PETITION "CRL.# NOS. %50&'%50% o 2012 %ej Singh Versus State of (.P. Respondent Appellant Respondents Appellants Respondents Appellant

JUD(MENT D). B.S. CHAUHAN* J. *. %his referen+e before us arises out of a "ariet$ of "ie's ha"ing

been e,pressed b$ this -ourt and se"eral High -ourts of the +ountr$ on the s+ope and e,tent of the po'ers of the +ourts under the +riminal justi+e s$stem to arraign an$ person as an a++used during the +ourse
3

Page 3

of in.uir$ or trial as +ontemplated under Se+tion /*0 of the -ode of -riminal Pro+edure1 *02/ 3hereinafter referred to as the 4-r.P.-.56.

7.

%he initial referen+e 'as made b$ a t'o8&udge Ben+h

"ide order dated 2.**.799: in the leading +ase of H+),--. Si/0h 3-rl. Appeal ;o. *2<9 of 799:6 'here noti+ing the +onfli+t bet'een the judgments in the +ase of R+1-2h 3. St+t- o H+)4+/+* A=R 799* S7<7*> and a t'o8&udge Ben+h de+ision in the +ase of Moh,. Sh+ i 3. Moh,. R+ i5 6 A/).* A=R 7992 S- *:001 a doubt 'as e,pressed about the +orre+tness of the "ie' in the +ase of Moh,. Sh+ i 3Supra6. %he doubts as +ategorised in paragraphs 2< and 2: of the referen+e order led to the framing of t'o .uestions b$ the said Ben+h 'hi+h are reprodu+ed hereunder? @3*6 Ahen the po'er under sub8se+tion 3*6 of Se+tion /*0 of the -ode of addition of a++used +an be e,er+ised b$ a -ourtB Ahether appli+ation under Se+tion /*0 is not maintainable unless the +ross8e,amination of the 'itness is +ompleteB 376 Ahat is the test and 'hat are the guidelines of e,er+ising po'er under sub8se+tion 3*6 of Se+tion /*0 of the -odeB Ahether su+h po'er +an be e,er+ised onl$ if the -ourt is satisfied that the a++used summoned in all li elihood 'ould be +on"i+tedB

Page 4

/.

%he referen+e 'as desired to be resol"ed b$ a three8

&udge Ben+h 'hereafter the same +ame up for +onsideration and "ide order dated :.*7.79**1 the -ourt opined that in "ie' of the referen+e made in the +ase of Dh+)+7 P+8 6 O)2. 3. St+t- o H+)4+/+ 6 A/).1 3799C6 */ S-- 01 the issues in"ol"ed being identi+al in nature1 the same should be resol"ed b$ a -onstitution Ben+h +onsisting of at least fi"e &udges. %he Ben+h felt that sin+e a three8&udge Ben+h has alread$ referred the matter of Dh+)+7 P+8 3Supra6 to a -onstitution Ben+h1 then in that e"ent it 'ould be appropriate that su+h o"erlapping issues should also be resol"ed b$ a Ben+h of similar strength.

C.

Referen+e made in the +ase of Dh+)+7 P+8 3Supra6 +ame

to be ans'ered in relation to the po'er of a -ourt of Sessions to in"o e Se+tion /*0 -r.P.-. at the stage of +ommittal of the +ase to a -ourt of Sessions. %he said referen+e 'as ans'ered b$ the -onstitution Ben+h in the +ase of Dh+)+7 P+8 6 O)2. 3. St+t- o H+)4+/+ 6 A/).1 A=R 79*/ S- /9*: Dhereinafter +alled EDh+)+7 P+8 "CB#5F1 'herein it 'as held that a -ourt of Sessions +an 'ith the aid of Se+tion *0/ -r.P.-. pro+eed to arra$ an$ other person and

Page 5

summon him for being tried e"en if the pro"isions of Se+tion /*0 -r.P.-. +ould not be pressed in ser"i+e at the stage of +ommittal. %hus1 after the referen+e 'as made b$ a three8&udge Ben+h in the present +ase1 the po'ers so far as the -ourt of Sessions is +on+erned1 to in"o e Se+tion /*0 -r.P.-. at the stage of +ommittal1 stood ans'ered finall$ in the aforesaid ba+ ground.

<.

On the +onsideration of the submissions raised and in "ie' of

'hat has been noted abo"e1 the follo'ing .uestions are to be ans'ered b$ this Ben+h? 3i6 Ahat is the stage at 'hi+h po'er under Se+tion /*0 -r.P.-. +an be e,er+isedB 3ii6 Ahether the 'ord Ge"iden+eG used in Se+tion /*03*6 -r.P.-. +ould onl$ mean e"iden+e tested b$ +ross8 e,amination or the +ourt +an e,er+ise the po'er under the said pro"ision e"en on the basis of the statement made in the e,amination8in8+hief of the 'itness +on+ernedB 3iii6 Ahether the 'ord Ge"iden+eG used in Se+tion /*03*6 -r.P.-. has been used in a +omprehensi"e sense and in+ludes the e"iden+e +olle+ted during in"estigation or the 'ord Ge"iden+eG is limited to the e"iden+e re+orded during trialB 3i"6 Ahat is the nature of the satisfa+tion re.uired to in"o e the po'er under Se+tion /*0 -r.P.-. to arraign an a++usedB Ahether the po'er under Se+tion /*03*6

Page 6

-r.P.-. +an be e,er+ised onl$ if the +ourt is satisfied that the a++used summoned 'ill in all li elihood +on"i+tedB 3"6 Hoes the po'er under Se+tion /*0 -r.P.-. e,tend to persons not named in the I=R or named in the I=R but not +harged or 'ho ha"e been dis+hargedB

J.

=n this referen+e 'hat 'e are primaril$ +on+erned 'ith1 is

the stage at 'hi+h su+h po'ers +an be in"o ed and1 se+ondl$1 the material on the basis 'hereof the in"o ing of su+h po'ers +an be justified. %o add as a +orollar$ to the same1 thirdl$1 the manner in 'hi+h su+h po'er has to be e,er+ised1 also has to be +onsidered.

2.

%he -onstitutional mandate under Arti+les 79 and 7* of the

-onstitution of =ndia1 *0<9 3hereinafter referred to as the E-onstitution56 pro"ides a prote+ti"e umbrella for the smooth administration of justi+e ma ing ade.uate pro"isions to ensure a fair and effi+a+ious trial so that the a++used does not get prejudi+ed after the la' has been put into motion to tr$ him for the offen+e but at the same time also gi"es e.ual prote+tion to "i+tims and to the so+iet$ at large to ensure that the guilt$ does not get a'a$ from the +lut+hes of la'. Ior the empo'erment of the +ourts to ensure that the +riminal administration of justi+e 'or s properl$1 the la' 'as appropriatel$

Page 7

+odified and modified b$ the legislature under the -r.P.-. indi+ating as to ho' the +ourts should pro+eed in order to ultimatel$ find out the truth so that an inno+ent does not get punished but at the same time1 the guilt$ are brought to boo under the la'. =t is these ideals as enshrined under the -onstitution and our la's that ha"e led to se"eral de+isions1 'hereb$ inno"ating methods and progressi"e tools ha"e been forged to find out the real truth and to ensure that the guilt$ does not go unpunished. %he presumption of inno+en+e is the general la' of the land as e"er$ man is presumed to be inno+ent unless pro"en to be guilt$.

:. Alternati"el$1 +ertain statutor$ presumptions in relation to +ertain +lass of offen+es ha"e been raised against the a++used 'hereb$ the presumption of guilt pre"ails till the a++used dis+harges his burden upon an onus being +ast upon him under the la' to pro"e himself to be inno+ent. %hese +ompeting theories ha"e been ept in mind b$ the legislature. %he entire effort1 therefore1 is not to allo' the real perpetrator of an offen+e to get a'a$ unpunished. %his is also a part of fair trial and in our opinion1 in order to a+hie"e this "er$ end that the legislature thought of in+orporating pro"isions of Se+tion /*0 -r.P.-.

Page 8

0.

=t is 'ith the said obje+t in mind that a +onstru+ti"e and

purposi"e interpretation should be adopted that ad"an+es the +ause of justi+e and does not dilute the intention of the statute +onferring po'ers on the +ourt to +arr$ out the abo"e mentioned a"o'ed obje+t and purpose to tr$ the person to the satisfa+tion of the +ourt as an a++ompli+e in the +ommission of the offen+e that is subje+t matter of trial.

*9.

=n order to ans'er the aforesaid .uestions posed1 it 'ill be

appropriate to refer to Se+tion /<* of the -riminal Pro+edure -ode1 *:0: 3hereinafter referred to as 4Old -ode561 'here an analogous pro"ision e,isted1 empo'ering the +ourt to summon an$ person other than the a++used if he is found to be +onne+ted 'ith the +ommission of the offen+e. Ho'e"er1 'hen the ne' -r.P.-. 'as being drafted1 regard 'as had to C*st Report of the Ka' -ommission 'here in the paragraphs 7C.:9 and 7C.:* re+ommendations 'ere made to ma e this pro"ision more +omprehensi"e. %he said re+ommendations read? @7C.:9 =t happens sometimes1 though not "er$ often1 that a Magistrate hearing a +ase against +ertain a++used finds from the e"iden+e that some person1 other than the a++used before him1 is also +on+erned in that "er$

Page 9

offen+e or in a +onne+ted offen+e. =t is proper that Magistrate should ha"e the po'er to +all and join him in pro+eedings. Se+tion /<* pro"ides for su+h a situation1 but onl$ if that person happens to be attending the -ourt. He +an then be detained and pro+eeded against. %here is no e,press pro"ision in Se+tion /<* for summoning su+h a person if he is not present in +ourt. Su+h a pro"ision 'ould ma e Se+tion /<* fairl$ +omprehensi"e1 and 'e thin it proper to e,pressl$ pro"ide for that situation. 7C.:* Se+tion /<* assumes that the Magistrate pro+eeding under it has the po'er of ta ing +ogniLan+e of the ne' +ase. =t does not1 ho'e"er1 sa$ in 'hat manner +ogniLan+e is ta en b$ the Magistrate. %he modes of ta ing +ogniLan+e are mentioned in Se+tion *091 and are apparentl$ e,hausti"e. %he .uestion is1 'hether against the ne'l$ added a++used1 +ogniLan+e 'ill be supposed to ha"e been ta en on the Magistrates o'n information under Se+tion *093*61 or onl$ in the manner in 'hi+h +ogniLan+e 'as first ta en of the offen+e against the a++used. %he .uestion is important1 be+ause the methods of in.uir$ and trial in the t'o +ases differ. About the true position under the e,isting la'1 there has been differen+e of opinion1 and 'e thin it should be made +lear. =t seems to us that the main purpose of this parti+ular pro"ision is that the 'hole +ase against all no'n suspe+ts should be pro+eeded 'ith e,peditiousl$ and +on"enien+e re.uires that +ogniLan+e against the ne'l$ added a++used should be ta en in the same manner against the other a++used. Ae1 therefore1 propose to re+ast Se+tion /<* ma ing it +omprehensi"e and pro"iding that there 'ill be no differen+e in the mode of ta ing +ogniLan+e if a ne' person is added as an a++used during the pro+eedings. =t is1 of +ourse1 ne+essar$ 3as is alread$ pro"ided6 that in su+h a situation

Page 10

the e"iden+e must he reheard in the presen+e of the ne'l$ added a++used.M

**.

Se+tion /*0 -r.P.-. as it e,ists toda$1 is .uoted hereunder? 9&1$ C).P.C. 'Po:-) to .)o;--, +0+i/2t oth-) .-)2o/2 +..-+)i/0 to <- 0=i8t4 o o -/;-.' 3*6 Ahere1 in the +ourse of an$ i/5=i)4 i/to1 or t)i+8 of1 an offen+e1 it +..-+)2 )o7 th- -3i,-/;- that an$ person not being the a++used has +ommitted an$ offen+e for 'hi+h su+h person +ould be tried together 'ith the a++used1 the Co=)t ma$ pro+eed against su+h person for the offen+e 'hi+h he appears to ha"e +ommitted. 376 Ahere su+h person is not attending the -ourt1 he ma$ be arrested or summoned1 as the +ir+umstan+es of the +ase ma$ re.uire1 for the purpose aforesaid. 3/6 An$ person attending the -ourt1 although not under arrest or upon a summons1 ma$ be detained b$ su+h -ourt for the purpose of the in.uir$ into1 or trial of1 the offen+e 'hi+h he appears to ha"e +ommitted. 3C6 Ahere the -ourt pro+eeds against an$ person under sub8se+tion 3*61 then8 3a6 the pro+eedings in respe+t of su+h person shall be +ommen+ed afresh1 and the 'itnesses re8heard> 3b6 subje+t to the pro"isions of +lause 3a61 the +ase ma$ pro+eed as if su+h person had been an a++used person 'hen the -ourt too +ogniLan+e of the offen+e upon 'hi+h the in.uir$ or trial 'as +ommen+ed.M

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*7.

Se+tion /*0 -r.P.-. springs out of the do+trine judex damnatur

cum nocens absolvitur 3&udge is +ondemned 'hen guilt$ is a+.uitted6 and this do+trine must be used as a bea+on light 'hile e,plaining the ambit and the spirit underl$ing the ena+tment of Se+tion /*0 -r.P.-. =t is the dut$ of the -ourt to do justi+e b$ punishing the real +ulprit. Ahere the in"estigating agen+$ for an$ reason does not arra$ one of the real +ulprits as an a++used1 the +ourt is not po'erless in +alling the said a++used to fa+e trial. %he .uestion remains under 'hat +ir+umstan+es and at 'hat stage should the +ourt e,er+ise its po'er as +ontemplated in Se+tion /*0 -r.P.-.B %he submissions that 'ere raised before us +o"ered a "er$ 'ide +an"as and the learned +ounsel ha"e ta en us through "arious pro"isions of -r.P.-. and the judgments that ha"e been relied on for the said purpose. %he +ontro"ers$ +enters around the stage at 'hi+h su+h po'ers +an be in"o ed b$ the +ourt and the material on the basis 'hereof su+h po'ers +an be e,er+ised.

*/.

=t 'ould be ne+essar$ to put on re+ord that the po'er +onferred

under Se+tion /*0 -r.P.-. is onl$ on the +ourt.

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%his has to be understood in the +onte,t that Se+tion /*0 -r.P.-. empo'ers onl$ the +ourt to pro+eed against su+h person. %he 'ord @+ourtM in our hierar+h$ of +riminal +ourts has been defined under Se+tion J -r.P.-.1 'hi+h in+ludes the -ourts of Sessions1 &udi+ial Magistrates1 Metropolitan Magistrates as 'ell as N,e+uti"e Magistrates. %he -ourt of Sessions is defined in Se+tion 0 -r.P.-. and the -ourts of &udi+ial Magistrates has been defined under Se+tion ** thereof. %he -ourts of Metropolitan Magistrates has been defined under Se+tion *J -r.P.-. %he +ourts 'hi+h +an tr$ offen+es +ommitted under the =ndian Penal -ode1 *:J9 or an$ offen+e under an$ other la'1 ha"e been spe+ified under Se+tion 7J -r.P.-. read 'ith Iirst S+hedule. %he e,planator$ note 376 under the heading of @-lassifi+ation of Offen+esM under the Iirst S+hedule spe+ifies the e,pression Emagistrate of first +lass5 and Ean$ magistrate5 to in+lude Metropolitan Magistrates 'ho are empo'ered to tr$ the offen+es under the said S+hedule but e,+ludes N,e+uti"e Magistrates.

*C.

=t is at this stage the +omparison of the 'ords used under

Se+tion /*0 -r.P.-. has to be understood distin+ti"el$ from the 'ord used under Se+tion 73g6 defining an in.uir$ other than the trial b$ a

Page 13

magistrate or a +ourt. Here the legislature has used t'o 'ords1 namel$ the magistrate or +ourt1 'hereas under Se+tion /*0 -r.P.-.1 as indi+ated abo"e1 onl$ the 'ord @+ourtM has been re+ited. %his has been done b$ the legislature to emphasise that the po'er under Se+tion /*0 -r.P.-. is e,er+isable onl$ b$ the +ourt and not b$ an$ offi+er not a+ting as a +ourt. %hus1 the magistrate not fun+tioning or e,er+ising po'ers as a +ourt +an ma e an in.uir$ in parti+ular pro+eeding other than a trial but the material so +olle+ted 'ould not be b$ a +ourt during the +ourse of an in.uir$ or a trial. %he +on+lusion therefore1 in short1 is that in order to in"o e the po'er under Se+tion /*0 -r.P.-.1 it is onl$ a -ourt of Sessions or a -ourt of Magistrate performing the duties as a +ourt under the -r.P.-. that +an utilise the material before it for the purpose of the said Se+tion.

*<.

Se+tion /*0 -r.P.-. allo's the +ourt to pro+eed against an$

person 'ho is not an a++used in a +ase before it. %hus1 the person against 'hom summons are issued in e,er+ise of su+h po'ers1 has to ne+essaril$ not be an a++used alread$ fa+ing trial. He +an either be a person named in -olumn 7 of the +hargesheet filed under Se+tion *2/ -r.P.-. or a person 'hose name has been dis+losed in an$ material

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before the +ourt that is to be +onsidered for the purpose of tr$ing the offen+e1 but not in"estigated. He has to be a person 'hose +ompli+it$ ma$ be indi+ated and +onne+ted 'ith the +ommission of the offen+e.

*J.

%he legislature +annot be presumed to ha"e imagined all the

+ir+umstan+es and1 therefore1 it is the dut$ of the +ourt to gi"e full effe+t to the 'ords used b$ the legislature so as to en+ompass an$ situation 'hi+h the +ourt ma$ ha"e to ta+ le 'hile pro+eeding to tr$ an offen+e and not allo' a person 'ho deser"es to be tried to go s+ot free b$ being not arraigned in the trial in spite of possibilit$ of his +ompli+it$ 'hi+h +an be gathered from the do+uments presented b$ the prose+ution.

*2.

%he +ourt is the sole repositor$ of justi+e and a dut$ is +ast

upon it to uphold the rule of la' and1 therefore1 it 'ill be inappropriate to den$ the e,isten+e of su+h po'ers 'ith the +ourts in our +riminal justi+e s$stem 'here it is not un+ommon that the real a++used1 at times1 get a'a$ b$ manipulating the in"estigating andOor the prose+uting agen+$. %he desire to a"oid trial is so strong that an a++used ma es efforts at times to get himself absol"ed e"en at the

Page 15

stage of in"estigation or in.uir$ e"en though he ma$ be +onne+ted 'ith the +ommission of the offen+e.

*:. -oming to the stage at 'hi+h po'er under Se+tion /*0 -r.P.-. +an be e,er+ised1 in Dh+)+7 P+8 3Supra61 this -ourt had noti+ed the +onfli+t in the de+isions of >i2h=/ Si/0h 6 O)2 3. St+t- o Bih+) 1 3*00/6 7 S-- *J and R+/?it Si/0h 3. St+t- o P=/?+<* A=R *00: S/*C:1 and referred the matter to the -onstitution Ben+h. Ho'e"er1 'hile referring the matter to a -onstitution Ben+h1 this -ourt affirmed the judgment in >i2h=/ Si/0h 3Supra6 and doubted the +orre+tness of the judgment in R+/?it Si/0h 3Supra6. =n R+/?it Si/0h 3Supra61 this -ourt obser"ed that from the stage of +ommittal till the Sessions -ourt rea+hes the stage indi+ated in Se+tion 7/9 -r.P.-.1 that +ourt +an deal 'ith onl$ the a++used referred to in Se+tion 790 -r.P.-. and there is no intermediar$ stage till then for the Sessions -ourt to add an$ other person to the arra$ of the a++used1 'hile in >i2h=/ Si/0h 3Supra61 this -ourt +ame to the +on+lusion that e"en the Sessions -ourt has po'er under Se+tion *0/ -r.P.-. to ta e +ogniLan+e of the offen+e and summon other persons 'hose +ompli+it$ in the +ommission of the trial +an prima facie be gathered from the materials

Page 16

a"ailable on re+ord and need not 'ait till the stage of Se+tion /*0 -r.P.-. is rea+hed. %his -ourt in Dh+)+7 P+8 3Supra6 held that the effe+t of R+/?it Si/0h 3Supra6 'ould be that in less serious offen+es triable b$ a Magistrate1 the said -ourt 'ould ha"e the po'er to pro+eed against those 'ho are mentioned in -olumn 7 of the +harge8 sheet1 if on the basis of material on re+ord1 the Magistrate disagrees 'ith the +on+lusion rea+hed b$ the poli+e1 but1 as far as serious offen+es triable b$ the -ourt of Sessions are +on+erned1 that +ourt 'ill ha"e to 'ait till the stage of Se+tion /*0 -r.P.-. is rea+hed.

*0.

At the "er$ outset1 'e ma$ e,plain that the issue that 'as being

+onsidered b$ this -ourt in Dh+)+7 P+8 3-B61 'as the e,er+ise of su+h po'er +t th- 2t+0- o ;o77itt+8 o + ;+2- and the +ourt held that e"en if Se+tion /*0 -r.P.-. +ould not be in"o ed at that stage1 Se+tion *0/ -r.P.-. +ould be in"o ed for the said purpose. Ae are not del"ing into the said issue 'hi+h had been ans'ered b$ the fi"e8&udge Ben+h of this -ourt. Ho'e"er1 'e ma$ +larif$ that the opening 'ords of Se+tion *0/ -r.P.-. +ategori+all$ re+ite that the po'er of the -ourt of Sessions to ta e +ogniLan+e 'ould +ommen+e onl$ after +ommittal of the +ase b$ a magistrate. %he said pro"ision opens 'ith a non8

Page 17

obstante +lause @e,+ept as other'ise e,pressl$ pro"ided b$ this +ode or b$ an$ other la' for the time being in for+eM. %he Se+tion therefore is +larified b$ the said opening 'ords 'hi+h +learl$ means that if there is an$ other pro"ision under -r.P.-.1 e,pressl$ ma ing a pro"ision for e,er+ise of po'ers b$ the +ourt to ta e +ogniLan+e1 then the same 'ould appl$ and the pro"isions of Se+tion *0/ -r.P.-. 'ould not be appli+able.

79.

=n our opinion1 Se+tion /*0 -r.P.-. is an enabling pro"ision

empo'ering the +ourt to ta e appropriate steps for pro+eeding against an$ person not being an a++used for also ha"ing +ommitted the offen+e under trial. =t is this part 'hi+h is under referen+e before this -ourt and therefore in our opinion1 'hile ans'ering the .uestion referred to herein1 'e do not find an$ +onfli+t so as to del"e upon the situation that 'as dealt b$ this -ourt in Dh+)+7 P+8 3-B6.

7*.

=n E8+;h=)i !-/1+t+;hi//+44+ 6 O)2. 3. >i/0'E7.-)o)

3*0796 =KR C/ Mad <**1 this -ourt held that an in.uir$ is a stage before the +ommittal to a higher +ourt. =n fa+t1 from a +areful reading of the judgments under referen+e i.e. R+/?it Si/0h 3Supra6 and

Page 18

>i2h=/ Si/0h 3Supra61 it emerges that there is no dispute e"en in these t'o +ases that the stage of +ommittal is neither an in.uir$ nor a trial1 for in both the +ases1 the real dispute 'as 'hether Se+tion *0/ -r.P.-. +an be in"o ed at the time of +ommittal to summon an a++used to fa+e trial 'ho is not alread$ an a++used. =t +an safel$ be said that both the +ases are in harmon$ as to the said stage neither being a stage of in.uir$ nor a trial.

77.

On+e the aforesaid stand is +larified in relation to the stage of

+ommittal before the -ourt of Sessions1 the ans'er to the .uestion posed no'1 stands fo+ussed onl$ on the stage at 'hi+h su+h po'ers +an be e,er+ised b$ the +ourt other than the stage of +ommittal and the material on the basis 'hereof su+h po'ers +an be in"o ed b$ the +ourt. @=-2tio/ No."i# Ahat is the stage at 'hi+h po'er under Se+tion /*0 -r.P.-. +an be e,er+isedB

7/.

%he stage of in.uir$ and trial upon +ogniLan+e being ta en of

an offen+e1 has been +onsidered b$ a large number of de+isions of this -ourt and that it ma$ be useful to e,tra+t the same hereunder for proper appre+iation of the stage of in"o ing of the po'ers under
1

Page 19

Se+tion /*0 -r.P.-. to understand the meaning that +an be attributed to the 'ord Ein.uir$5 and Etrial5 as used under the Se+tion.

7C.

=n R+0h=<+/2 D=<-4 3. St+t- o Bih+) 1 A=R *0J2 S- **J21

this -ourt held ? once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons !he summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence "

7<.

%he stage of in.uir$ +ommen+es1 insofar as the +ourt is

+on+erned1 'ith the filing of the +harge8sheet and the +onsideration of the material +olle+ted b$ the prose+ution1 that is mentioned in the +harge8sheet for the purpose of tr$ing the a++used. %his has to be understood in terms of Se+tion 73g6 -r.P.-.1 'hi+h defines an in.uir$ as follo's? @73g6 @in.uir$M means e"er$ in.uir$1 other than a trial1 +ondu+ted under this -ode b$ a Magistrate or -ourt.M

Page 20

7J.

=n St+t- o U.P. 3. L+12h7i B)+h7+/ 6 A/).* A=R *0:/ S-

C/01 this -ourt held that from the stage of filing of +harge8sheet to ensuring the +omplian+e of pro"ision of Se+tion 792 -r.P.-.1 the +ourt is onl$ at the stage of in.uir$ and no trial +an be said to ha"e +ommen+ed. %he abo"e "ie' has been held to be per in+urium in R+? >i2ho)- P)+2+, 3. St+t- o Bih+) 6 A/).* A=R *00J S- *0/*1 'herein this -ourt 'hile obser"ing that Se+tion /*0 3*6 -r.P.-. operates in an ongoing in.uir$ into1 or trial of1 an offen+e1 held that at the stage of Se+tion 790 -r.P.-.1 the +ourt is neither at the stage of in.uir$ nor at the stage of trial. N"en at the stage of ensuring +omplian+e of Se+tions 792 and 79: -r.P.-.1 it +annot be said that the +ourt is at the stage of in.uir$ be+ause there is no judi+ial appli+ation of mind and all that the Magistrate is re.uired to do is to ma e the +ase read$ to be heard b$ the -ourt of Sessions.

72.

%rial is distin+t from an in.uir$ and must ne+essaril$ su++eed it.

%he purpose of the trial is to fasten the responsibilit$ upon a person on the basis of fa+ts presented and e"iden+e led in this behalf. =n Mo84 6 A/). 3. St+t- o >-)+8+* A=R 799C S- *:09, this -ourt obser"ed that though the 'ord Etrial5 is not defined in the -ode1 it is +learl$

Page 21

distinguishable from in.uir$. =n.uir$ must al'a$s be a forerunner to the trial. A three8&udge Ben+h of this -ourt in Th- St+t- o Bih+) 3. R+7 N+)-2h P+/,-4 6 A/).1 A=R *0<2 S- /:0 held? !he words #tried# and #trial# appear to have no fixed or universal meaning $o doubt, in %uite a number of sections in the &ode to which our attention has been drawn the words #tried# and 'trial' have been used in the sense of reference to a stage after the inquiry That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. !hey are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration " 3Nmphasis added6

7:.

=n R+ti8+8 Bh+/?i Mith+/i 3. St+t- o M+h+)+2ht)+ 6 O)2 .1

A=R *020 S- 0C1 this -ourt held ? 'nce a charge is framed, the Magistrate has no power under (ection ))* or any other provision of the &ode to cancel the charge, and reverse the proceedings to the stage of (ection )+, and discharge the accused The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry. -fter the framing of charge if the accused pleads not guilty, the Magistrate is re%uired to proceed with the trial in the manner provided in (ections )+. to )+/ to a logical end " 3Nmphasis added6

Page 22

70.

=n !.C. Sh=18+ 3. St+t- th)o=0h C.B.I .1 A=R *0:9 S- 0J71

this -ourt held? !he proceedings starting with (ection ),/ of the &ode including any discharge or framing of charges under (ection ),0 or ).1 amount to a trial"

/9.

=n U/io/ o I/,i+ 6 O)2. 3. M+?o) (-/-)+8 M+,+/ L+8

A+,+3 "R-t,.#1 A=R *00J S- */C91 a three8&udge Ben+h 'hile dealing 'ith the pro+eedings in !eneral -ourt Martial under the pro"isions of the Arm$ A+t *0<91 applied legal ma,im @n ullus commodum capere potest de injuria sua propria" 2no one can take advantage of his own wrong31 and referred to "arious di+tionar$ meanings of the 'ord Etrial5 and +ame to the +on+lusion? 4t would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. 3Nmphasis supplied6 5 5 5 5 'ur conclusion further gets fortified by the scheme of the trial of a criminal case under the &ode of &riminal 6rocedure, 70*,, viz , &hapter 548 &onditions

Page 23

re%uisite for initiation of proceedings" containing (ections 701 to )71, &hapter 58444 containing (ections ))+ to ),+ and dealing with trial before a &ourt of (essions" pursuant to committal order under (ection )10 and in &hapter 545 trial of warrant cases by Magistrates" containing (ections ),/ to )+1 etc 4t is settled law that under the said &ode trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc 9%ually, at a sessions trial, the court considers the committal order under (ection )10 by the Magistrate and proceeds further 4t takes cognizance of the offence from that stage and proceeds with the trial The trial begins with the taking of the cogni ance of the offence and taking further steps to conduct the trial." 3Nmphasis supplied6

/*.

=n @Co77o/ C+=2-B* A R-0i2t-)-, So;i-t4 th). it2 Di)-;to)

3. U/io/ o I/,i+ 6 O)2. 1 A=R *002 S- *</01 this -ourt 'hile dealing 'ith the issue held? 2i3 4n case of trials before (essions &ourt the trials shall be treated to have commenced when charges are framed under !ection ""# of the Code of Criminal $rocedure, %&'( in the concerned cases 2ii34n cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under (ection ).1 of the &ode of &riminal 6rocedure, 70*,, while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the concerned

Page 24

accused under (ection ).: of the &ode of &riminal 6rocedure, 70*, 2iii3 4n cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under (ection )+7 whether they plead guilty or have any defence to make " 3Nmphasis added6

/7.

=n R+? >i2ho)- P)+2+, 3Supra61 this -ourt said that as soon as

the prose+utor is present before the +ourt and that +ourt hears the parties on )+7i/0 o ;h+)0-2 +/, ,i2;h+)0-1 trial is said to ha"e +ommen+ed and that there is no intermediate stage bet'een +ommittal of +ase and framing of +harge.

//.

=n I/ R-C N+)+4+/+2:+74 N+i,= 3. U/1/o:/ * =nd -as 77:1

a Iull Ben+h of the Madras High -ourt held that !rial begins when the accused is charged and called on to answer and then the %uestion before the &ourt is whether the accused is to be ac%uitted or convicted and not whether the complaint is to be dismissed or the accused discharged " A similar "ie' has been ta en b$ Madras High -ourt subse.uentl$ in S)i)+7=8= 3. !--)+2+8i/0+7* 3*0*C6 =.K.R. /: Mad. <:<.
2

Page 25

/C.

Ho'e"er1 the Bomba$ High -ourt in D+0,= (o3i/,2h-t W+/i

3. P=/?+ !-,= W+/i 3*0/J6 /: Bom.K.R. **:0 referring to S)i)+7=8= 3Supra6 held ? @!here is no doubt that the &ourt did take the view that in a warrant case the trial only commences from the framing of the charge ;ut, according to my experience of the administration of criminal justice in this 6residency, which is not inconsiderable, the &ourts here have always accepted the definition of trial which has been given in )omer !irda v. *ueen+,mpress, 27/0/3 4 < = )+ &al /:,, that is to say, trial has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the ;ench, the accused in the dock and the representatives of the prosecution and, defence, if the accused be defended, present in &ourt for the hearing of the case M

A similar "ie' has been ta en b$ the Kahore High -ourt in S+hi< Di/ 3. Th- C)o:/* 3*0776 =.K.R. / Kah. **<1 'herein it 'as held that for the purposes of Se+tion /<9 of the -ode1 a trial +annot be said to +ommen+e onl$ 'hen a +harge is framed. %he trial +o"ers the 'hole of the pro+eedings in a 'arrant +ase. %his +ase 'as follo'ed in F+1h)=,,i/ 3. Th- C)o:/* 3*07C6 =.K.R. J Kah. *2J> and in L+<h2i/0 3. E7.-)o)* 3*0/C6 /< -r.K. &. *7J*.

Page 26

/<.

=n "ie' of the abo"e1 the la' +an be summarised to the effe+t

that as Etrial5 means determination of issues adjudging the guilt or the inno+en+e of a person1 the person has to be a'are of 'hat is the +ase against him and it is onl$ at the stage of framing of the +harges that the +ourt informs him of the same1 the Etrial5 +ommen+es onl$ on +harges being framed. %hus1 'e do not appro"e the "ie' ta en b$ the +ourts that in a +riminal +ase1 trial +ommen+es on +ogniLan+e being ta en.

/J.

Se+tion 73g6 -r.P.-. and the +ase la's referred to abo"e1

therefore1 +learl$ en"isage in.uir$ before the a+tual +ommen+ement of the trial1 and is an a+t +ondu+ted under -r.P.-. b$ the Magistrate or the +ourt. %he 'ord Ein.uir$5 is1 therefore1 not an$ in.uir$ relating to the in"estigation of the +ase b$ the in"estigating agen+$ but is an in.uir$ after the +ase is brought to the noti+e of the +ourt on the filing of the +harge8sheet. %he +ourt +an thereafter pro+eed to ma e

in.uiries and it is for this reason that an in.uir$ has been gi"en to mean something other than the a+tual trial.

Page 27

/2.

N"en the 'ord @+ourseM o++urring in Se+tion /*0 -r.P.-.1

+learl$ indi+ates that the po'er +an be e,er+ised onl$ during the period 'hen the in.uir$ has been +ommen+ed and is going on or the trial 'hi+h has +ommen+ed and is going on. =t +o"ers the entire 'ide range of the pro+ess of the pre8trial and the trial stage. %he 'ord @+ourseM therefore1 allo's the +ourt to in"o e this po'er to pro+eed against an$ person from the initial stage of in.uir$ upto the stage of the +on+lusion of the trial. %he +ourt does not be+ome functus officio e"en if +ogniLan+e is ta en so far as it is loo ing into the material .ua an$ other person 'ho is not an a++used. %he 'ord @+ourseM ordinaril$ +on"e$s a meaning of a +ontinuous progress from one point to the ne,t in time and +on"e$s the idea of a period of time> duration and not a fi,ed point of time. 3See? Co77i22io/-) o I/;o7-'t+D* N-: D-8hi "No: R+?+2th+/# 3. ME2. E+2t W-2t I7.o)t 6 ED.o)t "P# Lt,. "No: 1/o:/ +2 A2i+/ Di2t)i<=to)2 Lt,.# J+i.=)* A=R *0:0 S:/J6.

/:.

=n a some'hat similar manner1 it has been attributed to 'ord

@+ourseM the meaning of being a gradual and +ontinuous flo' ad"an+ed b$ journe$ or passage from one pla+e to another 'ith

Page 28

referen+e to period of time 'hen the mo"ement is in progress. 3See? St+t- o T)+3+/;o)-'Co;hi/ 6 O)2. 3. Sh+/7=0h+ !i8+2

C+2h-:/=t F+;to)4* @=i8o/1 A=R *0</ S- ///6.

/0.

%o sa$ that po'ers under Se+tion /*0 -r.P.-. +an be e,er+ised

onl$ during trial 'ould be redu+ing the impa+t of the 'ord Ein.uir$5 b$ the +ourt. =t is a settled prin+iple of la' that an interpretation 'hi+h leads to the +on+lusion that a 'ord used b$ the legislature is redundant1 should be a"oided as the presumption is that the legislature has deliberatel$ and +ons+iousl$ used the 'ords for +arr$ing out the purpose of the A+t. %he legal ma,im >- 8erbis <egis $on 9st =ecedendum> 'hi+h means, >from the 'ords of la'1 there must be no departureG has to be ept in mind.

C9.

%he +ourt +annot pro+eed 'ith an assumption that the

legislature ena+ting the statute has +ommitted a mista e and 'here the language of the statute is plain and unambiguous1 the +ourt +annot go behind the language of the statute so as to add or subtra+t a 'ord pla$ing the role of a politi+al reformer or of a 'ise +ounsel to the legislature. %he +ourt has to pro+eed on the footing that the

Page 29

legislature intended 'hat it has said and e"en if there is some defe+t in the phraseolog$ et+.1 it is for others than the +ourt to remed$ that defe+t. %he statute re.uires to be interpreted 'ithout doing an$ "iolen+e to the language used therein. %he +ourt +annot re8'rite1 re+ast or reframe the legislation for the reason that it has no po'er to legislate.

C*.

;o 'ord in a statute has to be +onstrued as surplusage. ;o 'ord

+an be rendered ineffe+ti"e or purposeless. -ourts are re.uired to +arr$ out the legislati"e intent full$ and +ompletel$. Ahile +onstruing a pro"ision1 full effe+t is to be gi"en to the language used therein1 gi"ing referen+e to the +onte,t and other pro"isions of the Statute. B$ +onstru+tion1 a pro"ision should not be redu+ed to a @dead letterM or @useless lumberM. An interpretation 'hi+h renders a pro"ision an otiose should be a"oided other'ise it 'ould mean that in ena+ting su+h a pro"ision1 the legislature 'as in"ol"ed in @an e,er+ise in futilit$M and the produ+t +ame as a @purposeless pie+eM of legislation and that the pro"ision had been ena+ted 'ithout an$ purpose and the entire e,er+ise to ena+t su+h a pro"ision 'as @most un'arranted besides being un+haritable.M 3Vide? P+t-8 Ch=/i<h+i D+?i<h+ -t;. 3.

Page 30

N+)+4+/)+o >h+/,-)+o J+7<-1+) 6 A/). 1 A=R *0J< S- *C<2> Th- M+)ti/ B=)/ Lt,. 3. Th- Co).o)+tio/ o C+8;=tt+* A=R *0JJ S- <70> M.!. E8i2+<-th 6 O)2. 3. H+):+/ I/3-2t7-/t 6 T)+,i/0 P3t. Lt,. H+/o-1+) Ho=2-* S:+to/t+.-th* !+2;o'D-'(+7+* (o+* A=R *00/ S- *9*C> S=8t+/+ B-0=7 3. P)-7 Ch+/, J+i/1 A=R *002 S- *99J> St+t- o Bih+) 6 O)2. -t;.-t;. 3. Bih+) Di2ti88-)4 Lt,. -t;. -t;.* A=R *002 S- *<**> I/2tit=t- o Ch+)t-)-, A;;o=/t+/t2 o I/,i+ 3. ME2. P)i;- W+t-)ho=2- 6 A/).1 A=R *00: S- 2C> and ThSo=th C-/t)+8 R+i8:+4 E7.8o4--2 Co'o.-)+ti3- C)-,it So;i-t4 E7.8o4--2 U/io/* S-;=/,)+<+, 3. Th- R-0i2t)+) o Co'o.-)+ti3So;i-ti-2 6 O)2.1 A=R *00: S- 29/6.

C7.

%his -ourt in Rohit+2h >=7+) 6 O)2. 3. O7 P)+1+2h

Sh+)7+ 6 O)2.1 A=R 79*/ S- /91 after pla+ing relian+e on "arious earlier judgments of this -ourt held? !he &ourt has to keep in mind the fact that, while interpreting the provisions of a (tatute, it can neither add, nor subtract even a single word - section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof !he &ourt cannot proceed with the assumption that the legislature, while enacting the (tatute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is
3

Page 31

not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the -ct!he (tatute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was !he &ourts have to administer the law as they find it, and it is not permissible for the &ourt to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause under the garb of interpreting the provision, the &ourt does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation " %hus1 b$ no means it +an be said that pro"isions of Se+tion /*0 -r.P.-. +annot be pressed into ser"i+e during the +ourse of Ein.uir$5. %he 'ord Ein.uir$5 is not surpulsage in the said pro"ision. C/. Sin+e after the filing of the +harge8sheet1 the +ourt rea+hes the

stage of in.uir$ and as soon as the +ourt frames the +harges1 the trial +ommen+es1 and therefore1 the po'er under Se+tion /*03*6 -r.P.-. +an be e,er+ised at an$ time after the +harge8sheet is filed and before the pronoun+ement of judgment1 e,+ept during the stage of Se+tion 792O79: -r.P.-.1 +ommittal et+.1 'hi+h is onl$ a pre8trial stage1 intended to put the pro+ess into motion. %his stage +annot be said to

Page 32

be a judi+ial step in the true sense for it onl$ re.uires an appli+ation of mind rather than a judi+ial appli+ation of mind.

CC.

At this pre8trial stage1 the Magistrate is re.uired to perform a+ts rather than judi+ial su+h as

in the nature of administrati"e 'or

ensuring +omplian+e of Se+tions 792 and 79: -r.P.-.1 and +ommitting the matter if it is e,+lusi"el$ triable b$ Sessions -ourt. %herefore1 it 'ould be legitimate for us to +on+lude that the Magistrate at the stage of Se+tions 792 to 790 -r.P.-. is forbidden1 b$ e,press pro"ision of Se+tion /*0 -r.P.-.1 to appl$ his mind to the merits of the +ase and determine as to 'hether an$ a++used needs to be added or subtra+ted to fa+e trial before the -ourt of Sessions. C<. =t ma$ be pertinent to refer to the de+ision in the

+ase of R+? >i2ho)- P)+2+, 3supra6 'here1 in order to a"oid an$ dela$ in trial1 the +ourt emphasised that su+h a po'er should be e,er+ised eeping in "ie' the +onte,t in 'hi+h the 'ords @in.uir$M and @trialM ha"e been used under Se+tion /*0 -r.P.-. and +ame to the +on+lusion that su+h a po'er is not a"ailable at the pre8trial stage and should be in"o ed onl$ at the stage of in.uir$ or after e"iden+e is re+orded.
3

Page 33

CJ.

A t'o8&udge Ben+h of this -ourt in ME2. SWIL

Lt,. 3. St+t- o D-8hi 6 A/).* A=R 799* S- 72C21 held that on+e the pro+ess has been issued1 po'er under Se+tion /*0 -r.P.-. +annot be e,er+ised as at that stage1 sin+e it is neither an in.uir$ nor a trial. =n R+/?it Si/0h 3Supra61 the -ourt held ? (o from the stage of committal till the (essions &ourt reaches the stage indicated in (ection ),1 of the &ode, that court can deal with only the accused referred to in (ection )10 of the &ode !here is no intermediary stage till then for the (essions &ourt to add any other person to the array of the accused !hus, once the (essions &ourt takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under (ection ,70 of the &ode can be invoked"

C2.

=n >i2h=/ Si/0h 3Supra6* the -ourt 'hile +onsidering the

pro"ision of the old -ode1 the Ka' -ommission5s Re+ommendation and the pro"isions in the -r.P.-.1 held that Se+tion /*0 -r.P.-. is an impro"ed pro"ision upon the earlier one. =t has remo"ed the diffi+ult$ of ta ing +ogniLan+e as +ogniLan+e against the added person 'ould be deemed to ha"e been ta en as originall$ against the other +o8a++used. %herefore1 on Magistrate +ommitting the +ase under Se+tion 790 -r.P.-. to the -ourt of Sessions1 the bar of Se+tion *0/ -r.P.-. gets
3

Page 34

lifted thereb$ in"esting the -ourt of Sessions +omplete and unfettered jurisdi+tion of the +ourt of original jurisdi+tion to ta e +ogniLan+e of the offen+e 'hi+h 'ould in+lude the summoning of the person or persons 'hose +ompli+it$ in the +ommission of the +rime +an prima facie be gathered from the material a"ailable on re+ord1 though 'ho is not an a++used before the +ourt.

C:.

=n Dh+)+7 P+8 3-B61 the -onstitution Ben+h appro"ed the

de+ision in >i2h=/ Si/0h 3Supra6 that the Sessions &udge has original po'er to summon a++used holding that @ the (essions ?udge was entitled to issue summons under (ection 70, &ode of &riminal 6rocedure upon the case being committed to him by the Magistrate !he key words in (ection 70, are that >no &ourt of (ession shall take cognizance of any offence as a &ourt of original jurisdiction unless the case has been committed to it by a Magistrate under this &ode > !he above provision entails that a case must, first of all, be committed to the &ourt of (ession by the Magistrate !he second condition is that only after the case had been committed to it, could the &ourt of (ession take cognizance of the offence exercising original jurisdiction -lthough, an attempt has been made to suggest that the

Page 35

cognizance indicated in (ection 70, deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of (ection 70, that the &ourt of (ession may take cognizance of the offences under the said (ectionM

C0.

=t is thus aptl$ +lear that until and unless the +ase rea+hes the

stage of in.uir$ or trial b$ the +ourt1 the po'er under Se+tion /*0 -r.P.-. +annot be e,er+ised. =n fa+t1 this proposition does not seem to ha"e been disturbed b$ the -onstitution Ben+h in Dh+)+7 P+8 3-B6. %he dispute therein 'as resol"ed "isualiLing a situation 'herein the +ourt 'as +on+erned 'ith pro+edural dela$ and 'as of the opinion that the Sessions -ourt should not ne+essaril$ 'ait till the stage of Se+tion /*0 -r.P.-. is rea+hed to dire+t a person1 not fa+ing trial1 to appear and fa+e trial as an a++used. Ae are in full agreement 'ith the interpretation gi"en b$ the -onstitution Ben+h that Se+tion *0/ -r.P.-. +onfers po'er of original jurisdi+tion upon the Sessions -ourt to add an a++used on+e the +ase has been +ommitted to it.

<9.

=n our opinion1 the stage of in.uir$ does not +ontemplate an$

e"iden+e in its stri+t legal sense1 nor the legislature +ould ha"e
3

Page 36

+ontemplated this inasmu+h as the stage for e"iden+e has not $et arri"ed. %he onl$ material that the +ourt has before it is the material +olle+ted b$ the prose+ution and the +ourt at this stage prima facie +an appl$ its mind to find out as to 'hether a person1 'ho +an be an a++used1 has been erroneousl$ omitted from being arraigned or has been deliberatel$ e,+luded b$ the prose+uting agen+ies. %his is all the more ne+essar$ in order to ensure that the in"estigating and the prose+uting agen+ies ha"e a+ted fairl$ in bringing before the +ourt those persons 'ho deser"e to be tried and to pre"ent an$ person from being deliberatel$ shielded 'hen the$ ought to ha"e been tried. %his is ne+essar$ to usher faith in the judi+ial s$stem 'hereb$ the +ourt should be empo'ered to e,er+ise su+h po'ers e"en at the stage of in.uir$ and it is for this reason that the legislature has +ons+iousl$ used separate terms1 namel$1 in.uir$ or trial in Se+tion /*0 -r.P.-. A++ordingl$1 'e hold that the +ourt +an e,er+ise the po'er under Se+tion /*0 -r.P.-. onl$ after the trial pro+eeds and +ommen+es 'ith the re+ording of the e"iden+e and also in e,+eptional +ir+umstan+es as e,plained herein abo"e.

Page 37

<*.

%here is $et another set of pro"isions 'hi+h form part of

in.uir$ rele"ant for the purposes of Se+tion /*0 -r.P.-. i.e. pro"isions of Se+tions 7991 79*1 7971 et+. -r.P.-. appli+able in the +ase of -omplaint -ases. As has been dis+ussed herein1 e"iden+e means e"iden+e addu+ed before the +ourt. -omplaint -ases is a distin+t +ategor$ of +riminal trial 'here some sort of e"iden+e in the stri+t legal sense of Se+tion / of the N"iden+e A+t *:271 3hereinafter referred to as the EN"iden+e A+t56 +omes before the +ourt. %here does not seem to be an$ restri+tion in the pro"isions of Se+tion /*0 -r.P.-. so as to pre+lude su+h e"iden+e as +oming before the +ourt in -omplaint -ases e"en before +harges ha"e been framed or the pro+ess has been issued. But at that stage as there is no a++used before the -ourt1 su+h e"iden+e +an be used onl$ to +orroborate the e"iden+e re+orded during the trial for the purpose of Se+tion /*0 -r.P.-.1 if so re.uired. <7. Ahat is essential for the purpose of the se+tion is that there

should appear some e"iden+e against a person not pro+eeded against and the stage of the pro+eedings is irrele"ant. Ahere the +omplainant is +ir+umspe+t in pro+eeding against se"eral persons1 but the +ourt is of the opinion that there appears to be some e"iden+e pointing to the
3

Page 38

+ompli+it$ of some other persons as 'ell1 Se+tion /*0 -r.P.-. a+ts as an empo'ering pro"ision enabling the +ourtOMagistrate to initiate pro+eedings against su+h other persons. %he purpose of Se+tion /*0 -r.P.-. is to do +omplete justi+e and to ensure that persons 'ho ought to ha"e been tried as 'ell are also tried. %herefore1 there does not appear to be an$ diffi+ult$ in in"o ing po'ers of Se+tion /*0 -r.P.-. at the stage of trial in a +omplaint +ase 'hen the e"iden+e of the +omplainant as 'ell as his 'itnesses is being re+orded.

</.

%hus1 the appli+ation of the pro"isions of Se+tion /*0 -r.P.-.1

at the stage of in.uir$ is to be understood in its +orre+t perspe+ti"e. %he po'er under Se+tion /*0 -r.P.-. +an be e,er+ised onl$ on the basis of the e"iden+e addu+ed before the +ourt during a trial. So far as its appli+ation during the +ourse of in.uir$ is +on+erned1 it remains limited as referred to hereinabo"e1 adding a person as an a++used1 'hose name has been mentioned in -olumn 7 of the +harge sheet or an$ other person 'ho might be an a++ompli+e. @=-2tio/ No."iii# C Ahether the 'ord Ge"iden+eG used in Se+tion /*03*6 -r.P.-. has been used in a +omprehensi"e sense and in+ludes the e"iden+e +olle+ted during in"estigation or the 'ord Ge"iden+eG is limited to the e"iden+e re+orded during trialB

Page 39

<C.

%o ans'er the .uestions and to resol"e the impediment that is

being fa+ed b$ the trial +ourts in e,er+ising of po'ers under Se+tion /*0 -r.P.-.1 the issue has to be in"estigated b$ e,amining the +ir+umstan+es 'hi+h gi"e rise to a situation for the +ourt to in"o e su+h po'ers. %he +ir+umstan+es that lead to su+h inferen+e being dra'n up b$ the +ourt for summoning a person arise out of the a"ailabilit$ of the fa+ts and material that +omes up before the +ourt and are made the basis for summoning su+h a person as an a++ompli+e to the offen+e alleged to ha"e been +ommitted. %he material should dis+lose the +ompli+it$ of the person in the +ommission of the offen+e 'hi+h has to be the material that appears from the e"iden+e during the +ourse of an$ in.uir$ into or trial of offen+e. %he 'ords as used in Se+tion /*0 -r.P.-. indi+ate that the material has to be @'here .it appears from the -3i,-/;-M before the +ourt.

<<.

Before 'e ans'er this issue1 let us e,amine the meaning of the

'ord Ee"iden+e5. A++ording to Se+tion / of the N"iden+e A+t1 Ee"iden+e5 means and in+ludes? 3*6 all statements 'hi+h the -ourt permits or re.uires to be made before it b$ 'itnesses1 in relation to matters of

Page 40

fa+t under in.uir$> su+h statements are +alled oral e"iden+e> 376 all do+uments in+luding ele+troni+ re+ords produ+ed for the inspe+tion of the -ourt1 su+h statements are +alled do+umentar$ e"iden+e>

<J.

A++ording to %omlin5s Ka' Hi+tionar$1 N"iden+e is @the means

from which an inference may logically be drawn as to the existence of a fact 4t consists of proof by testimony of witnesses, on oath; or by writing or records " Bentham defines Ee"iden+e5 as @any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact@ a persuasion either affirmative or disaffirmative of its existence 'f the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact M A++ording to Aigmore on N"iden+e1 e"iden+e represents @ any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked M

Page 41

<2.

%he pro"ision and the abo"e8mentioned definitions +learl$ Ahere"er the 'ords

suggest that it is an e,hausti"e definition.

@means and in+ludeM are used1 it is an indi+ation of the fa+t that the definition Eis a hard and fast definition51 and no other meaning +an be assigned to the e,pression that is put do'n in the definition. =t indi+ates an e,hausti"e e,planation of the meaning 'hi+h1 for the purposes of the A+t1 must in"ariabl$ be atta+hed to these 'ords or e,pression. 3Vide? ME2. M+h+8+12h7i Oi8 Mi882 3. St+t- o A.P. 1 A=R *0:0 S- //<> P=/?+< L+/, D-3-8o.7-/t +/, R-;8+7+tio/ Co).o)+tio/ Lt,.* Ch+/,i0+)h 3. P)-2i,i/0 O i;-)* L+<o=) Co=)t1 Ch+/,i0+)h 6 O)2.* 3*0096 / S-- J:7> P. >+2i8i/0+7 6 O)2. 3. P.S.(. Co88-0- o T-;h/o8o04 6 O)2.* A=R *00< S- */0<> H+7,+), "W+1 # L+<o)+to)i-2 3. D4. L+<o=) Co77i22io/-) 6 O)2.1 A=R 799: S- 0J:> and Po/,2 I/,i+ Lt,. 3merged 'ith H.K. Kimited6 3. Co77i22io/-) o T)+,- T+D* L=;1/o:* 3799:6 : S-/J06.

<:.

=n F-)oF- N. Doti3+8+ 3. P.M. W+,h:+/i 6 O)2 .1 3799/6 *

S-- C//1 dealing 'ith a similar issue1 this -ourt obser"ed as under?

Page 42

Aenerally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute !herefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition Bnless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the word as defined "

Ae1 therefore pro+eed to e,amine the matter further on the premise that the definition of 'ord @e"iden+eM under the N"iden+e A+t is e,hausti"e.

<0.

=n >+84+/ >=7+) (o0oi 3. A2h=to2h A0/ihot)i 6 A/)., A=R

79** S- 2J91 'hile dealing 'ith the issue this -ourt held ? @*:. !he word evidence" is used in common parlance in three different sensesC 2a3 as e%uivalent to relevant, 2b3 as e%uivalent to proof, and 2c3 as e%uivalent to the material, on the basis of which courts come to a conclusion about the existence or non@existence of disputed facts !hough, in the definition of the word evidence" given in (ection , of the 9vidence -ct one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence,

Page 43

primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc "

J9.

=n relation to a -i"il -ase1 this +ourt in A7--) T)+,i/0

Co).o)+tio/ Lt,. 3. Sh+.oo)?i D+t+ P)o;-22i/0 Lt,. , A=R 799C S/<<* held that the e,amination of a 'itness 'ould in+lude e"iden+e8 in8+hief1 +ross8e,amination or re8e,amination. =n O71+) N+7,-o J+,h+o 6 O)2 3. S-;o/, A,,itio/+8 S-22io/2 J=,0- B=8,+/+ 6 A/).* A=R *002 S- //*> and R+7 S:+)oo. 6 O)2. 3. St+t- o R+?+2th+/* A=R 799C S- 70C/1 this -ourt held that statements

re+orded under Se+tion *J* -r.P.-. during the in"estigation are not e"iden+e. Su+h statements +an be used at the trial onl$ for

+ontradi+tions or omissions 'hen the 'itness is e,amined in the +ourt. 3See also? Po,,+ N+)+4+/+ 6 O)2. 3. St+t- o A.P.1 A=R *02< S*7<7> S+t P+=8 3. D-8hi A,7i/i2t)+tio/1 A=R *02J S- 70C> and St+t- 3Helhi Administration6 ". L+D7+/ >=7+) 6 O)2.* A=R *0:J S- 7<96. J*. =n Lo1 R+7 3. Nih+8 Si/0h 6 A/). , A=R 799J S- *:071 it

'as held that it is e"ident that a person1 e"en though had initiall$ been named in the I=R as an a++used1 but not +harge8sheeted1 +an also be

Page 44

added as an a++used to fa+e the trial. %he trial +ourt +an ta e su+h a step to add su+h persons as a++used onl$ on the basis of e"iden+e addu+ed before it and /ot o/ th- <+2i2 o 7+t-)i+82 +3+i8+<8- i/ th;h+)0-'2h--t o) th- ;+2- ,i+)4* <-;+=2- 2=;h 7+t-)i+82 ;o/t+i/-, i/ th- ;h+)0-'2h--t o) th- ;+2- ,i+)4 ,o /ot ;o/2tit=t- -3i,-/;-. J7. %he majorit$ "ie' of the -onstitution Ben+h in R+7/+)+4+/

Mo) 6 A/). 3. Th- St+t- o M+h+)+2ht)+* A=R *0JC S- 0C0 has been as under? @0 4t was urged in the alternative by counsel for the appellants that even if the expression evidence" may include documents, such documents would only be those which are duly proved at the en%uiry for commitment, because what may be used in a trial, civil or criminal, to support the judgment of a &ourt is evidence duly proved according to law ;ut by the 9vidence -ct which applies to the trial of all criminal cases, the expression evidence" is defined in (ection , as meaning and including all statements which the &ourt permits or re%uires to be made before it by witnesses, in relation to matters of fact under en%uiry and documents produced for the inspection of the &ourt There is no restriction in this definition to documents which are duly proved by evidence.3Nmphasis added6 J/. Similarl$1 this -ourt in S=/i8 M-ht+ 6 A/). 3. St+t- o

(=?+)+t 6 A/).* &% 79*/ 3/6 S- /7:1 held that @ 4t is trite that evidence within the meaning of the 9vidence -ct and so also within

Page 45

the meaning of (ection ).. of the &r 6 & is what is recorded in the manner stipulated under (ection 7,/ in the case of oral evidence Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the 9vidence -ct unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof " JC. =n (=)i4+ ) %abassum %au.uir 6 O)2. 3. St+t- o Bih+) 6

A/).1 A=R 799: S- 0<1 this -ourt held that in e,er+ise of the po'ers under Se+tion /*0 -r.P.-.1 the +ourt +an add a ne' a++used onl$ on the basis of e"iden+e addu+ed before it and not on the basis of materials a"ailable in the +harge sheet or the +ase diar$. J<. =n >i2h=/ Si/0h 3Supra61 this -ourt held ? .77 /n a plain reading of sub+section 0%1 of !ection (%& 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 0under !ection (%&0%11, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise !herefore, this sub@section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the
4

Page 46

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 9ven a person who has earlier been discharged would fall within the sweep of the power conferred by ( ,70 of the &ode !herefore, stricto sensu, (ection ,70 of the &ode cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution 7). ;ut then it must be conceded that (ection ,70 covers the post@cognizance stage where in the course of an in%uiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision " JJ. A similar "ie' has been ta en b$ this -ourt in R+? >i2ho)-

P)+2+, 3Supra61 'herein it 'as held that in order to appl$ Se+tion /*0 -r.P.-.1 it is essential that the need to pro+eed against the person other than the a++used appearing to be guilt$ of offen+e arises onl$ on e"iden+e re+orded in the +ourse of an in.uir$ or trial. J2. =n L+8 S=)+? ) Suraj Singh 6 A/). 3. St+t- o Jh+)1h+/,*

379906 7 S-- J0J1 a t'o8&udge Ben+h of this -ourt held that 9a court framing a charge would have before it all the materials on record which were re%uired to be proved by the prosecution 4n a case where, however, the court exercises its jurisdiction under (ection ,70

Page 47

&r 6 & , the power has to be exercised on the basis of the fresh evidence brought before the court !here lies a fine but clear distinction M

J:.

A similar "ie' has been reiterated b$ this -ourt in R+?-/,)+

Si/0h 3. St+t- o U.P. 6 A/).1 A=R 7992 S- 72:J1 obser"ing that +ourt should not e,er+ise the po'er under Se+tion /*0 -r.P.-. on the basis of materials a"ailable in the +harge8sheet or the +ase diar$1 be+ause su+h materials +ontained in the +harge8sheet or the +ase diar$ do not +onstitute e"iden+e. %he 'ord Ee"iden+e5 in Se+tion /*0 -r.P.-. +ontemplates the e"iden+e of 'itnesses gi"en in the +ourt.

J0.

Ordinaril$1 it is onl$ after the +harges are framed that the stage

of re+ording of e"iden+e is rea+hed. A bare perusal of Se+tion 772 -r.P.-. 'ould sho' that the legislature has used the terms @re+ord of the +aseM and the @do+uments submitted there'ithM. =t is in this +onte,t that the 'ord Ee"iden+e5 as appearing in Se+tion /*0 -r.P.-. has to be read and understood. %he material +olle+ted at the stage of in"estigation +an at best be used for a limited purpose as pro"ided under Se+tion *<2 of the N"iden+e A+t i.e. to +orroborate or +ontradi+t

Page 48

the statements of the 'itnesses re+orded before the +ourt. %herefore1 for the e,er+ise of po'er under Se+tion /*0 -r.P.-.1 the use of 'ord 4e"iden+e5 means material that has +ome before the +ourt during an in.uir$ or trial b$ it and not other'ise. =f from the e"iden+e led in the trial the +ourt is of the opinion that a person not a++used before it has also +ommitted the offen+e1 it ma$ summon su+h person under Se+tion /*0 -r.P.-. 29. Aith respe+t to do+umentar$ e"iden+e1 it is suffi+ient1 as +an be

seen from a bare perusal of Se+tion / of the N"iden+e A+t as 'ell as the de+ision of the -onstitution Ben+h1 that a do+ument is re.uired to be produ+ed and pro"ed a++ording to la' to be +alled e"iden+e. Ahether su+h e"iden+e is rele"ant1 irrele"ant1 admissible or inadmissible1 is a matter of trial. 2*. =t is1 therefore1 +lear that the 'ord @e"iden+eM in Se+tion /*0

-r.P.-. means onl$ su+h e"iden+e as is made before the +ourt1 in relation to statements1 and as produ+ed before the +ourt1 in relation to do+uments. =t is onl$ su+h e"iden+e that +an be ta en into a++ount b$ the Magistrate or the -ourt to de+ide 'hether po'er under Se+tion

Page 49

/*0 -r.P.-. is to be e,er+ised and not on the basis of material +olle+ted during in"estigation.

27.

%he in.uir$ b$ the +ourt is neither attributable to the

in"estigation nor the prose+ution1 but b$ the +ourt itself for +olle+ting information to dra' ba+ a +urtain that hides something material. =t is the dut$ of the +ourt to do so and therefore the po'er to perform this dut$ is pro"ided under the -r.P.-.

2/.

%he un"eiling of fa+ts other than the material +olle+ted during

in"estigation before the magistrate or +ourt before trial a+tuall$ +ommen+es is part of the pro+ess of in.uir$. Su+h fa+ts 'hen re+orded during trial are e"iden+e. =t is e"iden+e onl$ on the basis 'hereof trial +an be held1 but +an the same definition be e,tended for an$ other material +olle+ted during in.uir$ b$ the magistrate or +ourt for the purpose of Se+tion /*0 -r.P.-.B

2C.

An in.uir$ +an be +ondu+ted b$ the magistrate or +ourt at an$

stage during the pro+eedings before the +ourt. %his po'er is preser"ed 'ith the +ourt and has to be read and understood a++ordingl$. %he

Page 50

out+ome of an$ su+h e,er+ise should not be an impediment in the speed$ trial of the +ase.

2<.

%hough the fa+ts so re+ei"ed b$ the magistrate or the +ourt ma$

not be e"iden+e1 $et it is some material that ma es things +lear and unfolds +on+ealed or deliberatel$ suppressed material that ma$ fa+ilitate the trial. =n the +onte,t of Se+tion /*0 -r.P.-. it is an information of +ompli+it$. Su+h material therefore1 +an be used e"en though not an e"iden+e in stri+to sensuo1 but an information on re+ord +olle+ted b$ the +ourt during in.uir$ itself1 as a prima facie satisfa+tion for e,er+ising the po'ers as presentl$ in"ol"ed.

2J.

%his pre8trial stage is a stage 'here no adjudi+ation on the

e"iden+e of the offen+es in"ol"ed ta es pla+e and therefore1 after the material along'ith the +harge8sheet has been brought before the +ourt1 the same +an be in.uired into in order to effe+ti"el$ pro+eed 'ith framing of +harges. After the +harges are framed1 the prose+ution is as ed to lead e"iden+e and till that is done1 there is no e"iden+e a"ailable in the stri+t legal sense of Se+tion / of the N"iden+e A+t. %he a+tual trial of the offen+e b$ bringing the a++used before the +ourt

Page 51

has still not begun. Ahat is a"ailable is the material that has been submitted before the +ourt along 'ith the +harge8sheet. =n su+h

situation1 the +ourt onl$ has the preparator$ material that has been pla+ed before the +ourt for its +onsideration in order to pro+eed 'ith the trial b$ framing of +harges.

22.

=t is1 therefore1 not an$ material that +an be utilised1 rather it is

that material after +ogniLan+e is ta en b$ a +ourt1 that is a"ailable to it 'hile ma ing an in.uir$ into or tr$ing an offen+e1 that the +ourt +an utiliLe or ta e into +onsideration for supporting reasons to summon an$ person on the basis of e"iden+e addu+ed before the -ourt1 'ho ma$ be on the basis of su+h material1 treated to be an a++ompli+e in the +ommission of the offen+e. %he inferen+e that +an be dra'n is that material 'hi+h is not e,a+tl$ e"iden+e re+orded before the +ourt1 but is a material +olle+ted b$ the +ourt1 +an be utilised to +orroborate e"iden+e alread$ re+orded for the purpose of summoning an$ other person1 other than the a++used.

2:.

%his 'ould harmonise su+h material 'ith the 'ord Ee"iden+e5

as material that 'ould be supporti"e in nature to fa+ilitate the

Page 52

e,position of an$ other a++ompli+e 'hose +ompli+it$ in the offen+e ma$ ha"e either been suppressed or es+aped the noti+e of the +ourt.

20.

%he 'ord @e"iden+eM therefore has to be understood in its 'ider

sense both at the stage of trial and1 as dis+ussed earlier1 e"en at the stage of in.uir$1 as used under Se+tion /*0 -r.P.-. %he +ourt1 therefore1 should be understood to ha"e the po'er to pro+eed against an$ person after summoning him on the basis of an$ su+h material as brought forth before it. %he dut$ and obligation of the +ourt be+omes more onerous to in"o e su+h po'ers +autiousl$ on su+h material after e"iden+e has been led during trial. :9. =n "ie' of the dis+ussion made and the +on+lusion dra'n

hereinabo"e1 the ans'er to the aforesaid .uestion posed is that apart from e"iden+e re+orded during trial1 an$ material that has been re+ei"ed b$ the +ourt after +ogniLan+e is ta en and before the trial +ommen+es1 +an be utilised onl$ for +orroboration and to support the e"iden+e re+orded b$ the +ourt to in"o e the po'er under Se+tion /*0 -r.P.-. %he Ee"iden+e5 is thus1 limited to the e"iden+e re+orded

during trial.

Page 53

@."ii# Hoes the 'ord Ee"iden+e5 in Se+tion /*0 -r.P.-. means as arising in N,amination8in8-hief or also together 'ith -ross8 N,aminationB :*. %he se+ond .uestion referred to herein is in relation to the 'ord

4e"iden+e4 as used under Se+tion /*0 -r.P.-.1 'hi+h lea"es no room for doubt that the e"iden+e as understood under Se+tion / of the N"iden+e A+t is the statement of the 'itnesses that are re+orded during trial and the do+umentar$ e"iden+e in a++ordan+e 'ith the N"iden+e A+t1 'hi+h also in+ludes the do+ument and material e"iden+e in the N"iden+e A+t. Su+h e"iden+e begins 'ith the

statement of the prose+ution 'itnesses1 therefore1 is e"iden+e 'hi+h in+ludes the statement during e,amination8in8+hief. =n R+1-2h

3Supra6* it 'as held that @4t is true that finally at the time of trial the accused is to be given an opportunity to cross@examine the witness to test its truthfulness ;ut that stage would not arise while exercising the courtEs power under (ection ,70 &r6& 'nce the deposition is recorded, no doubt there being no cross@examination, it would be a prima facie material which would enable the (essions &ourt to decide whether powers under (ection ,70 should be exercised or not " =n R+/?it Si/0h 3Supra61 this -ourt held that @it is not ne+essar$ for the +ourt to 'ait until the entire e"iden+e is +olle+ted1M for e,er+ising the
5

Page 54

said po'er. =n Moh,. Sh+ i 3Supra61 it 'as held that the pre8re.uisite for e,er+ise of po'er under Se+tion /*0 -r.P.-. 'as the satisfa+tion of the +ourt to pro+eed against a person 'ho is not an a++used but against 'hom e"iden+e o++urs1 for 'hi+h the +ourt +an e"en :+it ti88 th- ;)o22 -D+7i/+tio/ i2 o3-) and that there 'ould be no illegalit$ in doing so. A similar "ie' has been ta en b$ a t'o8&udge Ben+h in the +ase of H+)<h+?+/ Si/0h 6 A/). 3. St+t- o P=/?+< 6 A/). " 79906 */ S-- J9:. %his -ourt in H+),--. Si/0h 3Supra6 seems to ha"e misread the judgment in Moh,. Sh+ i 3Supra61 as it +onstrued that the said judgment laid do'n that for the e,er+ise of po'er under Se+tion /*0 -r.P.-.1 the +ourt has to ne+essaril$ 'ait till the 'itness is +ross e,amined and on +omplete appre+iation of e"iden+e1 +ome to the +on+lusion 'hether there is a need to pro+eed under Se+tion /*0 -r.P.-. :7. Ae ha"e gi"en our thoughtful +onsideration to the di"erse

"ie's e,pressed in the aforementioned +ases. On+e e,amination8in8 +hief is +ondu+ted1 the statement be+omes part of the re+ord. =t is e"iden+e as per la' and in the true sense1 for at best1 it ma$ be rebuttable. An e"iden+e being rebutted or +ontro"erted be+omes a matter of +onsideration1 rele"an+e and belief1 'hi+h is the stage of
5

Page 55

judgment b$ the +ourt. Pet it is e"iden+e and it is material on the basis 'hereof the +ourt +an +ome to a prima facie opinion as to +ompli+it$ of some other person 'ho ma$ be +onne+ted 'ith the offen+e.

:/.

As held in Moh,. Sh+ i 3Supra6 and H+)<h+?+/ Si/0h

3Supra61 all that is re.uired for the e,er+ise of the po'er under Se+tion /*0 -r.P.-. is that1 it must +..-+) to the +ourt that some other person also 'ho is not fa+ing the trial1 ma$ also ha"e been in"ol"ed in the offen+e. %he pre8re.uisite for the e,er+ise of this po'er is similar to the prima facie "ie' 'hi+h the magistrate must +ome to in order to ta e +ogniLan+e of the offen+e. %herefore1 no straight8ja+ et formula +an and should be laid 'ith respe+t to +onditions pre+edent for arri"ing at su+h an opinion and1 if the MagistrateO-ourt is +on"in+ed e"en on the basis of e"iden+e appearing in N,amination8in8-hief1 it +an e,er+ise the po'er under Se+tion /*0 -r.P.-. and +an pro+eed against su+h other person3s6. =t is essential to note that the Se+tion also uses the 'ords Esu+h person could be tried5 instead of 2ho=8, be tried. Hen+e1 'hat is re.uired is not to ha"e a mini8trial at this stage b$ ha"ing e,amination and +ross8e,amination and thereafter rendering a de+ision on the o"ert a+t of su+h person sought to be added. =n fa+t1 it

Page 56

is this mini8trial that 'ould affe+t the right of the person sought to be arraigned as an a++used rather than not ha"ing an$ +ross8e,amination at all1 for in light of sub8se+tion C of Se+tion /*0 -r.P.-.1 the person 'ould be entitled to a fresh trial 'here he 'ould ha"e all the rights in+luding the right to +ross e,amine prose+ution 'itnesses and e,amine defen+e 'itnesses and ad"an+e his arguments upon the same. %herefore1 e"en on the basis of N,amination8in8-hief1 the -ourt or the Magistrate +an pro+eed against a person as long as the ;o=)t i2 2+ti2 i-, that the e"iden+e appearing against su+h person is su+h that it prima facie ne+essitates bringing su+h person to fa+e trial. =n fa+t1 N,amination8in8-hief untested b$ -ross N,amination1 undoubtedl$ in itself1 is an e"iden+e.

:C.

Iurther1 in our opinion1 there does not seem to be an$ logi+

behind 'aiting till the +ross8e,amination of the 'itness is o"er. =t is to be ept in mind that at the time of e,er+ise of po'er under Se+tion /*0 -r.P.-.1 the person sought to be arraigned as an a++used1 is in no 'a$ parti+ipating in the trial. N"en if the +ross8e,amination is to be ta en into +onsideration1 the person sought to be arraigned as an a++used +annot +ross e,amine the 'itness3s6 prior to passing of an order under Se+tion /*0 -r.P.-.1 as su+h a pro+edure is not
5

Page 57

+ontemplated b$ the -r.P.-. Se+ondl$1 in"ariabl$ the State 'ould not oppose or obje+t to naming of more persons as an a++used as it 'ould onl$ help the prose+ution in +ompleting the +hain of e"iden+e1 unless the 'itness3s6 is obliterating the role of persons alread$ fa+ing trial. More so1 Se+tion 700 -r.P.-. enables the +ourt to re+ord e"iden+e in absen+e of the a++used in the +ir+umstan+es mentioned therein.

:<.

%hus1 in "ie' of the abo"e1 'e hold that po'er under Se+tion

/*0 -r.P.-. +an be e,er+ised at the stage of +ompletion of e,amination in +hief and +ourt does not need to 'ait till the said e"iden+e is tested on +ross8e,amination for it is the satisfa+tion of the +ourt 'hi+h +an be gathered from the reasons re+orded b$ the +ourt1 in respe+t of +ompli+it$ of some other person3s61 not fa+ing the trial in the offen+e. Q. 3i"6 Ahat is the degree of satisfa+tion re.uired for in"o ing the po'er under Se+tion /*0 -r.P.-.B

:J.

(ection ,70273 &r 6 & empowers the court to proceed against

other persons who appear to be guilty of offence, though not an accused before the court

Page 58

%he 'ord @appearM means @+lear to the +omprehensionM1 or a phrase near to1 if not s$non$mous 'ith @pro"edM. =t imparts a lesser degree of probabilit$ than proof.

:2.

=n P4+)- L+8 Bh+)0+3+ 3. Th- St+t- o R+?+2th+/* A=R *0J/

S- *90C1 a four8&udge Ben+h of this -ourt 'as +on+erned 'ith the meaning of the 'ord Eappear5. %he +ourt held that the appropriate meaning of the 'ord Eappears5 is Eseems5. =t imports a lesser degree of probabilit$ than proof. =n R+7 Si/0h 6 O)2. 3. R+7 Ni:+2 & A/).1 379906 *C S-- 7<1 a t'o8&udge Ben+h of this -ourt 'as again re.uired to e,amine the importan+e of the 'ord Eappear5 as appearing in the Se+tion. %he -ourt held that for the fulfillment of the +ondition that it appears to the +ourt that a person had +ommitted an offen+e1 the +ourt must satisf$ itself about the e,isten+e of an e,+eptional +ir+umstan+e enabling it to e,er+ise an e,traordinar$ jurisdi+tion. Ahat is1 therefore1 ne+essar$ for the +ourt is to arri"e at a satisfa+tion that the e"iden+e addu+ed on behalf of the prose+ution1 if unrebutted1 ma$ lead to +on"i+tion of the persons sought to be added as an a++used in the +ase.

Page 59

::.

At the time of ta ing +ogniLan+e1 the +ourt has to see 'hether a

prima facie +ase is made out to pro+eed against the a++used. (nder Se+tion /*0 -r.P.-.1 though the test of prima facie +ase is the same1 the degree of satisfa+tion that is re.uired is mu+h stri+ter. A t'o8 &udge Ben+h of this -ourt in !i1+2 3. St+t- o R+?+2th+/* 79*/ 3**6 S-AKN 7/1 held that on the o<?-;ti3- 2+ti2 +;tio/ of the +ourt a person ma$ be RarrestedR or RsummonedR1 as the +ir+umstan+es of the +ase ma$ re.uire1 if it appears from the e"iden+e that an$ su+h person not being the a++used has +ommitted an offen+e for 'hi+h su+h person +ould be tried together 'ith the alread$ arraigned a++used persons.

:0.

=n R+?-/,)+ Si/0h 3Supra61 the -ourt obser"ed? @;e it noted, the court need not be satisfied that he has committed an offence 4t need only appear to it that he has committed an offence 4n other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under (ection ,70 of the &ode 9ven then, it has a discretion not to proceed, since the expression used is may" and not shall" !he legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section !he expression appears" indicates an application of mind by the court to the evidence that has come before it and

Page 60

then taking a decision to proceed under (ection ,70 of the &ode or not.M

09.

=n Moh,. Sh+ i "S=.)+#* this -ourt held that it is e"ident that

before a +ourt e,er+ises its dis+retionar$ jurisdi+tion in terms of Se+tion /*0 -r.P.-.1 it must arri"e at a satisfa+tion that there e,ists a possibilit$ that the a++used so 2=77o/-, i/ +88 8i1-8ihoo, :o=8, <;o/3i;t-,.

0*.

=n S+)+<?it Si/0h 6 A/). 3. St+t- o P=/?+< 6 A/).* A=R

7990 S- 7207, 'hile e,plaining the s+ope of Se+tion /*0 -r.P.-.1 a t'o8&udge Ben+h of this -ourt obser"ed? @ For the aforementioned purpose, the courts are re%uired to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned22Ghereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion 3hile framing charge in terms of !ection ""' of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a 4udgment of conviction. Ghether a higher standard be set up for the purpose of invoking the jurisdiction under (ection ,70 of the &ode is the %uestion !he answer to these %uestions should be rendered in the affirmative Bnless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is
6

Page 61

laid down, the ingredients thereof viz 2i3 an extraordinary case, and 2ii3 a case for sparingly 2sic sparing3 exercise of jurisdiction, would not be satisfied " 3Nmphasis added6

07.

=n B)i/,+<+/ D+2 6 O)2. 3. St+t- o W-2t B-/0+8* A=R 7990 a similar "ie'

S- *7C:, a t'o8&udge Ben+h of this -ourt too

obser"ing that the court is re%uired to consider whether such evidence would be sufficient to convict the person being summoned (ince issuance of summons under (ection ,70 &r 6 & entails a de novo trial and a large number of witnesses may have been examined and their re@examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity A similar "ie' has been re8iterated b$ this -ourt in Mi;h+-8 M+;h+,o 6 A/). 3. C-/t)+8 B=)-+= o I/3-2ti0+tio/ 6 O)2.* A=R 7999 S- **72.

0/.

Ho'e"er1 there is a series of +ases 'herein this -ourt 'hile

dealing 'ith the pro"isions of Se+tions 7721 77:1 7/01 7C91 7C*1 7C7 and 7C< -r.P.-.1 has +onsistentl$ held that the +ourt at the stage of framing of the +harge has to appl$ its mind to the .uestion 'hether or

Page 62

not there is an$ ground for presuming the +ommission of an offen+e b$ the a++used. %he +ourt has to see as to 'hether the material brought on re+ord reasonabl$ +onne+t the a++used 'ith the offen+e. ;othing more is re.uired to be en.uired into. Ahile dealing 'ith the aforesaid pro"isions1 the test of prima facie +ase is to be applied. %he -ourt has to find out 'hether the materials offered b$ the prose+ution to be addu+ed as e"iden+e are suffi+ient for the +ourt to pro+eed against the a++used further. 3Vide? St+t- o >+)/+t+1+ 3. L.

M=/i2h:+74 6 O)2.* A=R *022 S- *C:0> A88 I/,i+ B+/1 O i;-)2G Co/ -,-)+tio/ -t;. 3. U/io/ o I/,i+ 6 O)2.1 A=R *0:0 S- 79C<> St)-- At4+;h+) !i)o,hi P+)i2h+, 3. Di8i. N+th=7+8 Cho),i+ 1 3*0:06 * S-- 2*<> St+t- o M.P. 3. D). >)i2h/+ Ch+/,)+ S+12-/+* 3*00J6 ** S-- C/0> and St+t- o M.P. 3. Moh+/ L+8 So/i* A=R 7999 S- 7<:/6.

0C.

=n Di8+:+) B+<= >=)+/- 3. St+t- o M+h+)+2ht)+* A=R 7997

S- <JC1 this -ourt 'hile dealing 'ith the pro"isions of Se+tions 772 and 77: -r.P.-.1 pla+ed a "er$ hea"$ relian+e on the earlier judgment of this -ourt in U/io/ o I/,i+ 3. P)+ =88+ >=7+) S+7+8 6 A/). 1 A=R *020 S- /JJ and held that 'hile +onsidering the .uestion of framing the +harges1 the +ourt ma$ 'eigh the e"iden+e for the limited
6

Page 63

purpose of finding out 'hether or not a prima facie +ase against the a++used has been made out and 'hether the materials pla+ed before this -ourt dis+lose 0)+3- 2=2.i;io/ against the a++used 'hi+h has not been properl$ e,plained. =n su+h an e"entualit$1 the +ourt is justified in framing the +harges and pro+eeding 'ith the trial. %he +ourt has to +onsider the broad probabilities of the +ase1 the total effe+t of the e"iden+e and the do+uments produ+ed before the +ourt but +ourt should not ma e a ro"ing en.uir$ into the pros and +ons of the matter and 'eigh e"iden+e as if it is +ondu+ting a trial.

0<.

=n S=)-2h 3. St+t- o M+h+)+2ht)+1 A=R 799* S- */2<1 this

-ourt after ta ing note of the earlier judgments in Ni)+/?+/ Si/0h >+)+7 Si/0h P=/?+<i 3. Jit-/,)+ Bhi7)+? Bi??+4+* A=R *009 S*0J7 and St+t- o M+h+)+2ht)+ 3. P)i4+ Sh+)+/ M+h+)+? 1 A=R *002 S- 79C*1 held as under? 0 at the stage of (ections ))* and ))/ the &ourt is re%uired to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence !he &ourt may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case !herefore, at the stage of

Page 64

framing of the charge the &ourt has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.3Nmphasis supplied6

0J.

Similarl$ in St+t- o Bih+) 3. R+7-2h Si/0h* A=R *022 S-

79*:1 'hile dealing 'ith the issue1 this -ourt held? 4f the evidence which the 6rosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross@examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial "

02.

=n P+8+/i2+74 (o=/,-) 6 A/). 3. St+t- , )-.)-2-/t-, <4

I/2.-;to) o Po8i;-* 3799<6 *7 S-- /721 this -ourt depre+ated the pra+ti+e of in"o ing the po'er under Se+tion /*0 -r.P.-. just to +ondu+t a fishing in.uir$1 as in that +ase1 the trial +ourt e,er+ised that po'er just to find out the real truth1 though there 'as no "alid ground to pro+eed against the person summoned b$ the +ourt. 0:. Po'er under Se+tion /*0 -r.P.-. is a dis+retionar$ and an

e,tra8ordinar$ po'er. =t is to be e,er+ised sparingl$ and onl$ in those +ases 'here the +ir+umstan+es of the +ase so 'arrant. =t is not to be
6

Page 65

e,er+ised be+ause the Magistrate or the Sessions &udge is of the opinion that some other person ma$ also be guilt$ of +ommitting that offen+e. Onl$ 'here strong and +ogent e"iden+e o++urs against a person from the e"iden+e led before the +ourt that su+h po'er should be e,er+ised and not in a +asual and +a"alier manner.

00.

%hus1 'e hold that though onl$ a prima facie +ase is to be

established from the e"iden+e led before the +ourt not ne+essaril$ tested on the an"il of -ross8N,amination1 it re.uires mu+h stronger e"iden+e than mere probabilit$ of his +ompli+it$. %he test that has to be applied is one 'hi+h is more than prima facie +ase as e,er+ised at the time of framing of +harge1 but short of satisfa+tion to an e,tent that the e"iden+e1 if goes unrebutted1 'ould lead to +on"i+tion. =n the absen+e of su+h satisfa+tion1 the +ourt should refrain from e,er+ising po'er under Se+tion /*0 -r.P.-. =n Se+tion /*0 -r.P.-. the purpose of pro"iding if Eit appears from the e"iden+e that an$ person not being the a++used has +ommitted an$ offen+e5 is +lear from the 'ords @ o) :hi;h 2=;h .-)2o/ ;o=8, <- t)i-, to0-th-) :ith th- +;;=2-,. M %he 'ords used are not Efor 'hi+h su+h person +ould be +on"i+ted5. %here

Page 66

is1 therefore1 no s+ope for the -ourt a+ting under Se+tion /*0 -r.P.-. to form an$ opinion as to the guilt of the a++used. Q.3"6 =n 'hat situations +an the po'er under this se+tion be e,er+ised? ;ot named in I=R> ;amed in the I=R but not +harge8 sheeted or has been dis+hargedB *99. =n Jo0i/,-) Si/0h 6 A/). 3. St+t- o P=/?+< 6 A/). , A=R *020 S- //01 a three8&udge Ben+h of this -ourt held that as regards the +ontention that the phrase 9+/4 .-)2o/ /ot <-i/0 th- +;;=2-,B o++urring in Se+tion /*0 -r.P.-. e,+ludes from its operation an a++used 'ho has been released b$ the poli+e under Se+tion *J0 -r.P.-. and has been sho'n in -olumn 7 of the +harge8sheet1 the +ontention has merel$ to be reje+ted. %he said e,pression +learl$ +o"ers an$ person 'ho is not being tried alread$ b$ the -ourt and the "er$ purpose of ena+ting su+h a pro"ision li e Se+tion /*0 3*6 -r.P.-. +learl$ sho's that e"en persons 'ho ha"e been dropped b$ the poli+e during in"estigation but against 'hom e"iden+e sho'ing their in"ol"ement in the offen+e +omes before the +riminal +ourt1 are in+luded in the said e,pression. *9*. =n A/?= Ch+=,h+)4 3. St+t- o U.P 5 A/)., 379*/6 J S-/:C* a t'o8&udge Ben+h of this -ourt held that e"en in the +ases

Page 67

'here report under Se+tion *2/376 -r.P.-. is filed in the +ourt and in"estigation re+ords the name of a person in -olumn 71 or e"en does not name the person as an a++used at all1 the +ourt in e,er+ise of its po'ers "ested under Se+tion /*0 -r.P.-. +an summon the person as an a++used and e"en at that stage of summoning1 no hearing is +ontemplated under the la'. *97. =n S=7+/ 3. St+t- o R+?+2th+/ 6 A/). , A=R 79*9 S- <*:1 a t'o8&udge Ben+h of this -ourt obser"ed that there is nothing in the language of this sub8se+tion from 'hi+h it +an be inferred that a person 'ho is named in the I=R or +omplaint1 but against 'hom +harge8sheet is not filed b$ the poli+e1 +annot be pro+eeded against e"en though in the +ourse of an$ in.uir$ into or trial of an$ offen+e1 the +ourt finds that su+h person has +ommitted an offen+e for 'hi+h he +ould be tried together 'ith the other a++used. =n L+8 S=)+? 2supra3* a t'o8&udge Ben+h held that there is no dispute 'ith the legal proposition that e"en if a person had not been +harge8sheeted1 he ma$ +ome 'ithin the pur"ie' of the des+ription of su+h a person as +ontained in Se+tion /*0 -r.P.-. A similar "ie' had been ta en in Lo1 R+7 3Supra61 'herein it 'as held that a person1 though had

Page 68

initiall$ been named in the I=R as an a++used1 but not +harge8sheeted1 +an also be added to fa+e the trial. *9/. N"en the -onstitution Ben+h in Dh+)+7 P+8 3-B6 has held that the Sessions -ourt +an also e,er+ise its original jurisdi+tion and summon a person as an a++used in +ase his name appears in -olumn 7 of the +hargesheet1 on+e the +ase had been +ommitted to it. =t means that a person 'hose name does not appear e"en in the I=R or in the +hargesheet or 'hose name appears in the I=R and not in the main part of the +hargesheet but in -olumn 7 and has not been summoned as an a++used in e,er+ise of the po'ers under Se+tion *0/ -r.P.-. +an still be summoned b$ the +ourt1 pro"ided the +ourt is satisfied that the +onditions pro"ided in the said statutor$ pro"isions stand fulfilled.

*9C. Ho'e"er1 there is a great differen+e 'ith regard to a person 'ho has been dis+harged. A person 'ho has been dis+harged stands on a different footing than a person 'ho 'as ne"er subje+ted to in"estigation or if subje+ted to1 but not +harge8sheeted. Su+h a person has stood the stage of in.uir$ before the +ourt and upon judi+ial e,amination of the material +olle+ted during in"estigation> the +ourt

Page 69

had +ome to the +on+lusion that there is not e"en a prima facie +ase to pro+eed against su+h person. !enerall$1 the stage of e"iden+e in trial is merel$ pro"ing the material +olle+ted during in"estigation and therefore1 there is not mu+h +hange as regards the material e,isting against the person so dis+harged. %herefore1 there must e,ist

+ompelling +ir+umstan+es to e,er+ise su+h po'er. %he -ourt should eep in mind that the 'itness 'hen gi"ing e"iden+e against the person so dis+harged1 is not doing so merel$ to see re"enge or is naming him at the behest of someone or for su+h other e,traneous +onsiderations. %he +ourt has to be +ir+umspe+t in treating su+h e"iden+e and tr$ to separate the +haff from the grain. =f after su+h +areful e,amination of the e"iden+e1 the +ourt is of the opinion that there does e,ist e"iden+e to pro+eed against the person so dis+harged1 it ma$ ta e steps but onl$ in a++ordan+e 'ith Se+tion /0: -r.P.-. 'ithout resorting to the pro"ision of Se+tion /*0 -r.P.-. dire+tl$.

*9<. =n Soh+/ L+8 6 O)2. 3. St+t- o R+?+2th+/* " *0096 C S-<:9* a t'o8&udge Ben+h of this -ourt held that on+e an a++used has been dis+harged1 the pro+edure for en.uir$ en"isaged under Se+tion /0: -r.P.-. +annot be +ir+um"ented b$ pres+ribing to pro+edure under Se+tion /*0 -r.P.-.
7

Page 70

*9J. =n M=/i;i.+8 Co).o)+tio/ o D-8hi 3. R+7 >i2h+/ Roht+0i 6 O)2., A=R *0:/ S- J21 this -ourt held that if the prose+ution +an at an$ stage produ+e e"iden+e 'hi+h satisfies the +ourt that those 'ho ha"e not been arraigned as a++used or +0+i/2t :ho7 .)o;--,i/02 h+3- <--/ 5=+2h-,* ha"e also +ommitted the offen+e1 the -ourt +an ta e +ogniLan+e against them under Se+tion /*0 -r.P.-. and tr$ them along 'ith the other a++used.

*92. Po'er under Se+tion /0: -r.P.-. is in the nature of re"isional po'er 'hi+h +an be e,er+ised onl$ b$ the High -ourt or the Sessions &udge1 as the +ase ma$ be. A++ording to Se+tion /99 3<6 -r.P.-.1 a person dis+harged under Se+tion 7<: -r.P.-. shall not be tried again for the same offen+e e,+ept 'ith the +onsent of the -ourt b$ 'hi+h he 'as dis+harged or of an$ other -ourt to 'hi+h the first8mentioned -ourt is subordinate. Iurther1 Se+tion /0: -r.P.-. pro"ides that the High -ourt or the Sessions &udge ma$ dire+t the -hief &udi+ial Magistrate b$ himself or b$ an$ of the Magistrate subordinate to him to ma e an in.uir$ into the +ase against an$ person 'ho has alread$ been dis+harged.

Page 71

*9:. Both these pro"isions +ontemplate an in.uir$ to be +ondu+ted before an$ person1 'ho has alread$ been dis+harged1 is as ed to again fa+e trial if some e"iden+e appears against him. As held earlier1 Se+tion /*0 -r.P.-. +an also be in"o ed at the stage of in.uir$. Ae do not see an$ reason 'h$ in.uir$ as +ontemplated b$ Se+tion /993<6 -r.P.-. and Se+tion /0: -r.P.-. +annot be an in.uir$ under Se+tion /*0 -r.P.-. A++ordingl$1 a person dis+harged +an also be arraigned again as an a++used but onl$ after an in.uir$ as +ontemplated b$ Se+tions /993<6 and /0: -r.P.-. =f during or after su+h in.uir$1 there appears to be an e"iden+e against su+h person1 po'er under Se+tion /*0 -r.P.-. +an be e,er+ised. Ae ma$ +larif$ that the 'ord Etrial5 under Se+tion /*0 -r.P.-. 'ould be e+lipsed b$ "irtue of abo"e pro"isions and the same +annot be in"o ed so far as a person dis+harged is +on+erned1 but no more.

*90. %hus1 it is e"ident that po'er under Se+tion /*0 -r.P.-. +an be e,er+ised against a person not subje+ted to in"estigation1 or a person pla+ed in the -olumn 7 of the -harge8Sheet and against 'hom +ogniLan+e had not been ta en1 or a person 'ho has been dis+harged. Ho'e"er1 +on+erning a person 'ho has been dis+harged1 no

Page 72

pro+eedings +an be +ommen+ed against him dire+tl$ under Se+tion /*0 -r.P.-. 'ithout ta ing re+ourse to pro"isions of Se+tion /993<6 read 'ith Se+tion /0: -r.P.-.

**9. Ae a++ordingl$ sum up our +on+lusions as follo's? @=-2tio/ No2.1 6 III Q.* Ahat is the stage at 'hi+h po'er under Se+tion /*0 -r.P.-. +an be e,er+isedB A;H Q.=== Ahether the 'ord Ge"iden+eG used in Se+tion /*03*6 -r.P.-. has been used in a +omprehensi"e sense and in+ludes the e"iden+e +olle+ted during in"estigation or the 'ord Ge"iden+eG is limited to the e"iden+e re+orded during trialB A. =n Dh+)+7 P+8G2 +ase1 the -onstitution Ben+h has alread$ held that after +ommittal1 +ogniLan+e of an offen+e +an be ta en against a person not named as an a++used but against 'hom materials are a"ailable from the papers filed b$ the poli+e after +ompletion of in"estigation. Su+h +ogniLan+e +an be ta en under Se+tion *0/

Page 73

-r.P.-. and the Sessions &udge need not 'ait till Re"iden+eR under Se+tion /*0 -r.P.-. be+omes a"ailable for summoning an additional a++used. Se+tion /*0 -r.P.-.1 signifi+antl$1 uses t'o e,pressions that ha"e to be ta en note of i.e. 3*6 =n.uir$ 376 %rial. As a trial +ommen+es after framing of +harge1 an in.uir$ +an onl$ be understood to be a pre8trial in.uir$. =n.uiries under Se+tions 7991 79*1 797 -r.P.-.> and under Se+tion /0: -r.P.-. are spe+ies of the in.uir$ +ontemplated b$ Se+tion /*0 -r.P.-. Materials +oming before the -ourt in +ourse of su+h en.uiries +an be used for +orroboration of the e"iden+e re+orded in the +ourt after the trial +ommen+es1 for the e,er+ise of po'er under Se+tion /*0 -r.P.-.1 and also to add an a++used 'hose name has been sho'n in -olumn 7 of the +hargesheet. =n "ie' of the abo"e position the 'ord Re"iden+eR in Se+tion /*0 -r.P.-. has to be broadl$ understood and not literall$ i.e. as e"iden+e brought during a trial. @=-2tio/ No. II Q.== Ahether the 'ord Ge"iden+eG used in Se+tion /*03*6 -r.P.-. +ould onl$ mean e"iden+e tested b$ +ross8e,amination or the +ourt

Page 74

+an e,er+ise the po'er under the said pro"ision e"en on the basis of the statement made in the e,amination8in8+hief of the 'itness +on+ernedB A. -onsidering the fa+t that under Se+tion /*0 -r.P.-. a person against 'hom material is dis+losed is onl$ summoned to fa+e the trial and in su+h an e"ent under Se+tion /*03C6 -r.P.-. the pro+eeding against su+h person is to +ommen+e from the stage of ta ing of +ogniLan+e1 the -ourt need not 'ait for the e"iden+e against the a++used proposed to be summoned to be tested b$ +ross8e,amination. @=-2tio/ No. I! Q.=V Ahat is the nature of the satisfa+tion re.uired to in"o e the po'er under Se+tion /*0 -r.P.-. to arraign an a++usedB Ahether the po'er under Se+tion /*0 3*6 -r.P.-. +an be e,er+ised onl$ if the +ourt is satisfied that the a++used summoned 'ill in all li elihood be +on"i+tedB A. %hough under Se+tion /*03C63b6 -r.P.-. the a++used subse.uentl$ impleaded is to be treated as if he had been an a++used 'hen the -ourt initiall$ too +ogniLan+e of the offen+e1 the degree of satisfa+tion that 'ill be re.uired for summoning a person under Se+tion /*0 -r.P.-.

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'ould be the same as for framing a +harge. %he differen+e in the degree of satisfa+tion for summoning the original a++used and a subse.uent a++used is on a++ount of the fa+t that the trial ma$ ha"e alread$ +ommen+ed against the original a++used and it is in the +ourse of su+h trial that materials are dis+losed against the ne'l$ summoned a++used. Iresh summoning of an a++used 'ill result in dela$ of the trial 8 therefore the degree of satisfa+tion for summoning the a++used 3original and subse.uent6 has to be different. @=-2tio/ No.! Q.V Hoes the po'er under Se+tion /*0 -r.P.-. e,tend to persons not named in the I=R or named in the I=R but not +hargesheeted or 'ho ha"e been dis+hargedB A. A person not named in the I=R or a person though named in the

I=R but has not been +hargesheeted or a person 'ho has been dis+harged +an be summoned under Se+tion /*0 -r.P.-. pro"ided from the e"iden+e it appears that su+h person +an be tried along 'ith the a++used alread$ fa+ing trial. Ho'e"er1 in so far as an a++used 'ho has been dis+harged is +on+erned the re.uirement of Se+tions /99 and

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/0: -r.P.-. has to be +omplied 'ith before he +an be summoned afresh. %he matters be pla+ed before the appropriate Ben+h for final disposal in a++ordan+e 'ith la' e,plained hereinabo"e.

H.HHHHHH...................CJI. "P. SATHASI!AM#

.H.HHHHHH......................J. "DR. B.S. CHAUHAN#

.............................................J. "RANJANA PRA>ASH DESAI#

H..............................................J. "RANJAN (O(OI#

H...............................................J. "S.A. BOBDE# N-: D-8hi* J+/=+)4 10* 201%

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