“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   28     OF 2010 (Arising out of SLP (Crl.) 6485 of 2008)

Harinarayan G. Bajaj …. Appellant

Versus

State of Maharashtra & Ors. …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. Interpretation  of  Section  319  of  the  Code  of  Criminal  Procedure  

(hereinafter called “Cr.P.C.” for short) and, more particularly, Sub-Section  

(4) thereof has fallen for consideration in this appeal.   

3. The factual scenario: A  complaint  was  filed  against  three  

accused persons,  being respondent  Nos. 2,  3 and 4 herein for  offence  

under Section 406 read with Section 114 of the Indian Penal Code (for  

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short ‘IPC’) in the Court of the Metropolitan Magistrate.  We need not go  

into the facts stated in the said complaint in view of the narrow question  

which  falls  for  consideration  in  this  appeal.   The  Trial  Court  took  the  

cognizance  of  the  offences  on  03.04.1998  and  issued  process  against  

respondent  Nos.  2  to  4.   The  Trial  Court  proceeded  to  examine  the  

witnesses before framing the charge.  Number of revisions including the  

discharge application were filed by the accused and the trial went on up to  

15.09.2005  when  the  Bombay  High  Court  expedited  the  trial.   On  

13.06.2006, the cross-examination of the first witness of the prosecution at  

the stage of evidence before charge was completed by the Advocate of the  

accused persons.  This cross-examination ran into 115 pages.  Since the  

matter  could not  be finished up to  the date fixed by the Bombay High  

Court, it was extended up to 30.06.2006 for completion of trial.  The time  

was further extended till December, 2006 and further up to 31.05.2007.  In  

the  meantime,  the  second  witness  was  cross-examined  which  cross-

examination  consisted  of  148  pages.   Likewise,  third  witness  of  the  

prosecution  was  also  examined  on  11.05.2007.   The  Trial  Court  

discharged Shri  Pramod Banka and Smt.  Rani  V.  Agrawal  and framed  

charges against the third respondent herein.  The time was again extended  

by the High Court till  31.12.2007.   This was challenged by way of the  

revision by the appellant, which was allowed.  The third respondent also  

filed a revision which was dismissed by the High Court and the High Court  

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directed the Trial Court to frame charge against respondent No. 2 to 4 also  

under  the  provisions  of  Sections  403,  409  read  with  Section  34,  IPC.  

Ultimately, the charges came to be framed against respondent Nos. 2 to 4  

on 28.11.2007.   

4. At this stage, on 15.12.2007, the appellant herein filed an application  

under Section 319 Cr.P.C. requesting to array respondent No.5 herein as a  

co-accused in the said proceedings. On 31.12.2007, this application was  

allowed  and  the  summons  was  issued  to  the  5th respondent,  Creative  

Garments Ltd. a company incorporated under the Companies Act through  

its Managing Director.   

5. On 03.01.2008,  the 5th respondent  preferred an application to the  

Trial Court to commence the proceedings qua the 5th respondent from the  

stage of inquiry i.e. from the stage of Section 244, Cr.P.C. and to allow the  

cross-examination  of  the  witnesses  of  the  prosecution  at  the  stage  of  

evidence  before  charge.   On  22.02.2008,  this  application  came  to  be  

allowed. However, the Trial Court split the trial of respondent No.5 and the  

other respondent Nos. 2 to 4.  Respondent Nos. 2 to 4 challenged the  

order dated 22.02.2008 splitting the trial.  That order was quashed by the  

High Court by an order dated 31.03.2008.  Further, an application came to  

be made by respondents  on 15.04.2008 seeking the clarification of  the  

High  Court’s  order  which  clarification  was  given  by  the  High  Court  on  

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23.04.2008  holding  that  the  order  was  restricted  only  to  the  aspect  of  

splitting of trial and not to any other matter.   

6. The appellant also filed a criminal application on 30.04.2008 seeking  

the quashing of the order dated 22.02.2008 by which the Trial Court had  

ordered the  de novo proceedings as against  respondent  No.5 from the  

stage of inquiry.   Further,  a direction was sought to straightaway frame  

charge  against  respondent  No.5  for  the  same  offence  with  which  

respondent Nos. 2 to 4 were charged.  The High Court, however, rejected  

this application by the complainant (appellant herein) and held that there  

could be no dispute that the Court must commence de novo proceedings  

against respondent No. 5 and it further observed that mere delay which  

might be caused to the complaint would be of no consequence.  

7. Shri Naphade, learned Senior Counsel appearing on behalf of the  

complainant-appellant urges that the High Court has erred in confirming  

the order of the Trial  Court permitting the  de novo  proceedings against  

respondent No.5 in the sense that it allowed the further cross-examination  

of the witnesses who were already examined before framing the charge.  

Contention by learned Senior Counsel is that there would be no question  

of such a permission of the cross-examination of the witnesses who were  

examined before framing of the charge since firstly, the charge against the  

other accused persons has already been framed and secondly, there is no  

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such right of cross-examination under Section 244, 245 and 246, Cr.P.C.  

The Counsel argues that the term ‘evidence’ as mentioned in Section 244,  

Cr.P.C.  does  not  necessarily  include  the  cross-examination  of  the  

witnesses who were examined at that stage. The further contention of the  

counsel is that Section 319 (4), Cr.P.C. does not require a de novo inquiry  

as has been ordered by the Trial Court and affirmed by the High Court.  

Reliance was placed on Rakesh v. State of Haryana [2001 (6) SCC 248],   

Ram Gopal & Anr. V. State of U.P.[1999 Crl. L.J. 1865] and Michael   

Machado v. Central Bureau of Investigation [2000 (3) SCC 262].   

8. As against this, Shri Ponda, learned Counsel appearing on behalf of  

the respondent  accused urged that the analysis  of  Section 319 Cr.P.C.  

itself would show that there has to be de novo inquiry in the sense that the  

newly joined accused in such a trial must be given a right to cross-examine  

the  witnesses  who  were  examined prior  to  the  framing  of  charge.   He  

pointed out that if the interpretation as canvassed by the appellant is given,  

then there is a likelihood of the complainant taking advantage of his own  

wrong and such an interpretation would give rise to a mischief.

9. Learned  counsel  pointed  out  that  the  rulings  pointed  out  by  the  

appellant were not applicable to the controversy.  Learned Counsel also  

urged  that  the  use  of  the  word  ‘evidence’  in  Sections  244,  245,  246,  

Cr.P.C. supports that the accused under those Sections have the right of  

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cross-examination and, more particularly,  if  such a right is not spelt out  

from the language, then it would only mean that the accused in the warrant  

trial  based  on  the  complaint  case  would  have  to  helplessly  watch  the  

charge  being  framed.   This  is  all  the  more  true,  according  to  learned  

Counsel,  in a case where accused has been joined under Section 319,  

Cr.P.C.  On these rival contentions, it is to be seen whether the Trial Court  

and the High Court were right in ordering a de novo inquiry.

10. The relevant part of Section 319, Cr.P.C. is as under 319 (1):

“(1) Where, in the course of any inquiry into, or trial of,  an offence, it appears from the evidence that any  person not being the accused has committed any  offence  for  which  such  person  could  be  tried  together with the accused, the Court may proceed  against  such  person  for  the  offence  which  he  appears to have committed.

(2) XXX XXX

(3) XXX XXX

(4) Where the Court  proceeds against  such person  under sub-Section (1), then-

(a) the proceedings in respect of such person  shall be commenced afresh, and witnesses  re-heard.

(b) subject to the provisions of clause (a), the  case may proceed as if  such person had  been an accused person when  the Court  took cognizance of the offence upon which  an inquiry or trial was commenced.”

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11. Even a glance at this Section suggests that there is no escape from  

commencing the proceedings afresh and also that the witnesses have to  

be re-heard.  Clause (a) is the basic provision and the use of the words  

‘proceedings’ and the term ‘commence afresh’ has its own significance.  If  

we accept the contention of Shri Naphade that the newly joined accused  

has  no right  of  cross-examination,  it  would  mean that  on  being  joined  

under Section 319 (1), Cr.P.C., the only step that would be required would  

be framing of  charge against  him.  In  that,  there would  be a complete  

denial to such accused of an important right of cross-examination of the  

witnesses before the framing of the charge.  It would only then mean that  

such accused would remain a mute spectator till the framing of the charge.  

12. We  would  also  give  a  meaningful  interpretation  to  the  word  

‘proceedings’  which has been deliberately used by the Legislature.  The  

Legislature  does  not  use  the  word  ‘trial’  which  essentially  begins  after  

framing of the charge.  If the Legislature had intended that the newly joined  

accused  should  not  get  the  right  of  cross-examining  the  witnesses  

examined before framing of the charge, it might have used the word ‘trial’.  

The deliberate use of the word ‘proceedings’ would then include not only  

the trial but also the inquiry which commences with Section 244, Cr.P.C.  

and ends with the framing of the charge under Section 246, Cr.P.C.  The  

terminology ‘commence afresh’ has also its own force.  It indicates that the  

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whole  inquiry  which  commences  from Section  244  Cr.P.C.  must  begin  

afresh.   The  interpretation  that  we  give  to  the  words  ‘proceedings’  is  

buttressed by the language of 319 (b), Cr.P.C.  The plain language takes  

back  the  whole  proceedings  to  the  stage  of  taking  cognizance.   If  we  

accept the contention of the appellant herein, then sub-clause (b) would be  

rendered  otiose.   We have,  therefore,  no  doubt  that  the  language  of  

Section 319, Cr.P.C. itself  pushes the proceedings back to the stage of  

inquiry, once the order under Section 319 (1) Cr. P.C. is passed by the  

Court and a new accused is joined therein.  

13. There is one more angle and that is the angle of mischief.  If the  

interpretation given by the appellant is to be accepted then a complainant,  

wherein it is a case of multiple accused, may mischievously join only few of  

them  and  after  getting  the  charge  framed,  make  an  application  under  

Section 319, Cr.P.C. to join some other accused persons who would then  

have no right  of  cross-examination of  the witnesses and who would be  

required to be the mute spectators to the charge being framed against  

which  they  could  have  successfully  resisted  by  cross-examining  the  

witnesses.   

14. There is one more aspect that before summoning the accused under  

Section 319 (1), Cr.P.C. there is no requirement of allowing such accused  

person to cross-examine the witnesses.  That stage comes only after an  

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accused is summoned under sub-Section (1).   Therefore, it  would be a  

case where the newly added accused who has not had the advantage of  

hearing the evidence would be put to prejudice because firstly, he has not  

heard the evidence and secondly,  he cannot even cross-examine those  

witnesses in the warrant trial based on a private complaint.

15. This brings us to the question argued by Shri Naphade on the basic  

right of cross-examination to the accused in the proceedings under Section  

244, Cr.P.C.  In fact, in view of our interpretation of Section 319(4), it is  

really not necessary to go into that question.  However, since the Learned  

Senior Counsel argues that there is no right at all to give opportunity of  

cross-examination  to  any  accused  whether  brought  before  the  Court  

initially or by way of Section 319(1), we proceed to consider the question.   

16. This  Court  has  already  held  that  right  to  cross-examine  the  

witnesses  who  are  examined  before  framing  of  the  charge  is  a  very  

precious right because it is only by cross-examination that the accused can  

show to the Court that there is no need of a trial against him.  It is to be  

seen that before framing of the charge under Section 246, the Magistrate  

has to form an opinion about there being ground for presuming that the  

accused had committed offence triable under the Chapter.  If it is held that  

there is no right of cross-examination under Section 244, then the accused  

would have no opportunity to show to the Magistrate that the allegations  

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are groundless and that there is no scope for framing a charge against  

him.  In  Ajoy Kumar Ghose v. State of Jharkhand [Criminal Appeal   

No. 485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to  

the accused to cross-examine the witnesses examined before framing the  

charge and that the said right is extremely important.  It is observed in para  

25:

“the right of cross-examination is a very salutary right  and the accused would have to be given an opportunity  to cross-examine the witnesses who have been offered  at the stage of Section 244 (1) Cr.P.C.”

17. Therefore, the situation is clear that under Section 244, Cr. P.C. the  

accused has a right to cross-examine the witnesses and in the matter of  

Section 319, Cr. P.C. when a new accused is summoned, he would have  

similar  right  to  cross-examine  the  witness  examined  during  the  inquiry  

afresh.  Again, the witnesses would have to be re-heard and then there  

would  be  such  a  right.   Merely  presenting  such  witnesses  for  cross-

examination would be of no consequence.  This Court has already held so  

in Shashi Kant Singh v. Tarkeshwar Singh & Anr.[2002 (5) SCC 738].

18. Though a feeble attempt was made to argue that in that ruling the  

Supreme Court had expressed, ‘in short there has to be a de novo trial   

against him. The provision of de novo trial is mandatory’ and therefore, it is  

only  a  ‘trial’  which  has  to  be  ordered  and  not  the  ‘proceedings’.   The  

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argument  is  absolutely  incorrect  because  in  Shashi  Kant  Singh’case  

(cited supra), the Court was dealing with a warrant trial case, not based  

on a private complaint and, therefore, the Supreme Court used the words  

de novo trial.  The High court has correctly appreciated this provision.   

19. This  takes  us  to  the  rulings  cited  which  we  must  consider.   In  

Rakesh v. State of Haryana [2001 (6) SCC 248], this Court framed the  

question in paragraph 3 in the following words:

“Whether the statement of a prosecution witness without  the  said  witness  having  been  cross-examined  constitutes  “evidence”  within  the  meaning  of  Section  319, Cr.P.C.”

It is in that behalf that the Court expressed:-

“….the contention that the term 'evidence' as used in  Section  319  Criminal  Procedure  Code  would  mean  evidence which is tested by cross examination cannot  be accepted”

The  Court,  however,  immediately  expressed  that  the  question  of  

discharging the evidence by cross-examination would arise only after the  

addition of the accused and that there was no question of cross-examining  

the witnesses prior to adding such person as accused.  It was further said  

that  the  Section  does  not  contemplate  an  additional  stage  of  first  

summoning the person and giving him the opportunity to cross-examine  

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the witness who has deposed against  him and thereby testing whether  

such person to be added as accused or not.  Once the Sessions Court  

records the statement of the witnesses, it would be part of the evidence.  

Therefore,  it  was  in  different  factual  situation that  this  Court  had made  

those observations.  We do not think that such observations can be taken  

advantage of.  This is apart from the fact that the Court has specifically  

held that the interpretation of the evidence was only for the purpose of  

Section 319, Cr.P.C.

20. To the similar effect was the ruling relied upon by the appellant in  

Ram Gopal & Anr.v. State [1999 CrLJ 1865].  In fact Ram Gopal’s case  

is  also restricted to the interpretation of  the word ‘evidence’  as is used  

under Section 319, Cr.P.C.  Though there are some other observations in  

respect of Section 244, Cr. P.C., we do not think that the observations in  

paragraph 29 are correct.  In fact the observations in paragraph 35 therein  

clarified the ratio of that decision.  In that view, that judgment will be of no  

help.   

21. Our attention was also invited to R.S. Nayak v. A.R. Antulay [1986  

(2) SCC 716] paragraphs 45 and 46.  We do not think that there is any  

need on our part to comment on this case, more particularly, to assess the  

scope  of  Sections  244  and  245,  Cr.  P.C.  because  if  Section  319  (4)  

Cr.P.C.  is  interpreted  in  the  manner  that  we  have  interpreted  it,  there  

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would  not necessity of  going into the scope of Section 244, Cr.P.C. as  

because of that interpretation all the proceedings would be relegated back  

and start  afresh whereby  there would  be clear  scope and right  for  the  

newly added accused to hear the evidence of witnesses examined before  

framing of charge and to cross-examine them.

22. A reference was also made to Michael Machado v. Central Bureau  

of Investigation [2000 (3) SCC 262].  However, in our opinion  Michael  

Machado’s case is not an authority on the true scope of Section 319 (4)  

Cr.P.C.

23. Shri Naphade also tried to suggest by taking us to the old Section  

252, Cr.P.C. to suggest that there is no right of cross-examination.  As we  

have already clarified, once we interpret the provisions of Section 319 (4),  

Cr.P.C. to mean that the proceedings have to go back and have to be  

commenced afresh and the witnesses have also to be re-heard, then the  

right of cross-examination would be innate and under the circumstances  

there would be no necessity of specifically commenting upon the scope of  

Section 244, Cr.P.C.   

24. In view of what we have held, we find that the High Court’s judgment  

confirming the Trial Court’s judgment is correct and we see no reason to  

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interfere  with  the  same.   The  appeal  has  no  merits  and  is,  therefore,  

dismissed.

……………………………..J. (V.S. Sirpurkar)

……………………………..J. (Dr. Mukundakam Sharma)

New Delhi, January 06, 2010

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