Hardeep Singh vs State of Punjab and Others etc. etc.

A two Judge Bench of this Court has referred the following questions of law for consideration by a three Judge Bench:

(a) When the power Under Sub-section (1) of Section 319 of the Code of Criminal Procedure, 1973, of addition of accused can be exercised by a Court? Whether application u/s 319 of the Code is not maintainable unless the cross-examination of the witness is complete?

(b) What is the test and what are the guidelines of exercising power Under Sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?

We have heard the learned Counsel appearing on behalf of the parties and perused various judgments cited by them.

A three Judge Bench of this Court in the case of Dharam Pal and Another Vs. State of Haryana and Another, doubted the correctness of the interpretation reached in Ranjit Singh Vs. State of Punjab, and referred the matter to a larger Bench. In that case, this Court further observed that the law was correctly enunciated in Kishun Singh and Others Vs. State of Bihar,

The issues involved in these cases are identical in nature. Since all the above-mentioned decisions of this Court have been rendered by three Judge Benches, therefore, we deem it appropriate to refer these appeals/SLPs to the Constitution Bench for consideration of the following questions:

(i) What is the stage at which power u/s 319 of the Code of Criminal Procedure, 1973 can be exercised?

(ii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination- in-chief of the witness concerned?

(iii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke the power u/s 319 of the Code of Criminal Procedure to arraign an accused? Whether the power u/s 319(1) of the Code of Criminal Procedure, 1973 can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

(v) Does the power u/s 319 of the Code of Criminal Procedure, 1973 extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

Let the records of these cases be placed before Hon'ble the Chief Justice of India for referring these matters to a Constitution Bench of at least five Judges.

Mr. S.R. Singh, learned senior counsel for the Petitioners in SLP (Crl) No. 5331/2009 commenced his submissions at 12:20 P.M. and concluded at 3:00 P.M.

Thereafter Mr. Vinod A. Bobde, learned senior counsel for the Petitioners in SLP (Crl) No. 9184/2008 made his submissions and was on his legs when the Court rose for the day at 4.00 P.M. leaving the matters part-heard.

CRL.M.P. No. 24292/2011 in S.L.P.(Crl.) No. 9184/2008:

Prayer for impleadment is allowed. In this application it is mentioned that the applicant is in jail for last about six years while the trial has been stayed by order dated 17.12.2008 passed by this Court. The apprehension of the learned Counsel for the applicant is that after reference of these cases to a larger Bench, it may take a few months more before the reference is answered by the Constitution Bench and the applicant will have to remain in jail. In this view of the matter, let this matter be placed before a regular Bench for adjudication of the prayer for bail in the last week of January, 2012.

CRL.M.P. No. 21161/2008 in S.L.P.(Crl.) No. 9184/2008:

Application for impleadment/intervention is allowed. The bail applications by the impleaded parties be listed before the regular Bench in the last week of January, 2012.

CRL.M.P. No. 22878/2010 in SLP(Crl.) No. 9040/2010:

This application for stay be listed before a regular Bench of this Court in the last week of January, 2012.

All the appeals and the SLPs are referred to the Constitution Bench in terms of the signed order.