GURIYA@TABASSUM TAUQUIR AND ORS. versus STATE OF BIHAR AND ANR.

Citation: [2007] 10 S.C.R. 385 · Decided: 28-09-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

j 
GURIYA@TABASSUM TAUQUIR AND ORS. 
A 
~ 
V. 
STATE OF BIHAR AND ANR. 
SEPTEMBER 28, 2007 
B 
{DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.) 
)-
Code of Criminal Procedure, 197 3: 
.. 
s. 319-Nature and scope of-Held: The power under the c 
provision is discretionary and extraordinary-It can be exercised by 
Court suo motu as well as on application-Court has the jurisdiction 
to direct trial of a person not an accused before it-But such 
jurisdiction has to be used sparingly and only when compelling reasons 
exist for such action. 
D 
" 
s. 319-Trial of accused-Not originally arraigned as accused-
-.. 
Permissibility-Trial sought on the basis of evidence of witness 
examined on permission of Court after closure of prosecution evidence 
and recording of statement of accused-Evidence of PWs not 
E 
attributing specific roles to the accused-Held: Trial of the accused is 
not permissible in the facts of the case. 
s. 319(4)(l)(b)-Cognizance of accused-Subsequently added in 
trial-Held: Cognizance would be presumed to have. been taken in 
~· 
respect of such person by virtue of legal fiction created under the F 
provision-Cognizance. 
Words and Phrases-'Evidence '-Meaning of in the context of 
s. 319Cr.P.C. 
On a complaint, three persons were arraigned as accused and the G 
~ appellants herein were not arraigned as accused. PWs 1, 2 and 3, in 
their evidence, had stated only about the presence of the appellants and 
no definite roles were ascribed to them. After closure of prosecution 
evidence and after examination of the accused u/s 313 Cr.P.C., an 
385 
H 
SUPREME COURT REPORTS 
__ , 
[2007] IO S.C.R. 
386 
A application u/s 311 Cr.P .C. was filed and on its being allowed two more 
witnesses namely PWs 4 and 5 were examined. Thereafter an application 
u/s 319 Cr.P.C. was filed seeking trial of the appellants herein, in view 
of examination of PWs 4 and 5 new evidence has surfaced requiring 
their trial Trial Court rejected the application holding that no such case 
B was made out However in their revisionaljurisdiction, Sessions Judge 
as well as High Court held that there were materials against the 
appellants, on the basis of which his trial was required. Hence the present 
appeal. 
C 
Allowing the appeal, the Court 
HELD: 1.1 On a careful reading of Sec. 319 Cr.P.C. as well as the 
law laid down by this Court, it becomes clear that the trial court has 
undoubted jurisdiction to add any person not being the accused before 
- it to face the trial along with other accused persons, if the Court is 
D satisfied at any stage of the proceeding on the evidence adduced that 
the persons who have not been arraigned as accused should face the 
_ _;, 
trial. [Para 13] 
I" 
Joginder Singh and Anr. v. State of Punjab and Anr., AIR (1979) 
E SC 339 and Municipal Corporation of Delhi v. Ram Kishan Rohtagi and 
Ors., [1983] 1SCC1, relied on. 
1.2. It is further evident that such person even though had initially 
been named in the F.I.R. as an accused, but not charge sheeted, can 
F also be added to face the trial. The trial court can take such a step to 
add such persons as accused only on the basis of evidence adduced 
before it and not on the basis of materials available in the charge-sheet 
or the case diary, because such materials contained in the charge sheet 
or the case diary do not constitute evidence. The position of an accused 
G who has been discharged stands on a different footing. 
[Para 13] [394-H; 395-A] 
Sohan Lal and Ors. v. State of Rajas than, AIR (1990) SC 2158, relied 
on. 
H 
13. Power under Section 319 Cr.P.C. can be exercised by the Court 
GURIYA@TABASSUM TAUQUIR v. STATE OF BIHAR 387 
suo motu or on an application by someone including accused already A 
~ 
before it, if it is satisfied that any person other than accused has 
committed an offence and he is to be tried together with the accused. 
The power is discretionary and such discretion must be exercised 
judicially having regard to the facts and circumstances of the case. 
Undisputedly, it is an extraordinary power which is conferred on the B 
Court and should be used very sparingly and only if compelling reasons 
exist for taking action against a person against whom action had not 
')-
been taken earlier. [Para 14) [395-D-E) 
~ 
Michael Machado and Anr. v. Central Bureau of Investigation and c 
Anr., (2000] 3 SCC 262 and Krishnappa v. State of Karnataka, (2004] 7 
sec 792, relied on. 
1.4. The word "evidence" in Section 319 Cr.P.C. contemplates 
evidence of 

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