KISHUN SINGH AND ORS. versus STATE OF BIHAR

Citation: [1993] 1 S.C.R. 31 · Decided: 11-01-1993 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Dismissed
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Judgment (excerpt)

KISHUN SINGH AND ORS. 
v. 
STATE OF BIHAR 
JANUARY 11, 1993 
[A.M. AHMADI AND N.P. SINGH, JJ.] 
• 
Code of Criminal Procedure, 1973-Section 31'>-Application and pro-
cedure of-l'ower under-lnvokability. 
A 
B 
Code of Criminal Procedure, 1973-Sections 154, 156, 173, 190, 191, 
C 
193, 200, 204, 209, 227, 22S-Setting Criminal Law into motion-Modes 
of-Cognizance of offencHJuty of Court-'Take Cognizance'-Meaning of. 
On the evening or 27th February, 1990, informant's yonnger brother 
was attacked by twenty persons including the present two appellants wl~ 
. sticks, etc. First Information Report was lodged at about 9.30 p.m. on the D 
· same day in .which all the twenty .persons were named as the assailants. 
The injured died in the hospital on the next day. 
In course of investigation statements of the informant and others 
-re recorded and a charge-sheet was forwarded to the Court of the _ E 
Magistrate wherein eighteen persons, were shown as ·the offenders. The 
names of the present two appellants were not Included In the report, as in 
the opinion of the investigating officer their Involvement in the commls· 
sion of the crime was not established. 
The eighteen persons named in the report were c"mmitted to the F 
Court of Session under Section 209 of the Code of Criminal Procedure te 
· ~ 
stand trial. 
When the matter came up before the Sessions Judge, an application 
was presented under Section 319 of the Code praying to lmplead the G 
appellants also as accused persons. 
To the show cause notice issued to the appellants, they submitted 
) 
that though they were not present at the place or occurrence, they were 
falsely named In the First Information Report and'the investigating ofticer 
bad rlglldy omitted their .names from the charge-sheet filed in Court. 
H 
31 
32 
SUPREME COURT REPORTS 
[1993) 1 S.C.R. 
A 
The Sessions Judge rejected the plea of the appellants and im-
pleaded them as co-accused along with the eighteen others. This was done 
before the commencement of the actual trial. 
The appellants' revision filed before the High Court was dismissed. 
B 
The appellants moved this Court by special leave under Article 136 
or the Constitution of India, against the High Court's order contending 
that unless evidence was recorded during the course or trial, the Sessions 
Judge bad no jurisdiction under Section 319 of the Code of Criminal 
Procedure to take cognizance and implead the appellants as co-accused 
C solely on the basis or the material collected in the course of investigation 
and appended to the report forwarded under Section 173 or the Code in 
view oC the clear mandate of Section 193 of the Code; that since the trial 
bad not commenced and the prosecution bad not led any evidence, the 
stage for the exercise of the power had not reached. 
D 
Dismissing the appeal, this Court 
HELD : 1.01. On a plain reading of sub-section (1) of Section 319 
there can be no donbt that it must appear from the evidence tendered in 
the conrse of any inquiry or trial that any persoil not being the accused 
has committed any offence for which he could be tried together with the 
E 
accused. 
F 
1.02. This power, can be exercised only if it so appears from the 
evidence at the trial and not otherwise., Therefore, the sub-section con· 
templates existence of some evidence appearing in the course of trial 
wherefrom the Court can prima facie conclude that the person not ar· 
raigned before It is also involved in the commission of the crime for which 
be can be tried with those already named by the police. 
1.03. Even a person who bas earlier been discharged would fall 
within the sweep of the power conrerred by Section 319 of the Code. 
G Therefore, stricto sensu Section 319 of the Code cannot be invoked in a case 
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 these already sent up for trial by the prosecution. 
1.ll4. Section 319 covers the post-congnizance stage where in the 
H course of an inquiry or trial the involvement or complicity of a person or 
KISHUN SINGH v. STATE 
33 
persons not named by the investigating agency has surfaced which neces· A 
-...,. 
sitates the exercise of the ·discretionary power conferred by the said 
provision. 
1.05. Section 319 can be invoked both by the Court !laving original 
jurisdiction as well as the Court to which the case has been committed or B 
transferred for trial.
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