Arushi Talwar Case: Applications for Addition Evidence may be rejected if the object is to stall proceedings

Is a criminal court bound to entertain the plea of accepting additional evidence? In a recent judgment, the Supreme Court answered the question in negative.

In a ground breaking development in the already long and controversial Arushi Talwar murder case, a two judge bench of the Hon'ble Supreme Court comprising of Dr. B.S. Chauhan and S.A. Bobde, JJ rejecting the plea of the petitioners seeking for the reports of the Narco-analysis tests, brain mapping tests, polygraph tests, lie detector tests and psychological tests conducted on the 3 persons arrested for allegedly helping the petitioners in the commission of the offence,recently held that the petitioners were adopting dilatory tactics in the trial as the learned Trial Judge who has been conducting the trial is likely to retire very soon. 

In order to arrive at the conclusion the Court considered the fact that the petitioners had not raised any previous objection regarding non-supply of the reports and documents allegedly proved by the witnesses to them or them not being made part of the Court record. They had even participated in the examination and cross-examination of two witnesses. The Hon'ble Court opined that criminal courts are not obliged to accede to the request made by any party to entertain and allow application for additional evidence and in fact, are bound by terms of Section 233(3) Cr.PC. to refuse such request if it appears that they are made in order to vex the proceedings or delay the same.

The full order of the court can be found here

‘Sanction’ Required for an Investigation Order against a 'Public Servant' under Section 156(3) of Code of Criminal Procedure, 1973

Section 156(3) of the Code of Criminal Procedure, 1973 (“Code”), provides that any magistrate, who is empowered under Section 190 (of the Code) to take cognizance of an offence, may order an investigation. Yesterday, Supreme Court of India (“Supreme Court”) has decided a case (AnilKumar & Ors v. M.K. Aiyappa & Anr) wherein the following the question had arisen:

                                            `“Whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation............, in exercise of powers conferred under Section 156(3)  Cr.P.C. without  the  production  of  a  valid sanction  order  under  Section  19  of  the  Prevention  of Corruption Act, 1988.”

(Image Source: Lawyersbook.com)

While section 200 of the Code provides for the competency of a magistrate to take the cognizance of an offence on the basis of a complaint, section 156(3) of the Code provides for magistrate's power to order an investigation . In the present case, a complaint had been filed by the Appellants, Anil Kumar & Ors, before the Special Judge (Prevention of Corruption) thereby accusing the Respondents, M.K. Aiyappa & Anr, of certain offences. The alleged offences, as contended by the Appellants, were under (“IPC”) and Prevention of Corruption Act, 1988 (“Corruption Act”).

“Special Reasons” for Death Penalty under Section 354(3) of Code of Criminal Procedure

Under Section 354(3) of the Code of Criminal Procedure, 1973 (“Code”), the court has to provide ‘special reasons’ before death sentence can be awarded to a convict. In a recent case (Deepak Rai v. State of Bihar), a three-judge bench of the Supreme Court of India (“Supreme Court”) has clarified as to what constitutes “special reasons” under the Code. In the instant case, the appellant-accused, along with other accused, burnt seven persons alive which included a man, his wife and his five children. The incident took place when the deceased man, along with his wife and children, was sleeping at his house. Though the deceased man was burnt alive by putting kerosene over him, his wife and children were fire trapped inside the room which they were sleeping in. It had been pointed out in the judgment that the appellant had committed the crime after the deceased man refused to withdraw a theft case against him.

(Image Source: Fatih University MUN Website)

In this post, I am culling out the relevant part wherein court has discussed Section 354(3) of the Code. The judgment is fairly long and it discusses a number of cases where death penalty has been awarded and rejected. The case involved two main issues: (i) whether the reasons assigned the courts below, for awarding death sentence, are ‘special reasons’, and (ii) whether the impugned matter falls into the category of ‘rarest of rare crimes’. In this post, it is the first issue which I am dealing with.

Retrospective Application of an amended Procedural Law: Right of Action v. Right of Forum

Unless otherwise mentioned in the text of a statute, usually it has a prospective application. The main purpose behind such a principle is to avoid multiplicity of proceedings and litigation for the decided matters. However, this principle of prospective application is not applicable where a provision is of procedural nature. Such a prospective application is applicably only to the substantive part of a statute.

One such issue had come before the Supreme Court (“Court”) in the case of Ramesh Kumar Soni v. State of Madhya Pradesh wherein Court held that enactment of a procedural provision usually has a retrospective application. This is because of the fact that a person has a “vested right of action” but not a “vested right of forum”. In this case, following the passage of Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 1973, offences under Section 467, 468 and 471 of Indian Penal Code, 1860, were made triable by the Court of Sessions instead of a Magistrate of First Class. Subsequently, a reference was made to the M.P. High Court for clarifying the applicability of this amendment. By its order, Full Bench of the High Court held that all cases pending before the Court of Judicial Magistrate First before the amendment remained unaffected and were triable by the Judicial Magistrate First Class.

At a time when investigation was pending in his case, appellant, relying on this decision of Full Bench of the High Court, filed an application before the Judicial Magistrate for remission of his case ("his case was transferred to the Court of Sessions"). The same was rejected by the Judicial Magistrate and was consequently affirmed by the High Court. In appeal, Supreme Court held that a case must be deemed to be instituted only when the Court competent to take cognizance of the offence alleged therein does so. In this situation, no charge-sheet was filed before the court, and hence, no case was pending before the judicial magistrate when amendment came into effect. However, Supreme Court did not concur with the Full Bench  of High Court in relation to the prospective application of the Amendment Act.

As far as the question of retrospective application of amendment Act was concerned, Court referred to its decision in the case of Hitendra Vishnu Thakur and Ors. etc v. State of Maharashtra and Ors. (1994) 4 SCC 602, wherein it summed up the legal position with regard to the procedural law being retrospective in its operation and the right of a litigant to claim that he be tried by a particular Court. Following were the principles laid down by the court:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless  made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be  retrospective in its application, should not be given an extended meaning and should be strictly  confined to its clearly defined limits. 

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. 

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. 

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. 

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”

However, for the cases decided by a court before change in the law, the same shall not become illegal merely because an amendment has changed the forum of trial. If allowed, it will lead to multiplicity of litigation [See: Baburam v. C.C. Jacob and Ors. (1999) 3 SCC 362]. Hence, Court referred to its decision in the case of Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1636 whereby it held that

“amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure”

Apart from the applicability of an act, court also referred to the prospective application of a precedent, a doctrine invoked by this court for the first time in I.C. Golak Nath and Ors. v. State of Punjab and Ors. AIR 1967 SC 1643. By this principle, all actions taken contrary to the declaration of law, prior to the date of the declaration are validated (“in larger public interest”).

In conclusion, it can be said that though a person can move to new forum by virtue of change in law, he cannot do so if the case has already been decided. Otherwise, there will appear a problem every time a change in law is carried out. That would certainly not be in public interest.

Death Penalty - Uncertain Procedure and Life of an Individual

“The judgment does not, with respect, indicate the material that led this Court to conclude what aroused the intense and extreme indignation of the community. Except the nature of the crime, it is not clear on what basis it concluded that the criminal was a menace to society and “shall continue to be so and he cannot be reformed” ( Supreme Court in “Sangeet & Ors. v. State of Haryana” )

Given the grave nature of certain crimes, imposition of Death Penalty has, for a long time, come out to be a proper way of their valid redressal. But, what constitutes this grave nature that will make a crime qualify to be a “rarest of the rare crime”? This has rather been a matter of dispute.

Recent decision of the apex court in the case of Sangeet & Ors v. State of Haryana (decided on Nov. 20, 2012) has once again thrown light on the debate surrounding the issue of death penalty. In this case, an entire family but one was brutally murdered. Considering the nature of crime to be heinous, appellants were sentenced to death by the trail court which, on appeal, was confirmed by the Punjab & Haryana High Court. While discussing the issue, Supreme Court referred to the two landmark judgments Jagmohan Singh v. State of U.P. (1973) 1 SCC 20, decided in accordance with former CrPC Code (1898), and Bachan Singh v. State of Punjab (1980) 2 SCC 684, decided in accordance with the fresh CrPC Code (1973). A number of other cases were also discussed in the judgment.

Change in the nature of Sentencing w.r.t “Death Penalty”- Since 1974, when a fresh CrPC (1973) came into force, the nature of sentencing in cases, where maximum punishment is death penalty, has significantly changed. In earlier code, death penalty appears to be the rule and life sentence an exception (as also other sentences).[1] Contrary to this, under the fresh code, death penalty appears to be exception and life imprisonment a rule.[2]

Ultimately, considering the uncertainty in the procedure governing death penalty in this case, appeal was allowed by the Supreme Court and death sentences were converted into life imprisonment.


"The Constitution Bench made it absolutely clear that the suggestions given by learned counsel were only indicators and not an attempt to make an exhaustive enumeration of the circumstances either pertaining to the crime or the criminal. The Constitution Bench hoped and held that in view of the “broad illustrative guide-lines” laid down, the Courts “will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) [of the Cr.P.C.] viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception." - para 28 

Earlier this year, I came across an article titled “A case against the death penalty”, published on Frontline, which thoroughly examined the issue of death penalty and inconsistencies therein. If one compares this article with the judgment in Sangeet case, the debatable issues are principally the same. Article highlighted a group of retired judges who came in rescue of those wrongly convicted with death sentences. Unfortunately, two of the convicts, who were wrongly convicted, were already executed in 1996 and 1997. According to the retired judges, this “constituted the gravest known miscarriages of justice in the history of crime and punishment in independent India.”

Article 21 of the Constitution of India, 1950, provides to every person a life and personal liberty. This right of life and personal liberty can only be taken away by a procedure established by law. In the light of Maneka Gandhi v. Union of India, it has now become clear that this procedure cannot be “arbitrary, unfair, oppressive or unreasonable”. In India, Code of Criminal Procedure, 1973, empowers the judges to provide a death penalty, and for doing so, reasons are to be noted. But what are the criteria for providing these reasons? Seeing the absence of any such proper mechanism, Supreme Court, in the case of Bachan Singh (supra), came up with certain principles. Unfortunately, these principles have not been followed uniformly. In Bachan Singh (supra), court was of the opinion that due weightage should be given to both the crime and the criminal, instead of crime alone. It was also held that death penalty should be given only in rarest of rare crime. Further, Section 235 of CrPC empowers the judge for giving a judgment once the arguments are heard. Of Course, discretion should be left to the judge deciding a particular case. But, should the life of a person be made subject only to this discretion? Should not there be certain basic principles to be followed with certainty? In the absence of such a certainty, life of a person will depend merely on the what a judge thinks of. There can be a situation when one judge may provide a death sentence, but other judge, on the same facts and circumstances, may not. Whether it should be crime and criminal, or the criminal alone, is a matter which needs thorough deliberation. Reverting back, do all these circumstances leave the procedure under Article 21 of the Constitution  as reasonable? In my opinion, the substantive part of the procedure under Article 21 needs more clarity as far as the death penalty is concerned. In the absence of such a clarity, the life of an individual, though an accused, will be at stake. It is true that certain crime are so grave that death penalty may be warranted for it. Nonetheless, procedure of providing death penalty should have some certainty

From the judgment of the Court in Sangeet Case, and also other cases mentioned therein, it is clear that  in awarding death sentence, there has not been a consistency in the principles followed. Much discretion is provided to the judge in determining what constitutes rarest of rare crime. This uncertainty in the decisions is also because of the change in the judges serving the apex and other courts. It is high that that, if not abolition, then a uniformity should appear in such grave convictions.

contact - abhinav.s@nujs.edu

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[1]See Code of Criminal Procedure, 1898, Section 367(5)

[2] See Code of Criminal Procedure, 1973, Section 354(3)

Proviso to Section 437(1) of CrPC : Is Bail a matter of Right?

Bail, in non-bailable offences, is not a matter of right of the accused person. Section 437 of the Code of Criminal Procedure envisages the provision as regards bail in case of non-bailable offences, which may or may not be granted depending on the discretion of the court. But this provision also provides a proviso which exempts women, and empowers court to grant bail to a woman irrespective of the gravity of the crime. The recent take of CBI Court by refusing bail to Kanimozhi, Member of Parliament who is one of the accused in 2-G Scam case, on the ground that no special consideration can be given to a woman has come with differed opinions. A step on it, an appeal was filed before the Delhi High Court against the decision of CBI court on the ground that the lower court erred in classifying the term “woman” under CrPC when no such classification can be made under CrPC or the Constitution of India. No matter what will be the decision of the High Court, the proviso to Section 437 of the Indian Constitution illustrates the gender biased behaviour of the Criminal law prevailing since its inception. It would be quite interesting to keep a watch on the prospective stand of Delhi High Court in this case. Section 437 of CrPC uses the word “may”, which means it is not mandatory for the court to grant bail to the woman, who is an accused. It is merely an enabling provision which empowers the court to grant bail not only to a woman, but it should also be kept in mind that those provisions which affect fundamental rights of a person shall be given effect generally.[1]

Supreme Court, once while dealing with Section 437 of CrPC, was of the view that though this Section gives special consideration to a woman, it cannot be considered to be a mandatory provision.[2]Though once it had been held by Allahabad High Court that this proviso to Section 437 shall be exercised mandatorily,[3]but the same decision was reversed by Allahabad High Court itself stating that the provision is not mandatory in nature.[4]In the former case, High Court was of the view that the word “may” provided therein under the Code is not discretionary but mandatory in nature, while in the latter case it was of the view that is subjected to judicial discretion. Now, it will depend on the discretion of the Delhi High Court whether it will grant bail to Kanimozhi. Since it would not be mandatory for the court to provide remedy to her under this proviso, claiming bail based on this proviso will not be of much help. Though other instance may go in favour of her for e.g. the duration for which she has been in jail and the tedious behaviour of CBI by not opposing the bail plea. No doubt these facts may well go in her favour, but it would be interesting to see the reaction of the high court towards the reasoning of lower court judge.

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[1] Gurubaksh Singh Sibba v. State of Punjab AIR 1980 SC 1632

[2] Prahalad Singh Bhati v. N.C.T. Delhi & Ors. (2001) 4 SCC 280

[3] Smt. Shakuntala Devi v. State of U.P. 1986 Cri LJ 365 (All.)

[4] P.K. Manglik & Ors. v. Sadhna Rani & Ors. 1989 Cri LJ 1771 ( All.)

Procedural Facet of Supreme Court Decision in Gulberg Society Case

Procedural law, as generally considered, is the core of the judicial system. The whole purpose of substantive law will be ridiculed, if there does not exist its procedural aspect. The recent decision of Supreme Court in the case of Jakia Nasim Ehsan v. State of Gujarat with regard to the extermination of former Member of Parliament, Ehsan Jafri, who was burnt alive in his own house by a group of members, at a time when the state of Gujarat was facing enormous communal violence. In this case, Supreme Court rejected to scrutinise the matter once submission of the final report of the Special Investigation Team, which was formed to investigate the matter. It is significant here to note the reasons behind the rejection of Supreme Court in doing so. Section 173 (1) of the Code of Criminal Procedure states every investigation under this Chapter shall be completed without unnecessary delay. Thus, a competent authority concludes its investigation under this section.

SIT, deriving power from this particular section finished off its investigation and submitted its report to the Supreme Court in the month of July 2011. Even this procedural aspect is divided into two stages. One, whether Supreme Court should direct or not the matter to the competent or, and secondly whether it should supervise the further process which ought to be carried out by the competent. Supreme Court in both the issues decided that it should not indulge into the matter once the final report is submitted by the concerned investigating agency.

The report was filed before the a criminal court, and this criminal court derives its power by virtue of Section 173 (3) of CrPC to take the cognizance of the matter after the completion of the investigation. Supreme Court deciding this affirmatively stated, while relying on its earlier decision in the case of M.C. Mehta (Taj Corridor Scam) Vs. Union of India & Ors. (2007) 1 SCC 110, that –

“The jurisdiction of the Court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the Court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism by an independent and impartial tribunal. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which otherwise takes away the discretionary jurisdiction of any court of law. Once a final report has been filed in terms of sub-section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or the other. If he errs while passing a judicial order, the same may be a subject-matter of appeal or judicial review. There may be a possibility of the prosecuting agencies not approaching the higher forum against an order passed by the learned Magistrate, but the same by itself would not confer a jurisdiction on this Court to step in.”

Bhagwant Singh Vs. Commissioner of Police & Anr. (1985) 2 SCC 537,

“Where the Magistrate to whom a report is forwarded under Section 173(2)(i) of the Code, decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.”

Further, it was held by the Supreme Court in the case of Union of India & Ors. Vs. Sushil Kumar Modi & Ors. (1998) 8 SCC 661, wherein, relying on the decision in Vineet Narain & Ors. Vs. Union of India & Anr. (1996) 2 SCC 199

"...that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making the CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure. We make this observation only to reiterate this clear position in law so that no doubts in any quarter may survive."

Supreme Court does not, under its jurisdiction, act as a trail court and does not look into the facts of the case as trail court does. Further, Supreme Court held that the matter should be directed to the competent court which is empowered to discharge its duty by proceeding with the matter. Concerning second issue, Supreme Court held, while relying on the case of M.C. Mehta and Narmada Bai Vs. State of Gujarat & Ors. (2011) 5 SCC 79 that,

“The above decisions make it clear that though this Court is competent to entrust the investigation to any independent agency, once the investigating agency complete their function of investigating into the offences, it is the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8) of the Code. Thus, generally, this Court may not require further monitoring of the case/investigation. However, we make it clear that if any of the parties including CBI require any further direction, they are free to approach this Court by way of an application."

Hence, it is clear from this case that Supreme does not take cognizance in the matter where an investigation submits its final report. Instead, it forwards the matter to the competent, and further it does not interfere.

Case Laws : Section 319 of Code of Criminal Procedure and Incorporation of New Person to the Trial

This article primarily aims to throw light on the recent decision delivered by the Supreme Court in the case of Sarojben Ashwinkumar Shah Etc. v. State of Gujarat & Ors, where court laid down certain principles to make the procedure to be followed while applying Section 319 of the Code of Criminal Procedure, 1973 which empowers a court to adjoin a person, though not being an accused while the suit was filed turns out to be a person who can be tried along with other accused. This particular case relates to the concept of partnership and the liability of the partners towards each other. Allowing the appeal, court laid down following guidelines to be applied while putting into consideration section 319 –

“(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.

(iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicaing his involvement in the offence as an accused and not otherwise. The word `evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.

(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

(vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.”

Further case laws discussed by the court –

Joginder Singh and Another v. State of Punjab and Another, (1979) 1 SCC 345

“the power conferred under Section 319(1) of the Code is applicable to all courts including a Sessions Court and the Court has power to add any person, not being the accused before it, against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.”

Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others, (1983) 1 SCC 1

"19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it."

Michael Machado and Another v. Central Bureau of Investigation and Another (2000) 3 SCC 262

"11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

12. But even then, what is conferred on the court is only a discretion as could be discerned from the words "the court may proceed against such person".

The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.

14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.

Shashikant Singh v. Tarkeshwar Singh and Another (2002) 5 SCC 738

"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court."

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