Case: Harinarayan G. Bajaj Vs. State of Maharashtra and Ors

319(1), we proceed to consider the question. 16. This Court has already held that right to cross-examine the witness 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 are groundness and that there is no scope for framing a charge against him. In Ajoy Kumar Ghose Vs. 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 witness 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 Vs. 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 argument is absolutely incorrect because in Shashi Kant Singhs 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 Vs. 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 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. Vs. State, [1999 Cri.L.J. 1865]. In fact Ram Gopals 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 Vs. 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 would not be 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 Vs. Central Bureau of Investigation [2000(3) SCC 262]. However, in our opinion Michael Machados 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 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 provision 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 reheard, 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. We would also give a meaningful interpretation of 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 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 subclause (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 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.This Court has already held that right to cross-examine the witness 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 are groundness and that there is no scope for framing a charge against him. In Ajoy Kumar Ghose Vs. 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 pararight 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.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 witness 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 Vs. Tarkeshwar Singh & Anr. [2002(5) SCC 738].