JOGENDRA YADAV & ORS. versus STATE OF BIHAR &ANR.
[2015] 9 S.C.R. 69, Supreme Court of India, 2015
Outcome: Dismissed (Dismissed)
Segment: Ratio
[2015) 9 S.C.R. 69 
JOGENDRAYADAV & ORS. 
v. 
STATE OF BIHAR &ANR. 
(Criminal Appeal No. 343 of2012) 
JULY 15, 2015 
[S.A. BOBDE AND R.K. AGRAWAL, JJ.] 
Code of Criminal Procedure, 1973: 
ss. 319, 227 - Nature and power under- Discussed. 
ss. 319, 227 - Discharge uls.227 in case of person 
added as accused u/s.319-Permissibility- Held: A person 
who is added as accused uls. 319 is not entitled to the remedy 
A 
B 
c 
of discharge uls. 227 since it would be contrary to the scheme D 
and intent of Code - The exercise of the power uls. 319 must 
be placed on a higher pedestal - The accused summoned 
u/s.319 are entitled to invoke remedy under law against 
an illegal or improper exercise of the power uls.319, but 
cannot have the effect of the order undone by seeking a E 
discharge uls.227 of the Code. 
s. 319-Accused since inception and accused added ul 
s.319- Distinction between. 
Dismissing the appeal, the Court 
HELD: 1. A perusal of Section 319, Cr.P.C. shows 
that a person who is not an accused may be added as 
F 
an accused only when it appears from the evidence G 
that he has committed any offence for which he could 
be tried together with the accused. The Section says 
that in such an eventuality, the Court "may proceed 
against such person" for the offence which he appears 
to have committed. Section 227 of the Cr.P.C. on the H 
. 
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[2015] 9 ~.C.R. 
A other hand, provides that an accused may be 
discharged if the Judge construes that there is no 
sufficient ground for the proceedings against him. Both 
these provisions, in essence, therefore, have the . 
opposite effect. The power under Section 319 of the 
B Cr.P.C. results in the summoning and consequent 
commencement of the proceedings against a person· 
who was hitherto not an accused and the power under 
Section 227 of the Cr.P.C., results in termination of 
proceedings against the person who is an accused. 
C [Paras 6, 7 and 8] [74-H; 75-A, C, D-E] 
2. There is material difference between an accused 
since inception and accused who has been added as 
such under Section 319 of the Cr.P.C.An accused since 
D inception is not necessarily heard before he is added 
as an accused. However, a person who is added as an 
accused under Section 319 of the Cr.P.C., is necessarily 
heard before being so added. Often he gets a further 
hearing if he challenges the summoning order before 
E the High Court. It seems incongruous and indeed 
anomalous if the two sections are construed to mean 
that a person who is added as an accused by the court 
after considering the evidence against him can avail 
F remedy of discharge on the ground that there is no 
sufficient material against him. 
Moreover, the 
extraordinary power under Section 319, Cr.P.C., can be 
exercised only if very strong and cogent evidence 
occurs against a person from the
evidence led before 
· G the Court. [Para 9] [75-G-H; 76-A-C] 
3. A person is added as an accused under Section 
319 of the Cr.P.C., on the basis of evidence; whereas 
an accused is discharged under Section 227 of the 
H Cr.P.C., on a sifting of material collected i.e. "the record
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR. 
71 
of the case and the document submitted herewith" in A 
order to find out whether or not there is sufficient ground 
for proceeding against the accused. In fact, the mandate 
of Section 228, Cr.P.C., is that the Judge only need be of 
"opinion that there is ground for presuming that the 
accused has committed an offence ..... " before framing 
B 
a charge. An order for addition of an accused made 
after considering the evidence cannot be undone by 
coming to the conclusion that there is no sufficient 
ground for proceeding against the accused without 
appreciation of evidence. [Para 11] [77-F; 78-A-B] 
C 
Hardeep Singh v. State of Punjab and Ors. (2014) 3 
SCC 92: 2014 (2) SCR 1; Ajay Kumar Parmar v. State 
ofRajasthan (2012) 12 sec 406: 2012 (8) 
SCR 
970; New India Assurance Co. Ltd. v. Nus/i Neville 
D 
Wadia and Anr. (2008) 3 sec 279: 2007 (13) SCR 
598 - relied on. 
Case Law Reference 
2014 (2) SCR 1 
relied on. 
relied on. 
relied on. 
Para 9 
E 
2012 (8) 
SCR 970 
2007 (13) 
SCR 598 
Para 11 
Para 12 
CRIMINAL APPELLATE JURISDICTION·: Criminal 
Appeal No. 343 of2012 
F 
From the Judgment and Order dated 24.11.2010 of the 
High Court of Judicature at Patna in Cr. Misc. No. 12193 of 
2008 
G 
Sishir Pinaki, Shailendra Kumar, Suryodaya Prakash 
Tiwari, Amit Pawan for the Appellants. 
Gopal Singh, Prerna Singh, Shekhar Prit Jha, Dr .. Richa 
Awasthi Dubey for the Respondents. 
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SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
The Judgment of the Court was delivered by 
S. A. BOBDE, J. 1. This is an appeal by four persons 
who have been added as accused under Section 319 of the 
Code of Criminal Procedure. 1973 (for short 'the Cr.P.C.') in 
B Sessions Trial No.446/2002 for an offence under Section 302 
read with Sections 149 and 323 of the Indian Penal Code, 
1860 (for short 'the IPC') and Section 27 oftheArmsAct, 1959. 
The trial is being held in respect of the murder of one Saryug 
Yadav. On 04.06.2000, FIR was lodged by an informant under 
C Sections 149, 302 and 323 of the IPC against 8 accused. A 
charge-sheet was submitted on 23.04.2001 only against four 
persons. Later on, a supplementary charge-sheet was 
submitted on 31.01.2003 by which one BhankharYadavwas 
included. A final form was submitted excluding the four 
D appellants herein viz. Jogendra Yadav. Kailash Yadav, Kusum 
Pahalwan, Brijendra Yadav from the array of parties. On 
18.02.2003, the Magistrate accepted the charge-sheet and 
the final form while taking cognizance of the offence. The case 
was committed to the Court of Sessions. 
E 
2. In the course of the trial, the evidence of the widow and 
two sons of the deceased were recorded. On the basis of the 
evidence the Additional Sessions Judge on 05.02.2005 under 
Section 31-9 of the Cr.P.C. issued notice to the appellants 
F asking them to show cause as to why they should not be added 
as accused. After giving an opportunity to
the appellants to 
file a reply, the learned Additional Sessions Judge summoned 
the appellants as accused for being added to the proceedings. 
It is nobody's case that they were not heard before such 
G summon. In any case after the appellants were added, they 
preferred an application under Section 482 of the Cr.P.C. 
before the High Court, which was pending for a long time. They 
finally withdrew this application since they had got relief by 
H way of discharge under Section 227 of the Cr.P.C. The
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR. 
73 
[S. A. BOBDE, J.] 
respondent State preferred a Criminal Revision Application A 
before the High Court. The High Court set aside the Order 
dated 23.09.2006 in Criminal Revision Application passed by 
the Additional Sessions Judge by which the appellants were 
discharged. While setting aside the order, the High Court 
made several observations on the merits of the case as well 
B 
as on the material that was taken into account before 
discharging the appellants - accused. The High Court also 
observed that the order by which the appellants were added 
under Section 319 of the Cr.P.C. was not challenged and was 
allowed to become final. This may not actually be accurate C 
since, as noted above, the appellants had in fact challenged 
the order but had withdrawn the application under Section 482 
of the Cr.P.C. 
3. The High Court also observed that the order of discharge D 
virtually nullifies the order under Section 319 of the Cr.P.C. 
made earlier by which the accused were added. It is this last 
observation which has been put in issue before us. 
4. Mr. Sishir Pinaki, learned counsel for the appellants E 
submitted that Section 227 of the Cc.P.C. can be availed of by 
an accused, even if he is added as an accused under Section 
319 of the Cr. P. C. since the effect of adding such a person is 
that he becomes newly added accused who is entitled to avail 
of all the remedies available to him under the Cr.P.C., in 
F
particular, the remedy of discharge. It is, therefore, necessary 
to construe Section 227 and Section 319 of the Cr.P.C. 
5. Provisions of Sections 227 and 319 of the Cr.P.C. are 
read as under: 
G 
"227. Discharge.- If, upon consideration of the record of 
the case and the documents submitted therewith, and 
after hearing the submissions of the accused and the 
prosecution in this behalf, the Judge considers that there 
H
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SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
is not sufficient ground for proceeding against the 
accused, he shall discharge the accused and record his 
reasons for so doing. 
319. Power to proceed against other persons 
appearing to be guilty of offence.-
ill Where, in the course of any inquiry into, or trial of, an 
offeace, it appears from the evidence that any person 
not being the accused has committed any offence for 
which such person could be tried together with the 
accused, the Court may proceed against such person 
for the offence which he appears to have committed. 
ill Where such person is not attending the Court, he may 
be arrested or summoned, as the circumstances of the 
case may require, forthe purpose aforesaid . 
.Ql Any person attending the Court although not under 
arrest or upon a summons, may be detained by such 
Court for the purpose of the inquiry into, or trial of, the 
offence which he appears to have committed . 
.(12 Where the Court proceeds against any person under 
sub-section (1), then-
.{fil the proceedings in respect of such person shall be 
commenced a fresh, and the witnesses re- heard; 
ill subject to the provisions of clause (a), the case may 
proceed as if such person had been an accused person 
when the Court took cognizance of the offence upon which 
the inquiry or trial was commenced." 
6. On a perusal of Section 319 of the Cr.P.C., it is apparent 
that a person who is not an accused may be added as an 
H
accused only when it appears from the evidence that he has 
committed any offence forwhich he could be tried together
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR. 
75 
[S. A. BOBDE, J.] 
with the accused. The Section says that in.such an eventw=ility, 
A 
the Court "may proceed against such person" for the offence 
which he appears to have committed. In other words, a person 
who is not an accused becomes liable to be added where he 
appears to have committed an offence. Thereupon, the effect 
is that the Court may proceed against such a person. 
B 
7. Secti.on 227 of the Cr.P.C. on the other hand, provides 
that an accused may be discharged if the Judge construes 
that there is no sufficient ground for the proceedings against 
him. In other words, ifthe Judge is of the view that there are no C 
sufficient grounds for the proceedings against the accused, 
he may be discharged, whereupon the proceedings against 
him are dropped. 
8. It is apparent that both these provisions, in essence, o 
have the opposite effect. The power under Section 319 of the 
Cr.P.C. results in the summoning and consequent 
commencement of the proceedings against a person who was 
hitherto not an accused and the power under Section 227 of 
the Cr.P.C., results in termination of proceedings against the E 
person who is an accused. 
9. It was, however, urged by learned counsel for the 
appellants that in order to avail of the remedies of discharge 
under Section 227 of the Cr.P.C., the only qualification 
F 
necessary is that the person should be accused. Learned 
counsel submitted that there is no difference between
an 
accused since inception and accused who has been added 
as such under Section 319 of the Cr.P.C. It is, however, not 
possible to accept this submission since there is a material G 
difference between the two. An accused since inception is 
not necessarily heard before he is added as an accused. 
However, a person who is added as an accused under Section 
319 of the Cr.P.C., is necessarily heard before being so added. 
Often he gets a further hearing if he challenges the summoning 
H
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SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
order before the High Court and further. It seems incongruous 
and indeed anomalous if the two sections are construed to 
mean that a person who is added as an accused by the court 
after considering the evidence against him can avail remedy 
of discharge on the ground that there is no sufficient material 
B against him. Moreover, it is settled that the extraordinary power 
under Section 319 of the Cr.P.C., can be exercised only if very 
strong and cogent evidence occurs against a person from the 
evidence led before the Court. It is now settled vide the 
Constitution Bench decision in Hardeep Singh v. State of 
C Punjab ancJ. Others [(2014) 3 SCC 92] that the standard of 
proof employed for summoning a person as an accused under 
Section 319 of the Cr.PC., is higherthan the standard of proof 
employed for framing a charge against an accused. The Court 
0 
observed for the purpose of Section 319 of the Cr.P.C., that 
"what is, therefore, necessary for the Court is to arrive at a 
satisfaction that the evidence adduced on behalf of the 
prosecution, if unrebutted, may lead to the conviction of a 
person sought to be added as the accused in the case." As 
E 
regards the degree of satisfaction necessary for framing a 
charge this Court observed in para 100:-
F 
G 
H 
"100. However, there is a series of cases wherein this 
court while dealing with the provisions of Sections 227, 
228, 239, 240, 241, 242 and 245 of the Cr.P.C.,
has 
consistently held that the court at the stage of framing of 
the charge has to apply its mind to the question whether 
or not there is any ground for presuming the commission 
of an offence by the accused. The court has to see as to 
whether the material brought on record reasonably 
connect the accused with the offence. Nothing more is 
required to be enquired into. While dealing with the 
aforesaid provisions, the test of prima facie case is to 
be applied. The court has to find out whether the 
materials offered by the prosecution to be adduced as
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR. 
77 
[S. A. BOBDE, J.] 
evidence are sufficient for the court to proceed against 
A 
the accused further". 
The Court concluded in para 106 as follows:-
"106. Thus, we hold that though only a pnina facie case 
is to be established from the evidence led before the 
court, not necessarily tested on the anvil of cross-
examination, it requires much stronger evidence than 
mere probability of his complicity. The test that has to 
be applied is one which is more than prima facie case 
as exercised at the time of framing of charge, but short 
. of satisfaction to an extent that the evidence, if goes 
unrebutted, would lead to conviction ... ..... " 
B 
c 
10. Thus it does not stand to reason that a person who is 0 
summoned as an accused to stand trial and added as such to 
the proceedings on the basis of a stricter standard of proof 
can be allowed to be discharged from the proceedings on the 
basis of a lesser standard of proof such as a prima facie 
connection with the offence necessary for charging the E 
accused. 
11. This view is further fortified by the fact that a person 
is added as an accused under Section 319 of the Cr. P. C., on 
the basis of evidence; whereas an accused is discharged 
F 
under Section 227 of the Cr.P.C., on a sifting of material 
collected i.e. "the record of the case and the document 
submitted herewith" in order to find out whether or not there is 
sufficient ground for proceeding against the accused. In
fact it 
may be noted that the mandate of Section 228, Cr.P.C., is that G 
the Judge only need t5e of "opinion that there is ground for 
presuming that the accused has committed an offence ..... " 
before framing a charge. In fact this Court has held in Ajay 
Kumar Parmar v. State of Rajas than reported in (2012) 12 
SCC 406 that appreciation of evidence at the stage of Section H
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SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
227 of the Cr.P.C., is not permissible (vide para 17). It is, 
therefore, clear that an order for addition of an accused made 
after considering the evidence cannot be undone by coming 
to the conclusion that there is no sufficient ground for 
proceeding against the accused without appreciation of 
B evidence. 
12. We are not unmindful of the fact that the interpretation 
placed by us on the scheme of Sections 319 and 227 makes 
Section 227 unavailable to an accused who has been added 
C under Section 319 of the Cr. P. C. We are of the view, for the 
reasons given above that this must necessarily be so since a 
view to the contrary would renderthe exercise undertaken by 
a Court under Section 319 of the Cr.P.C., for summoning an 
accused, on the basis of a higher standard of proof totally 
D infructuous and futile if the same court were to subsequently 
discharge the same accused by exercise of the power under 
Section 227 of the Cr.P.C., on the basis of a mere prima facie 
view. The exercise of the power under Section 319 of the 
Cr.P.C., must be placed on a higher pedestal. Needless to 
E say the accused summoned under Section 319 of the Cr.PC., 
are entitled to invoke remedy under law against an illegal or 
improper exercise of the power under Section 319, but cannot 
have the effect of the order undone by seeking a discharge 
F 
under Section 227 of the Cr.P.C. If allowed to, such an action 
of discharge would not be in
accordance with the purpose of 
the Cr. P. C in enacting Section 319 which empowers the Court 
to summon a person for being tried along with the other 
accused where it appears from the evidence that he has 
G committed an offence. It would be apposite to refer to the 
principle of purposive construction of a statute invoked by this 
Court in New India Assurance Co. Ltd. v. Nus/i Neville 
Wadia and Anr. (2008) 3 SCC 279, which is as under: 
"51 ........ With a view to readthe provisions of the Act in 
a proper and effective manner, we are of the opinion 
H
JOGENDRA YADAV & ORS. v. STATE OF BIHAR &ANR. 
[S. A. BOBDE, J.] 
that literal interpretation, if given, rnay give rise to an 
anomaly or absurdity which must be avoided. So as to 
enable a superior court to interpret a statute in a 
reasonable manner, the court must place itself in the 
chair of a reasonable legislator/author. So done, the 
rules of purposive construction have to be resorted to 
which would require the construction of the Act in such 
. a manner so as to see that the object of the Act is 
fulfilled, which in turn would lead the beneficiary under 
the statutory scheme to fulfil its constitutional obligations 
as held by the Court inter a/ia in Ashoka Marketing Ltd. 
52. Barak in his exhaustive work on "Purposive 
Construction" explains various meanings attributed to 
the term ''purpose". It would be in the fitness of discussion 
to refer to Purposive Construction in Bara k's words: 
"Hart and Sachs also appear to treat 'purpose' as a 
subjective concept. I say 'appear' because, although 
Hart and Sachs claim that the interpreter should imagine 
himself or herself in the legislator's shoes, they 
introduce two elements of objectivity: First, the 
interpreter should assume that the legislature is 
composed of reasonable people seeking ·to achieve 
reasonable goals in a reasonable manner; and second, 
the interpreter should accept the non-rebuttable 
presumption that members of the legislative body 
sought to fulfil their constitutional duties in good faith.
This formulation allows the interpreter to inquire not into 
the subjective intent of the author, but rather the intent 
the author would .have had, had he or she acted 
reasonably." 
79 
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13. Ms. Prerna Singh, learned counsel for the State also 
submitted that a person who is an accused under Section 319 
ought not to be given an opportunity to avail of the remedy of H

80 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
discharge under Section 227 since it would be contrary to the 
scheme and intent of the Cr.P.C. 
14. We have no difficulty in accepting this submission for 
the reasons stated above. We are also satisfied that it would 
s not result in any undue hardships to the accused since the 
remedy before a superior court is available. 
c 
15. In the result, we see no merit in the appeal which is 
liable to be dismissed. 
16. The criminal appeal is dismissed in view of the above. 
Devika Gujral 
Appeal dismissed.