TMI Blog2002 (4) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... 319 of the Code has arisen for the first time. The answer would depend upon the interpretation of the words 'could be tried together with the accused' in Section 319 of the Code. The question has come up for consideration under the following circumstances: On the statement of Shashikant Singh, a case under Section 302/34 IPC and under Section 27 of the Arms Act for murder of his brother Shivakant Singh was registered against five persons including respondent No.1 and also one Chandra Shekhar Singh. On completion of investigation, police submitted charge-sheet against Chandra Shekhar Singh showing the other accused as absconders and as far as respondent No.1 is concerned investigation was shown to be pending. Against Chandra Shekh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th April, 2001 is without jurisdiction. The order dated 7th April, 2001 was quashed without issue of notice to the petitioner but on hearing the counsel for the State of Bihar. The other contentions urged during the hearing of the revision petition that (i) the investigation against respondent No.1 was kept pending and on that score, the Court had no power to summon the said respondent under Section 319 of the Code; (ii) the order dated 7th April, 2001 is illegal as no reasons have been assigned for proceeding against respondent No.1 and; (iii) the order was too cryptic, were not gone into by the High Court. The trial against Chandra Shekhar Singh was pending on 7th April, 2001 when the order under Section 319(1) of the Code was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case may require, for the purpose aforesaid. (3) 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. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) 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. Clearly, the proceedings against the person summoned under sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto, 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 re-heard. 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 tend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law of fresh trial is mandatory whereas the mandate that newly added accused could be tried together the accused directory. On facts, the court could not have intended while concluding the trial against Chandra Shekhar Singh, to nullify its earlier order directing issue of warrants against respondent No.1. The construction to be placed on a provision like this has to commend to justice and reason. It has to be reasonable construction to promote the ends of justice. The words 'could be' tried together with the accused' in Section 319(1) cannot be said to be capable of only one construction. If it was so, approach to be adopted would be different since the intention of the Parliament is to be respected despite the consequences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce for determining the point in issue. A magistrate is empowered to take cognizance of an offence in the manner provided under Section 190 of the Code. Section 209 enjoins upon a magistrate to commit the case to the Court of Session when it appears to the magistrate that the offence is triable exclusively by the Court of Session. Section 193 provides for the power of the Court of Session to take cognizance of any offence. It uses the expression 'cognizance of any offence' and not that of 'offender'. These three provisions read with Section 319 make it clear that the words 'could be tried together with the accused' in Section 319 is only for the purpose finding out whether such a person could be put on trial for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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