A constitution bench of Chief Justice P. Sathasivam, Justice B.S Chauhan, Justice Ranjana Prakash Desai, Justice Ranjan Gogoi and Justice S.A. Bobde said that the evidence against such an accused would be sufficient when evidence was being recorded and not at the stage of cross-examination of witnesses.
The court observation came while addressing five questions referred to it by a three- judge bench Dec 8, 2011, on the stage at which Section 319 of the Code of Criminal Procedure (CrPC) would come into play to try a person whose role in a crime surfaces during the course of a trial and at what stage would the evidence be read against such an accused.
Section 319 of the CrPC spells out the proviso for the joint trial of a person, who though not been named as an accused, appears, during the course of investigation or trial, to have committed a crime.
"Where, in the course of any inquiry into, or trial of, an offence, 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," Section 319 (1) says.
The five questions addressed the constitution bench were:
* At what stage can the power under Section 319 can be exercised?
* Does the word "evidence" used in Section 319 (1) only mean evidence tested by cross-examination or can the court exercise this power even on the basis of the statement made in the examination-in-chief of the witness concerned?
* Has the word "evidence" in Section 319 (1) been used in a comprehensive sense and does it include the evidence collected during the investigation or is it limited to the evidence recorded during the trial?
* What is the nature of satisfaction required to invoke the power under Section 319 to arraign an accused? Can this power be exercised only if the court is satisfied that the accused summoned will, in all likelihood, be convicted?
* Does the power under Section 319 extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
--IANS (Posted on 10-01-2014)