Judgment :-

1. A two-Judge Bench (Hardeep Singh v. State of Punjab, (2009) 16 SCC 785 : (2010) 2 SCC(Cri) 355) of this Court has referred the following questions of law for consideration by a three-Judge Bench: (SCC p. 803, para 75).

(1) When the power under sub-section (1) of Section 319 of the Code of Criminal Procedure, 1973 of addition of the accused can be exercised by a court? Whether application under Section 319 of the Code is not maintainable unless the cross-examination of the witness is complete?

(2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the court is satisfied that the accused summoned in all likelihood would be convicted?

(emphasis in original)

2. We have heard the learned counsel appearing on behalf of the parties and perused the various judgments cited by them.

3. A three-Judge Bench of this Court in Dharam Pal v. State of Haryana (2004) 13 SCC 9 : (2006) 1 SCC (cri) 273), doubted the correctness of the interpretation reached in Ranjit Singh v. State of Punjab (1998) 7 SCC 149) : 1998 SCC (Cri) 1554) and referred the matter to a larger Bench. In that case, this Court further observed that the law was correctly enunciated in Kishun Singh V. State of Bihar (1993) 2 SCC 16 : 1993 SCC (Cri) 470).

4. The issues involved in these cases are identical in nature. Since all the abovementioned decisions of this Court have been rendered by three-Judge Benches, therefore, we deem it appropriate to refer these appeals/SLPs to the Constitution Bench for consideration of the following questions:

(i) What is the stage at which power under Section 319 of the Code of Criminal Procedure, 1973 can be exercised?

(ii) Whether the word “evidence” used in Section 319(1) of the Code of Criminal Procedure, 1973 could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

(iii) Whether the word “Evidence” used in Section 319(1) of the Code of Criminal Procedure, 1973 has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 of the Code of Criminal Procedure to arraign an accused? Whether the power under Section 319(1) of the Code of Criminal Procedure, 1973 can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

(v) Does the power under Section 319 of the Code of Criminal Procedure, 1973 extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

5. Let the records of these cases be placed before the Hon’ble Chief Justice of India for referring these matters to a Constitution Bench of at least five judges.