Addition of an Accused During Trial

⚠ Three categories of person who may be added

Never named at all. The commonest case: a witness deposes to the participation of a person whose name does not appear anywhere in the investigation.

Named but not charge-sheeted. It is irrelevant that the investigating agency examined him and left him out, or that the report expressly exonerates him. The section exists precisely for that situation, and the officer’s opinion binds nobody.

Previously discharged. A discharge is not an acquittal, and the section operates on the evidence that has since come on record, not on the earlier order. A person acquitted stands differently: section 337 then applies.

📖 Labhuji Amratji Thakor v. State of Gujarat, (2019) 12 SCC 644

Facts: An application was made during a trial to summon additional persons as accused, relying on the evidence of prosecution witnesses in which their names had been mentioned. The question was whether the mention of a name in the course of a deposition is by itself sufficient to found an order.

Held: The Supreme Court held that the mere mention of a name by a witness is not enough. The power rests on evidence from which it appears that the person has committed an offence, and that requires the witness to have deposed to facts attributing a role to him — what he did, what part he took, how he participated. A general statement that a number of persons came together, or a reference to a name without any attribution of an act, does not satisfy the test, however emphatic the reference. The Court reiterated that the satisfaction required is more than that needed to frame a charge against a named accused, and that the power is extraordinary and to be exercised only where the evidence discloses a strong and cogent case. It held that an order made on nothing more than the appearance of a name in a deposition cannot stand.

Ratio: The mere mention of a name by a witness will not support an order under the section. The evidence must attribute a role to the person — what he did and what part he took — and must disclose a strong and cogent case.

📖 Rajesh v. State of Haryana, (2019) 6 SCC 368

Facts: An order summoning additional accused was made on the strength of the examination-in-chief of prosecution witnesses, before those witnesses had been cross-examined. It was contended that the Court should have waited for the cross-examination before acting, since untested evidence cannot found so serious an order.

Held: The Supreme Court held that the power may be exercised on the basis of evidence recorded in examination-in-chief, and that the Court is not required to wait for cross-examination before acting. The word used in the section is “evidence”, and the deposition of a witness in chief is evidence; to require cross-examination first would mean that a person the evidence implicates could not be brought in until much later, and in a long trial might not be brought in at all. The Court held that the degree of satisfaction remains the same whether or not cross-examination has taken place — the evidence must be such that, if unrebutted, it would lead to conviction — and that the Court weighs untested evidence as untested evidence in reaching that satisfaction. It emphasised that the exercise remains extraordinary and is not to be undertaken mechanically.

Ratio: The power may be exercised on examination-in-chief alone; the Court need not wait for cross-examination. The standard of satisfaction is unchanged, and untested evidence is weighed as such.

⚠ The stage question, and how to handle it

The power dies on the pronouncement of judgment and sentence. Once the trial as to the accused before the Court is concluded, there is no proceeding in the course of which the power can operate.

It follows that a Court which is considering adding a person must decide before pronouncing judgment, and, if necessary, must defer the pronouncement while it decides.

That is a trap for a trial court disposing of a long case: it convicts or acquits the accused before it, and only afterwards turns to an application to summon somebody else. By then it is too late, and the application must fail however strong the evidence.

The practical discipline is therefore to dispose of any section 358 question first, and to pronounce judgment only once it is decided.

The position stated shortly

1. The trigger is evidence recorded in court. The case diary, the section 180 statements and the police report do not found an order.

2. The Court may act of its own motion; no application by the prosecution is required.

3. Three categories may be added: a person never named, one named but not charge-sheeted, and one previously discharged. A person acquitted may not, section 337 applying.

4. It is irrelevant that the investigating agency examined the person and left him out, or that the report exonerates him.

5. The mere mention of a name by a witness is not enough. The evidence must attribute a role — what he did and what part he took: Labhuji Amratji Thakor.

6. The power may be exercised on examination-in-chief alone; the Court need not wait for cross-examination, and weighs untested evidence as such: Rajesh v. State of Haryana.

7. If not attending, he may be arrested or summoned; if attending though not under arrest or summons, he may be detained.

8. Section 358(4)(a): the proceedings against him commence afresh and the witnesses are re-heard. He gets his own cross-examination of every witness.

9. Section 358(4)(b): subject to that, the case proceeds as if he had been an accused when cognizance was taken, so limitation runs from that earlier date.

10. The power dies on the pronouncement of judgment. A Court minded to add a person must decide before pronouncing, deferring judgment if necessary.