Power to Proceed Against Other Persons Section 358

Section 358, BNSS 2023

(1) 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.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances 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.

📖 Brijendra Singh v. State of Rajasthan, (2017) 7 SCC 706

Facts: An application was made during a trial to summon additional persons as accused on the strength of the evidence of prosecution witnesses, and the question was the degree of satisfaction the Court must reach before exercising the power.

Held: The Supreme Court held that the power is an extraordinary one to be used sparingly and only where compelling reasons exist for taking a person into the trial. The test lies between two familiar standards: the satisfaction required is more than the prima facie case needed to frame a charge against a named accused, but short of the satisfaction required to convict. The Court described it as requiring evidence of such a nature that, if it goes unrebutted, it would lead to conviction — a strong and cogent case against the person sought to be added, not a mere probability of his complicity and certainly not a vague suspicion. The Court emphasised that the exercise is not to be undertaken in a casual or cavalier manner, because summoning a person as an accused in a pending trial exposes him to the whole of a criminal proceeding on material he has had no opportunity to answer.

Ratio: The power is extraordinary and to be used sparingly. The satisfaction required is more than at the charge stage and less than at conviction: evidence which, if unrebutted, would lead to conviction — a strong and cogent case, not a mere probability.

📖 Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC 289 (five Judges)

Facts: A trial court pronounced judgment convicting and sentencing the accused before it, and thereafter summoned an additional person as an accused under the provision corresponding to section 358. The Constitution Bench was required to decide the stage up to which the power may be exercised, particularly where some accused have been tried and the trial as to them is concluded.

Held: The Constitution Bench held that the power may be exercised at any time before the pronouncement of judgment, but not thereafter: once the judgment of conviction or acquittal has been pronounced and the sentence passed, the trial as to those accused is at an end, and there is no proceeding in the course of which the power can operate. It held that a Court which is inclined to summon an additional person must therefore exercise the power before pronouncing judgment, and, where it is engaged in a trial of several accused of whom some have absconded or are to be tried separately, must defer the pronouncement if it intends to add a person, so that the trial continues as one proceeding. The Court laid down that the summoning order must be passed before the judgment, that the Court should conclude the trial and pronounce judgment on the accused before it only after deciding whether to add anyone, and that the proceedings against a person added commence afresh with the witnesses re-heard.

Ratio: The power may be exercised at any time before the pronouncement of judgment, and not after. Once judgment is pronounced and sentence passed, the trial is at an end and there is no proceeding in which the power can operate.

⚠ Three points that follow

Examination-in-chief may suffice. The power rests on evidence, and the Court need not wait for cross-examination before acting on what a witness has said in chief — though the weight of an untested statement is a matter for the Court’s judgment.

A discharge is no bar. A person previously discharged may be proceeded against under the section, because a discharge is not an acquittal and the section operates on the evidence rather than on the earlier order. A person acquitted stands differently, section 337 then applying.

The investigating agency’s view is irrelevant. It does not matter that the police examined him and left him out, or that the report expressly exonerates him. The section exists precisely for that situation.

The position stated shortly

1. Section 358 permits a Court, where it appears from the evidence in an inquiry or trial that a person not being the accused has committed an offence for which he could be tried together with the accused, to proceed against him.

2. It operates on evidence recorded in court, not on the material collected during the investigation. The case diary and the police report do not found an order under it.

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

4. The person may be arrested or summoned if not attending, and may be detained if attending though not under arrest or summons.

5. The proceedings against him commence afresh and the witnesses are re-heard; subject to that, the case proceeds as if he had been an accused when cognizance was taken.

6. The satisfaction required is more than at the charge stage and less than at conviction: evidence which, if unrebutted, would lead to conviction — a strong and cogent case, not a mere probability: Brijendra Singh.

7. The power is extraordinary and to be used sparingly, only where compelling reasons exist.

8. It may be exercised at any time before the pronouncement of judgment, and not after: once judgment is pronounced and sentence passed the trial is at an end: Sukhpal Singh Khaira.

9. Examination-in-chief may suffice; a discharge is no bar, a discharge not being an acquittal; and it is irrelevant that the investigating agency examined the person and left him out.

10. Section 358 reproduces section 319 of the CrPC in substance, and the whole body of authority on that section applies without qualification.