Hon'ble Judges/Coram:
P. Sathasivam, C.J.I., B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi and S.A. Bobde

JUDGMENT

B.S. Chauhan, J.

1. This reference before us arises out of a variety of views having been expressed by this Court and several High Courts of the country on the scope and extent of the powers of the courts under the criminal justice system to arraign any person as an accused during the course of inquiry or trial as contemplated under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code of Criminal Procedure').

2. The initial reference was made by a two-Judge Bench vide order dated 7.11.2008 in the leading case of Hardeep Singh (Crl. Appeal No. 1750 of 2008) where noticing the conflict between the judgments in the case of Rakesh v. State of Haryana   MANU/SC/0390/2001 : AIR 2001 SC 2521; and a two-Judge Bench decision in the case of Mohd. Shafi v. Mohd. Rafiq and Anr.   MANU/SC/7294/2007 : AIR 2007 SC 1899, a doubt was expressed about the correctness of the view in the case of Mohd. Shafi (Supra). The doubts as categorised in paragraphs 75 and 78 of the reference order led to the framing of two questions by the said Bench which are reproduced hereunder:

(1) When the power under Sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 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?

3. The reference was desired to be resolved by a three-Judge Bench whereafter the same came up for consideration and vide order dated 8.12.2011, the Court opined that in view of the reference made in the case of Dharam Pal and Ors. v. State of Haryana and Anr.   MANU/SC/1191/2004 : (2004) 13 SCC 9, the issues involved being identical in nature, the same should be resolved by a Constitution Bench consisting of at least five Judges........