Section 358 BNSS / Section 319 CrPC — Summoning Additional Accused During Trial Explained

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Why This Provision Matters

In many trials, the picture that emerges from oral evidence is wider than the one the police charge-sheet captured. A witness in the box may name a person the investigating officer left out — sometimes deliberately, sometimes by error. Section 319 CrPC (now Section 358 BNSS) lets a trial court add such a person as an additional accused and try him with those already on the array.

The power is necessary and also dangerous. Used without restraint, it can drag a citizen into trial without the safeguards of investigation, a Section 161 / 180 BNSS statement, or cognizance on a charge-sheet. Two Constitution Bench rulings cabin it — Hardeep Singh on the standard and Sukhpal Singh Khaira on the stage.

The Statutory Text

Section 358, BNSS, 2023

“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.”

The language is materially identical to Section 319 CrPC. Sub-sections (2)–(4) carry over verbatim: the person may be arrested or summoned; the proceedings against him are deemed to commence afresh and witnesses are to be re-heard; cognizance taken of a co-accused does not curtail his right to a full trial.

When May the Power Be Exercised?

1. Trial Must Have Begun and Evidence Must Be on Record

The threshold conditions are statutory: an “inquiry” or “trial” must be in progress, and the trigger must be “evidence” — not the case diary, not the FIR, not the charge-sheet. The Constitution Bench in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 held that “evidence” for Section 319 includes statements recorded during examination-in-chief, even before cross-examination is complete.

2. Standard: “More Than Prima Facie, Less Than Conviction”

Hardeep Singh fixed the test above the prima facie satisfaction required for framing a charge but below the proof beyond reasonable doubt required for conviction. The evidence must be “strong and cogent” — such that, if un-rebutted, it would lead to conviction.

Brijendra Singh v. State of Rajasthan, (2017) 7 SCC 706 and later decisions warn trial courts against a mini-trial at the Section 319 stage: the court satisfies itself on the cogency of the evidence; it does not weigh credibility on the scales it will apply at conclusion.

3. Categories of Persons Who May Be Summoned

Hardeep Singh identifies three categories who may be brought in:

Persons not named in the FIR;
Persons named in the FIR but not charge-sheeted; and
Persons earlier discharged in the proceedings.

A person already acquitted on the merits stands apart — double jeopardy bars Section 319 from being used to circumvent the acquittal.

4. Stage: Before the Pronouncement of Sentence or Acquittal

The Constitution Bench in Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC 289 held that the power must be exercised before the pronouncement of the order of sentence (in case of conviction) or the order of acquittal. A summoning order passed after the trial of the original accused has concluded is unsustainable. The reasoning is structural — once judgment is pronounced, the court is functus officio qua the trial; a fresh summoning would leave the additional accused without the benefit of a joint trial and without the protections of Sections 273 and 311 CrPC.

Procedure Once Summoning Is Ordered

The court records a reasoned order indicating the evidence on which it is satisfied that the person could be tried together with the existing accused. The order is followed by:

Process to compel attendance. Summons under Section 63 BNSS (§ 61 CrPC); if needed, a warrant under Section 72 BNSS (§ 70 CrPC); proclamation and attachment under Sections 84–86 BNSS (§§ 82–83 CrPC) if he absconds.
Fresh start qua the new accused. Section 358(4) BNSS / 319(4) CrPC deems proceedings against the newly summoned accused to commence afresh; witnesses must be re-heard in his presence.
Right to cross-examine. The newly added accused may cross-examine every witness whose evidence is or will be relied on against him. Pre-summoning evidence not so re-tested cannot ground his conviction — see Pramod Kumar Singh alias Guddu Singh v. State of UP, 2026 LiveLaw (AB) 304.
Charge. A separate charge is framed; he is entitled to plead guilty or claim trial.

Common Errors That Lead to Reversal

Appellate courts routinely set aside summoning orders (and sometimes the resulting convictions) where:

The trial court relied on the FIR or case diary, not evidence recorded in court.
The order is unreasoned — it parrots the witness’s name without analysing the strength of the testimony.
Summoning is ordered after the original trial has concluded by judgment.
The newly summoned accused is convicted on the very deposition that triggered the summoning, never re-tendered in his presence.
The power is used to circumvent a prior discharge on the same material without fresh evidence justifying departure.

CrPC to BNSS — Quick Mapping

Subject	CrPC, 1973	BNSS, 2023
Summoning additional accused	Section 319	Section 358
Recording of evidence in presence of accused	Section 273	Section 308
Power to summon material witness	Section 311	Section 348
Cognizance of offence	Section 190	Section 210
Filing of charge-sheet	Section 173	Section 193
Statement of witnesses during investigation	Section 161	Section 180

Section 319’s substantive content is carried over into Section 358 verbatim. The case law built around the older provision — Hardeep Singh, Sukhpal Singh Khaira, Brijendra Singh and the subsequent line — therefore applies to BNSS prosecutions as well.

Practical Notes

Defence of an existing accused. Section 358 / 319 cuts both ways. If the prosecution case implicates a person who could absorb the weight of the offence, an early application to bring that person on the array is a legitimate defence strategy.
A person summoned mid-trial. The summoning is not the end. Insist on compliance with sub-section (4) — fresh trial, re-examination of witnesses — and preserve the record for appeal. A Section 482 CrPC / 528 BNSS challenge to the summoning order itself lies only on the narrow ground that no evidence of the requisite quality exists on record.
No revival of acquittal. Once a person is acquitted on the merits (not merely discharged), Article 20(2) and Section 337 BNSS (§ 300 CrPC) bar Section 319 / 358.

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