Section 319 CrPC vs Section 358 BNSS — Summoning Additional Accused

In India, Section 358 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 319 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024, word for word. A trial court may still proceed against a person not charge-sheeted if the trial evidence shows he committed an offence triable with the accused.

At a glance

The heading, "Power to proceed against other persons appearing to be guilty of offence", is the same in both Codes. There is no punishment or First Schedule entry; this is a trial-court power.

What changed

• Identical — heading: the Gazette marginal heading and the official BNSS text both read "Power to proceed against other persons appearing to be guilty of offence."
• Identical — sub-sections (1) to (4): every word is the same, including "in the course of any inquiry into, or trial of, an offence", "it appears from the evidence", "any person not being the accused" and "could be tried together with the accused".
• Neighbouring provisions renumbered: the two provisions the Supreme Court has read with Section 319 for a person already discharged are now Section 337(5) BNSS (a person discharged under Section 281 not to be tried again for the same offence without the court's consent; formerly Section 300(5) CrPC, which referred to Section 258) and Section 439 BNSS (power of the High Court or Sessions Judge to order further inquiry into the case of a person who has been discharged; formerly Section 398 CrPC).

Statutory text (relevant extract)

Extract, Section 319(1) CrPC (repealed from 1 July 2024):

(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.

Extract, Section 358(4) BNSS:

(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.

How it works — the conditions and steps

1. An inquiry or trial must be under way. The power arises "in the course of any inquiry into, or trial of, an offence" (Section 358(1)). Sukhpal Singh Khaira fixes the outer limit: before sentence after a conviction, or before an order of acquittal.
2. It must appear "from the evidence". Hardeep Singh held that statements in examination-in-chief are evidence for this purpose, so the court need not wait for cross-examination (para 85).
3. The person must not already be an accused. "Any person not being the accused" covers a person never named, a person named in the FIR but not charge-sheeted, and a person left in column 2 of the charge-sheet (Hardeep Singh, paras 109-110; Omi @ Omkar Rathore, para 21). A person already discharged can be proceeded against only after the inquiry now provided by Sections 337(5) and 439 BNSS (Hardeep Singh, paras 108-110, on the CrPC equivalents).
4. Joint trial must be possible. The offence must be one "for which such person could be tried together with the accused".
5. Degree of satisfaction. More than the prima facie case needed to frame a charge, but short of satisfaction that the evidence, if unrebutted, would lead to conviction (Hardeep Singh, para 99).
6. Securing attendance. A person not in court may be arrested or summoned (Section 358(2)); one who is present may be detained (Section 358(3)).
7. Fresh start. The proceedings against the newly added person are commenced afresh and the witnesses re-heard (Section 358(4)(a)); otherwise the case proceeds as if he had been an accused from cognizance (Section 358(4)(b)).

What this means in practice

For the complainant, victim and prosecutor

• Apply once a witness's examination-in-chief implicates a person not on trial. Hardeep Singh confirms the court need not wait for cross-examination; Omi upheld summoning on the complainant's examination-in-chief.
• A closure report or the investigating officer's view does not stop the court from summoning a person the trial evidence implicates (Omi, paras 19 and 21).
• Apply before the trial ends. Under Sukhpal Singh Khaira, the order must precede the sentence or the acquittal; if the case is already reserved for judgment, the court should set it down for rehearing (para 33).

For the person sought to be summoned and his advocate

• The test is higher than the charge-framing standard (Hardeep Singh, para 99), and the power is to be used sparingly, not "in a casual and cavalier manner" (para 98). A summoning order should record why the evidence meets that test.
• Section 358(4)(a) requires the proceedings against the summoned person to be commenced afresh and the witnesses re-heard; on a reading of that text, evidence recorded before he was added cannot simply be read against him.
• If the person was earlier discharged, the route is the inquiry procedure under Sections 337(5) and 439 BNSS, not Section 358 directly (Hardeep Singh, para 109, on Sections 300(5) and 398 CrPC).

For the trial judge

• Sukhpal Singh Khaira (para 33) directs that when evidence or an application under Section 319 appears, the court should pause the trial, decide on summoning first, and then decide whether the summoned person is to be tried jointly or separately.

Judgments that still matter

Hardeep Singh v. State of Punjab, [2014] 2 S.C.R. 1 (2014 INSC 21) — 10 January 2014. A Constitution Bench (P. Sathasivam CJI, B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi and S.A. Bobde JJ.) answered five questions on Section 319. The power can be exercised on completion of examination-in-chief, and the court "does not need to wait till the said evidence is tested on cross-examination" (para 85). It is "a discretionary and an extra-ordinary power" to be exercised only "where strong and cogent evidence occurs against a person" (para 98). The test "is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction" (para 99); the summary answer to Question IV in para 110 states it differently, as "the same as for framing a charge", while adding that the degree of satisfaction for an added accused "has to be different". Persons not named in the FIR, named but not charge-sheeted, or discharged can be summoned, but for a discharged person Sections 300 and 398 CrPC must first be complied with (paras 109-110).

Sukhpal Singh Khaira v. State of Punjab, [2022] 10 S.C.R. 156 (2022 INSC 1252) — 5 December 2022. A Constitution Bench (S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna JJ.; judgment of the Court by A.S. Bopanna J.) held that the power "is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction", or before the order of acquittal; a summoning order passed after acquittal or after sentence "will not be sustainable" (para 33). In a split-up trial of an absconding accused, summoning must rest on evidence recorded in that trial, not in the concluded main trial. The Court set out guidelines, including pausing the trial to decide the application first (para 33).

Omi @ Omkar Rathore v. State of Madhya Pradesh, [2025] 1 S.C.R. 266 (2025 INSC 27) — 3 January 2025. The police filed a closure report as to two persons named in the FIR and charge-sheeted the rest; the trial court summoned the two on the first informant's examination-in-chief. The Supreme Court dismissed their challenge: where the police file a charge-sheet without implicating a person named in the FIR, "the Court is not powerless" (para 16), and the pending closure report "pales into insignificance" once the summoning order is made (para 19). Its summary (para 21) states that the power "is not controlled or governed by naming or not naming of the person concerned in the FIR", and that the court may add a person only on the basis of evidence adduced before it, not materials in the charge-sheet or case diary.

Arti Mehta v. State of Madhya Pradesh, 2026 INSC 533 — 25 May 2026. Sanjay Karol and N. Kotiswar Singh JJ. (judgment by Kotiswar Singh J.) quashed a Section 498A IPC and dowry case against the husband's relatives, finding the allegations against them "bald, generalised" as against the specific allegations against the husband (para 28). Referring to "Section 319 of the Code of Criminal Procedure, 1973 (now Section 358 of the Bharatiya Nagarik Suraksha Sanhita, 2023)" (para 48), the Court clarified that the quashing "shall not preclude the trial court" from summoning them if evidence at the trial of the remaining accused implicates them (paras 52, 60), and that the quashing did not attract Article 20(2) because they had not been "prosecuted and punished" (para 57).

Which law applies to your case

Section 531(2)(a) BNSS provides that any trial or inquiry pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force"; on a reading of that text, summoning in such a trial is under Section 319 CrPC. Trials begun on or after that date use Section 358 BNSS. Because the two sections are word for word the same, on a reading of the text the Constitution Bench rulings above apply equally to both. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 319 CrPC? Section 358 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 319 of the Code of Criminal Procedure, 1973 from 1 July 2024. The heading and all four sub-sections are word for word the same, so the court's power to proceed against a person who appears from the evidence to have committed an offence is unchanged.

Can a person not named in the charge-sheet be summoned under Section 358 BNSS? Yes, on the text and the case law. Section 358(1) BNSS applies to 'any person not being the accused'. In Hardeep Singh v. State of Punjab (2014 INSC 21) the Constitution Bench held that a person not named in the FIR, or named but not charge-sheeted, can be summoned under Section 319 CrPC if it appears from the evidence that he can be tried with the accused (para 110).

Must the court wait for cross-examination before summoning? No. In Hardeep Singh (2014 INSC 21) the Supreme Court held that the power can be exercised once examination-in-chief is complete, without waiting for cross-examination (para 85). In Omi @ Omkar Rathore v. State of Madhya Pradesh (2025 INSC 27) a summoning order based on the complainant's examination-in-chief was upheld.

What standard of evidence is needed to summon an additional accused? Hardeep Singh (2014 INSC 21) held that the test is more than the prima facie case needed to frame a charge, but short of satisfaction that the evidence, if unrebutted, would lead to conviction (para 99). The power is discretionary and extraordinary, to be used sparingly, only where strong and cogent evidence occurs against the person (para 98).

Up to what stage can a court summon an additional accused? In Sukhpal Singh Khaira v. State of Punjab (2022 INSC 1252) the Constitution Bench held that the power must be exercised before the order of sentence is pronounced after a conviction, or before the order of acquittal is pronounced (para 33). A summoning order passed after acquittal or after sentence is not sustainable.

What happens after a person is summoned under Section 358 BNSS? Section 358(4)(a) BNSS requires that the proceedings against that person be commenced afresh and the witnesses re-heard. Subject to that, Section 358(4)(b) lets the case proceed as if he had been an accused when the court took cognizance of the offence on which the inquiry or trial began.

Does quashing of an FIR against a person prevent later summoning under Section 358 BNSS? In Arti Mehta v. State of Madhya Pradesh (2026 INSC 533) the Supreme Court quashed proceedings against some relatives but clarified that the quashing does not bar the trial court from summoning them under Section 319 CrPC (now Section 358 BNSS) if evidence emerges at the trial of the other accused (paras 52, 60). It held that quashing at that stage did not attract Article 20(2) (para 57).

Does Section 319 CrPC or Section 358 BNSS apply to a trial pending on 1 July 2024? Section 531(2)(a) BNSS provides that a trial or inquiry pending immediately before 1 July 2024 continues under the Code of Criminal Procedure as if the BNSS had not come into force. On a reading of that text, summoning in such a trial is under Section 319 CrPC; the words are identical, so the test is the same.

Related

• Section 313 CrPC vs Section 351 BNSS — examination of the accused
• Section 173 CrPC vs Section 193 BNSS — chargesheet
• Section 482 CrPC vs Section 528 BNSS — inherent powers of the High Court
• Section 200 CrPC vs Section 223 BNSS — private complaint
• Discharge application and framing-of-charge deadlines — BNSS 250-263
• CrPC to BNSS master table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 337(5), 358, 439, 528 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 300(5), 319 and 398.
• Constitution of India: Article 20(2).
• Judgments read in full text: Hardeep Singh v. State of Punjab (2014_2_1_70_EN.md); Sukhpal Singh Khaira v. State of Punjab (2022_10_156_189_EN.md); Omi @ Omkar Rathore v. State of Madhya Pradesh (2025_1_266_280_EN.md); Arti Mehta v. State of Madhya Pradesh (Diary_58255-2024_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.