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39. In Y. Saraba Reddy v. Puthur Rami Reddy & Anr., (2007) 4 SCC 773 : (2007) 6 SCR 68, a three-Judge Bench of this Court to which one of us was a party (D.K. Jain, J.), a similar situation arose. In the FIR, names of certain persons were mentioned. On an application by those persons, the matter was investigated by the Deputy Superintendent of Police and the report was submitted that they were not present at the time of incident. On the basis of the report, their names were deleted from the array of accused. The case was then committed to the Court of Session. PW1, in his examination involved the said persons and an application under Section 319 of the Code was filed for issuing summons to them. The trial Court rejected the application primarily on the ground that the plea of alibi was investigated by the Deputy Superintendent of Police and was found to be correct. The High Court did not find infirmity in the order. The action was challenged in this Court.

(emphasis supplied)

41. In Guriya & Ors. v. State of Bihar & Anr., (2007) 8 SCC 224, appellants were not arrayed as accused. On the basis of prosecution evidence, however, an application under Section 319 of the Code was filed which was allowed by the High Court and appellants were added as accused. Appellants questioned the legality of the order.

42. This Court allowed the appeal, set aside the order of the High Court and dismissed the application filed under Section 319 of the Code observing that there was no material against appellants, their names were not found in FIR, no overt act had been attributed to them and the protest petition filed by the complainant against them had also been dismissed.

59. There is yet another reason which is also very relevant and material. When a person who is not shown as an accused is sought to be added on the basis of evidence in exercise of power under Section 319 of the Code, he is not before the Court. Other accused against whom the trial has commenced are very much before the Court and generally they are represented by an advocate/advocates. In the evidence of a witness, when role of other person i.e. other than the accused is described by prosecution witnesses, normally, accused who are already on record are not affected. Grant or rejection of application under Section 319 would generally not alter their position. In our considered opinion, therefore, holding that unless the cross-examination of a witness by accused who were already on record is over and complete, no power under Section 319 of the Code can be exercised, does not appear to be sound.

79. We, therefore, refer the following two questions for the consideration of a Bench of three Hon'ble Judges;

(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?