# SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB

- **Citation:** [2022] 10 S.C.R. 156
- **Court:** Supreme Court of India
- **Decided:** 2022-12-05
- **Case number:** Criminal Appeal No. 885 of 2019
- **Bench:** S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, B.V Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sukhpal-singh-khaira-v-the-state-of-punjab-35509
- **Pages:** 34

## Headnote

Code of Criminal Procedure, 1973 : s. 319 - Power to summon
additional accused under - When the trial with respect to other coaccused has ended and the judgment of conviction rendered on the
same date before pronouncing the summoning order - Held: Power
u/s. 319 has to be exercised before the pronouncement of the order
of sentence where there is a judgment of conviction of the accused
- In the case of acquittal, the power should be exercised before the
order of acquittal is pronounced - In case of conviction, summoning
order u/s. 319 has to precede the conclusion of trial by imposition
of sentence - If the order is passed on the same day, it will have to
be examined on the facts and circumstances of each case and if
such summoning order is passed either after the order of acquittal
or imposing sentence in the case of conviction, the same would not
be sustainable.
s. 319 - Power to summon additional accused under - When
the trial in respect of certain other absconding accused (whose
presence is subsequently secured) is pending, having been bifurcated
from the main trial - Held: Court has power to summon additional
accused in trial proceedings in respect of the absconding accused
after securing his presence subject to the evidence recorded in the
split up (bifurcated) trial pointing to the involvement of the accused
sought to be summoned - However, evidence recorded in the main
concluded trial cannot be the basis of the summoning order if such
power has not been exercised in the main trial till its conclusion.
s. 319 - Exercise of power under - Guidelines issued.
Answering the questions referred, the Court
HELD: 1.1 The power under Section 319 of the Code of
Criminal Procedure, 1973 is to be invoked and exercised before
[2022] 10 S.C.R. 156
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the pronouncement of the order of sentence where there is a
judgment of conviction of the accused. In the case of acquittal,
the power should be exercised before the order of acquittal is
pronounced. Hence, the summoning order has to precede the
conclusion of trial by imposition of sentence in the case of
conviction. If the order is passed on the same day, it will have to
be examined on the facts and circumstances of each case and if
such summoning order is passed either after the order of acquittal
or imposing sentence in the case of conviction, the same will not
be sustainable. [Para 33][186-G-H; 187-A-B]
1.2 The trial court has the power to summon additional
accused when the trial is proceeded in respect of the absconding
accused after securing his presence, subject to the evidence
recorded in the split up (bifurcated) trial pointing to the
involvement of the accused sought to be summoned. But the
evidence recorded in the main concluded trial cannot be the basis
of the summoning order if such power has not been exercised in
the main trial till its conclusion. [Para 33][187-C-D]
1.3 The guidelines that the competent court must follow
while exercising power under Section 319 CrPC are:
(i) If the competent court finds evidence or if application
under Section 319 of CrPC is filed regarding involvement of any
other person in committing the offence based on evidence
recorded at any stage in the trial before passing of the order on
acquittal or sentence, it shall pause the trial at that stage.
(ii) The Court shall thereupon first decide the need or
otherwise to summon the additional accused and pass orders
thereon.
(iii) If the decision of the court is to exercise the power
under Section 319 of CrPC and summon the accused, such
summoning order shall be passed before proceeding further with
the trial in the main case.
(iv) If the summoning order of additional accused is passed,
depending on the stage at which it is passed, the Court shall also
apply its mind to the fact as to whether such summoned accused
is to be tried along with the other accused or separately.
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB
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(v) If t

## Text

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SUKHPAL SINGH KHAIRA
v.
THE STATE OF PUNJAB
(Criminal Appeal No. 885 of 2019)
DECEMBER 05, 2022
[S. ABDUL NAZEER, B.R. GAVAI, A.S. BOPANNA,
V. RAMASUBRAMANIAN AND B.V NAGARATHNA, JJ.]
Code of Criminal Procedure, 1973 : s. 319 - Power to summon
additional accused under - When the trial with respect to other coaccused has ended and the judgment of conviction rendered on the
same date before pronouncing the summoning order - Held: Power
u/s. 319 has to be exercised before the pronouncement of the order
of sentence where there is a judgment of conviction of the accused
- In the case of acquittal, the power should be exercised before the
order of acquittal is pronounced - In case of conviction, summoning
order u/s. 319 has to precede the conclusion of trial by imposition
of sentence - If the order is passed on the same day, it will have to
be examined on the facts and circumstances of each case and if
such summoning order is passed either after the order of acquittal
or imposing sentence in the case of conviction, the same would not
be sustainable.
s. 319 - Power to summon additional accused under - When
the trial in respect of certain other absconding accused (whose
presence is subsequently secured) is pending, having been bifurcated
from the main trial - Held: Court has power to summon additional
accused in trial proceedings in respect of the absconding accused
after securing his presence subject to the evidence recorded in the
split up (bifurcated) trial pointing to the involvement of the accused
sought to be summoned - However, evidence recorded in the main
concluded trial cannot be the basis of the summoning order if such
power has not been exercised in the main trial till its conclusion.
s. 319 - Exercise of power under - Guidelines issued.
Answering the questions referred, the Court
HELD: 1.1 The power under Section 319 of the Code of
Criminal Procedure, 1973 is to be invoked and exercised before
[2022] 10 S.C.R. 156
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the pronouncement of the order of sentence where there is a
judgment of conviction of the accused. In the case of acquittal,
the power should be exercised before the order of acquittal is
pronounced. Hence, the summoning order has to precede the
conclusion of trial by imposition of sentence in the case of
conviction. If the order is passed on the same day, it will have to
be examined on the facts and circumstances of each case and if
such summoning order is passed either after the order of acquittal
or imposing sentence in the case of conviction, the same will not
be sustainable. [Para 33][186-G-H; 187-A-B]
1.2 The trial court has the power to summon additional
accused when the trial is proceeded in respect of the absconding
accused after securing his presence, subject to the evidence
recorded in the split up (bifurcated) trial pointing to the
involvement of the accused sought to be summoned. But the
evidence recorded in the main concluded trial cannot be the basis
of the summoning order if such power has not been exercised in
the main trial till its conclusion. [Para 33][187-C-D]
1.3 The guidelines that the competent court must follow
while exercising power under Section 319 CrPC are:
(i) If the competent court finds evidence or if application
under Section 319 of CrPC is filed regarding involvement of any
other person in committing the offence based on evidence
recorded at any stage in the trial before passing of the order on
acquittal or sentence, it shall pause the trial at that stage.
(ii) The Court shall thereupon first decide the need or
otherwise to summon the additional accused and pass orders
thereon.
(iii) If the decision of the court is to exercise the power
under Section 319 of CrPC and summon the accused, such
summoning order shall be passed before proceeding further with
the trial in the main case.
(iv) If the summoning order of additional accused is passed,
depending on the stage at which it is passed, the Court shall also
apply its mind to the fact as to whether such summoned accused
is to be tried along with the other accused or separately.
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(v) If the decision is for joint trial, the fresh trial shall be
commenced only after securing the presence of the summoned
accused.
(vi) If the decision is that the summoned accused can be
tried separately, on such order being made, there will be no
impediment for the Court to continue and conclude the trial
against the accused who were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case
where the accused who were tried are to be acquitted and the
decision is that the summoned accused can be tried afresh
separately, there will be no impediment to pass the judgment of
acquittal in the main case.
(viii) If the power is not invoked or exercised in the main
trial till its conclusion and if there is a split-up (bifurcated) case,
the power under Section 319 of CrPC can be invoked or exercised
only if there is evidence to that effect, pointing to the involvement
of the additional accused to be summoned in the split up
(bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved
for judgment the occasion arises for the Court to invoke and
exercise the power under Section 319 of CrPC, the appropriate
course for the court is to set it down for re-hearing.
(x) On setting it down for re-hearing, the above laid down
procedure to decide about summoning; holding of joint trial or
otherwise shall be decided and proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision is to
summon additional accused and hold a joint trial the trial shall be
conducted afresh and de novo proceedings be held.
(xii) If, in that circumstance, the decision is to hold a
separate trial in case of the summoned accused as indicated
earlier;
(a) The main case may be decided by pronouncing the
conviction and sentence and then proceed afresh against
summoned accused.
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(b) In the case of acquittal the order shall be passed to that
effect in the main case and then proceed afresh against summoned
accused. [Para 33][187-D-H; 188-A-H; 189-A]
2.1 It is amply clear from s. 319 Cr.PC that the power
bestowed on the Court is to the effect that in the course of an
inquiry into, or trial of an offence, based on the evidence tendered
before the Court, if it appears to the Court that such evidence
points to any person other than the accused who are being tried
before the Court to have committed any offence and such accused
has been excluded in the charge sheet or in the process of trial
till such time could still be summoned and tried together with
the accused for the offence which appears to have been committed
by such persons summoned as additional accused. [Para 14][171A-C]
2.2 Under section 319, power bestowed on the court to
summon any person who is not an accused in the case is, when in
the course of the trial it appears from the evidence that such
person has a role in committing the offence. Therefore, it would
be open for the Court to summon such a person so that he could
be tried together with the accused and such power is exclusively
of the Court. Obviously, when such power is to summon the
additional accused and try such a person with the already charged
accused against whom the trial is proceeding, it will have to be
exercised before the conclusion of trial. The connotation
'conclusion of trial' in the instant case cannot be reckoned as the
stage till the evidence is recorded, but, is to be understood as
the stage before pronouncement of the judgment, since on
judgment being pronounced the trial comes to a conclusion since
until such time the accused is being tried by the Court. [Para
20][177-B-E]
2.3 From the perusal of section 232 CrPC, it is seen that if
the Sessions Court while analysing the evidence recorded finds
that there is no evidence to hold the accused for having committed
the offence, the judge is required to record an order of acquittal.
In that case, there is nothing further to be done by the judge and
therefore the trial concludes at that stage. In such cases where it
arises u/s. 232 CrPC and an order of acquittal is recorded and
when there are more than one accused or the sole accused, have/
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB
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has been acquitted, in such cases, that being the end of the trial
by drawing the curtain, the power of the court to summon an
accused based on the evidence as contemplated under Section
319 CrPC will have to be invoked and exercised before
pronouncement of judgment of acquittal. There shall be application
of mind also, as to whether separate trial or joint trial is to be
held while trying him afresh. After such order it will be open to
pronounce the judgment of acquittal of the accused who was tried
earlier. If Judge arrives at the conclusion that the accused is to
be convicted, the conviction shall be ordered through the
judgment as contemplated u/s. 235 CrPC. Sub-section (2) thereto
provides that if the Judge does not proceed to give the benefit to
the accused of being released on probation u/s. 360 of CrPC, the
judge shall hear the accused on the question of sentence and
then impose a sentence on him. [Para 22, 23][180-E-H; 181-AB]
2.4 Even after the pronouncement of the judgment of
conviction, the trial is not complete since the Sessions Judge is
required to apply her/his mind to the evidence which is available
on record to determine the gravity of the charge for which the
accused is found guilty; the role of the particular accused when
there is more than one accused involved in an offence and in that
light, to award an appropriate sentence. Therefore, it cannot be
said that the trial is complete on the pronouncement of the
judgment of conviction alone, though it may be so in the case of
acquittal as contemplated under Section 232 of CrPC, since in
that case there is nothing further to be done by the Judge except
to record an order of acquittal which results in conclusion of trial.
[Paras 24][181-F-H]
2.5 The conclusion of the trial in a criminal prosecution if it
ends in conviction, a judgment is considered to be complete in
all respects only when the sentence is imposed on the convict, if
the convict is not given the benefit of Section 360 of CrPC.
Similarly, in a case where there are more than one accused and if
one or more among them are acquitted and the others are
convicted, the trial would stand concluded as against the accused
who are acquitted and the trial will have to be concluded against
the convicted accused with the imposition of sentence. When
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considered in the context of Section 319 of CrPC, there would
be no dichotomy, since what becomes relevant here is only the
decision to summon a new accused based on the evidence
available on record which would not prejudice the existing accused
since in any event they are convicted. [Para 27][183-F-H; 184A-B]
2.6 In that view of the matter, if the Court finds from the
evidence recorded in the process of trial that any other person is
involved, such power to summon the accused under Section 319
CrPC can be exercised by passing an order to that effect before
the sentence is imposed and the judgment is complete in all
respects bringing the trial to a conclusion. While arriving at such
conclusion what is also to be kept in view is the requirement of
sub-section (4) to Section 319 CrPC. From the said provision it
is clear that if the Sessions Judge exercises the power to summon
the additional accused, the proceedings in respect of such person
shall be commenced afresh and the witnesses will have to be reexamined in the presence of the additional accused. In a case
where the Sessions Judge exercises the power under Section
319 CrPC after recording the evidence of the witnesses or after
pronouncing the judgment of conviction but before sentence being
imposed, the very same evidence which is available on record
cannot be used against the newly added accused in view of Section
273 of CrPC. As against the accused who has been summoned
subsequently a fresh trial is to be held. However while
considering the application under Section 319 CrPC, if the
decision by the Sessions Judge is to summon the additional
accused before passing the judgment of conviction or passing an
order on sentence, the conclusion of the trial by pronouncing the
judgment is required to be withheld and the application under
Section 319 CrPC is required to be disposed of and only then the
conclusion of the judgment, either to convict the other accused
who were before the Court and to sentence them can be proceeded
with. This is so since the power under Section 319 CrPC can be
exercised only before the conclusion of the trial by passing the
judgment of conviction and sentence. [Para 28][184-B-G]
2.7 Though Section 319 of CrPC provides that such person
summoned as per sub-section (1) thereto could be jointly tried
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together with the other accused, keeping in view the power
available to the Court under Section 223 of CrPC to hold a joint
trial, it would also be open to the Sessions Judge at the point of
considering the application under Section 319 of CrPC and
deciding to summon the additional accused, to also take a decision
as to whether a joint trial is to be held after summoning such
accused by deferring the judgment being passed against the tried
accused. If a conclusion is reached that the fresh trial to be
conducted against the newly added accused could be separately
tried, in such event it would be open for the Sessions Judge to
order so and proceed to pass the judgment and conclude the trial
insofar as the accused against whom it had originally proceeded
and thereafter proceed in the case of the newly added accused.
However, what is important is that the decision to summon an
additional accused either suo-moto by the Court or on an
application under Section 319 in all eventuality be considered
and disposed of before the judgment of conviction and sentence
is pronounced, as otherwise, the trial would get concluded and
the Court will get divested of the power under Section 319. Since
a power is available to the Court to decide as to whether a joint
trial is required to be held or not, the phrase, "could be tried
together with the accused" as contained in Section 319(1) CrPC,
is to be directory. [Para 29][184-G-H; 185-A-D]
2.8 If the trial against the absconding accused is split up
(bifurcated) and is pending, that by itself will not provide validity
to an application filed under Section 319 of CrPC or the order of
Court to summon an additional accused in the earlier main trial if
such summoning order is made in the earlier concluded trial
against the other accused. This is so, since such power is to be
exercised by the Court based on the evidence recorded in that
case pointing to the involvement of the accused who is sought to
be summoned. If in the split up case, on securing the presence of
the absconding accused the trial is commenced and if in the
evidence recorded therein it points to the involvement of any
other person as contemplated in Section 319 CrPC, such power
to summon the accused can certainly be invoked in the split up
(bifurcated) case before conclusion of the trial therein. [Para
30][185-D-G]
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Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC
738 : [2002] 3 SCR 400; Hardeep Singh v. State of
Punjab (2014) 3 SCC 92 : [2014] 2 SCR 1; Rama
Narang vs. Ramesh Narang and Others (1995) 2 SCC
513 : [1995] 1 SCR 456; Yakub Abdul Razak Memon
v. State of Maharashtra (2013) 13 SCC 1 : [2013] 15
SCR 1; Rajendra Singh v. State of U.P. and Another
(2007) 7 SCC 378 : [2007] 8 SCR 834; Manjit Singh
v. State of Haryana and Others (2021) SCC Online SC
632 - referred to.
Case Law Reference
[2014] 2 SCR 1
referred to
Para 5
[1995] 1 SCR 456
relied on
Para 25
[2013] 15 SCR 1
referred to
Para 26
[2002] 3 SCR 400
relied on
Para 29
[2007] 8 SCR 834
referred to
Para 31
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
885 of 2019.
From the Judgment and Order dated 17.11.2017 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Revision No. 4070 of
2017 (O&M).
With
SLP (Crl.) No. 6960/2021, Crl. Appeal No. 886/2019 & SLP (Crl.)
No. 5933/2019.
S. Nagamuthu, Sr. Adv. (Amicus Curiae)
P. S. Patwalia, Sr. Adv., Ms. Niharika Ahluwalia, Sudhir Walia,
Arpit Sharma, Ms. Harshika Verma, Gauravjit Singh Patwalia, Ajit Singh
Johar, Harshit Sethi, Mehtab Singh Khaira, Kapil Dahiya, Devanshu
Yadav, Amit K. Nain, Puneet Singh Bindra, Neeraj Kumar Verma,
Yasharth Kant, Simren Jeet, Chinmoy Khaladkar, Abhinav Agnihotri,
Salonee Paranjape, Abhishek Sharma, B. K. Pal, Advs. for the Appellant.
Tushar Mehta, SG, S.V. Raju, ASG, Ardhendumouli Kumar Prasad,
Saurabh Mishra, AAGs, Vinod Ghai, Sr. Adv./Advocate General, Aman
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB
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Pal, Gaurav Dhama, Addl. AGs., Ms. Kanika Ahuja, Ms. Kirti Ahuja,
Ms. Priyanka C., Mayank Dahiya, Ms. Mahima Dogra, Ms. Bhupinder,
Ajay Pal, Ms. Ranu Purohit, Mukesh Kumar Maroria, Zoheb Hussain,
Kanu Agarwal, Anirudh Bhat, Adit Khorana, Padmesh Mishra, Udai
Khanna, Ankit Bhatia, Ms. Madhumitha, Anshuman Singh, Harsh Paul
Singh, Hitharth Raja, Vikash Bansal, Vishnu Shankar Jain, Shashi Shekhar
Kumar, Ms. Taruna Ardhendumauli Prasad, Amritesh Raj, Ms. Shreya
Srivastava, Ashish Madaan, Aman Singh Bhadoria, Ms. Ananya Sahu,
Abhinav Shrivastava, Sunny Choudhary, Advs. for the Respondent.
Ashish Dixit, Ravi Sharma, Advs. for the Intervenor.
The Judgment of the Court was delivered by
A. S. BOPANNA, J.
1. In the above appeal, the order dated 17.11.2017 passed by the
High Court of Punjab and Haryana in Criminal Revision No.4070 of
2017 and Criminal Revision No.4113 of 2017 are assailed. Through the
said order, the High Court has dismissed the Criminal Revision Petitions
and upheld the order dated 31.10.2017 passed by the Trial Court
summoning the appellant as an additional accused by exercising the power
under Section 319 of the Criminal Procedure Code, 1973 ('CrPC' for
short). For the purpose of narration of facts the case in Criminal Appeal
No.885 of 2019 is noted.
2. The position which led to the appellant being summoned is that
on 05.03.2015 a First Information Report was lodged in the Police Station
Sadar, Jalalabad against 11 accused for the offence under Sections 21,
24, 25, 27, 28, 29 and 30 of Narcotic Drugs and Psychotropic Substance
Act, 1985 ('NDPS' for short), Section 25-A of Arms Act and Section 66
of the Information Technology Act, 2000 ('IT Act' for short). In the
charge sheet dated 06.09.2015, 10 accused were summoned and put to
trial in Sessions Case No. 289 of 2015. Though the second charge sheet
was filed by the police, the same did not name the appellant herein as an
accused.
3. In the trial conducted before the learned Sessions Judge also,
initially the name of the appellant was not mentioned by the witnesses.
After the initial recording of evidence, the prosecution filed an application
dated 31.07.2017 under Section 311 of CrPC for recalling PW-4 and
PW-5, which was allowed. In the further examination of the said recalled
witnesses, they named the appellant herein. The prosecution thereafter
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filed an application on 21.09.2017 invoking Section 319 of CrPC in the
said Sessions Case No.289 of 2015 for summoning additional 5 accused,
including the appellant herein. The summoning of additional accused
was sought based on the evidence tendered by PW-4, PW-5 and
PW-13.
4. It is to be noted that out of the 11 accused, the proceedings in
Sessions Case No.289 of 2015 were against the 10 accused and since
one of the accused was not available, the case in that regard was split
up (bifurcated) and was subsequently numbered as Sessions Case No.217
of 2019 on 03.09.2019. In that background, it is seen that as on the date
when the application under Section 319 CrPC was filed on 21.09.2017,
the only proceeding pending was Sessions Case No.289 of 2015. In that
regard, in respect of the proceedings against the 10 accused, the learned
Sessions Judge pronounced the judgment on 31.10.2017 whereby one of
the accused was acquitted, while the remaining 9 accused were convicted
and sentence was imposed on 31.10.2017. The learned Sessions Judge,
also allowed the application filed under Section 319 of CrPC on the
same day i.e., 31.10.2017 and summoned the appellant to face trial. It is
in that backdrop the appellant assailed the order dated 31.10.2017
summoning him to face trial, since according to him such order is not
sustainable in law as the same was not passed in a proceeding pending
before the learned Sessions Court as at the stage when the power to
summon was exercised by learned Sessions Judge, the judgment of
conviction and sentence had already been passed earlier on 31.10.2017.
The said order assailed in Revision Petition No.4070 and 4113 of 2017
was dismissed by the High Court, which has led to the present
proceedings.
5. The instant petition was heard before a bench consisting of
two Hon'ble Judges of this Court on 10.05.2019 wherein, in the course
of assailing the summoning order, the decisions of this Court in the case
of Shashikant Singh vs. Tarkeshwar Singh (2002) 5 SCC 738 and the
decision in the case of Hardeep Singh vs. State of Punjab (2014) 3
SCC 92 rendered in the context of the power exercisable under Section
319 of CrPC were noted. In that context, the Bench of two Hon'ble
Judges of this Court was of the opinion that the question with regard to
the actual stage at which the trial is said to have concluded is required to
be authoritatively considered since the power under Section 319 of CrPC
is extraordinary in nature.
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB
[A. S. BOPANNA, J.]
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6. In that view, the following substantial questions of law were
raised for further consideration and the matters were placed before
Hon'ble the Chief Justice of India for constitution of a Bench of
appropriate strength to consider the questions raised. Hon'ble the Chief
Justice has accordingly constituted this Bench to consider the questions
raised, which read as hereunder: -
"I. Whether the trial court has the power under Section 319 of
CrPC for summoning additional accused when the trial with
respect to other co-accused has ended and the judgment of
conviction rendered on the same date before pronouncing the
summoning order?
II. Whether the trial court has the power under Section 319 of the
CrPC for summoning additional accused when the trial in respect
of certain other absconding accused (whose presence is
subsequently secured) is ongoing/pending, having been bifurcated
from the main trial?
III. What are the guidelines that the competent court must follow
while exercising power under Section 319 CrPC?"
7. In order to answer the above questions, we have heard Shri
P.S. Patwalia, learned senior counsel for the appellant and also Shri
Puneet Singh Bindra, learned counsel who appeared on behalf of the
appellant in the tagged matter. Shri S. Nagamuthu, learned senior counsel
has assisted this Court as Amicus Curiae. Shri Vinod Ghai, Advocate
General appeared for the State of Punjab while Shri A.K. Prasad, learned
Additional Advocate General appeared for the State of U.P. Shri S.V.
Raju, Additional Solicitor General has appeared for the Union of India
since a case is said to have also been registered against the appellant
under the Prevention of Money Laundering Act, 2002. We have also
heard Shri Ashish Dixit, learned counsel who appeared for the IntervenerProsecutors Association.
8. The gist of the contention put forth by Shri P.S. Patwalia, learned
Senior Counsel is as hereunder: -
Order summoning a person (appellant herein) as an accused under
Section 319 of CrPC was passed at a stage when the trial had already
concluded and even judgment and order on sentence had been
pronounced. It is contended that the said order is, therefore in violation
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of Section 319 of CrPC and Hardeep Singh (supra), wherein in Para
47 it was held that power has to be exercised before pronouncement of
judgment. It can only be exercised during the pendency of the trial, which
is a stage anterior to the date of pronouncement of judgment. In fact this
is also consistent with Section 353(1) of CrPC, which states that after
perusal of the evidence, the judgment is to be pronounced after termination
of trial, and therefore, Section 319 of CrPC mandates that the power
can be exercised only during trial and it follows that once trial is concluded
and judgment is pronounced, the Court cannot exercise power under
Section 319 of CrPC at that stage.
Contending that it can be simultaneous is also equally violative of
Section 319 of CrPC and the law laid down is clear that it has to be done
before judgment. In a nutshell, if an accused is to be summoned, it has to
be done when the trial is alive. The moment trial is concluded and the
matter is kept for judgment, then the stage for exercising power under
Section 319 of CrPC goes and the Court thereafter becomes functus
officio. When the trial is pending, the Court can add an accused under
Section 319 of CrPC but the moment the trial concludes and judgment is
pronounced, then no proceedings remain before the Court. When the
Court pronounces the judgment acquitting or convicting the accused,
thereafter, no proceedings which commenced with the filing of the original
charge sheet remain pending. It is also contended that it is not a mere
procedural violation, rather, substantive violation since the power is
circumscribed by the stage during which it can be exercised, i.e. inquiry/
trial.
9. The gist of the contentions urged by Shri S. Nagamuthu, learned
Amicus Curiae is as follows:-
Before taking cognizance under Section 190 of CrPC and after
pronouncement of judgment, Court has no power under Section 319 of
CrPC and in view of Hardeep Singh (supra) the trial court does not
have the power for summoning additional accused when trial with respect
to other co-accused has ended and judgment of conviction has been
rendered on the same date. In Sessions Trial, accused can be acquitted
by an order of acquittal and if accused is acquitted either under Section
232 or 235 of CrPC, by passing an order or pronouncing a judgment, the
proceeding gets terminated. While, if the accused is convicted, proceeding
still continues because he is to be heard on sentence and he is entitled to
lead evidence at that stage. Therefore, when accused is convicted, trial
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is terminated after sentence is passed. Section 353 of CrPC should be
understood in this background and so, it cannot be argued that after
arguments are heard, trial gets terminated.
Evidence which have been brought on record during inquiry/trial
including evidence collected during investigation such as FIR, Section
161, Section 164 statements, cannot be treated as evidence for the purpose
of Section 319 of CrPC. Applying this, it will emerge that the evidence
recorded in a separate trial held against the other accused cannot be
considered as evidence in the present case. But, in the split up case
(bifurcated) where there is a separate trial, and during the course of that
trial, if any evidence comes on record against a person who is not already
an accused, based on that evidence alone, he can be arrayed as an
accused under Section 319 of CrPC. When a person is summoned as an
additional accused, it is the discretion of the Court whether to charge
and try two or more persons together in the same trial.
As per Section 319(4) of CrPC, as against the newly added
accused, trial should be a fresh trial. However, if there is joint trial, fresh
trial should be conducted against all the accused including the existing
accused. In such an event, evidence already recorded is no evidence
against the added accused in view of Section 273 of CrPC. In a case,
there cannot be two sets of evidence, one against the existing accused
and the other against the added accused. As a consequence, evidence
already recorded is no evidence against any accused including the existing
accused. Fresh trial is to be conducted.
10. The gist of the contentions put forth by Shri Vinod Ghai, learned
Advocate General for the State of Punjab is as follows:-
The intent behind the legislature in introducing Section 319 of CrPC
is to check that no culprit should go scot-free and to bring home the guilt
of actual accused. It is in this context that the Courts have been
empowered to summon any person, who appears to have committed an
offence, for which the already charge-sheeted accused are facing trial.
Giving a narrow interpretation to such a provision and putting unwarranted
restrictions would circumvent the very purpose of this power and would
only result in travesty of justice. It is with the said object in mind that a
constructive and purposive interpretation should be adopted which
advances the cause of justice and does not dilute the intention of the
statute conferring powers on the Court to carry out the above-mentioned
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avowed object and purpose to try the person to the satisfaction of the
Court as an accused in the commission of the offence that is the subject
matter of the trial.
Section 319(1) of CrPC explains as to who/which type of person
can be summoned as an additional accused to face trial. The word "could
be tried together with other accused" has been used to identify the person
who can be summoned and tried as an additional accused. Conclusion
of main trial during pendency of revision/appeal before the Higher Courts
against Section 319 of CrPC order will not make the order inoperative/
ineffective merely because the trial in which such order was passed has
been concluded.
The Court has exercised the power under Section 319 of CrPC
for summoning additional accused when the trial in respect of other
absconding accused is ongoing/pending having been bifurcated from the
main trial. The trial qua accused who were earlier absconding, is pending
and some evidence has come which necessitates the summoning of
additional accused by the Court. When application under Section 319 of
CrPC is decided simultaneously on the same day when trial is concluded,
then the Court below does not become functus officio and is competent
to exercise power under Section 319 of CrPC in view of Section 354 of
CrPC which expressly provides that an order on quantum of sentence is
an integral part of the judgment and any judgment of conviction without
such order would be referred as incomplete.
11. The gist of the contention put forth by Shri A.K. Prasad, learned
Additional Advocate General for the State of U.P. is essentially in the
same line as contended by the learned Advocate General for the
respondent-State of Punjab. Insofar as the aspect relating to the power
that could be exercised under Section 319 of CrPC, with the connotation
of such power being exercised before completion of trial it was contended
by the learned counsel that the trial does not conclude with the
pronouncement of conviction, since sentence also being a part of the
judgment. The court becomes functus officio only after the sentence is
imposed. It is contended that it will have to be held that the power can
be exercised till the sentence is pronounced, which is the point at which
the judgment is complete in all respects and trial gets concluded.
12. Shri S.V. Raju, learned Additional Solicitor General though
argued in similar lines as put forth by the learned Advocate General and
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Additional Advocate General for the respective States, he, in fact, went
a step further to contend that the power under Section 319 of CrPC can
be invoked at any stage even after the sentence is pronounced since the
involvement of an accused may come to light at a later stage and in that
circumstance if the recommendation of the Law Commission to bring in
the provision is kept in view, the only objective is that no accused should
go scot-free and therefore steps can be taken at any stage to bring the
accused to book. Shri Ashish Dixit, the learned counsel for the intervenor
has complemented the arguments on behalf of States by putting forth
similar contentions.
13. In the background of the rival contentions, in order to determine
the question referred to us, it would be appropriate for us to at the outset,
take note of the provision as contained in Section 319 of CrPC, which
reads as hereunder: -
"319. Power to proceed against other persons appearing to
be guilty of offence. - (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 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."
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14. At the outset, having noted the provision, it is amply clear that
the power bestowed on the Court is to the effect that in the course of an
inquiry into, or trial of an offence, based on the evidence tendered before
the Court, if it appears to the Court that such evidence points to any
person other than the accused who are being tried before the Court to
have committed any offence and such accused has been excluded in the
charge sheet or in the process of trial till such time could still be summoned
and tried together with the accused for the offence which appears to
have been committed by such persons summoned as additional accused.
15. In that regard, the object of incorporating the provision in the
CrPC and bestowing such power to the Court was based on the
recommendation made by the Law Commission of India in its FortyFirst Report to which all the learned senior counsel have made extensive
reference, read as hereunder:-
24.80. It happens sometimes, though not very often, that a
Magistrate hearing a case against certain accused finds from the
evidence that some person, other than the accused before him, is
also concerned in that very offence or in a connected offence. It
is only proper that the Magistrate should have the power to call
and join him in the proceedings. Section 351 provides for such a
situation, but only if that person happens to be attending the Court.
He can then be detained and proceeded against. There is no
express provision in section 351 for summoning such a person if
he is not present in Court. Such a provision would make section
351 fairly comprehensive, and we think it proper to expressly
provide for that situation.
24.81. Section 351 assumes that the Magistrate proceeding under
it has the power of taking cognizance of the new case. It does
not, however, say in what manner cognizance is taken by the
Magistrate. The modes of taking cognizance are mentioned in
section 190, and are, apparently, exhaustive. The question is,
whether against the newly added accused, cognizance will be
supposed to have been taken on the Magistrate's own information
under section 190(1)(c), or only in the manner in which cognizance
was first taken of the offence against the other accused. In
concrete terms, if the original case was instituted on a police report,
i.e. under section 190(1)(b), will cognizance against the new
accused be supposed to have been taken in the same manner, or
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under section 190(1)(c)? The question is important, because the
methods of enquiry and trial in the two cases differ. About the
true position under the existing law, there has been difference of
opinion, and we think it should be made clear. It seems to us that
the main purpose of this particular provision is, that the whole
case against all known suspects should be proceeded with
expeditiously, and convenience requires that cognizance against
the newly added accused should be taken in the same manner as
against the other accused. We, therefore, propose to re-cast
section 351 making it comprehensive and providing that there will
be no difference in the mode of taking cognizance if a new person
is added as an accused during the proceedings. It is, of course,
necessary (as is already provided) that in such a situation the
evidence must be re-heard in the presence of the newly added
accused.
24.82 The offence for which the newly added accused can be
tried is not indicated in precise terms in the section. Obviously,
that offence should be connected with the one for which the
original accused is under trial. To bring that out, a small verbal
amendment is recommended.
16. In the above backdrop, the issue relating to the power to be
exercised under Section 319 of CrPC had arisen for detailed consideration
in Hardeep Singh (supra) wherein the scope, procedure and the stage
at which such power was to be exercised was considered and summarised
as follows:-
12. Section 319 CrPC springs out of the doctrine judex damnatur
cum nocens absolvitur (Judge is condemned when guilty is
acquitted) and this doctrine must be used as a beacon light while
explaining the ambit and the spirit underlying the enactment of
Section 319 CrPC.
13. It is the duty of the court to do justice by punishing the real
culprit. Where the investigating agency for any reason does not
array one of the real culprits as an accused, the court is not
powerless in calling the said accused to face trial. The question
remains under what circumstances and at what stage should the
court exercise its power as contemplated in Section 319 CrPC?
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15. It would be necessary to put on record that the power
conferred under Section 319 CrPC is only on the court. This has
to be understood in the context that Section 319 CrPC empowers
only the court to proceed against such person. The word "court"
in our hierarchy of criminal courts has been defined under Section
6 CrPC, which includes the Courts of Session, Judicial Magistrates,
Metropolitan Magistrates as well as Executive Magistrates. The
Court of Session is defined in Section 9 CrPC and the Courts of
the Judicial Magistrates have been defined under Section 11
thereof. The Courts of the Metropolitan Magistrates have been
defined under Section 16 CrPC. The courts which can try offences
committed under the Penal Code, 1860 or any offence under any
other law, have been specified under Section 26 CrPC read with
the First Schedule.