IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
S. ABDUL NAZEER; J., B.R. GAVAI; J., A.S. BOPANNA; J., V. RAMASUBRAMANIAN;
J., B.V. NAGARATHNA; J.
CRIMINAL APPEAL NO.885 OF 2019; December 05, 2022
Sukhpal Singh Khaira versus The State of Punjab

COURTS OBSERVS THAT:

“I. Whether the trial court has the power under Section 319 of CrPC for summoning additional accused 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?

The power under Section 319 of CrPC is to be invokedand 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.
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.

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?
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.

III. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?”
(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.
(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.
(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.

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 Intervener-Prosecutors 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 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 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.

Shobhit Chaudhry adv

FOR JUDGMENT CLICK HERE

SUKHPAL SINGH KHAIRA-PDF-THE LAW LITERATES