“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?
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?”
Page 1 of 45
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.885 OF 2019
Sukhpal Singh Khaira .…Appellant(s)
Versus
The State of Punjab …. Respondent(s)
WITH
SLP (CRL.) No. 6960/2021,
CRL. APPEAL No.886/2019 &
SLP (CRL.) No. 5933/2019
J U D G M E N T
A.S. Bopanna, J.
- 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
Page 2 of 45
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. - 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. - 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
Page 3 of 45
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 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. - 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
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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. - 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
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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. - 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 coaccused has ended and the judgment of conviction
Page 6 of 45
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?” - 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, - We have also heard Shri Ashish Dixit, learned
Page 7 of 45
counsel who appeared for the Intervener-Prosecutors
Association. - 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
Page 8 of 45
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
Page 9 of 45
the stage during which it can be exercised, i.e.
inquiry/trial. - 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
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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
Page 11 of 45
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. - 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
Page 12 of 45
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 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
Page 13 of 45
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. - 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
Page 14 of 45
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. - Shri S.V. Raju, learned Additional Solicitor General
though argued in similar lines as put forth by the learned
Advocate General and 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
Page 15 of 45
complemented the arguments on behalf of States by
putting forth similar contentions. - 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.” - At the outset, having noted the provision, it is amply
clear that the power bestowed on the Court is to the effect
Page 16 of 45
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. - 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 Forty-First 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
Page 17 of 45
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 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.
Page 18 of 45 - 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:- - 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. - 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? - 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
Page 19 of 45
been specified under Section 26 CrPC read with the
First Schedule. The Explanatory Note (2) under the
heading of “Classification of offences” under the First
Schedule specifies the expression “Magistrate of First
Class” and “any Magistrate” to include Metropolitan
Magistrates who are empowered to try the offences
under the said Schedule but excludes Executive
Magistrates. - Even the word “course” occurring in Section 319
CrPC, clearly indicates that the power can be
exercised only during the period when the inquiry has
been commenced and is going on or the trial which
has commenced and is going on. It covers the entire
wide range of the process of the pre-trial and the trial
stage. The word “course” therefore, allows the court to
invoke this power to proceed against any person from
the initial stage of inquiry up to the stage of the
conclusion of the trial. The court does not become
functus officio even if cognizance is taken so far as it
is looking into the material qua any other person who
is not an accused. The word “course” ordinarily
conveys a meaning of a continuous progress from one
point to the next in time and conveys the idea of a
period of time : duration and not a fixed point of time. - To say that powers under Section 319 CrPC can
be exercised only during trial would be reducing the
impact of the word “inquiry” by the court. It is a settled
principle of law that an interpretation which leads to
the conclusion that a word used by the legislature is
redundant, should be avoided as the presumption is
that the legislature has deliberately and consciously
used the words for carrying out the purpose of the Act.
The legal maxim a verbis legis non est
recedendum which means, “from the words of law,
there must be no departure” has to be kept in mind. - Since after the filing of the charge-sheet, the
court reaches the stage of inquiry and as soon as
the court frames the charges, the trial commences,
and therefore, the power under Section 319(1)
CrPC can be exercised at any time after the chargesheet is filed and before the pronouncement of
judgment, except during the stage of Sections
207/208 CrPC, committal, etc. which is only a pre-
Page 20 of 45
trial stage, intended to put the process into
motion. This stage cannot be said to be a judicial step
in the true sense for it only requires an application of
mind rather than a judicial application of mind. At this
pre-trial stage, the Magistrate is required to perform
acts in the nature of administrative work rather than
judicial such as ensuring compliance with Sections
207 and 208 CrPC, and committing the matter if it is
exclusively triable by the Sessions Court. Therefore, it
would be legitimate for us to conclude that the
Magistrate at the stage of Sections 207 to 209 CrPC is
forbidden, by express provision of Section 319 CrPC,
to apply his mind to the merits of the case and
determine as to whether any accused needs to be
added or subtracted to face trial before the Court of
Session. - Thus, the application of the provisions of Section
319 CrPC, at the stage of inquiry is to be understood
in its correct perspective. The power under Section
319 CrPC can be exercised only on the basis of the
evidence adduced before the court during a trial.
So far as its application during the course of inquiry
is concerned, it remains limited as referred to
hereinabove, adding a person as an accused, whose
name has been mentioned in Column 2 of the chargesheet or any other person who might be an
accomplice.
(emphasis supplied) - In view of the reference contained in the order
passed by the Bench consisting of two Hon’ble Judges
seeking clarity in the matter due to the view taken by
another Bench of two Hon’ble Judges in Shashikant
Singh (supra) where, purportedly the summoned accused
was proceeded against after the judgment was passed
against the accused who were originally charged, it is
Page 21 of 45
necessary to take note of the situation that had arisen
therein and the conclusion reached in that case. It is
noted that in a case under Section 302/34 of IPC wherein
Shivakant Singh, the brother of Shashikant Singh (supra)
was murdered, the trial proceeded against one Chandra
Shekar Singh. When the evidence was recorded it was
found that Tarkeshwar Singh and two others had also
committed the offence of murder of Shivakant Singh. The
learned Additional Sessions Judge by order dated
07.04.2001 exercised the power under Section 319 of
CrPC and ordered to issue a warrant of arrest so that they
may be tried together with Chandra Shekar Singh, the
accused against whom the trial was proceeding. The said
order dated 07.04.2001 summoning the accused came to
be assailed by Tarkeshwar Singh before the High Court in
Criminal Revision No.269 of 2001. During the pendency
of the said Revision Petition before the High Court the
learned Additional Sessions Judge concluded the pending
trial against the originally charged accused Chander
Shekar Singh and convicted him by the judgment dated
Page 22 of 45
16.07.2001. The question which therefore arose in that
context was as to whether the trial in the case in which
additional accused were summoned under Section 319 of
CrPC including Tarkeshwar Singh can proceed in view of
the phrase “could be tried together with the accused”
contained in Section 319(1) of CrPC after the trial against
other accused had concluded with the order of conviction. - In that context the Bench of two Hon’ble Judges
which allowed the trial to proceed against the summoned
accused, Tarkeshwar Singh and others held as hereunder:
“9. The intention of the provision here is that where in
the course of any enquiry into, or trial of, an offence, it
appears to the court from the evidence that any person
not being the accused has committed any offence, the
court may proceed against him for the offence which he
appears to have committed. At that stage, the court
would consider that such a person could be tried
together with the accused who is already before the
court facing the trial. The safeguard provided in
respect of such person is that, the proceedings right
from the beginning have mandatorily to be
commenced afresh and the witnesses reheard. In
short, there has to be a de novo trial against him.
The provision of de novo trial is mandatory. It
vitally affects the rights of a person so brought
before the court. It would not be sufficient to only
tender the witnesses for the cross-examination of
such a person. They have to be examined afresh.
Fresh examination-in-chief and not only their
presentation for the purpose of the crossexamination of the newly added accused is the
mandate of Section 319(4). The words “could be
Page 23 of 45
tried together with the accused” in Section 319(1),
appear to be only directory. “Could be” cannot
under these circumstances be held to be “must be”.
The provision cannot be interpreted to mean that
since the trial in respect of a person who was before
the court has concluded with the result that the
newly added person cannot be tried together with
the accused who was before the court when order
under Section 319(1) was passed, the order would
become ineffective and inoperative, nullifying the
opinion earlier formed by the court on the basis of
the evidence before it that the newly added person
appears to have committed the offence resulting in
an order for his being brought before the court.”
(emphasis supplied) - Thus, to put the matter in perspective, a perusal of
the recommendation of the Law Commission would
indicate the intention that an accused who is not charge
sheeted but if is found to be involved should not go scotfree. Hence, Section 319 of CrPC was incorporated which
provides for the Court to exercise the power to ensure the
same before the conclusion of trial so as to try such
accused by summoning and being proceeded along with
the other accused. In Shashikant Singh (supra), a Bench
of two Hon’ble Judges, on holding that the joint trial is not
a must has held the requirement as contained in Section
319(1) of CrPC as only directory, and as such the judgment
of conviction dated 16.07.2001 against the charge-sheeted
Page 24 of 45
accused was considered not to be an impediment for the
court to proceed against the accused who was added by
the summoning order dated 07.04.2001, which in any
case was prior to the conclusion of the trial which in our
view satisfies the requirement since the summoning order
was before the judgment. In the case of Hardeep Singh
(supra) also the power of the Court under Section 319 of
CrPC has been upheld, reiterated, and it has been held
that such power is available to be exercised at any time
before the pronouncement of judgment. Therefore, there
is no conflict or diverse view in the said decisions insofar
as the exercise of power, the manner and the stage at
which power is to be exercised. However, a certain amount
of ironing the crease is required to explain the connotation
of the phrase “could be tried together with the accused”
appearing in sub-section (1) read with the requirement in
sub-section 4(a) to Section 319 of CrPC and to understand
the true purport of exercising the power as per the phrase
“before the pronouncement of judgment”.
Page 25 of 45 - A close perusal of Section 319 of CrPC indicates that
the 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 present 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 as
already held in Hardeep Singh (supra) since on judgment
being pronounced the trial comes to a conclusion since
until such time the accused is being tried by the Court. - In that context, the rival contentions are to be
analysed to arrive at the conclusion as to which is the
Page 26 of 45
stage at which it can be said that the trial has concluded.
Is it at the stage when the judgment is pronounced and
the conviction is ordered or is it when the sentence is
imposed and the trial is complete in all respects? In order
to arrive at a conclusion on this aspect the provision in the
code relating to judgment is required to be noted. In
Chapter XVIII regulating the trial before a Court of Session
the procedure to be adopted and the conclusion of trial is
indicated. What is relevant for our purpose is Section 232
and 235 of CrPC which read as hereunder:-
“232. Acquittal.—If, after taking the evidence for the
prosecution, examining the accused and hearing the
prosecution and the defence on the point, the Judge
considers that there is no evidence that the accused
committed the offence, the Judge shall record an order
of acquittal.”
“235. Judgment of acquittal or conviction.—(1)
After hearing arguments and points of law (if any), the
Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless
he proceeds in accordance with the provisions of
section 360, hear the accused on the question of
sentence, and then pass sentence on him according to
law.”
Further Chapter XXVII deals with regard to judgment
as contained in Section 353 of CrPC, while Section 354
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of CrPC relates to the language and contents of the
judgment. They read as hereunder:-
“353. Judgment.—(1) The judgment in every trial in
any Criminal Court or original jurisdiction shall be
pronounced in open Court by the presiding officer
immediately after the termination of the trial or at
some subsequent time of which notice shall be given
to the parties or their pleaders,—
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the
judgment and explaining the substance of the
judgment in a language which is understood
by the accused or his pleader.
(2) Where the judgment is delivered under clause (a) of
sub-section (1), the presiding officer shall cause it to
be taken down in short-hand, sign the transcript and
every page thereof as soon as it is made ready, and
write on it the date of the delivery of the judgment in
open Court.
(3) Where the judgment or the operative part thereof is
read out under clause (b) or clause (c) of sub-section
(1), as the case may be, it shall be dated and signed
by the presiding officer in open Court, and if it is not
written with his own hand, every page of the judgment
shall be signed by him.
(4) Where the judgment is pronounced in the manner
specified in clause (c) of sub-section (1), the whole
judgment or a copy thereof shall be immediately made
available for the perusal of the parties or their pleaders
free of cost.
(5) If the accused is in custody, he shall be brought up
to hear the judgment pronounced.
(6) If the accused is not in custody, he shall be
required by the Court to attend to hear the judgment
pronounced, except where his personal attendance
during the trial has been dispensed with and the
sentence is one of fine only or he is acquitted:
Page 28 of 45
Provided that, where there are more accused than one,
and one or more of them do not attend the Court on
the date on which the judgment is to be pronounced,
the presiding officer may, in order to avoid undue
delay in the disposal of the case, pronounce the
judgment notwithstanding their absence.
(7) No judgment delivered by any Criminal Court shall
be deemed to be invalid by reason only of the absence
of any party or his pleader on the day or from the place
notified for the delivery thereof, or of any omission to
serve, or defect in serving, on the parties or their
pleaders, or any of them, the notice of such day and
place.
(8) Nothing in this section shall be construed to limit
in any way the extent of the provisions of section 465.”
“354. Language and contents of judgment.—(1)
Except as otherwise expressly provided by this Code,
every judgment referred to in section 353,—
(a) shall be written in the language of the
Court;
(b) shall contain the point or points for
determination, the decision thereon and
the reasons for the decision;
(c) shall specify the offence (if any) of which,
and the section of the Indian Penal Code
(45 of 1860) or other law under which, the
accused is convicted, and the
punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state
the offence of which the accused is
acquitted and direct that he be set at
liberty.
(2) When the conviction is under the Indian Penal
Code (45 of 1860) and it is doubtful under which of
two sections, or under which of two parts of the same
section, of that Code the offence falls, the Court shall
distinctly express the same, and pass judgment in the
alternative.
Page 29 of 45
(3) When the conviction is for an offence punishable
with death or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the
special reasons for such sentence.
(4) When the conviction is for an offence punishable
with imprisonment for a term of one year or more, but
the Court imposes a sentence of imprisonment for a
term of less than three months, it shall record its
reasons for awarding such sentence, unless the
sentence is one of imprisonment till the rising of the
Court or unless the case was tried summarily under
the provisions of this Code.
(5) When any person is sentenced to death, the
sentence shall direct that he be hanged by the neck
till he is dead.
(6) Every order under section 117 or sub-section (2) of
section 138 and every final order made under section
125, section 145 or section 147 shall contain the point
or points for determination, the decision thereon and
the reasons for the decision.” - From a perusal of the provisions extracted above, 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 learned Judge and
therefore the trial concludes at that stage. In such cases
where it arises under Section 232 of CrPC and an order of
acquittal is recorded and when there are more than one
Page 30 of 45
accused or the sole accused, have/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
of 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. - However, if the learned Judge arrives at the
conclusion that the accused is to be convicted, the
conviction shall be ordered through the judgment as
contemplated under Section 235 of CrPC. Sub-section (2)
thereto provides that if the learned Judge does not proceed
to give the benefit to the accused of being released on
probation under Section 360 of CrPC, the learned Judge
shall hear the accused on the question of sentence and
then impose a sentence on him according to law. Therefore
it is seen that Section 235 of CrPC, is divided into two
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parts, firstly to record the conviction and if the conviction
is recorded the sentence is to be imposed only after
providing an opportunity of being heard. While hearing on
sentence if it is found that the accused was previously
convicted and if the accused does not admit the same, the
learned Judge is required to record a finding on that
aspect as contemplated under Section 236 of CrPC.
Further, Section 353 of CrPC provides for the manner in
which the judgment is required to be pronounced and
Section 354 of CrPC refers to the language and contents of
the judgment. Sub-section 1(c) and sub-section (2) to (6)
to Section 354 CrPC indicate that even after the conviction
is ordered, the specified procedure is required to be
followed by the learned Judge to impose the sentence and
the reason for the severity of the punishment which shows
that it is a continuation of the process requiring the
learned Judge to apply her/his mind to the evidence
available on record to assess the nature of involvement in
committing the offence, gravity of the same and impose the
sentence, unlike in a civil proceeding where drawing up
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the decree is a ministerial act though based on the
judgment. - The above aspects would indicate that even after the
pronouncement of the judgment of conviction, the trial is
not complete since the learned 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 learned Judge except to record an order of acquittal
which results in conclusion of trial. - In this regard, it would be apposite to refer to the
decision in Rama Narang vs. Ramesh Narang and
Page 33 of 45
Others (1995) 2 SCC 513 wherein a bench consisting of
three Hon’ble Judges has held as hereunder:-
“12. Chapter XVIII relates to trial before a Court of
Session. Sections 225 to 227 relate to the stage prior
to the framing of charge. Section 228 provides for the
framing of charge against the accused person. If after
the charge is framed the accused pleads guilty,
Section 229 provides that the Judge shall record the
plea and may, in his discretion, convict him thereon.
However, if he does not enter a plea of guilty, Sections
230 and 231 provide for leading of prosecution
evidence. If, on the completion of the prosecution
evidence and examination of the accused, the Judge
considers that there is no evidence that the accused
committed the offence with which he is charged, the
Judge shall record an order of acquittal. If the Judge
does not record an acquittal under Section 232, the
accused would have to be called upon to enter on his
defence as required by Section 233. After the evidencein-defence is completed and the arguments heard as
required by Section 234, Section 235 requires the
Judge to give a judgment in the case. If the accused
is convicted, sub-section (2) of Section 235
requires that the Judge shall, unless he proceeds
in accordance with the provisions of Section 360,
hear the accused on the question of sentence and
then pass sentence on him according to law. It will
thus be seen that under the Code after the
conviction is recorded, Section 235(2) inter alia
provides that the Judge shall hear the accused on
the question of sentence and then pass sentence
on him according to law. The trial, therefore,
comes to an end only after the sentence is awarded
to the convicted person. - Chapter XXVII deals with judgment. Section 354
sets out the contents of judgment. It says that every
judgment referred to in Section 353 shall, inter alia,
specify the offence (if any) of which and the section of
the Penal Code, 1860 or other law under which, the
accused is convicted and the punishment to which he
is sentenced. Thus a judgment is not complete unless
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the punishment to which the accused person is
sentenced is set out therein. Section 356 refers to the
making of an order for notifying address of previously
convicted offender. Section 357 refers to an order in
regard to the payment of compensation. Section 359
provides for an order in regard to the payment of costs
in non-cognizable cases and Section 360 refers to
release on probation of good conduct. It will thus be
seen from the above provisions that after the court
records a conviction, the accused has to be heard
on the question of sentence and it is only after the
sentence is awarded that the judgment becomes
complete and can be appealed against under
Section 374 of the Code.”
(emphasis supplied) - Similarly while considering the purport of what
constitutes a judgment to provide finality to trial, a bench
consisting of two Hon’ble Judges in Yakub Abdul Razak
Memon vs. State of Maharashtra (2013) 13 SCC 1 has
held as hereunder:-
“106. It is clear that a conviction order is not a
“judgment” as contemplated under Section 353
and that a judgment is pronounced only after the
award of sentence. - It is also clear from the judgment that detailed
submissions were made by the appellant (A-1) during
the pre-sentence hearing and these submissions were
considered and, accordingly, reasons have been
recorded by the Designated Judge in Part 46 of the
final judgment in compliance with the requirement of
Section 235(2) and Section 353 of the Code. It is also
relevant to mention that Section 354 makes it
clear that “judgment” shall contain the
punishment awarded to the accused. It is
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therefore, complete only after the sentence is
determined.”
(emphasis supplied) - Therefore, from a perusal of the provisions and
decisions of this Court, it is clear that 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 considered in the
context of Section 319 of CrPC, there would be no
dichotomy as argued, 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.
Page 36 of 45 - 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 of 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 of CrPC. From the said provision it is clear
that if the learned 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 re-examined in the presence of
the additional accused. In a case where the learned
Sessions Judge exercises the power under Section 319 of
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
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the accused who has been summoned subsequently a
fresh trial is to be held. However while considering the
application under Section 319 of CrPC, if the decision by
the learned 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 of 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 of CrPC
can be exercised only before the conclusion of the trial by
passing the judgment of conviction and sentence. - Though Section 319 of CrPC provides that such person
summoned as per sub-section (1) thereto could be jointly
tried 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 learned
Sessions Judge at the point of considering the application
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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
learned 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 of CrPC shall 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 of CrPC. Since
a power is available to the Court to decide as to whether a
joint trial is required to be held or not, this Court was
Page 39 of 45
justified in holding the phrase, “could be tried together
with the accused” as contained in Section 319(1) of CrPC,
to be directory as held in Shashikant Singh (supra)
which in our opinion is the correct view. - One other aspect which is necessary to be clarified
is that 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 (bifurcated) 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 of CrPC, such power to
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summon the accused can certainly be invoked in the split
up (bifurcated) case before conclusion of the trial therein. - In analysing the issue and making the above
conclusion on all aspects, we are also persuaded by the
view taken by this Court, among others, in the case of
Rajendra Singh vs. State of U.P. and Another (2007) 7
SCC 378 wherein it is concluded with regard to the object
of Section 319 of CrPC as hereunder:-
“20. The power under Section 319 of the Code is
conferred on the court to ensure that justice is done
to the society by bringing to book all those guilty of an
offence. One of the aims and purposes of the criminal
justice system is to maintain social order. It is
necessary in that context to ensure that no one who
appears to be guilty escapes a proper trial in relation
to that guilt. There is also a duty to render justice to
the victim of the offence. It is in recognition of this that
the Code has specifically conferred a power on the
court to proceed against others not arrayed as
accused in the circumstances set out by this section.
It is a salutary power enabling the discharge of a
court’s obligation to the society to bring to book all
those guilty of a crime. - Exercise of power under Section 319 of the Code,
in my view, is left to the court trying the offence based
on the evidence that comes before it. The court must
be satisfied of the condition precedent for the exercise
of power under Section 319 of the Code. There is no
reason to assume that a court trained in law would
not exercise the power within the confines of the
provision and decide whether it may proceed against
such person or not. There is no rationale in fettering
that power and the discretion, either by calling it
Page 41 of 45
extraordinary or by stating that it will be exercised
only in exceptional circumstances. It is intended to be
used when the occasion envisaged by the section
arises.” - We have also kept in view the point by point
analysis of the object and power to be exercised under
Section 319 of CrPC, as has been indicated in para 34
of Manjit Singh vs. State of Haryana and Others
(2021) SCC Online SC 632. - For all the reasons stated above, we answer the
questions referred 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 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 invoked
and 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
Page 42 of 45
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.
Page 43 of 45
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
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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. - Having answered the questions referred, in the
above manner, we direct the Registry to obtain orders
from Hon’ble the Chief Justice and place before the
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appropriate Bench to take a decision on the factual
aspects arising in the case in the background of the legal
position and contentions on merits. - Before parting, we place on record our appreciation
for the assistance rendered by all the learned Senior
Counsel/Counsel including Shri S. Nagamuthu, learned
Senior Counsel who assisted the Court as an Amicus
Curiae.
…………………………….J.
(S. ABDUL NAZEER)
…………………………….J.
(B.R. GAVAI)
…………………………….J.
(A.S. BOPANNA)
..…………………………….J.
(V. RAMASUBRAMANIAN)
…………………………….J.
(B.V. NAGARATHNA)
New Delhi,
December 05, 2022
Advocate Anoop Verma, Punjab & Haryana High Court, Chandigarh