Supreme Court of India
SUKHPAL SINGH KHAIRAversusTHE STATE OF PUNJAB
- Citation
- 2022 INSC 1252
- Decided
- 5 December 2022
- Bench
- S ABDUL NAZEER
Holding
Section 319 CrPC must be invoked and exercised before the pronouncement of the judgment (sentence in a conviction case or acquittal in an acquittal case), and the power can be used in a bifurcated trial only on evidence recorded therein, with the Court following the detailed guidelines laid down.
Summary
The appellant was summoned as an additional accused under Section 319 of the Criminal Procedure Code after the trial of the original co‑accused had concluded with a conviction and sentence on the same day. The Supreme Court examined whether the power to summon under s.319 could be exercised after a judgment of conviction or acquittal, and also when a trial is bifurcated for an absconding accused. It held that the power must be exercised before the pronouncement of the order of sentence in a conviction case, or before the order of acquittal in an acquittal case, and that a summoning order issued after those points is invalid. The Court also clarified that in a bifurcated trial the court may summon an additional accused based on evidence recorded in the split‑up trial, but not on evidence from a main trial that has already concluded. Detailed procedural guidelines for invoking s.319 were laid down, and the matter was remanded for factual determination in light of the clarified law.
Issues considered
- Whether a trial court can exercise the power under Section 319 CrPC to summon an additional accused when the trial of other co‑accused has ended and a judgment of conviction has been rendered on the same date before the summoning order.
- Whether a trial court can exercise the power under Section 319 CrPC to summon an additional accused when the trial of certain absconding accused has been bifurcated and is pending.
- What procedural guidelines must a competent court follow while exercising the power under Section 319 CrPC.
Legislation cited
- Arms Act
- Code of Criminal Procedure, 1973s. 190, s. 207, s. 208, s. 223, s. 232, s. 235, s. 273, s. 319, s. 319(4), s. 351, s. 353, s. 354, s. 360
- Information Technology Act, 2000
- Narcotic Drugs and Psychotropic Substances Act, 1985
Subjects
Section 319 CrPCsummoning additional accusedtrial conclusionjudgment of convictionjudgment of acquittalbifurcated trialjoint trialfresh trialcriminal procedureevidence requirement
Judgment
156 [2022]REPORTS
SUPREME COURT 10 S.C.R. 156 [2022] 10 S.C.R.
A SUKHPAL SINGH KHAIRA
v.
THE STATE OF PUNJAB
(Criminal Appeal No. 885 of 2019)
B 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 co-
C
accused 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
D 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
E
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
F
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
G 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
H Criminal Procedure, 1973 is to be invoked and exercised before
156
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 157
the pronouncement of the order of sentence where there is a 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
B
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 C
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 D
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 E
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 F
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. G
(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.
H
158 SUPREME COURT REPORTS [2022] 10 S.C.R.
A (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
B 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
C 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
D 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
E 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.
F (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
G earlier;
(a) The main case may be decided by pronouncing the
conviction and sentence and then proceed afresh against
summoned accused.
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 159
(b) In the case of acquittal the order shall be passed to that A
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 B
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 C
by such persons summoned as additional accused. [Para 14][171-
A-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 D
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 E
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 F
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 G
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/ H
160 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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-A-
B]
D 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
E 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
F 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
G 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
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 161
considered in the context of Section 319 of CrPC, there would A
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; 184-
A-B]
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 C
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 re- D
examined 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 E
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 F
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 G
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
H
162 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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
D
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,
E 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
F 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
G 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]
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 163
Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC A
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
B
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
C
[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 D
[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 E
2017 (O&M).
With
SLP (Crl.) No. 6960/2021, Crl. Appeal No. 886/2019 & SLP (Crl.)
No. 5933/2019. F
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, G
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
H
164 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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.
C 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
D 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
E 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
F 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.
G
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
H witnesses, they named the appellant herein. The prosecution thereafter
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 165
[A. S. BOPANNA, J.]
filed an application on 21.09.2017 invoking Section 319 of CrPC in the A
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 B
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 C
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 D
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 E
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 F
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 G
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.
H
166 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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: -
B
“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?
C
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?
D
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
E 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
F 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
G 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
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 167
[A. S. BOPANNA, J.]
of Section 319 of CrPC and Hardeep Singh (supra), wherein in Para A
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
B
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 C
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 D
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 E
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:-
F
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 G
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 H
168 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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
D 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
E 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:-
F 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.
G 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
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 169
[A. S. BOPANNA, J.]
avowed object and purpose to try the person to the satisfaction of the A
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 B
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.
C
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 D
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 E
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 F
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 G
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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170 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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
D 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.
E (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
F 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
G
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.”
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 171
[A. S. BOPANNA, J.]
14. At the outset, having noted the provision, it is amply clear that A
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
B
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 Forty- C
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 D
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 E
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 F
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 G
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 H
172 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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
G 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?
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 173
[A. S. BOPANNA, J.]
15. It would be necessary to put on record that the power A
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,
B
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 C
other law, have 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
D
the offences under the said Schedule but excludes Executive
Magistrates.
40. 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 E
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 F
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.
42. To say that powers under Section 319 CrPC can be exercised G
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
H
174 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
47. Since after the filing of the charge-sheet, the court
reaches the stage of inquiry and as soon as the court frames
B the charges, the trial commences, and therefore, the power
under Section 319(1) CrPC can be exercised at any time
after the charge-sheet is filed and before the
pronouncement of judgment, except during the stage of
Sections 207/208 CrPC, committal, etc. which is only a pre-
trial stage, intended to put the process into motion. This
C 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
D 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
E Court of Session.
57. 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
F 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 charge-sheet or any other person who might be an
accomplice.
G (emphasis supplied)
17. 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
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 175
[A. S. BOPANNA, J.]
was proceeded against after the judgment was passed against the accused A
who were originally charged, it is 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
B
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 C
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
D
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. E
18. 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 F
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. G
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
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176 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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 cross-examination of
the newly added accused is the mandate of Section 319(4).
B
The words “could be 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
C 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
D
have committed the offence resulting in an order for his
being brought before the court.”
(emphasis supplied)
19. Thus, to put the matter in perspective, a perusal of the
E 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 scot-free. 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
F (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 accused was considered not to
be an impediment for the court to proceed against the accused who was
G 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
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 177
[A. S. BOPANNA, J.]
pronouncement of judgment. Therefore, there is no conflict or diverse A
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
B
of CrPC and to understand the true purport of exercising the power as
per the phrase “before the pronouncement of judgment”.
20. 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, C
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 D
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. E
21. In that context, the rival contentions are to be analysed to
arrive at the conclusion as to which is the 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 F
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:- G
“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.” H
178 SUPREME COURT REPORTS [2022] 10 S.C.R.
A “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
B 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 of CrPC relates to
the language and contents of the judgment. They read as hereunder:-
C “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,—
D (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.
E
(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.
F
(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.
G
(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.
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 179
[A. S. BOPANNA, J.]
(5) If the accused is in custody, he shall be brought up to hear the A
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: B
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. C
(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 D
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 E
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;
F
(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 G
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 H
180 SUPREME COURT REPORTS [2022] 10 S.C.R.
A falls, the Court shall distinctly express the same, and pass judgment
in the alternative.
(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
B 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,
C 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
D 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.”
E 22. 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
F 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 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
G 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.
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 181
[A. S. BOPANNA, J.]
23. However, if the learned Judge arrives at the conclusion that A
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
B
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 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 C
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
D
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 E
the sentence, unlike in a civil proceeding where drawing up the decree is
a ministerial act though based on the judgment.
24. 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 F
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 G
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.
25. In this regard, it would be apposite to refer to the decision in
Rama Narang vs. Ramesh Narang and Others (1995) 2 SCC 513 H
182 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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 evidence-in-
D 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
E 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
F end only after the sentence is awarded to the convicted
person.
13. 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
G 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 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
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 183
[A. S. BOPANNA, J.]
regard to the payment of compensation. Section 359 provides for A
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
B
is awarded that the judgment becomes complete and can
be appealed against under Section 374 of the Code.”
(emphasis supplied)
26. Similarly while considering the purport of what constitutes a
judgment to provide finality to trial, a bench consisting of two Hon’ble C
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. D
113. 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 E
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
therefore, complete only after the sentence is determined.”
(emphasis supplied) F
27. 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
G
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
H
184 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
28. In that view of the matter, if the Court finds from the evidence
B 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
C 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
D 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 the accused who has been summoned subsequently a fresh
trial is to be held. However while considering the application under Section
E 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
F 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.
29. Though Section 319 of CrPC provides that such person
G 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
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
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 185
[A. S. BOPANNA, J.]
after summoning such accused by deferring the judgment being passed A
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
B
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 C
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 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.
D
30. 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 E
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 F
contemplated in Section 319 of CrPC, such power to summon the
accused can certainly be invoked in the split up (bifurcated) case before
conclusion of the trial therein.
31. In analysing the issue and making the above conclusion on
all aspects, we are also persuaded by the view taken by this Court, G
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 H
186 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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.
21. Exercise of power under Section 319 of the Code, in my view,
C 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
D 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 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.”
E 32. 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.
33. For all the reasons stated above, we answer the questions
F 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 co-accused has ended and the judgment of
conviction rendered on the same date before pronouncing the
G 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 conclusion of trial by
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 187
[A. S. BOPANNA, J.]
imposition of sentence in the case of conviction. If the order is passed A
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 B
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 C
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. D
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 E
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. F
(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, G
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.
H
188 SUPREME COURT REPORTS [2022] 10 S.C.R.
A (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
B 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
C 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
D 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
E 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
F 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.
G (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.
H
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 189
[A. S. BOPANNA, J.]
(b) In the case of acquittal the order shall be passed to A
that effect in the main case and then proceed afresh
against summoned accused.
34. 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 appropriate Bench to take a decision on the factual B
aspects arising in the case in the background of the legal position and
contentions on merits.
35. 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 C
an Amicus Curiae.
Nidhi Jain Referred questions answered.
(Assisted by : Preetam Bharti, LCRA)
D
E
F
G
H
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