summoning additional accused
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
“I. Whether the trial court has the power under
Section 319 of CrPC for summoning additional
accused when the trial with respect to other co?accused has ended and the judgment of conviction
rendered on the same date before pronouncing the
summoning order?
II. Whether the trial court has the power under
Section 319 of the CrPC for summoning additional
accused when the trial in respect of certain other
absconding accused (whose presence is subsequently
secured) is ongoing/pending, having been bifurcated
from the main trial?
III. What are the guidelines that the competent
court must follow while exercising power under
Section 319 CrPC?”
....
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, 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. 21. 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 Page 27 of 45 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.” 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 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. 23. 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 Page 31 of 45 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 Page 32 of 45 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 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. 25. 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 evidence?in-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. 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 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 Page 34 of 45 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) 26. 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. 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 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 Page 35 of 45 therefore, complete only after the sentence is determined.” (emphasis supplied) 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 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 28. 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 Page 37 of 45 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. 29. 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 Page 38 of 45 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. 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 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 Page 40 of 45 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, 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. 21. 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.” 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 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 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 Page 44 of 45 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.