Section 319 CrPC power to summon persons can be exercised before acquittal or before sentence in case of conviction: Supreme Court

A Constitution bench of the Supreme Court on Monday held that the power of trial court under Section 319 of the Code of Criminal Procedure (CrPC) to summon a person other than accused can be exercised before acquittal or before sentence in case of conviction [Sukhpal Singh Khair vs Union of India]..A bench of Justices S Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna delivered the verdict in a case concerning interpretation of Section 319 CrPC."We have taken into consideration the object of 319. We have tried to explain the period where trial comes to an end. There we have said this power should be exercised before acquittal order. In cases where conviction is there, it is before sentence. If it (conviction and sentence) is on the same date, it has to be shown that this power was exercised before the sentence," the Court said..Section 319 of the Criminal Procedure Code (CrPC) gives trial courts the power to summon persons other than the accused, if it appears to the trial court that such persons have committed an offence in that case..Section 319 states:"Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.".The Supreme Court had last month reserved its verdict in the matter..The top court was hearing a batch of petitions connected with its May 2019 Division Bench order referring the following questions to a larger bench: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?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?What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?.In response to the first question, the Court stated that the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction."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," the bench held. .With regard to the second question, it was held that the evidence recorded in the main concluded trial cannot be the basis of the summoning order if the power has not been exercised in the main trial till its conclusion..Finally, on the third question, the bench laid down extensive guidelines to be followed by the competent court. "(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.".The counsel for the petitioners had argued that the power of the trial court under Section 319 stops after the judgment on conviction is pronounced. The counsel for the respondents argued that it can be invoked till a detailed order on sentencing is delivered..Senior Advocate PS Patwalia with Advocate Niharika Ahluwalia appeared for the appellants.AOR Puneet Singh Bindra appeared for appellant in SLP 6960/2021.Senior Advocate S Nagamuthu was Amicus Curiae. Advocate General for Punjab Vinod Ghai appeared for the respondent-State.Advocate Ashish Dixit appeared for the Delhi Prosecutors' Welfare Association..[Read Judgment]