Section 319 CrPC power to be exercised before pronouncement of order of sentence or acquittal, as the case may be; SC enumerates 12 guidelines

Supreme Court: Three important questions relating to Section 319 CrPC have been answered by the 5-judge bench of SA Nazeer, BR Gavai, AS Bopanna*, V. Ramasubramanian and BV Nagarathna, JJ after, on 10.05.2019, a division Bench of NV Ramana and MM Shantagoudar, JJ observed 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.

The Issues

1. 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?
2. 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?
3. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?

The Answers

Answering the first issue, the Court has held that in the case of conviction, the power under Section 319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence. The summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. 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.

As far as the second issue is concerned, the Court has held that 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.

Coming to the third issue, the Court has issued the following guidelines for the competent court must follow while exercising power under Section 319 CrPC:

1. 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.
2. The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
3. 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.
4. 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.
5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
6. 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.
7. If the proceeding paused as in (1) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.

[Sukhpal Singh Khaira v. State of Punjab, 2022 SCC OnLine SC 1679, decided on 05.12.2022]

*Judgment by: Justice AS Bopanna

For Appellants: Sr Adv P.S. Patwalia and Puneet Singh Bindra,

Amicus Curiae: Sr Adv S. Nagamuthu

For State of Punjab: Advocate General Vinod Ghai,

For State of UP: Advocate General A.K. Prasad

For UOI: ASG S.V. Raju

For Intervenors: Advocate Ashish Dixit