SUKHPAL SINGH KHAIRA versus THE STATE OF PUNJAB on 5 December 2022

156

SUPREME COURT REPORTS

[2022] 10 S.C.R.

ASUKHPAL SINGH KHAIRA

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 885 of 2019)

BDECEMBER 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 summonadditional accused under – When the trial with respect to other co-Caccused has ended and the judgment of conviction rendered on thesame date before pronouncing the summoning order – Held: Poweru/s. 319 has to be exercised before the pronouncement of the orderof sentence where there is a judgment of conviction of the accused– In the case of acquittal, the power should be exercised before theDorder of acquittal is pronounced – In case of conviction, summoningorder u/s. 319 has to precede the conclusion of trial by impositionof sentence – If the order is passed on the same day, it will have tobe examined on the facts and circumstances of each case and ifsuch summoning order is passed either after the order of acquittalor imposing sentence in the case of conviction, the same would notEbe sustainable.

s. 319 – Power to summon additional accused under – Whenthe trial in respect of certain other absconding accused (whosepresence is subsequently secured) is pending, having been bifurcatedfrom the main trial – Held: Court has power to summon additionalFaccused in trial proceedings in respect of the absconding accusedafter securing his presence subject to the evidence recorded in thesplit up (bifurcated) trial pointing to the involvement of the accusedsought to be summoned – However, evidence recorded in the mainconcluded trial cannot be the basis of the summoning order if suchGpower 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 ofHCriminal Procedure, 1973 is to be invoked and exercised before the pronouncement of the order of sentence where there is ajudgment of conviction of the accused. In the case of acquittal,the power should be exercised before the order of acquittal ispronounced. Hence, the summoning order has to precede theconclusion of trial by imposition of sentence in the case ofconviction. If the order is passed on the same day, it will have tobe examined on the facts and circumstances of each case and ifsuch summoning order is passed either after the order of acquittalor imposing sentence in the case of conviction, the same will notbe sustainable. [Para 33][186-G-H; 187-A-B]

1.2 The trial court has the power to summon additionalaccused when the trial is proceeded in respect of the abscondingaccused after securing his presence, subject to the evidencerecorded in the split up (bifurcated) trial pointing to theinvolvement of the accused sought to be summoned. But theevidence recorded in the main concluded trial cannot be the basisof the summoning order if such power has not been exercised inthe main trial till its conclusion. [Para 33][187-C-D]

1.3 The guidelines that the competent court must followwhile exercising power under Section 319 CrPC are:

(i) If the competent court finds evidence or if applicationunder Section 319 of CrPC is filed regarding involvement of anyother person in committing the offence based on evidencerecorded at any stage in the trial before passing of the order onacquittal or sentence, it shall pause the trial at that stage.

(ii) The Court shall thereupon first decide the need orotherwise to summon the additional accused and pass ordersthereon.

(iii) If the decision of the court is to exercise the powerunder Section 319 of CrPC and summon the accused, suchsummoning order shall be passed before proceeding further withthe 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 alsoapply its mind to the fact as to whether such summoned accusedis to be tried along with the other accused or separately.

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A(v) If the decision is for joint trial, the fresh trial shall becommenced only after securing the presence of the summonedaccused.

(vi) If the decision is that the summoned accused can betried separately, on such order being made, there will be noBimpediment for the Court to continue and conclude the trialagainst the accused who were being proceeded with.

(vii) If the proceeding paused as in (i) above is in a casewhere the accused who were tried are to be acquitted and thedecision is that the summoned accused can be tried afreshCseparately, there will be no impediment to pass the judgment ofacquittal in the main case.

(viii) If the power is not invoked or exercised in the maintrial till its conclusion and if there is a split-up (bifurcated) case,the power under Section 319 of CrPC can be invoked or exercisedDonly if there is evidence to that effect, pointing to the involvementof the additional accused to be summoned in the split up(bifurcated) trial.

(ix) If, after arguments are heard and the case is reservedfor judgment the occasion arises for the Court to invoke andEexercise the power under Section 319 of CrPC, the appropriatecourse for the court is to set it down for re-hearing.

(x) On setting it down for re-hearing, the above laid downprocedure to decide about summoning; holding of joint trial orotherwise shall be decided and proceeded with accordingly.F(xi) Even in such a case, at that stage, if the decision is tosummon additional accused and hold a joint trial the trial shall beconducted afresh and de novo proceedings be held.

(xii) If, in that circumstance, the decision is to hold aseparate trial in case of the summoned accused as indicatedGearlier; (a) The main case may be decided by pronouncing theconviction and sentence and then proceed afresh againstsummoned accused.

(b) In the case of acquittal the order shall be passed to thateffect in the main case and then proceed afresh against summonedaccused. [Para 33][187-D-H; 188-A-H; 189-A]

2.1 It is amply clear from s. 319 Cr.PC that the powerbestowed on the Court is to the effect that in the course of aninquiry into, or trial of an offence, based on the evidence tenderedbefore the Court, if it appears to the Court that such evidencepoints to any person other than the accused who are being triedbefore the Court to have committed any offence and such accusedhas been excluded in the charge sheet or in the process of trialtill such time could still be summoned and tried together withthe accused for the offence which appears to have been committedby such persons summoned as additional accused. [Para 14][171-A-C]

2.2 Under section 319, power bestowed on the court tosummon any person who is not an accused in the case is, when inthe course of the trial it appears from the evidence that suchperson has a role in committing the offence. Therefore, it wouldbe open for the Court to summon such a person so that he couldbe tried together with the accused and such power is exclusivelyof the Court. Obviously, when such power is to summon theadditional accused and try such a person with the already chargedaccused against whom the trial is proceeding, it will have to beexercised before the conclusion of trial. The connotation‘conclusion of trial’ in the instant case cannot be reckoned as thestage till the evidence is recorded, but, is to be understood asthe stage before pronouncement of the judgment, since onjudgment being pronounced the trial comes to a conclusion sinceuntil such time the accused is being tried by the Court. [Para20][177-B-E]

2.3 From the perusal of section 232 CrPC, it is seen that ifthe Sessions Court while analysing the evidence recorded findsthat there is no evidence to hold the accused for having committedthe offence, the judge is required to record an order of acquittal.In that case, there is nothing further to be done by the judge andtherefore the trial concludes at that stage. In such cases where itarises u/s. 232 CrPC and an order of acquittal is recorded andwhen there are more than one accused or the sole accused, have/

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Ahas been acquitted, in such cases, that being the end of the trialby drawing the curtain, the power of the court to summon anaccused based on the evidence as contemplated under Section319 CrPC will have to be invoked and exercised beforepronouncement of judgment of acquittal. There shall be applicationof mind also, as to whether separate trial or joint trial is to beBheld while trying him afresh. After such order it will be open topronounce the judgment of acquittal of the accused who was triedearlier. If Judge arrives at the conclusion that the accused is tobe convicted, the conviction shall be ordered through thejudgment as contemplated u/s. 235 CrPC. Sub-section (2) theretoCprovides that if the Judge does not proceed to give the benefit tothe accused of being released on probation u/s. 360 of CrPC, thejudge shall hear the accused on the question of sentence andthen impose a sentence on him. [Para 22, 23][180-E-H; 181-A-B]

D2.4 Even after the pronouncement of the judgment ofconviction, the trial is not complete since the Sessions Judge isrequired to apply her/his mind to the evidence which is availableon record to determine the gravity of the charge for which theaccused is found guilty; the role of the particular accused whenthere is more than one accused involved in an offence and in thatElight, to award an appropriate sentence. Therefore, it cannot besaid that the trial is complete on the pronouncement of thejudgment of conviction alone, though it may be so in the case ofacquittal as contemplated under Section 232 of CrPC, since inthat case there is nothing further to be done by the Judge except Fto 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 itends in conviction, a judgment is considered to be complete inall respects only when the sentence is imposed on the convict, ifGthe convict is not given the benefit of Section 360 of CrPC.Similarly, in a case where there are more than one accused and ifone or more among them are acquitted and the others areconvicted, the trial would stand concluded as against the accusedwho are acquitted and the trial will have to be concluded againstthe convicted accused with the imposition of sentence. WhenH

considered in the context of Section 319 of CrPC, there wouldbe no dichotomy, since what becomes relevant here is only thedecision to summon a new accused based on the evidenceavailable on record which would not prejudice the existing accusedsince in any event they are convicted. [Para 27][183-F-H; 184-A-B]

2.6 In that view of the matter, if the Court finds from theevidence recorded in the process of trial that any other person isinvolved, such power to summon the accused under Section 319CrPC can be exercised by passing an order to that effect beforethe sentence is imposed and the judgment is complete in allrespects bringing the trial to a conclusion. While arriving at suchconclusion what is also to be kept in view is the requirement ofsub-section (4) to Section 319 CrPC. From the said provision itis clear that if the Sessions Judge exercises the power to summonthe additional accused, the proceedings in respect of such personshall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. In a casewhere the Sessions Judge exercises the power under Section319 CrPC after recording the evidence of the witnesses or afterpronouncing the judgment of conviction but before sentence beingimposed, the very same evidence which is available on recordcannot be used against the newly added accused in view of Section273 of CrPC. As against the accused who has been summonedsubsequently a fresh trial is to be held. However whileconsidering the application under Section 319 CrPC, if thedecision by the Sessions Judge is to summon the additionalaccused before passing the judgment of conviction or passing anorder on sentence, the conclusion of the trial by pronouncing thejudgment is required to be withheld and the application underSection 319 CrPC is required to be disposed of and only then theconclusion of the judgment, either to convict the other accusedwho were before the Court and to sentence them can be proceededwith. This is so since the power under Section 319 CrPC can beexercised only before the conclusion of the trial by passing thejudgment of conviction and sentence. [Para 28][184-B-G]

2.7 Though Section 319 of CrPC provides that such personsummoned as per sub-section (1) thereto could be jointly tried AB

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Atogether with the other accused, keeping in view the poweravailable to the Court under Section 223 of CrPC to hold a jointtrial, it would also be open to the Sessions Judge at the point ofconsidering the application under Section 319 of CrPC anddeciding to summon the additional accused, to also take a decisionas to whether a joint trial is to be held after summoning suchBaccused by deferring the judgment being passed against the triedaccused. If a conclusion is reached that the fresh trial to beconducted against the newly added accused could be separatelytried, in such event it would be open for the Sessions Judge toorder so and proceed to pass the judgment and conclude the trialCinsofar as the accused against whom it had originally proceededand thereafter proceed in the case of the newly added accused.However, what is important is that the decision to summon anadditional accused either suo-moto by the Court or on anapplication under Section 319 in all eventuality be consideredand disposed of before the judgment of conviction and sentenceDis pronounced, as otherwise, the trial would get concluded andthe Court will get divested of the power under Section 319. Sincea power is available to the Court to decide as to whether a jointtrial is required to be held or not, the phrase, “could be triedtogether with the accused” as contained in Section 319(1) CrPC,Eis 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 validityto an application filed under Section 319 of CrPC or the order ofCourt to summon an additional accused in the earlier main trial if

Fsuch summoning order is made in the earlier concluded trialagainst the other accused. This is so, since such power is to beexercised by the Court based on the evidence recorded in thatcase pointing to the involvement of the accused who is sought tobe summoned. If in the split up case, on securing the presence ofthe absconding accused the trial is commenced and if in theGevidence recorded therein it points to the involvement of anyother person as contemplated in Section 319 CrPC, such powerto summon the accused can certainly be invoked in the split up(bifurcated) case before conclusion of the trial therein. [Para30][185-D-G]

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SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB

Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC738 : [2002] 3 SCR 400; Hardeep Singh v. State ofPunjab (2014) 3 SCC 92 : [2014] 2 SCR 1; RamaNarang vs. Ramesh Narang and Others (1995) 2 SCC513 : [1995] 1 SCR 456; Yakub Abdul Razak Memonv. State of Maharashtra (2013) 13 SCC 1 : [2013] 15SCR 1; Rajendra Singh v. State of U.P. and Another(2007) 7 SCC 378 : [2007] 8 SCR 834; Manjit Singhv. State of Haryana and Others (2021) SCC Online SC632 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.885 of 2019.

From the Judgment and Order dated 17.11.2017 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Revision No. 4070 of2017 (O&M).

With

SLP (Crl.) No. 6960/2021, Crl. Appeal No. 886/2019 & SLP (Crl.)No. 5933/2019.

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 SinghJohar, Harshit Sethi, Mehtab Singh Khaira, Kapil Dahiya, DevanshuYadav, Amit K. Nain, Puneet Singh Bindra, Neeraj Kumar Verma,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 A

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APal, 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, UdaiKhanna, Ankit Bhatia, Ms. Madhumitha, Anshuman Singh, Harsh PaulSingh, Hitharth Raja, Vikash Bansal, Vishnu Shankar Jain, Shashi ShekharBKumar, Ms. Taruna Ardhendumauli Prasad, Amritesh Raj, Ms. ShreyaSrivastava, Ashish Madaan, Aman Singh Bhadoria, Ms. Ananya Sahu,Abhinav Shrivastava, Sunny Choudhary, Advs. for the Respondent.

Ashish Dixit, Ravi Sharma, Advs. for the Intervenor.

CThe Judgment of the Court was delivered by

A. S. BOPANNA, J.

1. In the above appeal, the order dated 17.11.2017 passed by theHigh Court of Punjab and Haryana in Criminal Revision No.4070 of2017 and Criminal Revision No.4113 of 2017 are assailed. Through theDsaid order, the High Court has dismissed the Criminal Revision Petitionsand upheld the order dated 31.10.2017 passed by the Trial Courtsummoning the appellant as an additional accused by exercising the powerunder Section 319 of the Criminal Procedure Code, 1973 (‘CrPC’ forshort). For the purpose of narration of facts the case in Criminal AppealNo.885 of 2019 is noted.E

2. The position which led to the appellant being summoned is thaton 05.03.2015 a First Information Report was lodged in the Police StationSadar, Jalalabad against 11 accused for the offence under Sections 21,24, 25, 27, 28, 29 and 30 of Narcotic Drugs and Psychotropic SubstanceFAct, 1985 (‘NDPS’ for short), Section 25-A of Arms Act and Section 66of the Information Technology Act, 2000 (‘IT Act’ for short). In thecharge sheet dated 06.09.2015, 10 accused were summoned and put totrial in Sessions Case No. 289 of 2015. Though the second charge sheetwas filed by the police, the same did not name the appellant herein as anaccused.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 applicationdated 31.07.2017 under Section 311 of CrPC for recalling PW-4 andPW-5, which was allowed. In the further examination of the said recalledHwitnesses, they named the appellant herein. The prosecution thereafter filed an application on 21.09.2017 invoking Section 319 of CrPC in thesaid Sessions Case No.289 of 2015 for summoning additional 5 accused,including the appellant herein. The summoning of additional accusedwas sought based on the evidence tendered by PW-4, PW-5 andPW-13.

4. It is to be noted that out of the 11 accused, the proceedings inSessions Case No.289 of 2015 were against the 10 accused and sinceone of the accused was not available, the case in that regard was splitup (bifurcated) and was subsequently numbered as Sessions Case No.217of 2019 on 03.09.2019. In that background, it is seen that as on the datewhen the application under Section 319 CrPC was filed on 21.09.2017,the only proceeding pending was Sessions Case No.289 of 2015. In thatregard, in respect of the proceedings against the 10 accused, the learnedSessions Judge pronounced the judgment on 31.10.2017 whereby one ofthe accused was acquitted, while the remaining 9 accused were convictedand sentence was imposed on 31.10.2017. The learned Sessions Judge,also allowed the application filed under Section 319 of CrPC on thesame day i.e., 31.10.2017 and summoned the appellant to face trial. It isin that backdrop the appellant assailed the order dated 31.10.2017summoning him to face trial, since according to him such order is notsustainable in law as the same was not passed in a proceeding pendingbefore the learned Sessions Court as at the stage when the power tosummon was exercised by learned Sessions Judge, the judgment ofconviction and sentence had already been passed earlier on 31.10.2017.The said order assailed in Revision Petition No.4070 and 4113 of 2017was dismissed by the High Court, which has led to the presentproceedings.

5. The instant petition was heard before a bench consisting oftwo Hon’ble Judges of this Court on 10.05.2019 wherein, in the courseof assailing the summoning order, the decisions of this Court in the caseof Shashikant Singh vs. Tarkeshwar Singh (2002) 5 SCC 738 and thedecision in the case of Hardeep Singh vs. State of Punjab (2014) 3SCC 92 rendered in the context of the power exercisable under Section319 of CrPC were noted. In that context, the Bench of two Hon’bleJudges of this Court was of the opinion that the question with regard tothe actual stage at which the trial is said to have concluded is required tobe authoritatively considered since the power under Section 319 of CrPCis extraordinary in nature.

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A6. In that view, the following substantial questions of law wereraised for further consideration and the matters were placed beforeHon’ble the Chief Justice of India for constitution of a Bench ofappropriate strength to consider the questions raised. Hon’ble the ChiefJustice has accordingly constituted this Bench to consider the questionsraised, which read as hereunder: -B

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“I. Whether the trial court has the power under Section 319 ofCrPC for summoning additional accused when the trial withrespect to other co-accused has ended and the judgment ofconviction rendered on the same date before pronouncing thesummoning order?

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II. Whether the trial court has the power under Section 319 of theCrPC for summoning additional accused when the trial in respectof certain other absconding accused (whose presence issubsequently secured) is ongoing/pending, having been bifurcatedfrom the main trial?D

III. What are the guidelines that the competent court must followwhile exercising power under Section 319 CrPC?”

7. In order to answer the above questions, we have heard ShriP.S. Patwalia, learned senior counsel for the appellant and also ShriEPuneet Singh Bindra, learned counsel who appeared on behalf of theappellant in the tagged matter. Shri S. Nagamuthu, learned senior counselhas assisted this Court as Amicus Curiae. Shri Vinod Ghai, AdvocateGeneral appeared for the State of Punjab while Shri A.K. Prasad, learnedAdditional Advocate General appeared for the State of U.P. Shri S.V.Raju, Additional Solicitor General has appeared for the Union of IndiaFsince a case is said to have also been registered against the appellantunder the Prevention of Money Laundering Act, 2002. We have alsoheard 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, learnedGSenior Counsel is as hereunder: - Order summoning a person (appellant herein) as an accused underSection 319 of CrPC was passed at a stage when the trial had alreadyconcluded and even judgment and order on sentence had beenpronounced. It is contended that the said order is, therefore in violation H

of Section 319 of CrPC and Hardeep Singh (supra), wherein in Para47 it was held that power has to be exercised before pronouncement ofjudgment. It can only be exercised during the pendency of the trial, whichis a stage anterior to the date of pronouncement of judgment. In fact thisis also consistent with Section 353(1) of CrPC, which states that afterperusal of the evidence, the judgment is to be pronounced after terminationof trial, and therefore, Section 319 of CrPC mandates that the powercan be exercised only during trial and it follows that once trial is concludedand judgment is pronounced, the Court cannot exercise power underSection 319 of CrPC at that stage.

Contending that it can be simultaneous is also equally violative ofSection 319 of CrPC and the law laid down is clear that it has to be donebefore judgment. In a nutshell, if an accused is to be summoned, it has tobe done when the trial is alive. The moment trial is concluded and thematter is kept for judgment, then the stage for exercising power underSection 319 of CrPC goes and the Court thereafter becomes functusofficio. When the trial is pending, the Court can add an accused underSection 319 of CrPC but the moment the trial concludes and judgment ispronounced, then no proceedings remain before the Court. When theCourt pronounces the judgment acquitting or convicting the accused,thereafter, no proceedings which commenced with the filing of the originalcharge sheet remain pending. It is also contended that it is not a mereprocedural violation, rather, substantive violation since the power iscircumscribed by the stage during which it can be exercised, i.e. inquiry/trial.

9. The gist of the contentions urged by Shri S. Nagamuthu, learnedAmicus Curiae is as follows:-

Before taking cognizance under Section 190 of CrPC and afterpronouncement of judgment, Court has no power under Section 319 ofCrPC and in view of Hardeep Singh (supra) the trial court does nothave the power for summoning additional accused when trial with respectto other co-accused has ended and judgment of conviction has beenrendered on the same date. In Sessions Trial, accused can be acquittedby an order of acquittal and if accused is acquitted either under Section232 or 235 of CrPC, by passing an order or pronouncing a judgment, theproceeding gets terminated. While, if the accused is convicted, proceedingstill continues because he is to be heard on sentence and he is entitled tolead evidence at that stage. Therefore, when accused is convicted, trial A

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Ais terminated after sentence is passed. Section 353 of CrPC should beunderstood in this background and so, it cannot be argued that afterarguments are heard, trial gets terminated.

Evidence which have been brought on record during inquiry/trialincluding evidence collected during investigation such as FIR, SectionB161, Section 164 statements, cannot be treated as evidence for the purposeof Section 319 of CrPC. Applying this, it will emerge that the evidencerecorded in a separate trial held against the other accused cannot beconsidered as evidence in the present case. But, in the split up case(bifurcated) where there is a separate trial, and during the course of thattrial, if any evidence comes on record against a person who is not alreadyCan accused, based on that evidence alone, he can be arrayed as anaccused under Section 319 of CrPC. When a person is summoned as anadditional accused, it is the discretion of the Court whether to chargeand try two or more persons together in the same trial.

As per Section 319(4) of CrPC, as against the newly addedDaccused, trial should be a fresh trial. However, if there is joint trial, freshtrial should be conducted against all the accused including the existingaccused. In such an event, evidence already recorded is no evidenceagainst the added accused in view of Section 273 of CrPC. In a case,there cannot be two sets of evidence, one against the existing accusedEand the other against the added accused. As a consequence, evidencealready recorded is no evidence against any accused including the existingaccused. Fresh trial is to be conducted.

10. The gist of the contentions put forth by Shri Vinod Ghai, learnedAdvocate General for the State of Punjab is as follows:-F

The intent behind the legislature in introducing Section 319 of CrPCis to check that no culprit should go scot-free and to bring home the guiltof actual accused. It is in this context that the Courts have beenempowered to summon any person, who appears to have committed anoffence, for which the already charge-sheeted accused are facing trial.GGiving a narrow interpretation to such a provision and putting unwarrantedrestrictions would circumvent the very purpose of this power and wouldonly result in travesty of justice. It is with the said object in mind that aconstructive and purposive interpretation should be adopted whichadvances the cause of justice and does not dilute the intention of thestatute conferring powers on the Court to carry out the above-mentionedH

avowed object and purpose to try the person to the satisfaction of theCourt as an accused in the commission of the offence that is the subjectmatter of the trial.

Section 319(1) of CrPC explains as to who/which type of personcan be summoned as an additional accused to face trial. The word “couldbe tried together with other accused” has been used to identify the personwho can be summoned and tried as an additional accused. Conclusionof main trial during pendency of revision/appeal before the Higher Courtsagainst Section 319 of CrPC order will not make the order inoperative/ineffective merely because the trial in which such order was passed hasbeen concluded.

The Court has exercised the power under Section 319 of CrPCfor summoning additional accused when the trial in respect of otherabsconding accused is ongoing/pending having been bifurcated from themain trial. The trial qua accused who were earlier absconding, is pendingand some evidence has come which necessitates the summoning ofadditional accused by the Court. When application under Section 319 ofCrPC is decided simultaneously on the same day when trial is concluded,then the Court below does not become functus officio and is competentto exercise power under Section 319 of CrPC in view of Section 354 ofCrPC which expressly provides that an order on quantum of sentence isan integral part of the judgment and any judgment of conviction withoutsuch order would be referred as incomplete.

11. The gist of the contention put forth by Shri A.K. Prasad, learnedAdditional Advocate General for the State of U.P. is essentially in thesame line as contended by the learned Advocate General for therespondent-State of Punjab. Insofar as the aspect relating to the powerthat could be exercised under Section 319 of CrPC, with the connotationof such power being exercised before completion of trial it was contendedby the learned counsel that the trial does not conclude with thepronouncement of conviction, since sentence also being a part of thejudgment. The court becomes functus officio only after the sentence isimposed. It is contended that it will have to be held that the power canbe exercised till the sentence is pronounced, which is the point at whichthe judgment is complete in all respects and trial gets concluded.

12. Shri S.V. Raju, learned Additional Solicitor General thoughargued in similar lines as put forth by the learned Advocate General and AB

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AAdditional Advocate General for the respective States, he, in fact, wenta step further to contend that the power under Section 319 of CrPC canbe invoked at any stage even after the sentence is pronounced since theinvolvement of an accused may come to light at a later stage and in thatcircumstance if the recommendation of the Law Commission to bring inthe provision is kept in view, the only objective is that no accused shouldBgo scot-free and therefore steps can be taken at any stage to bring theaccused to book. Shri Ashish Dixit, the learned counsel for the intervenorhas complemented the arguments on behalf of States by putting forthsimilar contentions.

13. In the background of the rival contentions, in order to determineCthe 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, whichreads as hereunder: - “319. Power to proceed against other persons appearing tobe guilty of offence. — (1) Where, in the course of any inquiryDinto, or trial of, an offence, it appears from the evidence that anyperson not being the accused has committed any offence for whichsuch person could be tried together with the accused, the Courtmay proceed against such person for the offence which he appearsto have committed.

E(2) Where such person is not attending the Court, he may bearrested or summoned, as the circumstances of the case mayrequire, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest orupon a summons, may be detained by such Court for the purposeFof the inquiry into, or trial of, the offence which he appears tohave committed.

(4) Where the Court proceeds against any person under sub-section(1), then—

(a) the proceedings in respect of such person shall beGcommenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceedas if such person had been an accused person when the Courttook cognizance of the offence upon which the inquiry or trialwas commenced.”H

14. At the outset, having noted the provision, it is amply clear thatthe power bestowed on the Court is to the effect that in the course of aninquiry into, or trial of an offence, based on the evidence tendered beforethe Court, if it appears to the Court that such evidence points to anyperson other than the accused who are being tried before the Court tohave committed any offence and such accused has been excluded in thecharge sheet or in the process of trial till such time could still be summonedand tried together with the accused for the offence which appears tohave been committed by such persons summoned as additional accused.

15. In that regard, the object of incorporating the provision in theCrPC and bestowing such power to the Court was based on therecommendation made by the Law Commission of India in its Forty-First Report to which all the learned senior counsel have made extensivereference, read as hereunder:- 24.80. It happens sometimes, though not very often, that aMagistrate hearing a case against certain accused finds from theevidence that some person, other than the accused before him, isalso concerned in that very offence or in a connected offence. Itis only proper that the Magistrate should have the power to calland join him in the proceedings. Section 351 provides for such asituation, but only if that person happens to be attending the Court.He can then be detained and proceeded against. There is noexpress provision in section 351 for summoning such a person ifhe is not present in Court. Such a provision would make section351 fairly comprehensive, and we think it proper to expresslyprovide for that situation.

24.81. Section 351 assumes that the Magistrate proceeding underit has the power of taking cognizance of the new case. It doesnot, however, say in what manner cognizance is taken by theMagistrate. The modes of taking cognizance are mentioned insection 190, and are, apparently, exhaustive. The question is,whether against the newly added accused, cognizance will besupposed to have been taken on the Magistrate’s own informationunder section 190(1)(c), or only in the manner in which cognizancewas first taken of the offence against the other accused. Inconcrete terms, if the original case was instituted on a police report,i.e. under section 190(1)(b), will cognizance against the newaccused be supposed to have been taken in the same manner, or A

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Aunder section 190(1)(c)? The question is important, because themethods of enquiry and trial in the two cases differ. About thetrue position under the existing law, there has been difference ofopinion, and we think it should be made clear. It seems to us thatthe main purpose of this particular provision is, that the wholecase against all known suspects should be proceeded withBexpeditiously, and convenience requires that cognizance againstthe newly added accused should be taken in the same manner asagainst the other accused. We, therefore, propose to re-castsection 351 making it comprehensive and providing that there willbe no difference in the mode of taking cognizance if a new personCis added as an accused during the proceedings. It is, of course,necessary (as is already provided) that in such a situation theevidence must be re-heard in the presence of the newly addedaccused.

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24.82 The offence for which the newly added accused can beDtried is not indicated in precise terms in the section. Obviously,that offence should be connected with the one for which theoriginal accused is under trial. To bring that out, a small verbalamendment is recommended.

16. In the above backdrop, the issue relating to the power to beEexercised under Section 319 of CrPC had arisen for detailed considerationin Hardeep Singh (supra) wherein the scope, procedure and the stageat which such power was to be exercised was considered and summarisedas follows:-

12. Section 319 CrPC springs out of the doctrine judex damnaturFcum nocens absolvitur (Judge is condemned when guilty isacquitted) and this doctrine must be used as a beacon light whileexplaining the ambit and the spirit underlying the enactment ofSection 319 CrPC.

13. It is the duty of the court to do justice by punishing the realGculprit. Where the investigating agency for any reason does notarray one of the real culprits as an accused, the court is notpowerless in calling the said accused to face trial. The questionremains under what circumstances and at what stage should thecourt exercise its power as contemplated in Section 319 CrPC?

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15. It would be necessary to put on record that the powerconferred under Section 319 CrPC is only on the court. This hasto be understood in the context that Section 319 CrPC empowersonly the court to proceed against such person. The word “court”in our hierarchy of criminal courts has been defined under Section6 CrPC, which includes the Courts of Session, Judicial Magistrates,Metropolitan Magistrates as well as Executive Magistrates. TheCourt of Session is defined in Section 9 CrPC and the Courts ofthe Judicial Magistrates have been defined under Section 11thereof. The Courts of the Metropolitan Magistrates have beendefined under Section 16 CrPC. The courts which can try offencescommitted under the Penal Code, 1860 or any offence under anyother law, have been specified under Section 26 CrPC read withthe First Schedule. The Explanatory Note (2) under the headingof “Classification of offences” under the First Schedule specifiesthe expression “Magistrate of First Class” and “any Magistrate”to include Metropolitan Magistrates who are empowered to trythe offences under the said Schedule but excludes ExecutiveMagistrates.

40. Even the word “course” occurring in Section 319 CrPC, clearlyindicates that the power can be exercised only during the periodwhen the inquiry has been commenced and is going on or the trialwhich has commenced and is going on. It covers the entire widerange of the process of the pre-trial and the trial stage. The word“course” therefore, allows the court to invoke this power to proceedagainst any person from the initial stage of inquiry up to the stageof the conclusion of the trial. The court does not become functusofficio even if cognizance is taken so far as it is looking into thematerial qua any other person who is not an accused. The word“course” ordinarily conveys a meaning of a continuous progressfrom one point to the next in time and conveys the idea of a periodof time : duration and not a fixed point of time.

42. To say that powers under Section 319 CrPC can be exercisedonly during trial would be reducing the impact of the word “inquiry”by the court. It is a settled principle of law that an interpretationwhich leads to the conclusion that a word used by the legislatureis redundant, should be avoided as the presumption is that thelegislature has deliberately and consciously used the words for ABC

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carrying out the purpose of the Act. The legal maxim a verbislegis non est recedendum which means, “from the words of law,there must be no departure” has to be kept in mind.

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47. Since after the filing of the charge-sheet, the courtreaches the stage of inquiry and as soon as the court framesBthe charges, the trial commences, and therefore, the powerunder Section 319(1) CrPC can be exercised at any timeafter the charge-sheet is filed and before thepronouncement of judgment, except during the stage ofSections 207/208 CrPC, committal, etc. which is only a pre-trial stage, intended to put the process into motion. ThisCstage cannot be said to be a judicial step in the true sense for itonly requires an application of mind rather than a judicial applicationof mind. At this pre-trial stage, the Magistrate is required to performacts in the nature of administrative work rather than judicial suchas ensuring compliance with Sections 207 and 208 CrPC, andDcommitting the matter if it is exclusively triable by the SessionsCourt. Therefore, it would be legitimate for us to conclude thatthe Magistrate at the stage of Sections 207 to 209 CrPC isforbidden, by express provision of Section 319 CrPC, to apply hismind to the merits of the case and determine as to whether anyaccused needs to be added or subtracted to face trial before theECourt of Session.

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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 onlyon the basis of the evidence adduced before the court duringFa trial. So far as its application during the course of inquiry isconcerned, it remains limited as referred to hereinabove, adding aperson as an accused, whose name has been mentioned in Column2 of the charge-sheet or any other person who might be anaccomplice.

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17. In view of the reference contained in the order passed by theBench consisting of two Hon’ble Judges seeking clarity in the matterdue to the view taken by another Bench of two Hon’ble Judges inShashikant Singh (supra) where, purportedly the summoned accused H

was proceeded against after the judgment was passed against the accusedwho were originally charged, it is necessary to take note of the situationthat had arisen therein and the conclusion reached in that case. It isnoted that in a case under Section 302/34 of IPC wherein ShivakantSingh, the brother of Shashikant Singh (supra) was murdered, the trialproceeded against one Chandra Shekar Singh. When the evidence wasrecorded it was found that Tarkeshwar Singh and two others had alsocommitted the offence of murder of Shivakant Singh. The learnedAdditional Sessions Judge by order dated 07.04.2001 exercised the powerunder Section 319 of CrPC and ordered to issue a warrant of arrest sothat they may be tried together with Chandra Shekar Singh, the accusedagainst whom the trial was proceeding. The said order dated 07.04.2001summoning the accused came to be assailed by Tarkeshwar Singh beforethe High Court in Criminal Revision No.269 of 2001. During the pendencyof the said Revision Petition before the High Court the learned AdditionalSessions Judge concluded the pending trial against the originally chargedaccused Chander Shekar Singh and convicted him by the judgment dated16.07.2001. The question which therefore arose in that context was asto whether the trial in the case in which additional accused weresummoned under Section 319 of CrPC including Tarkeshwar Singh canproceed in view of the phrase “could be tried together with the accused”contained in Section 319(1) of CrPC after the trial against other accusedhad concluded with the order of conviction.

18. In that context the Bench of two Hon’ble Judges which allowedthe trial to proceed against the summoned accused, Tarkeshwar Singhand others held as hereunder:

“9. The intention of the provision here is that where in the courseof any enquiry into, or trial of, an offence, it appears to the courtfrom the evidence that any person not being the accused hascommitted any offence, the court may proceed against him forthe offence which he appears to have committed. At that stage,the court would consider that such a person could be tried togetherwith the accused who is already before the court facing the trial.The safeguard provided in respect of such person is that,the proceedings right from the beginning have mandatorilyto be commenced afresh and the witnesses reheard. Inshort, there has to be a de novo trial against him. Theprovision of de novo trial is mandatory. It vitally affects the AB

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Arights of a person so brought before the court. It would notbe sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examinedafresh. Fresh examination-in-chief and not only theirpresentation for the purpose of the cross-examination ofthe newly added accused is the mandate of Section 319(4).BThe words “could be tried together with the accused” inSection 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 thetrial in respect of a person who was before the court hasCconcluded with the result that the newly added personcannot be tried together with the accused who was beforethe court when order under Section 319(1) was passed, theorder would become ineffective and inoperative, nullifyingthe opinion earlier formed by the court on the basis of theevidence before it that the newly added person appears toDhave committed the offence resulting in an order for hisbeing brought before the court.”

19. Thus, to put the matter in perspective, a perusal of theErecommendation of the Law Commission would indicate the intentionthat an accused who is not charge sheeted but if is found to be involvedshould not go scot-free. Hence, Section 319 of CrPC was incorporatedwhich provides for the Court to exercise the power to ensure the samebefore the conclusion of trial so as to try such accused by summoningand being proceeded along with the other accused. In Shashikant SinghF(supra), a Bench of two Hon’ble Judges, on holding that the joint trial isnot a must has held the requirement as contained in Section 319(1) ofCrPC as only directory, and as such the judgment of conviction dated16.07.2001 against the charge-sheeted accused was considered not tobe an impediment for the court to proceed against the accused who wasGadded by the summoning order dated 07.04.2001, which in any casewas prior to the conclusion of the trial which in our view satisfies therequirement since the summoning order was before the judgment. In thecase of Hardeep Singh (supra) also the power of the Court underSection 319 of CrPC has been upheld, reiterated, and it has been heldthat such power is available to be exercised at any time before theH

pronouncement of judgment. Therefore, there is no conflict or diverseview in the said decisions insofar as the exercise of power, the mannerand the stage at which power is to be exercised. However, a certainamount of ironing the crease is required to explain the connotation of thephrase “could be tried together with the accused” appearing in sub-section (1) read with the requirement in sub-section 4(a) to Section 319of CrPC and to understand the true purport of exercising the power asper the phrase “before the pronouncement of judgment”.

20. A close perusal of Section 319 of CrPC indicates that thepower bestowed on the court to summon any person who is not anaccused in the case is, when in the course of the trial it appears from theevidence 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 couldbe tried together with the accused and such power is exclusively of theCourt. Obviously, when such power is to summon the additional accusedand try such a person with the already charged accused against whomthe trial is proceeding, it will have to be exercised before the conclusionof trial. The connotation ‘conclusion of trial’ in the present case cannotbe reckoned as the stage till the evidence is recorded, but, is to beunderstood as the stage before pronouncement of the judgment as alreadyheld in Hardeep Singh (supra) since on judgment being pronounced thetrial comes to a conclusion since until such time the accused is beingtried by the Court.

21. In that context, the rival contentions are to be analysed toarrive at the conclusion as to which is the stage at which it can be saidthat the trial has concluded. Is it at the stage when the judgment ispronounced and the conviction is ordered or is it when the sentence isimposed and the trial is complete in all respects? In order to arrive at aconclusion on this aspect the provision in the code relating to judgment isrequired to be noted. In Chapter XVIII regulating the trial before a Courtof Session the procedure to be adopted and the conclusion of trial isindicated. What is relevant for our purpose is Section 232 and 235 ofCrPC which read as hereunder:- “232. Acquittal.—If, after taking the evidence for theprosecution, examining the accused and hearing the prosecutionand the defence on the point, the Judge considers that there is noevidence that the accused committed the offence, the Judge shallrecord an order of acquittal.”

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A“235. Judgment of acquittal or conviction.—(1) After hearingarguments and points of law (if any), the Judge shall give a judgmentin the case.

(2) If the accused is convicted, the Judge shall, unless he proceedsin accordance with the provisions of section 360, hear the accusedBon the question of sentence, and then pass sentence on himaccording to law.”

Further Chapter XXVII deals with regard to judgment ascontained in Section 353 of CrPC, while Section 354 of CrPC relates tothe language and contents of the judgment. They read as hereunder:- C

“353. Judgment.—(1) The judgment in every trial in any CriminalCourt or original jurisdiction shall be pronounced in open Court bythe presiding officer immediately after the termination of the trialor at some subsequent time of which notice shall be given to theparties 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 andexplaining the substance of the judgment in a language whichis 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 ismade ready, and write on it the date of the delivery of the judgmentin open Court.F

(3) Where the judgment or the operative part thereof is read outunder clause (b) or clause (c) of sub-section (1), as the case maybe, it shall be dated and signed by the presiding officer in openCourt, and if it is not written with his own hand, every page of thejudgment shall be signed by him.G

(4) Where the judgment is pronounced in the manner specified inclause (c) of sub-section (1), the whole judgment or a copy thereofshall be immediately made available for the perusal of the partiesor their pleaders free of cost.

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(5) If the accused is in custody, he shall be brought up to hear thejudgment pronounced.

(6) If the accused is not in custody, he shall be required by theCourt to attend to hear the judgment pronounced, except wherehis personal attendance during the trial has been dispensed withand the sentence is one of fine only or he is acquitted:

Provided that, where there are more accused than one, and oneor more of them do not attend the Court on the date on which thejudgment is to be pronounced, the presiding officer may, in orderto avoid undue delay in the disposal of the case, pronounce thejudgment notwithstanding their absence.

(7) No judgment delivered by any Criminal Court shall be deemedto be invalid by reason only of the absence of any party or hispleader on the day or from the place notified for the deliverythereof, or of any omission to serve, or defect in serving, on theparties or their pleaders, or any of them, the notice of such dayand place.

(8) Nothing in this section shall be construed to limit in any waythe extent of the provisions of section 465.”

“354. Language and contents of judgment.—(1) Except asotherwise expressly provided by this Code, every judgmentreferred to in section 353,—

(a) shall be written in the language of the Court; (b) shall contain the point or points for determination, thedecision thereon and the reasons for the decision;

(c) shall specify the offence (if any) of which, and the sectionof the Indian Penal Code (45 of 1860) or other law underwhich, the accused is convicted, and the punishment towhich he is sentenced; (d) if it be a judgment of acquittal, shall state the offence ofwhich the accused is acquitted and direct that he be setat liberty.

(2) When the conviction is under the Indian Penal Code (45 of1860) and it is doubtful under which of two sections, or underwhich of two parts of the same section, of that Code the offence A

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Afalls, the Court shall distinctly express the same, and pass judgmentin the alternative.

(3) When the conviction is for an offence punishable with deathor, in the alternative, with imprisonment for life or imprisonmentfor a term of years, the judgment shall state the reasons for theBsentence awarded, and, in the case of sentence of death, thespecial reasons for such sentence.

(4) When the conviction is for an offence punishable withimprisonment for a term of one year or more, but the Court imposesa sentence of imprisonment for a term of less than three months,Cit shall record its reasons for awarding such sentence, unless thesentence is one of imprisonment till the rising of the Court orunless the case was tried summarily under the provisions of thisCode.

(5) When any person is sentenced to death, the sentence shallDdirect that he be hanged by the neck till he is dead.

(6) Every order under section 117 or sub-section (2) of section138 and every final order made under section 125, section 145 orsection 147 shall contain the point or points for determination, thedecision thereon and the reasons for the decision.”

E22. From a perusal of the provisions extracted above, it is seenthat if the Sessions Court while analysing the evidence recorded findsthat there is no evidence to hold the accused for having committed theoffence, the judge is required to record an order of acquittal. In thatcase, there is nothing further to be done by the learned Judge and thereforeFthe trial concludes at that stage. In such cases where it arises underSection 232 of CrPC and an order of acquittal is recorded and whenthere are more than one accused or the sole accused, have/has beenacquitted, in such cases, that being the end of the trial by drawing thecurtain, the power of the court to summon an accused based on theevidence as contemplated under Section 319 of CrPC will have to beGinvoked and exercised before pronouncement of judgment of acquittal.There shall be application of mind also, as to whether separate trial orjoint trial is to be held while trying him afresh. After such order it will beopen to pronounce the judgment of acquittal of the accused who wastried earlier.

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23. However, if the learned Judge arrives at the conclusion thatthe accused is to be convicted, the conviction shall be ordered throughthe judgment as contemplated under Section 235 of CrPC. Sub-section(2) thereto provides that if the learned Judge does not proceed to givethe benefit to the accused of being released on probation under Section360 of CrPC, the learned Judge shall hear the accused on the questionof 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 thesentence is to be imposed only after providing an opportunity of beingheard. While hearing on sentence if it is found that the accused waspreviously convicted and if the accused does not admit the same, thelearned Judge is required to record a finding on that aspect as contemplatedunder Section 236 of CrPC. Further, Section 353 of CrPC provides forthe manner in which the judgment is required to be pronounced andSection 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 indicatethat even after the conviction is ordered, the specified procedure isrequired to be followed by the learned Judge to impose the sentence andthe reason for the severity of the punishment which shows that it is acontinuation of the process requiring the learned Judge to apply her/hismind to the evidence available on record to assess the nature ofinvolvement in committing the offence, gravity of the same and imposethe sentence, unlike in a civil proceeding where drawing up the decree isa ministerial act though based on the judgment.

24. The above aspects would indicate that even after thepronouncement of the judgment of conviction, the trial is not completesince the learned Sessions Judge is required to apply her/his mind to theevidence which is available on record to determine the gravity of thecharge for which the accused is found guilty; the role of the particularaccused when there is more than one accused involved in an offenceand in that light, to award an appropriate sentence. Therefore, it cannotbe said that the trial is complete on the pronouncement of the judgmentof conviction alone, though it may be so in the case of acquittal ascontemplated under Section 232 of CrPC, since in that case there isnothing further to be done by the learned Judge except to record anorder of acquittal which results in conclusion of trial.

25. In this regard, it would be apposite to refer to the decision inRama Narang vs. Ramesh Narang and Others (1995) 2 SCC 513

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Awherein a bench consisting of three Hon’ble Judges has held ashereunder:- “12. Chapter XVIII relates to trial before a Court of Session.Sections 225 to 227 relate to the stage prior to the framing ofcharge. Section 228 provides for the framing of charge againstBthe accused person. If after the charge is framed the accusedpleads guilty, Section 229 provides that the Judge shall record theplea and may, in his discretion, convict him thereon. However, ifhe does not enter a plea of guilty, Sections 230 and 231 providefor leading of prosecution evidence. If, on the completion of theprosecution evidence and examination of the accused, the JudgeCconsiders that there is no evidence that the accused committedthe offence with which he is charged, the Judge shall record anorder of acquittal. If the Judge does not record an acquittal underSection 232, the accused would have to be called upon to enter onhis defence as required by Section 233. After the evidence-in-Ddefence is completed and the arguments heard as required bySection 234, Section 235 requires the Judge to give a judgment inthe case. If the accused is convicted, sub-section (2) ofSection 235 requires that the Judge shall, unless heproceeds in accordance with the provisions of Section 360,hear the accused on the question of sentence and then passEsentence on him according to law. It will thus be seen thatunder the Code after the conviction is recorded, Section235(2) inter alia provides that the Judge shall hear theaccused on the question of sentence and then pass sentenceon him according to law. The trial, therefore, comes to anFend only after the sentence is awarded to the convictedperson.

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13. Chapter XXVII deals with judgment. Section 354 sets out thecontents of judgment. It says that every judgment referred to inSection 353 shall, inter alia, specify the offence (if any) of whichand the section of the Penal Code, 1860 or other law under which,the accused is convicted and the punishment to which he issentenced. Thus a judgment is not complete unless the punishmentto which the accused person is sentenced is set out therein. Section356 refers to the making of an order for notifying address ofpreviously convicted offender. Section 357 refers to an order in G

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regard to the payment of compensation. Section 359 provides foran order in regard to the payment of costs in non-cognizable casesand Section 360 refers to release on probation of good conduct.It will thus be seen from the above provisions that afterthe court records a conviction, the accused has to be heardon the question of sentence and it is only after the sentenceis awarded that the judgment becomes complete and canbe appealed against under Section 374 of the Code.”

26. Similarly while considering the purport of what constitutes ajudgment to provide finality to trial, a bench consisting of two Hon’bleJudges 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 ispronounced only after the award of sentence.

113. It is also clear from the judgment that detailed submissionswere made by the appellant (A-1) during the pre-sentence hearingand these submissions were considered and, accordingly, reasonshave been recorded by the Designated Judge in Part 46 of thefinal judgment in compliance with the requirement of Section235(2) and Section 353 of the Code. It is also relevant tomention that Section 354 makes it clear that “judgment”shall contain the punishment awarded to the accused. It istherefore, complete only after the sentence is determined.”

27. Therefore, from a perusal of the provisions and decisions ofthis Court, it is clear that the conclusion of the trial in a criminal prosecutionif it ends in conviction, a judgment is considered to be complete in allrespects only when the sentence is imposed on the convict, if the convictis not given the benefit of Section 360 of CrPC. Similarly, in a casewhere there are more than one accused and if one or more among themare acquitted and the others are convicted, the trial would stand concludedas against the accused who are acquitted and the trial will have to beconcluded against the convicted accused with the imposition of sentence.When considered in the context of Section 319 of CrPC, there would be A

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Ano dichotomy as argued, since what becomes relevant here is only thedecision to summon a new accused based on the evidence available onrecord which would not prejudice the existing accused since in any eventthey are convicted.

28. In that view of the matter, if the Court finds from the evidenceBrecorded in the process of trial that any other person is involved, suchpower to summon the accused under Section 319 of CrPC can beexercised by passing an order to that effect before the sentence isimposed and the judgment is complete in all respects bringing the trial toa conclusion. While arriving at such conclusion what is also to be kept inview is the requirement of sub-section (4) to Section 319 of CrPC. FromCthe said provision it is clear that if the learned Sessions Judge exercisesthe power to summon the additional accused, the proceedings in respectof such person shall be commenced afresh and the witnesses will haveto be re-examined in the presence of the additional accused. In a casewhere the learned Sessions Judge exercises the power under SectionD319 of CrPC after recording the evidence of the witnesses or afterpronouncing the judgment of conviction but before sentence beingimposed, the very same evidence which is available on record cannot beused against the newly added accused in view of Section 273 of CrPC.As against the accused who has been summoned subsequently a freshtrial is to be held. However while considering the application under SectionE319 of CrPC, if the decision by the learned Sessions Judge is to summonthe additional accused before passing the judgment of conviction orpassing an order on sentence, the conclusion of the trial by pronouncingthe judgment is required to be withheld and the application under Section319 of CrPC is required to be disposed of and only then the conclusion Fof the judgment, either to convict the other accused who were beforethe Court and to sentence them can be proceeded with. This is so sincethe power under Section 319 of CrPC can be exercised only before theconclusion of the trial by passing the judgment of conviction and sentence.

29. Though Section 319 of CrPC provides that such personGsummoned as per sub-section (1) thereto could be jointly tried togetherwith the other accused, keeping in view the power available to the Courtunder Section 223 of CrPC to hold a joint trial, it would also be open tothe learned Sessions Judge at the point of considering the applicationunder Section 319 of CrPC and deciding to summon the additionalaccused, to also take a decision as to whether a joint trial is to be heldH

after summoning such accused by deferring the judgment being passedagainst the tried accused. If a conclusion is reached that the fresh trialto be conducted against the newly added accused could be separatelytried, in such event it would be open for the learned Sessions Judge toorder so and proceed to pass the judgment and conclude the trial insofaras the accused against whom it had originally proceeded and thereafterproceed in the case of the newly added accused. However, what isimportant is that the decision to summon an additional accused eithersuo-moto by the Court or on an application under Section 319 of CrPCshall in all eventuality be considered and disposed of before the judgmentof conviction and sentence is pronounced, as otherwise, the trial wouldget concluded and the Court will get divested of the power under Section319 of CrPC. Since a power is available to the Court to decide as towhether a joint trial is required to be held or not, this Court was justifiedin holding the phrase, “could be tried together with the accused” ascontained in Section 319(1) of CrPC, to be directory as held inShashikant Singh (supra) which in our opinion is the correct view.

30. One other aspect which is necessary to be clarified is that ifthe trial against the absconding accused is split up (bifurcated) and ispending, that by itself will not provide validity to an application filed underSection 319 of CrPC or the order of Court to summon an additionalaccused in the earlier main trial if such summoning order is made in theearlier concluded trial against the other accused. This is so, since suchpower is to be exercised by the Court based on the evidence recorded inthat case pointing to the involvement of the accused who is sought to besummoned. If in the split up (bifurcated) case, on securing the presenceof the absconding accused the trial is commenced and if in the evidencerecorded therein it points to the involvement of any other person ascontemplated in Section 319 of CrPC, such power to summon theaccused can certainly be invoked in the split up (bifurcated) case beforeconclusion of the trial therein.

31. In analysing the issue and making the above conclusion onall 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. andAnother (2007) 7 SCC 378 wherein it is concluded with regard to theobject of Section 319 of CrPC as hereunder:- “20. The power under Section 319 of the Code is conferred onthe court to ensure that justice is done to the society by bringing to AB

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Abook all those guilty of an offence. One of the aims and purposesof the criminal justice system is to maintain social order. It isnecessary in that context to ensure that no one who appears to beguilty escapes a proper trial in relation to that guilt. There is also aduty to render justice to the victim of the offence. It is in recognitionof this that the Code has specifically conferred a power on theBcourt to proceed against others not arrayed as accused in thecircumstances set out by this section. It is a salutary power enablingthe discharge of a court’s obligation to the society to bring to bookall those guilty of a crime.

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21. Exercise of power under Section 319 of the Code, in my view,Cis left to the court trying the offence based on the evidence thatcomes before it. The court must be satisfied of the conditionprecedent for the exercise of power under Section 319 of theCode. There is no reason to assume that a court trained in lawwould not exercise the power within the confines of the provisionDand 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 exercisedonly in exceptional circumstances. It is intended to be used whenthe occasion envisaged by the section arises.”

E32. We have also kept in view the point by point analysis of theobject and power to be exercised under Section 319 of CrPC, as hasbeen indicated in para 34 of Manjit Singh vs. State of Haryana andOthers (2021) SCC Online SC 632.

33. For all the reasons stated above, we answer the questionsreferred as hereunder:-F

“I. Whether the trial court has the power under Section 319 ofCrPC for summoning additional accused when the trial withrespect to other co-accused has ended and the judgment ofconviction rendered on the same date before pronouncing theGsummoning order?

The power under Section 319 of CrPC is to be invoked andexercised before the pronouncement of the order of sentence wherethere 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 byH

imposition of sentence in the case of conviction. If the order is passedon the same day, it will have to be examined on the facts andcircumstances of each case and if such summoning order is passedeither after the order of acquittal or imposing sentence in the case ofconviction, the same will not be sustainable.

II. Whether the trial court has the power under Section 319 of theCrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence issubsequently secured) is ongoing/pending, having been bifurcatedfrom the main trial?

The trial court has the power to summon additional accused whenthe trial is proceeded in respect of the absconding accused after securinghis 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 thebasis of the summoning order if such power has not been exercised inthe main trial till its conclusion.

III. What are the guidelines that the competent court must followwhile exercising power under Section 319 CrPC?”

(i) If the competent court finds evidence or if application underSection 319 of CrPC is filed regarding involvement of anyother person in committing the offence based on evidencerecorded at any stage in the trial before passing of the orderon acquittal or sentence, it shall pause the trial at that stage.

(ii) The Court shall thereupon first decide the need or otherwiseto summon the additional accused and pass orders thereon.

(iii) If the decision of the court is to exercise the power underSection 319 of CrPC and summon the accused, suchsummoning order shall be passed before proceeding furtherwith 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 shallalso apply its mind to the fact as to whether such summonedaccused is to be tried along with the other accused orseparately.

A

B

C

D

E

F

G

H

A(v)If the decision is for joint trial, the fresh trial shall becommenced only after securing the presence of thesummoned accused.

(vi) If the decision is that the summoned accused can be triedseparately, on such order being made, there will be noBimpediment for the Court to continue and conclude the trialagainst the accused who were being proceeded with.

(vii) If the proceeding paused as in (i) above is in a case wherethe accused who were tried are to be acquitted and thedecision is that the summoned accused can be tried afreshCseparately, there will be no impediment to pass the judgmentof acquittal in the main case.

(viii) If the power is not invoked or exercised in the main trial tillits conclusion and if there is a split-up (bifurcated) case,the power under Section 319 of CrPC can be invoked orDexercised only if there is evidence to that effect, pointing tothe involvement of the additional accused to be summonedin the split up (bifurcated) trial.

(ix) If, after arguments are heard and the case is reserved forjudgment the occasion arises for the Court to invoke andEexercise the power under Section 319 of CrPC, theappropriate course for the court is to set it down for re-hearing.

(x) On setting it down for re-hearing, the above laid downprocedure to decide about summoning; holding of joint trialFor otherwise shall be decided and proceeded withaccordingly.

(xi) Even in such a case, at that stage, if the decision is tosummon additional accused and hold a joint trial the trialshall be conducted afresh and de novo proceedings be held.

G(xii)If, in that circumstance, the decision is to hold a separatetrial in case of the summoned accused as indicated earlier; (a) The main case may be decided by pronouncing theconviction and sentence and then proceed afreshagainst summoned accused.

H

(b) In the case of acquittal the order shall be passed tothat effect in the main case and then proceed afreshagainst summoned accused.

34. Having answered the questions referred, in the above manner,we direct the Registry to obtain orders from Hon’ble the Chief Justiceand place before the appropriate Bench to take a decision on the factualaspects arising in the case in the background of the legal position andcontentions on merits.

35. Before parting, we place on record our appreciation for theassistance rendered by all the learned Senior Counsel/Counsel includingShri S. Nagamuthu, learned Senior Counsel who assisted the Court asan Amicus Curiae.

Nidhi Jain

Referred questions answered.

(Assisted by : Preetam Bharti, LCRA)

A

B

C

D

E

F

G

H