The Supreme Court ruled that the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction.
The position which led to the appellant being summoned is that on 05.03.2015 a First Information Report was lodged in the Police Station Sadar, Jalalabad against 11 accused for the offence under Sections 21, 24, 25, 27, 28, 29 and 30 of Narcotic Drugs and Psychotropic Substance Act, 1985, Section 25-A of Arms Act and Section 66 of the Information Technology Act, 2000. In the charge sheet, 10 accused were summoned and put to trial in the Sessions Case. Though the second charge sheet was filed by the police, the same did not name the appellant as an accused.
Senior Advocate P.S. Patwalia, appearing for the appellant, submitted that the order summoning a person (appellant herein) as an accused under Section 319 of CrPC was passed at a stage when the trial had already concluded and even judgment and order on sentence had been pronounced.
He contended that the said order is, therefore in violation of Section 319 of CrPC and Hardeep Singh wherein in Para 47 it was held that power has to be exercised before pronouncement of judgment.
S. Nagamuthu, Amicus Curiae, submitted that before taking cognizance under Section 190 of CrPC and after pronouncement of judgment, Court has no power under Section 319 of CrPC and in view of Hardeep Singh the trial court does not have the power for summoning additional accused when trial with respect to other co-accused has ended and judgment of conviction has been rendered on the same date.
Vinod Ghai, Advocate General for the State of Punjab, submitted that the intent behind the legislature in introducing Section 319 of CrPC is to check that no culprit should go scot-free and to bring home the guilt of actual accused.
He contended that it is in this context that the Courts have been empowered to summon any person, who appears to have committed an offence, for which the already charge-sheeted accused are facing trial.
The five judges bench of Justice S. Abdul Nazeer, Justice B.R. Gavai, Justice A.S. Bopanna, Justice V. Ramasubramanian and Justice B.V. Nagarathna observed that 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” the court said.
The bench added that 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.
It was observed by the court that in a case where the 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.
It was further observed that 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.
The bench directed the Registry to obtain orders from the Chief Justice and place before the appropriate Bench to take a decision on the factual aspects arising in the case in the background of the legal position and contentions on merits.
Case title: Sukhpal Singh Khaira v/s The State of Punjab
Citation: Criminal appeal no.885 of 2019