IMPORTANT POINT
Summoning of additional accused to face trial – If such a summoning order is passed, either after order of acquittal or imposing of sentence in conviction, same may not be sustainable.

JUDGMENT :

B.R. Gavai, J.

1. Leave granted

2. The present appeal challenges the judgment and order dated 25th August 2021 passed by the learned Single Judge of the High Court of Judicature at Allahabad, vide which the petition filed by the present appellant challenging the order passed by the learned Additional Sessions Judge (hereinafter referred to as “learned Trial Judge”) dated 21st March 2012 was dismissed.

3. The facts of the present case are not disputed.

4. The trial court proceeded with the trial in connection with the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short “IPC”).

5. After the conclusion of the trial, the learned Trial Judge convicted some of the accused and acquitted the others.

6. The learned Trial Judge was also of the opinion that the present appellant was also required to be tried.

7. By an order dated 21st March 2012, the learned Trial Judge in the first half recorded the order of conviction in respect of the accused whom it had found to be guilty and also recorded the order of acquittal for the remaining accused, it found to be not guilty. Post lunch, the learned Trial Judge first recorded the order of sentence insofar as the accused who were convicted. Thereafter, the learned trial Judge had passed an order summoning the present appellant, Devendra Kumar Pal for trial by invoking powers under Section 319 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”)

8. We have heard Mr. Puneet Singh Bindra, learned counsel appearing for the appellant and Mr. Vishnu Shankar Jain, learned counsel appearing for the respondent-State.

9. Shri Bindra, learned counsel submits that in the case of Sukhpal Singh Khaira vs. State of Punjab, (2023) 1 SCC 289 : 2022 INSC 1252, the matter was referred to the Constitution Bench for deciding the question as to “whether the Trial Court had power under Section 319 of Cr.P.C. for summoning an additional accused when the trial with respect to other co-accused has ended and the judgment of conviction and sentence was rendered before summoning the additional accused”. Relying on the same, he submits that, since in the present case also, first the order of conviction and sentence was recorded and only thereafter an order under Section 319 of Cr.P.C. was passed, the same would not be sustainable in law.

10. Shri Jain, learned counsel, on the contrary, submits that the Constitution Bench has held that if the judgment of the conviction and sentence and the order of summoning under Section 319 of Cr.P.C. are passed on the same date, the Court may have to examine the facts and circumstances of the case. He submits that in the present case, the order of sentence and the order under Section 319 of Cr.P.C. are passed by the learned Trial Judge in the same breath and, therefore, no error could be found with the same.

11. The issue is no more res integra.

12. It will be relevant to refer to paragraph 33 of the judgment passed by the Constitution Bench of this Court in the case of Sukhpal Singh Khaira (supra), which reads thus:

“33. For all the reasons stated above, we answer the questions referred as hereunder:-

“I. Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?

The power under Section 319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of c