The trial court's power under Section 319 Cr.P.C. must be exercised before the pronouncement of conviction; any post-conviction summoning order is illegal.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

I.A. No.1192 of 2025

1. Heard the parties.

2. Learned counsel for the petitioner submits that this interlocutory application has been filed with a prayer to amend the writ petition by substituting the words ‘Article 226” as appearing in page no.1 of the writ petition under the heading ‘In the matter of’ with the words “Article 226 and Article 227” in the cause title.

3. The prayer is allowed.

4. Registry is directed to incorporate the word “and Article 227” after the word “Article 226” in the cause title of the writ petition with red ink.

5. This interlocutory application is disposed of accordingly.

W.P. (Cr.) No. 74 of 2025

1. Heard the parties.

2. This Writ Petition has been filed invoking the jurisdiction of this Court under Article 226 and Article 227 of the Constitution of India with a prayer for quashing the order dated 18.04.2024 passed by the learned Additional Sessions Judge-VI, Hazaribagh in S.T. Case No. 02 of 2020 arising out of Muffasil P.S. Case No. 141 of 2019, corresponding to G.R. Case No. 866 of 2019 involving the offences punishable under Section 302/34 of the Indian Penal Code, whereby and where under, the learned court below has summoned the petitioner invoking its power under Section 319 of Cr.P.C ., after disposal of the said S.T. Case No. 02 of 2020 in which the accused persons of that case have been convicted on 10.08.2023 and sentenced on 21.08.2023.

3. It is submitted by the learned counsel for the petitioner by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Sukhpal Singh Khaira vs. The State of Punjab reported in (2023) 1 SCC 289 : 2022 INSC 1252 that in paragraph no. 33 of that judgment the constitution Bench of the Hon’ble Supreme Court of India has held as under:-

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

(I) Whether the trial court has the power under Section 319CrPC 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 319CrPC 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 conviction, the same will not be sustainable. (Emphasis supplied)

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4. It is next submitted by the learned counsel for the petitioner that in the order dated 18.04.2024 in Sessions Trial Case No. 02 of 2020, the certified copy of which has been annexed herewith, the learned Additional Session Judge-VI, Hazaribagh has also referred the judgment of Sukhpal Singh Khaira vs. The State of Punjab (supra) but has failed to take note of the answer to the question number I, in paragraph no.33 of the said judgment, which says that power under Section 319 of Cr.P.C. is to be invoked and exercised before the pronouncement of the judgment of conviction and the order of the sentence, where there is a judgment of conviction of the accused. It is further submitted by the learned counsel for the petitioner that the S.T. Case No. 02 of 2020 is a case where only two of the accused persons namely Shivnandan Kumar and Kanchan Devi have faced the trial. It is then submitted by the learned counsel for the petitioner that there is no absconding accused persons of the case nor any trial of any co-accused is going on. Drawing attention of this Court to Annexure-3 which is the judgment of conviction and order of sentence dated 10.08.2023