Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 1214

SUPREME COURT OF INDIA
S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, B.V. Nagarathna, JJ.
Sukhpal Singh Khaira – Appellant
Versus
The State of Punjab – Respondent
Criminal Appeal No.885 of 2019 with SLP (CRL.) No. 6960 of 2021, CRL. Appeal No.886 of 2019 & SLP (CRL.) No. 5933 of 2019
Decided On : 05-12-2022

Advocates appeared:
For the Appellant(s) : Mr. P.S. Patwalia, Sr. Adv. in Crl.A.885/2019 Mr. Sudhir Walia,Adv. Ms. Niharika Ahluwalia, AOR Mr. Arpit Sharma, Adv. Ms. Harshika Verma, Adv. Mr. Gauravjit Singh Patwalia, Adv. Mr. Ajit Singh Johar, Adv. Mr. Harshit Sethi,Adv. Mr. Mehtab Singh Khaira,Adv.
In Crl.A.886/2019 Mr. Harshit Sethi,Adv. Mr. Amit K. Nain, AOR
In SLP 6960/2021 Mr. Puneet Singh Bindra, AOR Mr. Simren Jeet,Adv.
In SLP 5933/2019 Mr. Chinmoy Khaladkar, Adv. Mr. Abhinav Agnihotri, Adv. Mr. Salonee Paranjape, Adv. Mr. Abhishek Sharma, Adv. Mr. B. K. Pal, AOR
For the Respondent(s):Mr. Vinod Ghai, Sr. Adv./Advocate General Mr. Aman Pal, Addl.A.G Mr. Gaurav Dhama, Addl.A.G. Ms. Kanika Ahuja, Adv. Ms. Kirti Ahuja, Adv. Ms. Priyanka C., Adv. Mr. Mayank Dahiya, Adv. Ms. Mahima Dogra, adv. Ms. Bhupinder, Adv. Mr. Ajay Pal, AOR Ms. Ranu Purohit, Adv. Mr. S.V.Raju,ASG Ms. Sairica Raju,Adv. Mr. Annam Venkatesh,Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Zoheb Hussain,Adv. Mr. Kanu Agarwal,Adv. Mr. Anirudh Bhat,Adv. Mr. Adit Khorana,Adv. Mr. Padmesh Mishra,Adv. Mr. Udai Khanna,Adv. Mr. Ankit Bhatia,Adv. Ms. Madhumitha,Adv. Mr. Anshuman Singh,Adv. Mr. Harsh Paul Singh,Adv. Mr. Hitharth Raja,Adv. Mr. Garvil Singh,Adv. Ms. Nandini,Adv. Mr. Ardhendumouli Kumar Prasad,AAG Mr. Vishnu Shankar Jain, AOR Ms. Taruna Ardhendumauli Prasad,Adv. Mr. Ashish Madaan,Adv. Mr. Vinay Rajput,Adv. Mr. Saurabh Mishra,AAG Mr. Abhinav Shrivastava,Adv. Mr. Sunny Choudhary, AOR
For the Intervenor(s) : Mr. Ashish Dixit,Adv. Mr. Ravi Sharma, AOR

IMPORTANT POINTS
(1) Summoning of additional accused to face trial – Power of court to summon an accused based on evidence as contemplated under Section 319 of Cr.P.C. will have to be invoked and exercised before pronouncement of judgment of acquittal.
(2) Summoning of additional accused to face trial – If decision is for joint trial, fresh trial shall be commenced only after securing presence of summoned accused.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 319 read with Sections 232 and 235 – Summoning of additional accused to face trial – If Sessions Court while analysing evidence recorded finds that there is no evidence to hold accused for having committed offence, judge is required to record an order of acquittal – In that case, there is nothing further to be done by Judge and trial concludes at that stage – Power of court to summon an accused based on evidence as contemplated under Section 319 of Cr.P.C. will have to be invoked and exercised before pronouncement of judgment of acquittal – However, if Judge arrives at conclusion that accused is to be convicted, conviction shall be ordered through judgment as contemplated under Section 235 of Cr.P.C. – Even after pronouncement of judgment of conviction, trial is not complete since Sessions Judge is required to apply her/his mind to evidence which is available on record to determine gravity of charge for which accused is found guilty; role of particular accused when there is more than one accused involved in an offence and in that light, to award appropriate sentence – It cannot be said that trial is complete on pronouncement of judgment of conviction alone, though it may be so in case of acquittal as contemplated under Section 232 of Cr.P.C., since in that case there is nothing further to be done by Judge except to record order of acquittal which results in conclusion of trial. (Paras 22, 23 and 24)
(B) Criminal Procedure Code, 1973 – Section 319 read with Sections 232 and 235 – Summoning of additional accused to face trial – Power under Section 319 of Cr.P.C. is to be invoked and exercised before pronouncement of order of sentence where there is a judgment of conviction of accused – In case of acquittal, power should be exercised before order of acquittal is pronounced – Summoning order has to precede conclusion of trial by imposition of sentence in case of conviction – If order is passed on same day, it will have to be examined on facts and circumstances of each case and if such summoning order is passed either after order of acquittal or imposing sentence in case of conviction, same will not be sustainable – Trial court has power to summon additional accused when trial is proceeded in respect of absconding accused after securing his presence, subject to evidence recorded in split-up (bifurcated) trial pointing to involvement of accused sought to be summoned – But evidence recorded in main concluded trial cannot be basis of summoning order if such power has not been exercised in main trial till its conclusion. (Para 33)
(C) Criminal Procedure Code, 1973 – Section 319 read with Sections 232 and 235 – Summoning of additional accused to face trial – If competent court finds evidence or if application under Section 319 of Cr.P.C. is filed regarding involvement of any other person in committing offence based on evidence recorded at any stage in trial before passing of order on acquittal or sentence, it shall pause trial at that stage – Court shall thereupon first decide need or otherwise to summon additional accused and pass orders thereon – If decision is for joint trial, fresh trial shall be commenced only after securing presence of summoned accused. (Para 33)
Facts of the case:
Vide impugned order High Court has dismissed Criminal Revision Petitions and upheld the order dated 31.10.2017 passed by the Trial Court summoning appellant as an additional accused by exercising the power under Section 319 of Criminal Procedure Code, 1973.
Findings of Court:
While considering application under Section 319 of Cr.P.C., if decision by Sessions Judge is to summon additional accused before passing judgment of conviction or passing an order on sentence, conclusion of trial by pronouncing judgment is required to be withheld and application under Section 319 of Cr.P.C. is required to be disposed of and only then conclusion of judgment, either to convict other accused who were before Court and to sentence them can be proceeded with. This is so since power under Section 319 of Cr.P.C. can be exercised only before conclusion of trial by passing judgment of conviction and sentence.
Result : Reference answered.

Judgement Key Points

Yes, judgment can be pronounced against the present accused even if there are two accused who merit conviction, one of whom is mafrur (absconding).

The trial against the present accused can proceed to conclusion, including pronouncement of judgment of conviction and sentence, while the proceedings against the mafrur accused are split up (bifurcated) and kept pending until their presence is secured. This is expressly permitted to avoid undue delay under the proviso to Section 353(6) CrPC, which allows the court to pronounce judgment notwithstanding the absence of one or more accused when there are multiple accused. The main trial against the available accused concludes upon imposition of sentence, independent of the bifurcated proceedings against the absconding accused.

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JUDGMENT :

A.S. Bopanna, J.

1. In the above appeal, the order dated 17.11.2017 passed by the High Court of Punjab and Haryana in Criminal Revision No.4070 of 2017 and Criminal Revision No.4113 of 2017 are assailed. Through the said order, the High Court has dismissed the Criminal Revision Petitions and upheld the order dated 31.10.2017 passed by the Trial Court summoning the appellant as an additional accused by exercising the power under Section 319 of the Criminal Procedure Code, 1973 (‘CrPC’ for short). For the purpose of narration of facts the case in Criminal Appeal No.885 of 2019 is noted.

2. 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 (‘NDPS’ for short), Section 25-A of Arms Act and Section 66 of the Information Technology Act, 2000 (‘IT Act’ for short). In the charge sheet dated 06.09.2015, 10 accused were summoned and put to trial in Sessions Case No. 289 of 2015. Though the second charge sheet was filed by the police, the same did not name the appellant herein as an accused.

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 application dated 31.07.2017 under Section 311 of CrPC for recalling PW-4 and PW-5, which was allowed. In the further examination of the said recalled witnesses, they named the appellant herein. The prosecution thereafter filed an application on 21.09.2017 invoking Section 319 of CrPC in the said Sessions Case No.289 of 2015 for summoning additional 5 accused, including the appellant herein. The summoning of additional accused was sought based on the evidence tendered by PW-4, PW-5 and PW-13.

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

5. The instant petition was heard before a bench consisting of two Hon’ble Judges of this Court on 10.05.2019 wherein, in the course of assailing the summoning order, the decisions of this Court in the case of Shashikant Singh vs. Tarkeshwar Singh (2002) 5 SCC 738 and the decision in the case of Hardeep Singh vs. State of Punjab (2014) 3 SCC 92 rendered in the context of the power exercisable under Section 319 of CrPC were noted. In that context, the Bench of two Hon’ble Judges of this Court was of the opinion that the question with regard to the actual stage at which the trial is sa