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2019 (5) TMI 1927
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.... Procedure, 1973 [hereinafter 'CrPC' for brevity]. 3. The factual narration of this case is that on 05.03.2015, a First Information Report was lodged in the Police Station Sadar, Jalalabad against eleven Accused for the offence committed Under Sections 21, 24, 25, 27, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substance Act, 1985, Section 25-A of the Arms Act and Section 66 of the Information Technology Act, 2000. Initially, under the 1st charge sheet dated 06.09.2015, ten Accused were summoned and put to trial in Sessions Case No. 289 of 2015. Even though a second charge sheet was filed by the police, the same did not name the Accused-Appellants herein. 4. Subsequently, on 31.07.2017, the prosecution filed an application Under Section 311 of Code of Criminal Procedure for recalling PW-4 and PW-5, which came to be allowed. On such recall the aforesaid witnesses named the Accused-Appellants herein. Thereafter, the prosecution filed an application Under Section 319 of Code of Criminal Procedure in Sessions Case No. 289 of 2015 for summoning additional five Accused (including the present Appellants herein) by placing reliance on statements of PW-4, PW-5 (recalled w....
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....es that the new person has to be tried together with the Accused. This principle is based on the commonality of evidences. But in the present case, allowing such application Under Section 319 Code of Criminal Procedure, goes to the root of fair trial, as the court has already considered such evidence and has proceeded to speak on it. It is the same evidence which would be reappreciated, and the inclusion of such evidence vitiates the principles of fair trial. 9. Mr. Harin P. Raval, learned senior Counsel appearing on behalf of the Respondent State in SLP (Crl.) No. 9063 of 2017 argued that even if it is assumed that the summoning order was passed subsequent to the conviction order, the relevant consideration is that application of mind was within the prescribed time limit Under Section 319 of Code of Criminal Procedure The process of application of mind and pronouncement of summoning order are separate Under Section 319, Code of Criminal Procedure, and it is the time of application of mind which is relevant. The counsel further drew our attention to the fact that undisputedly, the application Under Section 319 Code of Criminal Procedure was filed and heard during the pendency of t....
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....ogical end. This Court in a catena of judgments has defined Section 319 Code of Criminal Procedure as an enabling provision, especially in the circumstances where the investigating agency had failed to array any person as an Accused. This provision empowers the courts for calling such persons to face the trial. The Section stipulates that a 'Court' may summon any additional Accused if it appears from the 'evidence', during the course of any inquiry or trial, that such an individual, not being an Accused, has committed any offence for which such person could be tried together with the named Accused. Sub-section 4 of Section 319 of Code of Criminal Procedure indicates that the proceeding with respect to the summoned individual, as per Clause (1) of Section 319 of Code of Criminal Procedure, may be de-novo or joint trial. 13. The Appellants have argued for a comprehensive reading of Section 319(1) Code of Criminal Procedure, wherein the aspect of application of mind by the judge as well as the pronouncement of the final order are both bound by the prescribed time limit. They have extensively relied on the Hardeep Singh Case, to point out that the trial court was funct....
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.... Case was heard by the two-Judge Bench [(2009) 16 SCC 785], this Court took note of the holdings in the Shashikant Singh Case (supra). The two-judge bench observed that: 32. In Shashikant Singh v. Tarkeshwar Singh [(2002)5 SCC 738: 2002 SCC (Cri.) 1203], during the pendency of trial of an Accused, another person was summoned by the trial court Under Section 319 of the Code. But by the time he could be brought before the court, the trial against the Accused was over. It was held by this Court that the words could be tried together with the Accused in Section 319(1) were merely directory and if the trial against the other Accused is over, such a person who was subsequently added as an Accused, could be tried after the conclusion of the trial of the main Accused. 19. Taking note of the above the two-Judge Bench in Hardeep Singh's Case referred the matter to a three-Judge Bench on the following questions- (1) When the power under Sub-section (1) of Section 319 of the Code of Criminal Procedure, 1973 of addition of the Accused can be exercised by a court? Whether application Under Section 319 of the Code is not maintainable unless the cross-examination of the witness is complet....
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....e Constitution Bench. It is this marginal area which is a sub-silentio, that needs to be referred to a larger Bench again. 22. In the Hardeep Singh Case (supra), the Constitution Bench set out to answer the questions referred above. In this part we are mostly concerned with the first question. The Court, while assessing the ambit of the term 'trial', was concerned with the stage during which the power Under Section 319 of Code of Criminal Procedure could be exercised, in this regard, it was held-Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power Under Section 319(1) Code of Criminal Procedure can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 Code of Criminal Procedure, committal etc., which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. 23. It was contended that the question of law her....