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2022 (12) TMI 497
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.... 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 : Mr. Ashish Dixit,Adv. Mr. Ravi Sharma, AOR 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 exercis....
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....nd 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 said to....
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....), wherein in Para 47 it was held that power has to be exercised before pronouncement of judgment. It can only be exercised during the pendency of the trial, which is a stage anterior to the date of pronouncement of judgment. In fact this is also consistent with Section 353(1) of CrPC, which states that after perusal of the evidence, the judgment is to be pronounced after termination of trial, and therefore, Section 319 of CrPC mandates that the power can be exercised only during trial and it follows that once trial is concluded and judgment is pronounced, the Court cannot exercise power under Section 319 of CrPC at that stage. Contending that it can be simultaneous is also equally violative of Section 319 of CrPC and the law laid down is clear that it has to be done before judgment. In a nutshell, if an accused is to be summoned, it has to be done when the trial is alive. The moment trial is concluded and the matter is kept for judgment, then the stage for exercising power under Section 319 of CrPC goes and the Court thereafter becomes functus officio. When the trial is pending, the Court can add an accused under Section 319 of CrPC but the moment the trial concludes and judgme....
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....sed, trial should be a fresh trial. However, if there is joint trial, fresh trial should be conducted against all the accused including the existing accused. In such an event, evidence already recorded is no evidence against the added accused in view of Section 273 of CrPC. In a case, there cannot be two sets of evidence, one against the existing accused and the other against the added accused. As a consequence, evidence already recorded is no evidence against any accused including the existing accused. Fresh trial is to be conducted. 10. The gist of the contentions put forth by Shri Vinod Ghai, learned Advocate General for the State of Punjab is as follows:- 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. 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. Giving a narrow interpretation to such a provision and putting unwarranted restrictions would circumvent the very purpose of this power and would only result in travesty of just....
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.... it will have to be held that the power can be exercised till the sentence is pronounced, which is the point at which the judgment is complete in all respects and trial gets concluded. 12. Shri S.V. Raju, learned Additional Solicitor General though argued in similar lines as put forth by the learned Advocate General and Additional Advocate General for the respective States, he, in fact, went a step further to contend that the power under Section 319 of CrPC can be invoked at any stage even after the sentence is pronounced since the involvement of an accused may come to light at a later stage and in that circumstance if the recommendation of the Law Commission to bring in the provision is kept in view, the only objective is that no accused should go scot-free and therefore steps can be taken at any stage to bring the accused to book. Shri Ashish Dixit, the learned counsel for the intervenor has complemented the arguments on behalf of States by putting forth similar contentions. 13. In the background of the rival contentions, in order to determine the question referred to us, it would be appropriate for us to at the outset, take note of the provision as contained in Section 319....
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....concerned in that very offence or in a connected offence. It is only proper that the Magistrate should have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in section 351 for summoning such a person if he is not present in Court. Such a provision would make section 351 fairly comprehensive, and we think it proper to expressly provide for that situation. 24.81. Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in section 190, and are, apparently, exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under section 190(1)(c), or only in the manner in which cognizance was first taken of the offence against the other accused. In concrete terms, if the original case was instituted on a police report, i.e. under section ....
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....erstood in the context that Section 319 CrPC empowers only the court to proceed against such person. The word "court" in our hierarchy of criminal courts has been defined under Section 6 CrPC, which includes the Courts of Session, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Session is defined in Section 9 CrPC and the Courts of the Judicial Magistrates have been defined under Section 11 thereof. The Courts of the Metropolitan Magistrates have been defined under Section 16 CrPC. The courts which can try offences committed under the Penal Code, 1860 or any offence under any other law, have been specified under Section 26 CrPC read with the First Schedule. The Explanatory Note (2) under the heading of "Classification of offences" under the First Schedule specifies the expression "Magistrate of First Class" and "any Magistrate" to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates. 40. Even the word "course" occurring in Section 319 CrPC, clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and ....
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.... subtracted to face trial before the Court of Session. 57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge-sheet or any other person who might be an accomplice. (emphasis supplied) 17. In view of the reference contained in the order passed by the Bench consisting of two Hon'ble Judges seeking clarity in the matter due to the view taken by another Bench of two Hon'ble Judges in Shashikant Singh (supra) where, purportedly the summoned accused was proceeded against after the judgment was passed against the accused who were originally charged, it is necessary to take note of the situation that had arisen therein and the conclusion reached in that case. It is noted that in a case under Section 302/34 of IPC wherein Shivakant Singh, the brother of Shashikant Singh (supra....
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....ly their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court." (emphasis supplied) 19. Thus, to put the matter in perspective, a perusal of the recommendation of the Law Commission would indicate the intention that an accused who is not charge sheeted but if is found to be involved should not go scot-free. Hence, Section 319 of CrPC was incorporated which provides for the Court to exercise the power to ensure ....
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.... conclusion since until such time the accused is being tried by the Court. 21. In that context, the rival contentions are to be analysed to arrive at the conclusion as to which is the stage at which it can be said that the trial has concluded. Is it at the stage when the judgment is pronounced and the conviction is ordered or is it when the sentence is imposed and the trial is complete in all respects? In order to arrive at a conclusion on this aspect the provision in the code relating to judgment is required to be noted. In Chapter XVIII regulating the trial before a Court of Session the procedure to be adopted and the conclusion of trial is indicated. What is relevant for our purpose is Section 232 and 235 of CrPC which read as hereunder:- "232. Acquittal.- If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal." "235. Judgment of acquittal or conviction.-(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in th....
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....may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. (7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. (8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465." "354. Language and contents of judgment.-(1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353,- (a) shall be written in the language of the Court; (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted, and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of w....
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....fresh. After such order it will be open to pronounce the judgment of acquittal of the accused who was tried earlier. 23. However, if the learned Judge arrives at the conclusion that the accused is to be convicted, the conviction shall be ordered through the judgment as contemplated under Section 235 of CrPC. Sub-section (2) thereto provides that if the learned Judge does not proceed to give the benefit to the accused of being released on probation under Section 360 of CrPC, the learned Judge shall hear the accused on the question of sentence and then impose a sentence on him according to law. Therefore it is seen that Section 235 of CrPC, is divided into two parts, firstly to record the conviction and if the conviction is recorded the sentence is to be imposed only after providing an opportunity of being heard. While hearing on sentence if it is found that the accused was previously convicted and if the accused does not admit the same, the learned Judge is required to record a finding on that aspect as contemplated under Section 236 of CrPC. Further, Section 353 of CrPC provides for the manner in which the judgment is required to be pronounced and Section 354 of CrPC refers to t....
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....n order of acquittal. If the Judge does not record an acquittal under Section 232, the accused would have to be called upon to enter on his defence as required by Section 233. After the evidence-in-defence is completed and the arguments heard as required by Section 234, Section 235 requires the Judge to give a judgment in the case. If the accused is convicted, sub-section (2) of Section 235 requires that the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence and then pass sentence on him according to law. It will thus be seen that under the Code after the conviction is recorded, Section 235(2) inter alia provides that the Judge shall hear the accused on the question of sentence and then pass sentence on him according to law. The trial, therefore, comes to an end only after the sentence is awarded to the convicted person. 13. Chapter XXVII deals with judgment. Section 354 sets out the contents of judgment. It says that every judgment referred to in Section 353 shall, inter alia, specify the offence (if any) of which and the section of the Penal Code, 1860 or other law under which, the accused is con....
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....e convicted accused with the imposition of sentence. When considered in the context of Section 319 of CrPC, there would be no dichotomy as argued, since what becomes relevant here is only the decision to summon a new accused based on the evidence available on record which would not prejudice the existing accused since in any event they are convicted. 28. In that view of the matter, 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. While arriving at such conclusion what is also to be kept in view is the requirement of sub-section (4) to Section 319 of CrPC. From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. In a case where the learned Sessions Judge exercises the power under Secti....
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.... 319 of CrPC. Since a power is available to the Court to decide as to whether a joint trial is required to be held or not, this Court was justified in holding the phrase, "could be tried together with the accused" as contained in Section 319(1) of CrPC, to be directory as held in Shashikant Singh (supra) which in our opinion is the correct view. 30. One other aspect which is necessary to be clarified is that if the trial against the absconding accused is split up (bifurcated) and is pending, that by itself will not provide validity to an application filed under Section 319 of CrPC or the order of Court to summon an additional accused in the earlier main trial if such summoning order is made in the earlier concluded trial against the other accused. This is so, since such power is to be exercised by the Court based on the evidence recorded in that case pointing to the involvement of the accused who is sought to be summoned. If in the split up (bifurcated) case, on securing the presence of the absconding accused the trial is commenced and if in the evidence recorded therein it points to the involvement of any other person as contemplated in Section 319 of CrPC, such power to summon....
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.... 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 conviction, the same will not be sustainable. II. Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial? The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his p....