Sukhpal Singh Khaira vs The State Of Punjab on 5 December, 2022

About the Author

Alexy Joy, a Law Student from Govt Law College Thrissur is a participant of LJRF munsiff magistrate examination training programme. (More details at the bottom)

Background

On 05.03.2015 an First Information Report was lodged in the Police Station Sadar Jalalabad against 11 accused for the offences 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, 1959 and Section 66 of the Information Technology Act, 2000 (‘IT Act’ for short) as a result the appellant was summoned. In the charge sheet dated 06.09.2015, 10 accused were summoned and put on trial in Sessions Case No. 289 of 2015. Though the second charge sheet was filed by the police, the same did not contain the appellant’s name as an accused.

ISSUES

Whether the trial court has the power under Section 319 of CrPC to summon an additional accused when the trial with respect to other co-accused has ended and the judgment for conviction is rendered on the same date before issuing the summons?
Whether the trial court has the power under Section 319 of the CrPC to summon 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?
What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?”

RELEVANT PROVISIONS

Section 319 in brief:

The Section deals with additional prosecution. It mandates the court to add any such person to the trial with the accused against whom strong evidence has been presented. Such a person against whom sufficient evidence has been produced and the court is satisfied as to his involvement in the case becomes an accused on the date when the order has been passed by the court. The magistrate has ample powers at any stage of inquiry or trial to take cognizance and add any such person against whom prima facie evidence has been given. Even if the complaint has been dismissed under Section 203 CrPC after the inquiry is completed, it does not bar the court from initiating the proceedings under section 319.

S.319 (1) lays down essentials to attract this section –

There must be a trial or inquiry of an offence. Section 319(1) makes it mandatory for the courts to exercise their power only during the trial or inquiry of an offence.
In case the person is attending the proceedings, then the court may detain him for the purpose of an inquiry under Section 319(3).
The Court must be satisfied by the evidence presented that any other person other than the accused has committed such an offence.

Mentioned cases

1.Hardeep Singh v. State Of Punjab & Ors on 10 January, 2014

2.Shashikant Singh v. Tarkeshwar Singh & Anr on 24 April, 2002

JUDGEMENT

The Supreme Court held that a criminal trial is not complete on the pronouncement of the judgment of conviction of the accused, but with their sentencing. If the trial in a criminal prosecution ends in a conviction, a judgment is considered to be complete in all respects only when the sentence is imposed on the convict and if the convict is not given the benefit of Section 360 of CrPC, the five judges Constitution Bench observed in judgment which dealt with a reference on the scope of power under Section 319 CPC.

Guidelines of Section 319 Crpc:

1. If the competent court finds evidence or if the application under Section 319 of CrPC is filed regarding the involvement of any other person in committing the offence based on evidence recorded at any stage in the trial and before passing of the order of acquittal or sentence, it shall pause the trial at that stage.

2. The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.

3. If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such a summoning order shall be passed before proceeding further with the trial in the main case.

4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.

5. If the decision is for a joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.

6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.

7. If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment in passing the judgment of acquittal in the main case.

8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial.

9. If after arguments are heard and the case is reserved for judgment the occasion arises for the Court to exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing.

10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial, or otherwise shall be decided and proceeded with accordingly.

11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.

12.If in that circumstance, the decision is to hold a separate trial in the case of the summoned accused as indicated earlier: