NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 885 OF 2019
(Arising out of SLP (Crl.) No. 9063 of 2017)
SUKHPAL SINGH KHAIRA ...APPELLANT (S)
VERSUS
THE STATE OF PUNJAB …RESPONDENT (S)
with
CRIMINAL APPEAL NO. 886 OF 2019
(Arising out of SLP (Crl.) No. 9150 of 2017)
JOGA SINGH AND ANOTHER ….APPELLANT (S)
VERSUS
THE STATE OF PUNJAB …RESPONDENT (S)
O R D E R
1. Leave granted.
2. These Criminal Appeals are filed against the impugned judgment
and order of the High Court of Punjab and Haryana, dated
17.11.2017, passed in Criminal Revision No. 4070 of 2017 and
Criminal Revision No. 4113 of 2017, wherein the High Court
1
dismissed the Criminal Revision Petitions and upheld the order of
the Trial Court summoning the accusedappellants herein, under
Section 319 of the Code of Criminal 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 25A 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 accusedappellants herein.
4. Subsequently, on 31.07.2017, the prosecution filed an application
under Section 311 of CrPC for recalling PW4 and PW5, which
came to be allowed. On such recall the aforesaid witnesses named
the accusedappellants herein. Thereafter, the prosecution filed an
application under Section 319 of CrPC in Sessions Case No. 289 of
2015 for summoning additional five accused (including the present
2
appellants herein) by placing reliance on statements of PW4, PW5
(recalled witnesses) and PW13.
5. On 31.10.2017, the Sessions Court first pronounced the judgment
in Sessions Case No. 289 of 2015, convicting the nine other
accused put on trial. On the same day, by a separate order the
Sessions Court, while allowing the application of the prosecution,
summoned accusedappellants herein under Section 319 of CrPC.
Aggrieved by the summoning by the Sessions Court, the accusedappellants, filed separate Criminal Revision Petitions, in the High
Court of Punjab and Haryana, being Criminal Revision Nos. 4070
and 4113 of 2017. The High Court by the common impugned
judgment, dismissed the Criminal Revision, and upheld the
summoning order passed by the Sessions Court.
6. Aggrieved by the impugned judgment and order of the High Court,
accused appellants have approached this Court through these
Special Leave Petitions.
7. Heard learned counsels appearing for both parties. Mr. P. S.
Patwalia, learned senior counsel appearing on behalf of the
accusedappellant in SLP (Crl) No. 9063 of 2017 contended by
relying upon the Hardeep Singh v. State of Punjab, (2014) 3
3
SCC 92 to state that, the power under Section 319 (1) CrPC can be
exercised at any time after the filing of the chargesheet and before
the pronouncement of the judgment. In the present case, the
aforesaid summoning order passed after the order of conviction is
in clear breach of the principles laid down in the Hardeep Singh
Case (supra). The counsel further contended that when the
Hardeep Singh Case (supra), has clearly prescribed the stage at
which an application under Section 319 Cr.P.C, can be
entertained, the aforesaid violation is not merely procedural but is
rather a substantial one. Lastly, the counsel contended that the
moment the trial is concluded and the matter is reserved for
judgment, then the stage for exercising power under Section 319
CrPC, ends and the court becomes functus officio.
8. Mr. V. Giri, learned senior counsel appearing on behalf of the
accusedappellant (in SLP (Crl) No.9150/2017), while generally
supporting Mr. Patwalia has submitted that the order summoning
the appellants herein was passed simultaneous with the order of
conviction of other accused. The counsel submitted that Section
319 (4) Cr.P.C, has to be read along with Section 319 (1) which
provides that the new person has to be tried together with the
4
accused. This principle is based on the “commonality of evidences”.
But in the present case, allowing such application under Section
319 Cr.P.C, 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 Cr.P.C. The process of application of mind and
pronouncement of summoning order are separate under Section
319, Cr.P.C, 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 CrPC was filed
and heard during the pendency of the trial, and the order thereon
was reserved. In this context, the counsel submitted that, the
application under Section 319, Cr.P.C was separated from the trial
by the direction of the High Court so as to complete the trial
expeditiously in a time bound manner. Now the aforesaid fact
5
cannot be used to prejudice the case of the State. Lastly, the
counsel maintained that the summoning order under Section 319,
CrPC was passed on the same day, simultaneously, along with the
final judgment convicting the other accused. Therefore, there is no
procedural irregularity committed. Moreover, he emphasized that
the trial in this case could not be said to be completed unless a
decision was given in respect of all the accused fully. This
submission was based on the fact that the trial had been bifurcated
and was pending in respect of the other absconding accused, which
would sustain the exercise of power under Section 319.
10. Mr. Sidharth Luthra, learned senior counsel appearing on behalf of
the respondent State in SLP (Crl.) No. 9150 of 2017, while
supporting the arguments made by Senior Counsel Mr. Harin P.
Raval, further submitted that it is settled law that procedural laws
must be liberally construed to render justice. Moreover, assuming
but not admitting that an irregularity in the exercise of power
under Section 319 Cr.P.C was committed by the Trial Court, the
same would not vitiate the proceedings. The counsel concluded his
arguments by stating that the finding of the trial court cannot be
reversed under Section 465 CrPC as the appellant has not made
out a case of failure of justice.
6
11. In light of the facts and arguments presented before us, the
following questions arise for our consideration:
I. Whether the order of the Sessions Judge summoning
the appellants herein as additional accused was in
breach of Section 319, CrPC?
II. If the answer to the above question is in the
affirmative, could the order of the courts below still be
sustained under the Code?
12. At the outset, it is pertinent to note that Section 319 Cr.P.C
reflects two important objectives; firstly, the Courts duty to bring
home the guilt of all the accused and render complete justice and
secondly, the duty of the State to take every criminal prosecution to
its logical end. This Court in a catena of judgments has defined
Section 319 CrPC 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.
Subsection 4 of Section 319 of CrPC indicates that the proceeding
7
with respect to the summoned individual, as per Clause (1) of
Section 319 of CrPC, may be denovo or joint trial.
13. The appellants have argued for a comprehensive reading of Section
319 (1) CrPC, 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
functus officio and did not have the jurisdiction to deliver the order
of summoning.
14. The High Court while repelling the contention of the appellants that
the trial court was functus officio when the summoning order was
passed, placed reliance on the factual matrix explained later, in
Shashikant Singh v. Tarkeshwar Singh, (2002)5 SCC 738, and
noted that the decision in Shashikant Singh Case (supra) was on
the same point rather than Hardeep Singh Case (Supra).
15. In Shashikant Singh Case (supra), this Court was concerned with
a unique situation, the question which was before the Court therein
was8
“Can a person summoned pursuant to an order
passed by a court in exercise of power conferred by
Section 319 of the Code of Criminal Procedure, 1973
(the Code) be tried for the offence for which he is
summoned after the conclusion of the trial
wherein such an order of summoning was passed,
is the question that falls for determination in this
appeal?”
(emphasis supplied)
16. While answering the same, the 2 two Judge Bench in Shashikant
Singh Case (supra) held as follows:
9… 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.
…
11. The mandate of the law of fresh trial is
mandatory whereas the mandate that newly added
accused could be tried together with the accused
is directory.
(emphasis supplied)
17. The High Court has placed extensive reliance on the factual matrix
of Shashikant Singh Case (supra), to draw parallels between the
similarities in both cases. The summoning order in former case was
passed before the trial had ended, whereas in this case it is passed
9
after the trial has ended viz. after passing of the judgment in
Sessions Case No. 289 of 2015. Therefore, this Court while dealing
with the Shashikant Singh Case (supra), interpreted the law
based on the facts available therein, whereas the present case has a
different context altogether.
18. In this context it is important to note that, when Hardeep Singh
Case was heard by the twoJudge Bench [(2009) 16 SCC 785], this
Court took note of the holdings in the Shashikant Singh Case
(supra). The twojudge 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.
(emphasis supplied)
19. Taking note of the above the twoJudge Bench in Hardeep Singh’s
Case referred the matter to a threeJudge Bench on the following
questions10
“(1) When the power under subsection (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
crossexamination of the witness is complete?
(2) What is the test and what are the guidelines of
exercising power under subsection (1) of Section
319 of the Code? Whether such power can be
exercised only if the court is satisfied that the
accused summoned in all likelihood would be
convicted?”
(emphasis supplied)
20. Subsequently, this Court in the aforesaid matter of Hardeep
Singh’s Case (supra) laid down the scope and extent of the powers
of the Court in the criminal justice system to array any person as
an accused during the course of trial as per Section 319 Cr.P.C.
The questions which were reformulated by the larger Bench were
(i) What is the stage at which power Under Section
319 of the Code of Criminal Procedure, 1973 can
be exercised?
(ii) Whether the word "evidence" used in Section
319(1) of the Code of Criminal Procedure, 1973 could
only mean evidence tested by crossexamination or
the court can exercise the power under the said
provision even on the basis of the statement made in
the examination inchief of the witness concerned?
(iii) Whether the word "evidence" used in Section
319(1) of the Code of Criminal Procedure, 1973 has
been used in a comprehensive sense and includes the
evidence collected during investigation or the word
11
"evidence" is limited to the evidence recorded during
trial?
(iv) What is the nature of the satisfaction required to
invoke the power Under Section 319 of the Code of
Criminal Procedure to arraign an accused? Whether
the power Under Section 319(1) of the Code of
Criminal Procedure, 1973 can be exercised only if the
court is satisfied that the accused summoned will in
all likelihood be convicted?
(v) Does the power Under Section 319 of the Code of
Criminal Procedure, 1973 extend to persons not
named in the FIR or named in the FIR but not
charged or who have been discharged?
(emphasis supplied)
21. We note that the difference of formulation in the reference
questions and the final order of the Constitution Bench with
respect to the Question no. 1, makes a difference with regard to the
present case. It is precisely the gap, between the restricted reformulation of the ‘Question no. 1’ by the Constitution Bench and
the ‘Question no. 1’ in the reference order of the Hardeep Singh
Case, which these unique facts fit into. The earlier ‘Question no.1’
in the reference Order was broader in comparison to the
‘Reformulated Question no. 1’ by the Constitution Bench. It is this
marginal area which is a subsilentio, that needs to be referred to a
larger Bench again.
12
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 CrPC could be exercised, in this
regard, it was held
“Since after the filing of the chargesheet, 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 chargesheet 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
pretrial 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.”
(emphasis supplied)
23. It was contended that the question of law herein is unique to the
present case, and the earlier judgment of Hardeep Singh (supra)
did not have an opportunity to cast any light about the validity of
summoning orders pronounced after the passing of the judgment.
They further argued that, the Hardeep Singh Case (supra), treats
13
Section 319 in an isolated manner without taking into
consideration the spirit and the mandate of the Code.
24. To strengthen the aforesaid submission, the State further
contended that Section 465, Cr.P.C was introduced to provide for a
balanced mechanism under the Criminal Justice System and to
stop the Courts from getting into hyper technicalities and
committing serious violations. This Court in Hardeep Singh Case
(supra) has not considered the above principles or the issues which
could possibly arise before the trial court while dealing with
applications under Section 319, Cr.P.C. The State therefore
submitted that, Section 319, Cr.P.C. should not be treated as an
isolated island and should instead be given a pragmatic
interpretation by keeping in view the entire mandate of the Code to
render complete justice.
25. Furthermore, it needs to be determined whether the trial is said to
be fully concluded even if the bifurcated trial in respect of the
absconded accused is still pending consideration.
26. The appellant herein contended that, the observations made in the
Hardeep Singh Case (supra), cannot be diluted by a Bench of this
strength. We have considered the averments made by the counsel
14
on behalf of both parties, we feel that it would be appropriate to
place the same for consideration before a larger Bench. However,
we are of the considered opinion that, power under Section 319,
Cr.P.C being extraordinary in nature, the trial courts should be
cautious while summoning accused to avoid complexities and to
ensure fair trial. We must remind ourselves that, timely disposal of
the matters furthers the interest of justice.
27. After pursuing the relevant facts and circumstances, the following
substantial questions of law arise for further considerationI.
Whether the trial court has the power under Section
319 of CrPC for summoning additional accused when
the trial with respect to other coaccused has ended
and the judgment of conviction rendered on the same
date before pronouncing the summoning order?
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?
III. What are the guidelines that the competent court must
follow while exercising power under Section 319
Cr.P.C?
15
28. In light of the same, we direct the Registry to place these matters
before Hon’ble the Chief Justice of India for constitution of a Bench
of appropriate strength for considering the aforesaid questions.
...………………………….……. J.
[N.V. Ramana]
...………………………….……. J.
[Mohan M. Shantanagoudar]
New Delhi;
May 10, 2019
16
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 885 OF 2019
(Arising out of SLP (Crl.) No. 9063 of 2017)
SUKHPAL SINGH KHAIRA ...APPELLANT (S)
VERSUS
THE STATE OF PUNJAB …RESPONDENT (S)
with
CRIMINAL APPEAL NO. 886 OF 2019
(Arising out of SLP (Crl.) No. 9150 of 2017)
JOGA SINGH AND ANOTHER ….APPELLANT (S)
VERSUS
THE STATE OF PUNJAB …RESPONDENT (S)
O R D E R
1. Leave granted.
2. These Criminal Appeals are filed against the impugned judgment
and order of the High Court of Punjab and Haryana, dated
17.11.2017, passed in Criminal Revision No. 4070 of 2017 and
Criminal Revision No. 4113 of 2017, wherein the High Court
1
dismissed the Criminal Revision Petitions and upheld the order of
the Trial Court summoning the accusedappellants herein, under
Section 319 of the Code of Criminal 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 25A 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 accusedappellants herein.
4. Subsequently, on 31.07.2017, the prosecution filed an application
under Section 311 of CrPC for recalling PW4 and PW5, which
came to be allowed. On such recall the aforesaid witnesses named
the accusedappellants herein. Thereafter, the prosecution filed an
application under Section 319 of CrPC in Sessions Case No. 289 of
2015 for summoning additional five accused (including the present
2
appellants herein) by placing reliance on statements of PW4, PW5
(recalled witnesses) and PW13.
5. On 31.10.2017, the Sessions Court first pronounced the judgment
in Sessions Case No. 289 of 2015, convicting the nine other
accused put on trial. On the same day, by a separate order the
Sessions Court, while allowing the application of the prosecution,
summoned accusedappellants herein under Section 319 of CrPC.
Aggrieved by the summoning by the Sessions Court, the accusedappellants, filed separate Criminal Revision Petitions, in the High
Court of Punjab and Haryana, being Criminal Revision Nos. 4070
and 4113 of 2017. The High Court by the common impugned
judgment, dismissed the Criminal Revision, and upheld the
summoning order passed by the Sessions Court.
6. Aggrieved by the impugned judgment and order of the High Court,
accused appellants have approached this Court through these
Special Leave Petitions.
7. Heard learned counsels appearing for both parties. Mr. P. S.
Patwalia, learned senior counsel appearing on behalf of the
accusedappellant in SLP (Crl) No. 9063 of 2017 contended by
relying upon the Hardeep Singh v. State of Punjab, (2014) 3
3
SCC 92 to state that, the power under Section 319 (1) CrPC can be
exercised at any time after the filing of the chargesheet and before
the pronouncement of the judgment. In the present case, the
aforesaid summoning order passed after the order of conviction is
in clear breach of the principles laid down in the Hardeep Singh
Case (supra). The counsel further contended that when the
Hardeep Singh Case (supra), has clearly prescribed the stage at
which an application under Section 319 Cr.P.C, can be
entertained, the aforesaid violation is not merely procedural but is
rather a substantial one. Lastly, the counsel contended that the
moment the trial is concluded and the matter is reserved for
judgment, then the stage for exercising power under Section 319
CrPC, ends and the court becomes functus officio.
8. Mr. V. Giri, learned senior counsel appearing on behalf of the
accusedappellant (in SLP (Crl) No.9150/2017), while generally
supporting Mr. Patwalia has submitted that the order summoning
the appellants herein was passed simultaneous with the order of
conviction of other accused. The counsel submitted that Section
319 (4) Cr.P.C, has to be read along with Section 319 (1) which
provides that the new person has to be tried together with the
4
accused. This principle is based on the “commonality of evidences”.
But in the present case, allowing such application under Section
319 Cr.P.C, 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 Cr.P.C. The process of application of mind and
pronouncement of summoning order are separate under Section
319, Cr.P.C, 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 CrPC was filed
and heard during the pendency of the trial, and the order thereon
was reserved. In this context, the counsel submitted that, the
application under Section 319, Cr.P.C was separated from the trial
by the direction of the High Court so as to complete the trial
expeditiously in a time bound manner. Now the aforesaid fact
5
cannot be used to prejudice the case of the State. Lastly, the
counsel maintained that the summoning order under Section 319,
CrPC was passed on the same day, simultaneously, along with the
final judgment convicting the other accused. Therefore, there is no
procedural irregularity committed. Moreover, he emphasized that
the trial in this case could not be said to be completed unless a
decision was given in respect of all the accused fully. This
submission was based on the fact that the trial had been bifurcated
and was pending in respect of the other absconding accused, which
would sustain the exercise of power under Section 319.
10. Mr. Sidharth Luthra, learned senior counsel appearing on behalf of
the respondent State in SLP (Crl.) No. 9150 of 2017, while
supporting the arguments made by Senior Counsel Mr. Harin P.
Raval, further submitted that it is settled law that procedural laws
must be liberally construed to render justice. Moreover, assuming
but not admitting that an irregularity in the exercise of power
under Section 319 Cr.P.C was committed by the Trial Court, the
same would not vitiate the proceedings. The counsel concluded his
arguments by stating that the finding of the trial court cannot be
reversed under Section 465 CrPC as the appellant has not made
out a case of failure of justice.
6
11. In light of the facts and arguments presented before us, the
following questions arise for our consideration:
I. Whether the order of the Sessions Judge summoning
the appellants herein as additional accused was in
breach of Section 319, CrPC?
II. If the answer to the above question is in the
affirmative, could the order of the courts below still be
sustained under the Code?
12. At the outset, it is pertinent to note that Section 319 Cr.P.C
reflects two important objectives; firstly, the Courts duty to bring
home the guilt of all the accused and render complete justice and
secondly, the duty of the State to take every criminal prosecution to
its logical end. This Court in a catena of judgments has defined
Section 319 CrPC 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.
Subsection 4 of Section 319 of CrPC indicates that the proceeding
7
with respect to the summoned individual, as per Clause (1) of
Section 319 of CrPC, may be denovo or joint trial.
13. The appellants have argued for a comprehensive reading of Section
319 (1) CrPC, 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
functus officio and did not have the jurisdiction to deliver the order
of summoning.
14. The High Court while repelling the contention of the appellants that
the trial court was functus officio when the summoning order was
passed, placed reliance on the factual matrix explained later, in
Shashikant Singh v. Tarkeshwar Singh, (2002)5 SCC 738, and
noted that the decision in Shashikant Singh Case (supra) was on
the same point rather than Hardeep Singh Case (Supra).
15. In Shashikant Singh Case (supra), this Court was concerned with
a unique situation, the question which was before the Court therein
was8
“Can a person summoned pursuant to an order
passed by a court in exercise of power conferred by
Section 319 of the Code of Criminal Procedure, 1973
(the Code) be tried for the offence for which he is
summoned after the conclusion of the trial
wherein such an order of summoning was passed,
is the question that falls for determination in this
appeal?”
(emphasis supplied)
16. While answering the same, the 2 two Judge Bench in Shashikant
Singh Case (supra) held as follows:
9… 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.
…
11. The mandate of the law of fresh trial is
mandatory whereas the mandate that newly added
accused could be tried together with the accused
is directory.
(emphasis supplied)
17. The High Court has placed extensive reliance on the factual matrix
of Shashikant Singh Case (supra), to draw parallels between the
similarities in both cases. The summoning order in former case was
passed before the trial had ended, whereas in this case it is passed
9
after the trial has ended viz. after passing of the judgment in
Sessions Case No. 289 of 2015. Therefore, this Court while dealing
with the Shashikant Singh Case (supra), interpreted the law
based on the facts available therein, whereas the present case has a
different context altogether.
18. In this context it is important to note that, when Hardeep Singh
Case was heard by the twoJudge Bench [(2009) 16 SCC 785], this
Court took note of the holdings in the Shashikant Singh Case
(supra). The twojudge 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.
(emphasis supplied)
19. Taking note of the above the twoJudge Bench in Hardeep Singh’s
Case referred the matter to a threeJudge Bench on the following
questions10
“(1) When the power under subsection (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
crossexamination of the witness is complete?
(2) What is the test and what are the guidelines of
exercising power under subsection (1) of Section
319 of the Code? Whether such power can be
exercised only if the court is satisfied that the
accused summoned in all likelihood would be
convicted?”
(emphasis supplied)
20. Subsequently, this Court in the aforesaid matter of Hardeep
Singh’s Case (supra) laid down the scope and extent of the powers
of the Court in the criminal justice system to array any person as
an accused during the course of trial as per Section 319 Cr.P.C.
The questions which were reformulated by the larger Bench were
(i) What is the stage at which power Under Section
319 of the Code of Criminal Procedure, 1973 can
be exercised?
(ii) Whether the word "evidence" used in Section
319(1) of the Code of Criminal Procedure, 1973 could
only mean evidence tested by crossexamination or
the court can exercise the power under the said
provision even on the basis of the statement made in
the examination inchief of the witness concerned?
(iii) Whether the word "evidence" used in Section
319(1) of the Code of Criminal Procedure, 1973 has
been used in a comprehensive sense and includes the
evidence collected during investigation or the word
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"evidence" is limited to the evidence recorded during
trial?
(iv) What is the nature of the satisfaction required to
invoke the power Under Section 319 of the Code of
Criminal Procedure to arraign an accused? Whether
the power Under Section 319(1) of the Code of
Criminal Procedure, 1973 can be exercised only if the
court is satisfied that the accused summoned will in
all likelihood be convicted?
(v) Does the power Under Section 319 of the Code of
Criminal Procedure, 1973 extend to persons not
named in the FIR or named in the FIR but not
charged or who have been discharged?
(emphasis supplied)
21. We note that the difference of formulation in the reference
questions and the final order of the Constitution Bench with
respect to the Question no. 1, makes a difference with regard to the
present case. It is precisely the gap, between the restricted reformulation of the ‘Question no. 1’ by the Constitution Bench and
the ‘Question no. 1’ in the reference order of the Hardeep Singh
Case, which these unique facts fit into. The earlier ‘Question no.1’
in the reference Order was broader in comparison to the
‘Reformulated Question no. 1’ by the Constitution Bench. It is this
marginal area which is a subsilentio, that needs to be referred to a
larger Bench again.
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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 CrPC could be exercised, in this
regard, it was held
“Since after the filing of the chargesheet, 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 chargesheet 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
pretrial 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.”
(emphasis supplied)
23. It was contended that the question of law herein is unique to the
present case, and the earlier judgment of Hardeep Singh (supra)
did not have an opportunity to cast any light about the validity of
summoning orders pronounced after the passing of the judgment.
They further argued that, the Hardeep Singh Case (supra), treats
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Section 319 in an isolated manner without taking into
consideration the spirit and the mandate of the Code.
24. To strengthen the aforesaid submission, the State further
contended that Section 465, Cr.P.C was introduced to provide for a
balanced mechanism under the Criminal Justice System and to
stop the Courts from getting into hyper technicalities and
committing serious violations. This Court in Hardeep Singh Case
(supra) has not considered the above principles or the issues which
could possibly arise before the trial court while dealing with
applications under Section 319, Cr.P.C. The State therefore
submitted that, Section 319, Cr.P.C. should not be treated as an
isolated island and should instead be given a pragmatic
interpretation by keeping in view the entire mandate of the Code to
render complete justice.
25. Furthermore, it needs to be determined whether the trial is said to
be fully concluded even if the bifurcated trial in respect of the
absconded accused is still pending consideration.
26. The appellant herein contended that, the observations made in the
Hardeep Singh Case (supra), cannot be diluted by a Bench of this
strength. We have considered the averments made by the counsel
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on behalf of both parties, we feel that it would be appropriate to
place the same for consideration before a larger Bench. However,
we are of the considered opinion that, power under Section 319,
Cr.P.C being extraordinary in nature, the trial courts should be
cautious while summoning accused to avoid complexities and to
ensure fair trial. We must remind ourselves that, timely disposal of
the matters furthers the interest of justice.
27. After pursuing the relevant facts and circumstances, the following
substantial questions of law arise for further considerationI.
Whether the trial court has the power under Section
319 of CrPC for summoning additional accused when
the trial with respect to other coaccused has ended
and the judgment of conviction rendered on the same
date before pronouncing the summoning order?
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?
III. What are the guidelines that the competent court must
follow while exercising power under Section 319
Cr.P.C?
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28. In light of the same, we direct the Registry to place these matters
before Hon’ble the Chief Justice of India for constitution of a Bench
of appropriate strength for considering the aforesaid questions.
...………………………….……. J.
[N.V. Ramana]
...………………………….……. J.
[Mohan M. Shantanagoudar]
New Delhi;
May 10, 2019
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