The five-judge bench of Justice S. Abdul Nazeer, Justice B.R. Gavai, Justice A.S. Bopanna, Justice V. Ramasubramanium, and Justice B.V. Nagarathna of the apex court in the case of Sukhpal Singh Khaira Vs The State of Punjab held that 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.
BRIEF FACTS
The factual matrix of the case is that the FIR was registered against the 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. When the trial was conducted initially the name of the appellant was not mentioned by the witnesses. The prosecution filed an application under section 311 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 invoking Section 319 of CrPC additional 5 accused, including the appellant herein.
Additionally, the learned Sessions Judge granted the application made under on the same day, the appellant was summons to court under Section 319 of the Criminal Procedure Code. In light of this, the appellant disputed the legality of the order requiring him to appear in court because it was issued without regard to the status of a case being heard by the learned Sessions Court and because the conviction and sentence had already been rendered at the time the learned Sessions Judge exercised his summoning authority. The High Court dismissed the Revision Petition that challenged the aforementioned order, which is what prompted the current proceedings.
The learned counsel for the appellant has contended that the order passed is in violation of section 319 CrPC and Hardeep Singh vs. State of Punjab in which it was held that the power has to be exercised before pronouncement of judgment. In a nutshell, if an accused is to be summoned, it has to be done when the trial is alive. Further, it was contended that it is not a mere procedural violation, rather, substantive violation since the power is circumscribed by the stage during which it can be exercised, i.e. inquiry/trial.
The learned counsel appearing on behalf of the state of Punjab has contended that the purpose of Section 319 of the Criminal Procedure Code was to ensure that no criminal should escape punishment and to demonstrate the guilt of the genuine accused. In this situation, the courts have the authority to summon anyone who appears to have committed an offence for which an accused person has already been charged and is awaiting trial should be summoned.
It was further contended that when application under Section 319 of CrPC is decided simultaneously on the same day when trial is concluded, then the Court below does not become functus officio and is competent to exercise power under Section 319 of CrPC in view of Section 354 of CrPC which expressly provides that an order on quantum of sentence is an integral part of the judgment and any judgment of conviction without such order would be referred as incomplete.
ISSUE BEFORE THE COURT
- 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?
- 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?
- What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?”
COURT’S OBSERVATION
The hon’ble court held that 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.
Furthermore, the hon’ble court held that the trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion.
CASE NAME- Sukhpal Singh Khaira Vs The State of Punjab
CITATION- CRIMINAL APPEAL NO.885 OF 2019
CORUM- Justice S. Abdul Nazeer, Justice B.R. Gavai, Justice A.S. Bopanna, Justice V. Ramasubramanium, and Justice B.V. Nagarathna
DATE- 05.12.22
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