2019 (5) TMI 1927 - SC - Indian Laws

Summoning the Appellants as additional Accused - breach of Section 319, Code of Criminal Procedure or not - bifurcation of main trial - HELD THAT - The following substantial questions of law arise for further consideration - I. Whether the trial court has the power Under Section 319 of Code of Criminal Procedure for summoning additional Accused when the trial with respect to other co-accused 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 Code of Criminal Procedure 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 Code of Criminal Procedure? The Registry is directed 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.

Summary

Issues Involved:
1. Whether the order of the Sessions Judge summoning the Appellants as additional Accused was in breach of Section 319, Code of Criminal Procedure.
2. If the answer to the above question is in the affirmative, could the order of the courts below still be sustained under the Code?
3. Whether the trial court has the power Under Section 319 of Code of Criminal Procedure for summoning additional Accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order.
4. Whether the trial court has the power Under Section 319 of the Code of Criminal Procedure 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.
5. What are the guidelines that the competent court must follow while exercising power Under Section 319 Code of Criminal Procedure.

Detailed Analysis:

Issue I: Breach of Section 319, Code of Criminal Procedure
The primary issue revolves around whether the order of the Sessions Judge summoning the Appellants as additional Accused was in breach of Section 319, Code of Criminal Procedure (CrPC). The Appellants argued that according to the precedent set in Hardeep Singh v. State of Punjab, the power under Section 319(1) CrPC can only be exercised after the filing of the charge-sheet and before the pronouncement of the judgment. They contended that the summoning order passed after the order of conviction breaches these principles, rendering the court functus officio. The Respondent State countered that the relevant consideration is the application of mind within the prescribed time limit under Section 319 CrPC, emphasizing that the application was filed and heard during the pendency of the trial, and the order was reserved.

Issue II: Sustaining the Order under the Code
Even if the summoning order was in breach of Section 319 CrPC, the question arises whether the order could still be sustained. The Respondent State argued that procedural laws should be liberally construed to render justice and that any irregularity in exercising power under Section 319 CrPC would not vitiate the proceedings unless it resulted in a failure of justice, as per Section 465 CrPC.

Issue III: Summoning Additional Accused Post-Trial
The Appellants argued for a comprehensive reading of Section 319(1) CrPC, emphasizing that both the application of mind by the judge and the pronouncement of the final order are bound by the prescribed time limit. They relied on the Hardeep Singh case to argue that the trial court did not have jurisdiction to deliver the summoning order after the trial concluded. The High Court, however, relied on the Shashikant Singh case, which held that the mandate for a fresh trial is mandatory, whereas the mandate that newly added Accused could be tried together with the Accused is directory.

Issue IV: Summoning Additional Accused During Bifurcated Trials
The Respondent State argued that the trial could not be said to be fully concluded if the bifurcated trial in respect of absconding Accused was still pending. They contended that the summoning order was valid as the trial was bifurcated and ongoing for other Accused, thus sustaining the exercise of power under Section 319(1) CrPC.

Issue V: Guidelines for Exercising Power under Section 319 CrPC
The court acknowledged the need for clear guidelines for exercising power under Section 319 CrPC. The Constitution Bench in the Hardeep Singh case laid down the scope and extent of the court's powers to array any person as an Accused during the trial. The questions reformulated by the larger Bench included the stage at which power under Section 319 CrPC can be exercised, the meaning of "evidence" under Section 319(1) CrPC, the nature of satisfaction required to invoke the power, and whether the power extends to persons not named in the FIR or who have been discharged.

Conclusion:
The court concluded that the matter required further consideration by a larger Bench due to the unique facts and the gap between the restricted reformulation of the question by the Constitution Bench in the Hardeep Singh case and the present case's context. The substantial questions of law arising for further consideration include the trial court's power under Section 319 CrPC for summoning additional Accused post-trial, during bifurcated trials, and the guidelines for exercising this power. The Registry was directed to place these matters before the Chief Justice of India for the constitution of a Bench of appropriate strength to consider these questions.