2022 (12) TMI 497 - SC - Indian Laws

Summon of appellant as an additional accused by exercising the power under Section 319 of the Criminal Procedure Code, 1973 - power of Trial Court under Section 319 of CrPC 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 - power of Trial Court 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 - guidelines that the competent court are required to follow while exercising power under Section 319 CrPC. HELD THAT - A close perusal of Section 319 of CrPC indicates that the power bestowed on the court to summon any person who is not an accused in the case is, when in the course of the trial it appears from the evidence that such person has a role in committing the offence. Therefore, it would be open for the Court to summon such a person so that he could be tried together with the accused and such power is exclusively of the Court. Obviously, when such power is to summon the additional accused and try such a person with the already charged accused against whom the trial is proceeding, it will have to be exercised before the conclusion of trial. If the Sessions Court while analysing the evidence recorded finds that there is no evidence to hold the accused for having committed the offence, the judge is required to record an order of acquittal. In that case, there is nothing further to be done by the learned Judge and therefore the trial concludes at that stage. In such cases where it arises under Section 232 of CrPC and an order of acquittal is recorded and when there are more than one accused or the sole accused, have/has been acquitted, in such cases, that being the end of the trial by drawing the curtain, the power of the court to summon an accused based on the evidence as contemplated under Section 319 of CrPC will have to be invoked and exercised before pronouncement of judgment of acquittal. 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 Section 319 of CrPC after recording the evidence of the witnesses or after pronouncing the judgment of conviction but before sentence being imposed, the very same evidence which is available on record cannot be used against the newly added accused in view of Section 273 of CrPC - what is important is that the decision to summon an additional accused either suo-moto by the Court or on an application under Section 319 of CrPC shall in all eventuality be considered and disposed of before the judgment of conviction and sentence is pronounced, as otherwise, the trial would get concluded and the Court will get divested of the power under Section 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. 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. The Registry is directed to obtain orders from Hon ble the Chief Justice and place before the appropriate Bench to take a decision on the factual aspects arising in the case in the background of the legal position and contentions on merits.

Summary

Issues Involved:
1. Power under Section 319 of CrPC to summon additional accused after the trial of co-accused has ended.
2. Power under Section 319 of CrPC to summon additional accused when the trial of absconding accused is ongoing/pending.
3. Guidelines for exercising power under Section 319 of CrPC.

Detailed Analysis:

Issue 1: Power under Section 319 of CrPC to summon additional accused after the trial of co-accused has ended.
The Supreme Court examined whether the trial court can summon additional accused under Section 319 of the Criminal Procedure Code (CrPC) after the trial of co-accused has ended and the judgment of conviction has been rendered. The Court ruled that the power under Section 319 CrPC must be invoked before the pronouncement of the order of sentence in the case of conviction. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. The summoning order must precede the conclusion of the trial by imposition of sentence in the case of conviction. If the summoning order is passed after the order of acquittal or imposing sentence, it will not be sustainable.

Issue 2: Power under Section 319 of CrPC to summon additional accused when the trial of absconding accused is ongoing/pending.
The Court addressed whether the trial court can summon additional accused under Section 319 CrPC when the trial in respect of absconding accused is ongoing or pending, having been bifurcated from the main trial. It was 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. However, 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.

Issue 3: Guidelines for exercising power under Section 319 CrPC.
The Court laid down comprehensive guidelines for the competent court to follow while exercising power under Section 319 CrPC:
1. Pause the Trial: If evidence or an application under Section 319 CrPC indicates the involvement of any other person, the trial should be paused at that stage.
2. Decide on Summoning: The court should first decide whether to summon the additional accused and pass orders accordingly.
3. Summoning Order: If the decision is to summon the additional accused, the summoning order should be passed before proceeding further with the trial in the main case.
4. Joint or Separate Trial: The court should decide whether the summoned accused should be tried jointly with the other accused or separately.
5. Commence Fresh Trial: If a joint trial is decided, the fresh trial should commence only after securing the presence of the summoned accused.
6. Continue Main Trial: If the summoned accused is to be tried separately, the court can continue and conclude the trial against the accused who were being proceeded with.
7. Judgment of Acquittal: If the paused proceeding is for acquittal and the summoned accused can be tried separately, there will be no impediment to passing the judgment of acquittal in the main case.
8. Evidence in Split-up Case: The power under Section 319 CrPC can be invoked in a split-up (bifurcated) case if there is evidence pointing to the involvement of the additional accused.
9. Re-hearing: If the case is reserved for judgment and the court decides to invoke Section 319 CrPC, the appropriate course is to set it down for re-hearing.
10. Fresh Trial in Joint Trial: If a joint trial is decided after re-hearing, a fresh trial should be conducted.
11. Separate Trial after Re-hearing: If a separate trial is decided, the main case can be decided by pronouncing the conviction and sentence, and then proceed afresh against the summoned accused.
12. Acquittal in Main Case: In the case of acquittal, the order should be passed in the main case and then proceed afresh against the summoned accused.

Conclusion:
The Supreme Court clarified the scope and application of Section 319 CrPC, emphasizing that the power to summon additional accused should be exercised before the conclusion of the trial by pronouncement of judgment and sentence. The Court provided detailed guidelines to ensure that the power is exercised judiciously and in accordance with the legal framework.