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TMI Blog2019 (5) TMI 1927X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a Bench of appropriate strength for considering the aforesaid questions. - Criminal Appeal No. 885 of 2019 (Arising out of SLP (Crl.) No. 9063 of 2017) and Criminal Appeal No. 886 of 2019 (Arising out of SLP (Crl.) No. 9150 of 2017) - - - Dated:- 10-5-2019 - N.V. Ramana and Mohan M. Shantanagoudar, JJ. For Appellant: P.S. Patwalia, Sr. Adv., Dhruv Sheoran, Mehatab Singh Khaira, Nikhil Jain, Harshika Verma, Satya Prakash and Amit K. Nain, Advs. For Respondents: Raj Kamal, DAG, Harin P. Raval, Sidharth Luthra, Sr. Advs., Karan Bharihoke, Kaushal Narayan Mishra, Siddhant Sharma, Navkiran Bolay, Varun Tyagi, Nipun Saxena, Aditya P. Arora and M. Jaggi, Advs. ORDER 1. Leave granted. 2. These Criminal Appeals are filed against the impugned judgment and order of the High Court of Punjab and Haryana, dated 17.1.2017, passed in Criminal Revision No. 4070 of 2017 and Criminal Revision No. 4113 of 2017, wherein the High Court dismissed the Criminal Revision Petitions and upheld the order of the Trial Court summoning the Accused-Appellants herein, Under Section 319 of the Code of Criminal Procedure, 1973 [hereinafter 'CrPC' for brevity]. 3. The factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 Code of Criminal Procedure, 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 Code of Criminal Procedure, ends and the court becomes functus officio. 8. Mr. V. Giri, learned senior Counsel appearing on behalf of the Accused-Appellant (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) Code of Criminal Procedure, has to be read along with Section 319(1)-which provides that the new person has to be tried together with the Accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render justice. Moreover, assuming but not admitting that an irregularity in the exercise of power Under Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure as the Appellant has not made out a case of failure of justice. 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, Code of Criminal Procedure? 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 Code of Criminal Procedure 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 def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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 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 two-Judge Bench [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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? 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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, Code of Criminal Procedure 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 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 summon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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