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TMI Blog2022 (12) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 933/2019 - - - Dated:- 5-12-2022 - JUSTICE S. ABDUL NAZEER, JUSTICE B.R. GAVAI, JUSTICE A.S. BOPANNA, JUSTICE V. RAMASUBRAMANIAN And JUSTICE B.V. NAGARATHNA For the Appellant : Mr. P.S. Patwalia, Sr. Adv. in Crl.A.885/2019 Mr. Sudhir Walia,Adv. Ms. Niharika Ahluwalia, AOR Mr. Arpit Sharma, Adv. Ms. Harshika Verma, Adv. Mr. Gauravjit Singh Patwalia, Adv. Mr. Ajit Singh Johar, Adv. Mr. Harshit Sethi,Adv. Mr. Mehtab Singh Khaira,Adv. in Crl.A.886/2019 Mr. Harshit Sethi,Adv. Mr. Amit K. Nain, AOR in SLP 6960/2021 Mr. Puneet Singh Bindra, AOR Mr. Simren Jeet,Adv. in SLP 5933/2019 Mr. Chinmoy Khaladkar, Adv. Mr. Abhinav Agnihotri, Adv. Mr. Salonee Paranjape, Adv. Mr. Abhishek Sharma, Adv. Mr. B. K. Pal, AOR For the Respondent : Mr. Vinod Ghai, Sr. Adv./Advocate General Mr. Aman Pal, Addl.A.G Mr. Gaurav Dhama, Addl.A.G. Ms. Kanika Ahuja, Adv. Ms. Kirti Ahuja, Adv. Ms. Priyanka C., Adv. Mr. Mayank Dahiya, Adv. Ms. Mahima Dogra, adv. Ms. Bhupinder, Adv. Mr. Ajay Pal, AOR Ms. Ranu Purohit, Adv. Mr. S.V.Raju,ASG Ms. Sairica Raju,Adv. Mr. Annam Venkatesh,Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Zoheb Hussain,Adv. Mr. Kanu Agarwal,Adv. Mr. Anirudh Bhat,Adv. Mr. Adit Khorana,Adv. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the evidence tendered by PW-4, PW-5 and PW-13. 4. It is to be noted that out of the 11 accused, the proceedings in Sessions Case No.289 of 2015 were against the 10 accused and since one of the accused was not available, the case in that regard was split up (bifurcated) and was subsequently numbered as Sessions Case No.217 of 2019 on 03.09.2019. In that background, it is seen that as on the date when the application under Section 319 CrPC was filed on 21.09.2017, the only proceeding pending was Sessions Case No.289 of 2015. In that regard, in respect of the proceedings against the 10 accused, the learned Sessions Judge pronounced the judgment on 31.10.2017 whereby one of the accused was acquitted, while the remaining 9 accused were convicted and sentence was imposed on 31.10.2017. The learned Sessions Judge, also allowed the application filed under Section 319 of CrPC on the same day i.e., 31.10.2017 and summoned the appellant to face trial. It is in that backdrop the appellant assailed the order dated 31.10.2017 summoning him to face trial, since according to him such order is not sustainable in law as the same was not passed in a proceeding pending before the learned Sessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... micus Curiae. Shri Vinod Ghai, Advocate General appeared for the State of Punjab while Shri A.K. Prasad, learned Additional Advocate General appeared for the State of U.P. Shri S.V. Raju, Additional Solicitor General has appeared for the Union of India since a case is said to have also been registered against the appellant under the Prevention of Money Laundering Act, 2002. We have also heard Shri Ashish Dixit, learned counsel who appeared for the Intervener-Prosecutors Association. 8. The gist of the contention put forth by Shri P.S. Patwalia, learned Senior Counsel is as hereunder: - Order summoning a person (appellant herein) as an accused under Section 319 of CrPC was passed at a stage when the trial had already concluded and even judgment and order on sentence had been pronounced. It is contended that the said order is, therefore in violation of Section 319 of CrPC and Hardeep Singh (supra), wherein in Para 47 it was held that power has to be exercised before pronouncement of judgment. It can only be exercised during the pendency of the trial, which is a stage anterior to the date of pronouncement of judgment. In fact this is also consistent with Section 353(1) of CrPC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminated. Evidence which have been brought on record during inquiry/trial including evidence collected during investigation such as FIR, Section 161, Section 164 statements, cannot be treated as evidence for the purpose of Section 319 of CrPC. Applying this, it will emerge that the evidence recorded in a separate trial held against the other accused cannot be considered as evidence in the present case. But, in the split up case (bifurcated) where there is a separate trial, and during the course of that trial, if any evidence comes on record against a person who is not already an accused, based on that evidence alone, he can be arrayed as an accused under Section 319 of CrPC. When a person is summoned as an additional accused, it is the discretion of the Court whether to charge and try two or more persons together in the same trial. As per Section 319(4) of CrPC, as against the newly added accused, trial should be a fresh trial. However, if there is joint trial, fresh trial should be conducted against all the accused including the existing accused. In such an event, evidence already recorded is no evidence against the added accused in view of Section 273 of CrPC. In a case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. The gist of the contention put forth by Shri A.K. Prasad, learned Additional Advocate General for the State of U.P. is essentially in the same line as contended by the learned Advocate General for the respondent-State of Punjab. Insofar as the aspect relating to the power that could be exercised under Section 319 of CrPC, with the connotation of such power being exercised before completion of trial it was contended by the learned counsel that the trial does not conclude with the pronouncement of conviction, since sentence also being a part of the judgment. The court becomes functus officio only after the sentence is imposed. It is contended that it will have to be held that the power can be exercised till the sentence is pronounced, which is the point at which the judgment is complete in all respects and trial gets concluded. 12. Shri S.V. Raju, learned Additional Solicitor General though argued in similar lines as put fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such evidence points to any person other than the accused who are being tried before the Court to have committed any offence and such accused has been excluded in the charge sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused. 15. In that regard, the object of incorporating the provision in the CrPC and bestowing such power to the Court was based on the recommendation made by the Law Commission of India in its Forty-First Report to which all the learned senior counsel have made extensive reference, read as hereunder:- 24.80. It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is only proper that the Magistrate should have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power was to be exercised was considered and summarised as follows:- 12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC. 13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC? 15. It would be necessary to put on record that the power conferred under Section 319 CrPC is only on the court. This has to be understood in the context that Section 319 CrPC empowers only the court to proceed against such person. The word court in our hierarchy of criminal courts has been defined under Section 6 CrPC, which includes the Courts of Session, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Sess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial 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. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session. 57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words could be tried together with the accused in Section 319(1), appear to be only directory. Could be cannot under these circumstances be held to be must be . The provision cannot be interpreted to mean that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. The connotation conclusion of trial in the present case cannot be reckoned as the stage till the evidence is recorded, but, is to be understood as the stage before pronouncement of the judgment as already held in Hardeep Singh (supra) since on judgment being pronounced the trial comes to a conclusion since until such time the accused is being tried by the Court. 21. In that context, the rival contentions are to be analysed to arrive at the conclusion as to which is the stage at which it can be said that the trial has concluded. Is it at the stage when the judgment is pronounced and the conviction is ordered or is it when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the judgment shall be signed by him. (4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted: Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. (7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. There shall be application of mind also, as to whether separate trial or joint trial is to be held while trying him afresh. After such order it will be open to pronounce the judgment of acquittal of the accused who was tried earlier. 23. However, if the learned Judge arrives at the conclusion that the accused is to be convicted, the conviction shall be ordered through the judgment as contemplated under Section 235 of CrPC. Sub-section (2) thereto provides that if the learned Judge does not proceed to give the benefit to the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bench consisting of three Hon ble Judges has held as hereunder:- 12. Chapter XVIII relates to trial before a Court of Session. Sections 225 to 227 relate to the stage prior to the framing of charge. Section 228 provides for the framing of charge against the accused person. If after the charge is framed the accused pleads guilty, Section 229 provides that the Judge shall record the plea and may, in his discretion, convict him thereon. However, if he does not enter a plea of guilty, Sections 230 and 231 provide for leading of prosecution evidence. If, on the completion of the prosecution evidence and examination of the accused, the Judge considers that there is no evidence that the accused committed the offence with which he is charged, the Judge shall record an order of acquittal. If the Judge does not record an acquittal under Section 232, the accused would have to be called upon to enter on his defence as required by Section 233. After the evidence-in-defence is completed and the arguments heard as required by Section 234, Section 235 requires the Judge to give a judgment in the case. If the accused is convicted, sub-section (2) of Section 235 requires that the Judge shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t clear that judgment shall contain the punishment awarded to the accused. It is therefore, complete only after the sentence is determined. (emphasis supplied) 27. Therefore, from a perusal of the provisions and decisions of this Court, it is clear that the conclusion of the trial in a criminal prosecution if it ends in conviction, a judgment is considered to be complete in all respects only when the sentence is imposed on the convict, if the convict is not given the benefit of Section 360 of CrPC. Similarly, in a case where there are more than one accused and if one or more among them are acquitted and the others are convicted, the trial would stand concluded as against the accused who are acquitted and the trial will have to be concluded against the convicted accused with the imposition of sentence. When considered in the context of Section 319 of CrPC, there would be no dichotomy as argued, since what becomes relevant here is only the decision to summon a new accused based on the evidence available on record which would not prejudice the existing accused since in any event they are convicted. 28. In that view of the matter, if the Court finds from the evidence recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied accused. If a conclusion is reached that the fresh trial to be conducted against the newly added accused could be separately tried, in such event it would be open for the learned Sessions Judge to order so and proceed to pass the judgment and conclude the trial insofar as the accused against whom it had originally proceeded and thereafter proceed in the case of the newly added accused. However, 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 as held in Shashikant Singh (supra) which in our opinion is the correct view. 30. One other aspect which is necessary to be clarified is that if the trial agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst such person or not. There is no rationale in fettering that power and the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises. 32. We have also kept in view the point by point analysis of the object and power to be exercised under Section 319 of CrPC, as has been indicated in para 34 of Manjit Singh vs. State of Haryana and Others (2021) SCC Online SC 632. 33. For all the reasons stated above, we answer the questions referred as hereunder:- I. Whether the trial court has the power 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? 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude the trial against the accused who were being proceeded with. (vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will beno impediment to pass the judgment of acquittal in the main case. (viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial. (ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing. (x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. (xi) Even in such a case, at that stage, if the decision is to summon addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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