Summary
In a 2015 NDPS prosecution in Jalalabad, the Sessions Judge convicted and sentenced nine accused on 31.10.2017. The same day, the judge allowed the prosecution's Section 319 CrPC application and summoned the appellant, a person not charge-sheeted, as an additional accused. On a reference, the Supreme Court answered three questions. Where there is a conviction, the Section 319 power must be exercised before sentence is pronounced, because the trial ends only with sentence. Where there is an acquittal, it must be exercised before the acquittal is pronounced. A summoning order made in the same sitting is judged on its facts, but one made after acquittal or sentence is unsustainable. A split-up trial of an absconding co-accused can support summoning only on evidence recorded in that trial. The Court also laid down guidelines on pausing the trial and deciding between joint and separate trial.
Issues
- Whether a trial court can summon an additional accused under Section 319 CrPC after the trial of the co-accused has ended in conviction on the same date, before the summoning order is pronounced.
- Whether it can do so on the strength of a pending split-up trial of an absconding co-accused.
- What guidelines govern the exercise of the Section 319 power.
Provisions considered
- Section 319, Code of Criminal Procedure, 1973The power to proceed against a person appearing from the evidence to be guilty exists only in the course of inquiry or trial; 'could be tried together with the accused' is directory (Shashikant Singh), and under sub-section (4) the summoned person must be tried afresh. (¶¶ 13, 14, 19, 20, 28, 29)
- Sections 232, 235, 353 and 354, Code of Criminal Procedure, 1973An acquittal concludes the trial at once; on conviction, the accused must be heard on sentence and the judgment is complete only when the sentence is imposed (Rama Narang, Yakub Memon), so the trial is not over on conviction alone. (¶¶ 21, 22, 23, 24, 25, 26, 27)
- Sections 223 and 273, Code of Criminal Procedure, 1973The court may decide whether the summoned accused is to be tried jointly or separately, and evidence already recorded cannot be used against the newly added accused. (¶¶ 28, 29)
Held
- Shashikant Singh and Hardeep Singh do not conflict: both permit summoning before the pronouncement of judgment, and the 'could be tried together' phrase is directory because the court may order a separate trial. (¶¶ 19, 29)
- Where the trial ends in conviction, the Section 319 power must be exercised before the order on sentence; in an acquittal, before the acquittal is pronounced. An order passed on the same day must be examined on its facts, but a summoning order passed after acquittal or after sentence is not sustainable. (¶¶ 24, 27, 28, 33)
- Pendency of a split-up trial against an absconding accused does not validate a summoning order made in the concluded main trial; in the split-up trial the power may be used only on evidence recorded in that trial. (¶¶ 30, 33)
- Guidelines: on finding evidence or an application under Section 319 before acquittal or sentence, the court must pause the trial, first decide on summoning, pass any summoning order before proceeding, and decide on joint or separate trial; a joint trial begins afresh after the summoned accused appears, a separate trial leaves the main trial free to conclude, and a case reserved for judgment must be set down for re-hearing. (¶ 33)
Result
Referred questions answered in the terms stated; the Registry directed to place Criminal Appeal No. 885 of 2019 and the connected matters before the appropriate Bench, on the Chief Justice's orders, to decide the facts in the light of this position.