NON­REPORTABLE     

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 885 OF 2019

(Arising out of SLP (Crl.) No. 9063 of 2017)

SUKHPAL SINGH KHAIRA                                          ...APPELLANT (S)

VERSUS

THE STATE OF PUNJAB                                             …RESPONDENT (S)

with

CRIMINAL APPEAL NO. 886 OF 2019

(Arising out of SLP (Crl.) No. 9150 of 2017)

JOGA SINGH AND ANOTHER                                         ….APPELLANT (S)

VERSUS

THE STATE OF PUNJAB                                            …RESPONDENT (S)

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

17.11.2017,  passed in  Criminal  Revision  No.  4070 of  2017  and

Criminal Revision No. 4113 of 2017, wherein the High Court

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dismissed the Criminal Revision Petitions and upheld the order of

the Trial Court summoning the accused­appellants herein, under

Section 319 of the Code of Criminal Procedure, 1973 [hereinafter

‘CrPC’ for brevity].

3. The factual narration of this case  is that on 05.03.2015, a First

Information Report was lodged in the Police Station Sadar,

Jalalabad against eleven accused for the offence committed under

Sections 21, 24, 25, 27, 28, 29 and 30 of the Narcotic Drugs and

Psychotropic Substance Act, 1985, Section 25­A of the Arms Act

and Section 66 of the Information Technology Act, 2000. Initially,

under the  1st  charge  sheet  dated  06.09.2015, ten  accused  were

summoned and put to trial in Sessions Case No. 289 of 2015. Even

though a second charge sheet was filed by the police, the same did

not name the accused­appellants herein.

4. Subsequently, on 31.07.2017, the prosecution filed an application

under  Section 311 of  CrPC  for  recalling PW­4 and PW­5,  which

came to be allowed. On such recall the aforesaid witnesses named

the accused­appellants herein. Thereafter, the prosecution filed an

application under Section 319 of CrPC in Sessions Case No. 289 of

2015 for summoning additional five accused (including the present

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appellants herein) by placing reliance on statements of PW­4, PW­5

(recalled witnesses) and PW­13.  

5. On 31.10.2017, the Sessions Court first pronounced the judgment

in Sessions Case No. 289 of 2015, convicting the nine other

accused put on trial.  On the same day, by a separate order the

Sessions Court, while allowing the application of the prosecution,

summoned accused­appellants herein under Section 319 of CrPC.

Aggrieved by the summoning by the Sessions Court, the accused­

appellants, filed separate Criminal Revision Petitions, in the High

Court of Punjab and Haryana, being Criminal Revision Nos. 4070

and 4113 of 2017. The  High  Court by the common impugned

judgment, dismissed the Criminal Revision, and upheld the

summoning order passed by the Sessions Court.  

6. Aggrieved by the impugned judgment and order of the High Court,

accused appellants have approached this Court through these

Special Leave Petitions.

7. Heard learned counsels appearing for both parties. Mr. P. S.

Patwalia, learned senior counsel appearing on behalf of the

accused­appellant in  SLP (Crl)  No. 9063  of 2017  contended  by

relying upon the  Hardeep Singh v.  State of  Punjab,  (2014)  3

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SCC 92 to state that, the power under Section 319 (1) CrPC can be

exercised at any time after the filing of the charge­sheet and before

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 Cr.P.C, 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

CrPC, ends and the court becomes functus officio.

8. Mr.  V.  Giri, learned senior counsel appearing on behalf of the

accused­appellant (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) Cr.P.C, has to be read along with Section 319 (1)­ which

provides that the  new person  has to  be tried together  with the

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accused. This principle is based on the “commonality of evidences”.

But in the present case, allowing such application under Section

319 Cr.P.C, goes to the root of fair trial, as the court has already

considered such evidence and has proceeded to speak on it. It is

the same evidence which would be reappreciated, and the inclusion

of such evidence vitiates the principles of fair trial.

9. Mr. Harin P. Raval, learned senior counsel appearing on behalf of

the respondent State in  SLP (Crl.)  No. 9063 of 2017  argued that

even if it is assumed that the summoning order was passed

subsequent to the conviction order,  the relevant consideration  is

that application of mind was within the prescribed time limit under

Section  319 of  Cr.P.C. The  process of application of  mind and

pronouncement  of summoning  order  are  separate  under  Section

319,  Cr.P.C,  and it is the time  of  application  of  mind  which is

relevant. The counsel  further drew our attention to the fact that

undisputedly,  the  application under  Section 319 CrPC was  filed

and heard during the pendency of the trial, and the order thereon

was reserved. In this context, the counsel submitted that, the

application under Section 319, Cr.P.C was separated from the trial

by the direction of the  High  Court so as to complete the trial

expeditiously in a time bound  manner. Now the aforesaid fact

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cannot be used to prejudice the case of the State. Lastly, the

counsel maintained that the summoning order under Section 319,

CrPC was passed on the same day, simultaneously, along with the

final judgment convicting the other accused. Therefore, there is no

procedural irregularity  committed.  Moreover,  he emphasized that

the trial in this case could not be said to be completed unless a

decision was given in respect of all the accused fully. This

submission was based on the fact that the trial had been bifurcated

and was pending in respect of the other absconding accused, which

would sustain the exercise of power under Section 319.

10. Mr. Sidharth Luthra, learned senior counsel appearing on behalf of

the respondent State in  SLP (Crl.) No. 9150 of 2017, while

supporting the arguments made by Senior Counsel  Mr. Harin P.

Raval, further submitted that it is settled law that procedural laws

must be liberally construed to render justice. Moreover, assuming

but  not admitting that an irregularity in the exercise of power

under Section 319 Cr.P.C 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 CrPC as the appellant has not made

out a case of failure of justice.

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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, CrPC?

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  Cr.P.C

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 defined

Section 319 CrPC as an enabling provision, especially in the

circumstances where the investigating agency had failed to array

any person as an accused. This provision empowers the courts for

calling such persons to face the trial. The Section stipulates that a

‘Court’ may summon any additional accused if it appears from the

‘evidence’, during the course of any inquiry or trial, that such an

individual,  not being an accused, has committed any offence  for

which such person could be tried together with the named accused.

Sub­section 4 of Section 319 of CrPC indicates that the proceeding

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with respect to the summoned individual, as per  Clause (1) of

Section 319 of CrPC, may be de­novo or joint trial.

13. The appellants have argued for a comprehensive reading of Section

319  (1)  CrPC,  wherein  the  aspect  of  application of  mind by the

judge as  well  as the  pronouncement  of the final  order  are  both

bound by the prescribed time limit. They have extensively relied on

the  Hardeep Singh Case,  to  point  out that the trial  court  was

functus officio and did not have the jurisdiction to deliver the order

of summoning.

14. The High Court while repelling the contention of the appellants that

the trial court was functus officio when the summoning order was

passed,  placed reliance on  the  factual  matrix explained  later, in

Shashikant Singh v. Tarkeshwar Singh,  (2002)5 SCC 738, and

noted that the decision in Shashikant Singh Case (supra) was on

the same point rather than Hardeep Singh Case (Supra).

15. In Shashikant Singh Case (supra), this Court was concerned with

a unique situation, the question which was before the Court therein

was­

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“Can a person summoned pursuant to an order passed by a court in exercise of power conferred by Section 319 of the Code of Criminal Procedure, 1973 (the  Code)  be tried for the  offence for  which he is summoned  after the conclusion of the trial wherein such an order of summoning was passed, is the  question that falls for  determination in this appeal?”

(emphasis supplied)

16. While answering the same, the 2 two Judge Bench in Shashikant

Singh Case (supra) held as follows:

9… The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded  with the result that the newly added person cannot be tried 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.

(emphasis supplied)

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

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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 two­Judge Bench [(2009) 16 SCC 785], this

Court took note of the holdings in the  Shashikant Singh Case

(supra). The two­judge bench observed that:  

32.      In  Shashikant  Singh   v.   Tarkeshwar Singh [(2002)5 SCC 738: 2002 SCC (Cri) 1203], during the pendency of trial of an accused, another person was summoned by the trial court under Section 319 of the  Code.  But by the time  he could be brought before the court, the trial against the accused was over.  It  was held by this  Court that the words “could  be tried together  with the  accused” in Section 319(1) were merely directory and if the trial  against the other accused is  over,  such a person who was subsequently added as an accused, could be tried after the conclusion of the trial of the main accused.

(emphasis supplied)

19. Taking note of the above the two­Judge Bench in Hardeep Singh’s

Case  referred the matter to a three­Judge Bench on the following

questions­

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“(1)  When  the power under sub­section (1) of Section 319 of the Code of Criminal Procedure, 1973 of addition of the accused can be exercised by a court? Whether application under Section 319 of the Code is not maintainable unless the cross­examination of the witness is complete?

(2)   What is the test and what are the guidelines of exercising  power  under sub­section (1) of  Section 319 of the Code? Whether such power can be exercised only if the court is satisfied that the accused summoned in all likelihood would be convicted?”

(emphasis supplied)

20. Subsequently, this Court in the aforesaid matter of  Hardeep

Singh’s Case (supra) laid down the scope and extent of the powers

of the Court in the criminal justice system to array any person as

an accused during the course of trial as per Section 319 Cr.P.C.

The questions which were reformulated by the larger Bench were­

(i) What is the stage at which power Under Section 319 of the Code of Criminal Procedure, 1973 can be exercised?

(ii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 could only  mean evidence  tested by cross­examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination­ in­chief of the witness concerned?

(iii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 has been used in a comprehensive sense and includes the evidence collected  during investigation or the  word

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"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?

(emphasis supplied)

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 re­

formulation 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 is this

marginal area which is a sub­silentio, that needs to be referred to a

larger Bench again.

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22. In the Hardeep Singh Case (supra), the Constitution Bench set out

to answer the questions referred above. In this part we are mostly

concerned with the first question. The Court, while assessing the

ambit of the term ‘trial’, was concerned with the stage during which

the power under Section 319 of CrPC could be exercised, in this

regard, it was held­

“Since after the filing of the charge­sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) Code of Criminal Procedure can be exercised at any time after the charge­sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 Code of Criminal  Procedure,  committal  etc.,  which  is  only  a pre­trial 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.”

(emphasis supplied)

23. It was contended that the question of law herein is unique to the

present case, and the earlier judgment of  Hardeep Singh  (supra)

did not have an opportunity to cast any light about the validity of

summoning orders pronounced after the passing of the judgment.

They further argued that, the Hardeep Singh Case (supra), treats

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Section 319 in an isolated manner without taking into

consideration the spirit and the mandate of the Code.  

24. To  strengthen the aforesaid submission, the State further

contended that Section 465, Cr.P.C was introduced to provide for a

balanced mechanism under the  Criminal  Justice  System and  to

stop the Courts from getting into hyper technicalities and

committing serious violations. This Court in Hardeep Singh Case

(supra) has not considered the above principles or the issues which

could possibly arise before the trial court while dealing with

applications under Section 319, Cr.P.C. The State therefore

submitted that, Section 319, Cr.P.C. should not be treated as an

isolated island and should instead be given a pragmatic

interpretation by keeping in view the entire mandate of the Code to

render complete justice.  

25. Furthermore, it needs to be determined whether the 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

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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,

Cr.P.C 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 CrPC for summoning additional accused when the trial  with respect  to other  co­accused 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  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?

III. What are the guidelines that the competent court must follow while exercising power under Section 319 Cr.P.C?  

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28.  In light of the same, we direct the Registry 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.   

     ...………………………….……. J.                                               [N.V. Ramana]

     ...………………………….……. J.                                                  [Mohan M. Shantanagoudar]

New Delhi; May 10, 2019

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