SUKHPAL SINGH KHAIRA versus THE STATE OF PUNJAB

Citation: [2022] 10 S.C.R. 156 · Decided: 05-12-2022 · Supreme Court of India · Bench: S. ABDUL NAZEER

Cited by 3 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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156
SUPREME COURT REPORTS
[2022] 10 S.C.R.
SUKHPAL SINGH KHAIRA
v.
THE STATE OF PUNJAB
(Criminal Appeal No. 885 of 2019)
DECEMBER 05, 2022
[S. ABDUL NAZEER, B.R. GAVAI, A.S. BOPANNA,
V. RAMASUBRAMANIAN AND B.V NAGARATHNA, JJ.]
Code of Criminal Procedure, 1973 : s. 319 – Power to summon
additional accused under – 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 – Held: Power
u/s. 319 has to be 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 – In case of conviction, summoning
order u/s. 319 has to precede the conclusion of trial by imposition
of sentence – If the order is passed on the same day, it will have to
be examined on the facts and circumstances of each case and if
such summoning order is passed either after the order of acquittal
or imposing sentence in the case of conviction, the same would not
be sustainable.
s. 319 – Power to summon additional accused under – When
the trial in respect of certain other absconding accused (whose
presence is subsequently secured) is pending, having been bifurcated
from the main trial – Held: Court has power to summon additional
accused in trial proceedings 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, 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.
s. 319 – Exercise of power under – Guidelines issued.
Answering the questions referred, the Court
HELD: 1.1 The power under Section 319 of the Code of
Criminal Procedure, 1973 is to be invoked and exercised before
[2022] 10 S.C.R. 156
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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 trial by imposition of sentence in the case of
conviction. If the order is passed on the same day, it will have to
be examined on the facts and circumstances of each case and if
such summoning order is passed either after the order of acquittal
or imposing sentence in the case of conviction, the same will not
be sustainable. [Para 33][186-G-H; 187-A-B]
1.2 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. [Para 33][187-C-D]
1.3 The guidelines that the competent court must follow
while exercising power under Section 319 CrPC are:
(i) If the competent court finds evidence or if application
under Section 319 of CrPC is filed regarding involvement of any
other person in committing the offence based on evidence
recorded at any stage in the trial before passing of the order on
acquittal or sentence, it shall pause the trial at that stage.
(ii) The Court shall thereupon first decide the need or
otherwise to summon the additional accused and pass orders
thereon.
(iii) If the decision of the court is to exercise the power
under Section 319 of CrPC and summon the accused, such
summoning order shall be passed before proceeding further with
the trial in the main case.
(iv) If the summoning order of additional accused is passed,
depending on the stage at which it is passed, the Court shall also
apply its mind to the fact as to whether such summoned accused
is to be tried along with the other accused or separately.
SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB
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SUPREME COURT REPORTS
[2022] 10 S.C.R.
(v) If the decision is for joint trial, the fresh trial shall be
commenced only after securing the presence of the summoned
accused.
(vi) If the decision is that the summoned accused can be
tried separately, on such order being made, there will be no
impediment fo

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