The Supreme Court quashed the summoning order under Section 319 Cr.P.C. passed after the trial court completed conviction and sentenced other co-accused in the same bench-day, holding such exercise invalid when done post-sentence.
The impugned judgment of the High Court and the summoning order under Section 319 Cr.P.C. passed by the Trial Judge were quashed and set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NON-REPORTABLE
2024 INSC 679
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
(Arising out of SLP(Crl.) No. 6960 of 2021)
DEVENDRA KUMAR PAL …APPELLANT(S)
VERSUS
STATE OF U.P AND ANOTHER …RESPONDENT(S)
J U D G M E N T
B.R. Gavai, J.
1. Leave granted
2. The present appeal challenges the judgment and order
dated 25th August 2021 passed by the learned Single Judge of the High Court of Judicature at Allahabad, vide which the petition filed by the present appellant challenging the order passed by the learned Additional Sessions Judge (hereinafter referred to as “learned Trial Judge”) dated 21st March 2012 was dismissed.
Signature Not Verified
Digitally signed by Deepak Singh Date: 2024.09.11 16:40:05 IST Reason:
3. The facts of the present case are not disputed.
4. The trial court proceeded with the trial in connection
with the offence punishable under Section 302 of the Indian
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Penal Code, 1860 (for short “IPC”).
5. After the conclusion of the trial, the learned Trial Judge convicted some of the accused and acquitted the others.
6. The learned Trial Judge was also of the opinion that the present appellant was also required to be tried.
7. By an order dated 21st March 2012, the learned Trial Judge in the first half recorded the order of conviction in respect of the accused whom it had found to be guilty and also recorded the order of acquittal for the remaining accused, it found to be not guilty. Post lunch, the learned Trial Judge first recorded the order of sentence insofar as the accused who were convicted. Thereafter, the learned trial Judge had passed an order summoning the present appellant, Devendra Kumar Pal for trial by invoking powers under Section 319 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”)
8. We have heard Mr. Puneet Singh Bindra, learned counsel appearing for the appellant and Mr. Vishnu Shankar Jain, learned counsel appearing for the respondent-State.
9. Shri Bindra, learned counsel submits that in the case of
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Sukhpal Singh Khaira vs. State of Punjab1 , the matter was referred to the Constitution Bench for deciding the question as to “whether the Trial Court had power under Section 319 of Cr.P.C. for summoning an additional accused when the trial with respect to other co-accused has ended and the judgment of conviction and sentence was rendered before summoning the additional accused”. Relying on the same, he submits that, since in the present case also, first the order of conviction and sentence was recorded and only thereafter an order under Section 319 of Cr.P.C. was passed, the same would not be sustainable in law.
10. Shri Jain, learned counsel, on the contrary, submits that the Constitution Bench has held that if the judgment of the conviction and sentence and the order of summoning under Section 319 of Cr.P.C. are passed on the same date, the Court may have to examine the facts and circumstances of the case. He submits that in the present case, the order of sentence and the order under Section 319 of Cr.P.C. are passed by the learned Trial Judge in the same breath and, therefore, no error could be found with the same.
1 (2023) 1 SCC 289 : 2022 INSC 1252
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11. The issue is no more res integra .
12. It will be relevant to refer to paragraph 33 of the judgment passed by the Constitution Bench of this Court in the case of Sukhpal Singh Khaira (supra), which reads thus:
“ 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 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.
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
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from the main trial?
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. III. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?”
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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.
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to set it down for re-hearing.
13. Indisputably, in the present case, on 21st March 2012, the order of conviction in the case of some of the accused and the order of acquittal in the case of the other accused was passed in the first half of the day. In the second half, the Court first passed an order for sentencing of the persons who
were convicted and only thereafter passed an order under
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Section 319 of Cr.P.C. for summoning the present appellant.
14. The Constitution Bench has clearly held that if such a summoning order is passed, either after the order of acquittal or imposing of sentence in the conviction, the same may not be sustainable.
15. Sitting in a two-judge combination, we are bound by the law laid down by the Constitution Bench of this Court.
16. As a result, the appeal is allowed. The impugned judgment and order dated 25th August 2021 passed by the learned Single Judge of the High Court, so also the order of summoning passed by the learned Trial Judge dated 21st March 2012 in respect of the present appellant under Section 319 of Cr.P.C. are quashed and set aside.
17. Pending application(s), if any, stand(s) disposed of.
….........................J. (B.R. GAVAI)
...............................J. (K.V. VISWANATHAN)
NEW DELHI; SEPTEMBER 06, 2024.
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3 issues framed by the court
Whether a Trial Court can validly exercise power under Section 319 Cr.P.C. to summon an additional accused after recording conviction and order of sentence on the same day.
Whether the impugned summoning order violates the binding precedent laid down by the Constitution Bench in Sukhpal Singh Khaira.
Whether the High Court correctly dismissed the prosecution's challenge to the summoning order by holding no error existed.
Colour shows how this judgement treated each authority
Sukhpal Singh Khaira vs. State of PunjabApplied¶33
(2023) 1 SCC 289 : 2022 INSC 1252 · Who else cites this
2 provisions across 2 enactments
Devendra Kumar Pal
State of U.P
B.R. Gavai
K.V. Viswanathan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
