Supreme Court of India
Devendra Kumar Pal vs State Of U.P on 6 September, 2024
Author: B.R. Gavai
Bench: B.R. Gavai
2024 INSC 679 NON-REPORTABLE
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)
JUDGMENT
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
3. The facts of the present case are not disputed.
Digitally signed by
Deepak Singh
Date: 2024.09.11
16:40:05 IST
Reason:
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.
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(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?”
(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
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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.
(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 for the Court to
continue and conclude 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 be no
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
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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
additional accused and hold a joint
trial the trial shall be conducted
afresh and de novo proceedings be
held.
(xii) If, in that circumstance, the decision
is to hold a separate trial in case of
the summoned accused as indicated
earlier;
(a) The main case may be decided
by pronouncing the conviction
and sentence and then proceed
afresh against summoned
accused.
(b) In the case of acquittal the order
shall be passed to that effect in
the main case and then proceed
afresh against summoned
accused.”
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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