New Delhi, Dec 5 : The Supreme Court on Monday ruled that to summon an additional accused even before the pronouncement of sentence in case of conviction of other accused, the trial court can invoke its extraordinary power under Section 319 of the Code of Criminal Procedure (CrPC).
A five-judge Constitution bench presided over by Justice S.Abdul Nazeer said: “If the court finds from the evidence recorded in the process of trial that any other person is involved, such power to summon the accused under Section 319 of CrPC can be exercised by passing an order to that effect before the sentence is imposed and the judgment is complete in all respects bringing the trial to a conclusion.”
The bench, also comprising Justices B.R.Gavai, A.S.Bopanna, V.Ramasubramanian and B.V.Nagarathna, added, “While arriving at such a conclusion, what is also to be kept in view is the requirement of Sub-section (4) to Section 319 of CrPC.From the said provision, it is clear that if the sessions judge exercises the power to summon the additional accused, and the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused.”
It added that in a case where the sessions judge exercises the power under Section 319 of CrPC after recording the evidence of the witnesses or after pronouncing the judgment of conviction, but before sentence being imposed, the very same evidence which is available on record cannot be used against the newly-added accused in view of Section 273 of CrPC.
The top court passed detailed guidelines for the court to follow in summoning additional accused either suo motu or over an application by the prosecution on the basis of fresh evidence or materials disclosed during the trial.
The bench emphasised that trial in a criminal case is completed only after the sentence is pronounced in case of a conviction, as “a judgment is considered to be complete in all respects only when the sentence is imposed on the convict”.
Justice Bopanna, who wrote the judgment on behalf of the bench, said: “Similarly, in a case where there are more than one accused and if one or more among them are acquitted and the others are convicted, the trial would stand concluded as against the accused who are acquitted and the trial will have to be concluded against the convicted accused with the imposition of sentence.”
The bench said, “What is important is that the decision to summon an additional accused either suo moto by the court or on an application under Section 319 of CrPC shall in all eventuality be considered and disposed of before the judgment of conviction and sentence is pronounced, as otherwise, the trial would get concluded and the court will get divested of the power under Section 319 of CrPC.”
The bench said 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,” it added.
In May 2019, a two-judge bench had referred the matter to a larger bench saying that the question with regard to the actual stage at which the trial is said to have concluded is required to be authoritatively considered since the power under Section 319 of CrPC is extraordinary in nature.
The judgment by a five-judge bench came on this issue and the matter is connected to the decision to summon an additional accused in a drug trafficking case on the date the sentence was pronounced by the trial court.
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