SUKHPAL SINGH KHAIRA VS THE STATE OF PUNJAB : CASE SUMMARY

The Supreme Court in Sukhpal Singh Khaira Vs the State of Punjab (Criminal Appeal No. 885 /2019 ) held that if the Court finds during trial that any other person is involved in commission of offence,  power to summon such person as  accused under Section 319  CrPC can be exercised by passing an order to that effect before sentence is imposed and the judgment is complete in all respects

FACTS OF THE CASE

FIR was lodged in the police station, Sadar Jalalabad against 11 accused persons under Section 21, 24, 25, 27, 28, 20 and 30 of Narcotic Drugs and Psychotropic Substance Act, 1985, Section 25A of Arms Act and Section 66 of IT Act. In Charge Sheet dated 06.09.2015, 10 accused persons were summoned and put to trial in Sessions Case No. 289 of 2015. In the second charge sheet also the appellant was not named. During trial, on the basis of examination of several accused persons, the five accused persons including the accused were summoned.  Judgment was delivered in Sessions Case No. 289 of 2015 and on the same date Application under Section 319 Cr. PC was allowed and the appellant was summoned. The Revision was filed before the High Court which was dismissed. The matter reached to the Supreme Court and was referred to the Constitution Bench.

Following questions of laws were framed by the Supreme Court:

(i) Whether the trial court has the power under Section 319 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  ?

(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 CrPC ?

FINDINGS OF THE SUPREME COURT

The Supreme Court observed that the power bestowed on the Court to the effect that in course of an inquiry into or trial of an offence, based on the evidence tendered before the Court, if it appears to the Court that such evidence points to any person other than the accused who are being tried before the Court to have committed any offence and such accused has been excluded in the charge sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused.

The Supreme Court observed that Criminal Trial concludes only with passing of the sentence.  In cases where some accused are acquitted and some are convicted, the trial will be concluded for acquitted persons from date of acquittal but for those convicted trial will be concluded on the date of passing of sentence. If the Court find during 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 sentence is imposed and the judgment is complete in all respects. If Sessions Judge exercises power to summon the additional accused, 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. In a case where power under Section 319 CrPC after recording of 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 Supreme Court also held that the Trial Court has the power to summon additional accused when the Trial is proceeded in respect of the absconding accused atter securing his presence, subject to the evidence recorded in the split up 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.

_______________________________________________________________________