Holding that a trial doesn’t end till an order of sentencing is passed, the Supreme Court has ruled that a court has power under Section 319 of the CrPC to implead new accused after convicting the original accused.
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EVEN after a trial court passes an order of conviction in a criminal case, it has the power to add new accused persons till the time it passes the order on punishment, the Supreme Court ruled on Monday. The judgment is likely to give an impetus to the prosecution to ask for new accused to be added after a court declares its decision on the guilt of the original accused.
Citing its earlier decisions holding that a trial is considered to have concluded when a court pronounces an order of acquittal or a sentencing on the quantum of punishment, and not merely after an order of conviction, a Constitution bench comprising Justices Abdul Nazeer, B.R. Gavai, B.V. Nagarathna, V. Ramasubramanian and A.S. Bopanna held that a court is free to exercise the power under Section 319 till it pronounces the sentencing order.
Section 319 allows a trial court, in the course of enquiry or trial, to implead a person where it appears from the evidence that any person, not being the accused, has committed an offence for which such person could be tried together with the original accused.
The judgment in Sukhpal Khaira versus State of Punjab (2022), authored by Justice Bopanna, has its roots in a case where new persons were impleaded on the same day the court convicted the main accused, raising questions about the stage until which a court is permitted to summon additional accused for trial. In 2019, a three-judge bench of the Supreme Court, led by former Chief Justice of India N.V. Ramana, referred the question of application of Section 319 to a Constitution Bench for further hearing.
Reasoning that a trial court judge continues to apply his mind after it convicts an accused to decide on the quantum of sentence, the Supreme Court stated, “It cannot be said that the trial is complete on the pronouncement of the judgment of conviction alone, though it may be so in the case of acquittal.“
The court relied on its three-bench judgment in Rama Narang versus Ramesh Narang and Others (1995) which held that “the trial comes to an end only after the sentence is awarded to the convicted person.” and Yakub Abdul Razak Memon versus State of Maharashtra (2013) which held that “a conviction order is not a “judgment” as contemplated in Section 353 Cr.P.C. and that a judgment is pronounced only after the award of sentence.”
Guidelines on application of Section 319 CrPC
The Supreme Court has laid down a set of 12 guidelines to be followed by courts while exercising power under Section 319 of the Criminal Procedure Code (‘CrPC’) to summon additional accused.
As per these guidelines, if a trial court finds evidence or receives an application filed under section 319 to summon additional persons, the trial of the main accused must be paused until the court takes the decision on impleading the summoned persons.
The court also clarified that if the summoning order is passed, it is for the trial court to decide whether such summoned persons should be tried with the original accused or separately. If it decides to hold a separate trial for the new accused, the court shall be free to conclude the trial of the original accused. But if the decision is to hold a joint trial, the trial shall be conducted afresh and de novo proceedings are to be held.
In cases where one or more accused are absconding and a trial court is compelled to hold a split-up/ bifurcated trial, the evidence recorded in the main trial cannot be the basis for summoning additional accused during the course of the bifurcated trial, the guidelines stipulate.
Background
The Constitution bench case originates from a first information report (FIR) filed in March 2015 under the Narcotic Drugs and Psychotropic Substances Act, the Arms Act and the Information Technology Act against 11 accused persons. As one of the accused was absconding, the trial proceeded against the remaining 10 persons at the Sessions Court in Fazilka, Punjab.
In September 2017, the prosecution filed an application under section 319 for summoning additional five accused persons, including the main petitioner in the present case, Indian National Congress leader Sukhpal Khaira and two others. In the meanwhile, while hearing a petition for grant of bail by one of the 10 accused, the Punjab and Haryana High Court directed the trial to be completed within three months.
Acting according to the orders of the high court regarding timely conclusion of the proceedings, the trial court convicted all 10 accused on October 31, 2017. On the same day on which the judgment was pronounced, the trial court accepted the application filed under section 319 and ordered the summoning of five additional accused persons, including Khaira, to face trial as additional accused.
Khaira challenged the summoning order at the Punjab and Haryana high court in November 2017; the high court quashed the non-bailable warrants issued against Khaira, but refused to quash the order making him an accused.
In 2019, a three-judge bench of the Supreme Court referred the question on the scope of section 319 to a Constitution Bench. The five-judge bench, after hearing three days of arguments, reserved its judgment on November 17.
Implication of adding accused after conviction
The main petitioner in the case, Sukhpal Khaira, contended that the moment that arguments conclude in a criminal trial and the matter is kept for judgment, the court is divested of its powers under Section 319 and the court, thereafter, becomes functus officio.
An extrapolation of this argument could be that once a trial court discloses its decision on the guilt of an accused and if that decision is to convict an accused, the only consideration left for the court is the quantum of sentence to be imposed. A trial court is typically not inclined to hear pleas about the merits of the case or the possible involvement of other accused at such a late stage of the trial.
It is probable that the Supreme Court’s decision in this case might result in providing an impetus to the prosecution to urge the court to implead additional accused, bolstered by the conviction order against the original accused. This discrepancy has the potential to be exploited by the State in politically sensitive cases.
On the other hand, once an additional accused is summoned by a court after it holds the original accused guilty, the chances that the newly accused might abscond rise in view of the possibility that the summon might end up in conviction.
