The Supreme Court on Wednesday continued the hearing on whether Section 319 of the Cr. P. C. can be invoked after judgment is reserved.
The 5-Judge Bench of Justices Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V. Nagarathna is hearing the matter. Earlier, Senior Advocate Paramjit Singh , for the petitioner, submitted that in his opinion his case is covered by the judgment of the Apex Court in Hardeep Singh v. state of Punjab which sets out circumstances under which power under Section 319 Cr. P. C. can be exercised. SG Tushar Mehta submitted that interpretation of the same would be required. Mr. Patwalia apprised the Bench that an application has been filed by the Union Government to intervene in the matter, which he would be opposing, because the parties are only the accused and the Punjab government. He requested the application may not be allowed before giving him an opportunity to file a reply. It was also pointed out that a PMLA proceeding has been initiated against the accused and now the Centre in a roundabout manner trying to protect their PMLA proceedings. The SG argued that the present proceeding does not pertain to the facts of the case and only deals with the law and is examining a central statute the intervention of the Union Government would be necessary.
On 05.03.2015, an FIR was lodged against 11 accused persons for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, Arms Act and Information Technology Act, 2000. Under the first charge sheet, initially, ten accused were summoned and trial was going on. A second chargesheet was filed which did not name the said accused. Later, some prosecution witnesses were recalled and the accused were named. The prosecution filed an application under Section 319 CrPC in the first case summoning the accused. The Trial Court first pronounced the judgment convicting the nine other accused put on trial and thereafter allowed the prosecution application under Section 319 CrPC. The same was challenged before the Pujab and Haryana High Court. The order of the Trial Court was upheld by the High Court. While hearing the appeal, the Apex Court had referred to a Constitution Bench, three questions on the scope and ambit of power under Section 319 of the Criminal Procedure Code which remains unanswered even after the judgment of the Constitution Bench in Hardeep Singh v. State of Punjab:
1. 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?
2. 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?
3. What are the guidelines that the competent court must follow while exercising power under Section 319 Cr.P.C?
While referring the three questions to a larger bench, the Division Bench of the Apex Court had noted -
"However, we are of the considered opinion that, power under Section 319, Cr.P.C being extraordinary in nature, the trial courts should be cautious while summoning accused to avoid complexities and to ensure fair trial. We must remind ourselves that timely disposal of the matters furthers the interest of justice
The court-room exchange as it transpired on Wednesday is as follows-
Bench: "Let us assume that in a case, trial is complete and the matter is posted for judgment. There is the power of the court to find out if somebody (an accused) has been left out deliberately. While assessing evidence, if the judge finds somebody should have been (arraigned as an accused), at that stage, he does not pronounce the judgment and he says that the matter be put up for further hearing. At that stage, can it (passing an order under section 319) be done?"
Senior Advocate P. S. Patwalia, for the appellants: "There was a hiatus between posting the matter for judgment and pronouncing the judgment. When a judge is working through the judgment and he finds that this man is the main person who should be there. Then, according to me, he would post it for further hearing and then he would pass an order under 319 and thereafter, proceed accordingly"
Bench: "The language employed in 353 (of the Cr. P. C.) is that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after termination of the trial. Suppose immediately he pronounces...?"
Mr. Patwalia: "Then we are in my situation. Then he cannot do it, according to me"
Bench: "Now does it make any difference if he immediately pronounces or pronounces on a future date? Once the hearing is complete and once it is posted for judgement, the only thing he can do is that he has to pass a judgment this way or that way, on the same day or on a future date after resolving the matter"
Mr. Patwalia: "My submission is that if he passes the judgment, the crucial point is when he passes the judgment, because trial is over when he fixes it for judgment. We are in a situation where the trial is over but there is no judgment. The court is still in seisin of the sessions case, it is not functus officio. At that point of time, he has two options- if you have not pronounced judgment on the same day on which he has closed the trial, then you can repost the trial for hearing and then he can pass an order under 319 or he can pass a judgment. But in my respectful submission, the moment he passes the judgment, he in any case becomes functus officio, then he cannot pass 319"
Senior Advocate S. Nagamuthu, Amicus Curiae: "Trial comes to end only upon sentence or acquittal. At any stage before judgment is pronounced, a 319 application can be filed. In C. P. C., there is a provision to reopen the case when it is reserved for judgement. In Cr. P. C., no such provision is needed. The question is only whether to allow the 319 application or not, but that is on merits. But there is no question of reopening"
Bench: "After judgement is reserved, after going through the materials, the magistrate may feel that he wants to summon somebody, so you take recourse to 311 (of the Cr. P. C.)?"
Mr. Nagamuthu: "Yes, there is an obligation on his part to summon. It is necessary"
Bench: "At that stage, he can issue 319 also?"
Mr. Nagamuthu: "Yes, based on the evidence. Trial gets finished only on judgment- either sentence is passed or there is acquittal, until then 319 can be taken recourse to"
Bench: "Let us assume there is an absconding accused. In that case, under 319, the material in the concluded case would not apply?"
Mr. Nagamuthu: "If the accused was not present in the first case, the evidence recorded in that case is no evidence in the other case because the evidence is not recorded in his presence. There can be no reliance on evidence recorded in any other case"
Bench: "Take a case- before the judgment is pronounced, a 319 application is made either suo motu or on the instance of somebody. Now the trial is complete. What should the magistrate do?"
Mr. Nagamuthu: "If 319 he has allowed, on allowing that, he has to pass that order to try that person alone"
Bench: "Can he pronounce the other judgment in the meantime?"
Mr. Nagamuthu: "Yes, there is no bar"
Bench: "Suppose application is allowed before pronouncement of judgment. Then he has the discretion to scratch all evidence and try all accused together or you can independently try?"
Mr. Nagamuthu: "He has that discretion. But that option is not for the accused, only for the court. The accused cannot demand that I should be tried here or there"
Bench: "Once an order under 319 is passed, if the court does not find that a joinder of trial is necessary, only then judgment can be pronounced, not otherwise? Suppose before the pronouncement of judgment, a 319 application is filed, once it is filed you cannot pronounce the judgment, you have to decide the application? Let us assume the application is allowed. Then the court will have to make a decision whether a joint trial will take place or an individual one will take place. Now supposing the court comes to a conclusion that a joint trial is necessary. Then whatever has happened to the other accused, let us call them the main accused, all that evidence has to be scrapped? Because joint trial means a fresh trial including all the accused?"
Mr. Nagamuthu: "All that evidence has become useless now except for one purpose, that is to contradict"
Bench: "If the court comes to the conclusion that joint trial not necessary, then the judgment can be pronounced and then the court would proceed independently against the other accused?"
Mr. Nagamuthu: "Then the judgement can be pronounced based on evidence already recorded. For the new trial, all the hundred witnesses have to be examined again and fresh evidence is to be recorded in the presence of the accused. Say, one eyewitness who was examined there is the sole eyewitness in the second case. Now when the second case comes, he dies, though he was cross-examined in the first case, that evidence cannot be used here'
Bench: "So once 319 has been allowed, all hundred witnesses will be re-examined, but they will be examined afresh only in so far as the role relating to the 319 accused is concerned and not in relation to the other accused. Therefore, the evidence recorded earlier and the evidence recorded later is like recalling. It is the same as if 311 had been allowed. Once you say that the moment a 319 order is passed, the whole thing is thrown open even for the other accused, that will be a very abhorring proposition because then no trial can take place...If hundred witnesses have been examined and they have spoken against me, that is why I have been summoned under 319. Now that evidence is not applicable against me because those witnesses have to be re-examined in my trial. It is not evidence against you because they were not examined in your presence. So there will be a separate trial for you. But not everything against the rest of the accused can be washed away and the whole thing cannot be thrown open"
The bench then heard the Advocate General for the state of Punjab, Senior Advocate Vinod Ghai
Bench: "Once the conviction order is passed- sentence is a different aspect- trial comes to an end. Now the language employed in 319(1) is 'in the course of enquiry, trial'. Therefore, what is the law- 'in the course of the enquiry or trial'. Trial comes to an end the moment judgment is passed, and not sentence. How do you react to this?"
Advocate General: "The pronouncement of judgement will be with the passing of sentence, not the passing of conviction order, because the court is not functus officio yet. The court has still to apply its mind. The trial does not conclude, it does not come to an end till the sentence. Even after passing the judgment, the court still has to apply its mind, he has the Sessions file, he has to issue the sentence. He may issue the summoning order after that and then sentence. Only after sentence is pronounced that the trial comes to an end"
Bench: "Once both sides have been heard and the evidence is completed, normally the trial would come to an end. Tell us on the facts of the instant case- here, judgment is pronounced. Thereafter, 319 application is allowed"
Advocate General: "The order says he is convicted, not convicted and sentenced.
In the conviction order, they are on bail. In the sentence order, they are in custody. How can they be the same order? They are taken into custody, they are heard on sentence and then sentenced. It cannot be said that both the orders were passed at the same time, the order of sentence is always attached to the order of conviction. it is never at the same time. Usually conviction judgment is before lunch and sentencing is after lunch. It is so in 99% of the cases"
Bench: "The last sentence of the judgment is that now they will hear them on the sentence. And in the meantime, there was 319?"
Advocate General: "Yes"
Bench: "So how do you reconcile section 353 (Cr. P. C.) with 319?"
The AG will respond on Thursday.