S.319 CrPC | Order To Summon Additional Accused Passed After Acquittal/Conviction Of Co-Accused Is Unsustainable: Supreme Court

The Supreme Court recently quashed an order under Section 319 of the CrPC summoning a man for a murder trial after the trial of the original accused persons had already concluded.

Section 319 of the CrPC grants the trial court the power to summon any person, not being an accused, to face trial if it appears from the evidence collected during the trial that such a person is also involved in the offence.

A bench of Justice BR Gavai and Justice KV Viswanathan set aside Allahabad High Court judgment upholding the summoning order observing that the summoning of the appellant was not in accordance with the law laid down by a Constitution Bench in Sukhpal Singh Khaira v. State of Punjab.

“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”, the Court observed.

In the present case, the Additional Sessions Judge convicted some of the accused under Section 302 of the IPC and acquitted others on March 21, 2012. The Trial Court passed the conviction orders for the accused found guilty and acquitted the remaining accused. After recording the sentence for the convicted accused on the same day, the Trial Court invoked Section 319 of the CrPC, summoning the appellant to stand trial for the offence.

This order was upheld by the Allahabad HC. Thus, the appellant approached the Supreme Court

Advocate Puneet Singh Bindra for the appellant argued that the summoning of the appellant after the conclusion of the trial with respect to the other accused was not legally sustainable. He relied on the judgment in Sukhpal Singh Khaira v. State of Punjab and contended that since the order of conviction and sentence had already been passed, the invocation of Section 319 was not valid.

Advocate Vishnu Shankar Jain for the State argued that the summoning order was issued on the same date as the order of conviction and sentence. He submitted that the summoning order was passed in the same breath as the order of sentence, making it legally sustainable.

The Supreme Court Constitution Bench decision in Sukhpal Singh Khaira v. State of Punjab, addressed the issue of whether a trial court has the power under Section 319 of the CrPC to summon additional accused after the conclusion of the trial with respect to other accused.

According to the judgment, the power under Section 319 of the CrPC must be invoked before the pronouncement of the sentence in cases of conviction. If an order of acquittal is involved, the power must be exercised before the pronouncement of acquittal.

The Constitution Bench provided guidelines for cases where the summoning order and the judgment of conviction are passed on the same day, stating that the facts and circumstances of each case would need to be examined.

The Supreme Court in the present appeal observed that the trial court, on March 21, 2012, had first passed the conviction and acquittal orders in the first half of the day, followed by the sentencing order in the second half. Only after pronouncing the sentence did the trial court issue the summoning order under Section 319 of the CrPC to summon the appellant.

In light of the Sukhpal Singh Khaira decision, the Court held that since the summoning order was passed after the imposition of the sentence, it was not sustainable.

Therefore, the Court allowed the appeal and set aside the judgment of the Allahabad HC and the order of the Additional Sessions Judge summoning the appellant.

Case no. – SLP(Crl.) No. 6960 of 2021

Case Title – Devendra Kumar Pal v. State of UP and Anr.

Citation : 2024 LiveLaw (SC) 687