The 5-Judge Bench of Justices Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V. Nagarathna was hearing the matter. Earlier, Senior Advocate P. S. Patwalia, for the petitioner, had 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 Cr. P. C. 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 Cr. P. C. 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 Thursday is as follows-
Bench: "What would have happened if it was a case of acquittal? The matter would then have ended at acquittal. No further sentencing"
AG: "Then the court would have been functus officio, I had no case"
Bench: "Then there must be one correct, firm position. It can't be that the court does not become functus officio if it is an order of conviction but it becomes functus officio if it is an order of acquittal. Because sentencing is only a consequential order after conviction"
AG: "Please see section 354 (of the Cr. P. C.)- 'judgment will be complete only once the order of sentence is passed'. The only purpose of 319 is that a person deemed to be an accused who is to be tried with others does not remain free. That cannot be defeated by the mere technicality of when it is pronounced. Even after a conviction order has been passed, the court may decide to resort to 311 or 319. You cannot say that it cannot be after that. That would be a travesty of justice. That would be unfair to the complainant and the prosecution"
ASG S. V. Raju, for the Centre and the ED: "A plain reading of section 319- as far as when an application under 319 is to be decided- it does not say that has to be decided during the trial. Only thing it says is that the evidence during the trial is to be considered. Sub-section (4) of 319 was enacted only for the limited purpose of taking cognisance, to overcome the possibilities in 190 of the Cr. P. C. To obviate the issue if you can take cognisance under 319 order, that is why sub-section (4)(b) was added. Assuming that there is a second interpretation possible, which according to me is not, then also the purpose and intent has to be seen. The purpose and intent, if it is looked at, it cannot be said that the application has to be decided during the trial only. The purpose and intention is to do complete justice, justice includes complete justice. So if the purpose is to do complete justice, that you can't do it at a particular stage or you can do it after a particular stage would be irrelevant. The third submission is that, assuming your lordships hold against these two submissions, then in any case, despite the requirement that this order cannot be passed after the trial, if it is passed, then the order is not void, it is only a matter of irregularity. To set aside that order, there must be pleadings..."
ASG: "319 has the following requirements- it should be 'in the course of enquiry or trial', it should involve a person who is not in the trial in which the evidence has surfaced. It does not say that they would be tried together, it indicates only the type of evidence. It is not that any evidence can surface, it should be pertaining to only that type of offence which should be tried together. So the words 'could be tried together' in 319 subsection (1) does not indicate that the offence should be tried together but the nature of the evidence should be such that it could be tried together"
Bench: "That is not the question. The question is at what stage the power can be exercised"
ASG: "The possible contention could be that if the matter is to be tried together with the other accused, it cannot be pronounced after the trial otherwise it will become otiose. If 319 contemplates joint trial and if you pronounce the 319 order after the trial, then the purpose of joint trial is frustrated. But the purpose of 319 is not a joint trial. If the purpose of 319 is not a joint trial, then it doesn't matter if it is before the trial or after the trial. It is only when the purpose of 319 is a joint trial that if you pronounce it after trial will it become bad. Otherwise, if you pronounce it before or after the trial, it makes no difference. What is the need that it should be pronounced before the trial? The only need is that if it is a joint trial, it should be pronounced before the trial. If it is not a joint trial, it does not matter if it is before the trial or after the trial. The section does not contemplate joint trial"
Bench: "Are you saying that if today, judgment is pronounced and sentence is also awarded, tomorrow, an order under 319 can also be there?"
ASG: "Yes, that is my submission"
Bench: "I don't think the AG has gone so far. According to him, it has to be done either before sentencing or simultaneously with sentencing. He says that it cannot be that sentencing is done today and then 319 is passed tomorrow"
There was a discussion about how, as a corollary of this submission, the section 319 order may even come to be passed 1 week later or a month later.
Bench: "If we accept your argument- what is the limitation under Cr. P. C. to take cognisance- then it will go to the limitation period, 1 or three years, we don't know"
ASG: "My endeavour is to see that justice is done. Take a case where a rape is committed on a minor girl by two persons A and B. This girl gives a complaint in writing to the police. B is an influential person. He manages with the police, and the chargesheet is filed only against A. And in the trial, during the evidence, this girl says that the rape was committed by both A and B. In a cross case like this, if no order is passed, the prosecutor doesn't give an application of 319, the judge also doesn't pass an order of 319, the judgment is passed convicting A, trial doesn't take place against B, B goes scot-free. If this interpretation is taken, if the appellate court finds that there should be an application under 319, because the real culprit has been exonerated, the vagina swab says that there are two samples of semen, one matches with B but the other is of an unknown person, so what would happen? Grave injustice would be caused"
Bench: "There maybe the appellate court may set aside the judgment and then 319 application will be there.The High Court may do it under 482, the question is if the trial court can do it after a year. Is 482 available to the trial court?"
ASG: "It is not available"
Bench: "You are pitching it too far"
ASG: "The purpose of 319 is to do complete justice. Even in Hardeep Singh, your lordships have begun by saying that the purpose of 319 is to do complete justice. A person guilty of the offence should not be allowed to go scot-free"
Bench: "If we accept your argument, the court will never become functus officio. The concept of finality of the proceedings will never happen...You know we had that practice that when a death sentence was passed, the pen used to be broken..."
ASG: "Assuming that the order could not have been passed after the trial was over, there are three judgments which say that that order cannot be set aside. They say that if the evidence is of such quality, that it is not of such character which would result in conviction, then 319 order be set aside. But if the evidence is of sterling quality and the order under 319 is passed after the trial is over, then also such an order cannot be struck down unless prejudice is pleaded and proved"
Bench: "We find a problem with Hardeep Singh that it does not define what a judgment is. Hardeep Singh only says that 353 read with 354 becomes judgment"
The bench even asked if the Cr. P. C. has the definition of 'judgment', as in the C. P. C.
Then Senior Advocate P. S. Patwalia, for the appellants, made his rejoinder submissions
Mr. Patwalia: "Even the word 'course of inquiry or trial' in 319 clearly indicates that the power can be exercised only when the enquiry has been initiated and is going on or trial has commenced and is going on (he cited from a judgment)...I am saying sentencing is a part of the judgment. Judgment is in two parts. Even if the conviction is pronounced, 319 cannot be exercised, that is my respectful submission. The first part of a judgment is if he is convicted or acquitted. The second part is when he is sentenced. 353 and 354 read together say this. The moment we come to 353, we get into a different part of the Code. The chapter is 'Judgment'. 353 says 'immediately after the termination of trial or at some subsequent time'- the section is very clear. 'On the termination of trial' means the live trial is over. So when you are seeing the application of 319, 319 can be applied only up to the stage when you have not reached the stage of 353 and 354"
Bench: "According to you, suppose in a given case, if the court starts dictating the judgment in the open court, then they can exercise 319 power only before starting to dictate and not once you have started to dictate?"
Mr. Patwalia: "There may be many varied occasions. He may start dictating in court. In the midst, he finds that this man is also there. Once he records of finding of conviction or acquittal, then he exercise the power of 319, and thereafter the pronouncement of conviction and acquittal"
Bench: "The judgment must contain the specific contents of a judgment, otherwise it cannot be a judgment. 354 says that except as expressly provided, a judgment must specify the offence of which and the section of the IPC or other law under which the accused is convicted and the punishment to which he is sentenced; and if it be a judgment of acquittal, it shall state the offence of which the accused is acquitted. Suppose you say that in the case of conviction, judgment is complete when the sentence is awarded, does it have any effect for trials other than sessions trial?"
Bench: "Under 353, the stage of judgment cannot begin unless there is a termination of trial. We have to identify the stage of termination of trial because that has to be juxtaposed with the word 'course of trial' as found in 319"
Mr. Patwalia: "The moment you have convicted an accused or acquitted him, the person under 319 cannot be tried with the accused. There has to be a live trial. Live trial means before you are convicted or acquitted. And then it is a matter of joint proceedings. Otherwise, where is the joint proceeding happening?"
Bench: "The Court must be in seisin of the trial and the evidence must be live evidence"
Mr. Patwalia: "Yes. The Law Commission report says that the magistrate must have the power to call and join him in the proceedings"
Bench: "Suppose judgment is pronounced, now according to you, it cannot be done after pronouncement of judgment?"
Mr. Patwalia: "353 read with 319 tells us the stage. These two sections together say that it is after termination of trial that the judgment is to be pronounced. 354 says that this judgement is to have two components. The moment the first component of the judgment comes into existence, the judgment is there. It may be an incomplete judgment but it is a judgment all the same. It cannot be that after pronouncing the first part, he can change his mind. Once the judge has acquitted or convicted, he cannot change his mind saying that now I have seen something new and I want to change it into acquittal from conviction or vice versa. All that the trial remains live for him is on the quantum of sentence that he has to award. That does not only have to be on the basis of what is led during trial, there is separate Evidence and that evidence is no evidence for the accused who is joined. So if the judge sits down to dictate judgment and then the sessions judge or magistrate realises that I am adding a party under 319, then he will defer it. He will allow the person to be produced before him"
Bench: "The word used in 319 is 'accused'. The moment the first part of the judgment is pronounced, he becomes a convict. Thereafter, only the quantum issue remains, he cannot be tried..."
The bench also heard the arguments of Mr. Ardhendumauli Kumar Prasad, Additional Advocate General for the State of Uttar Pradesh, Mr. Ashish Dixit, counsel for the intervenor.
