New Delhi: The Supreme Court has said that a person cannot be summoned as an accused in a criminal case after the court had pronounced the sentence in relation with other accused and also acquitted some others in the matter.
A bench of Justices B R Gavai and K Vishwanathan delivered the judgment on an appeal by one Devendra Kumar Pal.
In the present matter, the trial court conducted the trial in connection with the offence punishable under Section 302 of the IPC. After the conclusion of the trial, the trial judge convicted some of the accused and acquitted the others. The trial judge was also of the opinion that the present appellant was also required to be tried.
On March 21, 2012, the trial judge in the first half recorded the order of conviction in respect of the accused whom it had found to be guilty and also recorded the order of acquittal for the remaining accused, it found to be not guilty. Post lunch, the trial judge recorded the order of sentence insofar as the accused who were convicted. Thereafter, the trial Judge had passed an order summoning the Pal for trial by invoking powers under Section 319 of the Code of Criminal Procedure, 1973.
Pal moved the apex court challenging the judgment and order dated August 25, 2021 passed by the single judge of the High Court of Judicature at Allahabad, vide which the petition filed by him challenging the order passed by the additional sessions judge on March 21, 2012, was dismissed.
The apex court allowed the appeal by Pal and set aside the high court judgment and also quashed the order summoning him under Section 319 CrPC.
During the hearing, Pal’s counsel argued that in the case of Sukhpal Singh Khaira vs. State of Punjab (2023), the matter was referred to the constitution bench for deciding the question as to “whether the trial court had power under Section 319 of Cr.P.C. for summoning an additional accused when the trial with respect to other co-accused has ended and the judgment of conviction and sentence was rendered before summoning the additional accused”. Relying on the same, he submitted that, since in the present case also, first the order of conviction and sentence was recorded and only thereafter an order under Section 319 of CrPC was passed, the same would not be sustainable in law.
The state government counsel argued that in the present case, the order of sentence and the order under Section 319 of CrPC are passed by the trial judge in the same breath and, therefore, no error could be found with the same.
The apex court said in the present case, on 21 March 2012, the order of conviction in the case of some of the accused and the order of acquittal in the case of the other accused was passed in the first half of the day. “In the second half, the court first passed an order for sentencing of the persons who were convicted and only thereafter passed an order under Section 319 of Cr.P.C. for summoning the present appellant”, said the bench.
“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”, said the apex court, in a judgment delivered on September 6.
The bench said that sitting in a two-judge combination, it is bound by the law laid down by the constitution bench of the apex court.
“As a result, the appeal is allowed. The impugned judgment and order dated 25th August 2021 passed by the single judge of the high court, so also the order of summoning passed by the trial judge dated 21st March 2012 in respect of the present appellant under Section 319 of Cr.P.C. are quashed and set aside”, said the apex court disposing of the matter.
