The Supreme Court has referred to larger 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.
The bench comprising Justice NV Ramana and Justice Mohan M. Shantanagoudar referred to larger bench the following questions.
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? 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? What are the guidelines that the competent court must follow while exercising power under Section 319 Cr.P.C?
In Sukhpal Singh Khaira vs. State of Punjab, while the trial was going on against ten accused in an NDPS case, the prosecution filed an application for summoning additional five accused on the basis of statement made by some prosecution witnesses. The Sessions Court first pronounced the judgment convicting the nine other accused put on trial and thereafter allowed the prosecution application under Section 319 CrPC. The Punjab and Haryana High Court dismissed the challenge against this summoning order.
Before the Apex Court, the judgment was assailed on ground that this summoning order passed after the order of conviction is in clear breach of the principles laid down in the Hardeep Singh Case. It was contended that the moment the trial is concluded and the matter is reserved for judgment, then the stage for exercising power under Section 319 CrPC, ends and the court becomes functus officio.
The bench noted that the two judge bench in Hardeep Singh had referred this question to larger bench: When the power under sub-section (1) of Section 319 of the Code of Criminal Procedure, 1973 of addition of the accused can be exercised by a court? Whether application under Section 319 of the Code is not maintainable unless the cross-examination of the witness is complete? But the questions were reformulated by the larger Bench to this: What is the stage at which power Under Section 319 of the Code of Criminal Procedure, 1973 can be exercised?. The bench said:
"We note that the difference of formulation in the reference questions and the final order of the Constitution Bench with respect to the Question no. 1, makes a difference with regard to the present case. It is precisely the gap, between the restricted reformulation of the 'Question no. 1' by the Constitution Bench and the 'Question no. 1' in the reference order of the Hardeep Singh Case, which these unique facts fit into. The earlier 'Question no.1' in the reference Order was broader in comparison to the 'Reformulated Question no. 1' by the Constitution Bench. It is this marginal area which is a sub¬silentio, that needs to be referred to a larger Bench again"
While referring the above questions to larger bench, the court said:
"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."