This article is written by Gauri Gupta. The article aims to provide a detailed analysis of the landmark judgement of Sukhpal Singh Khaira v. State of Punjab (2022). The article highlights and elaborates on the facts of the case, the issues presented before the Court, arguments of the Appellant and respondent, the laws and precedents laid down in the case, and the judgement put forth by the Supreme Court of India.

This article has been published by Shashwat Kaushik.

Introduction 

There has always been ambiguity regarding the nature and scope of Section 319 of the Criminal Procedure Code, 1973. In light of the same, the judgement of the Supreme Court in the case of Sukhpal Singh Khaira v. State of Punjab (2022) stands as a beacon of clarity. The landmark judgement of Sukhpal Singh v. State of Punjab (2022) was delivered by the five judge bench of the Supreme Court. It elaborates on the scope and application of Section 319 of the Code of Criminal Procedure, 1973. As per the said provision, while the trial is pending, the Courts of law are empowered to summon an additional accused during the proceedings. The same can be done on the basis of certain evidence that is presented before the Court of law while the proceedings are underway.

What is crucial in the judgement is the clarification given by the Supreme Court regarding the stage at which this power can be exercised. The Courts can summon an additional accused only before the judgement or order pertaining to the acquittal or conviction of the accused individuals has been rendered by the Court. 

Furthermore, the judgement is crucial as it elaborates on the guidelines, which provide for different nuances of the provision and provide clarity on the crucial issues that arise when interpreting the provision. 

Details of Sukhpal Singh Khaira v. State of Punjab (2022)

Title of the Case

Sukhpal Singh Khaira v. The State of Punjab

Date of Judgement

5th December, 2022

Parties to the case

Appellant

Sukhpal Singh Khaira

Respondent

State of Punjab

Represented by

Advocates on behalf of Appellant

Sr. Advocate P.S. Patwalia and Puneet Singh Bindra

Amicus Curiae

Sr. Advocate S. Nagamuthu

Advocates on behalf of the Respondents

Advocate General Vinod Ghai

Equivalent citation

Criminal Appeal No. 885 of 2019 with SLP (CRL.) No. 6960/2021, CRL. APPEAL NO. 886/2019 and SLP (CRL.) No. 5933/ 2019

Type of case

Criminal Appeal under Article 136 of the Constitution of India

Court

The Supreme Court of India

Provisions and Statutes Involved

1. Sections 21, 24, 25, 27, 28, 29 and 30 of Narcotic Drugs and Psychotropic Substance Act, 1985
2. Section 25-A of Arms Act, 1959
3. Section 66 of the Information Technology Act, 2000
4. Section 319 of the Code of Criminal Procedure, 1973

Corum

Justice S. Abdul Nazeer, Justice B.R. Gavai, Justice A.S. Bopanna, Justice V. Ramasubramanium, and Justice B.V. Nagarathna

Author of the Judgement 

Justice A.S. Bopanna

Facts of Sukhpal Singh Khaira v. State of Punjab (2022) 

The factual matrix of this case can be summarised in the following points:

1. On March 5th, 2015, a First Information Report was lodged against eleven accused persons for committing the offences under Sections 21, 24, 25, 27, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substance Act, 1985. They were also accused of committing offences under Section 66 of the Information Technology Act, 2000 and Section 25-A of the Arms Act, 1959. 
2. However, as per the charge sheet dated September 6th, 2015, only ten of them were summoned and put to trial before the Sessions Court. The police filed another chargesheet but did not name the Appellant as the accused.
3. Furthermore, the name of the Appellant was not put forth by the witnesses when they were asked so during the trial, which was conducted before the Sessions Judge. 
4. Following these events, the prosecution filed an application under Section 311 of the Criminal Procedure Code of 1973,  wherein he recalled PW 4 and 5. The Court permitted the same. When these witnesses were examined in the Court of law, they named the Appellant, following which the prosecution filed an application under Section 319 of the 1973 Code, by the way of which he made the Appellant an accused in the case.
5. The learned Sessions Judge accepted the application and the Appellant was summoned under the said provision before the learned judge. 
6. The Appellant raised questions regarding the validity of the order passed by the learned Sessions Judge to summon him before the Court. The Appellant disputed the order of the learned judge on the ground that he was summoned after the order in the case had already been passed.
7. The High Court of Punjab and Haryana dismissed the Revision Petition filed by the Appellant which challenged the order passed by the Sessions Judge. Thus, an appeal has been filed before the Supreme Court of India under Article 136 of the Constitution of India.

Issues raised 

The following questions of law were raised before the Supreme Court after the Punjab and Haryana High Court dismissed the revision petition filed by the Appellant and upheld the decision of the Trial Court pertaining to summoning the Appellant as an additional accused in the case. The learned Sessions Judge did so by exercising the power under Section 319 of the 1973 Code.

1. Whether the Sessions Judge/ Trial Court had the power to summon the Appellant as an additional accused under Section 319 of the Code of Criminal Procedure when the trial had concluded and judgement had been rendered?
2. Whether the Sessions Judge is empowered to summon an individual as an additional accused when the trial of the other accused persons who were absconding was pending before the Court when bifurcated from the main trial?
3. What guidelines were laid down by the Supreme Court of India  to be followed by the Courts while exercising their power under Section 319 of the Code of Criminal Procedure, 1973?

Arguments of the parties

Appellant

The learned Senior Counsel, Shri P.S. Patwalia, argued that the order passed by the Trial Court was in violation of Section 319 of the 1973 Code, as the same was passed at a stage when the trial had concluded and the judgement had been rendered by the learned Sessions Judge. 

The counsel relied on the judgement of the Supreme Court of India in the case of Hardeep Singh v. State of Punjab (2014), wherein the Court observed that the power under the said provision has to be exercised before the judgement is pronounced by the learned judges. Further, the Hon’ble Court observed that such a power can be exercised while the trial is pending and the same is consistent with Section 353(1) of the 1973 Code. Section 353(1) provides that after perusing the evidence, the judgement is to be pronounced at the end of the trial. Therefore, the power under Section 319 is mandated to be exercised during the pendency of the trial and once the trial has concluded, the Court does not have the power under the said provision.

The learned counsel summarised his arguments by stating that an accused can be called an additional accused only while the trial is in process. Not abiding by the same is a procedural and substantive violation. 

Respondent  

The learned counsel, Shri S. Nagamuthu, appearing on behalf of the State argued that the purpose of the said provision is to ensure that the wrongdoer does not escape punishment. In order to uphold the objective of the provision, the Courts have the power to summon before itself anyone who is considered to have committed an offence. The same is also applicable when the accused is charged with an offence and his trial is pending before the Court of law.

The counsel further contended that when an application is made under the said provision and the same is decided simultaneously on the same day as and when the trial is concluded, the Court does not become functus officio and is competent to exercise the power granted under the said provision of the 1973 Code in view of Section 354. As per the respondent, Section 354 clearly provides that an order on the quantum of a sentence is an integral part of any judgement and the latter is incomplete without such an order.

Laws discussed in Sukhpal Singh Khaira v. State of Punjab (2022)

Section 319 of the Code of Criminal Procedure, 1973

The said provision provides for additional prosecution. It lays down a mandate wherein the Court can add any such person to a trial with the accused against whom there is a presence of strong evidence. In case there is sufficient evidence against the said individual and the Court of law is satisfied with his involvement, the individual becomes an accused in the case from the date on which the order has been passed by the Court.

The provision also provides that the magistrate has the power to take cognizance and add any such individual against whom there is sufficient evidence at any stage of inquiry or trial.

The essentials of Section 319 of the Code of Criminal Procedure, 1973 are:

1. The trial or inquiry of an offence must be conducted. As per Section 319(1) of the 1973 Code, the Courts can exercise this power only during the pendency of trial or when an inquiry of the offence is pending.
2. Section 319(2) provides that if such an individual is not attending Court, he may be arrested or summoned, depending on the circumstances of the case.
3. In cases where the individual in question is attending the proceedings before the Court, the Court has the power to detain him for inquiry under Section 319(3).
4. Further, Section 319(4) provides that if a Court proceeds against an individual as per sub-section (1), then in that case, the proceedings shall commence afresh and the witnesses shall be re-heard with respect to that person and the case may proceed in a way as if that person had been an accused person when the Court took cognizance of the offence upon which the trial or inquiry has commenced.
5. The Court has to be satisfied beyond question by the evidence presented that the individual has committed the offence.

Section 353(1) of the Code of Criminal Procedure, 1973

Section 353(1) of the 1973 Code provides that the judgement rendered in every Trial Court shall be mandatorily pronounced in an open Court by the presiding officer. The same has to be pronounced after the trial has terminated or at a subsequent time wherein the notice shall be given to the parties.

Precedents discussed in Sukhpal Singh Khaira v. State of Punjab (2022)

Hardeep Singh v. State of Punjab & Ors. (2014)

The Apex Court, in this landmark judgement discussed the issue pertaining to the power that can be exercised under Section 319 of the 1973 Code. The Court discussed its scope, procedure, and the stage at which this power can be exercised.

The Court observed that the provision is derived from the doctrine of judex damnatur cum nocens absolvitur (the judge is condemned when guilty is acquitted) and that the doctrine is useful in elaborating on the ambit of the provision.

The Court stated that it is the duty of the Court and the judges to ensure that justice is done by punishing the criminal. The Court further clarified that the power under Section 319 is only with the Court and the term “Court” has to be understood in the context of Section 6 of the Code of Criminal Procedure, 1973. 

The Court further clarified the term “course” used in Section 319 of the 1973 Code and explained that the power under the said provision can be exercised only during the period of inquiry or the pendency of the trial. The term “course” connotes the continuous progress from one stage to another and does not refer to a fixed point in time. This implies that the power under Section 319 can be exercised only during the pendency of the trial or when the inquiry is being conducted. The same becomes redundant after the trial has been concluded and the judgement has been rendered. 

Shashikant Singh v. Tarkeshwar Singh (2002)

The Hon’ble Division Bench of the Supreme Court in this case observed that the expression “could be tried together” under Section 319 of the 1973 Code implies that the accused who has been added additionally could be tried with the other accused under trial in the said case. It is pertinent to note here that the term “could be tried together” with the accused are directory in nature and not a mandatory provision.

Rajendra Singh v. State of U.P. and Another (2007)

In this case, the Supreme Court of India observed that the intention behind enacting Section 319 of the 1973 Code is to ensure that justice is served in society and that those who are guilty of an offence are punished. In recognition of the same, the Courts have been granted a special power under Section 319. Further, it was held that the Court must be satisfied beyond doubt that there is sufficient evidence that the individual has committed the offence before making him an additional accused in the case.

Manjit Singh v. State of Haryana and Others (2021)

In this case, the Supreme Court observed that the power of the Court under Section 319 of the 1973 Code can be exercised before the judgement and order has been pronounced by the Court. If the accused has been acquitted by the Court, the power should be exercised before the Court passes the order of acquittal. This implies that the summoning order has to precede the conclusion of the trial. 

Judgement in Sukhpal Singh Khaira v. State of Punjab (2022)

The Constitution Bench comprising Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanium, and B.V. Nagarathna, delivered the judgement wherein they observed that a criminal trial is not complete on the pronouncement of judgement but when the convict is sentenced. They further discussed the scope of Section 319 of the Code of Criminal Procedure, 1973 and laid down certain guidelines on the same.

Issue-wise judgement

Whether the Sessions Judge/ Trial Court had the power to summon  the Appellant as an additional accused under Section 319 of the Code of Criminal Procedure when the trial had concluded and rendered the judgement

While dealing with the first issue pertaining to the power of the Trial Court to summon an additional accused under Section 319 of the 1973 Code, the Supreme Court observed that in cases of conviction, the power under the said provision is to be invoked and exercised before the Court pronounces the judgement pertaining to the order. The order relating to the issuing of summons has to precede the conclusion of the trial. In the case of acquittal, the order pertaining to summoning an additional accused to trial has to be pronounced before the order of acquittal. 

Furthermore, it is crucial to point out that if the judgement is rendered by the Court on the same day, it will be assessed on the basis of the facts and circumstances of each and every case. Moreover, if the order that provides for issuing summons to the additional accused is passed before the order of acquittal has been rendered or before imposing a sentence in the case of conviction, the same is not sustainable. 

Whether the Sessions Judge is empowered to summon an individual as an additional accused when the trial of the other accused persons who were absconding was pending before the Court when bifurcated from the main trial? 

While addressing the second issue, the Apex Court held that the Trial/ Sessions Court is empowered to issue summons to an additional accused when the trial has proceeded with respect to the individual who is already an accused and is absconding after securing his presence. The same is subject to the evidence recorded pertaining to the involvement of the accused, who is sought to be summoned as an additional accused. Thus, it is to be noted that the evidence recorded in the main trial, which has been concluded, cannot be the basis for issuing a summoning order. 

What are the guidelines that are to be followed by a competent Court while exercising its power under Section 319 of the Code of Criminal Procedure, 1973

While addressing the third issue, the Apex Court observed certain guidelines that must be followed by the competent Courts while they are exercising their powers under Section 319 of the Criminal Procedure Code, 1973. These are as follows: 

1. If during the trial proceedings, the Court has evidence or an application under Section 319 of the Code is filed with respect to the involvement of an individual committing the offence based on any evidence which is recorded at any stage in the trial before the order on acquittal or the order of sentence has been passed, it shall halt the trial at that said stage.
2. It is the duty of the Court to decide whether there is a need to summon the additional accused and pass the order with respect to the same.
3. If the Court decides to exercise its power under Section 319 of the Code and summon an additional accused, such an order shall be passed before proceeding with the trial in the main case.
4. If the Court orders summons for an additional accused, it is for the Court, depending on the stage of the trial, to adjudicate whether there is a need to try the additional accused separately or with the other accused.
5. In case the Court decides to conduct a joint trial, the same shall commence only after the presence of the summoned accused is assured.
6. If the Court decides to conduct a separate trial for the additional accused, there will be no impediment for the Court to continue and conduct the trial against the other accused whose proceedings were pending.
7. There will be no impediment to pass the order of acquittal in the main case if the proceedings are paused, wherein the accused who is tried to be acquitted and the additional accused are tried separately.
8. The power under Section 319 of the Code can be exercised only if there is enough evidence to show that the additional accused was involved in the offence. 
9. After the arguments have concluded and the case is reserved for judgement and as per the circumstances, the Court has to invoke its power under Section 319 of the Code, the appropriate course of action is to set down the trial for rehearing.
10. In case the Court is set down for rehearing, the above procedure to look into summoning, conducting a joint trial or a separate trial shall be decided and proceeded with as the case may be.
11. In such a case, if the Court decides to summon an additional accused and conduct a joint trial, the same shall be conducted afresh and de novo proceedings shall be conducted.
12. However, if the Court decides to conduct a separate trial:

• “The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against the summoned accused.
• In case an order of acquittal has been passed, the order shall be passed to that effect in the main case and then proceed afresh against the additional accused.”

Analysis of the judgement in Sukhpal Singh Khaira v. State of Punjab (2022)

The judgement by the Constitution Bench of the Supreme Court discusses and elaborates on the application and interpretation of Section 319 of the Code of Criminal Procedure, 1973. The Court laid down certain guidelines that provide clarity on the scope of the provision. 

Section 319 of the Code of Criminal Procedure, 1973, provides for additional prosecution. It lays down a mandate on the Court, which provides that any additional accused can be added to the trial provided there is sufficient evidence regarding his involvement before the Court. The Court is further empowered to take cognizance and add any additional accused to the case at any stage of inquiry or trial. The Court is not barred from conducting the proceedings under Section 319 of the Code, even in case the complaint is dismissed under Section 203 of the Code of Criminal Procedure, 1973.

However, there have been several cases where there have been issues pertaining to the stage at which the Court is empowered to exercise its power under the said provision.

The Supreme Court has provided clarity on the same and has observed that a criminal trial is not complete till the judgement has been pronounced by the Court. The Court emphasised its previous decisions in the landmark judgements that have been discussed before and observed that the words of the provision expressly provide that the powers under Section 319 can be exercised only before the judgement or the order of acquittal or conviction  has been announced by the Court of law. The Supreme Court also referred to its landmark judgement in the case of Hardeep Kaur and observed that the term “course” in the provision provides for the ongoing stages of trial and does not refer to a fixed point of time. 

Conclusion 

The observations laid down by the Supreme Court of India in various landmark judgements as discussed above, along with the case of Sukhpal Singh Khaira v. State of Punjab (2022), provide crucial insights on the scope of the provision. The Supreme Court has time and again clarified its stance on the interpretation of the provision and elaborated that the same can be exercised only during the pendency of trial or before an order pertaining to acquittal or conviction has been pronounced by the Court of law.

Further, the guidelines issued by the Court in this judgement underscore the importance of the judgement. These guidelines clarify the nuances of the legal provision and lay down the crucial principles that are to be followed in case the provision is to be exercised. 

Frequently Asked Questions (FAQs)

What is the difference between sentencing and conviction?

The terms ‘sentencing’ and ‘conviction’ are often used interchangeably. However, the terms have different meanings altogether. The term “sentencing” refers to the formal declaration of a punishment that is rendered by the Court after the accused has been found guilty beyond reasonable doubt. On the other hand, the term “conviction” refers to the outcome of a trial. It is the act that provides for declaring the guilt of the accused. 

When and how can the power under Section 319 of the Code of Criminal Procedure, 1973, be exercised?

There are certain essential ingredients laid down under sub-section 1 of Section 319 of the Code of Criminal Procedure, 1973, that provide for when and how the Courts can exercise such powers. These ingredients are:

• There is an pending trial or inquiry.
• The evidence is sufficient to show that a person who has not been added as an accused to the same trial has committed the offence.

These two essentials are to be proved before the Courts can exercise their power under the said provision.

Who is entrusted with the power under Section 319 of the Criminal Procedure Code, 1973? 

The power under the said provision can be exercised by the Court either suo moto or on the basis of an application made by someone who is inducing an additional accused to the case. 

Is the Court empowered to exercise its power after the conclusion of trial under Section 319 of the Criminal Procedure Code of 1973?

In the case of Samartha Ram v. State of Rajasthan (2002), the Court observed that the powers under Section 319 of the Code cannot be exercised after the judgement has been rendered by the Court, which marks the conclusion of the trial. The same was referred to a five judge constitutional bench in the present case and the Court re-emphasised the same.

References

1. https://www.latestlaws.com/case-analysis/sc-if-the-summoning-order-is-passed-after-the-conclusion-of-the-trial-the-same-will-not-be-sustainable-read-judgment-192888
2. https://www.scconline.com/blog/post/2022/12/07/section319-power-stage-to-exercise-before-order-of-sentence-acquittal-conviction-guidelines-supreme-Court-legal-research-updates-criminal-law-trial-news/
3. https://ljrfvoice.com/sukhpal-singh-khaira-vs-the-state-of-punjab-on-5-december-2022/
4. https://mpsja.mphc.gov.in/Joti/pdf/LU/Sukhpal_Singh_Khaira_vs_The_State_Of_Punjab_on_5_December_2022.PDF
5. https://www.livelaw.in/top-stories/section-319-crpc-12-guidelines-issued-by-supreme-Courts-constitution-bench-to-summon-additional-accused-during-trial-215873?infinitescroll=1 
6. https://www.tnsja.tn.gov.in/article/ca_powes.pdf