In A Case Of Both Conviction & Acquittal, Order Under Section 319 Cr.P.C. Has To Be Passed Before Order Of Acquittal: Madhya Pradesh HC

The single bench of Justice Prem Narayan Singh noted that at the time of passing impugned judgment, the trial Court convicted and acquitted the accused persons.

As per the Counsel for the Petitioner Advocate Himanshu Thakur, the petitioners were made accused at an early stage, however, the prosecution has filed the final report under Section 173(8) of Cr.P.C. to the effect that they have no role in the crime.

According to him, petitioners have been foisted as accused only on the grounds of suspicion, therefore, the order of the trial Court regarding taking cognizance against the petitioners under Section 319 of Cr.P.C be set aside.

Petitioner further argued that trial Court has not passed the impugned order as per the guidelines laid down by Apex Court in Sukhpal Singh Khaira vs. State of Punjab (2023) 1 SCC 289, also as per the Petitioner, order of summoning the petitioners as accused should be passed before pronouncement of the order of acquittal in such type of cases where the order of acquittal and conviction both are recorded.

The bench while looking into the question of whether the trial Court has correctly used the power of summoning the additional accused on the date of judgement or not, mentioned the principle for trying together with the other accused under Section 319 as, “In the course of any enquiry or trial of an offence, if it appears to the Court from the evidence that any person, not being the accused of the case, has committed any offence for which, such person can be tried together with the accused persons, the Court may proceed against such person in the offence which he appears to have committed and if such person is not attending the Court, he may be summoned or arrested.”

The High Court went on to quote from Sukhpal Singh case, which was relied by the trial Court for passing order under Section 319, “The power under Section 319 is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of the acquittal or imposing sentence in the case of conviction, the same will not be sustainable.”

The Madhya Pradesh High Court noted that the present case is of joint result i.e. of conviction and acquittal as 7 of the accused have been acquitted and the remaining two have been convicted. Hence, as per the Court, the trial Court should pass the order under Section 319 of Cr.P.C. before passing the order of acquittal.

According to the Court, since, the trial Court has passed the impugned order under Section 319 of Cr.P.C. against the petitioners after acquitting the accused persons rather than preceding their acquittal, the order passed by the trial Court cannot be said to be by the settled law laid down by Hon'ble Apex Court in the case of Sukhpal Singh (supra).

The Court while looking into the question of whether a person can be impeded as accused only based on suspicion mentioned the judgment of Apex Court in the case of Brindaban das & others vs. State of West Benga: (2009) 3 SCC 329 wherein it was observed, “In matters relating to invocation of powers under Section 319, the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned.”

Therefore, while emphasizing that no specific or cogent reasons have been assigned by the trial Court as to how the petitioners are involved in the said offence it allowed the Criminal Revision.

The High Court finally held the summons under Section 319 as unsustainable.