Summoning Order U/s 319 CrPC Passed After Order Of Acquittal Or Imposing Of Sentence In Conviction Is Illegal: Supreme Court

The Court referred to the decision of the Constitution Bench in Sukhpal Singh Khaira v. State of Punjab, wherein it was held that the power under Section 319 of the CrPC 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. That is, the summoning order has to precede the conclusion of the trial by the imposition of a sentence in the case of conviction.

A Bench of Justice B.R. Gavai and Justice K.V. Viswanathan observed, “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…Sitting in a two-judge combination, we are bound by the law laid down by the Constitution Bench of this Court.”

AOR Puneet Singh Bindra represented the appellant, while AOR Vishnu Shankar Jain appeared for the respondents.

The accused challenged the order of the Allahabad High Court which upheld the summoning order passed by the trial court. After the conclusion of a trial under Section 302 of the IPC, the trial court convicted some of the accused and acquitted the others.

The trial court had passed an order summoning the appellant as an accused for trial under Section 302 of the IPC by invoking powers under Section 319 of the CrPC.

The Supreme Court noted that 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 the Cr.P.C. for summoning the appellant.

The Court reiterated that a trial court had the power to summon additional accused when the trial proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. “But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion,” the Bench remarked.

Consequently, the Court held, “The impugned judgment and order dated 25th August 2021 passed by the learned Single Judge of the High Court, so also the order of summoning passed by the learned Trial Judge dated 21st March 2012 in respect of the present appellant under Section 319 of Cr.P.C. are quashed and set aside.”

Accordingly, the Supreme Court allowed the appeal.

Cause Title: Devendra Kumar Pal v. State Of U.P. & Anr. (Neutral Citation: 2024 INSC 679)

Appearance:

Appellant: AOR Puneet Singh Bindra; Advocates Charu M., Sachin Sharma, Rishabh Gupta and Subham

Respondents: AOR Vishnu Shankar Jain; Advocate Mani Munjal and Manbiang K

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