Page 1 of 45 REPORTABLE IN THE SUPREME COURT OF INDIA C RIMINAL APPELLATE JURISDICTION C RIMINAL APPEAL NO. 885 OF 20 19 Sukhpal Singh Khaira .…Appellant(s) Versus The State of Punjab …. R espondent (s) WITH SLP (C RL. ) No. 6960/2021, C RL . A PPEAL No.886/2019 & SLP (C RL. ) No. 5933/2019 J U D G M E N T A. S . Bopanna, J. 1. In the above appeal , the order dated 17.11.2017 passed by the High Court of Punjab and Haryana in Criminal Revision No.4070 of 2017 and Criminal Revision No.4113 of 2017 are assailed. Through the said order , the High Court has dismissed the Criminal Revision Petitions and uph eld the order dated 31.10.2017 passed by the Trial Page 2 of 45 Court summoning the appellant as an additional accused by exercising the power under Section 319 of the Criminal Procedure Code, 1973 (‘CrPC’ for short) . For the purpose of narration of facts the case in Criminal Appeal No.885 of 2019 is noted. 2. The position which led to the appellant being summoned is that on 05.03.2015 a First Information R eport was lodged in the Police Station Sadar, Jala labad against 11 accused for the offence under Sections 21, 24, 25, 27, 28, 29 and 30 of Narcotic Drugs and Psychotropic Substance Act, 1985 (‘NDPS’ for short), Section 25 -A of Arms Act and Section 66 of the Information Technology Act, 2000 (‘IT Act’ for short). In the charge sheet dated 06.0 9.2015 , 10 accused were sum moned and put to trial in Sessions Case No. 289 of 2015. Though the second charge sheet was filed by the police , the same did not name the appellant here in as an accused. 3. In the trial conducted before the learned Sessions Judge also , initially the name of the appellant was not mentioned by the witnesses . Aft er the initial recording of Page 3 of 45 evidence , the prosecution filed an application dated 31.07.2017 under Section 311 of CrPC for recalling PW -4 and PW -5, which was allowed. In the further examination of the said recalled witnesses, they named the appellant herein. The prosecution thereafter filed an application on 21.09.2017 invoking Section 319 of CrPC in the said Sessions Case No.289 of 2015 for summoning additional 5 accus ed , including the appellant herein. The summoning of additional accused was sought based on the evidence tendered by PW -4, PW -5 and PW -13. 4. It is to be noted that out of the 11 accuse d, the proceeding s in Sessions Case No.289 of 2015 were against the 10 accused and since one of the accused was not available , the case in that regard was split up (bifurcated) and was subsequently numbered as S essions C ase No. 217 of 2019 on 03.09.2019. In that background , it is seen that as on the date when the application under Section 319 CrPC was filed on 21.09.20 17, the only proceeding pending was Sessions Case No. 289 o f 2015. In that regard, in respect of the proceedings against the 10 accu sed , the Page 4 of 45 learned Sessions Judge pronounced the judgment on 31.10.2017 whereby one of the accused was acquitted, while the remaining 9 accused were convicted and sentence was imposed on 31.10.2017 . The learned Sessions Judge , also allowed the application filed under Section 319 of CrPC on the same day i.e., 31.10.2017 and summoned the appellant to face trial. It is in that backdrop the appellant as sailed the order dated 31.10.2017 summoni ng him to face trial, since according to him su ch order is not sustainable in law as the same was not passed in a proceeding pending before the learned Sessions Court as at the stage when the power to summon was exercised by learned Session s Judge , the judgment of conviction and sentence had already been passed earlier on 31.10.2017 . The said order assailed in Revision Petition No.4070 and 4113 of 2017 was dismissed by the High Court , wh ich has led to the present proceedings. 5. The instant petition was heard before a bench consisting of two Hon’ble Judges of this Court on 10.05.2019 wherein , in the course of assailing the Page 5 of 45 summoning order, the decisions of this Court in the case of Shash ikant Singh vs. Tarkeshwar Singh (2002) 5 SCC 738 and the decisio n in the case of Hardeep Singh vs. State of Punjab (2014) 3 SCC 92 rendered in the context of the power exercisable under Section 319 of CrPC were no ted . In t hat context , the Bench of two Hon’ble Judge s of this Court was of the opinion that the question with regard to the actual stage at which the trial is said to have concluded is required to be authoritatively considered since the power under Section 319 of CrPC is extraordinary in nature. 6. In that view, the following su bstantial question s of law were raised for further consideration and the matters were placed before Hon’ble the Chief Justice of India for constitution of a B ench of appropriate strength to consider the questions raised. Hon’ble the Chief Justice has accor dingly constituted this B ench to consider the questions raised, which read as hereunder: - “I. 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 t he judgment of conviction Page 6 of 45 rendered on the same date before pronouncing the summoning order? II. 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 accus ed (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial? III. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?” 7. In order to answer the above questions, we have heard Shri P.S. Patwalia, learned senior counsel for the appellant and also Shri Puneet Singh Bindra, learned counsel who appeared on behalf of the appellant in the tagged matter . S hri S. Nagamuthu , learned s enior counsel has assisted this Court as Amicus Curiae. Shri Vinod Ghai, Advocate General appeared for the State of Punjab while Shri A.K . Prasad, learned Additional Advocate General appear ed for the State of U.P. Shri S.V. Raju, Additional Solicitor General has appeared for the Union of India since a case is said to have also been registered against the appellant under the Prevention of Money Laundering Act , 2002 . We have also heard Shri Ashish Dixit, learned Page 7 of 45 counsel who appeared for the Intervener -Prosecutors Association. 8. The gist of the contention put forth by Shri P.S. Patwalia, learned Senior Counsel is as hereunder: - Order summoning a pe rson ( appellant herein) as an accused under Section 319 of CrPC was passed at a stage when the trial had already concluded and even judgment and order on sentence had been pronounced. It is contended that the said order is, therefor e i n violation of Sec tion 319 of CrPC a nd Hardeep Singh (supra) , wherein in Para 47 it was held that power has to be exercised before pronouncement of judgmen t. It can only be exercised during the pendency of the trial, which is a stage anterior to the date of pronouncement of judgme nt. In fact this is also consistent with Sec tion 353(1) of CrPC, wh ich states that after perusal of the evidence , t he judgment is to be pronounced after termination of trial, and therefore, Sec tion 31 9 of CrPC mandates that the power can be exercised only during trial and it follows that once trial is Page 8 of 45 concluded and judgment is pronounced, the Court cannot exercise power under Section 319 of CrPC at that stage. Contending that it can be simultaneous is also equally violative of Sec tion 31 9 of CrPC and the law laid down is clear that it has to be done before judgment. In a nutshell, if an accused is to be su mmoned, it has to be done when the trial is alive. The moment trial is concluded and the matter is kept for judg ment, then the stage for exercising power under Section 319 of CrPC goes and the Court thereafter becomes functus of ficio . When the trial is pending, the Court can add an accused under Section 319 of CrP C but the moment the trial concludes and judgment is pronounced , then no proceedings remain before the Court. When the Court pronounces the judgment acquitting or convicting the acc used , thereafter, no proceedings which commenced with the filing of the original charge sheet remain pending . It i s also contended that it is not a mere procedural violation, rather, substantive violation since the power is circumscribed by Page 9 of 45 the stage during which it can be exercised, i.e. inquiry/tri al. 9. The gist of the contention s urged by Shri S. Nagamuthu, learned Amicus Curiae is as follows: - Before tak ing cognizance under Section 190 of CrP C and after pronouncement of judgment, Court has no power under Section 319 of CrPC and in view of Hardeep Sing h (supra) the trial court does not have the power for summoning additional accused when trial with respect to other co -accused has ended and judgment of conviction has been rendered on the same da te. In Sessions Trial, accused can be acquitted by an order of acquittal and if accused is acquitted either under Section 232 or 23 5 of CrPC , by passing an order or pronouncing a judgment, the proceeding gets terminated. While, if the a ccused is convicted, proceeding still continue s because he is to be heard on sentence and he is entitled to lead evidence at that stage. Therefore, when accused is convicted, trial is terminated after sentence is passed. Sec tion 353 of Cr PC should be understood in this background and so, it cannot Page 10 of 45 be a rgued that after arguments are heard, trial gets terminated. Evidence which have been brought on record during inquiry/trial including evidence collected during investigation such as FIR, Section 161, Section 164 statements, cannot be treated as evidence for the purpose of Sec tion 319 of CrP C. Applying this, it will emerge that the ev idence recorded in a separate trial held against the other accused cannot be considered as evidence in the present case. But, in the split up case (bifurcated) where there is a separate trial, and during the course of that trial, if any evidence comes on r ecord against a person who is not already an accused, based on that evidence alone, he can be arrayed as an accused under Section 319 of CrPC . When a person is summoned as an additional accused, it is the discretion of the Court whether to charge and tr y two or more persons together in the same tr ial . As per Sec tion 319(4) of C rPC , as against the newly added accused, trial should be a fresh trial. However , if there is joint trial , fresh trial should be conducted against Page 11 of 45 all the accused including the existing accused. In such an event, evidence already recorded is no evidence against the added accused in view of Sec tion 273 of CrPC. In a case, there cannot be two sets of evidence, one against the existing accused and the other ag ainst the added accused. As a consequence, evidence already recorded is no evidence against any accused including the existing accused. Fresh trial is to be conducted. 10. The gist of the contentions put forth by Shri Vinod Ghai , learned Advocate General for the State of Punjab is as follows: - The intent behind the legislature in introducing Sec tion 319 of CrPC is to check that no culprit should go scot -free and to bring home the guilt of actual accused. It is in this context that the Courts have been empowered to summon any person, who appears to have committed an offence, for which the already charge -sheeted accused are facin g trial. Giving a narrow interpretation to such a provision and putting unwarrant ed restrictions would circumvent the very purpose of this power and wo uld only Page 12 of 45 result in travesty of just ice. It is with the said object in mind that a constructive and purposive interpretation should be adopted which advances the cause of justice and does not dilute the intention of the statute conferring powers on the Court to carry out the above -mentioned avowed object and purpose to try the person to the satisfaction of the C ourt as an accused in t he commission of the offence that is the subject matter of the trial. Section 319(1) of CrPC explains as to who/which type of person can be summoned as an additional accused to face trial. The word “could be tried together with other accused” has been used to identify the person who can be summoned and tried as an additional accus ed. Conclusion of main trial during pendency of revision/appeal before the Higher Courts against Sec tion 319 of CrPC or der will not make the orde r inoperative/ineffective merely because the trial i n which such order was passed h as been concluded. The Court has exercise d the power under Section 319 of CrPC for summoning additional accused when the trial in respect of other absconding accused is ongoing/pending Page 13 of 45 having been bifurcated from the main trial . The trial qua accused who were earlier absconding, is pending and some evidence has come which necessitat es the summoning of additional accused by the Court. When application under Section 319 of CrPC is decided simu ltaneously on the same day when trial is concluded, then the Court below does not become functus officio and is competent to exercise power under Section 319 of CrPC in view of Sec tion 354 of Cr PC which expressly provides that an or der on quantum of senten ce is an integral part of the judgment and any judgment of conviction without such order would be referred as incomplet e. 11. The gist of the contention put forth by Sh ri A.K . Prasad, learned Additional Advocate General for the State of U.P. is essentially in the same line as contended by the learned Advocate General for the respondent -State of Punjab . Insofar as the aspect relating to the power that could be exercised under Section 319 of CrPC, with the connotation of such power being exercised before completion of trial it was contended by the learned counsel Page 14 of 45 that the trial does not conclude with the pronouncement of conviction , since sentence also being a part of the judgment . The court becomes functus officio only after the sentence is imposed . It is contended that it will have to be held that the power can be exercised till the sentence is pronounced , which is the point at which the judgment is complete in all respects and trial gets concluded . 12. Shri S.V. Raju, learned Additional Solicitor General though argued in similar line s as put forth by the learned Advocate General and Additional Advocate General for the respective States, he, in fact , went a step further to contend that the power under Section 319 of CrPC can be invoked at any stage even after th e sentence is pronounced since the involvement of an accused may come to light at a later stage and in that circumstance if the recommendation of the Law Commission to bring in the provision is kept in vie w , the only objective is that no accused should go scot -free and t herefore steps can be taken at any stage to bring the accused to book. Shri Ashish Dixit, t he learned counsel for the intervenor has Page 15 of 45 complemented the arguments on behalf of State s by putting forth similar contention s. 13. In th e background of the rival contentions , in order to determine the question referred to us, it would be appropriate for us to at the outset , take note of the provision as contained in Section 319 of CrPC , w hich read s as hereunder: - “31 9. Power to proceed against other persons appearing to be guilty of offence . — (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which suc h person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub -section (1), then — (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re -heard; (b) subject to the provisions of clause (a), the case may proceed as if such per son had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. ” 14. At the outse t, having noted the provision , it is amply clear that the power bestowed on the Court is to the effect Page 16 of 45 that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the Court , if it appears to the Court that such evidence points to any person othe r than the accused who are being tried before the Court to have committed any offence and such accused ha s been excluded in the charge sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offen ce which appears to have been committed by such persons summoned as additional accused. 15. In that regard, the object of incorporating the provision in the CrPC and bestowing suc h power to the Court was based on the recommendation made by the Law Commission of India in its Forty -First Report to which all the learned senior counsel have made extensive reference, read as hereunder: - 24.80. It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is only proper that the Magistrate should have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be Page 17 of 45 detained and proceeded against. There is no express provision in section 351 for summoning such a person if he is not present in Court. Such a provision would make section 351 fairly comprehensive, and we think it proper to expressly provide for that situation. 24.81. Section 351 assumes that t he Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in section 190, and are, apparently, exhausti ve. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate’s own information under section 190(1)(c), or only in the manner in which cognizance was first taken of the offence against the o ther accused. In concrete terms, if the original case was instituted on a police report, i.e. under section 190(1)(b), will cognizance against the new accused be supposed to have been taken in the same manner, or under section 190(1)(c)? The question is im portant, because the methods of enquiry and trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular p rovision is, that the whole case against all known suspects should be proceeded with expeditiously, and convenience requires that cognizance against the newly added accused should be taken in the same manner as against the other accused. We, therefore, pro pose to re -cast section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary ( as is already provided) that in such a situation the evidence must be re -heard in the presence of the newly added accused. 24.82 The offence for which the newly added accused can be tried is not indicated in precise terms in the section. Obviously, that offence should be connected with the one for which the original accused is under trial. To bring that out, a small verbal amendment is recommended. Page 18 of 45 16. In the above backd rop , the issue relating to the power to be exercised under Section 319 of CrPC had arisen for detailed consideration in Hardeep Singh (supra) wherein the scope , procedure and the stage at which such power was to be exercised was considered and summarised as follows: - 12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Secti on 319 CrPC. 13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face t rial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC? 15. It would be necessary to put on record that the power conferred under Section 319 CrPC is only on the court. This has to be understood in the context that Section 319 CrPC empowers only the court to proceed against such person. The word “court” in our hierarchy of criminal courts has been defined under Section 6 CrPC, which includes the Courts of Session, Judici al Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Session is defined in Section 9 CrPC and the Courts of the Judicial Magistrates have been defined under Section 11 thereof. The Courts of the Metropolitan Magistrates have been defined under Section 16 CrPC. The courts which can try offences committed under the Penal Code, 1860 or any offence under any other law, have Page 19 of 45 been specified under Section 26 CrPC read with the First Schedule. The Explanatory Note (2) under the he ading of “Classification of offences” under the First Schedule specifies the expression “Magistrate of First Class” and “any Magistrate” to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executiv e Magistrates. 40. Even the word “course” occurring in Section 319 CrPC, clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It cove rs the entire wide range of the process of the pre -trial and the trial stage. The word “course” therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry up to the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word “course” ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time : duration and not a fixed point of time. 42. To say that powers under Section 319 CrPC can be exercised only during trial would be reducing the impact of the word “inquiry” by the court. It is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim a verbis legis non est recedendum which means, “from the words of law, there must be no departure” has to be kept in mind. 47. Since after the filing of the charge -sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge - sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, c ommittal, etc. which is only a pre - Page 20 of 45 trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre -trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. There fore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs t o be added or subtracted to face trial before the Court of Session. 57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in C olumn 2 of the charge - sheet or any other person who might be an accomplice. (emphasis supplied) 17. In view of the reference contained in the order passed by the Bench consisting of two Hon’ble Judges seeking clarity in the matter due to the view taken by another Bench of two Hon’ble Judges in Shashikant Singh (supra) where, purportedly the summoned accused was proceeded against after the judgment was passed against the accused who were originally charged, it is Page 21 of 45 necessary to take note of the situation that had arisen therein and the conclusion reached in that case. It is noted that in a case under Section 302/34 of IPC wherein Shivakant Singh, the brother of Shashikant Singh (supra) was murdered, the trial proceeded against one Chandra Shekar Singh. When the evidence was recorded it was found that Tarkeshwar Singh and two others had also committed the offence of murder of Shivakant Sing h. The learned Additional Sessions Judge by order dated 07.04.2001 exercised the power under Section 319 of CrPC and ordered to issue a warrant of arrest so that they may be tried together with Chandra Shekar Singh, the accused against whom the trial was proceeding. The said order dated 07.04.2001 summoning the accused came to be assailed by Tarkeshwar Singh before the High Court in Criminal Revision No.269 of 2001. During the pendency of the said Revision Petition before the High Court the learned Additional Sessions Judge concluded the pending trial against the originally charged accused Chander Shekar Singh and convicted him by the judgment dated Page 22 of 45 16.07.2001. The question which therefore arose in that context was as to wheth er the trial in the case in which additional accused were summoned under Section 319 of CrPC including Tarkeshwar Singh can proceed in view of the phrase “could be tried together with the accused” contained in Section 319(1) of CrPC after the trial against other accused had concluded with the ord er of conviction. 18. In that context the Bench of two Hon’ble Judges which allowed the trial to proceed against the summoned accused , Tarkeshwar Singh and others held as hereunder: “9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offenc e, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard pro vided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vita lly affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross -examination of such a person. They have to be examined afresh. Fresh examination -in -chief and not only their presentation for the purpose of the cross - examination of the newly added accused is the mandate of Section 319(4). The words “could be Page 23 of 45 tried together with the accused” in Section 319(1), appear to be only directory. “Could be” cannot under these circumstances be held t o be “must be”. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court wh en order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence result ing in an order for his being brought before the court. ” (emphasis supplied) 19. Thu s, to put the matter in perspective , a perusal of the recommendation of the Law Commission would indicate the intention that an accused who is not charge sheeted but if is found to be involved should not go scot - free . Hence , Section 319 of CrPC was incorporated which provides for the C ourt to exercise the power to ensure the same before the conclusion of trial so as to try such accused by summoning and being proceeded along with the other accused. In Shashikant Singh (supra) , a Bench of two Hon’ble Judges, on holding that the joint trial is no t a must has held the requirement as contained in Section 319 (1) of CrPC as only directory, and as such the judgment of conviction dated 16.07.2001 against the charge -sheeted Page 24 of 45 accused was considered not to be an impediment for the court to proceed against the accused who was added by the summoning order dated 07.04.2001, wh ich in any case was prior to the conclusion of the trial which in our view satisfies the requirement since the summoning order was before the judgment . In the case of Hardeep Singh (supra) also the power of the C ourt under Section 319 of CrPC has been upheld, reiterated , and it has been held that such power is available to be exercised at any time before the pronouncement of judgment. Therefore, there is no conflict or diverse view in the said decisions insofar as the exercise of power , the manner and the stage at which power is to be exercised . However, a certain amount of ironing the crease is required to explain the connotation of the phrase “could be tried together with the accused” appearing in sub -section (1) read with the requirement in sub -secti on 4(a) to Section 319 of CrPC and to understand the true purport of exercis ing the power as per the phrase “before the pronouncement of judgment”. Page 25 of 45 20. A close perusal of Section 319 of CrPC indicates that the power bestowed on the court to summon any person who is not an accused in the case is , when in the course of the trial it appears from the evidence that such person has a role in committing the offence. Therefore, it would be open for the Court to summon such a person so that he could be tried together with the accused and such power is exclusively of the Court . Obviously, when such power is to summon the additional accused and try such a person with the already charged accused against whom the trial is proceeding , it will have to be exercised before the conclusion of trial. The connotation ‘conclusion of trial’ in the present case cannot be reckoned as the stage till the evidence is recorded, but, is to be understood as the stage before pronounc ement of th e judgment as already held in Hardeep Singh (supra) since on judgment being pronounced the trial comes to a conclusion since until such time the accused is being tried by the Court . 21 . In that con text , the rival contentions are to be analysed to arrive at the conclusion as to which is the Page 26 of 45 stage at which it can be said that the trial has concluded. Is it at the stage when the judgment is pronounced and the conviction is ordered or is it when the sentence is imposed and the trial is complete in all respects ? In order to arrive at a conclusion on this aspect the provision in the code relating to ju dgment is required to be noted. In C hapter XVIII re gu lating the tri al before a Court of Session the procedure to be adopted and the conclusion of trial is indicated. What is relevant for our purpose is Section 232 and 235 of CrPC which read as hereunder: - “232. Acquittal. — If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquit tal. ” “235. Judgment of acquittal o r conviction. — (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on t he question of sentence, and then pass sentence on him according to law .” Further C hapter XXVII deals w ith regard to judgment as contained in Section 353 of CrPC , while Section 354 Page 27 of 45 of CrPC relates to the language and contents of the judgment. They read as hereunder: - “353. Judgment. — (1) The judgment in every trial in any Criminal Court or original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders, — (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. (2) Where the judgment is delivered under clause (a) of sub -section (1), the presiding officer shall cause it to be taken do wn in short -hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. (3) Where the judgment or the operative part thereof is read out under clause (b) or clause ( c) of sub -section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him. (4) Where the judgment is pronounced in the manner specified in clause (c) of sub -section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed w ith and the sentence is one of fine only or he is acquitted: Page 28 of 45 Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in ord er to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. (7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day o r from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. (8) Nothing in this section shall be construed to limit in any way t he extent of the provisions of section 46 5. ” “354. Language and contents of judgment. — (1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353, — (a) shall be written in the language of the Court; (b) shall c ontain the point or points for determination, the decision thereon and the reasons for the decision; (c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted, and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. (2) When the conviction is under the Indian Penal Code (45 of 1860) and i t is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. Page 29 of 45 (3) When the conviction is for an offence punish able with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. (4) When t he conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (6) Every order under section 117 or sub -section (2) of section 138 and every final order made under section 125, section 145 or section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decisi on. ” 22. From a perusal of the provision s extracted abo ve , it is seen that if the Sessions Court while analysing the evidence recorded finds that there is no evidence to hold the accused for having committed the offence , the judge is required to record an order of acquittal. In t hat case , there is nothing further to be done by the learned Judge and therefore the trial concludes at that stage . In such cases where it arises under Section 232 of CrPC and an order of acquitta l is recorded and when there are more than one Page 30 of 45 accused or the sole accused , have/has been acquitted , in such cases, that being the end of the trial by drawing the curtain, the power of the court to summon an accused based on the evidence as contemplated under Section 319 of CrPC will have to be invoked and exercised before pronouncement of judgment of acquittal . There shall be application of min d also, as to whether separate trial or joint trial is to be held while trying him afresh . After such order it will be open to pronounce the judgment of acquittal of the accused who was tried earlier. 23. However , if the learned Judge arrives at the conclusion that the accused is to be convicted, the conviction shall be ordered through the judgment as contemplated under Section 235 of CrPC. Sub -section (2) thereto provides that if the learned Judge does not proceed to give the benefit to the accused of being released on probation under Section 360 of CrPC, the learned Judge shall hear the accused on the question of sentence and then impose a sentence on him according to law. Therefore it is seen that Section 235 of CrPC, is divided into two Page 31 of 45 parts, firstly to record the conviction and if the conviction is recorded the sentence is to be imposed only after providing an opportunity of being heard. While hearing on sentence if it is found that the accused was previously convicted and if the accused does not admit the same , the learned Judge is required to record a finding on that aspect as contemplated under Section 236 of CrPC. Further , Section 353 of CrPC provides for the manner in which the judgment is required to be pronounced and Section 354 of CrPC refers to the language and contents of the judgment. Sub -section 1(c) and sub -section (2) to (6) to Section 354 CrPC indicate that even after the conviction is ordered , the specified procedure i s required to be followed by the learned Judge to impose the sentence and the reason for the severity of the punishment which shows that it is a continuation of the process requiring the learned Judge to apply her/his mind to the evidence available on record to assess the nature of involvement in committing the offence , gravity of the same and impose the sentence, unlike in a civil proceeding where drawing up Page 32 of 45 the decree is a ministerial act though based on the judgment . 24. The above aspects would indicate that even after the pronouncement o f the judgment o f conviction , the trial is not complete since the learned Sessions Judge is required to apply her/his mind to the evidence which is available on record to determine t he gravity of the charge for which the accused is found guilty ; the role of the particular accused when there is more than one accused involved in an offence and in that light , to award an appropriate sentence. Therefore , it cannot be said that the trial is co mplete on the pronouncement of the judgment of conviction alone , though it may be so in the case of acquittal as contemplated under Section 232 of CrPC , since in that case there is not hing further to be done by the learned Judge except to record an order of acquittal which results in conclusion of trial . 25. In this regard, it would be apposite to refer to the decision in Rama Narang vs. Ramesh Narang and Page 33 of 45 Others (1995) 2 SCC 513 wherein a bench consisting of three Hon’ble Judges has held as hereunder: - “12. Chapter XVIII relates to trial before a Court of Sess ion. Sections 225 to 227 relate to the stage prior to the framing of charge. Section 228 provides for the framing of charge against the accused person. If after the charge is framed the accused pleads guilty, Section 229 provides that the Judge shall recor d the plea and may, in his discretion, convict him thereon. However, if he does not enter a plea of guilty, Sections 230 and 231 provide for leading of prosecution evidence. If, on the completion of the prosecution evidence and examination of the accused, the Judge considers that there is no evidence that the accused committed the offence with which he is charged, the Judge shall record an order of acquittal. If the Judge does not record an acquittal under Section 232, the accused would have to be called up on to enter on his defence as required by Section 233. After the evidence - in -defence is completed and the arguments heard as required by Section 234, Section 235 requires the Judge to give a judgment in the case. If the accused is convicted, sub -section (2 ) of Section 235 requires that the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence and then pass sentence on him according to law. It will thus be seen that under the Code after the conviction is recorded, Section 235(2) inter alia provides that the Judge shall hear the accused on the question of sentence and then pass sentence on him according to law. The trial, therefore, comes to an end only after the sentence is awarded to th e convicted person. 13. Chapter XXVII deals with judgment. Section 354 sets out the contents of judgment. It says that every judgment referred to in Section 353 shall, inter alia, specify the offence (if any) of which and the section of the Penal Code, 18 60 or other law under which, the accused is convicted and the punishment to which he is sentenced. Thus a judgment is not complete unless Page 34 of 45 the punishment to which the accused person is sentenced is set out therein. Section 356 refers to the making of an ord er for notifying address of previously convicted offender. Section 357 refers to an order in regard to the payment of compensation. Section 359 provides for an order in regard to the payment of costs in non -cognizable cases and Section 360 refers to releas e on probation of good conduct. It will thus be seen from the above provisions that after the court records a conviction, the accused has to be heard on the question of sentence and it is only after the sentence is awarded that the judgment becomes complet e and can be appealed against under Section 374 of the Code. ” (emphasis supplied) 26. Similarly while considering the purport of what constitutes a judgment to provide finality to trial, a bench consisting of two Hon’ble Judges in Yakub Abdul Razak Memon vs. State of Maharashtra (2013) 13 SCC 1 has held as hereunder: - “106. It is clear that a conviction order is not a “judgment” as contemplated under Section 353 and that a judgment is pronounced only after the award of sentence. 113. It is also clear from the judgment that detailed submissions were made by the appellant (A -1) during the pre -sentence hearing and these submissions were considered and, accordingly, reasons have been record ed by the Designated Judge in Part 46 of the final judgment in compliance with the requirement of Section 235(2) and Section 353 of the Code. It is also relevant to mention that Section 354 makes it clear that “judgment” shall contain the punishment awarde d to the accused. It is Page 35 of 45 therefore, complete only after the sentence is determined. ” (emphasis supplied) 27. Therefore , from a perusal of the provisions and decisions of this Court , it is clear that the conclusion of the tria l in a criminal prosecution if it ends in conviction, a judgment is considered to be complete in all respect s only when the sentence is imposed on the convict , if the convict is not given the benefit of Section 360 of CrPC. Similarly , in a case where there are more than one accused and if one or more among them are acquitted and the others are convicted , the trial would stand concluded as against the accused who are acquitted and the trial will have to be concluded against the convicte d accused with the imposition of sentence. W hen considered in the context of Section 319 of CrPC , there would be no dichotomy as argued , since what becomes relevant here is only the decision to summon a new accused based on the evidence available on record which would not prejudice the existing accused since in any event they are convicted. Page 36 of 45 28. In that view of the matter , if the Court finds from the evidence recorded in the process of trial that any other person is involved , such power to summon the accused under Section 319 of CrPC can be exercised by passing an order to that effect before the sentence is imposed and the judgment is complete in all respects bringing the trial to a conclusion . While arriving at such conclusion what is also to be kept in view is the requirement of sub -section (4) to Section 319 of CrPC. From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, th e proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re -examined in the presence of the additional accused . In a case where the learned Sessions Judge exercises the power under Section 319 of CrPC after recording the evidence of the witnesses or after pronouncing the judgment of conviction but before sentence being imposed, the very same evidence which is available on record ca nnot be used against the newly added accused in view of Section 273 of CrPC . As against Page 37 of 45 the accused who has been summoned subsequently a fresh trial is to be held. However while considering the application under Section 319 of CrPC , if the decision by the learned Sessions Judge is to summon the additional accused before passing the judgment of conviction or passing an order on sentence , the conclusion of the trial by pronouncing the judgment is required to be withheld and the application under Secti on 319 of CrPC is required to be disposed of and only then the conclusion of the judgment , either to convict the other accused who were before the Court and to sentence them can be proceeded with. This is so since the power under Section 319 of CrPC can b e exercised only before the conclusion of the trial by passing the judgment of conviction and sentence. 29. Though Section 319 of CrPC provides that such person summoned as per sub -section (1) thereto could be jointly tried together with the other ac cused, keeping in view the power available to the Court under Section 223 of CrPC to hold a joint trial , it would also be open to the learned Sessions Judge at the point of considering the application Page 38 of 45 under Section 319 of Cr PC and deciding to summon the additional accused , to also take a decision as to whether a joint tria l is to be held after summoning such accused by deferring the judgment being passed against the tri ed accused . If a conclusion is reached that the fresh trial to be conducted against the newly added accused could be separately tried, in such event it would be open for the learned Sessions Judge to order so a nd pr oceed to pass the judgment and conclude the trial i nsofar as the accused against whom it had originally proceeded and thereafter proceed in the case of the newly added accused. However , what is important is that the decision to summon an additional accused either suo -moto by the Court or on an application under Section 319 of CrPC shall in all eventuality be considered and disposed of before the judgment of conviction and sentence is pronounced , as otherwise , the trial would get concluded and the Court will get divested of the power under Sectio n 319 of CrPC . Sinc e a power is available to the Court to decide as to whether a joint trial is required to be held or not, this Court was Page 39 of 45 justified in holding the phrase , “could be tried together with the accused” as contained in Section 319(1) of CrPC , to be directory as held in Shashikant Singh (supra) which in our opinion is the correct view. 30. One other aspect which is necessary to be clarified is that if the trial against the absconding accused is split up (bifurcated) and is pending , that by itse lf will not provide validity to an application filed under Section 319 of CrPC or the order of Court to summon an additional accused in the earlier main trial if such summoning order is made in the earlier concluded trial against the other accused. This is so, since such power is to be exercised by the Court based on the evidence recorded in that case pointing to the involvement of the accused who is sought to be summoned. If in the split up (bifurcated) case , on securing the presence of the absconding accused the trial is commenced and if in the evidence recorded there in it points to the involvement of any other person as contemplated in Section 319 of CrPC, such power to Page 40 of 45 summon the accused can certainly be in voked in the split up (bifurcated) case before conclusion of the trial therein. 31. In analysing the issue and making the above conclusion on all aspects , we are also persuaded by the view taken by this Court, among others, in the case of Rajendra Singh vs. State of U.P. and Another (2007) 7 SCC 378 wherein it is concluded with regard to the object of Section 319 of CrPC as hereunder: - “20. The power under Section 319 of the Code is conferred on the court to ensure that justice is done to the society by b ringing to book all those guilty of an offence. One of the aims and purposes of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to th at guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by this section. It is a salutary power enabling the discharge of a court's obligation to the society to bring to book all those guilty of a crime. 21. Exercise of power under Section 319 of the Code, in my view, is left to the court trying the offence based on the evidence that comes before it. The court must be satisfied of the condition precedent for the exercise of power under Section 319 of the C ode. There is no reason to assume that a court trained in law would not exercise the power within the confines of the provision and decide whether it may proceed against such person or not. There is no rationale in fettering that power and the discretion, either by calling it Page 41 of 45 extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises.” 32. We have also kept in view the point by point analysis of the ob ject and power to be exercise d under Section 319 of CrPC , as has been indicated in para 34 of Manjit Singh vs. State of Haryana and Others (2021) SCC Online SC 632 . 33. For all the reasons stated above , we answer the questions referred as hereunder: - “I. 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? The power under Section 319 of 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 acquitt al , th e power should be exercised before the order of acquittal is pronounced. Hence , the summoning order has to precede the Page 42 of 45 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 exami ned on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction , the same will not be sustainable. II. 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? The trial court has the power to summon additional accused when the trial is 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 sum moned . B ut 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 . Page 43 of 45 III. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?” (i) If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the t rial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. (ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. (iii) If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case . (iv) If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. (v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned ac cused . (vi) If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with . (vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision i s that the summoned accused can be tried afresh separately , there will be Page 44 of 45 no im pedi ment to pass the judgment of acquittal in the main case. (viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split -up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial. (ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re -hearing. (x) On setting it down for re -hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceed ed with accordingly . (xi) Even in such a case , at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. (xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier; (a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused . (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh ag ainst summoned accused . 34. Having answered the questions referred, in the above manner, we direct the Registry to obtain orders from Hon’ble the Chief Justice and place before the Page 45 of 45 appropriate Bench to take a decision on the factual aspects arising in the case in the background of th e legal position and contentions on merits . 35. Before part ing , we place on record our appreciation for the assistance rendered by all the learned Senior Counsel/Counsel including Shri S. Nagamuthu , learned Senior Counsel who a ssisted the Court as an Amicus Curiae. …... ……………………….J. (S. A BDUL NAZEER ) …...……………………….J. (B.R. G AVAI ) …… ……………………….J. (A.S. B OPANNA ) ..…...……………………….J. (V. RAMASUBRAMANIAN ) …...……………………….J. (B.V. N AGARATHNA ) New Delhi, December 05 , 2022