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Overview
Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC 289, is the second Constitution Bench ruling in the Section 319 line, and it answers a question that Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, had left open: exactly how late in a trial can a court still summon an additional accused? Hardeep Singh had said the power could be used “at any time after the chargesheet is filed and before the pronouncement of judgment,” but it did not settle what counts as the “judgment” for this purpose, or what happens when a summoning order and a conviction order are passed on the very same day. Khaira fixes that outer boundary. This piece is a companion to this website’s analysis of Hardeep Singh and does not repeat that judgment’s evidentiary test; it focuses on the stage/timing question that Khaira decided.
- Case: Sukhpal Singh Khaira v. State of Punjab
- Citation: (2023) 1 SCC 289; 2022 LiveLaw (SC) 1009
- Court: Supreme Court of India, Constitution Bench (five judges)
- Bench: Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna (judgment author), V. Ramasubramanian and B.V. Nagarathna
- Date: 5 December 2022
Why the Question Reached a Constitution Bench
Hardeep Singh had fixed the evidentiary standard for summoning an additional accused, but trial courts continued to face a narrower, procedural question it had not squarely resolved: what is the last possible moment at which Section 319 of the Code of Criminal Procedure, 1973 (CrPC) can be invoked, particularly where a summoning order is passed on the same day as — or after — the conviction and sentence of the accused already on trial? A two-judge Bench hearing the present appeal on 10 May 2019 noted an apparent tension between Hardeep Singh and an earlier decision, Shashikant Singh v. Tarkeshwar Singh, (2002) 5 SCC 738, where a summoning order passed while the trial was still pending was treated as valid and unaffected by the fact that the trial against the originally charged accused later concluded in a conviction while a revision against the summoning order remained pending. The two-judge Bench was of the view 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 is extraordinary in nature. It accordingly referred the matter to the Chief Justice of India for constitution of a larger Bench.
Facts of the Case
An FIR was lodged on 5 March 2015 at Police Station Sadar, Jalalabad, against eleven persons for offences under Sections 21, 24, 25, 27, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), Section 25-A of the Arms Act, 1959, and Section 66 of the Information Technology Act, 2000. The charge sheet dated 6 September 2015 named ten of the eleven accused, who were put to trial in Sessions Case No. 289 of 2015; the appellant, Sukhpal Singh Khaira, was not among them.
During the trial, the witnesses initially did not name the appellant. On an application dated 31 July 2017, the prosecution obtained recall of PW-4 and PW-5 under Section 311 CrPC; on further examination, both witnesses named the appellant. The prosecution then filed an application dated 21 September 2017 under Section 319 CrPC, seeking to summon five additional persons, including the appellant, on the strength of the evidence of PW-4, PW-5 and PW-13.
One of the eleven originally named accused was absconding, and that part of the case was later split up (bifurcated) and renumbered as Sessions Case No. 217 of 2019 on 3 September 2019 — after the Section 319 application at issue here, so at the relevant time only Sessions Case No. 289 of 2015 was pending. On 31 October 2017, the Sessions Judge pronounced judgment in Sessions Case No. 289 of 2015: one accused was acquitted, and the remaining nine were convicted and sentenced the same day. On that same date, the Sessions Judge also allowed the pending Section 319 application and summoned the appellant to face trial.
The appellant challenged the summoning order, contending that it could not stand because it had been passed after the judgment of conviction and the order of sentence had already been pronounced — that is, after the proceeding it purported to attach to had, on his case, ceased to be pending. The High Court of Punjab and Haryana dismissed the revision petitions by order dated 17 November 2017, upholding the summoning order. That dismissal led to the appeal before the Supreme Court, which was ultimately referred to the Constitution Bench.
The Questions Referred
The Constitution Bench framed and answered three questions:
- Whether the trial court has the power under Section 319 CrPC to summon an additional accused when the trial with respect to the other co-accused has ended and the judgment of conviction was rendered on the same date, before the summoning order was pronounced.
- Whether the trial court has the power under Section 319 CrPC to summon an additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing or pending, having been bifurcated from the main trial.
- What guidelines must the competent court follow while exercising the power under Section 319 CrPC.
What the Court Held
1. A conviction, standing alone, is not a complete “judgment” — sentencing is part of it. Examining Sections 232, 235, 353 and 354 CrPC together with Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, and Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1, the Bench held that where a case ends in conviction, the “judgment” contemplated by Section 353 is not complete until sentence has been imposed, because Section 235(2) requires the accused to be heard on sentence, and Section 354(1)(c) requires the judgment to specify the sentence. The Court observed: “it cannot be said that the trial is complete 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 nothing further to be done by the learned Judge except to record an order of acquittal which results in conclusion of trial.” An acquittal order under Section 232 is thus self-contained and final the moment it is pronounced; a conviction order is not — the trial runs on to sentencing.
2. The outer time-limit — before sentence in a conviction, before the order in an acquittal. Answering the first referred question, the Bench held: “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 acquittal, the power should be exercised before the order of acquittal is pronounced.” It followed that “the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction,” and that a summoning order passed after sentence (in a conviction) or after the order of acquittal “will not be sustainable.” Where a summoning order and the conviction/sentence order are passed on the same day, the Court held that the facts and circumstances of each case will need to be examined — same-day timing is not automatically fatal, but the summoning decision must have preceded, not followed, the point at which the trial concluded. Once sentence is pronounced (or, in an acquittal, once the order of acquittal is pronounced), the trial court has no further seisin over that proceeding for the purpose of Section 319.
3. The working mechanism — pause, decide, then proceed. To operationalise the above, the Bench held that if, before the order on sentence or acquittal is passed, the trial court finds evidence — or receives an application — pointing to the involvement of a person not before it, the court must pause the trial at that stage, first decide whether or not to summon the additional accused, and, if it decides to summon, pass that summoning order before proceeding further with the main case. Only after the Section 319 question is disposed of can the court go on to conclude the judgment against the accused already on trial. If the case has already been reserved for judgment when such material surfaces, the appropriate course is to set the matter down for re-hearing rather than deliver the judgment first.
4. Joint trial or separate trial — a choice available to the summoning court. Building on Shashikant Singh’s holding that the phrase “could be tried together with the accused” in Section 319(1) is directory rather than mandatory, the Bench held that once a summoning decision is made, the court may choose to hold a joint trial — deferring judgment in the main case and conducting a fresh trial with all accused, existing and newly summoned, together — or to conclude and pronounce the judgment (conviction/sentence, or acquittal) against the accused already on trial and proceed separately, and afresh, against the newly summoned accused.
5. Bifurcated trials of absconding co-accused — the second referred question. Where a co-accused was absconding and that part of the case was split up from the main trial, the Bench held that once the absconding accused’s presence is secured and the split-up trial proceeds, the power under Section 319 can be exercised in that bifurcated trial too — but only on evidence recorded within the bifurcated proceeding itself. Evidence recorded in the now-concluded main trial cannot retroactively support a summoning order in the bifurcated trial if the power was not exercised in the main trial before its own conclusion.
6. Twelve guidelines answering the third referred question. The Bench closed by laying down a structured procedure for trial courts, in substance: pause the trial once qualifying evidence or an application surfaces before sentence/acquittal is pronounced; decide the summoning question first and record the summoning order, if any, before proceeding further; decide at that stage whether the newly summoned accused will be tried jointly or separately; if joint, commence the fresh trial only after securing the summoned accused’s presence, with a full de novo trial including re-examination of witnesses; if separate, the main case may be concluded (by conviction/sentence or acquittal) without impediment, followed by a fresh, separate trial against the summoned accused; and where the occasion to invoke Section 319 arises only after arguments are heard and the case reserved for judgment, the court must set the matter down for re-hearing rather than pronounce judgment first, with the summoning question then decided in that re-hearing.
7. A unanimous ruling. The Constitution Bench delivered a single judgment, authored by Justice A.S. Bopanna on behalf of all five judges. There is no separate concurring opinion and no dissent recorded.
Precedents Relied On
The Bench drew principally on Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, for the underlying object and evidentiary threshold of Section 319, and on Shashikant Singh v. Tarkeshwar Singh, (2002) 5 SCC 738, for treating the “could be tried together” language in Section 319(1) as directory. On what completes a “judgment,” it relied on the three-judge Bench in Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, and the two-judge Bench in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1. It also referred to Rajendra Singh v. State of U.P., (2007) 7 SCC 378, on the object and purpose of Section 319, and to the point-by-point analysis in Manjit Singh v. State of Haryana, 2021 SCC OnLine SC 632.
Significance
Khaira does not disturb Hardeep Singh’s “more than prima facie but short of conviction” evidentiary standard; it supplies the missing procedural boundary around it. By holding that a conviction is not a complete judgment until sentence is imposed, while an acquittal is complete and final the moment it is pronounced, the Court gave trial courts (and appellate courts reviewing summoning orders) a bright-line test for a question that had previously been argued case by case: is the Section 319 application still alive, or has the court become functus officio? The “pause, decide, then proceed” sequence in the twelve guidelines converts that bright line into a checklist — a court can no longer pronounce sentence first and consider a pending Section 319 application afterward on the same day without the risk of that summoning order being held unsustainable.
Because Section 358 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) reproduces Section 319 CrPC in substance, the stage/timing rule in Khaira continues to govern BNSS-era prosecutions, including proceedings before the Allahabad High Court and its Lucknow Bench. Read together, Hardeep Singh supplies the evidentiary threshold and Khaira supplies the temporal outer limit — the two Constitution Bench rulings now form the complete test that trial courts apply whenever a prosecution or a private party seeks to bring in an additional accused mid-trial.
Useful Resources
- Sukhpal Singh Khaira v. State of Punjab — Indian Kanoon (full judgment text)
- Sukhpal Singh Khaira v. State of Punjab — Casemine
- SCC Online Blog — Section 319 CrPC power to be exercised before pronouncement of order of sentence or acquittal; 12 guidelines
- LiveLaw — Section 319 CrPC: 12 Guidelines Issued By Supreme Court’s Constitution Bench
- Supreme Court Observer — Summoning New Accused After the Judgment is Delivered
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