Appeal
2. This appeal arises from the judgment and order passed by the High Court of Judicature at Allahabad, Lucknow Bench dated 01.04.2024 in Criminal Application No. 2399 of 2024 filed by the appellants herein under Section 482 of the Code of Criminal Procedure, 1973 (the “CrPC”) by which the High Court rejected the application and thereby affirmed the order passed by the Sessions Court summoning the appellants herein as accused under Section 319 of the CrPC in the Session Trial No. 582 of 2009.
A. Factual matrix
FIR allegation is that the appellants fired the deceased using pistols resulting to his death
3. On 14.04.2009, the respondent no. 2 herein lodged a First Information Report (“FIR”) No. 99/2009 in the Police Station Bilgram, Hardoi, Uttar Pradesh for the offence punishable under Sections 147, 148, 149 and 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) respectively against five persons namely Irshad, Irfan, Abdul, Jamin and Akil in connection with the murder of his brother. The FIR alleged that the appellants herein namely, Jamin and Akil exhorted the other co-accused to kill the deceased and as a result of such instigation, the said co-accused fired at the deceased using their pistols resulting into his death.
Investigation resulted in filing Final report only against Irshad and Irfan charging under sections 147, 148, 149 and 302 of the IPC and ongoing investigation for the appellants
4. On conclusion of the investigation, the police filed chargesheet no. 07/2009 dated 14.07.2009 against two accused persons, namely Irshad and Irfan for the alleged offence. The police by way of Parcha No. CD 16 dated 14.07.2009 informed the court concerned that the investigation qua the remaining accused persons, namely Abdul, Jamin and Akil was ongoing. The chargesheet contained a list of 18 witnesses which the State proposed to examine in support of the charges.
Trial Court framed the charges under sections 147, 148, 149 and 302 of IPC against the accused who were charge sheeted
5. On 27.10.2009, the Trial Court framed charge for the offence under Sections 147, 148, 149 and 302 of the IPC respectively against the accused persons who were named in the chargesheet who in turn pleaded not guilty and claimed to be tried.
Respondent no.2 filed application under section 319 CrPC to summon appellants
6. While the trial against the charge sheeted accused persons namely Irshad and Irfan was in progress, the respondent no. 2 filed an application under Section 319 of the CrPC praying to summon the other three persons named in the FIR to face the trial along with the chargesheeted accused persons.
Trial court rejected the application filed u/s 3196 CrPC citing PW1 & 2 were not cross-examined
7. On 29.01.2010, the Trial Court rejected the aforesaid application on the ground that a person could be summoned by the trial court in exercise of its powers under Section 319 of the CrPC provided that there is cogent and reliable evidence indicating towards the complicity of such person in the commission of an offence for which he could be tried together with the accused persons already put to trial. The Trial Court noted that PW-1 and PW-2 respectively had yet not been cross-examined and it was not clear whether the I.O. intended to file chargesheet against the persons sought to be summoned, therefore it declined the prayer to summon under Section 319 of the CrPC. The relevant extracts from the said order are reproduced hereinbelow:
“Hence, from the aforesaid principles it is cleared that till date, cross examination of Pw-1 & Pw-2 has not been done and it is also not cleared that the chargesheet against the application by the accused u/s 319 CrPC is being filed or not Investigation have been completed or not and if final report have been filed then is it pending in Add District Court or till now investigation is going on? Whenever it would not be cleared and until and unless such evidence has not been filed by prosecution that such evidence against proposed accused is enough to punished the them until then summoned to accused is not justifiable. Hence, application not accepted and is deserved to be dismissed/rejected.”
On the revision against the Trial court’s order dated: 29.01.2010 the Hon’ble High Court directed the Trial court to reconsider the prayer
8. A revision petition bearing no. 203 of 2010 was filed by the respondent no. 2 before the High Court against the order of the Trial Court dated 29.01.2010 referred to above. The High Court vide order dated 14.05.2010 directed the Trial Court to reconsider the prayer of the respondent no. 2 for summoning the proposed accused persons under Section 319 of the CrPC after the crossexamination of PW-1 and PW-2 respectively was over. In the meantime, the evidence of PW-1 and PW-2 was recorded on 01.12.2009, 02.04.2010 and 15.05.2010 respectively. The relevant extracts from the said order are reproduced hereinbelow:
“It appears that the revisionist is the complainant and his petition under section 319 CrPC for summoning additional accused has been rejected by the court concerned on the ground that cross-examination of PW1 and 2 had not taken place.
The learned trial court is expected to consider the revisionist’s prayer after the cross-examination is over.
With the aforesaid observation, the revision is finally disposed of.”
Trial court dismissed the second application filed u/s 319 Cr.P.C that there is no explanation as to how their names came to be included in the FIR
9. Thereafter, on 10.06.2010, the respondent no. 2 filed a second application under Section 319 of the CrPC before the Trial Court with a prayer to summon the three persons named in the FIR as accused in addition to the accused persons named in the chargesheet. The Additional District & Sessions Judge, Hardoi vide order dated 19.07.2010 rejected the said application on the ground that the evidence recorded in the course of the trial did not warrant the summoning of the said three persons as accused. The Trial Court noted that that while exercising jurisdiction under Section 319 of the CrPC, it is necessary to see whether there is sufficient and cogent evidence to take cognizance and if not, then the persons sought to be summoned as accused cannot be asked to face the trial. The Court observed that the complainant had no idea as regards the identity of the proposed accused persons, namely, Abdul, Jamin and Akil and no explanation was forthcoming as to how their names came to be included in the FIR.
Respondent 2 preferred revision against the aforesaid order dated: 19.07.2010
10. In such circumstances referred to above, the respondent no. 2 preferred revision petition bearing no. 400/2010 before the High Court seeking to challenge the order dated 19.07.2010.
While the revision was pending, the trial court found the accused guilty
11. During the pendency of the revision petition, the Additional District & Sessions Judge, Hardoi vide the judgment and order dated 19.10.2011, held Irshad and Irfan guilty of the offence of murder and sentenced them to life imprisonment and fine. The trial accordingly stood concluded.
Hon’ble High Court set aside the Trial court’s order dated: 19.07.2010
12. Long after the conclusion of the trial, the High Court, though aware of conclusion of the trial of the co-accused,set aside the order of the Trial Court dated 19.07.2010, vide order dated 14.09.2021 passed in criminal revision petition no. 400/2010, while observing as under:
“ …….. “
Again 3rd application u/s 3196 Cr.P.C dated: 22.09.2021 was filed by respondent no.2 and the same was allowed and summoned the appellants
13. On the strength of the order passed by the High Court referred to above, the respondent no. 2 filed another application dated 22.09.2021 under Section 319 of the CrPC before the Additional District and Session Judge and prayed to summon the proposed accused in the trial. The Additional District and Sessions Judge vide order dated 21.02.2024 allowed the said application on the ground that the oral evidence of the witnesses recorded by the Trial Court clearly revealed the involvement of the proposed accused, viz., Abdul, Jamin and Akil along with the accused who stood convicted. Since one of the proposed accused namely, Abdul had passed away, the court summoned Jamin and Akil to face the trial.
Appellant challenged the aforesaid summoning order under section 482 Cr.P.C
14. The appellants being dissatisfied with the summoning order, challenged the same by filing an application under Section 482 of the CrPC and prayed that the order be quashed and set aside. The challenge to the summoning order was essentially on the ground that the appellants had been summoned in a trial which stood concluded on 19.10.2011 that is, almost 13 years before the summoning order was passed.
Hon’ble High Court dismissed the quash petition and hence the present appeal
15. The High Court vide the impugned order dated 01.04.2024, rejected the aforesaid application of the appellants filed under Section 482 of the CrPC and thereby affirmed the summoning order passed by the Additional District and Sessions Judge. The High Court held that Section 319(4) of the CrPC provides that where the court proceeds against any person under sub-section (1) of Section 319, the proceedings in respect of such person is supposed to commence afresh and the witnesses are to be re-heard with respect to the proposed accused so summoned. The conclusion of trial against the other accused persons would not cause any prejudice to the appellants as they would be afforded an opportunity to defend themselves in a fresh trial. In view of the aforesaid, the High Court found no illegality in the order summoning the appellants herein under Section 319 of the CrPC. The relevant observations made by the High Court are reproduced hereinbelow:
“ …………. “
Analysis
D. Issues for determination
25. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for our consideration:
(i) Whether the High Court was right in exercising its revisional jurisdiction for the purpose of setting aside the order of the Trial Court rejecting the second application preferred by the respondent no. 2 under section 319 of the CrPC?
(ii) Whether the order dated 21.02.2024 passed by the Trial Court to give effect to the order passed by the High Court directing it to reconsider the application under Section 319 of CrPC would relate back and replace its earlier order dated 19.07.2010 rejecting the Section 319 application?
(iii) Whether the Trial Court could have entertained an application filed under Section 319 of the CrPC after the conclusion of the trial, more particularly when no stay on trial had been granted by the High Court? (iv) Whether the High Court should have given an opportunity of hearing to the proposed accused before deciding the revision petition filed against the rejection of application under Section 319 of the CrPC by the Trial Court? If yes, whether the order dated 14.09.2021 passed by the High Court in exercise of its revisional jurisdiction was passed without issuing notice to the appellants and providing them an opportunity of hearing?
Scope of power u/s 319 Cr.P.C explained through judgments
35. The scope of power under Section 319 CrPC was explained by this Court in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi reported in (1983) 1 SCC 1 wherein it was held that cognizance against a proposed accused can be taken under Section 319 even if the proceedings against him have been quashed earlier. The relevant observations are reproduced as under:
“19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against Respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.” (Emphasis supplied)
36. Further, this Court, in Kishun Singh v. State of Bihar reported in (1993) 2 SCC 16, observed that even a person who has been discharged earlier would fall within the sweep of Section 319 of the CrPC subject to other requirements for applicability of the provision being satisfied. The relevant observations are reproduced hereinbelow:
“11. On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code.” (Emphasis supplied)
Intention of legislature to draft section 319 Cr.P.C
37. A perusal of the aforesaid decisions of this Court indicates that the intention behind giving a wide interpretation to Section 319 is to ensure that the perpetrator of a crime does not get away unpunished. The legislature incorporated the provision with the purpose of empowering the courts to find out the real culprits without getting hindered by procedural impediments so that the guilty does not go unpunished.
Analysing Section 319 Cr.P.C
39. A bare perusal of sub-section (1) of Section 319 brings out three essential requirements that must be fulfilled for invoking the powers thereunder:
a. First, there must be an ongoing inquiry or trial in respect of the original accused person(s); and
b. Secondly, in the course of such proceedings, evidence must have come on record to show that any person other than the original accused has committed any offence; and
c. Thirdly, the person sought to be summoned could be tried together with the original accused for such offence.
40. This Court in Raj Kishore Prasad v. State of Bihar reported in (1996) 4 SCC 495 held that Section 319 deals only with a situation in which the complicity of the persons sought to be arrayed as accused comes to light from the evidence taken and recorded in the course of an inquiry or trial. This Court in its decision in Suman v. State of Rajasthan reported in (2010) 1 SCC 250 held that a case can be proceeded with under Section 319 if, based upon the evidence brought on record in the course of any inquiry into, or trial of an offence, the court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused.
Requirement for invoke section 319 Cr.P.C as per Hardeep singh’s case
42. As regards the requirement of evidence and the standard for testing such evidence, Hardeep Singh (supra) indicates as follows:
a. First, it is not necessary for the evidence tendered to be tested by way of cross-examination for establishing the involvement of an additional accused; and
b. Secondly, the threshold for establishing the involvement of an additional accused is more than that of a prima facie case as exercised at the time of framing of charge, but less than such a satisfaction that the evidence, if goes unrebutted, would lead to conviction.
Section 319 Cr.P.C can be exercised against person not subjected to investigation
43. Further, the exercise of powers under Section 319 is not inhibited with respect to who can be summoned as an accused. This Court in Hardeep Singh (supra) has clarified in express terms that Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the chargesheet and against whom cognizance had not been taken, or even a person who has been discharged. However, as regards a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC. Such a person can be proceeded against under Section 319 only if during or after an inquiry under Section 300(5) read with Section 398, there appears to be evidence against such person which may indicate that they committed any offence for which they could be tried together with the accused.
Summoning order issued u/s 3196 Cr.P.C cannot be quashed
44. Therefore, a summoning order issued under Section 319 of the CrPC cannot be quashed only on the ground that even though the proposed accused were named in the FIR or complaint, the police did not include their names in the chargesheet. In other words, if the evidence tendered in the course of any inquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge sheeted by the investigating agency or may have been discharged at an earlier stage.
De-novo trial under section 319 (4) Cr.P.C is different from split up or separate trial as provided under section 317 Cr.P.C
45. Sub-section (4) of Section 319 mandates that a fresh trial or a de novo trial is to be conducted in respect of the persons summoned under sub-section (1) so as to ensure that such persons are not deprived of the opportunity to present their case and examine the witnesses properly. The requirement of a de novo trial in sub-section (4)(a) is quite different from the notion of a splitup or separate trial as provided under Section 317 of the CrPC. The provision of a de novo trial is to safeguard the right of fair trial to be provided to the new persons summoned under Section 319(1).
46. However, while the provision of de novo or fresh trial under Section 319(4) is mandatory, the said sub-section is applicable only in cases where the court proceeds against any person under sub-section (1). Thus, a de novo trial can be commenced in respect of the proposed accused only if the power under sub-section (1) has been validly exercised by the court. In other words, subsection (4) is subject to sub-section (1) and thus also to the expression “could be tried together with the accused” mentioned in sub-section (1).
(ii) Stage at which power under Section 319 of the CrPC can be exercised
Main ground of the appellant: 47. The principal contention of the appellants is that the Trial Court could not have allowed the application under Section 319 of the CrPC after the conclusion of the trial of the original accused. In other words, the appellants have contended that once the stage of trial was over by virtue of pronouncement of judgment of conviction and sentence, it was not open anymore to the Trial Court to issue summons against the appellants.
57. The guidelines laid down by this Court [Sukhpal Singh Khaira v. State of Punjab – (2023) 1 SCC 289 [Constitution bench]] contemplate several situations as to how the trial of the accused summoned under Section 319 should take place. Paragraph nos. 41.1 to 41.4 lay down the chronology of steps to be taken while deciding an application under Section 319 that is:
a. First, the court has to decide the need for summoning an accused under Section 319;
b. Secondly, if the court reaches the conclusion that a person is required to be arrayed as an accused under Section 319, then the summoning order in respect thereof must be passed before the conclusion of the trial of the original accused;
c. Thirdly, depending on the stage of the trial at which the summoning order under Section 319 is passed, the court also has to decide whether the newly arrayed accused will be jointly or separately tried with the original accused.
Illustration as to invoke section 319 Cr.P.C for the absconding accused
58. Paragraph 41.8 of the guidelines clarifies that the power under Section 319 can be invoked only during the pendency of trial of the original accused person(s). To illustrate, say in a case with accused ‘A’ and accused ‘B’ the trial was split-up by the court in respect of accused ‘B’ because he was found to be absconding, then the main trial in respect of the accused ‘A’ can continue separately without any hindrance or delay. In a situation where the main trial in respect of accused ‘A’ has already concluded and only the splitup trial in respect of accused ‘B’ remains pending, the power under Section 319 can be invoked even in such split-up proceedings provided that it appears from the evidence recorded in such split-up trial proceedings that a person not being the accused has committed any offence which could be tried together with accused ‘B’ whose culpability is being adjudicated in the split-up trial. It is apposite to mention here that if the evidence recorded during the course of the main trial in respect of accused ‘A’ indicates towards the complicity of an additional accused person, but the same has already concluded, then, by using such evidence, the power under Section 319 cannot be invoked during the split-up trial in respect of accused ‘B’. For a person to be summoned under Section 319 in the split-up trial, the condition precedent is that the evidence taken in the split-up trial by itself should indicate towards the involvement of the proposed accused in the offence.
59. Further, it is clear from Paragraph nos. 41.5, 41.6, 41.7, 41.9, 41.10, 41.11 and 41.12, respectively, that a de novo or a fresh trial is mandatory upon summoning of an accused person under Section 319. If upon such summoning, the court decides to conduct a joint trial of the proposed accused with the original accused, then the trial will be conducted afresh for the newly arrayed accused. On the other hand, if the decision of the court is to conduct a separate trial for the newly arrayed accused, then the main trial in respect of the original accused can be concluded without any impediment and the fresh trial of the new accused persons can be conducted separately.
Conducting fresh trial in respect of new proposed accused after conclusion of main trial is not permissible
60. Therefore, conducting a fresh trial in respect of the proposed accused after the conclusion of the main trial is not permissible unless an order separating the trial of the original accused with that of the proposed accused is passed by the court before the original trial stands concluded. This stage is reached after the summoning order has been made during the pendency of the trial in respect of the original accused. From the above exposition of law, it is clear that passing of a summoning order before the conclusion of trial is a requirement that flows from sub-section (1) of Section 319. This requirement is in no way qualified by the provision of a fresh trial under subsection (4) and thus, cannot be the basis to allow a summoning order to be passed after the conclusion of trial in the absence of a decision by the court to proceed against the proposed accused under sub-section (1) of Section 319 of the CrPC during the pendency of the trial.
(iii) Meaning of the expression “could be tried together with the accused”
61. In our considered view, the expression “could be tried together with the accused” lays down a necessary requirement that the persons sought to be arrayed as accused under Section 319 should be capable of being jointly tried with the original accused irrespective of whether they are actually tried together or not. This Court in its decision in R. Dineshkumar @ Deena v. State represented by Inspector of Police & Ors. reported in (2015) 7 SCC 497 observed that the expression “could be tried together” as appearing in Section 319 of the CrPC is to be construed in the context of Section 223 of the CrPC which provides for circumstances under which different persons may be tried together. The relevant observations are reproduced below:
“8. […] The section authorises the court making any inquiry into or conducting the trial of an offence to “proceed” against any person (other than the accused facing trial) subject to two conditions
(i) that from the “evidence” it appears to the court that such a person “has committed any offence”, and
(ii) that such a person “could be tried together with the accused”. 9. We shall first consider the question as to when could a person appearing to have committed an offence “be tried together with the accused” already facing trial?
10. Section 223 CrPC provides for the joint trial of different accused in certain circumstances. It enumerates different contingencies in which different persons may be charged and tried together. As rightly noticed by the High Court, the only clause if at all relevant for the purpose of the present case is Section 223(d) which stipulates that persons accused of different offences committed in the course of the same transaction could be charged and tried together.” (Emphasis supplied)
As per sections 319 r/w 223 Cr.P.C ‘could be tried together means’ with the originally charge sheeted accused and not newly added accused
63. What is discernible from the principles expounded in R. Dineshkumar (supra) is that for offences committed in the same transaction, the court should ideally arraign all the concerned persons as accused at the same time. Even if a person is not arraigned as an accused, he could be arraigned as an accused under Section 319 provided, inter alia, he “could be tried together” with the originally chargesheeted accused. Therefore, what follows is that a person must be arraigned as an accused under Section 319 when the persons originally chargesheeted are still accused persons and their culpability is yet to be decided.
Court becomes functus officio once trial concluded and power to summon new accused under section 319 Cr.P.C is no longer vests with the said court
64. The power under Section 319 can only be exercised in a situation where the Trial Court is seized of the offence committed in the “same transaction”. When the trial is concluded, such court becomes functus officio and the power to summon persons under Section 319 for the offences alleged to have been committed in the same transaction no longer vests with the said court as the new persons sought to be summoned cannot be tried together with the original accused.
High Court in exercise of its revisional jurisdiction cannot mandate the Trial court to do something which was barred by law
92. In the present case, the High Court, in exercise of its revisional jurisdiction, set aside the order of the Trial Court rejecting the second application under Section 319 of the CrPC and directed the Trial Court to reconsider the application under Section 319. At the stage of issuing the aforesaid direction, the High Court was conscious that the trial had concluded, yet to do substantial justice, it deemed it necessary to issue such a direction. In doing so, the High Court’s order, which relates back to the date of the Trial Court’s order, did not mandate the Trial Court to do something which was barred by law because, as already noticed above, holding a joint trial is directory. Therefore, in complying with the said direction of the High Court, the Trial Court committed no act which was prohibited by law.
Revisional order of Hon’ble High Court date back to the second application filed u/s 319 Cr.P.C
102. As discussed hereinabove, an order passed by the High Court in exercise of its revisional jurisdiction would relate back to the order of the Trial Court. In the present case, the Trial Court in its discretion rejected the second application filed under Section 319 before the conclusion of trial vide order dated 19.07.2010. The High Court, more than ten years after the conclusion of trial, set aside the said order and directed the Trial Court to reconsider the application under Section 319 afresh. In our considered view, such order passed by the High Court on the second application under Section 319 travels back to 19.07.2010 i.e., the date when the Trial Court rejected the said application. The effect of the order of the High Court relating back to the original order of the Trial Court is that the Trial Court cannot be considered functus officio as regards considering the application under Section 319 after the conclusion of the trial. We say so because the Trial Court, in considering the application under Section 319 after the conclusion of the trial, is merely giving effect to a revisionary order directing it to freshly consider the application which it had originally rejected.
103. Ordinarily, an application under the Section 319 cannot be moved after the conclusion of trial as a necessary corollary of the dictum laid down in Sukhpal Singh Khaira (supra). However, the peculiar facts and circumstances presented by the case on hand indicate that an application under Section 319 dated 10.06.2010 was directed to be considered afresh by the High Court vide order dated 14.09.2021 and, therefore, the third application dated 22.09.2021 was not even required, though moved by the respondent no. 2 in pursuance of the order of the High Court order dated 14.09.2021 allowing the revision petition. Accordingly, the summoning order, in exercise of the powers under Section 319, came to be passed by the Trial Court on 21.02.2024.
Not necessary to interfere with the Hon’ble High court’s order
107. The High Court in its impugned order has rightly observed that the summoning order dated 21.02.2024 was passed in compliance with the order passed by the High Court in exercise of its revisional jurisdiction. It further correctly observed that the order passed by the High Court in exercise of its revisional jurisdiction was in furtherance of the object of Section 319 of the CrPC which is to ensure that the actual perpetrators of a crime are arraigned as accused to face trial. The High Court was also right in observing that the conclusion of the trial qua the original accused would not prejudice the appellants in any manner and their interest would be safeguarded by subsection (4) of Section 319 of the CrPC. The High Court also noted that the summoning order, though having been passed after the conclusion of the trial, cannot be said to be vitiated in the peculiar facts and circumstances of the case. For all the reasons that we have assigned in the preceding parts of this judgment, we do not see any reason to interfere with the impugned order passed by the High Court.
(vii) Right of the proposed accused to be heard at the stage of summoning under Section 319 of CrPC
108. Before we part with the matter, we deem it necessary to address the submissions of the appellants as regards the violation of their right to be heard before the passing of the order in Revision Petition 400/2010 by the High Court.
F. Conclusion
115. We summarise our findings on the issues framed for consideration as follows:
a. The High Court in exercise of its revisional jurisdiction was justified in setting aside the order passed by the Trial Court rejecting the second application preferred by respondent no. 2 under Section 319 of the CrPC as the same was found to have been passed contrary to the settled position of law, suffering from a patent illegality, thus, leading to serious miscarriage of justice.
b. Once a superior court deems fit to interfere with an order passed by a subordinate court, then any rectifications to such order passed in exercise of revisional powers under Section 401 read with Section 397 of the CrPC must be treated on the same footing as rectifications made by an appellate court and as a result would relate back to the time the original order was passed.
c. By virtue of relating back of the order passed by the High Court in a revision petition, the summoning order passed by the Trial Court in compliance with the order of the High Court would also relate back to the initial order rejecting the second application under Section 319, and therefore could be said to have been passed before the conclusion of the trial.
d. Unlike cases where an application under Section 319 is being decided in the first instance by the Trial Court, the conclusion of trial will have no bearing on the adjudication of an application under Section 319 in terms of the directions of the High Court passed in exercise of revisional jurisdiction.
e. The legal effect of the order passed by the High Court relating back to the original order of the Trial Court is that the Trial Court would not be rendered functus officio for the purpose of considering the application under Section 319 after the conclusion of the trial. We say so because the Trial Court, in considering the application under Section 319 after the conclusion of the trial, merely gave effect to a revisional order directing it to consider the application afresh which it had originally rejected.
f. The summoning order dated 21.02.2024 was passed by the Trial Court in pursuance of the directions issued by the High Court vide the revisional order dated 14.09.2021. Therefore, the same should be construed as an extension of the revisional order passed by the High Court. The combined effect of the revisional order passed by the High Court and the summoning order passed by the Trial Court dated 21.02.2024 would be that the order of the Trial Court dated 19.07.2010 rejecting the second Section 319 application stood replaced and substituted by the summoning order dated 21.02.2024. Thus, although the summoning order in the present case came to be passed on 21.02.2024, that is, after the conclusion of the trial, yet, it would be deemed to have been passed on 19.07.2010 by virtue of the law expounded by this Court in Maru Ram (supra) and Krishnaji Dattatreya Bapat (supra).
g. Section 319 does not contemplate that a summoned person must be given an opportunity of being heard before being added as an accused to face the trial. A right of hearing would accrue only to a person who is already discharged in the very same proceeding prior to the commencement of the trial. This is different from holding that a person who has been summoned as per Section 319 CrPC has a right of being heard in accordance with the principles of natural justice before being added as an accused to be tried along with the other accused. However, after the rejection of an application under Section 319, a right enures in favour of the proposed accused. Thereafter, if in exercise of revisional jurisdiction, the High Court is to pass an order which is prejudicial to the benefit which had already enured in favour of the proposed accused, then the High Court is obligated in law to provide an opportunity of hearing to the proposed accused. This is also the mandate as contained in sub-section (2) of Section 401 of the CrPC.
116. For all the foregoing reasons, the appeal fails and is hereby dismissed.
Judgments Cited or Relied Upon in the Judgment
1. Sukhpal Singh Khaira v. State of Punjab – (2023) 1 SCC 289 [Constitution bench]
2. Hardeep Singh v. State of Punjab – (2014) 3 SCC 92 [Constitution bench]
3. Shashikant Singh v. Tarkeshwar Singh & Anr – (2002) 5 SCC 738
4. Municipal Corpn. of Delhi v. Ram Kishan Rohtagi – (1983) 1 SCC 1
5. Kishun Singh v. State of Bihar – (1993) 2 SCC 16
6. Maru Ram v. Union of India – (1981) 1 SCC 107
7. Krishnaji Dattatreya Bapat v. State of Maharashtra – (1969) 2 SCC 74
8. Uday Mohanlal Acharya v. State of Maharashtra – (2001) 5 SCC 453
9. Yashodhan Singh v. State of U.P – (2023) 9 SCC 108
10. Jogendra Yadav v. State of Bihar – (2015) 9 SCC 244
11. Ram Janam Yadav v. State of U.P. – (2023) 9 SCC 130
12. Manharbhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel – (2012) 10 SCC 517
13. Subhash Sahebrao Deshmukh v. Satish Atmaraman Talekar & Ors. – (2020) 6 SCC 625
14. Sarojben Ashwinkumar Shah v. State of Gujarat – (2011) 13 SCC 316
15. Devendra Kumar Pal v. State of Uttar Pradesh & Anr. – 2024 SCC OnLine SC 2487
16. Raj Kishore Prasad v. State of Bihar – (1996) 4 SCC 495
17. Suman v. State of Rajasthan – (2010) 1 SCC 250
18. R. Dineshkumar @ Deena v. State represented by Inspector of Police & Ors. reported in (2015) 7 SCC 497
Party
Jamin & Anr. vs. State of Uttar Pradesh & Anr – Criminal Appeal No. 1184 of 2025 (arising out of SLP (Crl.) No. 6320 of 2024) – 2025 INSC 330 – 6th March 2025 – Hon’ble Justice J.B. Pardiwala and Hon’ble JusticeManoj Misra
