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Synopsis

The Supreme Court recently set aside the trial court's order summoning a man as accused in exercise of its power under Section 319 of the Criminal Procedure Code in a murder case after pronouncement of the sentence concerning other accused and acquitting some others.

A bench of Justices B R Gavai and K Vishwanathan pointed out that the Constitution bench in Sukhpal Singh Khaira Vs State of Punjab (2023) has clearly held that if such a summoning order is passed, either after the order of acquittal or imposing of sentence in the conviction, the same may not be sustainable.

Court noted that in the present case, on March 21, 2012, the order of conviction in the case of some of the accused and the order of acquittal in the case of the other accused was passed in the first half of the day. In the second half, the court first passed an order for sentencing of the persons who were convicted and only thereafter passed an order under Section 319 of CrPC for summoning the present appellant.

Appellant Devendra Kumar Pal challenged the judgment and order of the Allahabad High Court of August 25, 2021 by which his petition against an order by the Additional Sessions Judge of March 21, 2012 was dismissed.

After conducting the proceedings in a murder case, the trial judge convicted some of the accused and acquitted the others.

The trial judge was also of the opinion that the present appellant was also required to be tried.

By an order of March 21, 2012, the trial judge in the first half recorded the order of conviction in respect of the accused whom it had found to be guilty and also recorded the order of acquittal for the remaining accused, which it found to be not guilty. 

Post lunch, the trial judge first recorded the order of sentence insofar as the accused who were convicted. Thereafter, the trial judge passed an order summoning the present appellant, Devendra Kumar Pal for trial by invoking powers under Section 319 of the Code of Criminal Procedure, 1973.

The appellant's counsel relying upon Sukhpal Singh Khaira submitted since in the present case first the order of conviction and sentence was recorded and only thereafter an order under Section 319 of CrPC was passed, the same would not be sustainable in law.

The state counsel on the contrary said that the Constitution bench has held that if the judgment of the conviction and sentence and the order of summoning under Section 319 of CrPC are passed on the same date, the court may have to examine the facts and circumstances of the case. 

He submitted that in the present case, the order of sentence and the order under Section 319 of CrPC were passed by the trial judge in the same breath and, therefore, no error could be found with it.

The bench referred to the judgment passed by the Constitution bench in the case of Sukhpal Singh Khaira which 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. 

The court had then also said that in the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable, the bench pointed out.

"Sitting in a two-judge combination, we are bound by the law laid down by the Constitution bench of this court," the bench said.

Court thus allowed the appeal and set aside the high court judgment and quashed the order summoning the appellant under Section 319 CrPC.

Case Title: Devendra Kumar Pal Vs State of UP And Another