New Delhi, Dec 5 (PTI) A lower court can summon new accused for trial under Section 319 of the Criminal Procedure Code (CrPC) but the summoning order has to precede the pronouncement of the order of sentence in cases where the other accused have already been convicted, the Supreme Court said on Monday.

The judgement was delivered by a five-judge Constitution bench headed by Justice S A Nazeer on whether a lower court has the power to summon additional accused even after having decided a criminal case against the others involved.

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"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.

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"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, also comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna said.

The top court had in 2019 framed three questions of law on the scope and ambit of section 319 (power to proceed against other persons appearing to be guilty of offence) of the Code of Criminal Procedure (CrPC) and referred the matter to a larger bench for adjudication.

The three issues framed by the bench included 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 verdict of conviction rendered on the same date before pronouncing the summoning order.

The apex court, while referring the matter to a larger bench, had said it was of the view that the power under section 319 of CrPC being extraordinary in nature, the trial courts should be cautious while summoning the accused to avoid complexities and to ensure fair trial.

In its 45-page verdict, the top court further said 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.

"But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion," it said.

It also issued a slew of guidelines that the trial court must follow while exercising power under Section 319 CrPC.

"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 trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.

"The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. 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," the bench said.

The top court said that 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.

"If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.

"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," it said.

(The above story is verified and authored by Press Trust of India (PTI) staff. PTI, India’s premier news agency, employs more than 400 journalists and 500 stringers to cover almost every district and small town in India.. The views appearing in the above post do not reflect the opinions of LatestLY)