Additional Accused Must Be Summoned Under Section 319 CrPC Before Sentence or Acquittal: Constitution Bench Guidelines

In an NDPS and Arms Act prosecution of ten accused, two witnesses recalled under Section 311 named the appellant, who was not charge-sheeted, and the prosecution applied under Section 319 to summon him and four others (paras 2-3). On 31.10.2017 the Sessions Judge convicted nine accused, acquitted one, imposed sentence and, the same day, allowed the Section 319 application (para 4). The High Court dismissed his revision, and a two-judge Bench referred three questions in view of Shashikant Singh and Hardeep Singh (paras 1, 5-6).

Section 319 lets the court summon a person whom the evidence shows to have committed an offence so that he may be tried with the accused; following the Law Commission's 41st Report, its aim is that a person found involved does not go scot-free, and it must be exercised during the trial (paras 14-15, 19-20). A judgment of conviction is complete only when the sentence is imposed, since the judge must still hear the accused on sentence, as held in Rama Narang and Yakub Abdul Razak Memon (paras 23-27). The power can therefore be exercised before the sentence is imposed, or before acquittal (paras 22, 28). The court may decide whether the summoned accused is to be tried jointly or separately (para 29). A pending split-up trial against an absconding accused does not validate a summoning order made in the concluded main trial; the split-up trial's own evidence must point to the person (para 30). If the occasion arises after the case is reserved for judgment, the court should set it down for re-hearing (para 33).