Supreme Court of India
Yadwinder Singh vs Lakhi Alias Lakhwinder Singh on 26 March, 2025
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
1
REPORTABLE
2025 INSC 420
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. OF 2025
[Arising out of SLP (Crl.) Nos.14822-14829 of 2024]
YADWINDER SINGH APPELLANT
VERSUS
LAKHI ALIAS LAKHWINDER SINGH & ANR. ETC. RESPONDENTS
J U D G M E N T
AHSANUDDIN AMANULLAH & PRASHANT KUMAR MISHRA, JJ.
Leave granted. By way of extraordinary indulgence to the
respondents, we have taken up the matter(s) de novo. The
instant Judgment be, therefore, read and contextualised in
conjunction with our Order dated 19.03.2025.
2. Heard learned counsel and learned senior counsel for the
parties.
3. The present appeals are directed against the Impugned
Signature Not Verified
Order dated 18.07.2024 [2024 SCC OnLine P&H 11673] passed by a
Digitally signed by
SAPNA BISHT
Date: 2025.04.01
17:43:22 IST
Reason:
learned Single Bench of the High Court of Punjab and Haryana
2
at Chandigarh by which summons issued under Section 3191 of
the Code of Criminal Procedure, 1973 (hereinafter referred to
as the ‘Code’) by the learned Trial Court against the private
respondents in connection with First Information Report No.50
of 2020 (hereinafter referred to as ‘FIR’) registered at
Police Station Passiana, District Patiala, Punjab were set
aside.
APPELLANT’S SUBMISSIONS:
4. Learned counsel for the appellant, Mr Jitesh Malik,
submits that the appellant is the complainant/informant and
his brother had died. It was submitted that in the FIR itself,
all the respondents/accused were identified ‘in the light of
the car’2 and it was a brutal murder where the deceased was
pulled out from the car and then done to death. Learned
counsel submitted that the issuance of summons was on the
basis of the tentative view formed by the Trial Court, being
that of likely involvement of the private respondents in the
1
‘319. Power to proceed against other persons appearing to be guilty of offence .—(1) Where, in the
course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the
accused has committed any offence for which such person could be tried together with the accused, the Court
may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of
the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such
Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1) then—
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-
heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an
accused person when the Court took cognizance of the offence upon which the inquiry or trial
was commenced.’
2
We take it that this means that the identity of the accused was discernible to the appellant-complainant
despite it being 8.30pm in the night.
3
crime and ought not to have been interfered with by the High
Court at such a preliminary stage, especially when the Trial
Court had found sufficient material to summon the private
respondents/accused. Prayer was made to allow the appeals.
PRIVATE RESPONDENTS’ SUBMISSIONS:
5. Per contra, the private respondents led by Mr. Gopal
Sankaranarayanan, learned senior counsel, submit that the
instant is not a fit case where this Court should interfere.
It was contended that power to summon a person as accused
under Section 319 of the Code, though exists on the statute-
book but is to be sparingly used and under very fitting
circumstances. It was submitted that the Courts have
consistently held that the test would be higher than at the
stage of framing of charge and just short of holding a person
guilty of the charge. It was submitted that in the present
case, as per the allegation in the FIR itself, 24 persons had
come on three different vehicles, which, to begin with, was
highly improbable and impractical. Further, it was submitted
that the complainant’s initial version is that he along with
the deceased were travelling in the car, whereas in his
deposition before the Court, it is stated that three persons
were travelling in the car i.e., PW1 (who is the informant
himself) alongwith the deceased and their other brother i.e.,
4
PW2. It was urged that this was not a minor and natural
variation but a clear building-up of a case against others and
to get additional eye-witnesses created, since there was no
other independent corroboration of the incident in question.
6. Learned senior counsel submitted that in the present
case, after the lodging of the FIR, a Special Investigation
Team (hereinafter referred to as ‘SIT’) was set up to verify
the facts because of the sensitive nature of the incident. It
was advanced that the SIT found that the respondents could not
have been at the place of occurrence for cogent reasons both
on the basis of witnesses supporting their presence at some
other place(s) and also on the basis of CCTV3 footage, which
is electronic evidence. Learned senior counsel submitted that
the fall-out was due to political rivalry as the deceased was
a sitting Sarpanch. In support of his contentions, he relied
upon Brijendra Singh v State of Rajasthan, (2017) 7 SCC 706 to
contend that the power to summon under Section 319 of the Code
has been circumscribed by the conditions laid down by this
Court from time-to-time. Going by the same, in the present
case where only two prosecution witnesses, that too close
relatives of the deceased, have been examined, without being
subjected to any cross-examination, the repetition of the
version in the FIR with the addition that the other eye-
3
Abbreviation for Closed Circuit Television.
5
witness viz. PW-2 has been introduced as being present in the
car in which the deceased and PW1/informant were travelling
was not sufficient to fulfil the requirement for invoking
power under Section 319 of the Code. In the present case,
learned senior counsel contended that from Paragraph 15 of
Brijendra Singh (supra), the following law emerges, which was
a case where witnesses had been examined and after that
summons under Section 319 of the Code were issued, and the
Court held:
‘15. This record was before the trial court.
Notwithstanding the same, the trial court went by
the deposition of complainant and some other persons
in their examination-in-chief, with no other
material to support their so-called verbal/ocular
version. Thus, the ‘evidence’ recorded during trial
was nothing more than the statements which was
already there under Section 161 Cr.P.C. recorded at
the time of investigation of the case. No doubt, the
trial court would be competent to exercise its power
even on the basis of such statements recorded before
it in examination-in-chief. However, in a case like
the present where plethora of evidence was collected
by the IO during investigation which suggested
otherwise, the trial court was at least duty bound
to look into the same while forming prima facie
opinion and to see as to whether ‘much stronger
evidence than mere possibility of their (i.e.
appellants) complicity has come on record. There is
no satisfaction of this nature. Even if we presume
that the trial court was not apprised of the same at
the time when it passed the order (as the appellants
were not on the scene at that time), what is more
troubling is that even when this material on record
was specifically brought to the notice of the High
Court in the Revision Petition filed by the
appellants, the High Court too blissfully ignored
the said material. Except reproducing the discussion
contained in the order of the trial court and
expressing agreement therewith, nothing more has
6
been done. Such orders cannot stand judicial
scrutiny.’
7. The private respondents also cited Jamin v State of Uttar
Pradesh, 2025 SCC OnLine SC 506. The private respondents,
collectively, sought dismissal of these appeals.
APPELLANT’S REJOINDER:
8. By way of rejoinder, learned counsel for the appellant
submits that though there has been consistency in the stand of
the appellant with regard to presence of all the private
persons concerned i.e., that they came in three cars and that
their presence has also been supported by two eye-witnesses,
including the appellant, the SIT for obvious reasons, as the
case has a political nature, shielded the private respondents.
It was submitted that during trial, when in deposition,
persons claiming to be eye-witnesses take the name of the
private respondents as being present on the spot, it is always
in the interest of justice that at the earliest point of time
possible, they are called upon, so that the trial does not
linger or has to revert back to an early stage, to enable the
persons so summoned to go through the paraphernalia of cross-
examining all the witnesses, which has to be in their
presence. It was submitted that in the recent judgment in
Jamin (supra), the foundational facts were different inasmuch
as the persons who were summoned under Section 319 of the Code
7
were still under investigation by the police. Thus, in that
view, the Court held there was no occasion for the Court to
jump the gun and issue summons under Section 319 of the Code.
STATE IN ABSENTIA:
9. Regrettably, despite service of notice, none appeared for
the State of Punjab. In this case, before the High Court, the
stand of the State was that the private respondents ‘have
rightly been declared innocent.’ The State should not forget
that in criminal matters, it acts as investigator and
prosecutor and must be available to assist the Courts when
called upon so to do. Let a copy of this Judgment be
despatched to the Legal Remembrancer and Principal Secretary,
Department of Legal and Legislative Affairs, Government of
Punjab by the Registry, for information and appropriate
remedial steps.
ANALYSIS, REASONING AND CONCLUSION:
10. Having thoughtfully considered the submissions of learned
counsel for the parties and upon going through the materials
available on record, we find that the order impugned requires
interference. Let us first survey the legal position
pertaining to Section 319 of the Code.
8
11. In Hardeep Singh v State of Punjab, (2014) 3 SCC 92, a
5-Judge Bench explained:
‘12. Section 319 CrPC springs out of the
doctrine judex damnatur cum nocens absolvitur (Judge
is condemned when guilty is acquitted) and this
doctrine must be used as a beacon light while
explaining the ambit and the spirit underlying the
enactment of Section 319 CrPC.
13. It is the duty of the court to do justice by
punishing the real culprit. Where the investigating
agency for any reason does not array one of the real
culprits as an accused, the court is not powerless
in calling the said accused to face trial. The
question remains under what circumstances and at
what stage should the court exercise its power as
contemplated in Section 319 CrPC?
xxx
16. It is at this stage that the comparison of the
words used under Section 319 CrPC has to be
understood distinctively from the words used under
Section 2(g) defining an inquiry other than the
trial by a Magistrate or a court. Here the
legislature has used two words, namely, the
Magistrate or court, whereas under Section 319 CrPC,
as indicated above, only the word “court” has been
recited. This has been done by the legislature to
emphasise that the power under Section 319 CrPC is
exercisable only by the court and not by any officer
not acting as a court. Thus, the Magistrate not
functioning or exercising powers as a court can make
an inquiry in a particular proceeding other than a
trial but the material so collected would not be by
a court during the course of an inquiry or a trial.
The conclusion therefore, in short, is that in order
to invoke the power under Section 319 CrPC, it is
only a Court of Session or a Court of Magistrate
performing the duties as a court under CrPC that can
utilise the material before it for the purpose of
the said section.
17. Section 319 CrPC allows the court to proceed
against any person who is not an accused in a case
before it. Thus, the person against whom summons are
9
issued in exercise of such powers, has to
necessarily not be an accused already facing trial.
He can either be a person named in Column 2 of the
charge-sheet filed under Section 173 CrPC or a
person whose name has been disclosed in any material
before the court that is to be considered for the
purpose of trying the offence, but not investigated.
He has to be a person whose complicity may be
indicated and connected with the commission of the
offence.
18. The legislature cannot be presumed to have
imagined all the circumstances and, therefore, it is
the duty of the court to give full effect to the
words used by the legislature so as to encompass any
situation which the court may have to tackle while
proceeding to try an offence and not allow a person
who deserves to be tried to go scot-free by being
not arraigned in the trial in spite of the
possibility of his complicity which can be gathered
from the documents presented by the prosecution.
19. The court is the sole repository of justice and
a duty is cast upon it to uphold the rule of law
and, therefore, it will be inappropriate to deny the
existence of such powers with the courts in our
criminal justice system where it is not uncommon
that the real accused, at times, get away by
manipulating the investigating and/or the
prosecuting agency. The desire to avoid trial is so
strong that an accused makes efforts at times to get
himself absolved even at the stage of investigation
or inquiry even though he may be connected with the
commission of the offence.
xxx
55. Accordingly, we hold that the court can exercise
the power under Section 319 CrPC only after the
trial proceeds and commences with the recording of
the evidence and also in exceptional circumstances
as explained hereinabove.
xxx
78. It is, therefore, clear that the word “evidence”
in Section 319 CrPC means only such evidence as is
made before the court, in relation to statements,
10
and as produced before the court, in relation to
documents. It is only such evidence that can be
taken into account by the Magistrate or the court to
decide whether the power under Section 319 CrPC is
to be exercised and not on the basis of material
collected during the investigation.
79. The inquiry by the court is neither attributable
to the investigation nor the prosecution, but by the
court itself for collecting information to draw back
a curtain that hides something material. It is the
duty of the court to do so and therefore the power
to perform this duty is provided under CrPC.
xxx
83. It is, therefore, not any material that can be
utilised, rather it is that material after
cognizance is taken by a court, that is available to
it while making an inquiry into or trying an
offence, that the court can utilise or take into
consideration for supporting reasons to summon any
person on the basis of evidence adduced before the
court, who may be on the basis of such material,
treated to be an accomplice in the commission of the
offence. The inference that can be drawn is that
material which is not exactly evidence recorded
before the court, but is a material collected by the
court, can be utilised to corroborate evidence
already recorded for the purpose of summoning any
other person, other than the accused. This would
harmonise such material with the word “evidence” as
material that would be supportive in nature to
facilitate the exposition of any other accomplice
whose complicity in the offence may have either been
suppressed or escaped the notice of the court.
84. The word “evidence” therefore has to be
understood in its wider sense both at the stage of
trial and, as discussed earlier, even at the stage
of inquiry, as used under Section 319 CrPC. The
court, therefore, should be understood to have the
power to proceed against any person after summoning
him on the basis of any such material as brought
forth before it. The duty and obligation of the
court becomes more onerous to invoke such powers
cautiously on such material after evidence has been
led during trial.
11
xxx
89. We have given our thoughtful consideration to
the diverse views expressed in the aforementioned
cases. Once examination-in-chief is conducted, the
statement becomes part of the record. It is evidence
as per law and in the true sense, for at best, it
may be rebuttable. An evidence being rebutted or
controverted becomes a matter of consideration,
relevance and belief, which is the stage of judgment
by the court. Yet it is evidence and it is material
on the basis whereof the court can come to a prima
facie opinion as to complicity of some other person
who may be connected with the offence.
90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd.
Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889:
AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13 SCC
608: (2010) 1 SCC (Cri) 1135], all that is required
for the exercise of the power under Section 319 CrPC
is that, it must appear to the court that some other
person also who is not facing the trial, may also
have been involved in the offence. The prerequisite
for the exercise of this power is similar to the
prima facie view which the Magistrate must come to
in order to take cognizance of the offence.
Therefore, no straitjacket formula can and should be
laid with respect to conditions precedent for
arriving at such an opinion and, if the
Magistrate/court is convinced even on the basis of
evidence appearing in examination-in-chief, it can
exercise the power under Section 319 CrPC and can
proceed against such other person(s). It is
essential to note that the section also uses the
words “such person could be tried” instead
of should be tried. Hence, what is required is not
to have a mini-trial at this stage by having
examination and cross-examination and thereafter
rendering a decision on the overt act of such person
sought to be added. In fact, it is this mini-trial
that would affect the right of the person sought to
be arraigned as an accused rather than not having
any cross-examination at all, for in light of sub-
section (4) of Section 319 CrPC, the person would be
entitled to a fresh trial where he would have all
the rights including the right to cross-examine
prosecution witnesses and examine defence witnesses
12
and advance his arguments upon the same. Therefore,
even on the basis of examination-in-chief, the court
or the Magistrate can proceed against a person as
long as the court is satisfied that the evidence
appearing against such person is such that it prima
facie necessitates bringing such person to face
trial. In fact, examination-in-chief untested by
cross-examination, undoubtedly in itself, is an
evidence.
91. Further, in our opinion, there does not seem to
be any logic behind waiting till the cross-
examination of the witness is over. It is to be kept
in mind that at the time of exercise of power under
Section 319 CrPC, the person sought to be arraigned
as an accused, is in no way participating in the
trial. Even if the cross-examination is to be taken
into consideration, the person sought to be
arraigned as an accused cannot cross-examine the
witness(es) prior to passing of an order under
Section 319 CrPC, as such a procedure is not
contemplated by CrPC. Secondly, invariably the State
would not oppose or object to naming of more persons
as an accused as it would only help the prosecution
in completing the chain of evidence, unless the
witness(es) is obliterating the role of persons
already facing trial. More so, Section 299 CrPC
enables the court to record evidence in absence of
the accused in the circumstances mentioned therein.
92. Thus, in view of the above, we hold that power
under Section 319 CrPC can be exercised at the stage
of completion of examination-in-chief and the court
does not need to wait till the said evidence is
tested on cross-examination for it is the
satisfaction of the court which can be gathered from
the reasons recorded by the court, in respect of
complicity of some other person(s), not facing the
trial in the offence.
xxx
105. Power under Section 319 CrPC is a discretionary
and an extraordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is not to
be exercised because the Magistrate or the Sessions
Judge is of the opinion that some other person may
13
also be guilty of committing that offence. Only
where strong and cogent evidence occurs against a
person from the evidence led before the court that
such power should be exercised and not in a casual
and cavalier manner.
106. Thus, we hold that though only a prima facie
case is to be established from the evidence led
before the court, not necessarily tested on the
anvil of cross-examination, it requires much
stronger evidence than mere probability of his
complicity. The test that has to be applied is one
which is more than prima facie case as exercised at
the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence
of such satisfaction, the court should refrain from
exercising power under Section 319 CrPC. In Section
319 CrPC the purpose of providing if “it appears
from the evidence that any person not being the
accused has committed any offence” is clear from the
words “for which such person could be tried together
with the accused”. The words used are not “for which
such person could be convicted”. There is,
therefore, no scope for the court acting under
Section 319 CrPC to form any opinion as to the guilt
of the accused.
xxx
116. Thus, it is evident that power under Section
319 CrPC can be exercised against a person not
subjected to investigation, or a person placed in
Column 2 of the charge-sheet and against whom
cognizance had not been taken, or a person who has
been discharged. However, concerning 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.
xxx
117.3. In view of the above position the word
“evidence” in Section 319 CrPC has to be broadly
understood and not literally i.e. as evidence
brought during a trial.
14
Question (ii)—Whether the word “evidence” used in
Section 319(1) CrPC could only mean evidence tested
by cross-examination or the court can exercise the
power under the said provision even on the basis of
the statement made in the examination-in-chief of
the witness concerned?
Answer
117.4. Considering the fact that under Section 319
CrPC a person against whom material is disclosed is
only summoned to face the trial and in such an event
under Section 319(4) CrPC the proceeding against
such person is to commence from the stage of taking
of cognizance, the court need not wait for the
evidence against the accused proposed to be summoned
to be tested by cross-examination.
Question (iv)—What is the nature of the satisfaction
required to invoke the power under Section 319 CrPC
to arraign an accused? Whether the power under
Section 319(1) CrPC can be exercised only if the
court is satisfied that the accused summoned will in
all likelihood be convicted?
Answer
117.5. Though under Section 319(4)(b) CrPC the
accused subsequently impleaded is to be treated as
if he had been an accused when the court initially
took cognizance of the offence, the degree of
satisfaction that will be required for summoning a
person under Section 319 CrPC would be the same as
for framing a charge. The difference in the degree
of satisfaction for summoning the original accused
and a subsequent accused is on account of the fact
that the trial may have already commenced against
the original accused and it is in the course of such
trial that materials are disclosed against the newly
summoned accused. Fresh summoning of an accused will
result in delay of the trial therefore the degree of
satisfaction for summoning the accused (original and
subsequent) has to be different.
Question (v)—Does the power under Section 319 CrPC
extend to persons not named in the FIR or named in
the FIR but not charge-sheeted or who have been
discharged?
Answer
117.6. A person not named in the FIR or a person
though named in the FIR but has not been charge-
sheeted or a person who has been discharged can be
15
summoned under Section 319 CrPC provided from the
evidence it appears that such person can be tried
along with the accused already facing trial.
However, insofar as an accused who has been
discharged is concerned the requirement of Sections
300 and 398 CrPC has to be complied with before he
can be summoned afresh.’
(emphasis supplied)
12. In Brijendra Singh (supra), the Court reiterated, inter
alia:
’13. … However, since it is a discretionary power
given to the court under Section 319 CrPC and is
also an extraordinary one, same has to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. The degree of
satisfaction is more than the degree which is
warranted at the time of framing of the charges
against others in respect of whom charge-sheet was
filed. Only where strong and cogent evidence occurs
against a person from the evidence led before the
court that such power should be exercised. It is not
to be exercised in a casual or a cavalier manner.
The prima facie opinion which is to be formed
requires stronger evidence than mere probability of
his complicity.’
(emphasis supplied)
13. In Ramesh Chandra Srivastava v State of Uttar Pradesh,
(2021) 12 SCC 608, a 2-Judge Bench noted:
‘10. We say this for the following reason: The test
as laid down by the Constitution Bench of this Court
for invoking power under Section 319CrPC inter alia
includes the principle that only when strong and
cogent evidence occurs against a person from the
evidence the power under Section 319CrPC should be
exercised. The power cannot be exercised in a casual
and cavalier manner. The test to be applied, as laid
down by this Court, is one which is more than prima
facie case which is applied at the time of framing
of charges.
16
11. It will all depend upon the evidence which is
tendered in a given case as to whether there is a
strong ground within the meaning of para 105.’
(emphasis supplied)
14. In Sukhpal Singh Khaira v State of Punjab, (2023) 1 SCC
289, another 5-Judge Bench elucidated:
‘15. At the outset, having noted the provision, it
is amply clear that the power bestowed on the court
is to the effect that in the course of an inquiry
into, or trial of an offence, based on the evidence
tendered before the court, if it appears to the
court that such evidence points to any person other
than the accused who are being tried before the
court to have committed any offence and such accused
has been excluded in the charge-sheet or in the
process of trial till such time could still be
summoned and tried together with the accused for the
offence which appears to have been committed by such
persons summoned as additional accused.
xxx
23. A close perusal of Section 319CrPC indicates
that the power bestowed on the court to summon any
person who is not an accused in the case is, when in
the course of the trial it appears from the evidence
that such person has a role in committing the
offence. Therefore, it would be open for the court
to summon such a person so that he could be tried
together with the accused and such power is
exclusively of the court. Obviously, when such power
is to summon the additional accused and try such a
person with the already charged accused against whom
the trial is proceeding, it will have to be
exercised before the conclusion of trial. The
connotation “conclusion of trial” in the present
case cannot be reckoned as the stage till the
evidence is recorded, but, is to be understood as
the stage before pronouncement of the judgment as
already held in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92: (2014) 2
SCC (Cri) 86] since on judgment being pronounced the
trial comes to a conclusion since until such time
the accused is being tried by the court.
17
xxx
33. In that view of the matter, if the court finds
from the evidence recorded in the process of trial
that any other person is involved, such power to
summon the accused under Section 319CrPC can be
exercised by passing an order to that effect before
the sentence is imposed and the judgment is complete
in all respects bringing the trial to a conclusion.
While arriving at such conclusion what is also to be
kept in view is the requirement of sub-section (4)
to Section 319CrPC. From the said provision it is
clear that if the learned Sessions Judge exercises
the power to summon the additional accused, the
proceedings in respect of such person shall be
commenced afresh and the witnesses will have to be
re-examined in the presence of the additional
accused. In a case where the learned Sessions Judge
exercises the power under Section 319CrPC after
recording the evidence of the witnesses or after
pronouncing the judgment of conviction but before
sentence being imposed, the very same evidence which
is available on record cannot be used against the
newly added accused in view of Section 273CrPC. As
against the accused who has been summoned
subsequently a fresh trial is to be held. However
while considering the application under Section
319CrPC, if the decision by the learned Sessions
Judge is to summon the additional accused before
passing the judgment of conviction or passing an
order on sentence, the conclusion of the trial by
pronouncing the judgment is required to be withheld
and the application under Section 319CrPC is
required to be disposed of and only then the
conclusion of the judgment, either to convict the
other accused who were before the Court and to
sentence them can be proceeded with. This is so
since the power under Section 319CrPC can be
exercised only before the conclusion of the trial by
passing the judgment of conviction and sentence.
34. Though Section 319CrPC provides that such person
summoned as per sub-section (1) thereto could be
jointly tried together with the other accused,
keeping in view the power available to the court
under Section 223CrPC to hold a joint trial, it
18
would also be open to the learned Sessions Judge at
the point of considering the application under
Section 319CrPC and deciding to summon the
additional accused, to also take a decision as to
whether a joint trial is to be held after summoning
such accused by deferring the judgment being passed
against the tried accused. If a conclusion is
reached that the fresh trial to be conducted against
the newly added accused could be separately tried,
in such event it would be open for the learned
Sessions Judge to order so and proceed to pass the
judgment and conclude the trial insofar as the
accused against whom it had originally proceeded and
thereafter proceed in the case of the newly added
accused. However, what is important is that the
decision to summon an additional accused either suo
motu by the court or on an application under Section
319CrPC shall in all eventuality be considered and
disposed of before the judgment of conviction and
sentence is pronounced, as otherwise, the trial
would get concluded and the court will get divested
of the power under Section 319CrPC. Since a power is
available to the court to decide as to whether a
joint trial is required to be held or not, this
Court was justified in holding the phrase, “could be
tried together with the accused” as contained in
Section 319(1)CrPC, to be directory as held
in Shashikant Singh [Shashikant Singh v. Tarkeshwar
Singh, (2002) 5 SCC 738: 2002 SCC (Cri) 1203] which
in our opinion is the correct view.
xxx
38. For all the reasons stated above, we answer the
questions referred as hereunder.
39.(I) Whether the trial court has the power under
Section 319CrPC for summoning additional accused
when the trial with respect to other co-accused has
ended and the judgment of conviction rendered on the
same date before pronouncing the summoning order?
The power under Section 319CrPC 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. Hence, the summoning order has to
19
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.
40.(II) Whether the trial court has the power under
Section 319CrPC for summoning additional accused
when the trial in respect of certain other
absconding accused (whose presence is subsequently
secured) is ongoing/pending, having been bifurcated
from the main trial?
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,
subject to the evidence recorded in the split-up
(bifurcated) trial pointing to the involvement of
the accused sought to be summoned. 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.
41.(III) What are the guidelines that the competent
court must follow while exercising power under
Section 319CrPC?
41.1. If the competent court finds evidence or if
application under Section 319CrPC 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.
41.2. The court shall thereupon first decide the
need or otherwise to summon the additional accused
and pass orders thereon.
41.3. If the decision of the court is to exercise
the power under Section 319CrPC and summon the
accused, such summoning order shall be passed before
proceeding further with the trial in the main case.
41.4. If the summoning order of additional accused
is passed, depending on the stage at which it is
20
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.
41.5. If the decision is for joint trial, the fresh
trial shall be commenced only after securing the
presence of the summoned accused.
41.6. 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.
41.7. If the proceeding paused as in para 41.1
above, is in a case where the accused who were tried
are to be acquitted, and the decision is that the
summoned accused can be tried afresh separately,
there will be no impediment to pass the judgment of
acquittal in the main case.
41.8. If the power is not invoked or exercised in
the main trial till its conclusion and if there is a
split-up (bifurcated) case, the power under Section
319CrPC can be invoked or exercised only if there is
evidence to that effect, pointing to the involvement
of the additional accused to be summoned in the
split-up (bifurcated) trial.
41.9. If, after arguments are heard and the case is
reserved for judgment the occasion arises for the
Court to invoke and exercise the power under Section
319CrPC, the appropriate course for the court is to
set it down for re-hearing.
41.10. On setting it down for re-hearing, the above
laid down procedure to decide about summoning;
holding of joint trial or otherwise shall be decided
and proceeded with accordingly.
41.11. Even in such a case, at that stage, if the
decision is to summon additional accused and hold a
joint trial the trial shall be conducted afresh
and de novo proceedings be held.
21
41.12. If, in that circumstance, the decision is to
hold a separate trial in case of the summoned
accused as indicated earlier:
(a) The main case may be decided by pronouncing the
conviction and sentence and then proceed afresh
against summoned accused.
(b) In the case of acquittal the order shall be
passed to that effect in the main case and then
proceed afresh against summoned accused.’
(emphasis supplied)
15. We are cognizant of the observations in Shishupal Singh
v State of Uttar Pradesh, (2019) 8 SCC 682 and Yashodhan Singh
v State of Uttar Pradesh, (2023) 9 SCC 108. A Coordinate
Bench, recently in Jamin (supra), has stated, inter alia:
‘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
22
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
23
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.’
(emphasis supplied)
16. The law contemplates and provides for a different outcome
under Section 319 of the Code, dependent on the peculiar
factual premises of a case. Juxtaposition of the law with the
instant factual backdrop reveals as under: It is true that the
SIT found no evidence against the private respondents, however
such factum by itself puts no fetters on the powers bestowed
under Section 319 of the Code. Moreover, eye-witnesses in the
Trial Court have named the private respondents as persons
present on the site of occurrence. The hardship, were we to
adjudge it at this juncture, could be more if the private
respondents are not summoned than opposed to if they are.
17. Be it noted, the private respondents will have all
defences open to them before the Trial Court to put forth
their version of innocence, including by way of resort to
cross-examination. Trial being an exercise to unravel the
truth, given the depositions before the Trial Court, to
absolve the private respondents based on the SIT’s findings
alone, to our mind, may not be in the best interests of
justice. Indubitably, while an innocent person should not be
24
punished, no guilty person should go scot-free. The Trial
Court could have better worded its order through clearer
reasoning. Reproduction of a passage from Ramkrishna Forgings
Limited v Ravindra Loonkar, (2024) 2 SCC 122 is apt:
‘39. In the recent past, from Kranti Associates (P)
Ltd. v. Masood Ahmed Khan [Kranti Associates (P)
Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496: (2010)
3 SCC (Civ) 852] to Manoj Kumar Khokhar v. State of
Rajasthan [Manoj Kumar Khokhar v. State of
Rajasthan, (2022) 3 SCC 501: (2022) 2 SCC (Cri) 1],
the clear position in law is that a court or even a
quasi-judicial authority has a duty to record
reasons for its decision. Needless to add, “Reason
is the heartbeat of every conclusion. Without the
same, it becomes lifeless.” [Raj Kishore
Jha v. State of Bihar, (2003) 11 SCC 519: 2004 SCC
(Cri) 212]…’
18. On an overall conspectus, the discretion exercised by
the Trial Court cannot be said to be
capricious/arbitrary/mechanical in juxtaposition with the
facts, subject to the comment supra. But then, this Court
cannot be oblivious to the work pressure on the learned Judges
manning the District and Trial Courts. When we are satisfied
that a case is made out to summon the private respondents, in
the totality of the relevant considerations, the order
impugned cannot withstand judicial scrutiny and will have to
be interdicted. Accordingly, the Impugned Order dated
18.07.2024 passed by the High Court is set aside and the
Criminal Appeals are allowed. The Trial Court shall issue
fresh summons against the private respondents. If they do not
25
appear, the Trial Court shall make all efforts to secure their
appearance and proceed as per law.
19. Observations hereinabove are restricted to the purpose of
deciding the challenge to the Impugned Order and shall have no
bearing on the merits of the underlying case. All factual and
legal contentions are left open to be pressed into service
before the Court concerned, at the appropriate stage.
…………………………………………………………J.
[AHSANUDDIN AMANULLAH]
…………………………………………………………J.
[PRASHANT KUMAR MISHRA]
NEW DELHI
26th MARCH, 2025
26
ITEM 7 COURT 16 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal Nos._____ of 2025
[@Petition(s) for Special Leave to Appeal (Crl.) No(s).14822-
14829/2024]
[Arising out of the Impugned Final Judgment and Order dated
18-07-2024 in CRMM No.44097/2022, CRR No.1204/2022, CRR
No.1474/2022, CRR No.1513/2022, CRR No.1558/2022, CRR
No.1695/2022, CRMM No.20532/2022 and CRMM No.25310/2022 passed
by the High Court of Punjab & Haryana at Chandigarh]
YADWINDER SINGH Petitioner
VERSUS
LAKHI ALIAS LAKHWINDER SINGH & ORS. Respondents
Date : 26-03-2025 These petitions were taken up for hearing
today.
CORAM :
HON'BLE MR. JUSTICE AHSANUDDIN AMANULLAH
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA
For Petitioner :
Mr. Jitesh Malik, Adv.
Ms. Anisha Dahiya, Adv.
Mr. Jatin Hooda, Adv.
Ms. Anjana Sharma, Adv.
Mr. Abhay Singh, Adv.
Mr. Satish Kumar, AoR
For Respondents :
Mr. Saurabh Singh Chauhan, Adv.
Mr. Rajeev Kumar Dubey, AoR
Mr. Gopal Sankaranarayanan, Sr. Adv.
Mr. Diggaj Pathak, AoR
Ms. Shweta Sharma, Adv.
Mr. Naveen Gaur, Adv.
Ms. Vaibhavi Pathak, Adv.
Mr. B. Abishek, Adv.
Mr. Pradyut Kashyap, Adv.
Ms. Shreya Nair, Adv.
Mr. Shivam Harsana, Adv.
27
Mr. Karan Kapoor, Adv.
Mr. Manik Kapoor, Adv.
Mr. Shrey Kapoor, AoR
UPON hearing learned Counsel, the Court passed the following
O R D E R
1. Hon. Ahsanuddin Amanullah, J. dictated the Judgment on behalf of the Court for the Bench comprising His Lordship and Hon. Prashant Kumar Mishra, J.
2. Their Lordships, after granting leave, allowed the Criminal Appeals in terms of the signed Reportable Judgment.
(SAPNA BISHT) (ANJALI PANWAR) COURT MASTER (SH) COURT MASTER (NSH)
[Signed Reportable Judgment is placed on the file.]