Order passed by High Court in exercise of its revisional jurisdiction would relate back to the order of the Trial Court: SC

Supreme Court: While considering the instant appeal wherein the Division Bench of J.B. Pardiwala* and Manoj Misra, JJ., had to consider whether Allahabad 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 2 under section 319 of the CrPC. The Court upheld the approach of the High Court and stated that 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. The Court stated that an order passed by the High Court in exercise of its revisional jurisdiction would relate back to the order of the Trial Court. Furthermore, 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.

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; 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.

Background:

On 14-04-2009, Respondent 2 herein lodged a FIR for the offence punishable under Sections 147, 148, 149 and 302 of the Penal Code, 1860 (“IPC”) respectively against five persons. 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.

While the trial against 2 chargesheeted accused persons was in progress; Respondent 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. However, the Trial Court rejected the 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.

A revision petition was filed before the High Court wherein it requested the Trial Court to reconsider the prayer of Respondent 2. The Trial Court via order dated 19-7-2010 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 respondent preferred revision petition before the High Court and during the pendency of the revision petition, the trial concluded with the 2 accused being found guilty and sentenced to life term imprisonment. 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, via its impugned order in 2021.

The respondent hence filed another application dated 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.

The appellants being dissatisfied with the summoning order, challenged the afore-stated summons, which was rejected by the High Court via the impugned order stating that Section 319(4) of the CrPC provides that where the court proceeds against any person under Section 319(1), 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.

Court’s Assessment:

Perusing the matter, the Court took note of the legislative history of Section 319 of the CrPC and observed that it empowers the court to proceed against other persons appearing to be guilty of offence. Section 319 has been included in the statute book with the object of ensuring effective administration of justice. The legislature enacted Section 319 to eliminate any situation wherein the courts would feel helpless in proceeding against any person who appears to be guilty of committing an offence, more particularly, in cases where the investigating agency or prosecution files chargesheet only against a few persons in relation to an offence and leaves out a few others either intentionally or unintentionally. “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”.

Delving further into Section 319, the Court explained that 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 chargesheeted by the investigating agency or may have been discharged at an earlier stage.

The Court noted that the principal contention of the appellants was 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. It was pointed out that passing of a summoning order before the conclusion of trial is a requirement that flows from Section 319(1). This requirement is in no way qualified by the provision of a fresh trial Section 319(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 Section 319(1) of the CrPC during the pendency of the trial.

The summoning order would not become ineffective and inoperative so as to nullify the opinion earlier formed by the court on the basis of evidence before it that the newly added person appears to have committed the offence if the trial against the additional accused does not commence before the conclusion of the main trial in respect of the original accused. The expression “could be tried together with the accused” does not fetter the power of the Trial Court under Section 319 to conduct trial of the proposed accused persons even after the conclusion of the main trial provided the summoning order is passed before such conclusion. It is in this context that the Court stated that the said expression is to be construed as directory and not mandatory.

The Court however pointed out that the peculiar facts of the instant case cannot fully be covered by the guidelines laid down by the Supreme Court in Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC 289 and Hardeep Singh v. State of Punjab, (2014) 3 SCC 92. The power under Section 319 of the CrPC must be exercised by the court against the proposed accused before the conclusion of the trial in respect of the original accused. However, the factual matrix of the case at hand is one of its kind and requires the Court to take a step forward into a territory where the Court has not had the occasion to tread in any of its earlier decisions.

The peculiarity of the instant case lies in the fact that although the application under Section 319 of the CrPC was rejected before the conclusion of the trial, the same came to be allowed after the conclusion of the trial, and the case was remanded by the High Court for a fresh consideration due to a patent illegality in the order of rejection passed by the Trial Court. Therefore, the Court had to consider the legal effect of the order of the High Court setting aside the rejection of the second application by the Trial Court long after the conclusion of the trial. “More particularly, what needs to be determined is the interplay between power of courts under Section 319 vis-à- vis the revisional power of the High Court under Sections 397 to 401 of the CrPC”.

Examining whether High Court was right in exercising its revisional jurisdiction to set aside the order of the Trial Court rejecting the application under Section 319 and directing it to consider the same afresh, the Court stated that the High Court had observed that the settled position of law was that the filing or non-filing of a chargesheet would not have any effect on the power of the court to proceed against the proposed accused under Section 319 of the CrPC. Thus, the Supreme Court was of the view that the High Court was right in exercising its revisional jurisdiction as the order was passed to set aside the order of a subordinate court which was based on a misapplication of the settled position of law and thus could be said to have been suffering from a patent illegality.

Considering whether impugned order of the High Court in exercise of its revisional jurisdiction would relate back to the order passed by the Trial Court rejecting the application under Section 319 of the CrPC, the Court explained that facts of the case on hand are peculiar and therefore opined that the answer to present conundrum lies in determining the legal effect of the order passed by the High Court in exercise of its revisional jurisdiction and whether it operates from the date on which it came to be passed or would it relate back to the date of the order of the Trial Court against which it was passed.

The Court said that once a superior court deems fit to interfere with an order of a subordinate court, then any rectifications made to the order passed by the subordinate court by such superior court 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 relate back to the original order. That is to say, if the High Court passes an order in exercise of its revisional jurisdiction either setting aside or modifying the order of the Trial Court for the purpose of Section 319, the same would relate back to the original order passed by the Trial Court and substitute it to the extent of modification.

In the instant 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, 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.

The Court however clarified that when the order of the High Court passed in revision after the conclusion of trial relates back to the order of the Trial Court passed before the conclusion of trial, it must be taken to mean that the new accused would be proceeded against in a separate trial. Such a situation shall be governed by the guidelines provided in Sukhpal Singh Khaira (supra), more particularly, by the guideline in para 41.6 thereof. the Court clarified that with a view to obviate any confusion that there is no requirement for a decision by the Trial Court on the question of separation of trial in cases like the present one since the trial has already concluded in respect of the original accused and the only manner in which the order of the High Court can be given effect to is by proceeding in a separate trial qua the new accused persons.

The Court stated that in the instant case, the Trial Court considered the application under Section 319 of the CrPC and after rejecting the same proceeded with the trial and concluded the same. The High Court, in exercise of its revisional jurisdiction, held that the rejection of the application under Section 319 by the Trial Court suffered from a patent illegality and thus directed the Trial Court to reconsider the application. In such circumstances, more particularly, keeping in mind the avowed objective of Section 319 of the CrPC, it cannot be held that the order passed by the High Court in revision cannot be given effect to merely because the trial came to be concluded before an order could be passed by the High Court. Unlike the facts in Sukhpal Singh Khaira (supra), the instant case was not a case wherein the application under Section 319 came to be filed or decided by the Trial Court after the conclusion of the trial. Instead, the case at hand is one wherein the application under Section 319 though decided at the correct stage, came to be decided wrongly owing to a patent illegality committed by the Trial Court. In such circumstances, an approach which gives full effect to the legislative intention behind Section 319 of the CrPC must be adopted.

With the afore-stated assessment, the Court opined that order passed in revision by the High Court cannot be rendered ineffective merely on procedural grounds especially when it involves substantive rights of the parties and seeks to cure a patent illegality. However, although the law allows for travelling back of the revisional order of the High Court, yet it is far from ideal to do so after the passage of a substantial period of time, in this case, ten years after the conclusion of trial. The correct approach to be adopted in cases like this is that the High Court should direct the Trial Court to stay its proceedings till the revision proceedings in respect of Section 319 are disposed of. At the same time, the High Court must also expedite the revision proceedings so as to ensure that unreasonable delay is not caused in the conclusion of trial.

Buy Code of Criminal Procedure, 1973  HERE

Buy Penal Code, 1860   HERE