He was summoned as an accused after the trial ended. The Supreme Court asks: when is too late?

The judge convicted 9 people, sentenced them, and then summoned a 10th accused — all on the same day. The Supreme Court had to decide: was that too late?

It was 31 October 2017. Inside a Sessions Court in Punjab, the judge read out the verdict in a drug trafficking case. Nine men were convicted. One was acquitted. Sentences were pronounced. The courtroom should have been done. But the judge wasn't finished. On the same day, he signed another order — summoning a tenth man, Sukhpal Singh Khaira, to stand trial as an additional accused.

The question that followed would take five years and a five-judge bench of the Supreme Court to answer: when exactly does a trial end? And at what point does a judge lose the power to call a new accused into the dock?

When the witnesses changed their story

The story begins in March 2015, when an FIR (a written complaint that starts a police investigation) was registered at Police Station Sadar, Jalalabad in Punjab. Eleven people were named for offences under the NDPS Act (the Narcotic Drugs and Psychotropic Substances Act, which governs drug-related crimes), the Arms Act, and the IT Act. Ten of them were charge-sheeted and put on trial. The eleventh had absconded — his case was split off to be dealt with separately.

During the trial, something unexpected happened. The prosecution recalled two witnesses who had already testified. This time, those witnesses named Sukhpal Singh Khaira — a person who had never been an accused in the case. The prosecution moved an application under Section 319 of the CrPC (the provision that allows a court to summon additional persons who appear to be guilty based on evidence during trial), seeking to add Khaira and four others as new accused.

The trial court did not act immediately. It waited until the very end.

The same-day sequence that triggered the dispute

On 31 October 2017, the Sessions Judge delivered judgment in the main case. Nine of the ten original accused were convicted. One was acquitted. The judge then imposed sentences on the convicted men. Only after that — after the judgment of conviction and the sentencing were both complete — did the judge allow the Section 319 application and summon Sukhpal Singh Khaira to face trial.

Khaira challenged this order before the High Court of Punjab and Haryana, arguing that the trial court had lost jurisdiction to summon him once the trial had concluded with conviction and sentence. The High Court dismissed his revision petition (a request to the higher court to review the lower court's order).

The Supreme Court agreed to hear the appeal. But the two-judge bench that first took up the case realised that the question at its heart — the precise stage at which the power under Section 319 CrPC expires — was too important to be decided by two judges alone. It referred the matter to a five-judge constitution bench.

What Section 319 actually says

Section 319 of the CrPC gives a trial court a powerful tool. If during a trial it appears from the evidence that someone other than the accused is also guilty of the offence, the court can summon that person and proceed against them. The provision is designed to prevent guilty persons from escaping justice simply because the police or the prosecution failed to name them in the charge sheet.

But the provision does not explicitly say when this power ends. Does it expire when the judgment is pronounced? When the sentence is imposed? When the court rises for the day? The statute is silent on this, and different High Courts had given different answers.

The prosecution argued that the trial court had acted within its powers. The evidence against Khaira had emerged during the trial, and the judge had summoned him based on that evidence. The timing — on the same day as the conviction and sentence — was merely a matter of administrative convenience.

Khaira's lawyers argued the opposite. They said a trial concludes when the judgment of conviction or acquittal is pronounced. After that moment, the court becomes functus officio (a Latin term meaning the court has completed its function and has no further authority in the matter). Summoning a new accused after the trial is over, they argued, was a nullity.

Why the sentence matters more than the verdict

The five-judge bench — comprising Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, and B.V. Nagarathna — delivered its judgment on 5 December 2022. The court held that the key moment is not the pronouncement of guilt or innocence, but the imposition of sentence.

The reasoning drew from several provisions of the CrPC read together. Section 235(2) requires the court to hear the accused on the question of sentence before imposing it. Section 353 deals with the manner in which judgments are pronounced. Section 354 governs the language and contents of the judgment. Reading these together, the court concluded that a criminal trial in a conviction case concludes only when the sentence is imposed — not when the verdict of guilt is read out.

This distinction matters because between the verdict and the sentencing, the trial is not yet over. The court still has work to do: hearing arguments on the quantum of punishment, considering mitigating and aggravating factors, and finally imposing the sentence. Until that last step is completed, the court retains its power under Section 319 to summon additional accused.

In acquittal cases, the trial concludes at the moment the order of acquittal is pronounced — because there is no sentencing stage to follow. The power under Section 319 must therefore be exercised before the acquittal order is read out.

The twelve guidelines the court laid down

The bench issued twelve detailed guidelines to govern the exercise of Section 319 power. Among the most important:

• The power must be invoked and exercised before the pronouncement of sentence in conviction cases, and before the order of acquittal in acquittal cases.
• The summoning order must precede the conclusion of the trial by imposition of sentence. It cannot come after.
• When a trial against an absconding accused is split up and proceeds separately, the court in that split-up trial can summon additional accused based on evidence recorded in that split-up trial. But evidence recorded in the main concluded trial cannot be used to summon someone if the power was not exercised in the main trial before its conclusion.
• The phrase "could be tried together with the accused" in Section 319(1) is directory, not mandatory. The court has discretion to order a joint trial or a separate trial for the summoned accused.

What this means for every trial court

For practising lawyers and trial judges, the judgment provides a clear deadline. If you are seeking to summon an additional accused under Section 319, you must do so before the judge pronounces the sentence. Waiting until after sentencing — even if it is the same day — will invalidate the order.

For defence lawyers, the ruling offers a procedural shield. A client who is summoned after the main trial has concluded with sentence can now argue that the summoning order is without jurisdiction.

THE PLAY: File the Section 319 application before the judge begins hearing arguments on sentence — not after the sentence is pronounced, even if it is the same day.

The case that still waits for its end

The Supreme Court answered the legal questions and issued the guidelines. But it did not decide whether Sukhpal Singh Khaira should actually face trial. The court directed the Registry to obtain orders from the Chief Justice to place the matter before an appropriate bench to decide the factual aspects on merits.

The judge who summoned Khaira on the same day he convicted nine others may have acted within the window the Supreme Court has now defined. Or he may not have. That question remains open. For now, the law is settled: the trial ends when the sentence lands, not a moment before, and not a moment after.