Summoning New Accused #2: Sr. Adv. S. Nagamuthu Highlights When a New Accused Can be Summoned

Sr. Adv. P.S. Patwalia: Summoning New Accused After the Judgment is Delivered is ‘Unknown in Law’

Senior Advocate, P.S. Patwalia, arguing for the newly accused petitioners, highlighted how the summons against the newly accused was issued after the Sessions Court had delivered its Judgment. According to him, issuing a summons under Section 319 of the Code, after the Judgment was passed is ‘unknown in law’. Once the Judgment is pronounced, the case is concluded and fresh summons against newly accused persons cannot be issued.

Justice B.R. Gavai expressed his surprise at the course of events. He pointed out that the Session’s Judge delivered a 120-page Judgment on the same day as the Order summoning the newly accused persons. How could a Judgment be delivered if the trial was incomplete? According to him, the sequence of events clearly indicates that the newly accused persons were not ready and the witnesses in their defence were not present.

Advocate General Vinod Ghai, arguing for the State of Punjab, and Amicus Curiae S. Nagamuthu agreed with Mr. Patwalia. Courts cannot deliver a decision against any person without first giving them a chance to present their side of the case. However, they differed on other points.

Senior Advocate and Justice (Retd.) S. Nagamuthu argued that the Sessions Judge was empowered to issue summons and reopen a trial even after the Judgment was reserved. They may realise that the trial is incomplete and more people need to be summoned. However, fresh summons cannot be issued after the Judgment is pronounced

In such a case, the Judge presiding over the case will be obligated to reopen the trial and summon the newly accused persons. However, the case cannot be reopened and new persons cannot be summoned once the decision has been delivered. Once the original accused are sentenced or acquitted, the case must be considered concluded.

Mr. Ghai contended that the Judge may reopen the trial even after the Judgment on conviction or acquittal is pronounced. He explained that once the original accused persons are convicted, they will still be heard to decide the sentence. During this stage, new accused persons can still be summoned and tried separately.  

When can a trial be separated for different accused persons?

The Bench and the advocates spent a significant amount of time discussing situations where accused persons in a case can be heard separately, and situations where they can be heard together. 

Mr.  Nagamuthu pointed out that proceedings against individuals in a trial can be separated under Section 317 of the Code when certain accused are absconding, as the case cannot be kept on hold. However, the second, separated proceedings against the absconding individuals cannot be tried by the same Judge who delivered the decision in the main case since they had already formed an opinion on it.

However, in cases where a summons under Section 319 of the Code was issued for a new accused, Justice (Retd.) Nagamuthu argued that the Judge must make a choice. They must decide whether the new accused may be tried along with the other accused or separately under Section 317. 

If they are to be tried jointly, all the evidence examined against the other accused until the new accused were summoned during the trial so far must be scrapped and examined once again, with the benefit of submissions from the newly accused persons. However, the question of conducting separate proceedings in the same trial against a new accused only arises if the new accused persons were validly summoned under Section 319. 

If the Judge decides to try the newly accused persons separately, all the evidence and witnesses examined in the original case must be re-examined in the newly separated trial. In such a case, the Judge is not barred from passing a Judgment in the original trial while the newly separated trial is pending.

Mr. Patwalia explained that in the present case, the trial against the newly accused could not be separated from the original trial under Section 317 of the Code. Section 317 states that a trial can be separated only for an accused against whom inquiry was pending. In the present case, the inquiry was not pending against the newly accused persons. They were made part of the trial only after the case was concluded. 

What is the correct procedure to summon a new accused in a concluded trial?

The Trial Court is faced with a difficult conundrum if it realises that the new accused must be tried towards the end of a trial—the trial must be conducted once again in the presence of the newly accused persons. Mr. Patwalia elaborated that any evidence gathered against an accused before they are made a part of a trial cannot be considered valid evidence. The accused persons must be present and allowed to defend themselves against any accusations made against them. These factors were not considered in the present case against the five newly accused individuals.