Summoning New Accused #3: Adv. Gen. for Punjab Vinod Ghai Argues New Accused May Be Summoned Until Punishment is Decided

Summoning New Accused After the Judgment is Delivered

On November 17th, 2022, a Constitution Bench led by Justice Abdul Nazeer reserved Judgment in the case concerning Trial Courts’ power to summon new accused in a trial after the Judgment is delivered. Advocate General for Punjab Vinod Ghai argued that new accused may be summoned in a trial until the punishment of the already present accused is decided. Additional Solicitor General  S.V. Raju, appearing for the Union, contended that even if accused are summoned after a trial concludes, it should be considered valid.


The case originated in March 2015 when a First Information Report (FIR) was filed against 11 persons under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985 the Arms Act ,1959 and the Information Technology Act, 2000. Mr. Sukhpal Singh Khaira, then the Opposition Leader in the Pubjab Legislative Assembly, was not originally part of the resultant trial. However, the trial Court, after delivering its Judgment in the case, summoned Mr. Khaira and four others for investigation in the same case.

The Trial Court convicted nine of the accused persons and acquitted two others on October 31st, 2017. On the same day the Judgment was pronounced, the Trial Court accepted an application filed by the government under Section 319 of the Code of Criminal Procedure, 1973, and summoned five additional persons, including Khaira, to face trial as additional accused.

Mr. Khaira challenged the summoning Order at the Punjab and Haryana High Court in November 2017. The High Court quashed the non-bailable warrants issued against Khaira. However, the High Court refused to set aside the Order of the Trial Court naming him as an additional accused. 

Subsequently, Mr. Khaira challenged the summoning Order at the Supreme Court in 2019. In 2019, a three Judge Bench of the Supreme Court referred the questions on the interpretation  of Section 319 to a Constitution Bench.

Issues in Focus Today

  • Can a Trial Court summon a new accused under Section 319 of the Code after the trial has ended?
  • If proceedings in a trial have been separated between physically present and absconding accused persons, can a new accused be summoned in the second set of proceedings when the first has concluded?

Advocate General Ghai: Trial Does Not Conclude Till Court Sentences Accused

Advocate General for Punjab Vinod Ghai, contended that according to the Code of Criminal Procedure, 1973 (the Code), a Judgment will be considered to be passed not after the pronouncement of the accused person’s guilt but after the punishment is decided. The Advocate General pointed out that the Order of conviction merely says whether a person is guilty or innocent. The Court will still have to apply its mind to determine the punishment. Therefore, it is the Order of sentencing which concludes a trial.  

Mr. Ghai explained that there were different circumstances to be considered between conviction and sentencing. An accused may be on bail at the time of conviction. However, the accused must be in custody when the Court decides their sentence. 

The Bench asked Mr. Ghai  what would happen if the accused is acquitted. He responded that the trial would end with acquittal since there won’t be any sentencing. He stated that in case of conviction the Court’s mandate ends on sentencing. However, in case of an acquittal the position is unclear.

Will a summons Order be valid if it is passed after the Judgment?

Mr. Ghai argued that the intention of Section 319—to summon new accused persons connected to a case—cannot be defeated by a mere technicality such as when an Order under the Section is passed. Even after a conviction Order has been passed, the Court may resort to Section 319. 

Appearing for the Union government, Additional Solicitor General S.V. Raju argued that even if an Order under Section 319 to summon fresh accused is passed after the conclusion of a trial, it would merely be a procedural irregularity. The summons would still be valid. According to him, Section 319 of the Code does not specify when an order must be passed, granting discretion to the Judge. If summons for additional accused was based on evidence of ‘sterling quality’, then the summons would be valid.

He referred to the Constitution Bench decision in Hardeep Singh (2014), which states that the purpose of Section 319 is to do ‘complete justice’. This includes summoning additional accused in a trial irrespective of whether the Judgment is delivered or not. The Bench however, remarked that finality of the proceedings will never be achieved under such circumstances. 

The Bench, on hearing the submissions, reserved the case for Judgment.