JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with three prayers. First one is to quash the order dated 19.04.2008 passed by the learned Additional Sessions Judge, Simdega whereby and where under the learned Additional Sessions Judge, Simdega has arrayed inter-alia the petitioner as an accused in exercise of the power under Section 319 of the Cr.P.C. in connection with S.T. Case No. 119 of 2006. The second order which is sought to be quashed by the petitioner is the order dated 24.02.2009, passed in connection with S.T. Case No. 119 of 2006 whereby, consequent upon notice being validly served upon the petitioner, as the petitioner did not appear before the learned trial court, the learned trial court simultaneously issued the warrant of arrest as well as the proclamation under Section 82 of the Cr.P.C. and the third order sought to be quashed is the order dated 10.07.2009 passed in the said case being S.T. Case No. 119A/2006 but the learned counsel for the petitioner submits that the petitioner does not press the prayer to quash the order dated 10.07.2009 and confines his prayer to quash the orders dated 19.04.2008 and 24.02.2009. Hence, the prayer to quash the order dated 10.07.2009, passed in S.T. Case No. 119(A)/2006 is rejected as not pressed. 3. The brief facts of the case is that the Sessions Trial No. 119 of 2006 was fixed to 19.04.2008 for pronouncement of judgment. Prior to that, a petition under Section 319 of the Cr.P.C. was filed by the learned A.P.P. The trial court fixed 19.04.2008 for passing orders on the petition under Section 319 of the Cr.P.C. as well. On 19.04.2008, the learned Additional Sessions Judge, Simdega first took up the petition under Section 319 Cr.P.C. in which prayer was made to array the petitioner and another person namely Philmon Kerketta as accused of the case; in exercise of the power under Section 319 Cr.P.C. The learned Additional Sessions Judge, Simdega considered that the eye-witness of the occurrence whose testimony appears in the record being the P.W.4, P.W.5 and P.W.8 have deposed that inter- alia the petitioner participated in the commission of the murder of the deceased by assaulting him. The learned Additional Sessions Judge also considered that the I.O. has also made an endorsement in para-36 of the case diary that the statement of the eye-witnesses regarding the involvement of the petitioner and the other co-accused persons sought to be arrayed as accused is correct and after considering the materials in the record, the learned trial court was of the opinion that there was sufficient material available in the record to array the petitioner and the co-accused –Philmon Kerketta as accused persons of the case; for having committed the offence punishable under Section 302 /34 of the INDIAN PENAL CODE . By the time of passing the order arraying the petitioner is the accused in the case; the Judgment in S.T. Case No. 119 of 2006 was not pronounced. By a speaking order, the learned Additional Sessions Judge considered that the remaining eight accused persons who were facing the trial were in custody since long and separated the case of the petitioners; which was separately renumbered the case relating to the petitioner as well as the co-accused –Philmon Kerketta, as S.T. Case No. 119A/2006 and ordered for issue of summons to the petitioners and the co-accused persons, after arraying them as accused persons of the case and subsequently proceeded to pronounce judgment on the same date in respect of the eight accused persons who were facing the trial. 4. It is submitted by the learned counsel for the petitioner, relying upon the Judgment of the Hon’ble Supreme Court of India in the case of Hardeep Singh Vs. State of Punjab and Others , (2014) 3 SCC 92 that in Para-106 of the said Judgment, the Hon’ble Supreme Court of India has laid down the law that the test that has to be applied, in case of arraying a person as an accused in the case, in exercise of the power under Section 319 of the Code of Criminal Procedure, in respect of the materials available in the record, 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. The learned counsel for the petitioner also referred to the verbatim of Section 319 of the Cr.P.C. and submits that since Section 319 of the Cr.P.C. envisages that in course of any enquiry into or trial of an offence, such power can be exercised, the learned Additional Sessions Judge committed a grave illegality by exercising the power under Section 319 of the Cr.P.C. on the same day; on which it also pronounced the judgment and on this score also, the said order dated 19.04.2008 is bad in law. 5. The learned counsel for the petitioner next submits that the order dated 24.02.2009 is bad in law, as the learned Additional Sessions Judge, Simdega has committed a grave illegality by simultaneously issuing the proclamation under Section 82 of the Cr.P.C. along with warrant of arrest against the petitioner, without recording any satisfaction and in the absence of any scope to be satisfied that, the petitioner is absconding or concealing himself to evade his arrest and without fixing any time or place for appearance of the petitioner. Hence, it is submitted that the order dated 24.02.2009, so far as it relates to issue of the proclamation under Section 82 of the Cr.P.C. is bad in law. Hence the same be quashed and set aside. 6. The learned Addl. P.P. on the other hand vehemently opposes the prayer and submits that it is a settled principle of law that the power under Section 319 of the Cr.P.C. can be exercised in case of a judgment of conviction, is passed before pronouncement of the sentence and in case of an acquittal, before pronouncement of the judgment and in this case undisputedly, the power under Section 319 Cr.P.C. was exercised before pronouncement of judgment. Hence, it is submitted that no illegality has been committed by the learned Additional Sessions Judge, Simdega. It is further submitted that in fact, before pronouncement of the judgment in which two out of the eight accused persons have been acquitted, the case of the petitioner was separated and a new number being S.T. Case No. 119(A)/2006 was assigned to the separate case of the petitioner and the co-accused –Philmon Kerketta and subsequently the judgment has been pronounced. It is then submitted that there is no illegality so far as the said order dated 19.04.2008 is concerned. It is further submitted by the learned Addl. It is then submitted that there is no illegality so far as the said order dated 19.04.2008 is concerned. It is further submitted by the learned Addl. P.P. that since the learned Additional Sessions Judge has issued the proclamation under Section 82 of the Cr.P.C. by the order dated 24.02.2009, so it is crystal clear that there were sufficient materials in the record for the learned Additional Sessions Judge to be satisfied regarding the ingredients for passing such order. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the rival submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the Constitution Bench of the Hon’ble Supreme Court of India in the case of Sukhpal Singh Khaira v. State of Punjab , (2023) 1 SCC 289 had the occasion to consider the question whether the learned trial court has the power under Section 319 of the Cr.P.C. for summoning additional accused when a trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before passing of the summoning order and answered the same in para-39(1) which reads as under:- “39. (I) Whether the trial court has the power under Section 319 CrPC 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 319 CrPC 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 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.” 8. 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.” 8. The Hon’ble Supreme Court of India has also considered the guidelines that the competent court must follow while exercising the power under Section 319 Cr.P.C. in Para-41 (III) which reads as under:- 41. (III) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC? 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 319 CrPC 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 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. 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 319 CrPC 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. 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.” 9. Now coming to the facts of the case, in view of the categorical pronouncement and answer of the question regarding the stage at which the power under Section 319 Cr.P.C. can be exercised by a trial court, this Court has no hesitation in holding that in case of a Judgment of conviction such power can be exercised even after pronouncement of the judgment but before pronouncement of the sentence and in case of acquittal, the power should be exercised before the order of acquittal is pronounced. 10. 10. Now coming to the facts of this case, the judgment which was pronounced subsequent to the petitioner and another person being arrayed as an accused and their case was separated, two out of the eight accused persons were acquitted while six of them were convicted. So in such a case, the power under Section 319 of the Cr.P.C. is to be invoked and exercised before pronouncement of the order of sentence because in a case in which some of the accused persons are convicted and some of them are acquitted, there always remains the requirement to pass an order of sentence. 11. Be that as it may, but here it is a case where undisputedly the power under Section 319 Cr.P.C. has been invoked and exercised by the learned Additional Sessions Judge before pronouncement of the judgment on 19.04.2008. Upon invoking such power and passing of order of summoning to the petitioner and the co-accused person; for the cogent reason that has been mentioned in the order itself, the learned trial court decided for fresh trial to be commenced in respect of the accused persons summoned and the same is in terms of paragraph-41.5 of the Judgment of Sukhpal Singh Khaira v. State of Punjab (supra) and on the same date after separating the case record of the petitioner and the co-accused persons who were summoned as accused persons, the trial court went on to pronounce the judgment in the case. Thus, this Court is of the considered view that there is no illegality committed by the learned Additional Sessions Judge, Simdega in invoking and exercising the power under Section 319 of the Cr.P.C. on the same day of pronouncing the judgment albeit before pronouncing the judgment and hence this contention of the petitioner has no legs to stand and is without any merit. Hence, the prayer of the petitioner to quash the order dated 19.04.2008, passed in the said Sessions Trial Case No. 119 of 2006 being without any merit, is dismissed. 12. Hence, the prayer of the petitioner to quash the order dated 19.04.2008, passed in the said Sessions Trial Case No. 119 of 2006 being without any merit, is dismissed. 12. So far as the prayer for quashing the order dated 24.02.2009; so far it relates to issuing the proclamation under Section 82 of the Cr.P.C. is concerned, it is pertinent to mention here that by now it is a settled principle of law that the court which issues the proclamation under Section 82 of the Cr.P.C. must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of the Cr.P.C. is made, is absconding or concealing himself to evade his arrest and in case the court decides to issue proclamation under Section 82 of Cr.P.C. it must mention the time and place for appearance of the accused in respect of whom such proclamation is made in the order itself by which such proclamation under Section 82 of Cr.P.C. is issued. 13. Now coming to the facts of the case, on 24.02.2009, for the first time, the learned Additional Sessions Judge, Fast Track Court, Simdega issued the warrant of arrest against the petitioner also, so obviously neither there was any scope nor any occasion for the learned Additional Sessions Judge, Simdega to be satisfied that the petitioner is absconding and concealing himself to evade his arrest nor he has mentioned the same in the said order dated 24.02.2009. 14. Accordingly, this Court is of the considered view that the portion of the order dated 24.02.2009, passed in S.T. Case No. 119(A) of 2006 so far as it relates to issue of the proclamation under Section 82 of the Cr.P.C. is not sustainable in law. Hence, the same is quashed and set aside. 15. The learned Additional Sessions Judge, Fast Track Court, Simdega or its successor court may pass a fresh order in accordance with law. 16. This criminal miscellaneous petition is allowed to the aforesaid extent only. 17. In view of disposal of this criminal miscellaneous petition, the interim relief granted earlier vide order dated 17.03.2020 is vacated. 18. Registry is directed to intimate the court concerned forthwith.