Power under Section 319 Cr.P.C. to be exercised sparingly : Supreme Court
The test to check whether power under Section 319 Cr.P.C. is applicable is that if the evidence had gone unrebutted, it would lead to conviction. The Supreme Court bench consisting of J. Ashok Bhushan, J. R. Subhash Reddy and  J. M.R. Shah set aside a High Court order in the matter of Ajay Kumar @ Bittu &amp; Anr. v. State of Uttarakhand &amp; Anr. [Criminal Appeal No. 88 of 2021]. The appellant was accused of rioting with weapons, unlawful assembly, attempt to murder, cause hurt and trespass along with six others. The Police after carrying out the investigation submitted a chargesheet exonerating the appellants. The Trial began in which an informant implicated all accused including the appellants without assigning any specific role to them. An application was filed before the court for summoning of the appellants which was rejected, and hence, the informant filed a Criminal Revision before the High Court. The court allowed the revision and directed the application to be considered. The Session Judge allowed the application and issued a bailable and later a non-bailable warrant along with a notice under Section 446 Cr.P.C. as to why the amount of sureties were not realized when the appellants did not appear. The appellants filed criminal revision before the High Court and later in the Supreme Court.
IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.88 OF 2021 arising out of SLP6 SCC 368 allowed the Revision and directed the application under Section 319 Cr.P.C. to be considered afresh. Following is the operative portion of the order passed by the High Court in paragraph 7 “7. After having considered the aforesaid ratio and also the reasons which have been assigned by the Additional Sessions Judge Laksar Haridwar this Court is of the view that the revision deserves to be allowed and the same is consequently allowed. The order dated 21.06.2018 passed by the learned Additional Sessions Judge Laksar District Haridwar in Sessions Trial No.2216 State v. Chandra Pal and others is quashed. The matter is remitted back to the Additional Sessions Judge Laksar District Haridwar to reconsider the application paper No.53in the light of ratio as propounded by the Hon’ble Apex Courts Judgment in Rajesh’ case iv. After the Order of the High Court dated 11.07.2019 in the Criminal Revision Learned Session Judge again considered the application under Section 319 Cr.P.C. Learned Session Judge referring to the observations made by the High Court in paragraph 5 as well as the judgment of this Court in Rajesh and others versus State of Haryana(Supra) allowed the application and summoned the appellants by Order dated 17.08.2019. The Trial Court issued a bailable warrant against the appellants on 05.09.2019 and after bailable warrant being served when they did not appear on 18.09.2019 Non Bailable warrant was issued to the appellants and a Notice under Section 446 Cr.P.C. was issued as to why the amount of sureties being not realised from two sureties Arun Kumar and Chandra Pal. The appellants filed Criminal Revision before the High Court against the order dated 17.08.2019 of the Additional Session Judge summoning them. v. The High Court dismissed the Revision noticing a subsequent order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court took the view that the Revision was filed on 23.09.2019 but the order passed by the Court on 18.09.2019 has not been brought on record hence there is concealment of not placing the order on record. The High Court further observed that since the proceeding in pursuance to allowing the application under Section 319 Cr.P.C. has already been initiated in which the revisionists have already invoked the jurisdiction of the Revisional Court in which order dated 18.09.2019 has been passed the Revision is to be dismissed. Aggrieved by the order of the High Court dated 27.09.2019 this appeal has been filed 4. We have heard the learned counsel for the parties and have perused The principles for exercise of power under Section 319 Cr.P.C. by Criminal Court are well settled. The Constitution Bench of this Court in Hardeep Singh versus State of Punjab and others 3 SCC 92 has elaborately considered all contours of Section 319 Cr.P.C. This Court has held that Power under Section 319 Cr.P.C. is a discretionary and extra ordinary power which has to be exercised sparingly. This Court further held that the test that has to be applied 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. In paragraph 105 and 106 following has been laid down: “105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner 106. Thus we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of cross examination it requires much stronger evidence than mere probability of his complicity. The test that has to be applied 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 un rebutted would lead to conviction. In the absence of such satisfaction the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused.” The words used are not “for which such person could be convicted”. There is therefore no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.” The Two Judge Bench of this Court again reiterated the same ratio in Rajesh and others versus State of Haryana which judgment has also been relied by the High Court in the impugned judgment Now we may notice the reason which persuaded the High Court to reject the Revision. After noticing the facts of the case the High Court proceeded to consider the revision and recorded its reason for dismissing it in following words: “Although a reference has been made in paragraph 10 of the application filed in support of the revision to the effect that the proceedings was taken by the present revisionists before the Sessions Court and an order of 18.09.2019 has been passed whereby the notices have been issued to the present revisionists under Section 446 This order passed by the Court below is that of 18.09.2019. the copy of the said order was received by the revisionists on 21.09.2019 as would be apparent from the folio annexed with the certified copy of the order dated 18.09.2019 as supplied by the learned counsel for the revisionist during the course of arguments to this Court though it is not part of the Criminal Revision. The revision itself was filed on 23.09.2019. The said order passed by the Court under Section 446 has not been brought on record. Hence this Court is of the view that apart from the fact that there is a concealment by not placing the order on record which otherwise has been procured by the revisionist prior to the filing of the revision and furthermore since the proceedings in pursuance to allowing the application under Section 319 CrPC has already been initiated in which the revisionist has already invoked the jurisdiction of the Revisional court in which the order dated 18.09.2019 has been passed. In view of the already ongoing proceedings before the Sessions Court prior to the filing of the present revision this court is of the view that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 of CrPC would be tenable before this Court till the order dated 18.09.2019 passed in the proceedings at the behest of the present revisionist subsist. Consequently this revision lacks merit and the same is dismissed as it is not sustainable before this A perusal of the judgment of the High Court indicates that the High Court did not examine the correctness of the order dated 17.08.2019 by which the appellants were summoned by Additional District Judge under Section 319 Cr.P.C. rather has dismissed the Criminal Revision on basis of a subsequent fact i.e. order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court further took the view that since the proceedings in pursuance of Section 319 Cr.P.C. have already been initiated and that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 Cr.P.C would be tenable before the High Court till the order dated 18.09.2019 passed in proceedings at the behest of revisionist subsist. We may now notice the nature of the proceedings subsequent to the order dated 17.08.2019 by which the appellants were summoned. The appellant has brought on record the order sheet of the Court along with the application for additional documents. The order sheet indicates that although the summons was served on the appellants but they have not appeared hence bailable warrant of Rs.10 000 was issued against the appellants. Order dated 05.09.2019 is to the following effect: Sd illegible Kashim Ansari Record is produced. Accused Sandeep appearance dispensed through his Allowed Remaining accused Arun Chandrapal Jitender and Gautam are present Summon is duly served on accused Jyoti and Bittu. Accused Jyoti and Bittu are absent. The bailable warrant of Rs.10 000 be issue against Jyoti and Bittu for 18.09.2019 Sd illegible Additional Session Judge Laksar 10. Subsequently on 18.09.2019 the case was again taken by the Additional District Judge and following order was passed: Sd illegible file Accused is produced The Chandrapal Gautam Jitender and Sandeep are present The Bailable warrants issued against accused Jyoti and Bittu are returned after being served. Accused Jyoti and Bittu are absent even after service of Bailable warrants. Therefore non bailable warrants are issued against Jyoti and Bittu to ensure their presence Accused Jyoti and Bittu are not being produced before the Court inspite of sureties given by the guarantors. The surety of accused Bittu is Accused Arun Kumar and the surety of accused Jyoti is her father accused Chandrapal and the another surety is accused Arun. Both of them are present in the Court Therefore the Bail bonds executed by them are forfeited for not producing Accused Bittu and Jyoti before the Court. Therefore notice under section 446 CrPC is being issued with the intent that why the amount if surety be not realized from them. The case be produced for appearance of accused Jyoti and Bittu and for the explanation by the guarantors on Sd illegible Additional Session Judge Laksar The proceedings which were taken on 05.09.2019 and 18.09.2019 are proceedings consequent to and subsequent to the order dated 17.08.2019. The subsequent proceeding in no manner can be a ground to not consider the correctness and validity of order dated 17.08.2019. We are of the considered opinion that the High Court completely erred in refusing to consider the correctness of the order dated 17.08.2019 on the ground that on 18.09.2019 notice under Section 446 Cr.P.C. has been issued. As and when it is found that order dated 17.08.2019 could not have been passed in exercise of jurisdiction under Section 319 Cr.P.C. all subsequent proceedings thereto shall automatically come to an end. The view of the High Court which is recorded in following words: “…this court is of the view that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 of Cr.P.C. would be tenable before this Court till the order dated 18.09.2019 passed in the proceedings at the behest of present revisionist cannot be said to be correct view The order dated 18.09.2019 by which the Court has directed appearance of the accused appellant is to be taken to its logical end but that order cannot provide a shield of protection to earlier order dated 17.08.2019 by which appellant has been summoned. The subsequent proceedings of the court which have been brought on record indicate that the appellant no.2 and 1 have appeared before the Court and have also been granted bail. 15. One of the grounds taken in this appeal is that appellant No.1 is Juvenile at the date of incident his Date of Birth being 01.04.2000. The above ground also needs to be considered by the High Court 16. We thus are of the view that the impugned judgment of the High Court dated 27.09.2019 is unsustainable and deserves to be set aside. We order accordingly. The Criminal Revision of the appellants be considered afresh by the High Court in accordance with the law. The appeal is ASHOK BHUSHAN ) ( R. SUBHASH REDDY ( M.R. SHAH New Delhi January 29 2021