Ajay Kumar @ Bittu & Anr. v. State of Uttarakhand & Anr.
ASHOK BHUSHAN, J. Leave granted.
2. This appeal has been filed against the judgment of the H igh
Court of Uttarakhand dated 27.09.2019, by which judgment High Court
had dismissed the Criminal Revision filed by the appellants. The Criminal
Revision was filed by the appellants against the order dated 17.08.2019
passed by Additional District Judge, Laksar, by which the ap pellants
were summoned by the Court under Section 319 Cr.P.C.
3. Brief facts of the case necessary to be noted for deciding this
appeal are:-
i. The appellant was made an accused in FIR No.175/2015 at
Police Station Kotwali, Laksar, Haridwar, under Section 147,
148, 149, 323, 324, 307, 452, 504 and 506 IPC along with six
other accused. An FIR No.176/2016 was also registered in
the same Police Station under Section 147, 148, 149, 307,
452, 504, 506 IPC in which the complainant with other
accused were arrayed. The Police after carrying out t he
AJAY KUMAR @ BITTU & ANR. v. STATE OF
UTTARAKHAND & ANR.
investigation submitted a chargesheet exonerating th e
appellants. Investigation officer after investigation expunged
the names of Bittoo and Jyoti, the appellants from the list of
accused from the chargesheet.
ii. The Trial began in case No.228 of 2016 in which informant
Pahal Singh was examined as PW-1. In his Statement, Pahal
Singh implicated all accused including the appellants but no
specific role was assigned to the appellants. Statement was
also recorded by PW-2, Monu, in which he implicated the
appellants. An application under Section 319 Cr.P.C. was
filed by the informant before the Session Judge praying that
appellant be also summoned in the case. Learned Session
Judge after noticing in detail the statements made by PW-1
and PW-2 made in the Court rejected the application by order
dated 21.06.2018. Against the order dated 21.06.2018, Pahal
Singh, the informant, filed the Criminal Revision No.304 of
2018 before the High Court.
iii. The High Court relying on the judgment of this Court reported
in Rajesh and others versus State of Haryana, (2019) 6
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.228
of 2016, 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.53 (ka/1) in the light of ratio as
propounded by the Hon’ble Apex Courts Judgment in
Rajesh’ case (Supra).”
195
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 hav e
perused the record.
5. 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, (2014) 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
AJAY KUMAR @ BITTU & ANR. v. STATE OF
UTTARAKHAND & ANR. [ASHOK BHUSHAN, J.]
prima facie case as exercised at the time of framing of charge, b ut
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 ca se 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 tri ed
together with the accused.” The words used are not “for w hich
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.”
6. The Two-Judge Bench of this Court again reiterated the same
ratio in Rajesh and others versus State of Haryana (Supra) which
judgment has also been relied by the High Court in the im pugned
judgment.
7. Now we may notice the reason which persuaded the High
Court to reject the Revision. After noticing the facts of t he case, the
High Court proceeded to consider the revision and recorded its reason
for dismissing it in following words: -
197
“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 of Cr.P.C.
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 th e fact
that there is a concealment by not placing the order on recor d,
which otherwise has been procured by the revisionist prior to the
filing of the revision and furthermore, since the proceedings i n
pursuance to allowing the application under Section 319 CrPC
has already been initiated, in which the revisionist has a lready
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 Court.”
8. 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
AJAY KUMAR @ BITTU & ANR. v. STATE OF
UTTARAKHAND & ANR. [ASHOK BHUSHAN, J.]
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 summonin g 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.
9. 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
Arun Kumar
Chandrapal
Singh Jitender
Gautam
05.09.2019
Record is produced. Accused Sandeep
appearance dispensed through his counsel
Kashim Ansari. 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
Ambika Pant
Additional Session Judge Laksar,
District Haridwar.”
10. Subsequently on 18.09.2019 the case was again taken by the
Additional District Judge and following order was passed:-
Sd/- illegible
Arun Kumar
Chandrapal
Singh Jitender
Gautam
18.09.2019
The file is produced. Accused Chandrapal
Gautam, Jitender and Sandeep are present.
The Bailable warrants issued against accused
Jyoti and Bittu are returned after being served.
199
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
30.09.2019.
Sd/- illegible
Ambika Pant
Additional Session Judge Laksar,
District Haridwar.”
11. 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 the reto shall
automatically come to an end.
AJAY KUMAR @ BITTU & ANR. v. STATE OF
UTTARAKHAND & ANR. [ASHOK BHUSHAN, J.]
12. 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, subsist.”
cannot be said to be correct view.
13. 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.
14. 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 l aw. The
appeal is allowed.
Kalpana K. Tripathy Appeal allowed.