LexAJAY KUMAR @ BITTU & ANR. versus STATE OF UTTARAKHAND & ANR.
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A B C D E F G H 191 AJAY KUMAR @ BITTU & ANR. v. STATE OF UTTARAKHAND & ANR. (Criminal Appeal No. 88 of 2021) JANUARY 29, 2021 [ASHOK BHUSHAN, R. SUBHASH REDDY, M. R. SHAH, JJ.] Code of Criminal Procedure, 1973: s. 319 – Application under – Appellants summoned by order dated 17.8.2019 – As the appellants did not appear before the Court, bailable warrant issued on 5.9.2019 and non-bailable warrant issued on 18.9.2019 issuing notice u/s. 446 Cr. P.C. – Criminal Revision by appellants against order dated 17.8.2019 – High Court dismissed the Revision on the ground that there was concealment of fact as order dated 18.9.2019 was not placed on record – Appeal to Supreme Court – Held: Power u/s. 319 is extra-ordinary and discretionary and has to be exercised sparingly – High Court did not consider the correctness of order dated 17.8.2019 – The subsequent proceedings cannot be a ground to not consider the correctness and validity of order dated 17.8.2019 – Order of High court is unsustainable – The High Court is directed to consider the Revision afresh in accordance with law. Allowing the appeal, the Court HELD : 1. Power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. 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. [Para 5][195-G-H; 196-A] Hardeep Singh v. State of Punjab and others (2014) 3 SCC 92 : [2014] 2 SCR 1 – followed. Rajesh and Others v. State of Haryana (2019) 6 SCC 368 : [2019] 8 SCR 187 – relied on. [2021] 1 S.C.R. 191 191 A B C D E F G H 192 SUPREME COURT REPORTS [2021] 1 S.C.R. 2.1 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 the 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. [Para 8] [197-G-H; 198-A-B] 2.2 The order sheet dated 05.09.2019 indicates that although the summons was served on the appellants but they have not appeared, hence, bailable warrant was issued against the appellants. Subsequently on 18.09.2019 non-bailable warrants were issued. The proceedings on 05.09.2019 and 18.09.2019 are proceedings consequent to and subsequent to the order dated 17.08.2019 by which appellants were summoned. The subsequent proceeding in no manner can be a ground to not consider the correctness and validity of order dated 17.08.2019. 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 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. [Paras 9, 10, 11 and 13][198-B-C; F-G; 199-F-H; 200-B-C] 3. The subsequent proceedings of the court which have been brought on record indicate that the appellant Nos. 2 and 1 have appeared before the Court and have also been granted bail. [Para 14][200-C] A B C D E F G H 193 4. 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. The Criminal Revision of the appellants be considered afresh by the High Court in accordance with the law. [Paras 15 and 16][200-D-E] Case Law Reference [2014] 2 SCR 1 followed Para 5 [2019] 8 SCR 187 relied on Para 6 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 88 of 2021.
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