A 3 judge Bench of the Hon'ble Supreme Court consisting of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah in the case of Ajay Kumar @ Bitu v. State of Uttarakhand [January 29, 2021] has reiterated that the power of a Trial Court under Section 319 of the Criminal Procedure Code to proceed against other persons appearing to be guilty of offence is a discretionary and extra-ordinary power which has to be exercised sparingly. It should not be used at the drop of a hat as has been rightly underscored by the top court.
Factual Background
This appeal was filed against the judgment of the High 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 appellants were summoned by the Court under Section 319 Cr.P.C.
Reasoning and Decision of the Court
Reflecting on the principles governing the exercise of power under Section 319 Cr.P.C. by Criminal Court, the Court observed that the law in this regard is well settled. The Constitution Bench of Supreme Court, itself, in the case of Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92, elaborately considered all contours of Section 319 Cr.P.C. and while doing so, the Court held that Power u/s 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. It was 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.
"“105. Power under Section 319 Cr.P.C. 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 Cr.P.C. 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.”
Observations with respect to the impugned judgement of the High Court
The Court observed that a perusal of the judgment of the High Court indicated 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 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.
“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.”
The Court further noted that one of the grounds taken in the appeal was that the appellant No.1 was Juvenile at the date of incident, his Date of Birth being 01.04.2000, and the same (above ground) also needed to be considered by the High Court.
Held
“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 allowed.”
Case Details
Name: Ajay Kumar @ Bitu v. State of Uttarakhand
Case No.: Criminal Appeal No. 88 of 2021
Bench: Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah
Date of Decision: January 29, 2021
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