Ajay Kumar @ Bittu vs The State Of Uttarakhand on 29 January, 2021


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Supreme Court of India

Ajay Kumar @ Bittu vs The State Of Uttarakhand on 29 January, 2021

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                                                         1


                                                                             REPORTABLE

                                    IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL APPEAL NO.88 OF 2021
                                  (arising out of SLP (Crl.)No.10247/2019)


          AJAY KUMAR @ BITTU & ANR.                                     ...APPELLANT(S)

                                                  VERSUS

          STATE OF UTTARAKHAND & ANR.                                  ..RESPONDENT(S)




                                              JUDGMENT

ASHOK BHUSHAN,J.

Leave granted.

2. This appeal has been 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
Signature Not Verified

summoned by the Court under Section 319 Cr.P.C.
Digitally signed by
ARJUN BISHT
Date: 2021.01.29
14:20:50 IST
Reason:

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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 the investigation submitted a chargesheet exonerating

the 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
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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).”

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
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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
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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 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

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
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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.”

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 impugned judgment.

7. 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
7

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
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 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.

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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 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.

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
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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 05.09.2019
Arun Kumar
Chandrapal Record is produced. Accused Sandeep
Singh appearance dispensed through his
Jitender counsel Kashim Ansari. Allowed.
Gautam 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       18.09.2019
       Arun Kumar
       Chandrapal            The    file  is  produced. Accused
       Singh                 Chandrapal Gautam, Jitender and
       Jitender              Sandeep are present.
       Gautam                The Bailable warrants issued against
                             accused Jyoti and Bittu are returned
                             after being served. Accused Jyoti and
                                                                       10


                           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
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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.

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. .

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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

allowed.

……………………………….J.

( ASHOK BHUSHAN )

……………………………….J.

( R. SUBHASH REDDY )

………………………………..J.

( M.R. SHAH)
New Delhi,
January 29, 2021.



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