In a welcome move, the Apex Court most recently on January 29, 2021 in a latest, learned, landmark and laudable judgment titled Ajay Kumar @ Bitu vs State of Uttarakhand [Criminal Appeal No. 88 of 2021] has reiterated clearly, cogently, convincingly and categorically 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. Very rightly so!
To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Ashok Bhushan for himself, Justice R Subhash Reddy and Justice MR Shah after granting leave in para 1 by observing that, “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 summoned by the Court under Section 319 Cr.P.C.”
While dwelling on the brief facts of the case, the Bench then observes in para 3 that, “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 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 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.”
Most significantly, the Bench then minces no words to observe in para 5 which forms the cornerstone of this commendable judgment that, “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 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.”
While continuing in the same vein, the Bench then makes it a point to state in para 6 that, “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.”
To put things in perspective, the Bench then brings out in para 8 that, “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.”
To be sure, the Bench then points out in para 13 that, “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.”
Truth be told, it is then envisaged in para 14 that, “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.”
As it turned out, the Bench then makes it clear in para 15 that, “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.”
Finally, it is then held in the concluding para 16 that, “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.”
In conclusion, the three Judge Bench of the Apex Court comprising of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah leaves no room of doubt whatsoever to make it crystal clear 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 and not at the drop of a hat. It is a no-brainer that the most significant para 5 which forms the most critical para of this notable judgment sums up what the Apex Court wants to convey by this leading, learned and laudable judgment and makes the whole situation clear also! Very rightly so! There can certainly be no ever denying or disputing it!