Power under S.319 Cr.P.C is discretionary, extra-ordinary power which has to be exercised sparingly

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. (Para 16)

AJAY KUMAR @ BITTU & ANR. V/s STATE OF UTTARAKHAND & ANR.

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

Decided on 29th January, 2021

A Three-Judge Bench comprising of Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R. Shah allowed the appeal of the appellants to impugn 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.

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.

The facts of the case are as follows; the appellant was made an accused in FIR No.175/2015 at Police Station Kotwali, Laksar, Haridwar. 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. When the Trial began in case No.228 of 2016 in which informant Pahal Singh PW-1 & Monu PW-2 both implicated all accused including the appellants but no specific role was assigned to 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. 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. 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.

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.

The Court observed 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.” (Para 8)

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. 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.

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. (Para 16)

The appeal was allowed.

View/Download Judgment: AJAY KUMAR @ BITTU & ANR. V/s STATE OF UTTARAKHAND & ANR.

Risikesh Dhanaki