2021 (1) TMI 1299 - SC - Indian Laws

Summon by Additional District Judge under Section 319 Cr.P.C. - concealment of not placing the order on record - HELD 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 (1) TMI 1819 - SUPREME COURT , 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. 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. 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 impugned judgment of the High Court dated 27.09.2019 is unsustainable and deserves to be set aside - Appeal allowed.

Summary

Issues Involved:
1. Validity of the summoning order under Section 319 Cr.P.C.
2. High Court's refusal to consider the order dated 17.08.2019.
3. Subsequent proceedings and their impact on the summoning order.
4. Appellant No.1's claim of being a juvenile at the time of the incident.

Detailed Analysis:

1. Validity of the Summoning Order under Section 319 Cr.P.C.
The Supreme Court examined the principles for exercising power under Section 319 Cr.P.C. as established in the Constitution Bench judgment in Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92. The Court reiterated that the power under Section 319 Cr.P.C. is discretionary and extraordinary, to be exercised sparingly and only when strong and cogent evidence exists against a person. The test applied must be more than a prima facie case but short of satisfaction that the evidence, if unrebutted, would lead to conviction. The Court emphasized that the purpose of Section 319 Cr.P.C. is not to form an opinion on the guilt of the accused but to ensure that any person who appears to have committed an offense is tried together with the accused.

2. High Court's Refusal to Consider the Order Dated 17.08.2019
The Supreme Court found that the High Court erred in dismissing the Criminal Revision based on a subsequent order dated 18.09.2019, which issued notice under Section 446 Cr.P.C. The High Court's refusal to examine the correctness of the summoning order dated 17.08.2019 was deemed incorrect. The Supreme Court held that the subsequent proceedings should not preclude the High Court from considering the validity of the initial summoning order.

3. Subsequent Proceedings and Their Impact on the Summoning Order
The Supreme Court noted the subsequent proceedings where the appellants were summoned, and bailable and non-bailable warrants were issued due to their non-appearance. The Court clarified that these subsequent proceedings, including the issuance of notice under Section 446 Cr.P.C., cannot justify the High Court's refusal to review the summoning order's correctness. The Supreme Court emphasized that if the order dated 17.08.2019 is found invalid, all subsequent proceedings would automatically terminate.

4. Appellant No.1's Claim of Being a Juvenile
The Supreme Court acknowledged the claim that Appellant No.1 was a juvenile at the time of the incident, with a date of birth of 01.04.2000. This ground was noted as needing consideration by the High Court upon remand.

Conclusion
The Supreme Court set aside the High Court's judgment dated 27.09.2019 and remitted the matter back for fresh consideration in accordance with the law. The appeal was allowed, and the High Court was directed to re-evaluate the Criminal Revision filed by the appellants, including the claim of juvenility of Appellant No.1.