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TMI Blog2021 (1) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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. - CRIMINAL APPEAL NO.88 OF 2021 (ARISING OUT OF SLP (CRL.) NO.10247/2019) - - - Dated:- 29-1-2021 - ASHOK BHUSHAN, R. SUBHASH REDDY AND M.R. SHAH, JJ. For the Petitioner : Mr. Pardeep Gupta, Adv., Mr. Parinav Gupta, Adv., Ms. Mansi Gupta, Adv., Mr. Krishna Kumar, Adv., Ms. Nandani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised 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 judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 Arun Kumar Chandrapal Singh Jitender Gautam 05.09.2019 Record is produced. Accused Sandeep app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 simaultaneous 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. . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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