The test to check whether power under Section 319 Cr.P.C. is applicable is that if the evidence had gone unrebutted, it would lead to conviction. The Supreme Court bench consisting of J. Ashok Bhushan, J. R. Subhash Reddy and J. M.R. Shah set aside a High Court order in the matter of Ajay Kumar @ Bittu & Anr. v. State of Uttarakhand & Anr. [Criminal Appeal No. 88 of 2021].
The appellant was accused of rioting with weapons, unlawful assembly, attempt to murder, cause hurt and trespass along with six others. The Police after carrying out the investigation submitted a chargesheet exonerating the appellants. The Trial began in which an informant implicated all accused including the appellants without assigning any specific role to them. An application was filed before the court for summoning of the appellants which was rejected, and hence, the informant filed a Criminal Revision before the High Court. The court allowed the revision and directed the application to be considered. The Session Judge allowed the application and issued a bailable and later a non-bailable warrant along with a notice under Section 446 Cr.P.C. as to why the amount of sureties were not realized when the appellants did not appear. The appellants filed criminal revision before the High Court and later in the Supreme Court.
The Supreme Court, relying on Hardeep Singh v. State of Punjab & Ors. [(2014) 3 SCC 92], held that power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which should be exercised sparingly. The court added 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”. Allowing the appeal upon finding that the appellants had infact appeared before the court and had also been granted bail and that one of the appellants was juvenile on the date of the incident, the SC stated 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”.