Sri.Suresh Kallappa Kambale vs State Of Karnataka
2021 Latest Caselaw 7092 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 23RD DAY OF DECEMBER, 2021

                      BEFORE
          THE HON'BLE MRS.JUSTICE M.G.UMA

           WRIT PETITION NO.147718/2020
                        C/W
     CRIMINAL REVISION PETITION NO.100153/2020

IN W.P.NO.147718/2020
BETWEEN

1.   NATAJI P. PATIL
     AGE: 56 YEARS, OCC: LINEMAN
     R/O: H.NO.882, KANGRALI B.K.
     BELAGAVI, BELAGAVI CITY-590001.

2.   AJEET M. PUJARI
     AGE: 61 YEARS,OCC: ASST.
     EXECUTIVE ENGINEER
     R/O: PLOT NO.88
     RAMATEERTH NAGAR
     BELGAVI, BELAGAVI CITY-590001.

3.   MALLASARJA S SHAPURKAR
     AGE: 34 YEARS, OCC: LINEMAN
     R/O: LAXMI GALLI, KAKATI,
     BELAGAVI, BELAGAVI CITY-590001.

4.   SUBASH M. HALLOLLI
     AGE: 42 YEARS, OCC: JUNIOR ENGINEER
     R/O: PLOT NO.417, CTS NO.647
     H.D. KUMAR SWAMI LAYOUT
     BELAGAVI, BELAGAVI CITY-590001.

5.   IRAPPA M. PATTAR
     AGE: 42 YEARS, OCC: LINEMAN
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     R/O: H.NO.982, KUMBAR ONI
     GHATAPRABHA, TQ: GOKAK
     BELAGAVI, BELAGAVI CITY-590001.

6.   MALLIKARJUN S. REDIHAL
     AGE: 46 YEARS, OCC: OVERSEER
     R/O: CCB NO.24 KPTCL QTRS.
     NEHARU NAGAR, BELAGAVI
     BELAGAVI CITY-590001.

7.   BIMAPPA L. GODALKUNDARAGI
     AGE: 57 YEARS, OCC: SENIOR ASSISTANT
     R/O: PLOT NO.1903, RAMATEERTH NAGAR
     BELAGAVI, BELAGAVI CITY-590001.

8.   RAJENDRA B. HALINGALI
     AGE: 32 YEARS, OCC:STATION ATTENDANT
     R/O: C-1, KPTCL QTRS. SADASHIV NAGAR,
     BELAGAVI, BELAGAVI CITY--590001.
                                           ...PETITIONERS
(BY SRI. JAYAKUMAR.S.PATIL, SENIOR COUNSEL
FOR SMT.SUNITH.P.KALASOOR., ADVOCATE)

AND
1.  MALAMARUTHI POLICE STATION
    BELAGAVI CITY, BELAGAVI
    REPRESENTED BY PUBLIC PROSECUTOR
    HIGH COURT OF KARNATAKA
    DHARWAD-580001.

2.   TUKARAM BALESHI MAJJAGI
     AGE: 61 YEARS, OCC:RETD. GOVT. SERVANT
     R/O: CTS NO.4867/10, 1ST A, 2ND CROSS
     SAMPIGE ROAD, SADASHIV NAGAR
     BELAGAVI, BELAGAVI CITY-590001.
                                           ...RESPONDENTS

(BY SRI. VINAYAK.S.KULKARNI, ADVOCATE FOR R1; SRI.V.M.SHEELVANT., ADVOCATE FOR R2).

THIS WRIT PETITION IS FILED PRAYING TO SET ASIDE THE ORDER PASSED BY PRINCIPAL SESSIONS JUDGE, BELAGAVI IN S.C.NO.262/2019 PASSEDON 30.06.2020 PRODUCED AS ANNEXURE-E.

IN CRL.R.P.NO.100153/2020 BETWEEN

SRI.SURESH KALLAPPA KAMBALE AGE: 53 YEARS, OCC:ACCOUNTS OFFICER HESCOM-BELAGAVI DIVISION R/O: APMC-MARKANDE NAGAR, BELAGAVI.

...PETITIONER (BY SRI.NEELENDRA.D.GUNDE ADVOCATE)

AND

1. STATE OF KARNATAKA BY MALMARUTHI POLICE STATION R/BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDING DHARWAD-580001.

2. MR. TUKARAM BALESHI MAJJAGI AGE. 62 YEARS, OCC. PENSIONER R/O. CTS-4867/10, 1ST AND 2ND CROSS SAMPIGE ROAD, SADASHIV COLONY NAGAR BELAGAVI-590001.

...RESPONDENTS (BY SRI. VINAYAK.S.KULKARNI, ADVOCATE FOR R1; SRI.V.M.SHEELVANT., ADVOCATE FOR R2).

THE CRL.R.P IS FILED U/S 397 R/W SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 30/06/2020 PASSED BY THE LEARNED PRL. SESSIONS JUDGE, BELAGAVI IN S.C. NO.262/2019 THEREBY ALLOWING THE APPLICATION FILED BY THE RESPONDENT U/S 319 OF CR.P.C. BEING TRIED FOR THE OFFENCES PUNISHABLE U/S 195, 211, 420, 467, 468, 471 OF IPC AS AGAINST THE PRESENT PETITIONER WHO IS ADDITIONAL ACCUSED NO.10 IN THE INTEREST OF JUSTICE, IN THE INTEREST OF JUSTICE.

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.07.2021 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

COMMON ORDER

The petitioners in W.P.No.147718/2020 are accused Nos.2

to 9 and petitioner in Crl.R.P.No.100153/2020 being accused

No.10 in Crime No.44/2017 of Malmaruti Police Station,

Belagavi, which is now pending in S.C.No.262/2019 on the file of

the learned Prl. District and Sessions Judge, Belagavi (for short,

'trial Court'), are before this Court seeking to quash the criminal

proceedings initiated against them for the offence punishable

under Sections 195, 211, 420, 465, 120B, 468, 192, 471, 467

read with Section 34 of Indian Penal Code, 1860 (for short,

'IPC').

2. Brief facts of the case are that respondent

No.2/complainant was working as Executive Engineer in HESCOM

Belagavi. It is stated that accused No.1 was also working in

HESCOM. She was transferred from Rural Sub-Division to O & M

Urban Division. As a result of which, agitations were started

against respondent No.2 seeking cancellation of her transfer. In

the meantime, accused No.1 filed a complaint against

respondent No.2 and others with M.D., HESCOM and the said

complaint was referred to the Women's Grievance Redressal

Committee to enquire into the matter. The Committee enquired

into the allegations and filed the report stating that the said

complaint is false. It is stated that in the meantime, accused

No.1 filed a criminal complaint against respondent No.2 in Crime

No.286/2014 of Malmaruti Police Station for the offence

punishable under Section 354-A, 341, 504, 506 read with

Section 34 of IPC. On 19.11.2014, respondent No.2 was

apprehended and was remanded to the judicial custody for a

day. It is stated that on 23.01.2015, accused No.1 again filed a

criminal case against respondent No.2 alleging commission of

the offence punishable under Sections 506 and 504 of IPC which

was registered in Crime No.25/2015. It is stated that accused

No.1 filed one more information with Malmaruti Police against

respondent No.2 alleging commission of the offence punishable

under Sections 306, 511, 119 of IPC on 03.02.2015, which was

registered in Crime No.26/2015. Respondent No.2 was

apprehended and remanded to judicial custody.

3. It is stated that the Investigating Officer investigated

into all the criminal cases registered against respondent No.2

and filed B reports stating that no materials were made available

to file the charge sheet. The jurisdictional Magistrate accepted

the 'B' reports in all the four cases which were registered on the

basis of the first information lodged by the accused No.1 against

respondent No.2.

4. Being aggrieved by the same, accused No.1 filed

Crl.P.No.54/2016 and 55/2016 challenging acceptance of B

report in Crime Nos.286/2014 and 19/2015 of Malmaruti Police

Station. During the pendency of these criminal petitions, accused

No.1 filed an affidavit stating that she was instigated to file false

complaints against respondent No.2, by accused Nos.2 to 10

who are the petitioners herein. After noting the filing of the

affidavit, both the criminal petitions were came to be dismissed.

5. It is stated that accused No.1 with others concocted

the letter head of KPTCL Employees Union, signed by accused

No.2 as Vice President and submitted to S.E.E. and M.D.

HESCOM insisting for suspension of respondent No.2. It is

stated that accused Nos.3 to 10 have also signed the said

representation. Acting on the said representation, S.E.E.

addressed a confidential letter to General Manager, HRD,

HESCOM asking for taking action against respondent No.2.

Acting on the same, respondent No.2 was kept under suspension

during enquiry. Thus, it is stated that all the accused conspiring

together hatched a plan to remove respondent No.2 from his

job, made representations to various Ministers, MLAs, Police

Officers, Deputy Commissioner etc. demanding apprehension of

respondent No.2. All these developments were widely published

in print and electronic media.

6. In view of the above, respondent No.2 filed the first

information against accused Nos.1 to 10 in Crime Nos.44/2017,

45/2017, 46/2017 before Malmaruti Police Station alleging

commission of various offences as stated above, punishable

under Sections 192, 211, 195, 120-B, 420, 467, 468, 471 read

with Section 34 of IPC. It is contended by respondent No.2 that

all these accused conspiring together hatched a plan to see that

he is humiliated and either transferred or suspended from

service, fabricated false documents, forged signatures, made

false allegations and cheated him. Even the higher officers in

HESCOM and the Police Officers have used the forged and

fabricated documents as genuine making false accusation.

7. It is stated that respondent No.2 also filed a private

complaint in PCR No.88/2017 before the II J.M.F.C. Court at

Belagavi against accused Nos.1 to 10 alleging commission of the

offence punishable under Section 500 of IPC as they have

defamed him making all sorts of false allegations. It is stated

that the said private complaint in PCR No.88/2017 was came to

be dismissed by the learned Magistrate on 09.06.2017. Being

aggrieved by the same, respondent No.2 filed Crl.R.P.No.

277/2017 before the learned 11th Addl. District and Sessions

Judge, Belagavi. Vide order dated 17.08.2017, the said Criminal

Revision Petition was came to be allowed and cognizance for the

above said offence was taken against the accused.

8. It is stated that accused Nos.2 to 10 have challenged

the impugned order passed by the learned 11th Addl. District and

Sessions Judge, Belagavi, setting aside the order passed by the

learned Magistrate dismissing the PCR No.88/2017 and taking

cognizance of the offence against them and also challenged the

criminal proceedings initiated against them in Crime

Nos.44/2017, 45/2017 and 46/2017 of Malmaruti Police station

by filing various petitions before this Court i.e.,

Crl.R.P.Nos.100261/2017, 100253/2017, Crl.P.No.101338/2017,

101339/2017, 101340/2017, W.P.Nos.105120-105123/2017,

W.P.Nos.105198-1055201/2017, W.P.Nos.105124-105127/2017,

W.P.Nos.105202-105205/2017, W.P.Nos.105128-105131/2017

and W.P.Nos.105206-105209/2017. It is stated that all these

petitions were came to be allowed vide impugned order dated

16.01.2018 passed by this Court. However, accused No.1 had

not challenged the order passed by the learned 11th Addl. District

and Sessions Judge, Belagavi in Crl.R.P.No.277/2017.

9. It is stated that respondent No.2 herein filed Special

Leave Petition before the Hon'ble Apex Court in SLP

(Crl.)Nos.5064-5065/2018 and 6055-6081/2018 challenging the

impugned order dated 16.01.2018 passed by this Court quashing

the criminal proceedings initiated against accused Nos.2 to 10.

However, all these SLPs were came to be dismissed vide order

dated 06.03.2019. It is stated that while dismissing the SLPs,

liberty was given to the trial Court to exercise all the powers

including one under Section 319 of Cr.P.C. even against accused

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Nos.2 to 10, if and when occasion arises, since criminal

proceeding against accused No.1 was pending.

10. In the meantime, the Investigating Officer filed

charge sheet against accused No.1 for the offence punishable

under Sections 211, 420, 467, 468, 471 read with Section 34 of

IPC in Crime No.44/2017 of Malmaruti Police station, and sought

permission of the learned Magistrate to club Crime Nos.44 and

45/2017 with it. Learned Magistrate took cognizance of the

offence against accused No.1 for the above said offences and

committed the case to the learned District and Sessions Judge

Court wherein it is numbered as S.C.No.262/2019.

11. It is stated that accused No.1 was summoned before

the learned Sessions Judge to answer the charge. She pleaded

not guilty and thereafter, the prosecution examined PWs-1 to 6

and got marked Exs.P-1 to P-44.

12. It is stated that PW-1 who is respondent No.2 herein

deposed before the Court about commission of the offence by

accused Nos.2 to 10 along with accused No.1. It is stated that

both PWs-1 and 2 are the victims of the crime, PWs-3 and 6 are

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is the higher officers and PWs-4 and 5 are the panchas who have

deposed in respect of the case of the prosecution. On the basis

of all these materials, the prosecution filed an application under

Section 319 of Cr.P.C. praying to proceed against the proposed

accused Nos.2 to 13, for the above said offences. The said

application was came to be allowed by the learned Prl. District

and Sessions Judge, Belagavi, vide order dated 30.06.2020 and

arrayed the petitioners herein as accused Nos.2 to 10 along with

other accused.

13. Being aggrieved by the impugned order dated

30.06.2020 allowing the application under Section 319 of

Cr.P.C., accused Nos.2 to 9 are before this Court in

W.P.No.147718/2020 and accused No.10 has filed

Crl.R.P.No.100153/2020.

14. Heard Sri Jayakumar S. Patil, learned Senior Counsel

for Smt. Sunita P. Kalasoor, learned counsel for petitioners in

W.P.No.147718/2020, Sri Neelendra D. Gunde, learned counsel

for revision petitioner in Crl.R.P.No.100153/2020, Sri Vinayak S.

Kulkarni, learned A.G.A. for respondent No.1/State and Sri V.M.

Sheelavant, learned counsel for respondent No.2/complainant.

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15. Learned Senior Counsel for learned counsel for the

writ petitioners submitted that these petitioners have challenged

the order taking of the cognizance of the offence alleged against

them by filing various criminal petitions and revision petitions as

stated above before this Court, which were came to be allowed

vide order dated 16.01.2018. Even though Special Leave

Petitions were filed before the Hon'ble Apex Court, the same

were came to be rejected vide order dated 06.03.2019. Even

though liberty is reserved to invoke Section 319 of Cr.P.C., the

said liberty was given to be exercised in the private complaint

filed by respondent No.2 for the offence punishable under

Section 500 of IPC but not in the police instituted criminal case.

When this Court as well as the Hon'ble Apex Court after

considering all the materials on record came to the conclusion

that there are no materials to proceed against these petitioners,

implicating the petitioners as accused Nos.2 to 10 invoking

Section 319 of Cr.P.C. by the trial Court is apparently exceeding

its limits and passing the perverse order. No fresh materials

were made available to invoke Section 319 of Cr.P.C. and to

implicate these petitioners after the criminal proceedings were

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quashed against them. These petitioners are in no way

concerned with the complaint that was filed by accused No.1

against respondent No.2 and the various developments

thereafter. None of the penal provisions are applicable against

these petitioners. Under such circumstances, the trial Court

could not have allowed the application under Section 319 of

Cr.P.C. implicating these petitioners as accused Nos.2 to 10. It

is nothing but abuse of process of the Court, when there are

absolutely no materials to proceed against these petitioners.

Therefore, the learned Senior Counsel prays for allowing the writ

petition in the interest of justice.

16. Learned counsel for revision petitioner relied on the

decision in Ram Singh Vs. Ram Niwas1 to contend that mere

existence of prima facie case is not sufficient to exercise the

jurisdiction under Section 319 of Cr.P.C. but the materials that

are available on record if un-rebutted lead to the conviction of

the accused, then only such a discretion could be exercised.

17. Learned senior counsel also raised objection for the

learned counsel Sri.V.M.Sheelavant., who is incidentally

(2009) 14 SCC 25

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appointed as State Public Prosecutor to represent respondent

No.2-complainant. I.A.No.1/2021 was also filed under Section

226 of Constitution of India to take note of the fact that the

State Public Prosecutor is representing the complainant. He

further submitted that even though there is no bar for the State

Public Prosecutor to represent the complainant when the state is

represented by learned Additional Government Advocate, He

submits that the propriety demands for exercising restraint for

such representation as the status of the complainant or the

accused as an individual is the same and equal before the State.

18. Sri Neelendra D. Gunde, learned counsel

representing the revision petitioner/accused No.10 in

Crl.R.P.No.100153/2020 reiterated the submissions of the

learned Senior Counsel and submitted that accused No.10 also

stands on the similar footing and the criminal proceedings

instituted against him was also quashed by this Court and upheld

by the Hon'ble Apex Court. Under such circumstances, the

application under Section 319 of Cr.P.C. should have been

dismissed by the trial court. Accordingly, he prays for allowing

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the criminal revision petition by setting aside the impugned

order passed by the trial Court.

19. Per contra, learned counsel for respondent

No.2/complainant contended that at the time of filing the first

information against all the accused, respondent No.2 was not

having all these materials which were now collected by him. He

examined himself as PW-1 and got examined PWs-2 to 6 before

the trial Court and got marked Exs.P-1 to P-44. PWs-1 and 2

are the victims of the crime, who spoke about the commission of

the offence by all the accused with the support of the

documents. PW-3 is the senior officer of the respondent No.2

who spoke about the act of accused Nos.1 to 10 in insisting him

for suspension of respondent No.2. This witness also spoke

about writing confidential letter to General Manager, HESCOM,

Hubballi, to initiate action against respondent No.2 and also

spoke about the letter submitted by accused No.2 in the

letterhead of the Employees' Union which is a fabricated

document. Witness also stated that he had written one more

letter to the General Manager, HESCOM as it is revealed that

accused No.2 was not the Vice President of the Union and it was

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one Y.N. Nittur who was the Vice President and therefore,

requested to ignore his earlier letter for initiation of action

against respondent No.2. PWs-4 and 5 are the Panchas who

spoke about taking of sample signatures of the accused for

comparison, under a panchanama.

20. Learned counsel submitted that the disputed

signatures with the admitted ones were forwarded to Forensic

Lab for comparison and for report. The Forensic Lab Report is

also received with the opinion that the disputed signatures tallies

with the admitted/sample signatures. He further submitted that

PW-6 is the Senior Officer of accused No.1 who spoke about

lodging of complaint by accused No.1 against him and also

against PWs-1 and 2. The witness also spoke about issuance of

show cause notice, submission of explanation and the conspiracy

of accused No.1 with others, including the petitioners, the

concoction of false documents etc. and forwarding the

complaints to the Chief Minister, Ministers etc. Thus, learned

counsel submitted that these are all the additional materials that

were made available before the trial Court which are sufficient to

allow the application under Section 319 of Cr.P.C. and therefore,

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the trial Court rightly allowed the application and arrayed these

petitioners as accused Nos.2 to 10. There is no illegality or

perversity in the impugned order and both petitions are to be

dismissed as devoid of merits.

21. Learned counsel for respondent No.2 opposing the

submissions made by learned Senior Counsel with regard to he

representing the complainant contended that, he is not opposing

the State by representing the complainant. But on the other

hand the state is supporting the prosecution against the accused

and supporting the cause of the complainant. There is absolutely

no bar for the State Public Prosecutor from representing the

complainant in the present case, where there is no conflict of

interest between two. Hence, he prays for dismissal of

I.A.No.1/2021 as divide of merits.

22. Learned counsel for respondent No.2 relied on the

decisions of the Hon'ble Apex Court in Municipal Corporation

of Delhi Vs. Ram Kishan Rastogi and others2 to contend that

if the prosecution can at any stage produce evidence which

satisfies the Court that the order accused or those who have not

AIR 1983 SC 66

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been arrayed as accused against whom proceedings have been

quashed have also committed the offence the Court can take

cognizance against them and try them along with the other

accused.

23. Learned Additional Government Advocate for

respondent No.1/State supporting the contentions of respondent

No.2 submitted that there are sufficient materials to constitute

the offence alleged and the trial Court considered all the

materials on record and came to be conclusion that there are

sufficient materials to proceed against these petitioners and

others. There is no illegality or perversity in the order and

therefore, he prays for dismissal of both the petitions.

24. Perused the materials on record.

25. In the light of the rival submissions, the point that

would arise for my consideration is,

1. Whether the application in I.A.No.1/2021 filed under Section 226 of Constitution of India is liable to be allowed ?

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2. Whether the criminal proceedings initiated against these petitioners/accused Nos.1 to 10 in both the petitions is liable to be quashed?

26. My answer to above the points are in the 'negative'

for the following:

REASONS

27. Considered the contention taken by the learned

Senior counsel raising objection for the learned counsel for the

complainant to represent him in view of the fact that he is

appointed as State Public Prosecutor. I do not find any reason to

bar learned counsel from representing the complainant on the

ground that he is also acting as State Public Prosecutor in his

official capacity. His appointment as State Public Prosecutor will

not bar him from representing respondent No.2 when admittedly

there is no conflict of interest between the State and respondent

No.2. I find the contention of the State in the present case on

par with the contention of respondent No.2 and the learned

Additional Government Advocate is supporting the say of

respondent No.2 in favour of arraying the petitioners as accused

and subjecting them for criminal trial. Therefore, I do not find

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any reason to entertain the I.A.No.1/2021. Accordingly, I answer

point No.1 in the negative.

28. In view of the elaborate argument addressed by the

learned Senior Counsel for the petitioner and the learned counsel

for the respondents, I deem it proper to consider the position of

law with regard to the initiation of the proceedings against the

petitioners on the basis of the evidence lead by respondent No.2

and other witnesses before the trial Court, as provided under

Section 319 of Cr.P.C.

29. The Hon'ble Apex Court in Ram Singh and others

(supra) considered the requirement to exercise the jurisdiction

under Section 319 of Cr.P.C. and held in paragraph 20 as under:

"20. The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word "appears". What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case. The High Court furthermore committed a serious error insofar as it

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failed to take into consideration that when the order dated 29-05-2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly".

(emphasis supplied)

30. In Hardeep Singh (supra), the Hon'ble Apex Court

considered its various earlier decisions on the subject and

summed up the conclusion as under:

"117. We accordingly sum up our conclusions as follows:

Questions (i) and (iii)

--What is the stage at which power under Section 319 Cr.P.C. can be exercised?

AND

-- Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

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Answer

117.1. In Dharam Pal3 case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till "evidence" under Section 319 Cr.P.C. becomes available for summoning an additional accused.

117.2.Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C., and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge- sheet.

117.3. In view of the above position the word "evidence" in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

(2014) 3 SCC 306

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Question (ii)- Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

Answer

117.4. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question        (iv)   --    What       is     the   nature      of   the
satisfaction       required         to      invoke        the   power

under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

Answer

117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took

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cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question (v) -- Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge sheeted or who have been discharged?

Answer

117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh".

(emphasis supplied)

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31. In Rajesh Alias Sarkari and another (supra), the

Hon'ble Apex Court relying on its earlier decisions including

Hardeep Singh (supra) held that the trial Court as well as the

High Court have not committed any error in summoning the

accused to face the trial under Section 319 Cr.P.C.

32. In Municipal Corporation of Delhi (supra), the

Hon'ble Apex Court has held as under:

"17. Although we uphold the order of the High Court we would like to state that there are ample provisions in the Code of Criminal Procedure, 1973 in which the Court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused. In the old Code, Section 351 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused. The Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and Section 319 of the present Code gave full effect to the recommendation of the Law Commission by removing the lacuna which was found to exist in S. 351 of the old Code.

18. This provision gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused. This provision was also the subject matter of a decision by this Court in Joginder Singh v. State of Punjab, (1979) 2 SCR

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306: (AIR 1979 SC 339) where Tulzapurkar, J., speaking for the Court observed thus:-

"A plain reading of section 319 (1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused."

19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this, we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully

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satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it."

(emphasis supplied)

33. If the allegations made against the petitioners herein

are considered, the same is of serious in nature. A private

complaint was filed by respondent No.2 against the petitioners

for the offence punishable under Section 500 of IPC and there

was also a criminal complaint, which are registered in Crime

No.44/2017 of Malamaruti police station alleging commission of

the offence punishable under Section 211, 420, 467, 468 and

478 read with Section 34 of IPC. The petitioners have

approached this Court challenging the order passed by the

revisional Court taking cognizance of the offence in the private

complaint that was filed by respondent No.2. The said petition

was allowed.

34. Respondent No.2 herein filed crime No.44/2017

along with Crime Nos.45/2017 and 46/2017 of Malmaruti police

station against accused Nos.1 to 10 alleging commission of the

offence punishable under Sections 192, 211, 195, 120B, 420,

467, 468 and 471 read with Section 34 of IPC.

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35. Since, the learned Magistrate took cognizance of the

offence, accused Nos.2 to 10 have approached this Court by

filing various writ petitions, seeking quashing of the criminal

proceedings. The Criminal Revision Petitions were also filed,

seeking similar relief's. It is pertinent to note that criminal

petition Nos.100261 and 100253 of 2017 were filed by accused

Nos.2 to 10 impugning the order passed by the revisional Court

in Crl.R.P.No.277/2017, where under the impugned order passed

by the trial Court dismissing the private complaint in PCR

No.88/2017 was set-aside. All these writ petitions and criminal

petitions were considered by this Court and vide common order

dated 16.02.2019 allowed all the petitions. Consequently, all the

impugned orders challenged were set-aside. Respondent No.2

approached the Hon'ble Apex Court by filing Special Leave

appeal Nos.5064-5065 of 2018 impugning the orders passed in

Crl.P.Nos.100261/2017 and 100253/2017.

36. The Hon'ble Apex Court while dismissing the Special

Leave Petitions held that the private complaint will proceeded

against remaining accused in accordance with law, which would

include that the trial Court may exercise all powers including

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under Section 319 of Cr.P.C even against the concerned

respondents if and when the occasion arises. Therefore, it is the

contention of the learned Senior Counsel that the said liberty

was reserved to invoke Section 319 of Cr.P.C before the trial

Court only in the private complaint, but not in the police

instituted criminal case.

37. In the present case, the facts and circumstances

discloses that S.C.No.262/2019 was registered after taking

cognizance against accused No.1 arising out of the complaint in

Crime No.44/2017 of Malmaruti police station, for the offence

punishable under Section 192, 211, 195, 120B, 420, 467, 468

and 471 read with Section 34 of IPC. During trial, PWs.1 to 6

were examined before the trial Court and thereafter an

application under Section 319 of Cr.P.C was came to be filed

seeking to initiate proceedings against the additional accused,

who are petitioners before this Court. The said application was

came to be allowed by the trial Court and the said order is being

challenged by the petitioners.

38. I have considered the contentions of both the parties

with regard to the applicability of Section 319 of Cr.P.C for

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proceeding against the petitioners. The trial Court under

impugned order discussed at length about the materials that are

available for proceeding against the petitioners and allowed the

said petition.

39. Learned Senior counsel would contend that the

finding given by the trial Court that the observations of the

Hon'ble Apex Court is applicable to the entire common order is

per say wrong since the Hon'ble Apex Court made such

observation while dismissing the Special Leave Petition filed

against dismissal of the private complaint by setting-aside the

impugned order passed by the revisional Court. Therefore, it is

contended that the said liberty cannot be made use of by the

trial Court to invoke Section 319 of Cr.P.C, in the police

instituted criminal case, which is pending before the trial Court in

S.C.No.262/2019.

40. I have considered the submission made by the

learned Senior Counsel in the light of the settled position of law

in the matter of invoking Section 319 of Cr.P.C. The decision in

Hardeep Singh (Supra), the Hon'ble Apex Court made it clear

that where the materials disclose commission of the offence by

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any person other than the accused, the Court can proceed

against such person and the Court need not have to wait for the

evidence against the proposed accused to be summoned is

tested by cross-examination. It is also held that the degree of

satisfaction i.e., required to summon a person under Section 319

of Cr.P.C would be same as for framing a charge. The Hon'ble

Apex Court also made it clear that Section 319 of Cr.P.C could be

invoked to proceed against any person even though named in

the FIR and charge sheet is not filed or is discharged, however,

subject to requirement under Section 300 and 398 of Cr.P.C. The

Hon'ble Apex Court in Municipal Corporation of Delhi

(Supra) considered the authority under Section 319 of Cr.P.C in

light of its earlier decisions on the subject and categorically held

that the other accused those who have not been arrayed as

accused against whom proceedings have been quashed could be

arrayed as accused if it is shown that they have also committed

the offence, the Court can take cognizance against them and try

them along with the other accused. The Hon'ble Apex Court in

the above decision made it clear that quashing of the criminal

proceedings against any of the accused will not prevent the

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Court from exercising its discretion under Section 319 of Cr.P.C

,if it is fully satisfied that a case for taking cognizance against

them has been made out on the additional evidence led before

it. This finding of the Hon'ble Apex Court makes it clear that

even in the absence of reserving any liberty with the trial Court

to proceed against the accused against whom the criminal

proceedings is already quashed, the trial Court can exercised its

discretion under Section 319 of Cr.P.C and proceed against him

if there are sufficient materials to take cognizance of the offence.

Therefore, the contention of the learned senior counsel that the

order referred to in the Special Leave petition only refers to the

private complaint and not to the police instituted criminal case,

makes no difference.

41. Now the question arises as to whether the trial Court

was right in taking cognizance and proceeding against the

petitioners under Section 319 of Cr.P.C on the basis of evidence

which is led before it, when already materials placed before this

Court was considered and criminal proceedings were quashed

against the petitioners.

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42. On filing the first information by respondent No.2

against the accused alleging commission of the above said

offences, FIR was came to be registered in crime No.44/2017 of

Malmaruti police station. After holding investigation, the charge

sheet was came to be filed, cognizance was taken, which was

registered in S.C.No.262/2019. In the meantime, the said order

taking cognizance of the offence was challenged before this

Court by filing various writ petitions and criminal petitions by

these petitioner which were came to be allowed by this Court as

stated above, which are also confirmed by the Hon'ble Apex

Court. But admittedly, the prosecution examined as many as six

witnesses as PWs.1 to 6 and got marked Exs.P1 to 44.

Respondent No.2 herein examined as PW1 and he categorically

stated regarding commission of the offence against accused

Nos.2 to 10 along with accused No.1. PWs.1 and 2 examined

before the trial Court as victims of the crime, PWs.3 and 6 are

their higher officers and PWs.4 and 5 are the panchas have

spoken in detail about the commission of the offences by these

petitioners.

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43. The trial Court refers to the evidence of these

witnesses and forms an opinion that there are sufficient

materials to proceed against these petitioners. The prosecution

is also relying on the expert opinion produced before the Court

to substantiate its contentions coupled with the oral evidence of

PWs.1, 2, 3 and 6. As per the report/opinion of truth labs, after

examining the disputed signatures with the admitted once, the

person, who wrote standard signatures also wrote the question

signatures found on the disputed documents. Under such

circumstances, it cannot be said that there are no materials to

proceed against the petitioners.

44. The evidence of PWs.1 to 6 as deposed before the

Court, along with the documents that are exhibited are also

produced before the Court. On going through all these materials

on record, there are serious and specific allegations made

against the petitioners, who are required them to answer the

charge and to face the trial.

45. The contention of the petitioners that they are

implicated in the matter without any basis and that they are

being harassed or targeted even after quashing the criminal

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proceedings against them, cannot be accepted at this stage since

the prosecution is successful in placing additional and sufficient

materials to form an opinion that the petitioners are required to

be tried for the above said offences. Under such circumstances, I

do not find any merits in the contention taken by the petitioners

seeking to quash the impugned order passed by the trial Court.

Hence, I answer the point No.2 in the negative and proceeded to

pass the following;

ORDER

The Writ Petition and the Criminal Revision

Petition are dismissed.

I.A.No.1/2021 filed in W.P.No.147718/2020

under Section 226 of Constitution of India is

dismissed.

The impugned order dated 30.06.2020 passed

in S.C.No.262/2019 by the Prl. District and Sessions

Judge, Belagavi, is confirmed.

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In view of dismissal of the above petitions,

pending applications if any, do not survive for

consideration, accordingly disposed off.

Sd/-

JUDGE

Naa/am