Karnataka High Court

Sudarshan M C vs State By Station House Officer on 23 December, 2021

Bench: V Srishananda

                            1

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF DECEMBER, 2021

                          BEFORE

          THE HON'BLE MR. JUSTICE V. SRISHANANDA

                 CRL.RP. NO.1267 OF 2021

BETWEEN:

1.     SUDARSHAN M.C.
       S/O CHANNA @ CHANNAIAH
       AGED ABOUT 23 YEARS

2.     SUCHETAN M.C.
       S/O CHANNA @ CHANNAIAH
       AGED ABOUT 21 YEARS

       BOTH ARE R/O MOKALI VILLAGE
       KASABA HOBLI
       ARKALGUD TALUK
       HASSAN DISTRICT - 573 102.
                                           ... PETITIONERS
(BY SRI. MURTHY D. L., ADVOCATE)


AND:

1.     STATE BY
       STATION HOUSE OFFICER
       ARAKALGUD POLICE STATION
       ARAKALGUD, HASSAN DISTRICT - 573 102.
       REP. BY SPP,
       HIGH COURT OF KARNATAKA.
       BENGALURU.

2.     SRI. BELURAIAH
       S/O LATE SRI. KEMPAIAIH
       AGED ABOUT 65 YEARS
       R/O MOKAKLI VILLAGE
                                2

        KASABA HOBLI
        ARKALGUD TALUK
        HASSAN DISTRICT - 573 102.
                                             ...RESPONDENTS

(BY SRI.V. S. VINAYAKA,HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.PC PRAYING TO
SET ASIDE THE ORDER DATED 02.09.2021 PASSED BY THE
LEARNED III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HASSAN IN S.C.NO.26/2017 AT ANNEXURE-A.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-

                         ORDER

Heard Sri.Murthy D.L, learned counsel for the revision

petitioners and Sri.V.S.Vinayaka, learned counsel for HCGP

and perused the records.

2. The present petition is filed challenging the

order dated 02.09.2021 passed by the learned III

Additional District Judge and Sessions Judge, Hassan in

S.C No.26/2017 whereby the application filed under

Section 319 of Cr.P.C by the prosecution came to be

allowed and revision petitioners are ordered to be arrayed

as accused Nos.4 and 5 and issued summons to the

revision petitioners.

3. The brief facts of the case are as under:

A prosecution was launched against Puttaswamy and

others. FIR came to be lodged against Puttaswamy and

others including the revision petitioners for the offences

punishable under Sections 324, 307, 354, 323 read with

Section 149 of IPC. However, the police after thorough

investigation laid charge sheet against Puttaswamy,

Channaiah and Lakshmaiah. When the charge was framed

against them they pleaded not guilty and therefore, trial

was commenced in S.C No.26/2017. Before the Sessions

Court, four prosecution witnesses namely Beluraiah,

Keshava, Dyavamma and Manjula were examined as

PWs.1 to 4. All of them have deposed in the examination-

in-chief on oath that apart from the accused persons are

already facing trial, the sons of accused No.2 namely

Sudarshan and Suchetan were also involved in the incident

and there is a specific overt act alleged against the

revision petitioners. Taking note of the same, prosecution

filed an application under Section 319 of Cr.P.C. The

learned Sessions Judge heard the matter in detail and by

order dated 02.09.2021 allowed the application and issued

summons to the revision petitioners for proposed accused

Nos.4 and 5. The same is under challenge by the revision

petitioners who are proposed accused Nos.4 and 5 in

S.C.No.26/2017.

4. In the revision petition, the following grounds

have been raised:

"1. The petitioners submit that they are innocent of the alleged offences under section 324, 307, 354, 323 read with section 34 of the Indian penal code and are falsely implicated in this case.

2. In the above case the petitioners herein will be falsely implicated if they are impleaded in pursuance of the order at Annexure-A as they were not at all involved in any fight much the less the fights alleged to have been taken place on 11.04.2016 and 13.04.2016.

3. It is clear from the further statement of the complainant, victim and the complainant witnesses that these petitioners have not committed any offence much less the offences alleged in the complaint and they were not charge sheeted by the 1st Respondent herein as the complainant witnesses in their statements recorded by Respondent No.1 have clearly stated that the petitioners have not committed any offence and are not involved in the alleged incident inspite of which the court below

proceeded to pass the impugned order to implead them in the above case.

4. The court below failed to appreciate the fact that as on the date of the alleged incident the petitioners were minors and were pursuing their studies and proceeded to pass the impugned order at Annexure-A to implead the petitioners that too after a lapse of almost 5 years.

5. The petitioners are sought to be impleaded only after the filing of the original suit in O.S.30/2017 which is filed by the Accused No.3 herein against the wife of CW1 and victim Beluraiah, which clearly demonstrates the intention behind in seeking to implead them in the present case.

6. The complainant/Respondent No.2 has also clearly stated in his statement recorded by Respondent No.1 that the petitioners were not involved in the alleged incident and the court below proceeded to pass the impugned order by totally disregarding this fact.

7. The petitioners have not committed any offence as alleged by the 2nd respondent.

8. The petitioners may be permitted to urge such new grounds at the time of arguments."

7. Re-iterating the above grounds,

Sri.D.L.Murthy, learned counsel for the revision petitioners

contended that as on the date of the incident the accused

persons were Juvenile Offenders and therefore they could

not be proceeded before the Sessions Court. He also

contended that the police after thorough investigation

taking note of the statements made by the prosecution

witnesses recorded under Section 161 of Cr.P.C rightly

dropped the proposed revision petitioners as accused

Nos.4 and 5 while filing the charge sheet and the same is

not properly considered by the learned Sessions Judge

while passing the impugned order and sought for allowing

the revision petition.

8. Per contra, learned HCGP opposes the revision

grounds urged and contends that in the impugned order,

the learned Sessions Judge has only issued summons to

the proposed accused Nos.4 and 5 and accused Nos.4 and

5 have got a right to have their say and said objection was

considered and impugned order came to be passed and

there is no merit in any of the contentions urged by the

revision petitioners and sought for dismissal of the revision

petition. In support of his arguments, he relied on the

judgment of this Court in the case of SMT.ASHA

SOMASHEKAR AND OTHERS v. STATE OF KARNATAKA

reported in 2016 (4) AKR 392.

9. In view of the rival contention, the only point

that would arise for consideration is:

"Whether the impugned order is legally sustainable in the case on hand, admittedly, the revision petitioners have been shown as accused Nos.4 and 5?"

10. The Investigation Agency, however, after

thorough investigation dropped revision petitioners who

are accused Nos.4 and 5 while filing the charge sheet.

11. However, after the commencement of the trial,

PWs.1 to 4 unequivocally deposed in the examination-in-

chief about the individual overtact of the revision

petitioners in the incident. Taking note of the evidence

available on record, the prosecution filed an application

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

filed, notice was issued as is contemplated in the judgment

relied on by the learned HCGP in the case of Smt.Asha

Somashekar and others v/s State of Karnataka stated

supra. Paragraphs 16, 17 and 18 of the said judgment are

extracted hereunder for ready reference:

"16. It need not be reiterated that whenever a person is sought to be summoned as an additional accused in 15terms of Section 319, Cr.P.C., not only prior notice calling upon him to show cause is to be issued, but also the judge dealing with the case has to take extra caution to satisfy himself/herself that a stronger evidence exists as the basis for taking such action.

17. Hence illegality committed by the learned judge of the trial court in S.C.2/13 in allowing the application filed under Section 319, Cr.P.C is an apparent error inviting the revisional jurisdiction of this court vested under Section 397 of Cr.P.C.

18. In the result, the following order is passed:

ORDER The revision petition is allowed. The impugned order dated 8.2.2016 passed in S.C.2/13 is set aside. The learned judge is directed to issue prior notice to the petitioners herein calling upon them to show cause as to why they should not be made accused. Only after giving a reasonable opportunity of being heard, a suitable order has to be passed, keeping in mind the observations made by the Hon'ble apex court in the Constitutional Bench decision in the case of HARDEEP SINGH .v. STATE OF PUNJAB & OTHERS ([2014] 3 SCC 92) and JOGENDRA YADAV

& OTHERS .v. STATE OF BIHAR (AIR 2015 S.C. P.2951)."

12. Applying the legal principles enunciated in the

aforesaid decision to the case on hand, the learned

Sessions Judge at once did not summon the revision

petitioners as accused persons and issued prior notice. On

record the revision petitioners themselves have filed the

objections before the Court on 14.03.2019. Taking note of

the objections filed by the revision petitioners, the trial

Judge has allowed the application filed under Section 319

of Cr.P.C and revision petitioners are also arrayed as

accused Nos.4 and 5. When once the material evidence is

available on record showing individual overtact of the

accused Nos.4 and 5, the trial Judge was not require to