Sri Sunil Bose vs The State Of Karnataka
2021 Latest Caselaw 2 Kant

                               Crl.R.P.No.976/2017 c/w
                                    Crl.R.P.No.975/2017
                        1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 4TH DAY OF JANUARY 2021

                      BEFORE

     THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

  CRIMINAL REVISION PETITION No.975/2017
                   C/W
  CRIMINAL REVISION PETITION No.976/2017

Crl.R.P.No.975/2017

BETWEEN:

SRI.SUNIL BOSE
S/O DR.H.C.MAHADEVAPPA
AGED ABOUT 34 YEARS
OCCUPATION : BUSINESS
R/AT GIRIDARSHINI LAYOUT
HALANAHALLI
SIDDARTHA NAGARA
MYSORE - 570 011               ... PETITIONER

(BY SRI.B.V.ACHARYA, SENIOR COUNSEL FOR
    SRI.B.L.ACHARYA, ADVOCATE)

CRL.R.P.NO.976/2017

SRI.RAJU
S/O MANJUNATHA
AGED ABOUT 34 YEARS
OCCUPATION : BUSINESS
R/O NO.2609, II FLOOR
8TH MAIN, 17TH CROSS
BANASHANKARI II STAGE
BANGALORE - 560 070            ... PETITIONER

(BY SRI.C.H.JADHAV, SENIOR COUNSEL FOR
   SRI.CHETAN JADHAV, ADVOCATE)
                                   Crl.R.P.No.976/2017 c/w
                                       Crl.R.P.No.975/2017
                           2




AND:

  1. THE STATE OF KARNATAKA
     BY KARNATAKA LOKAYUKTA POLICE
     MYSORE, REPRESENTED BY
     SPECIAL PUBLIC PROSECUTOR
     KARNATAKA LOKAYUKTA
     M.S. BUILDING
     BANGALORE - 560 001

   2. SRI.BASAVARAJ R
      S/O PAGADE RANGA SHETTY
      AGED ABOUT 36 YEARS
      OCCUPATION: PRIVATE SERVICE/
      AGRICULTURIST
      R/AT HOSAKEMPAYYANA HUNDI
      T.NARASIPURA TALUK
      MYSORE - 571 124        ... RESPONDENTS
                                 (COMMON)
(BY SRI.VENKATESH ARABATTI, ADVOCATE FOR R1;
    SRI.R.SOMASUNDARA , ADVOCATE FOR R2)

     THESE CRIMINAL REVISION PETITIONS ARE
FILED UNDER SECTION 397 R/W 401 OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 13.09.2017
PASSED ON THE APPLICATION FILED UNDER SECTION
319 OF CODE OF CRIMINAL PROCEDURE BY THE III
ADDITIONAL SESSIONS AND SPECIAL JUDGE, MYSURU
IN SPECIAL CASE NO.13/2013.

     THESE CRIMINAL REVISION PETITIONS HAVING
BEEN HEARD AND RESERVED FOR ORDERS ON 7th
DECEMBER 2020, COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:

                       ORDER

"Whether the trial Court was right in impleading

the petitioners as accused Nos.2 and 3 in Spl. Case Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

No.13/2013 by exercising the power under Section 313

of Cr.P.C.?" is the question involved in this case.

2. The Special Case in No.13/2013 on the file

of the III Addl. Sessions and Special Judge, Mysuru

arises out of Crime No.8/2010 of Karnataka Lokayuktha

Police Station, Mysuru. The said crime was registered

initially against one V.J.Alphonsus, the senior Geologist,

Mysuru on the basis of the complaint filed by the second

respondent-R.Basavaraju.

3. The allegations of respondent No.2 in the

complaint in brief were as follows:

That he was working as Manager under one

T Nadakrishna, the Excise Contractor and transporter of

sand. On 23.03.2010 by depositing royalty of

Rs.1,00,000/- he filed application seeking permission for

transport about 200 truck loads of sand from Akkur

village, T.Narasipura Taluk. Mr.Alphonsus, Senior

Geologist demanded illegal gratification of Rs.1,00,000/-

for transportation of the sand. When that was

questioned, Alphonsus said that he has to pay the said Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

amount to Mr.Sunil Bose, Son of MLA (petitioner in

Crl.R.P.No.975/2017). At the instance of accused-

Alphonsus the complainant approached Sunil Bose

during which time, Raju (petitioner in

Crl.R.P.No.976/2017) was also present. Sunil Bose

asked the complainant to follow the directions of his

Assistant Raju and Raju demanded illegal gratification

on behalf of Sunil Bose.

4. On filing the complaint, on 27.03.2010 the

trap was laid in the house of accused-Alphonsus. He

allegedly demanded and received illegal gratification of

Rs.1,00,000/-. Out of that Rs.75,000/- was allegedly

recovered from the bag in the hall of the house and

Rs.25,000/- was recovered from the Wardrobe in the

room of the house of accused-Alphonsus.

5. Though Sunil Bose and Raju were arrayed

as accused Nos.2 and 3, after investigation Lokayuktha

Police charge sheeted only Alphonsus and dropped Sunil

Bose and Raju (the petitioners) on the ground that the Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

investigation did not reveal any incriminating material

against them.

6. On filing the charge sheet, the trial Court

took cognizance of the offence and registered the case

in Spl.Case No.13/2013 against accused Alphonsus.

During the course of evidence on 25.02.2015 , the

complainant R.Basavaraj filed application under Section

190(1)(b) Cr.P.C to take cognizance against the

petitioners as additional accused. On 07.09.2016 the

trial Court allowed the application and took cognizance

against them for the offence under Section 12 of the

Prevention of Corruption Act, 1988 ('the PC Act' for

short) and Section 109 of IPC and issued process

against them. They/petitioners were arrayed as

accused Nos.2 and 3 in the case.

7. Petitioners challenged the said order before

this Court in Crl.R.P.Nos.313/2017 and 1206/2016.

This Court vide order dated 13.04.2017 allowed the said

petitions and set aside the order of the trial Court on Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

the ground that taking cognizance for the second time

after framing the charge was not permissible.

8. Thereafter the trial continued. The

complainant/respondent No.2 was examined as PW.1.

After his examination he again filed application under

Section 319 Cr.P.C. to implead the petitioners as

accused Nos.2 and 3. The trial Court issued notice of

the said application to the petitioners. They appeared

and contested the application. The trial Court on

hearing both side, by the impugned order allowed the

said application and impleaded the petitioners as

accused Nos. 2 and 3 holding that the evidence of PW.1

and the other material on record show that there was

sufficient material to proceed against them.

9. Aggrieved by the said order, the petitioner

has preferred the above revision petition. This Court

granted interim stay of the impugned order of the trial

Court. Therefore, the trial Court proceeded with the

trial only against accused No.1. Pending these

petitions, the trial Court by the judgment and order Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

dated 18.09.2018 acquitted the first accused holding

that the charges against him were not proved.

10. Sri B.V.Acharya, learned senior counsel

appearing for Sri B.L.Acharya, advocate on record for

the petitioner in Crl.P.No.975/2017 and Sri C.H.Jadhav,

learned senior counsel for Sri Chetan Jadhav, advocate

on record for the petitioner in Crl.P.No.976/2017 seek

to assail the impugned order on the following grounds:

i) There was no material to proceed against the

petitioners in terms of Section 319 of Cr.P.C.;

ii) PW.1 was an interested witness and his

evidence was full of inconsistencies and contradictions;

iii) There was no corroboration for the evidence of

PW.1 to implicate the petitioners;

iv) Subsequent to the interim order on a full

fleged trial, the trial Court acquitted accused No.1. In

the course of such judgment, the trial Court held that

PW.1 was an unreliable person.

v) The petitioner-Sunil Bose was implicated in the

case only due to political rivalry between the party of Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

PW.1 and the father of Sunil Bose who was a sitting

MLA.

In support of their arguments, they relied upon

the following judgments:

i) Hardeep Singh vs. State of Punjab and

others1

ii) Sarbjit Singh and another vs. State of

Punjab and another2

11. Per contra, Sri Venkatesh Arabatti, learned

Special Public Prosecutor for respondent No.1 and Sri

R.Somasundara, learned counsel for respondent No.2

seek to justify the impugned order on the following

grounds:

i) The evidence of PW.1 and the other material on

record was sufficient to summon the petitioners

invoking Section 319 Cr.P.C.;

ii) The judgment of acquittal passed by the trial

Court in favour of accused No.1 in Spl.Case No.13/2013

is challenged before this Court in Crl.A.No.1092/2019

(2014)3 SCC 92

(2009)16 SCC 46 Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

and the said appeal is still pending. Therefore, the said

judgment does not enure to the benefit of the

petitioners to seek reversal of the impugned order;

iii) The trial Court was not bound by the decision

of the Investigating Officer to drop the petitioners from

the case while filing the charge sheet;

iv) The concession of the public prosecutor before

the trial Court does not bar this Court examining the

correctness of the impugned order; and

v) The impugned order is well reasoned and sound

one, therefore does not call for interference.

In support of their arguments, they relied upon

the following judgments:

i) Rajendra Singh vs. State of U.P.and another3

ii) Babubhai Bhimabhai Bokhiria and another vs. State of Gujarat and others4

iii) C.M.N.Shastry vs.State by Honnavara Police5

(2007)3 SCC (Cri) 375

(2013)9 SCC 500

Crl.P.No.100591/2018 and conn.

(D.D.01.02.2019) Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

12. Having regard to the rival contentions, the

question that arises for consideration of this Court is,

"whether the impugned order of the trial Court

under Section 319 Cr.P.C. summoning the

petitioners to take up trial in Spl.C.No.13/13 along

with accused No.1 is sustainable in law ?"

13. Since the order was purportedly passed under

Section 319 Cr.P.C. to summon the petitioners, it is

pertinent to extract Section 319 of Cr.P.C. to find out

what are the essential requirements to summon a

person as additional accused to take up the trial. For

the purpose of this case, Section 319(1) and (4) of

Cr.P.C. are relevant, the same read as follows:

"319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

14. The reading of Section 319(1) of Cr.P.C makes

it clear that the Court can summon a person to take up

trial as an additional accused only if it appears from the

evidence that he has committed any offence for which

he could be tried together with the accused who is

already a party.

15. What should be the nature and quality of such

evidence, was expounded on reference by the larger

Bench of the Hon'ble Supreme Court in Hardeep

Singh's case referred to supra. The Hon'ble Supreme

Court in para 57 of the judgment held that the power

under Section 319 of Cr.P.C. can be exercised only on

the basis of the evidence adduced before the Court

during trial. Regarding the quality of the evidence

required to summon the additional accused in Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

paragraphs 105 and 106 of the judgment it was held as

follows:

"105. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised 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 unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

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 Cr.P.C. to form any opinion as to the guilt of the accused."

(emphasis supplied)

16. The perusal of the above paragraphs shows

that the power to summon the additional accused is an

extraordinary power and shall be used on the basis of

overwhelming evidence. The Court cannot exercise such

power only on the opinion that some other person may

also be guilty of committing the offence or there is

probability of his complicity. The existence of mere

prima-facie case was not sufficient.

17. In para 21 of the judgment in Sarabjit

Singh's case referred to supra while considering what

precautions the Court has to take in summoning a

person as additional accused, the Hon'ble Supreme

Court held as follows:

Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

"21. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned."

(Emphasis supplied)

18. In the case on hand, PW.1 filed complaint as

per Ex.P1 alleging that he was the employee of

Nadakrishna (PW.6) who was sand transporter and

Excise Contractor. He alleged that on 23.03.2010 on

behalf of said Nadakrishna, application was filed seeking

permit to transport sand in 200 trucks from Akkur block

of T.Narasipura Taluk. It was alleged that accused-

Alphonsus, the Senior Geologist phoned PW.1 and

demanded illegal gratification of Rs.1,00,000/- per Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

month to issue such permit and money shall be

delivered to Sunil Bose.

19. That was all the reference made about the

petitioner-Sunil Bose in the complaint. There was no

direct allegation that Sunil Bose made any demand to

PW.1 for illegal gratification of Rs.1,00,000/-.

20. On the basis of such complaint on 25.03.2010

FIR was registered in Crime No.8/2010 only against

Alphonsus and petitioner-Sunil Bose was not arraigned

as the accused. Subsequently the FIR was transferred

to Mysore Lokayuktha Police Station and registered on

27.03.2010 and entrustment mahazar was conducted

and trap was allegedly laid.

21. During the trap Alphonsus in his explanation

allegedly said that the petitioners had forced him to

collect illegal gratification of Rs.1,00,000/- every month

from Nadakrishna, therefore he demanded and received

the bait money. On the basis of such statement of

accused No.1 the petitioners were arraigned as accused Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

Nos.2 and 3 in the case during investigation. However,

while filing the charge sheet they were dropped on the

ground that there was no material against them to file

the charge sheet.

22. In the evidence before the Court during trial

PW.1/respondent No.2 for the first time claimed that

after filing the complaint on 25.03.2010 when he

returned to Mysore on 26.03.2010 accused No.1

directed him to meet Sunil Bose, accordingly he

contacted Sunil Bose on phone and met him near JSS

School, Sidharthnagar Mysore. He further deposed that

Sunil Bose was accompanied by Raju and in the matter

of issuance of permit, he directed the complainant to act

in accordance with the instructions of Raju, Raju

demanded illegal gratification of Rs.1,00,000/- for

issuance of permits. He further states that accordingly

he met accused Alphonsus on the date of the trap and

he demanded and accepted Rs.1,00,000/-.

23. On the basis of such evidence PW.1 filed

application to arraign the petitioners as accused. In the Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

light of that, this Court has to examine whether the

evidence of PW.1 was sufficient in terms of section 319

Cr.P.C. to summon the petitioners in these two

petitions.

24. To bring the case under Section 319 Cr.P.C.

the prosecution was expected to satisfy the following

aspects:

i) Respondent No.2/PW.1 was employee under

Nadakrishna;

ii) On 26.03.2010 on the instruction of accused

No.1 he met the petitioner-Sunil Bose, who demanded

illegal gratification through Raju (petitioner in

Crl.R.P.No.976/2017).

iii) The illegal gratification allegedly received by

Alphonsus was for the benefit of the petitioners.

25. As already pointed out in the complaint, the

second respondent had not whispered anything about

petitioner-Raju. So far as Sunil Bose, it was only said

that accused No.1 when demanded illegal gratification

said that he has to pay the said amount to Sunil Bose.

Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

26. Though for the first time before the Court

PW.1 said that on 26.03.2010 he met the petitioners

and they demanded money, he had not given any

further statement to that effect before the Investigating

Officer. In the trap mahazar also, there is no reference

about his meeting with the petitioners on 26.03.2010.

There was no plausible explanation in the evidence of

PW.1 for not revealing that to the Investigating Officer

during the course of investigation.

27. The whole case of PW.1 was based on his

alleged employment with Nadakrishna. He claims to

have met the accused and filed the complaint in his

capacity as employee of Nadakrishna. The very said

fact was disputed by the petitioners during the course of

hearing of the application and by the first accused in the

cross-examination of PW.1.

28. The trial Court while summoning the

petitioners relied upon the evidence of PW.1. In the

cross-examination of PW.1 on 5.07.2017 he was not

able to tell the name of the office of the alleged Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

employer in T.Narasipura. He further stated that he

does not remember if his office was registered with

T.Narasipura Municipal Council under Shops and

Establishment Act. He further stated that the names of

his workers were not registered in Labour Department

and himself and his co employees did not avail ESI

benefit. He admitted that he has not submitted any

document either to Lokayuktha Police or to the Court to

show that he was working under Nadakrishna.

29. The copy of the judgment of the trial Court

dated 18.9.2018 in Spl. Case No.13/2013 whereunder

the trial Court acquitted the accused-Alphonsus is

produced. It is no doubt true that the said judgment is

the subject matter of appeal before this Court in

Crl.A.No.1092/2019. As submitted by both side, there

was delay in filing the said appeal. The said appeal is

not yet admitted.

30. The perusal of the judgment in Spl.Case

No.13/2013 indicates that the alleged employer was

examined as PW.6 and during the course of his evidence Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

he denied that PW.1 was his employee and he further

stated that he had employed Prabhakar for his sand

business in T.Narasipura.

31. In fact in the complaint filed by PW.1

himself a reference is found to the effect that 200

permits were issued and delivered to Prabhakar. Thus

even without reference to the ultimate judgment passed

against accused No.1, it becomes clear that permits

were issued on 23.03.2010 i.e., much before the alleged

demand of the petitioners on 26.03.2010. Therefore as

on the date of the alleged demand, no work of

Nadakrishna was pending with the petitioners or the

first accused or with the MLA.

32. It is also to be noted that during the trap

proceedings as admitted by PW.1 himself contrary to

the instructions of the Investigating Officer, he

prevented the shadow witness from accompanying him

to meet accused No.1. About that conduct also, PW.1

was sufficiently cross examined. PW.1 said that when

himself and shadow witness were about to enter the Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

house of accused No.1, a thought cropped up in his

mind that if he goes with the shadow witness, accused

No.1 may suspect them, therefore, he instructed the

shadow witness to stay back.

33. PW.1 could not explain if at all such thought

cropped up in his mind, why he immediately did not

clarify that with the Investigating Officer. Considering

such conduct, the trial Court in its judgment of acquittal

of the first accused several times observed that PW.1

was an unreliable person. The said observations are

considered here not to hold a trial or sit over the

judgment of acquittal passed by the trial Court in

respect of accused No.1, but to find out whether there

was material as contemplated under Section 319 of

Cr.P.C. to proceed against the petitioners.

34. The trial Court without considering the material

and fatal anomalies in the evidence of PW.1, his conduct

and holistically appreciating the entire material on

record proceeded to hold that there was material Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

against petitioners to arraign them as additional

accused.

35. As per the judgment in Hardeep Singh's

case the trial Court could have proceeded against the

petitioners only if the evidence was stronger and

cogent. Therefore the degree of the material against

the petitioners or the satisfaction of the trial Court in

arraigning them as co accused, was not in accordance

with the guidelines laid down by the Hon'ble Supreme

Court in Hardeep Singh's case.

36. Learned counsel for the respondent relied

upon the judgment in Babu Bhai's case to meet the

contention that the trial against Alphonsus was already

concluded under Section 319 Cr.P.C. However, learned

senior counsel appearing in both the cases fairly

submitted that they do not press that ground. Thus the

said judgment is of no avail to the respondents.

37. The judgment in Rajindra Singh's case was

relied upon by the learned counsel for the respondent to Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

contend that the power and discretion of the Court

under Section 319 Cr.P.C. cannot be fettered either by

calling it extraordinary or that it was to be exercised

only in exceptional case. Absolutely there is no dispute

with regard to the said proposition. However, the larger

bench of the Hon'ble Supreme Court in the subsequent

judgment in Hardeep Singh's case has answered what

should be the degree of material or evidence to invoke

the power under Section 319 of Cr.P.C. and held that

such power can be exercised only if there is stronger

and cogent material. Therefore subsequent larger

bench judgment has to be followed.

38. The judgment in C.M.N.Shastry's case relied

on by the learned counsel for the respondent is also not

applicable to the facts of the case.

39. For the aforesaid reasons this Court is

satisfied that in summoning the petitioners by the

impugned order, the trial Court acted contrary to

Section 319 of Cr.P.C. and the ratio in the judgment of

the Hon'ble Supreme Court in Hardeep Singh's case.

Crl.R.P.No.976/2017 c/w Crl.R.P.No.975/2017

Therefore the said order is unsustainable.

Consequently, the petitions are allowed.

The impugned order of the trial Court dated

13.09.2017 summoning the petitioners as accused

Nos.2 and 3 in Spl.Case No.13/2013 is hereby set aside.

The application of PW.1 under Section 319 of Cr.P.c. is

hereby dismissed.

Sd/-

JUDGE akc