Dadu And Ors vs The State Of Karnataka
2022 Latest Caselaw 1419 Kant

          IN THE HIGH COURT OF KARNATAKA
                   AT KALABURAGI

    DATED THIS THE 1ST DAY OF FEBRUARY, 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO.200097/2017

BETWEEN

1 . DADU S/O KONDIBA PANDARE,
AGE: 40 YEARS, OCC: AGRICULTURE

2 . DOOLAPPA S/O TUKARAM SHINDE
AGE: 29 YEARS, OCC: AGRICULTURE

3 .MARUTI S/O BHIVA PANDRE
AGE: 55 YEARS, OCC: AGRICULTURE

4 . DURPABAI MARUTI PANDARE
AGE: 50 YEARS, OCC: HOUSEHOLD

5 . SHILABAI LAXMAN PANDARE
AGE: 27 YEARS, OCC: HOUSEHOLD

6 . KRISHNA S/O SADASHIV PANDARE
AGE: 29 YEARS, OCC: AGRICULTURE

7 . NEELABAI SADASHIVA PANDARE
AGE: 45 YEARS, OCC: HOUSEHOLD

8 . BHIMARAVO S/O PANDU DHARGOODE
AGE: 40 YEARS, OCC: AGRICULTURE
                          2




9 . MANJULABAI BHIMARAV DHARGOODE
AGE: 27 YEARS, OCC: HOUSEHOLD

10 . MALAPPA S/O BHIMARAV DHARGOODE
AGE: 26 YEARS, OCC: AGRICULTURE

11 . MANAGU S/O BHIRAPPA DHARGOODE
AGE: 27 YEARS, OCC: AGRICULTURE

12 . TUKARAM S/O SIDRAM SHINDE
AGE: 51 YEARS, OCC: AGRICULTURE

13 . TULAJABAI TUKARAM SHINDE
AGE: 50 YEARS, OCC: HOUSEHOLD

14 . RAJU S/O TUKARAM SHINDE
AGE: 26 YEARS, OCC: AGRICULTURE

15 . PADMA DHULAPPA SHINDE
AGE: 29 YEARS, OCC: HOUSEHOLD

16 . LALEETA RAJU SHINDE
AGE: 24 YEARS, OCC: HOUSEHOLD

17 . RAMU S/O DADU PANDARE
AGE: 31 YEARS, OCC: AGRICULTURE

18 . PINTU S/O KONDIBA PANDARE
AGE: 33 YEARS, OCC: AGRICULTURE

19 . KRISHNA PANDU MANAVAR
AGE: 27 YEARS, OCC: AGRICULTURE

20 . BABU S/O GUNDU TAMBE
AGE: 60 YEARS, OCC: AGRICULTURE

21 . INDUBAI BABU TAMBE
AGE: 50 YEARS, OCC: HOUSEHOLD
                             3




22 . GUNDU S/O BABU TAMBE
AGE: 29 YEARS, OCC: AGRICULTURE

23 . BAYAKKA RAMU PANDARE
AGE: 26 YEARS, OCC: HOUSEHOLD

24 . SHARDABAI KRISHNA PANDARE
AGE: 24 YEARS, OCC: HOUSEHOLD,

ALL ARE R/O ALAGINAL VILLAGE
TQ AND DIST: VIJAYAPURA-585101
                                          ...PETITIONERS

(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)

AND

THE STATE OF KARNATAKA
R/BY ADDL. SPP, HIGH COURT OF
KARNATAKA, KALABURAGI BENCH-585107,
(THROUGH TIKOTA P.S.
DIST: VIJAYAPUR-585101)
                                          ...RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

      THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
29.08.2017 PASSED IN SPL.CASE NO.12/2014 BY THE II
ADDL.SESSIONS JUDGE AND SPECIAL JUDGE, VIJAYAPUR,
AND CONSEQUENTLY DISCHARGE THE PETITIONERS, FOR
THE OFFENCES PUNISHABLE U/SEC.323, 354, 448, 504,
506, 451 R/W 34 OF IPC AND 3(1)(X), 3(XI) OF S.C/S.T ACT.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
                                           4




                                    ORDER

The present revision petition is filed challenging the

order dated 29.08.2017 passed by the II Additional Sessions

Judge and Special Judge, Vijayapur in Special Case

No.12/2014.

2. Brief facts of the case are as under:

A private complaint came to be filed under Section 200

of Cr.P.C. against 29 persons. The learned Magistrate

directed the said complaint to the jurisdictional police under

Section 156(3) of Cr.P.C. The Investigation Agency after

thorough investigation laid charge sheet against few of the

accused persons for the offences punishable under Sections

323, 354, 356, 380, 448, 504, 506 read with Section 149 of

IPC and Sections 3(1)(x) and 3(xi) of the Scheduled Caste

and Scheduled Tribes (Prevention of Atrocities) Act.

3. Thereafter, the learned Special Judge took

cognizance of the aforesaid offences against four accused

persons namely, Putalappa, Laxman, Ramu and Anand and

the matter was listed for trial. The case is now pending

against the said accused persons. The prosecution has

examined few witnesses, who turned hostile to the case of

the prosecution.

4. When the matter stood thus, those accused on

29.08.2017, filed an application under Section 319 of Cr.P.C.

The learned Special Judge has passed an order issuing

summons against the persons, who have left out in the case.

Being aggrieved by the same, the petitioners have preferred

this revision petition.

5. The learned counsel for the petitioners

Sri Shivanand Pattanashetti contended that the learned

Special Judge was required to apply his mind before issuing

summons to the present petitioners on the basis of the

application filed under Section 319 of Cr.P.C. and without

application of the mind, straightaway summons were issued

without following the dictum of the Hon'ble Apex Court in the

cases of Hardeep Sing vs. State of Punjab and others

reported in (2014) 2 Supreme Court Cases (Cri) 86, in

the case of Jogendra Yadav and Others vs. State of

Bihar reported in AIR 2015 Supreme Court 2951 which

was considered by the Coordinate Bench of this court in the

case of Smt.Asha Somashekar and others vs. State of

Karnataka reported in 2016 (4) AKR 392 and therefore,

prayed for allowing the petition.

6. Per contra, the learned High Court Government

Pleader contended that only summons have been ordered,

and therefore, revision petitioners can very well approach the

very Special Judge and make submission in terms of the

above referred cases and therefore, sought for dismissal of

the petition.

7. This Court perused the records.

8. The order dated 29.08.2017 referred to supra is

a very cryptic order. From the said order, no one can

comprehend that the learned Special Judge has applied his

mind before issuing summons to the revision petitioners.

The prayer of Public prosecutor does not comply with the

requirements of the procedure to be followed before issuing

the summons on an application under Section 319 of Cr.P.C.

The learned Special Judge has failed to consider the dictum

of the Hon'ble Apex Court as referred to supra.

9. In Smt.Asha's case supra, the coordinate Bench

of this court has laid down the guidelines for considering the

application under Section 319 of Cr.P.C. For ready reference,

the relevant portion of the said order is culled out hereunder:

"11. The facts mentioned in the case of JOGENDRA YADAV (supra) disclose that prior notice had been issued to the four persons sought to be added as additional accused, before including them in the array of parties. By virtue of the notice, they had been asked to show cause as to why they should not be added as additional accused. They were ultimately summoned only after hearing them, that too, by passing a detailed order. In the present case, no such prior notice is issued to the petitioners before being added as accused under Section 319, Cr.P.C.

12. What is ultimately held in the case of JOGENDRA YADAV (supra) is found in paragraph 9 of the judgment and it is reproduced below:

9. It was, however, urged by learned counsel for the appellants that in order to avail of the remedies of discharge under Section 227 of the Cr.P.C, the only qualification necessary is that the person should be accused. Learned counsel submitted that there is no difference between an accused since inception and accused who has been added as such under Section 319 of the Cr.P.C. It is, however, not possible to accept this submission since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused.

However, a person who is added as an accused under Section 319 of the Cr.P.C., is necessarily heard before being so added. Often he gets a further hearing if he challenges the sum-morning order before the High Court and further. It seems incongruous and indeed anomalous if the two sections are construed to mean that a person who is added as an accused by the court after considering the evidence against him can avail remedy of discharge on the

ground that there is no sufficient material against him. Moreover, it is settled that the extraordinary power under Section 319 of the Cr.P.C., can be exercised only if very strong and cogent evidence occurs against a person from the evidence led before the Court. It is now settled vide the Constitution Bench decision in Hardeep Singh v. State of Punjab and others {(2014) 3 SCC 92: (AIR 2014 SC 1400)} that the standard of proof employed for summoning a person as an accused under Section 319 of Cr.P.C., is higher than the standard of proof employed for framing a charge against an accused. The Court observed for the purpose of Section 319 of the Cr.P.C., that "what is, therefore, necessary for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to the conviction of a person sought to be added as the accused in the case." As regards the degree of satisfaction necessary for framing a charge this Court observed in para 100:-

What is observed in the said case is that the scope of invoking Section 227, Cr.P.C. by

an accused who is summoned under Section 319, Cr.P.C. does not arise since the degree of material relied upon by the court summoning him is higher than the materials placed on record in the form of charge sheet."

10. Since the trial Court has not followed the

above procedure, the order dated 29.08.2017 needs to

be set aside. However, mere setting aside the order

dated 29.08.2017, the application filed under Section

319 of Cr.P.C. is not dismissed and same is ordered to

be reconsidered by the learned Special Judge in terms of

the principles enunciated by the coordinate Bench of this

Court in the case of Smt.Asha's (Supra).

Accordingly, the revision petition stands disposed

off.

Sd/-

JUDGE

Srt