Karnataka High Court

Dr Amar vs Sri Vijaya Kumar on 2 February, 2022

Bench: V Srishananda

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

        DATED THIS THE 2ND FEBRUARY, 2022

                     BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

       CRIMINAL PETITION NO.3537/2016
                    C/W.
      CRIMINAL PETITION NO.201382/2021

IN CRIMINAL PETITION NO.3537/2016
BETWEEN:

1 . DR AMAR
AGED ABOUT 48 YEARS
S/O AVINASH YEROLKAR
RESIDENT OF THE RPEMISES
BEARING LIG NO.54,KHB COLONY
BIDAR

2 . SRI.ASHOK THAKUR
AGED ABOUT 50 YEARS,
S/O SRI.RATAN SINGH THAKUR
RESIDENT OF HTE PREMISES
SITUATED IN KABAD GALLI
SHAH BAZAR
GULBARGA

3 . SRI.SANJU REDDY
AGED ABOUT 45 YEARS,
S/O SRI.BASAVARAJ REDDY,
RESIDENT OF PLOY NO.276/277
MAHAVEER NAGAR
GULBARGA
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4 . SRI DEEPAK
AGED ABOUT 53 YEARS,
S/O SRI.ANNARAO PANDIT
RESIDENT OF PLOT NO.18,
KHUBA PLOTS, GULBARGA

5 . SRI.JAYADEV
AGED ABOUT 42 YEARS
S/O SRI.RAVINDRA PRABHA
RESIDENT OF THE PREMISES WHICH IS
OPP: TO FOREST OFFICE,
KEB COLONY BIDAR

6 . SRI.NAGESH
AGED ABOUT 50 YEARS,
S/O SRI.NARAYANDAS CHABERIA
RESIDENT OF THE RPEMISES
BEARING NO.4842, "VAIKUNTHA",
2ND MAIN, 6TH CROSS,
OPP:TO MOTIMAHAL
SADASHIVANAGAR, BELGAUM

7 . BABU WALI
AGED ABOUT 50 YEARS,
S/O KASHAPPA WALI
RESIDENT OF THE PREMISES
WHICH IS OPP TO NANDI PETROL BUNK
KHAZI COLONY, BIDAR

8 . RAJA RAM
AGED ABOUT 39 YEARS,
S/O PRAHLAD RAO
RESIDENT OF THE PREMISES
BEARING NO.17-4-238/1,
MAHESHNAGAR,GUMPA
BIDAR

9 . SRI ANIL
AGED ABOUT 33 YEARS,
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S/O MADAPPA
RESIDENT OF THE PREMISES
BEARING NO.17-225,
GANDHINAGAR COLONY,
MAILUR ROAD, BIDAR.                 ...PETITIONERS

(BY SRI R.B. NAIK SENIOR COUNSEL & SRI
RAGHAVENDRA K ADVOCATES)

AND:

1 . SRI VIJAYA KUMAR
AGED ABOUT 52 YEARS,
S/O SANGRAMAPPA GUMME
RESIDENT OF PRATHAP NAGAR
BIDAR, AND ALSO SAID TO BE
AVAILABLE AT DURGA COMPLEX,
GANDHI GUNJ, BIDAR

2 . STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER
GANDHI GUNJ POLICE STATION,
BIDAR.                      ...     RESPONDENTS

(BY SRI SANGANABSAVA B. PATIL, ADVOCATE FOR R1;
SRI SHARANABASAPPA M. PATIL HCGP FOR R2;)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
TO U/S.482 CR.P.C PRAYING TO CALL FOR THE RECORDS
IN S.C.NO.157/2013 PENDING BEFORE THE PRL. DIST.
AND S.J., BIDAR ON THE APPLICATION FILED BY THE
PROSECUTION U/S 319 OF CR.P.C. ORDERING PROCESS
AGAINST THE PETITIONER FOR THEIR APPEARANCE IN
THE CASE BEFORE THE COURT AS ACCUSED IN THE CASE
AND FURTHER BE PLEASED TO DISMISS THE APPLICATION
WITH COSTS THROUGHOUT.

                         ******
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IN CRL.P NO 201382 OF 2021
BETWEEN

1 . BHARATH
S/O SANGRAMAPPA GUMME
AGE 47 YEARS,
OCC.AGRICULTURE,
R/O H.NO.12-3-129,
DURGA NIVAS,
GUMME COLONY,
BVB ROAD, BIDAR-585401.

2 . RAMESH S/O SANGRAMAPPA GUMME
AGE 49 YEARS, OCC.AGRICULTURE,
R/O H.NO.12-3-129, DURGA
NIVAS, GUMME COLONY,
BVB ROAD, BIDAR-585401.        ...PETITIONERS

(BY SRI. ASHOK MULAGE, ADV.)

AND:

THE STATE OF KARNATAKA
THROUGH POLICE,
GANDHI GUNJ P.S. BIDAR,
DIST.BIDAR, REP/ BY ADDL.SPP,
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585107....          RESPONDENT

(BY SRI. SHARANABASAPPA M. PATIL, HCGP. )

     THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING
TO ALLOW THE PETITION AND SET ASIDE THE ORDER
PASSED BY THE PRL. DIST.AND SESSIONS JUDGE, BIDAR
IN SESSIONS CASE NO.157/2013 DATED 21.04.2016.

     THESE CRIMINAL PETITIONS COMING ON FOR
HEARING AND ADMISSION THIS DAY, THE COURT MADE
THE FOLLOWING :
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                          ORDER

1. These two petitions are filed under Section 482

of Cr.PC. praying to allow the petitions and set aside the

order passed by the Principal District and Sessions Judge,

Bidar in Sessions Case No.157/2013 dated 21.4.2016

allowing the application filed by the petitioners under

Section 319 of Cr.PC. for summoning the petitioners.

2. Brief facts of the case are as under:

The petitioners in both the petitions are proposed

accused Nos.1 to 10 in SC No.157/2013, which is pending

on the file of the Prl. District and Sessions Judge, Bidar for

the offence punishable under Section 302, 324, 504 and

506 of IPC.

3. The original accused stood for trial and during

the pendency of the trial, the prosecution examined

PWs.45 and 49. In their evidence, the prosecution is able

to elicit that the petitioners herein are also involved in the

incident. As such, when the evidence was there on record,

prosecution taking advantage of the statement made by

PWs.45 and 49, filed an application under Section 319

Cr.PC. to arraign the present petitioners as an additional

accused in the case.

4. The said application was considered by the

learned trial judge after following the dictum of the Hon'ble

Apex Court in the case of Rakesh Vs. State of Haryana

reported in (2001) 6 SCC 248, allowed the application

and passed an order which reads as under:

"ORDER

The application filed U/Sec. 319 of Cr.P.C by the prosecution is hereby allowed.

Issue summons to 12 accused who are stated below:

1) Dr. Amar S/o Avinash Yerolkar, age: 48 years, Occupation: prop. Surbhi Cable net work R/o Housing ng in Board colony, Bidar, 2) Ashok Thakur S/o Ratan Singh Thakur, age: major, Occupation: running in cable operator Gulbarga and Bidar, R/o Kabadi Shah Bazaar, Gulbarga, 3) Sanju Reddy S/o Baswaraj Reddy, age: major, Occupation: as above, 4) Deepak S/o Annarao Pandit, age: major, R/o plot No. 18 Khoba plots, Gulbarga, 5) Jayadev S/o Ravindra, age: 42 years, R/o Opp. Forest Office, Bidar, 6) Nagesh S/o Narayandas

Chaberia, age:major, R/o Reddy Vision Sansung complex 2nd floor Khade Bazaar Belgaum (phone No. 0831- 4621101), 7) Bharath S/o Sangramappa Gumme, Occupation: agriculture, R/o H. No. 12-3-129, Durga Nivas Gumme colony BVB road, Bidar, 8) Ramesh S/o Sangramappa Gumme, age: 38 years, occ: Agriculture, R/o. as above. 9) Babu S/o. Kashappa Wali, age: 50years, R/o. Opp.Nandi petrol pump, Bidar. 10) Raja Ram S/o Prahlad Rao, R/o Mahesh Nagar Ring road, Bidar, 11) Ail S/o Mahadappa, age: major, R/o Gandhi Nagar Mailoor, Bidar and 12) Dattu S/o Narsing Rao Dange, age: major, R/o Opp. 1.B. Basavakalyan."

5. Being aggrieved by the same, the petitioners

are before this court.

6. Learned Senior counsel Sri R.B. Naik,

vehemently contended that the learned trial judge has

failed to consider the application filed under Section 319 of

Cr.PC. in its proper perspective and wrongly applied the

dictum of law enunciated by the Hon'ble Apex Court in the

case referred to supra.

7. He further argued that an application filed

under Section 319 of Cr.PC. should not be allowed

mechanically and an opportunity is to be provided for the

proposed accused persons to have their say in the matter

before the application could be disposed of on merits and

such a procedure has not been followed by the learned

trial judge in the instant case and therefore, sought for

quashing of the order dated 21.4.2016 passed by the

Principal District and Sessions Judge, Bidar, whereby the

present petitioners are summoned before the learned trial

judge by allowing the application under Section 319 Cr.PC.

8. He also contended that the basis for filing of

the application under Section 319 Cr.PC. is unanimous and

the original complainant is now dead and therefore, it is a

futile exercise to face the trial by the present petitioners in

pending SC No.157/2013 and sought for allowing the

petition.

9. The above arguments are also said to be

adopted by the learned counsel for the petitioner Sri Ashok

B. Mulage, in Criminal Petition No.201382/2021 who

represents the petitioners.

10. Per contra, learned High Court Government

Pleader supports the impugned order stating that when

there is a statement made by PW-45 on oath, the said

statement has been taken note of by the learned trial

judge for the purpose of summoning the present

petitioners as additional accused in the case and therefore

sought for dismissal of the petitions.

11. Now the question is as to, how the application

filed under Section 319 Cr.PC. is to be dealt with, is no

longer resintegra. The Hon'ble Apex Court in the case of

Hardeep Singh vs. State of Punjab and others

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

and in the case of Jogendra Yadav and Others vs.

State of Bihar reported in AIR 2015 Supreme Court

2951 have laid down principles of law to be applied while

dealing with an application filed under Section 319 of

Cr.PC.

12. 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 has held as

under:

"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."

13. While so holding, the Hon'ble Apex Court has

taken note of the judgments of the Hon'ble Apex Court in

the case of JOGENDRA YADAV as well as HARDEEP

SINGH supra. Suffice to say that in the order passed on

21.4.2016, the learned Judge has not even referred to

these two judgments and therefore, the present petitions

needs to be allowed by setting aside the order passed by

the learned trial judge dated 21.4.2016 in SC

No.157/2013 and direct the learned trial judge to consider

the application filed by the petitioners Section 319 of

Cr.PC. strictly in accordance with the guidelines issued by

the co-ordinate bench of this court in Asha's case.