Karnataka High Court
Kallappa And Anr vs The State Of Karnataka on 25 January, 2022
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.200099/2017
BETWEEN:
1. Kallappa S/o Vittal Talawar,
Age : 24 years, Occ: Agriculture,
2. Ubaroo S/o Modin Mulla,
Age : 26 years, Occ : Agriculture,
Both are R/o Hattalli Village,
Tq : Indi, Dist : Vijayapura.
... Petitioners
(By Sri R.S.Lagali, Advocate)
AND:
The State of Karnataka,
Through the PSI,
Chadchan P.S - 586 205
Represented by
Addl. State Public Prosecutor,
High Court of Karnataka,
Kalaburagi Bench.
... Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
2
This Criminal Revision Petition is filed under
Section 397 R/w Section 401 of Cr.P.C praying to allow the
revision petition and thereby setting aside the order dated
26.08.2017 passed by the Special Judge and II Addl.
Sessions Judge, Vijayapura in Special Case (POCSO)
No.5/2016 (arising out of Chadchan P.S Crime
No.148/2015) on the application filed by the prosecution
under Section 319 of Cr.P.C seeking the summoning of the
petitioner to face trial for the offences punishable under
Sections 363A, 376, 344 of IPC along with Sec.3(A), 6, 11,
12(I) of POCSO Act.
This revision petition coming on for Final Hearing this
day, the Court made the following:
ORDER
Heard Sri R.S.Lagali learned counsel for the
petitioners and learned High Court Government Pleader for
respondent/State.
2. The revision petition is filed against the order
dated 26.08.2017 passed by the learned trial Judge in
Special (POCSO) Case No.5/2016 which reads as under:
"Accused absent. E.P. filed.
Application U/s 319 of Cr.P.C filed.
Heard. The prayer of the PP is genuine.
Hence, issue notice to the proposed Accused
by 12/09."
3. As could be seen from the order, the learned
trial Judge has issued only notice to the proposed accused.
4. The brief facts of the case are as under :-
A complaint came to be filed on 05.11.2015 by one
Halimbu before Chadachan Police and based on that, case
was registered by the Chadachan Police Station in Crime
No.148/2015 and after thorough investigation, a charge-
sheet came to be filed against Shreeshail S/o Arjun Biradar
for the offences punishable under Sections 363A, 376 and
344 read with Section 34 of IPC read with Sections 3(a), 6,
11 and 12 of the Protection of Children from Sexual
Offences Act, 2012.
5. The present petitioners were shown as
witnesses in the said charge-sheet. However, when the
trial was under progress, an application came to be filed
under Section 319 of Cr.P.C and the learned trial Judge
without application of mind, passed the order on
26.08.2017 as referred to supra.
6. No doubt there is some force in the contention
urged on behalf of the petitioner that there is no
application of mind before passing the impugned order.
However, by passing the impugned order, the application
is not yet allowed. In a matter of this nature, the trial
court is required to follow the guidelines issued by 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, 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.
7. 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 said portion in the 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 underSection 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."
8. Taking note of the above principles, the trial
judge is required to consider the application on merits and
pass appropriate order.
9. With the above observation, pass the following
ORDER
Criminal revision petition stands disposed of.
Sd/-
JUDGE
sn
