Karnataka High Court

Vijayakumar S/O Shivappa Kakera ... vs The State And Anr on 5 January, 2022

Bench: V Srishananda

                        1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 5TH DAY OF JANUARY, 2022

                     BEFORE

      THE HON'BLE MR. JUSTICE V.SRISHANANDA

      CRIMINAL PETITION No.201682/2021


BETWEEN

1.   VIJAYAKUMAR S/O SHIVAPPA KAKERA
     AGE. 51 YEARS, OCC. AGRICULTURE,
     R/O. SOMLINGADHALLI,
     TQ. CHINCHOLI, DIST. KALABURAGI-585305.

2.   JANARDHAN S/O SHIVAPPA KAKERA
     AGE. 40 YEARS, OCC. AGRICULTURE,
     R/O. SOMLINGADHALLI, TQ. CHINCHOLLI,
     DIST. KALABURAGI-585305.

3.   SAHADEV S/O SHIVAPPA KAKERA
     AGE. 32 YEARS, OCC. AGRICULTURE,
     R/O. SOMLINGADHALLI, TQ. CHINCHOLLI,
     DIST. KALABURAGI-585305.

4.   LAXMIBAI W/O CHANDRAKANTH RAMTHIRTHA
     AGE. 39 YEARS, OCC. HOUSEWIFE,
     R/O. HALCHERA, TQ. CHINCHOLLI,
     DIST. KALABURAGI-585324.

5.   LAXMI W/O SHANTAPPA RAMTHIRTHA
     AGE. 49 YEARS, OCC. HOUSEWIFE,
     R/O. H.NO. 1/44, RAMTHIRTHA,
     SULEPETH, TQ. CHINCHOLLI,
     DIST. KALABURAGI-585324.
                          2




6.    SHIVANAND S/O SHANTAPPA RAMTHIRTHA
      AGE. 26 YEARS, OCC. STUDENT,
      R/O. H.NO. 13, RAMTHIRTHA,
      SULEPETH, TQ. CHINCHOLLI,
      DIST. KALABURAGI-585324.

7.    SUDHA D/O SHANTAPPA RAMTHIRTHA
      AGE. 24 YEARS, OCC. STUDENT,
      R/O. H.NO. 13, RAMTHIRTHA,
      SULEPETH, TQ. CHINCHOLLI,
      DIST. KALABURAGI-585324.

8.    SUMANGALA D/O SHANTAPPA RAMTHIRTHA
      AGE. 22 YEARS, OCC. STUDENT,
      R/O. H.NO. 13, RAMTHIRTHA,
      SULEPETH, TQ. CHINCHOLLI,
      DIST. KALABURAGI-585324.
                                   ...PETITIONERS

(BY SRI AVINASH A. UPLOANKAR, ADVOCATE)

AND

1.    THE STATE
      THROUGH SULEPETH POLICE STATION,
      DIST. KALABURAGI, NOW REPRESENTED BY
      ADLD. SPP, HIGH COURT OF KARNATAKA,
      AT KALABURAGI BENCH-585107.

2.    MALLIKARJUN RAMATIRTH
      S/O SUBHASHCHANDRA RAMATIRTH
      AGE. 42 YEARS, OCC. ADVOCATE,
      R/O. HALACHERA VILLAGE,
      TQ. CHINCHOLLI, DIST. KALABURAGI-585324.
                                     ...RESPONDENTS

(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1;
SRI SANJAY KULKARNI, ADVOCATE FOR R2)
                                3




   THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING
THAT    THIS    HONOURABLE         COURT    MAY   BE   PLEASED
TO,CALL     FOR    AND   EXAMINE           THE    RECORDS    IN
C.C.N.543/2016 AND SET ASIDE THE ORDER DATED
12.10.2021 PASSED BY THE PRINCIPAL CIVIL JUDGE AND
JMFC    COURT     CHINCHOLLI       IN   C.C.NO.543/2016     FOR
ISSUANCE OF SUMMONS TO PETITIONERS IN CRIME
NO.51/2016 OF SULEPETH POLICE STATION FOR OFFENCE
PUNISHABLE UNDER SECTIONS 147, 148, 324, 323, 354,
504, 506, 114 READ WITH SECTION 149 OF IPC, IN THE
INTEREST OF JUSTICE AND EQUITY.


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

                         ORDER

Heard the learned counsel for the petitioner, the

learned High Court Government Pleader for respondent

No.1 and learned counsel for respondent No.2.

2. The present petition is filed under Section 482

of Cr.P.C. seeking setting aside of the order dated

12.10.2021 passed by the Principal Civil Judge and JMFC,

Chincholli in C.C.No.543/2016 issuing summons to the

petitioner, who is arraigned as additional accused by filing

an application under Section 319 of Cr.P.C. by the

prosecution.

3. Brief facts of the case are as under:

Upon the complaint lodged by one Mallikarjun S/o

Subhashchandra Ramatirth, Sulepet police have registered

a case in Crime No.51/2016 for the offences punishable

under Sections 147, 148, 323, 324, 354, 504, 506, 114

read with Section 149 of IPC. Investigation officer after

thorough investigation filed a charge sheet against the

persons, who have been named in the FIR except the

present petitioner.

4. The learned Magistrate took cognizance of the

offences alleged against the accused persons and

proceeded with the trial. During the course of the trial, an

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

arraign the present petitioner also as an accused. Said

application was considered and summons came to be

issued by the learned Magistrate against the petitioner and

when there was no proper response to the summons, the

learned Magistrate issued non bailable warrant and

secured the presence of the petitioner before the Trial

Court. The petitioner appeared before the Court and now

obtained bail.

5. The main ground on which the present petition

is filed is that there was no opportunity for the petitioner

to have his say in the matter before he could be impleaded

as an additional accused.

6. In this regard, the learned counsel for the

petitioner has relied on the judgment of the Hon'ble Apex

Court in the case of Hardeep Singh vs. State of Panjab

reported in 2014 (3) SCC 92.

7. Per contra, the learned High Court Government

Pleader submits that the present petitioner is the FIR

named accused and the police have not filed the charge

sheet against the petitioner and when the evidence is

available on record about the overt acts attributable to the

present petitioner, the learned Magistrate was right in

issuing summons to the accused/petitioner for arraigning

him as an additional accused before the Court and

therefore, sought for dismissal of the petition.

8. In order to appreciate the case of the parties,

it is just and necessary to cull out the provisions Section

319 of Cr.P.C., which reads as under:

"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.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the

inquiry into, or trial of, the offence which he appears to have committed.

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

(a) the proceedings in respect of such person shall be commenced a fresh, 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."

9. A coordinate Bench of this Court in the case of

Smt.Asha Somashekar vs. State of Karnataka

reported in 2016(4) AKR 392 has enumerated the legal

principles to deal with an application by a Trial Court under

Section 319 of Cr.P.C. The relevant portion of the said

judgment is culled out hereunder for ready reference.

"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. In the Constitutional Bench decision cited supra in the case of HARDEEP SINGH ([2014] 3 SCC 92), the Hon'ble apex court has held that Section 319,Cr.P.C. is a discretionary and extraordinary power vested in the court and should be exercised sparingly and only if the circumstances so warrant. The relevant law explained by the Hon'ble Supreme Court is found in paragraphs 105 and 106 of the judgment and are reproduced below:

'105. Power under Section 319 CrPC is discretionary and an extraordinary 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 CrPC. In Section 319 CrPC the purpose of providing it "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 CrPC to form any opinion as to the guilt of the accused.

Question (v)- In what situations can the power under this section be exercised: not named in FIR; named in the FIR but not charge-sheeted or has been discharged?'

13A. What is argued by Mr.Rachaiah, learned HCGP is that the decision in the case of HARDEEP SINGH (supra) rendered by a two-Judge Bench also

holds the field and therefore, summoning the petitioners under Section 319, Cr.P.C. cannot be called in question. But in the said case, the main focus was in regard to the taking of cognizance and issuing process in terms of Section 204, Cr.P.C.

14. What is held in the case of NAGAWWA (supra) is that is that a person can be summoned under Section 319, Cr.P.C. on the basis of the examination-in-chief and that is also the law explained in the Constitutional Bench decision rendered by the Hon'ble Supreme Court in the case of HARDEEP SINGH, but with a rider that there must be a higher degree of proof to summon a person under Section 319, Cr.P.C.

15. Suffice to state that it is always incumbent upon criminal courts to issue prior notice to a person calling upon him or her to show cause as to why he/she should not be made an additional accused. Only on giving an opportunity of being heard, a suitable order should be passed. If the order is passed summoning a particular person in terms of Section 319, Cr.P.C. without giving prior notice, such an order would not withstand the legal scrutiny. Hence all criminal courts are expected to keep in mind this aspect of the matter as explained by the Hon'ble apex court in the case of JOGENDRA YADAV (supra).

16. It need not be reiterated that whenever a person is sought to be summoned as an additional accused in terms 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."

10. Applying the legal principles annunciated in the

above decision, the learned Magistrate before passing an

order of impleading the present petitioner as an additional

accused, was required to follow the procedure as is laid

down supra. But the aid procedure has not been followed

before passing the impugned order.

11. Keeping this liberty for the petitioner to have

his say before he could be impleaded as an additional

accused, the order passed by the learned Magistrate to

that extent needs to be modified. Accordingly, the

following: