Karnataka High Court

Smt Jayalakshmamma vs State Of Karnataka on 3 January, 2022

Bench: K.Natarajan

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 3RD DAY OF JANUARY, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION NO.9996/2021
BETWEEN

1.   SMT JAYALAKSHMAMMA
     W/O MUNISHAMAPPA
     AGED ABOUT 68 YEARS
     OCC: HOUSEHOLD

2.   SMT. RATHNAMMA
     W/O APPAJAPPA
     AGED ABOUT 47 YEARS
     OCC: AGRICULTURE
     PETITIONERS NO.1 AND 2 ARE
     R/AT GANGAWARA CHOWDAPPAHALLI
     CHANNARAYAPATNA HOBLI,
     DEVANAHALLI TALUK - 562 110
     BENGALURU RURAL DISTRICT

3.   KIRAN
     S/O BYRAPPA
     AGED ABOUT 39 YEARS
     OCC: AGRICULTURE

4.   AMAR
     S/O APPAJIGOWDA
     AGED MAJOR
     OCC AGRICULTURE
     PETITIONERS NO.3 AND 4 ARE
     R/AT HADYALU VILLAGE
     CHANNARAYAPATNA HOBLI
     DEVANAHALLI TALUK - 562 110
     BENGALURU RURAL DISTRICT            ... PETITIONERS
(BY SRI M RAJASHEKAR, ADVOCATE)
                              2


AND

STATE OF KARNATAKA
BY CHANNARAYAPATNA POLICE
CHANNARAYAPATNA
BENGALURU RURAL DISTRICT
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGHCOURT OF KARNATAKA BUILDINGS
BENGALURU - 560 001                        ... RESPONDENT
(BY SMT RASHMI JADHAV, HCGP)

(BY SRI MAHESH SHETTY, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SETASIDE THE IMPUGNED ORDER DATED 26.08.2021 PASSED
IN C.C.NO.8/2010 AT ANNEXURE-N AND CONSEQUENTLY
QUASH THE ENTIRE PROCEEDINGS IN FURTHERANCE OF THE
IMPUGNED ORDER DATED 26.08.2021 VIDE ANNEXURE-N

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

                          ORDER

This petition is filed by petitioners who is stated to

be arraigned as additional accused Nos.6, 7, 8 and 9 under

Section 482 of the Code of Criminal Procedure, 1973, for

quashing impugned order passed by the Trial Court in

C.C.No.8/2010 for having impleaded the petitioners as

accused Nos.6 to 9 on the application filed by the

prosecution under Section 319 of Cr.P.C.

2. Heard the arguments of learned counsel for the

petitioners and learned High Court Government Pleader for

the respondent-State.

3. The case of the prosecution is that on the

complaint the respondent-police had registered FIR against

these petitioners and others totally 9 persons in Crime

No.96/2009 registered by Channarayapatna Police,

Bengaluru Rural District for the offence punishable under

section 143, 147, 148, 341, 324, 114, 307 read with 149

of IPC and under Section 3(1) (10) of Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989.

4. After the investigation of the case the police had

dropped the names of these petitioners from the charge

sheet and filed charge sheet only against 5 persons.

Subsequent to the investigation the police also dropped

the charges under provision of Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989,

therefore the case was taken up by the Magistrate for trial.

After framing of charges against accused Nos.1 to 5 the

witnesses were summoned by the Trial Court. Accordingly,

the complainant who was examined as PW1 and the other

two injured eye witnesses PW2 and PW3 were said to have

named the accused persons. The present petitioners had

also assaulted and abated the other accused for assaulting

the complainant and others. Subsequent to the

examination of the prosecution witnesses the prosecutor

moved an application before the Trial Court in Section 319

of Cr.P.C for impleading these petitioners as additional

accused as per Section 319 of Cr.P.C. Considering the

application filed by the prosecution, notice has been issued

by the Trial Court and after calling the objections of

concerned persons the Trial Court passed the impugned

order by allowing the application of the prosecution by

adding these petitioners as accused Nos.6 to 9 which is

under challenged.

5. The learned counsel for petitioners submits

though the names of the petitioners mentioned in FIR but

after due investigation the Investigation Officer dropped

the names of the petitioners from the charge sheet and

filed charge sheet only against accused Nos.1 to 5 and

after the evidence was done the matter is in fag end of the

trial. The prosecution filed this application only to harass

the petitioners. The Trial Court also passed the order by

adding these accused which is not correct and absolutely

there is no proper evidence against these petitioners who

are impleaded as accused. The petitioners are innocent of

the arraigned offence and they have been falsely

implicated by the witnesses, therefore prayed for

quashing.

6. Per contra learned HCGP justified the order of the

Trial Court and contended that merely the names of

accused were dropped by Investigation Officer in the

charge sheet that cannot be considered and the witnesses

had categorically stated in the evidence about names of

the overt acts, such being the case, the petitioners are

required to face trial, hence prayed for dismissal.

7. Having heard the learned counsel for petitioners

and learned HCGP and on perusal of records, especially FIR

and complaint, the complainant has categorically stated

that the accused Nos.1 to 9 including the name of this

petitioners previously known as accused Nos.4, 5 and 7, 8

also came along with other accused they were abused by

him in filthy language, picked up quarrel and assaulted by

the accused persons. The Investigation Officer dropped

these petitioners name from the charge sheet and filed the

charge sheet only against the accused No.1 to 3, 6 and 9

who were named in FIR and filed charge sheet by showing

accused Nos.1 to 5. While the filing of the charge sheet by

the police these accused names were dropped in the

charge sheet as well as the offences punishable under

Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, the Trial Court framed the charge sheet

and the Trial Court had summoned the witnesses,

accordingly PW1 who is none other than the complainant

Ambareesh had given evidence on 8.4.2011 and another

injured eye witnesses PW2-Ramachandra and PW3-

Manjunath who have given evidence by naming these

petitioners and their overt act for having assaulted as well

as abating the other accused to commit the offence. The

evidence of the complainant and their statements also

reveals the accused had assaulted the complainant and he

has named the accused in the police complaint. The

Investigation Officer for the best reasons known to him

had dropped these petitioners from the charge sheet. In

this regard the Hon'ble Apex Court in its judgment (2014)

3 Supreme Court Cases 92 and 93 in case of Hardeep

Singh Vs State of Punjab and Others is held as

under:-

"92. Thus, in view of the above, we hold that power under Section 319 Cr.P.C can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence."

It is further answered in the question No.4 and 5 as

below,

"Question (iv) -What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C

93. Section 319(1) Cr.P.C empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved"."

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 dishcarged?

"107. In Joginder Singh V State of Punjan, a three-judge Bench of this Court held that as regards the contention that the phrase "any person not being the accused" occurring in Section 319 Cr.P.C excludes from its operation an accused who has been released by the police under section 169 Cr.P.C and has been shown in Column 2 of the charge sheet, the contention has merely to be rejected. The said expression clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like Section 319(1) Cr.P.C clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression.".

In view of the judgment of Hon'ble Apex Court, wherein

the complainant/injured witnesses are stating the names

of the accused in recording the first information statement

and the statement under Section 161 Cr.P.c and

Investigation Officer dropped the names in the charge

sheet, if the witnesses stated before the Court in their

evidence naming the accused and then overt act the

prosecutor or even the Trial Court can exercise the suo-

motu power under section 319 of Cr.P.C summoning these

accused persons who are already dropped in the charge

sheet or who were not named in the FIR or discharged also

arraigned as accused. Therefore, in my view there is no