Karnataka High Court

Shashikala And Ors vs The State Of Karnataka on 19 January, 2022

Bench: V Srishananda

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 19TH DAY OF JANUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE V.SRISHANANDA

        CRIMINAL PETITION NO.200072/2022


BETWEEN:

1.   Smt. Shashikal W/o Sharanappa,
     Age: 56 years,Occ: Government Servant,
     R/o: Kamalapur Village,
     Tq & Dist: Kalaburagi-585 313.

2.   Vicky @ Shivakumar S/o Shantveer,
     Age: 26 years, Occ: Private Service,
     R/o: #10A, Abbay Reddy Building,
     Near Anjanadri High School,
     Doddakanahalli, Sarjapur Road,
     Bengaluru-560 035.

3.   Vanishree D/o Sadanandappa Gadgi,
     (Smt.Vanishree W/o Anil Benal),
     Age: 37 years, Occ: Household work,
     R/o: #10A, Abbay Reddy Building,
     Near Anjanadri High School,
     Doddakanahalli, Sarjapur Road,
     Bengaluru-560 035.
                                            ... Petitioners
(By Sri R.S.Lagali, Advocate)
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AND:

The State of Karnataka
Through the SHO, Kamalapur PS
Rep. by the Addl. State Public Prosecutor,
High court of Karnataka,
Kalaburagi-585 102.

                                              ... Respondent

(By Sri Gururaj V.Gasilkar, HCGP)


       This criminal petition is filed under Section 482 of
Cr.P.C praying to allow the present criminal petition
thereby quash the order Dt.20.09.2021 passed by the III
Addl. District & Sessions Judge, Kalaburagi, in
Cri.Rev.Petition No.77/2021 in dismissing the revision
petition filed by petitioner which in turn had confirmed the
order     Dt.07.08.2021      passed     in   criminal   Case
No.1875/2016 by the I Addl. JMFC, Court Kalaburagi in
issuing notice to petitioners pursuant to the application
filed u/s. 319 of Cr.P.C by the prosecution to be arrayed as
accused persons to face trial along with accused No.1 & 2
in criminal case No.1875/2016 for the offences punishable
U/s. 342, 325, 504 R/w S.34 of IPC.

      This petition coming on for Admission this day, the
Court made the following hearing:

                         ORDER

Heard Sri R.S.Lagali, learned counsel for the

petitioners and learned High Court Government Pleader for

respondent/State.

2. The present petition is filed under Section 482

of Cr.P.C for the following prayer:-

"To allow the present criminal petition thereby quash the order Dt.20.09.2021 passed by the III Addl. District & Sessions Judge, Kalaburagi, in Cri.Rev.Petition No.77/2021 in dismissing the revision petition filed by petitioner which in turn had confirmed the order Dt.07.08.2021 passed in criminal Case No.1875/2016 by the I Addl. JMFC, Court Kalaburagi in issuing notice to petitioners pursuant to the application filed u/s. 319 of Cr.P.C by the prosecution to be arrayed as accused persons to face trial along with accused No.1 & 2 in criminal case No.1875/2016 for the offences punishable U/s. 342, 325,504 R/w S.34 of IPC."

3. The brief facts of the case are as under :-

A complaint came to be lodged by Siddamma W/o

Jagadish Chachgundi of Kamalapur Village on 03.02.2016

contending that her husband Jagadish had borrowed

money from one Nirmal W/o Wamanna Mulimani and he

had repaid the amount. Despite the same Nirmala used to

visit her house and used to demand for the repayment. In

that regard, there was a ill-will developed between her

husband - Jagadish with Nirmala. When the matter stood

thus, on 31.01.2016 when Jagadish had been to

outstation, about 5.00 p.m. Nirmala, Parvathi Gadagi,

Vanishree Gadagi, Shahikala and Vicky Mulimani came to

their house and enquired about her husband and also

when she replied that he had gone out of station Nirmala

pulled her hairs and others started assaulting and she was

confined in a separate place. When she enquired why she

has been confined, they all told she would be released,

Nirmala assaulted with a club on her left knee and she

sustained a blood injury and they also assaulted her and a

gold chain weighing two and half tolas was snatched in

that incident and sought for action against the above

persons.

4. Upon the said complaint, police registered a

case in Crime No.16/2016 for the offences punishable

under Sections 342, 325 and 504 read with Section 34 of

IPC.

5. After thorough investigation, police laid

charge-sheet only against two people and left the

petitioners namely Shahikala, Vicky and Vanishree.

However, when the matter was being tried, based on the

statement given by the injured-complainant, an application

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

prosecution arraigned present petitioners are as additional

accused. The learned trial Magistrate allowed the petition

and against which the petitioners filed a revision petition in

Crl.Rev.P.No.77/2021. The learned III Addl. District and

Sessions Judge heard the matter in detail and revision

petition was rejected by order dated 20.09.2021.

6. Being aggrieved by the same, the petitioners

are before this Court.

7. Learned counsel for the petitioner Sri

R.S.Lagali vehemently contended that the trial court and

revisional court have not followed the dictum of the

Hon'ble Apex Court in the case 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 and also the decision of 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.

8. Per contra, learned High Court Government

Pleader supports the impugned order and prays for

dismissal of the petition.

9. Before adverting to further aspect of the

matter, it is necessary for this court to cull out the relevant

portion of the decision of the Coordinate Bench of this

court in Smt.Asha's case wherein the dictum of the

Hon'ble Apex Court in Hardeep Singh's case and

Jogendra Yadav's case has been considered. The

relevant paragraph reads 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 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."

10. Applying the above principles of law, the trial

Magistrate was required to follow the procedure as laid

down in the case of Smt.Asha before summoning the

accused. The same is not applied by the trial court and

also not properly appreciated by the revisional court.

Accordingly, need has arisen to set-aside the impugned

order and application filed under Section 319 of Cr.P.C

needs to be considered in accordance with law by following

the dictum of this Court in Smt.Asha 's case.

11. Hence, the following :

ORDER

The petition is allowed.