Karnataka High Court

Bhagawantaraya vs The State Of Karnataka And Anr on 20 January, 2022

Bench: V Srishananda

                          1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 20TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL PETITION NO.200053/2022


BETWEEN:

BHAGAWANTARAYA S/O SHIVALINGAPPA,
NENGA @ KADATAR, AGE. 45 YEARS,
OCC. PRIVATE WORK, R/O KOLKUR,
TQ. JEWARGI,
NOW AT SANTOSH COLONY,
UDNOOR ROAD, KALABURAGI-585102.
                                        ... PETITIONER

(BY SRI CHITANYA KUMAR CHANDRIKI, ADVOCATE)


AND:

1. THE STATE OF KARNATAKA,
   THROUGH ASHOK NAGAR P.S.,
   DIST. KALABURAGI.
   REPRESENTED BY ADDL. SPP,
   HIGH COURT BUILDING,
   KALABURAGI-585107.

2. BASAVARAJ S/O NAGENDRAPPA MANAKAR
   AGED: 65 YEARS, OCC: RETD. EMPLOYEE,
   R/O KORAVI, TQ. CHINCHOLLI,
   DIST. KALABURAGI-585115.
                                    ... RESPONDENTS
(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1)
                                  2



     THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 CRIMINAL PROCEDURE CODE PRAYING TO
QUASH THE IMPUGNED ORDER DATED 03.04.2021 AS AT
ANNEXURE D WHEREIN APPLICATION FILED U/S 319
CR.P.C FILED BY PROSECUTION HAS BEEN ALLOWED AND
ALSO QUASH THE IMPUGNED ORDER DATED 31.12.2021
AS AT ANNEXURE E WHEREIN APPLICATION FILED
U/S 227 OF CR.P.C FILED BY THE PETITIONER HAS BEEN
REJECTED IN S.C.NO.108/2019 (CRIME NO.7/2019) OF
ASHOK NAGAR PASSED BY THE I ADDL. SESSIONS JUDGE
AT KALABURAGI.

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

                          ORDER

The present petition is filed under Section 482 of

Cr.P.C with the following prayer :-

"To quash the impugned order dated 03.04.2021 at Annexure-D wherein application filed under Section 319 of Cr.P.C filed by prosecution has been allowed and also quash the impugned order dated 31.12.2021 at Annexure-E wherein application filed under Section 27 of Cr.P.C filed by the petitioner has been rejected in S.C.No.108/2019 (Crime No.7/2019 of Ashok Nagar Police) passed by the I Addl. Sessions Judge at Kalaburagi."

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

A complaint came to be lodged initially in

Raghavendra Nagar Police Station which was later

registered in Crime No.7/2019 by Ashoknagar Police

Station. Complainant-Basavaraj contended that on

26.01.2019, Ashok Nagar police station registered a case

in Crime No.7/2019 against Vidyavathi and

Bhagavanthraya for the offence punishable under

Section 302 read with Section 34 of IPC.

3. The complaint averments disclose that the

deceased Raviraj who was the husband of Vidyavathi and

both of them were residing in a rented house situated in

NGO Colony, Kalaburagi and they were having a son and

daughter. Further, Raviraj was suspecting Vidyavathi about

her chastity and he had suspicion that Vidyavathi is having

illegal intimacy with Bhagavanthraya. It is further found

from the complaint averments that on 26.01.2019 at about

10.00 a.m. complainant received a call that Raviraj slept in

the house after quarreling with his wife Vidyavathi and

heeding the same, complainant along with family rushed to

the house of the deceased and saw dead body of Raviraj

and a rope encircling his neck. Further, it is revealed that it

was not a case of suicide but it was a case of murder. It is

also contended that Vidyavathi and Bhagavanthraya have

conspired and killed Raviraj.

4. Subsequent thereto, the matter is investigated

by the police and charge-sheet came to be filed only

against Vidyavathi. Police after thorough investigation filed

charge-sheet against Vidyavathi alone and not against the

petitioner. However, during the course of evidence, the

complainant revealed the overt act attributable to the

petitioner and therefore, an application under Section 319

of Cr.P.C came to be filed. The same was allowed by the

learned Judge in S.C.No.108/2019 and the present

petitioner has appeared before the court and filed an

application under Section 227 of Cr.P.C seeking discharge.

The same was dismissed by the trial court by order dated

31.12.2021. Therefore, the present petitioner is before this

court in this petition.

5. Learned counsel for the petitioner

Sri Chaitanyakumar C.M vehemently contended that before

allowing the application under Section 319 of Cr.P.C the

trial court has not properly taken note of the dictum of law

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 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 and prayed for allowing the petition.

6. Per contra, learned High Court Government

Pleader opposes the petition.

7. Perused the records.

8. It is an admitted fact that the complaint came

to be filed by Basavaraj which was registered in Crime

No.7/2019 against Vidyavathi and the present petitioner.

However, police after thorough investigation filed charge-

sheet only against the Vidyavathi and unable to collect

any material against the present petitioner.

9. However, an application filed on behalf of the

prosecution under Section 319 of Cr.P.C., accused has

been summoned by the learned trial Judge. While so

doing, the trial Judge has not followed the procedure

adopted as is told in Smt.Asha's case supra.

10. 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."

11. Admittedly, these guidelines have not been

followed in the case on hand. Accordingly, the order

passed by the learned trial judge summoning the petitioner

as accused/petitioner as an additional accused in the case

in S.C.No.108/2019 arising out of Crime No.7/2019 of

Ashok Nagar Police Station, cannot be countenanced in

law. Hence the following order is passed :