Karnataka High Court
Sri. Vithal And Ors vs The State Of Karnataka on 9 April, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
CRIMINAL PETITION No.201110/2017
Between:
1. Sri. Vithal S/o Basalingappa Gornal
Age about 65 Years, Occ: Rtd. Govt. Servant
2. Sri. Srishail S/o Vithal Gornal,
Aged about 27 Years, Occ: Business
3. Smt. Subhadra @ Subbawwa
W/o Rachanna @ Raju Betgeri,
Aged about 31 Years, Occ: Household Work,
4. Sri. Rachanna @ Raju
S/o Sangappa Betgeri,
Aged about 46 Years,
Occ: Coolie,
All are R/o Jorapur Peth,
Vijayapur
... Petitioners
(By Sri. S.S. Mamadapur, Advocate)
And:
1. The State of Karnataka,
Through Gandhi Chowk P.S,
Vijayapur
Rep. by its State Public Prosecutor,
Advocate General's Office,
2
High Court Building,
Kalaburagi.
2. Sri. Shivanand S/o Hanamanthappa Gornal
Aged about 53 Years,
Occ: Agriculture,
R/o Jorapur Peth,
Manjannai Galli,
Vijaypur-586 101
... Respondents
(By Sri. P.S. Patil, HCGP for R-1)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to set aside the order dated 07.09.2017
passed by the learned I Addl. Sessions Judge, Vijaypur in
Crl. Rev. Petition No.270/2016 as well as the order dated
20.07.2016 passed by the learned I Addl. JMFC, Vijaypur in
CC No.490/2012 on the application filed under Section 319
of Cr.P.C.
This petition is coming on for admission this day, the
Court made the following:-
ORDER
The petitioners herein who are accused Nos.1, 3, 9 and 10 in C.C.No.490/2012 pending on the file of I Addl. JMFC, Vijayapura have come up in this petition. 3
2. Admittedly, the proceedings in C.C.No.490/2012 is on the basis of complaint registered in Crime No.202/2011 with Gandhi Chowk Police of Vijayapura for the offences punishable under Sections 143, 147, 148, 324, 323, 504, 506 r/w Section 149 of IPC, against seven persons only.
3. In the compliant, in all twelve persons were shown as accused by the complainant-Sri. Shivanand Gurnal. However, the police after investigation filed charge sheet on 25.09.2011 against seven accused. When the said C.C.No.490/2012 was taken up for evidence, the complainant-Sri. Shivanand Gornal was shown as C.W.1 in charge sheet, was examined as P.W.1 on 06.11.2012, wherein he would state that the offence is committed by twelve persons, whose name is as shown in the complaint registered in Crime No.202/2011 with Gandhi Chowk Police of Vijayapura. He would further state that thereafter he has not visited 4 the police nor has given any further statement to the police.
4. In this background, the Court below on verification of the records has noticed that the investigating officer has deliberately left out the remaining five accused against whom there is a clear accusation of the said persons being involved in the crime referred to in the complaint dated 25.09.2011. Therefore, the Court below in exercise of its power under Section 319 of Cr.P.C. directed the prosecution to include another five names, which were deliberately left out by the prosecution. It is that order of learned Magistrate which is under challenge in this proceedings.
5. Admittedly, the petitioners herein who are subsequently included in the said C.C. No.490/2012 before JMFC, Vijayapura, have approached the Sessions Court in filing Crl.Rev.P.No.270/2016 under Section 397 of Cr.P.C. seeking to set aside the order dated 5 20.07.2016 in C.C.No.490/2012, wherein the learned Magistrate directed inclusion of another five persons who are left from the charge sheet. The sessions Court while considering the criminal revision petition has gone through the order impugned therein vis-à-vis, the complaint which is registered in Crime No.202/2011, the further statements recorded and all other documents which are available on record, has rightly come to the conclusion that the exercise of power by the learned Magistrate under Section 319 of Cr.P.C. is just and proper.
6. In that behalf, the learned Sessions Judge also relied upon the judgment cited and relied by the prosecution reported in AIR 2010 SC 518 in the matter of Suman vs. State of Rajasthan and another in upholding the order impugned. However, the order of rejection by the Sessions Court in dismissing the Crl.Rev.P.No.270/2016 is under challenge by the 6 revision petitioners who have come up in this criminal petition.
7. Heard the learned counsel for the petitioners and as well as learned High Court Government Pleader, appearing for the respondent No.1-State.
8. The counsel for the petitioners would try to substantiate that gross error is committed by both the courts below in including the name of petitioners as additional accused in the proceedings before the Magistrate inasmuch as the same is contrary to the principle laid down by the Apex Court in the matter of Ramdhan Mali and Another Vs. State of Rajasthan and Another reported in 2014 (2) SCC (Cri) 87, wherein he would rely upon paragraph No.6, where the learned Sessions Judge framed in all four questions to be considered with reference to inclusion of name by the learned Magistrate with reference to the facts and 7 circumstances and the manner in which it deals are as under;
" 6. On the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this Bench:
6.1. (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
6.2 (ii) Whether the word "evidence"
used in Section 319 (1) Cr.P.C could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
6.3( iii) Whether the word " evidence"
used in Section 319 (1) Cr.P.C has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
6.4 (iv) What is the nature of the satisfaction required to invoke the power under Section 319 of Cr.P.C to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted?"8
9. Subsequently while dealing with the same, the Apex Court would hold that in favour of prosecution as under;
78. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the Court, in relation to statements, and as produced before the Court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether the power under Section 319 Cr.P.C is to be exercised and not on the basis of material collected during the investigation."
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105. Power under Section 319 Cr.P.C is a 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."
10. On going through the aforesaid judgments, it is clearly seen that in fact the aforesaid judgments 9 which are relied upon by the petitioners in this matter substantially cover the position with reference to the right of Magistrate in including the names which are deliberately excluded by the prosecution while conducting investigation into the compliant and thereafter in directing the prosecution to include the said names.
11. In the fact situation also the names of the petitioners herein was seen in the complaint, which was initially registered on 25.09.2011. However, the prosecution deliberately for the reason best known to the investigator has left out five names, which is not supported by the complainant while adducing as P.W.1. He has stated with reference to further statements and all are without any basis and besides giving complaint he has never gone to the police station for giving any further statements and that the police have manipulated the records and left some of the accused 10 with ulterior motive which is rightly accepted by the Court below.
12. In that view of the matter, this Court finds no justifiable grounds are made out to interfere with the order of learned Magistrate dated 20.07.2016, which is confirmed by the Sessions Court in Crl.Rev.P.No.270/2016 on 07.09.2017.
Accordingly, this criminal petition is dismissed.
Sd/-
JUDGE BL Ct: RRJ