Sri. Bettaiah vs State Of Karnataka on 22 June, 2018

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Karnataka High Court

Sri. Bettaiah vs State Of Karnataka on 22 June, 2018

Bench: K.N.Phaneendra

                             1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 22nd DAY OF JUNE, 2018

                           BEFORE

     THE HON'BLE MR.JUSTICE K.N.PHANEENDRA

                Crl.P. No.4034 OF 2018

BETWEEN:

1.   Sri. Bettaiah,
     S/o Gendabettaiah,
     Aged 92 years,

2.   Smt. Somamma,
     W/o Bettaiah,
     Aged 88 years,

3.   Sri. Siddaraju H.V.
     S/o Bettaiah,
     Aged 57 years,

4.   Sri. Bhoraiah,
     S/o Bettaiah,
     Aged 50 years,

5.   Smt. Asha Bhoraiah,
     W/o Boraiah,
     Aged 45 years,

     All are R/at Harihara Village,
     Kanakapura Taluk,
     Ramanagara District-562117.      .... Petitioners

(By Sri.Vinod Kumar M Advocate)

AND:

1.   State of Karnataka,
                             2


     Represented by Yelahanka
     New Town Police Station,
     Bangalore.

2.   Smt. Mamatha,
     W/o Shambhulingaiah,
     Aged 31 years,
     R/at No.13, 2nd Main, 3rd Cross,
     Mathru Layout, Yelahanka,
     Bangalore-560062.                   ... Respondents

(By Sri. Chethan Desai, HCGP for R1)
(Notice to R2 dispensed with v/o/dt:22.06.2018)


      This criminal petition is filed under Section 482 of
Cr.P.C., praying to quash the order dated 05.02.2018
and further proceedings in C.C.No.30625/2014 pending
in the file of the XLIV A.C.M.M. Bangalore for the
offence punishable under Section for the offence
punishable under Section 498-A, 504 and 506 of IPC

      This criminal petition is coming on for 'orders' this
day, the Court made the following:

                       ORDER

Respondent No.1 laid charge sheet against the accused by name Shambhulingaiah in C.C.No.30625/2014 for the offences punishable under Sections 498-A, 504 and 506 of IPC which is pending on the file of XLIV Additional Chief Metropolitan Magistrate at Bangalore.

2. The records disclose that, the learned Assistant Public Prosecutor filed an application under Sec. 319 of Cr.P.C., requesting the Court to array five more accused persons i.e., petitioners herein as accused Nos.2 to 7. The said application was contested by accused No.1 who was already on record, by filing objections. After hearing the prosecution and accused No.1, the Court has allowed the said application and arrayed the accused as petitioners herein and consequently, issued summons to the accused persons. Though accused persons/petitioners have appeared before the trial Court, nevertheless, they have challenged the said order passed by XLIV Additional Chief Metropolitan Magistrate, Bangalore on 05.02.2018 filed under Section 319 of Cr.P.C.

3. The order of the learned Additional Chief Metropolitan Magistrate requires to be quashed for the simple reason that, the said order was passed behind the back of petitioners without issuing notice and without hearing them. In this regard, it is worth to mention here the decision reported in 2016 (4) AKR 4 392 between Asha Somashekar Vs. State of Karnataka, wherein this Court dealing with the provisions under Sec.319 of Cr.P.C. held that:

"Criminal Court must issue prior notice to any person, before calling upon him to be made an additional accused in any criminal case. Order of summoning any person as accused, without any prior notice and opportunity of being heard, shall not be sustainable. The Court has to take extra caution to satisfy itself that strong evidence exist against any person for summoning him as accused".

4. In view of the above said decision, it is incumbent upon the learned Magistrate to issue notice on the application filed under Sec. 319 of Cr.P.C. before passing any order against them. Hence, the said order is liable to be quashed. Hence, I proceed to pass the following:

ORDER The criminal petition is allowed. Consequently, order passed by the XLIV Additional Chief Metropolitan Magistrate at Bangalore in C.C.No.30625/2014 dated

05.02.2018 on the application under Section 319 of Cr.P.C. is hereby quashed. The application filed under Section 319 of Cr.P.C. by the prosecution is hereby restored on the file 5 of learned Magistrate to proceed in accordance with law, in view of the law laid down by this Court as noted above.

If any notice is issued by the Court under Sec. 319 of Cr.P.C., to the petitioners, they are not to personally appear before the Court. They can engage counsel and contest the application till the same is disposed of. The Court shall not insist their presence.

In view of disposal of the main petition, IA-1/2018 for stay does not survive for consideration. Hence, IA- 1/2018 is dismissed.

Sd/-

JUDGE JS/-

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