Karnataka High Court
Sneha M S vs State Of Karanataka By on 13 August, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:32532
CRL.RP No. 375 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
CRIMINAL REVISION PETITION NO. 375 OF 2022
(397/438(BNSS))
BETWEEN:
SNEHA M.S.
D/O.SUBBRAYAPPA
AGED ABOUT 24 YEARS
R/AT NEHARUJI COLONY
GOWRIBIDANURU-561 208
...PETITIONER
(BY SMT.RAKSHA KEERTHANA K., FOR
SRI KEMPARAJU, ADVOCATES)
AND:
1. STATE OF KARANATAKA
BY GOWRIBIDANUR TOWN
POLICE STATION
CHIKKABALLAPURA DISTRICT
REP.BY ITS PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BENGALURU-560 001
Digitally 2. MUNINARAYANAPPA
signed by B
LAVANYA S/O.MYLAPPA
Location: AGED ABOUT 62 YEARS
HIGH
COURT OF 3. SUSHEELAMMA
KARNATAKA W/O.MUNINARAYANAPPA
AGED ABOUT 58 YEARS
R-2 & R-3 ARE R/AT NO.223
ADARSHA LAYOUT
ANANDAPURA
GOWRIBIDANURU TOWN-561 208
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NC: 2024:KHC:32532
CRL.RP No. 375 of 2022
4. TEJAS M.
S/O.MUNINARAYANAPPA
AGED ABOUT 30 YEARS
R/AT ASSISTANT ENGINEER
KPCL, GANESHGUDI
JOIDA TALUK-581 186
...RESPONDENTS
(BY SMT.RASHMI PATEL, HCGP FOR R-1;
SRI CHETAN DESAI, ADVOCATE FOR R-2;
SRI MANJUNATH S.V., ADVOCATE FOR R-3 & R-4)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTON 397 READ WITH SECTION 401 CR.PC. PRAYING TO
SET ASIDE THE ORDEER DATED 27.01.2022 PASSED ON AN
APPLICATION BY I ADDITIONAL DISTRICT AND SESSIONS
JUDGE AT CHICKBALLAPUR IN SPL.SC.NO.49/2020 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 376, 420, 504 AND
506 READ WITH SECTION 34 OF IPC AND SECTIONS 3(1)(r),
3(1)(s), 3(1)(w), 3(2)(va) OF SC/ST (POA) ACT.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL ORDER
This petition is filed by the petitioner-complainant seeking to set-aside the order dated 27.01.2022 passed by I Additional District and Sessions Judge, Chickballapur (for short, 'the trial Court') in Spl.SC.No.49/2020, whereby an application filed under Section 319 of Cr.PC. by the prosecution to summon the proposed accused Nos.2 to 4 came to be dismissed.
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022
2. Brief facts of the case of the prosecution are as under:
The petitioner herein was the complainant before the trial Court. The prosecution filed an application under Section 319 of Cr.PC. to summon accused Nos.2 to 4 for having committed the offences punishable under Sections 376, 420, 504 and 506 read with section 34 of IPC and Sections 3(1)(r), 3(1)(s), 3(1)(w), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the SC/ST POA Act'). It is the case of the prosecution that accused No.1 made a false promise of marriage and committed sexual intercourse on the complainant-victim and refused to marry her on the ground that she belongs to the Scheduled Caste and threatened her. It is also the case that accused Nos.2 and 3 abused the complainant when she went near their house to ask about the act of accused No.1. It is alleged that said accused abused her by taking the name of her caste and abused her in filthy words, whereas accused No.4 assisted accused No.1 by hiding -4- NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 him, on the basis of which, initially an FIR has been registered for the offences punishable under the provisions as stated hereinabove. Thereafter, pursuant to the investigation, chargesheet was laid against accused No.1 and the names of accused Nos.2 to 4 was deleted and dropped from the chargesheet and no charges were laid against them.
2.1 The prosecution examined the witnesses from PWs.1 to 18 and thereafter, the prosecution filed an application under Section 319 of Cr.PC. before the trial Court seeking to summon accused Nos.2 to 4 to lead additional evidence on the basis of materials evidence placed on record, both oral and documentary and also on the basis of the complaint lodged by the complainant and the FIR registered against the said accused Nos.2 to 4.
2.2 On consideration of the materials placed on record, the trial Court dismissed the said application filed under Section 319 of Cr.PC. by the prosecution.-5-
NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 2.3 Being aggrieved by the same, the complainant has preferred this petition.
3. Heard Smt.Raksha Keerthana K. for Sri Kemparaju, learned counsel for petitioner, Smt.Rashmi Patel, learned High Court Government Pleader for respondent No.1, Sri Chetan Desai, learned counsel for respondent No.2, Sri Manjunatha S.V., learned counsel for respondent Nos.3 and 4.
4. It is vehemently contended by learned counsel for petitioner that the impugned order passed by the trial Court is not sustainable in law both on facts and probabilities of the case and the evidence adduced by the prosecution. It is also contended that the trial Court has failed to appreciate the materials placed on record and the evidence adduced by PWs.1, 9 and 14, which corroborate the complaint, wherein specific allegation against these accused are made out in the complaint and the evidence adduced by the said witnesses leads to implication of accused Nos.2 to 4 to be tried in the trial. Therefore, it is -6- NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 contended by learned counsel that the material placed on record itself is sufficient for the Court to act under the provisions of Section 319 of Cr.PC. to summon the said accused in this case.
4.1 It is contended by learned counsel that the trial Court, ignoring all these materials, has wrongly come to the conclusion that the prosecution has not made out any strong prima facie case to implicate accused Nos.2 to 4 as no material is placed on record and therefore, dismissed the application filed by the prosecution. It is further contended by learned counsel for petitioner that the prosecution witnesses were cross-examined by learned counsel for accused No.1, the sole accused i.e. prime accused, but, however, the prosecution witnesses have withstood the cross-examination of the accused and nothing has been elicited to prove on the contrary in favour of other proposed accused, who were sought to be summoned. Therefore, it is vehemently contended by learned counsel for petitioner that the impugned order -7- NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 passed is illegal, perverse and a patent error has been committed by the trial Court, which requires to be set- aside and the matter requires to be allowed. Consequently, the application filed under Section 319 of Cr.PC. requires to be allowed and accused Nos.2 to 4 are required to be summoned in this case for trial.
4.2 Learned counsel for petitioner relied on the following judgments in support of his case:
i) Jitendra Nath Mishra v. State of U.P. & Anr.
reported in 2023 LiveLaw (SC) 480;
ii) Sandeep Kumar v. The State of Haryana & Anr. reported in 2023 LiveLaw (SC) 573;
iii) Sukhpal Singh Khaira v. The State of Punjab reported in 2022 LiveLaw (SC) 1009;
5. Learned High Court Government Pleader for respondent-State supports the case of the petitioner as it was the prosecution, which had filed an application on behalf of the complainant to summon accused Nos.2 to 4. It is also the case of the prosecution alike to the case of -8- NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 the petitioner that the petitioner in her complaint has clearly named the proposed accused Nos.2 to 4 having used vulgar and filthy language touching her caste and accused No.4 has taken accused No.1 and had made attempts to hide accused No.1. Therefore, these averments are clearly forthcoming in the complaint lodged by the complainant at the first instance.
5.1 It is also stated by learned High Court Government Pleader that even in the statement recorded under Section 164 of Cr.PC., the said allegation is made against accused Nos.2 to 4 and also the evidence adduced by PWs.1, 9 and 14 clearly corroborate the statement made by the complainant in the complaint. The said evidence has not been countered and the prosecution witnesses have withstood the evidence adduced by accused No.1. Under these circumstances, learned High Court Government Pleader supports the contentions put- forth by learned counsel for petitioner with regard to the impugned order being liable to be set-aside as the same is -9- NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 illegal and a patent error has been committed by the trial Court.
6. Per contra, learned counsels for proposed accused Nos.2 to 4 vehemently contend that there is no illegality or perversity in the order passed by the trial Court as the trial Court has taken into consideration all the materials placed on record including the complaint, the statement recorded under Section 161 of Cr.PC. so also the statement recorded under Section 164 of Cr.PC. and also taking into consideration the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short, 'the SC/ST POA Amendment Act, 2015'). Therefore, the order passed by the trial Court does not call for interference. It is further contended that there are no necessary requirements or ingredients in the complaint registered by the complainant, so also, in the statement recorded under Section 161 of Cr.PC. for implicating accused Nos.2 to 4 in this case. It is contended that the lacuna is being filled
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 by the complainant in the statement recorded under Section 164 of Cr.PC., which was not recorded in the statement under Section 161 of Cr.PC. Therefore, when there are no ingredients to rope in or implicate accused Nos.2 to 4 in the case, the question of the forcing accused Nos.2 to 4 to undergo trial is not proper and appropriate and the same cannot be permitted, as it would infringe their personal liberty.
6.1 It is also the vehement contention of learned counsels for respondent Nos.2 to 4 that necessary ingredients required to implicate accused under the provisions of SC/ST POA Amendment Act, 2015 clearly specifies that the act of such words or gesture used against the complainant under the act should be in the public view and intentional and should not be in a private area. It is his contention that admittedly even according to the complainant, the words so uttered against the complainant touching her caste was in the house of respondents-accused Nos.2 to 4. Therefore, the incident
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 i.e. alleged to have been occurred has not occurred in the public view and the same was not intentional. Therefore, the ingredient as required under the SC/ST POA Amendment Act, 2015 is not fulfilled to implicate respondents-accused Nos.2 to 4 in this case.
6.2 It is also contended by learned counsels for accused Nos.2 to 4 that even according to the complaint and evidence adduced, the words so alleged to be uttered were inside the compound wall of the house of accused Nos.2 to 4. PW.14, in his examination-in-chief, has stated that he was standing far away from the place of incident and he was not privy to the utterances of words by accused Nos.2 and 3 and he was only a hearsay evidence which was informed by the PW.9-complainant. Learned counsel further contends that PW.1 has not heard the utterance of words by proposed accused Nos.2 and 3 to the complainant, so also, even if he had heard the said utterances of words, PW.14 is an interested witness. Hence, the evidence of PWs.9 and 14 cannot be
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 considered and it fall short of necessary requirements to implicate respondents-accused Nos.2 to 4. It is vehemently contended by learned counsels that when necessary ingredients as contemplated under the SC/ST POA Amendment Act, 2015 are not forthcoming, specifically in the complaint or in the evidence, the question of implicating the said accused Nos.2 to 4 to undergo trial, is a violation of their fundamental rights.
6.3 Learned counsel for respondent No.2 has relied on the judgment of the Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab and others reported in (2014)3 SCC 92 in support of his case. Whereas, learned counsel for respondent Nos.3 and 4 relied on the following judgments in support of his case:
i) Shankar v. The State of Uttar Pradesh and others in Crl.A.No.2367/2024 [DD 02.05.2024];
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CRL.RP No. 375 of 2022
ii) Priti Agarwalla and Others v. The State of
GNCT of Delhi and Others in
Crl.A.No.348/2021 [DD 17.05.2024];
iii) XXX v. State of Madhya Pradesh and another in Crl.A.No.3431/2023 [DD 06.03.2024].
7. Having heard learned counsel for petitioner, learned High Court Government Pleader for respondent No.1-State, learned counsel for respondent No.2-proposed accused No.2 and learned counsel for respondent Nos.3 and 4-proposed accused Nos.3 and 4, the questions that arise for consideration are -
"i) Whether there is any patent illegality and error committed by the trial Court in passing the impugned order?
iii) Whether the impugned order is required to be set-aside?"
8. It is not in dispute that the complaint came to be registered by the complainant against respondents- accused Nos.2 to 4 along with accused No.1-Chethan for the offences punishable under Sections 376, 420, 504 and
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 506 read with section 34 of IPC and Sections 3(1)(r), 3(1)(s), 3(1)(w), 3(2)(va) of the SC/ST POA Act.
9. It is also not in dispute that accused No.1 is related to accused Nos.2 to 4. Accused Nos.2 and 3 are the parents and accused No.4 is the brother of accused No.1. Initially, in the FIR registered, the Police included the names of accused Nos.1 to 4 i.e. one Chethan as accused No.1, respondent Nos.2 to 4 as accused Nos.2 to
4. Subsequently, during the course of investigation, the Police have not included the names of respondents-accused Nos.2 to 4 and let them off the hook, while filing the chargesheet. Thereafter, the prosecution examined the witnesses as PWs.1 to 18, pursuant to which, the prosecution filed an application under Section 319 of Cr.PC. seeking an order to summon accused Nos.2 to 4. On the basis of the materials placed on record, the complaint and the statement recorded under Section 164 of Cr.PC., the trial Court dismissed the said application, which is questioned before this Court in this petition. To
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 consider the application filed under Section 319 of Cr.PC., it is relevant to extract the provisions of Section 319 of Cr.PC. hereunder:
"319. Power to proceed against other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the court proceeds against any person under sub-section (1), then─
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of
clause(a), the case may proceed as
if such person had been an accused
person when the court took
cognizance of the offence upon
which the inquiry or trial was
commenced."
10. This Court will have to see whether the
prosecution has made out a case for implicating the respondents-accused Nos.2 to 4 in the case on hand. It is not in dispute that the complainant while filing a complaint on 06.03.2020 has narrated the events that occurred on the said date when the incident happened. The complainant has very specifically stated in her complaint with regard to involvement of respondents-accused Nos.2 to 4 i.e. accused Nos.2 and 3, the parents of accused No.1 having abused the complainant in a filthy language touching her caste in the presence of other person i.e. PW.14, who is none other than the colleague of the
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 complainant, who had gone along with the complainant to the house of respondents-accused Nos.2 and 3. It is also stated by the complainant that respondent No.4, who was arraigned as accused No.4 in the FIR, provided assistance to accused No.1 to hide at Dandeli and he had taken him prior to filing of the complaint. The utterance of words are narrated by the complainant and so also by PW.14. According to the complainant, the words used by respondent-accused Nos.2 and 3 to abuse the victim in filthy language are ªÀiÁ¢UÀ ªÀÄÄAqÉ and that they have stated that they will not admit her into the house and they perform the marriage of their son within their caste and not to the person belonging to the lower caste. It is according to the petitioner-complainant and PW.14, who had accompanied her was standing at far away distance and she had gone and informed him and he is also a witness to these utterance of words.
11. The trial Court has dismissed the application on the ground that the ingredients of the SC/ST POA
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 Amendment Act, 2015 having been followed for utterance of words within public view and the complainant belongs to Scheduled Caste was not within the knowledge of respondents-accused Nos.2 and 3. Hence, the question of respondents-accused Nos.2 and 3 using abusive filthy words by touching the caste of the complainant does not arise in the case, so also, the trial Court has come to the conclusion that PW.14, who had accompanied the complainant was standing far away distance at 10 feet from the house of proposed respondents-accused Nos.2 and 3 and that he has not heard the words uttered or used by the said accused. Hence, he said to be a hearsay witness as he heard the same from the complainant. It is also held by the trial Court that he is an interested witness and hence, his statement cannot be taken as a gospel truth. Under the circumstances, the trial Court dismissed the application filed to summon accused Nos.2 to 4 to face the trial.
12. With regard to accused No.4, the complaint allegation states that he assisted and cooperated accused
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 No.1 to hide. There is absolutely no whisper or no statement made against accused No.4. So also, PW.14 has not stated anything about the proposed respondent- accused No.4. Hence, there is no strong convincing cogent materials placed on record to summon the said accused No.4 to face the trial.
13. Learned counsels for both sides have relied upon the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hardeep Singh stated supra to rely upon the principles governing the provisions under Section 319 of Cr.PC. and power to proceed under Section 319 of Cr.PC against the persons who are arraigned as accused and so also the degree of satisfaction i.e. required to be invoked the power under Section 319 of Cr.PC. on the basis of the several judgments rendered by the Hon'ble Apex Court as well as by this Court. There is no dispute that the provisions of Section 319 of Cr.PC. could be exercised at the stage of inquiry and trial upon cognizance being taken of an offence, which has been considered by
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 large number of decisions by the Honble Apex Court, more particularly the elaborate consideration in the case of Hardeep Singh stated supra. The Hon'ble Apex Court has also held as to what is the degree of satisfaction required for invoking the power under Section 319 of Cr.PC by raising a question at Question (iv) in the said judgment at para-93, which reads under:
"Question (iv)─What is the degree of satisfaction required for invoking the power under Section 319 CrPC?
93. Section 319(1) CrPC 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". It imparts a lesser degree of probability than proof."
In the very same judgment, it is also held by the Hon'ble Apex Court at paras-105 and 106 as under:
"105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 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.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should retain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence"
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."
14. To consider the present case on hand, what is required to be seen here is that on the basis of the complaint lodged by the complainant, she had implicated accused Nos.1 to 4 i.e. the person by name Chethan M., who had promised to marry the complainant and parents i.e. accused Nos.2 and 3 of accused No.1, who have abused her in filthy words by touching her caste and the brother i.e. accused No.4 of accused No.1 assisted accused No.1 to hide, prior to filing of the complaint. This question is fairly covered under the question raised by the Hon'ble Apex Court in the case of Hardeep Singh stated supra in Question (v) at para-107, which reads under:
"Question (v)─In what situations can the power under this section be exercised: not named in
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 FIR; named in the FIR but not charge-sheeted or has been discharged?
107. In Joginder Singh v. State of Punjab, 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 CrPC excludes from its operation an accused who has been released by the police under Section 169 CrPC 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) CrPC clearly show 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."
15. In the present case, it could be concerned with the accused named in the FIR but not chargesheeted and dropped in the chargesheet.
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16. The prosecution has led evidence as per PWs.1 to
18. The evidence of PWs.1, 9 and 14 corroborate the statement of each other and so also the averments made in the complaint. It is not in dispute that initially, the Police had implicated respondents-accused Nos.2 to 4 in the FIR, but later after conducting investigation, they have been dropped respondents-accused Nos.2 to 4. This Court need not venture into the aspect of whether a person, who is named in the FIR but later not included in the chargesheet could be summoned by virtue of provisions of Section 319 Cr.PC. as the Hon'ble Apex Court has already dealt with this matter in the case Hardeep Singh stated hereinsupra. The question for consideration before this Court is whether the prosecution has made out a valid case to implicate and summon the respondents-accused Nos.2 to 4 to face the trial and whether the complainant has made out a valid case for any offence, which could prima facie show involvement of respondents-accused Nos.2 to 4.
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17. On careful perusal of the complaint and the evidence adduced by PWs.1, 9 and 14, it is prima facie seen that certain utterances of words alleged to have been used i.e. ªÀiÁ¢UÀ ªÀÄÄAqÉ by accused Nos.2 and 3 on the complainant, which is also stated in the evidence of PWs.9 and 14. On the other hand, no materials are produced before the trial Court to show any involvement of accused No.4 or any specific allegation made against accused No.4, the brother of accused No.1 apart from stating that he had assisted accused No.1 in hiding at Dandeli, prior to filing of the complaint. Therefore, it is clearly borne by the records that apart from stating that accused No.4 assisted accused No.1, no clear specific allegations are made out as against respondent-accused No.4.
18. While answering Question (v) in the case of Hardeep Singh stated supra, the Hon'ble Apex Court has answered the same at para-117.6, which reads as under:
"Question (v)─Does the power under Section 319 CrPC extend to persons not named in the
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 FIR or named in the FIR but not charge-sheeted or who have been discharged?
Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh."
19. While deciding the application under Section 319 of Cr.PC., this Court is not concluding with any material evidence alleged as against respondents-accused Nos.2 to 4 as it is not proving the guilt or proving the case as against them and it is only a prima facie case made out against respondents-accused Nos.2 to 4 to face the trial.
20. The Hon'ble Apex Court, in its Constitutional Bench judgment in the case of Sukhpal Singh v. The State of Punjab reported in 2022 LiveLaw(SC) 1009,
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 has laid down certain guidelines to be followed while exercising power under Section 319 of Cr.PC. at Clause-III of para-33, which reads as under:
""xxxxxxxxxxxxxxxx III. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?"
(i) If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.
(ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
(iii) If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
(iv) If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.
(v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
(vi) If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
(viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re- hearing.
(x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.
(xii) If, in that circumstances, the decision is to hold a separate trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."
21. In view of the judgments cited herein supra of the Hon'ble Apex Court, it is apparently clear that the
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 power is vested with the trial Court to summon the additional accused or those persons who were not included in the FIR and dropped in the chargesheet, where there is a prima facie case made out against the said accused by way of materials, both oral and documentary. Though it is not in dispute that such power should be exercised with circumspection unless there is sufficient material placed by the prosecution to implicate them to face the trial, this Court is conscious that it is not expressing any opinion against the accused as it is only a prima facie case to implicate and include/summon respondents-accused Nos.2 and 3 to face the trial.
22. With regard to respondent-accused No.4, I do not find any cogent reason, which would warrant the implication of respondent-accused No.4 as no material is placed before the Court to summon the said accused to face the trial, as it is only a mere statement made by the complainant that accused No.4 had assisted accused No.1 in hiding at Dandeli, prior to filing of the complaint.
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022 Therefore, I am in agreement with learned counsel for respondent No.4 that there is no case made out to implicate and summon accused No.4 to face the trial, so also, the order passed by the trial Court as regards respondent-accused No.4.
23. Coming to the question of implication and summoning of respondents-accused Nos.2 and 3, the parents of accused No.1. Prima facie materials are placed on record, so also, the evidence adduced by PWs.9 and 14 for implication of accused Nos.2 and 3 to face the trial. The accused are liable to face the trial on the basis of the materials that are placed before the Court.
24. In view of the above discussions and submissions made by learned counsels for both parties and answering questions laid down by this Court with regard to illegality and the error committed by the trial Court, I answer the question as under:
i) There is a prima facie case made out to summon respondents-accused Nos.2 and 3 to face the trial;
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NC: 2024:KHC:32532 CRL.RP No. 375 of 2022
ii) I do not find any good ground, cogent reasons or materials placed on record to summon or implicate respondent-accused No.4.
25. Accordingly, I pass the following:
ORDER
i) Criminal Revision Petition is disposed off;
ii) The impugned order dated 27.01.2022 passed by I Additional District and Sessions Judge, Chickballapur in Spl.SC.No.49/2020 as regards respondent Nos.2 and 3-accused Nos.2 and 3 is hereby set aside. The application filed by the prosecution under Section 319 of Cr.PC. to summon accused Nos.2 and 3 is allowed.
Accused Nos.2 and 3 shall face the trial before the trial Court;
iii) The impugned order passed by the trial Court as regards respondent No.4-accused No.4 namely, Tejas M. is sustained and the same is not interfered.
Sd/-
(PRADEEP SINGH YERUR) JUDGE LB List No.: 1 Sl No.: 37