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Karnataka High Court

Yamunappa Basappa Aryar And Ors vs The State Of Karnataka on 22 January, 2020

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

           IN THE HIGH COURT OF KARNATAKA

                  KALABURAGI BENCH

       DATED THIS THE 22ND DAY OF JANUARY, 2020

                        BEFORE

  THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.200083/2019

Between :

1. Yamunappa Basappa Aryar,
   Age: Major,
   Occ: Military Service,

2. Gangappa Basappa Aryar,
   Age: 25 years,
   Occ: Agriculture,

3. Savitri
   W/o Shankreppa Chaluvadi,
   Age : Major,
   Occ: Household,

  All are R/o Nagaur,
  Tq: Basavana Bagewadi,
  Dist. Vijayapura-586101.              .. Petitioners

   ( By Sri Shivanand V. Pattanashetti, Advocate )

And:

The State of Karnataka,
R/by Addl.SPP,
High Court of Karnataka,
Kalaburgi Bench-585103.
(Through Basavana Bagewadi P.S.
                                         Crl.RP.No.200083/2019
                             2




Dist: Vijayapur-586101).                   .. Respondent

( By Sri Mallikarjun Sahukar, HCGP)

       This Criminal Revision Petition is filed under Section
397 read with Section 401 of Cr.P.C. praying to set aside
the impugned order dated 4.5.2019, passed in Spl.
(POCSO) No.48/2017, by the II Addl.District and Sessions
Judge at Vijayapur and consequently discharge the
petitioners.

     This Criminal Revision Petition coming on             for
Admission this day, the Court made the following:

                           ORDER

In Special Case (POCSO) No.48/2017, pending in the Court of learned II Addl.Sessions and Special Judge, Vijayapura, (hereinafter for brevity referred to as `trial Court'), the trial Court by allowing the application filed by the State under Section 319 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.'), by its order dated 4.5.2019, impleaded the present petitioners as accused Nos.2, 3 and 4 respectively. Challenging the said order, the said accused Nos.2, 3 and 4 have preferred this petition.

3

2. Learned counsel for the petitioners in his argument canvassed only one point that before considering the application under Section 319 of Cr.P.C., the Court below ought to have issued notice to the present petitioners and only after hearing them, the trial Court ought to have disposed of the said application filed under Section 319 of Cr.P.C. In the absence of giving any notice to them and without hearing the present petitioners/proposed accused, the trial Court has passed the impugned order, as such, the same is not sustainable. In his support, he relied upon two unreported judgments of Co-ordinate Benches of this Court in Smt.Asha and others vs. State of Karnataka, Criminal Revision Petition No.231/2016, decided on 30.3.2016, and in Sri M.Basappa and others vs. State by Birur Police Station, Criminal Petition No.380/2027, decided on 4.12.2017.

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In both the above judgments, the Co-ordinate Benches of this Court after relying upon few judgments of Hon'ble Apex Court, have observed that before considering the application under Section 319 of Cr.P.C., the Court is required to issue notice to the proposed accused whose inclusion in the case as an accused is sought by the applicant. According to the petitioners in the instant case, the trial Court before passing the impugned order has not issued any notice to them, as such, they did not appear and contest the application.

Learned High Court Government Pleader fairly concedes that no such notice was ordered by the Court below.

A perusal of the certified copy of the proceedings sheet maintained by the Special Court in Special Case (POCSO) No.48/2017, would go to show that on Crl.RP.No.200083/2019 5 7.3.2019, the State through Special Public Prosecutor has filed an application under Section 319 of Cr.P.C. seeking inclusion of present petitioners as accused Nos.2, 3 and 4 in the said case, which was filed for the offences punishable under Sections 448, 504 of Indian Penal Code and under Section 11(1), 11(iv) and 12 of Protection of Children from Sexual Offences Act, 2012. The trial Court without giving any notice to the proposed accused (the petitioners herein) on the said application, invited the objections, if any, from the sole accused who was before it and thereafter hearing on the application from both side before it, proceeded to pass the impugned order on 4.5.2019, allowing the application and arraigning the present petitioners as accused Nos.2, 3 and 4 in the matter. In the said process, the trial Court till it passed the impugned order, did not notify the present petitioners about Crl.RP.No.200083/2019 6 such an application filed by the State seeking their impleadment as accused Nos.2, 3 and 4 respectively.

In the light of the above, since the trial Court was required to issue notice upon the proposed accused before proceeding on the application filed by the applicant/State under Section 319 of Cr.P.C., and since it has not issued the same, the order under challenge deserves to be set aside and the application filed by the applicant/State under Section 319 of Cr.P.C. requires to be restored on the file of the trial Court for its hearing afresh and in accordance with law and after issuing notice to the proposed accused shown in the said application. At the same time, in order to avoid any further delay in the pending Special Case (POCSO) No.48/2017, it is considered fair to direct the petitioners herein to appear before the trial Court to receive the notice if ordered by the trial Crl.RP.No.200083/2019 7 Court, so that the time that would be taken for the service of notice upon them could be saved.

Accordingly, the Criminal Revision Petition stands allowed in part. The impugned order dated 4.5.2019, passed by the learned II Addl.District and Sessions Judge, Vijayapura, in Special Case (POCSO) No.48/2017, allowing the application filed under Section 319 of Cr.P.C., is set aside and the application filed by the applicant/State under Section 319 of Cr.P.C. in the trial Court is restored on its file, with a direction to the trial Court to issue notice to the proposed accused (petitioners herein) on the said application and give them an opportunity to hear on the said application and then proceed to dispose of the said application in accordance with law.

The petitioners herein are directed to appear before the trial Court without anticipating any fresh Crl.RP.No.200083/2019 8 notice or summons by the trial Court on the said application filed under Section 319 of Cr.P.C., on 10.2.2020.

Registry to transmit a copy of this order to the Court below immediately.

Sd/-

JUDGE bk/