Karnataka High Court
Sangangouda And Ors vs The State Of Karnataka on 12 July, 2018
1 CRL.RP.NO.200035/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION NO.200035/2018
BETWEEN:
1. Sangangouda S/o Mallappagouda Patil
Age: 36 years, Occ: Teacher
R/o Lakundi, Tq: Muddebihal
Dist: Vijayapura-586212
2. Harish S/o Nanagouda Biradar
Age: 28 years, Occ: Agriculture
R/o Lakundi, Tq: Muddebihal
Dist: Vijayapura-586212
3. Ashok S/o Basanagouda Biradar
Age: 30 years, Occ: Teacher
R/o Lakundi, Tq: Muddebihal
Dist: Vijayapura-586212
4. Prashant S/o Sanganagouda
Age: 32 years, Occ: Lecturer
BLDEA Institution
R/o Lakundi, Tq: Muddebihal
Dist: Vijayapura-586212
5. Kumargouda S/o Shekargouda Patil
Age: 40 years, Occ: Agriculture
R/o Kargnoor village, Tq: Muddebihal
Dist: Vijayapura
... Petitioners
(By Sri. R.S.Lagali, Advocate)
2 CRL.RP.NO.200035/2018
AND:
The State of Karnataka
Through the PSI, Hunasagi PS
Rep. by the Addl. State Public
Prosecutor, High Court of Karnataka
Kalaburagi Bench-585102
... 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 allow
this petition and thereby setting aside the order dated
22.06.2018 passed by District and Sessions Judge, Yadgiri
in Sessions Case No.98/21 (Arising out of Hunasagi P.S.,
Crime No.136/2009) on the application filed by the
prosecution under Section 319 Cr.P.C. seeking the
summoning of the petitioners to face trial for the offence
punishable under Sections 143, 147, 148, 324, 302, 504,
506 read with Section 149 IPC.
This petition is coming on for Admission this day, the
Court made the following:
ORDER
Heard.
2. This criminal revision petition arises out of the order dated 22.06.2018 passed by the Sessions Judge, Special Court, Yadgiri in Sessions Case No.98/2010 allowing the application of the prosecution 3 CRL.RP.NO.200035/2018 filed under Section 319 Cr.P.C. to summon the present petitioners as co-accused.
3. The proceedings of S.C.No.98/2010 were initiated on the complaint of PW.7 - Mallikarjun filed on 20.09.2009 alleging that on 20.09.2009 at 7.30 a.m. when himself and his uncle Ningappa were proceeding near the land of CW.9 - Shankreppa situated within the limits of Kolihal camp of Surpur taluk, due to some previous illwill accused Nos.1 to 13 and 7 to 8 other unnamed persons armed with clubs, stones, choppers and sword forming themselves into an unlawful assembly came in jeeps bearing Nos.KA-33/M-1032 and KA-28/A-0229 waylaid him and his uncle Ningappa. Despite Ningappa trying to escape they chased him and assaulted him with weapons on his head, neck, stomach and back, committed his murder and then carried the dead body in the vehicle and dropped near Kolihal village.
4 CRL.RP.NO.200035/2018
4. In the FIR, the present petitioners were shown as accused Nos.5, 7, 13, 14 and 17. The Investigating Officer dropped the present petitioners while filing the charge sheet stating that the offence against them is not proved. During the trial, the complainant was examined as PW.7. The alleged eyewitnesses were examined as PWs.7 and 8. PWs.7 to 9 in their evidence spoke about the overt-acts of the present petitioners.
5. The learned Public Prosecutor filed an application under Section 319 Cr.P.C. to summon the petitioners as co-accused. The Sessions Judge by the impugned order allowed the application and ordered to issue summons to them.
6. Sri R.S.Lagali, learned counsel for the petitioners submits in the compliant omnibus statement regarding the involvement of the petitioners were made and in complaint PWs.8 and 9 were not named as 5 CRL.RP.NO.200035/2018 eyewitnesses. He further submits that PWs.8 and 9 in their statement before the Investigating Officer have not named the present petitioners as accused. He submits that even before the court the evidence of PWs.7 to 9 is not consistent, particulars of overt acts of each of the petitioners with reference to the injuries inflicted, the parts of the body of victim subjected to assault are not stated. He further submits that the application to summon the petitioners filed after three years of the examination of PW.9.
7. In support of his contentions he relies upon the judgment of the Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab and Others and connected matters - 2014 AIR SCW 667.
8. Per contra Sri Mallikarjun Sahukar learned High Court Government Pleader seeks to support the impugned order on the ground that at the first instance in the FIR the names of the present petitioners figured 6 CRL.RP.NO.200035/2018 as accused. He further submits that PWs.7 to 9 in their evidence have clearly spoken to the presence of the petitioners and their overt acts. He submits that at the stage of summoning the co-accused under Section 319 Cr.P.C., it is sufficient if it appears to the court by the evidence on record that the case is made out against the accused.
9. In Hardeep Singh's case referred to supra it is held that an order to summon the witnesses can be passed even if once the accused were discharged and later it is found that there is material to proceed against them. Therefore, delay in filing the application itself is not a ground to quash such order. Moreover, in these proceedings the court is exercising the powers of revision. It is not like an appeal for re-appreciation of the evidence. Only thing to be satisfied is whether the order is correct, legal or proper.
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10. The Hon'ble Supreme Court in Hardeep Singh's case referred to supra on a reference on the point of summoning the accused under Section 319 Cr.P.C., laying the guidelines has held as follows :-
"98. Power under Sections 319, Cr.P.C. is a discretionary and an extra-ordinary 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.
99. 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 8 CRL.RP.NO.200035/2018 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 refrain from exercising power under Section 319, Cr.P.C. In Section 319, Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' 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, Cr.P.C. to form any opinion as to the guilt of the accused."
(Emphasis supplied)
11. In the light of such observation now this court has to see whether such material was pending 9 CRL.RP.NO.200035/2018 before the Sessions Court. The offence has taken place on 20.09.2009 at 7.30 a.m. On the very same day the complaint is registered at 12.00 noon and FIR is delivered to the Magistrate at 8.45 p.m. In the complaint it is said that because dead body was dropped at some other place delay occurred in filing the complaint. At the first instance itself the names of the petitioners figured in the complaint as the accused.
12. The statements of PWs.8 and 9 are recorded by the Investigating Officer on 22.09.2009 i..e, within two days from the date of the offence. It is true that their statements under Section 161 Cr.P.C did not contain the names of the petitioners but before the court they have named them. So far as PW.7 the names of the petitioners were revealed at the earliest point of time as accused. PW.1 was accompanying the victim and was the immediate eyewitness as per the complaint and his deposition before the court.
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13. Having regard to these facts the trial Court has held that from the evidence before it, it appears that the petitioners are guilty of the offence. Whether the evidence of such eyewitness shall be believed or not is a matter of appreciation of their evidence at the end of the trial.
14. Under the circumstances, it cannot be said that material before the Sessions Court fell short than the one envisaged in the judgment in Haradeep Singh's case. This court does not find any impropriety, incorrectness or illegality in the impugned order. Therefore, petition is dismissed.
In view of disposal of petition, I.A.No.1/2018 for stay does not survive and disposed of accordingly.
Sd/-
JUDGE Srt/sn