Karnataka High Court
Akkamma W/O. Shekharagoud Mulagund vs State Of Karnataka on 22 February, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 100177 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 100177 OF 2015
BETWEEN:
1. AKKAMMA W/O. SHEKHARAGOUD MULAGUND
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KALLAPUR, TQ: NARAGUND,
DIST: GADAG.
2. SHEKHARAGOUDA BASANAGOUDA YALLAPPAGOUDRA
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KONNUR, TQ: NARAGUND
DIST: GADAG.
3. MALLANAGOUDA PARVATAGOUDA YALLAPPAGOUDRA
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KONNUR, TQ: NARAGUND,
DIST: GADAG.
4. SHIVANAGOUDA MALLANAGOUD YALLAPPAGOUDRA
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KONNUR, TQ: NARAGUND
DIST: GADAG.
Digitally signed
by SUJATA
SUBHASH
PAMMAR
5. HEMANNA YAMANAPPA TIMMAPUR
Location: HIGH
COURT OF
KARNATAKA
AGE: MAJOR, OCC: AGRICULTURE,
DHARWAD
R/O. KONNUR, TQ: NARAGUND,
DIST: GADAG.
6. RAMJANASAB MUKTUMSAB NADAF
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KONNUR, TQ: NARAGUND,
DIST: GADAG.
7. IRAPPA YALLAPPA BALANNAWAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KONNUR, TQ: NARAGUND,
DIST: GADAG.
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CRL.RP No. 100177 of 2015
8. HANUMANTAGOUDA VENKANAGOUDA BHUSANNAWAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KONNUR, TQ: NARAGUND,
DIST: GADAG.
9. UMESHGOUDA SHANKARGOUDA PATIL
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KAPPALI, TQ: NARAGUND,
DIST: GADAG.
...PETITIONERS
(BY SRI M. B. GUNDWADE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
THROUGH NARGUND POLICE
2. SRI ISHWAR S/O YALLAPPA SUNKAD
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: KONNUR, TQ: NARAGUND,
DIST: GADAG.
...RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1,
SRI T. R. PATIL, ADVOCATE FOR R2)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL
PROCEDURE, 1973, SEEKING TO ALLOW THE PETITION AND
THEREBY SETTING ASIDE THE ORDER DATED 01.08.2015, PASSED
BY THE ADDL. DIST. & SESSIONS JUDGE, GADAG, IN
S.C.NO.34/2011, REGISTERED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 143, 147, 148, 302, 307, 323, 324, 427, 504
READ WITH SECTION 149 OF IPC, ETC.,.
THIS PETITION COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 100177 of 2015
ORDER
This revision is filed by the revision petitioners challenging the order passed by the learned Additional District and Sessions Judge, Gadag, in S.C.No.34/2011 dated 01.08.2015, whereby the learned Sessions Judge has allowed I.A. filed by the prosecution under Section 319 of Cr.P.C. and issued summons to the revision petitioners who are arrayed as the accused Nos.24 to 34.
2. The records disclose that the accused were prosecuted for the offences punishable under Sections 143, 147, 148, 302, 307, 323, 324, 427 and 504 read with Section 149 of IPC. The complaint was lodged against as many as 33 accused. After investigation, the investigating officer has submitted the charge sheet against 23 accused only. 10 accused referred in the complaint, were not sent for trial, who are revision petitioners before this Court. Subsequently, after framing charge, the trial has commenced and prosecution has examined as many as 34 witnesses. During the course of the trial, PW.7 who is the -4- CRL.RP No. 100177 of 2015 complainant has reiterated the complaint allegations and also referred the name of revision petitioner Nos.1, 2 and 5 to 9 regarding their presence and they were holding deadly weapons as well as revision petitioner No.1 assisting the other accused by providing the weapons. After examination of 34 witnesses and after long lapse of time, the prosecution has moved an application under Section 319 of Cr.P.C. on 18.04.2015 for summoning the revision petitioners as accused Nos.24 to 34. The learned Sessions Judge after hearing has allowed the application and summoned them as an accused. This order is being challenged in this revision petition.
3. Heard the arguments advanced by the learned counsel for the revision petitioners as well as the learned High Court Government Pleader and learned Counsel appearing for respondent No.2. Perused the records.
4. The learned counsel for the revision petitioners would contend that the application under Section 319 of Cr.P.C. itself is filed at the belated stage and after -5- CRL.RP No. 100177 of 2015 examining of all the witnesses including the investigating officer. He would also contend that for moving an application under Section 319 of Cr.P.C. there should be cogent evidence, which is more than probable case and in this context, he placed reliance on number of citations. Hence, he would contend that there is no application of mind by the learned Sessions Judge and he has vaguely placed reliance on the evidence of PWs.7 to 9 and proceeded to issue process which has resulted in miscarriage of justice. Hence, he would seek for allowing the revision petition by setting aside the impugned order of the learned Sessions Judge.
5. Per contra, the learned High Court Government Pleader and the learned counsel for respondent No.2 would contend that delay in filing the application itself is not a ground for rejecting the application. In this context, they placed reliance on the decision of the Constitutional Bench of the Hon'ble Apex Court, wherein certain guidelines have been laid down by filing an application under Section 319 -6- CRL.RP No. 100177 of 2015 of Cr.P.C. before the learned Magistrate or the Sessions Court as the case may be. They would also contend that considering these guidelines, the application under Section 319 Cr.P.C. can be even filed before the pronouncement of the judgment or even before pronouncement of sentence. Hence, they would contend that the application is maintainable. They would assert that PW.7 specifically referred the name of assailants and there is material evidence. Hence, they would contend that the learned Sessions Judge is justified in allowing the application and sought for rejection of the revision petition.
6. On perusal of the records, it is evident that the names of present revision petitioners are referred in the complaint. However, the investigating officer while submitting the charge sheet did not send these revision petitioners for trial and has shown specific reasons for not sending them for trial for lack of evidence. Thereafter, charge was framed after committal of the matter and the learned Sessions Judge proceeded with the trial. As many -7- CRL.RP No. 100177 of 2015 as 34 witnesses were also examined including the investigating officer. During this period, the application was moved by the prosecution relaying on the evidence of PWs.7, 8 and 9. On perusal of the evidence of PW.7 it reveals that there is reference of overt-act as against revision petitioner No.1/Akkamma. Further the evidence of PW.7 refers the presence of revision petitioner Nos.2 and 5 to 9 without disclosing the specific overt-act. However, it is also asserted in the evidence of PW.7 that they were holding deadly weapons and they were part of unlawful assembly. The learned Sessions Judge has also asserted that there is consistent evidence of PW.7 supported by PWs.8 and 9. On perusal of evidence of PWs.8 and 9, it is evident that it is silent regarding presence of revision petitioners. Only PW.7 has stated to some extent regarding presence of revision petitioner Nos.1, 2 and 5 to
9.
7. The learned Sessions Judge has observed that the evidence of PW.7 is supported by the evidence of -8- CRL.RP No. 100177 of 2015 PWs.8 and 9. On a perusal of the evidence of PWs.8 and 9, it is evident that, it is silent regarding the revision petitioners. Only PW.7 has stated to some extent regarding revision petitioners Nos.1, 2 and 5 to 9. As regards revision petitioners No.3 and 4, there is absolutely no evidence in the prosecution case and what is the base for summoning them is not at all forthcoming. The learned Sessions Judge has not appreciated the evidence of PW.7 in this regard and as regards PWs.8 and 9, there is absolutely no material evidence.
8. The learned counsel for revision petitioner has placed reliance on a decision in the case of Kailash vs. State of Rajasthan and another, reported in (2008) 14 SCC 51 and invited attention of the Court to paragraph No.9 of the judgment wherein relying on various decisions of the Apex Court, it is observed that the Courts under section 319 of Cr.P.C. have extraordinary powers to be exercised sparingly and only if compelling reasons exist for -9- CRL.RP No. 100177 of 2015 taking cognizance against the other person against whom the action has not been taken.
9. Further, the learned counsel for revision petitioner has also placed reliance on a decision reported in (2014) 3 SCC 92 in the case of Hardeep Singh vs. State of Punjab, wherein the larger Bench of the Apex Court has laid down certain guidelines in paragraph No.105 and 106 of the said judgment. It is held that power under section 319 of Cr.P.C. is a discretionary and an extraordinary power to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is further observed that such powers can be used only where strong and cogent evidence occurs against a person from the evidence led before the Court. It is also observed that, only a prima facie case is to be established from the evidence led before the Court not necessarily tested on anvil of cross-examination and it requires much stronger evidence that mere probability of his complicity. It is held that the test that has to be
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CRL.RP No. 100177 of 2015applied is one which is more than prima facie case as exercised at the time of framing charge, but short of satisfaction to an extent that evidence, if goes unrebutted, would lead to conviction. It is further observed that, in the absence of such evidence, the Court should refrain from exercising power under section 319 of Cr.P.C. It is evident from the guidelines of Hardeep Singh's case (supra) that evidence should be more than a prima facie case and mere probability cannot be a ground but more concrete evidence is required.
13. In the instant case PW.7 no doubt has deposed regarding the overtact of the revision petitioner No.1- Akkamma. However the evidence of PW.7 simply disclose the presence of revision petitioners No.1, 2 and 5 to 9 being part of unlawful assembly by holding weapons. His evidence is also silent regarding revision petitioners No.3 and 4. PWs.8 and 9 did not whisper presence of present revision petitioners or their individual overtact and their evidence is completely silent. However the learned
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CRL.RP No. 100177 of 2015Sessions Judge has observed that there is material evidence of PWs.7 to 9 which is an erroneous observation and it disclose that the learned Sessions Judge has not appreciated the evidence in proper prospective. Further, the learned Sessions Judge has gone to the extent of considering the taking of cognizance under section 193 of Cr.P.C. which was unwarranted.
14. Looking to these facts and circumstances, the entire approach of the learned Sessions Judge is erroneous. As such the revision requires to be allowed in, but as regards revision petitioners No.3 and 4, the application is required to be dismissed. But as regards other revision petitioners, the matter requires to be remitted back to the learned Sessions Judge for reconsideration of the application in view of the observations made by the Apex Court as referred above. Hence, I proceed to pass the following:
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CRL.RP No. 100177 of 2015 ORDER i) The revision petition is allowed. ii) The application filed by the prosecution under section 319 of Cr.P.C. so far as it relates to revision petitioners No.3 and 4 stands dismissed.
iii) However, as regards revision petitioners No.1, 2, 5 to 9, matter is remitted back to the learned Sessions Judge with a specific direction to re-appreciate the entire evidence in view of the guidelines laid down by the Apex Court as observed in the body of the judgment and then pass appropriate orders in accordance with law.
iv) Send the copy of this order to the learned
Sessions Judge for information and
compliance.
Sd/-
JUDGE
SSP,MRK
List No.: 1 Sl No.: 17