Karnataka High Court
Sri.Suresh Kallappa Kambale vs State Of Karnataka on 23 December, 2021
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
WRIT PETITION NO.147718/2020
C/W
CRIMINAL REVISION PETITION NO.100153/2020
IN W.P.NO.147718/2020
BETWEEN
1. NATAJI P. PATIL
AGE: 56 YEARS, OCC: LINEMAN
R/O: H.NO.882, KANGRALI B.K.
BELAGAVI, BELAGAVI CITY-590001.
2. AJEET M. PUJARI
AGE: 61 YEARS,OCC: ASST.
EXECUTIVE ENGINEER
R/O: PLOT NO.88
RAMATEERTH NAGAR
BELGAVI, BELAGAVI CITY-590001.
3. MALLASARJA S SHAPURKAR
AGE: 34 YEARS, OCC: LINEMAN
R/O: LAXMI GALLI, KAKATI,
BELAGAVI, BELAGAVI CITY-590001.
4. SUBASH M. HALLOLLI
AGE: 42 YEARS, OCC: JUNIOR ENGINEER
R/O: PLOT NO.417, CTS NO.647
H.D. KUMAR SWAMI LAYOUT
BELAGAVI, BELAGAVI CITY-590001.
5. IRAPPA M. PATTAR
AGE: 42 YEARS, OCC: LINEMAN
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R/O: H.NO.982, KUMBAR ONI
GHATAPRABHA, TQ: GOKAK
BELAGAVI, BELAGAVI CITY-590001.
6. MALLIKARJUN S. REDIHAL
AGE: 46 YEARS, OCC: OVERSEER
R/O: CCB NO.24 KPTCL QTRS.
NEHARU NAGAR, BELAGAVI
BELAGAVI CITY-590001.
7. BIMAPPA L. GODALKUNDARAGI
AGE: 57 YEARS, OCC: SENIOR ASSISTANT
R/O: PLOT NO.1903, RAMATEERTH NAGAR
BELAGAVI, BELAGAVI CITY-590001.
8. RAJENDRA B. HALINGALI
AGE: 32 YEARS, OCC:STATION ATTENDANT
R/O: C-1, KPTCL QTRS. SADASHIV NAGAR,
BELAGAVI, BELAGAVI CITY--590001.
...PETITIONERS
(BY SRI. JAYAKUMAR.S.PATIL, SENIOR COUNSEL
FOR SMT.SUNITH.P.KALASOOR., ADVOCATE)
AND
1. MALAMARUTHI POLICE STATION
BELAGAVI CITY, BELAGAVI
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD-580001.
2. TUKARAM BALESHI MAJJAGI
AGE: 61 YEARS, OCC:RETD. GOVT. SERVANT
R/O: CTS NO.4867/10, 1ST A, 2ND CROSS
SAMPIGE ROAD, SADASHIV NAGAR
BELAGAVI, BELAGAVI CITY-590001.
...RESPONDENTS
(BY SRI. VINAYAK.S.KULKARNI, ADVOCATE FOR R1;
SRI.V.M.SHEELVANT., ADVOCATE FOR R2).
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THIS WRIT PETITION IS FILED PRAYING TO SET ASIDE
THE ORDER PASSED BY PRINCIPAL SESSIONS JUDGE,
BELAGAVI IN S.C.NO.262/2019 PASSEDON 30.06.2020
PRODUCED AS ANNEXURE-E.
IN CRL.R.P.NO.100153/2020
BETWEEN
SRI.SURESH KALLAPPA KAMBALE
AGE: 53 YEARS, OCC:ACCOUNTS
OFFICER HESCOM-BELAGAVI DIVISION
R/O: APMC-MARKANDE NAGAR, BELAGAVI.
...PETITIONER
(BY SRI.NEELENDRA.D.GUNDE ADVOCATE)
AND
1. STATE OF KARNATAKA
BY MALMARUTHI POLICE STATION
R/BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD-580001.
2. MR. TUKARAM BALESHI MAJJAGI
AGE. 62 YEARS, OCC. PENSIONER
R/O. CTS-4867/10, 1ST AND 2ND CROSS
SAMPIGE ROAD, SADASHIV COLONY NAGAR
BELAGAVI-590001.
...RESPONDENTS
(BY SRI. VINAYAK.S.KULKARNI, ADVOCATE FOR R1;
SRI.V.M.SHEELVANT., ADVOCATE FOR R2).
THE CRL.R.P IS FILED U/S 397 R/W SECTION 401 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
30/06/2020 PASSED BY THE LEARNED PRL. SESSIONS JUDGE,
BELAGAVI IN S.C. NO.262/2019 THEREBY ALLOWING THE
APPLICATION FILED BY THE RESPONDENT U/S 319 OF CR.P.C.
BEING TRIED FOR THE OFFENCES PUNISHABLE U/S 195, 211,
420, 467, 468, 471 OF IPC AS AGAINST THE PRESENT
PETITIONER WHO IS ADDITIONAL ACCUSED NO.10 IN THE
INTEREST OF JUSTICE, IN THE INTEREST OF JUSTICE.
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THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 15.07.2021 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
COMMON ORDER
The petitioners in W.P.No.147718/2020 are accused Nos.2 to 9 and petitioner in Crl.R.P.No.100153/2020 being accused No.10 in Crime No.44/2017 of Malmaruti Police Station, Belagavi, which is now pending in S.C.No.262/2019 on the file of the learned Prl. District and Sessions Judge, Belagavi (for short, 'trial Court'), are before this Court seeking to quash the criminal proceedings initiated against them for the offence punishable under Sections 195, 211, 420, 465, 120B, 468, 192, 471, 467 read with Section 34 of Indian Penal Code, 1860 (for short, 'IPC').
2. Brief facts of the case are that respondent No.2/complainant was working as Executive Engineer in HESCOM Belagavi. It is stated that accused No.1 was also working in HESCOM. She was transferred from Rural Sub-Division to O & M Urban Division. As a result of which, agitations were started against respondent No.2 seeking cancellation of her transfer. In -5- the meantime, accused No.1 filed a complaint against respondent No.2 and others with M.D., HESCOM and the said complaint was referred to the Women's Grievance Redressal Committee to enquire into the matter. The Committee enquired into the allegations and filed the report stating that the said complaint is false. It is stated that in the meantime, accused No.1 filed a criminal complaint against respondent No.2 in Crime No.286/2014 of Malmaruti Police Station for the offence punishable under Section 354-A, 341, 504, 506 read with Section 34 of IPC. On 19.11.2014, respondent No.2 was apprehended and was remanded to the judicial custody for a day. It is stated that on 23.01.2015, accused No.1 again filed a criminal case against respondent No.2 alleging commission of the offence punishable under Sections 506 and 504 of IPC which was registered in Crime No.25/2015. It is stated that accused No.1 filed one more information with Malmaruti Police against respondent No.2 alleging commission of the offence punishable under Sections 306, 511, 119 of IPC on 03.02.2015, which was registered in Crime No.26/2015. Respondent No.2 was apprehended and remanded to judicial custody. -6-
3. It is stated that the Investigating Officer investigated into all the criminal cases registered against respondent No.2 and filed B reports stating that no materials were made available to file the charge sheet. The jurisdictional Magistrate accepted the 'B' reports in all the four cases which were registered on the basis of the first information lodged by the accused No.1 against respondent No.2.
4. Being aggrieved by the same, accused No.1 filed Crl.P.No.54/2016 and 55/2016 challenging acceptance of B report in Crime Nos.286/2014 and 19/2015 of Malmaruti Police Station. During the pendency of these criminal petitions, accused No.1 filed an affidavit stating that she was instigated to file false complaints against respondent No.2, by accused Nos.2 to 10 who are the petitioners herein. After noting the filing of the affidavit, both the criminal petitions were came to be dismissed.
5. It is stated that accused No.1 with others concocted the letter head of KPTCL Employees Union, signed by accused No.2 as Vice President and submitted to S.E.E. and M.D. HESCOM insisting for suspension of respondent No.2. It is stated that accused Nos.3 to 10 have also signed the said -7- representation. Acting on the said representation, S.E.E. addressed a confidential letter to General Manager, HRD, HESCOM asking for taking action against respondent No.2. Acting on the same, respondent No.2 was kept under suspension during enquiry. Thus, it is stated that all the accused conspiring together hatched a plan to remove respondent No.2 from his job, made representations to various Ministers, MLAs, Police Officers, Deputy Commissioner etc. demanding apprehension of respondent No.2. All these developments were widely published in print and electronic media.
6. In view of the above, respondent No.2 filed the first information against accused Nos.1 to 10 in Crime Nos.44/2017, 45/2017, 46/2017 before Malmaruti Police Station alleging commission of various offences as stated above, punishable under Sections 192, 211, 195, 120-B, 420, 467, 468, 471 read with Section 34 of IPC. It is contended by respondent No.2 that all these accused conspiring together hatched a plan to see that he is humiliated and either transferred or suspended from service, fabricated false documents, forged signatures, made false allegations and cheated him. Even the higher officers in -8- HESCOM and the Police Officers have used the forged and fabricated documents as genuine making false accusation.
7. It is stated that respondent No.2 also filed a private complaint in PCR No.88/2017 before the II J.M.F.C. Court at Belagavi against accused Nos.1 to 10 alleging commission of the offence punishable under Section 500 of IPC as they have defamed him making all sorts of false allegations. It is stated that the said private complaint in PCR No.88/2017 was came to be dismissed by the learned Magistrate on 09.06.2017. Being aggrieved by the same, respondent No.2 filed Crl.R.P.No. 277/2017 before the learned 11th Addl. District and Sessions Judge, Belagavi. Vide order dated 17.08.2017, the said Criminal Revision Petition was came to be allowed and cognizance for the above said offence was taken against the accused.
8. It is stated that accused Nos.2 to 10 have challenged the impugned order passed by the learned 11th Addl. District and Sessions Judge, Belagavi, setting aside the order passed by the learned Magistrate dismissing the PCR No.88/2017 and taking cognizance of the offence against them and also challenged the criminal proceedings initiated against them in Crime -9- Nos.44/2017, 45/2017 and 46/2017 of Malmaruti Police station by filing various petitions before this Court i.e., Crl.R.P.Nos.100261/2017, 100253/2017, Crl.P.No.101338/2017, 101339/2017, 101340/2017, W.P.Nos.105120-105123/2017, W.P.Nos.105198-1055201/2017, W.P.Nos.105124-105127/2017, W.P.Nos.105202-105205/2017, W.P.Nos.105128-105131/2017 and W.P.Nos.105206-105209/2017. It is stated that all these petitions were came to be allowed vide impugned order dated 16.01.2018 passed by this Court. However, accused No.1 had not challenged the order passed by the learned 11th Addl. District and Sessions Judge, Belagavi in Crl.R.P.No.277/2017.
9. It is stated that respondent No.2 herein filed Special Leave Petition before the Hon'ble Apex Court in SLP (Crl.)Nos.5064-5065/2018 and 6055-6081/2018 challenging the impugned order dated 16.01.2018 passed by this Court quashing the criminal proceedings initiated against accused Nos.2 to 10. However, all these SLPs were came to be dismissed vide order dated 06.03.2019. It is stated that while dismissing the SLPs, liberty was given to the trial Court to exercise all the powers including one under Section 319 of Cr.P.C. even against accused
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Nos.2 to 10, if and when occasion arises, since criminal proceeding against accused No.1 was pending.
10. In the meantime, the Investigating Officer filed charge sheet against accused No.1 for the offence punishable under Sections 211, 420, 467, 468, 471 read with Section 34 of IPC in Crime No.44/2017 of Malmaruti Police station, and sought permission of the learned Magistrate to club Crime Nos.44 and 45/2017 with it. Learned Magistrate took cognizance of the offence against accused No.1 for the above said offences and committed the case to the learned District and Sessions Judge Court wherein it is numbered as S.C.No.262/2019.
11. It is stated that accused No.1 was summoned before the learned Sessions Judge to answer the charge. She pleaded not guilty and thereafter, the prosecution examined PWs-1 to 6 and got marked Exs.P-1 to P-44.
12. It is stated that PW-1 who is respondent No.2 herein deposed before the Court about commission of the offence by accused Nos.2 to 10 along with accused No.1. It is stated that both PWs-1 and 2 are the victims of the crime, PWs-3 and 6 are
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is the higher officers and PWs-4 and 5 are the panchas who have deposed in respect of the case of the prosecution. On the basis of all these materials, the prosecution filed an application under Section 319 of Cr.P.C. praying to proceed against the proposed accused Nos.2 to 13, for the above said offences. The said application was came to be allowed by the learned Prl. District and Sessions Judge, Belagavi, vide order dated 30.06.2020 and arrayed the petitioners herein as accused Nos.2 to 10 along with other accused.
13. Being aggrieved by the impugned order dated 30.06.2020 allowing the application under Section 319 of Cr.P.C., accused Nos.2 to 9 are before this Court in W.P.No.147718/2020 and accused No.10 has filed Crl.R.P.No.100153/2020.
14. Heard Sri Jayakumar S. Patil, learned Senior Counsel for Smt. Sunita P. Kalasoor, learned counsel for petitioners in W.P.No.147718/2020, Sri Neelendra D. Gunde, learned counsel for revision petitioner in Crl.R.P.No.100153/2020, Sri Vinayak S. Kulkarni, learned A.G.A. for respondent No.1/State and Sri V.M. Sheelavant, learned counsel for respondent No.2/complainant.
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15. Learned Senior Counsel for learned counsel for the writ petitioners submitted that these petitioners have challenged the order taking of the cognizance of the offence alleged against them by filing various criminal petitions and revision petitions as stated above before this Court, which were came to be allowed vide order dated 16.01.2018. Even though Special Leave Petitions were filed before the Hon'ble Apex Court, the same were came to be rejected vide order dated 06.03.2019. Even though liberty is reserved to invoke Section 319 of Cr.P.C., the said liberty was given to be exercised in the private complaint filed by respondent No.2 for the offence punishable under Section 500 of IPC but not in the police instituted criminal case. When this Court as well as the Hon'ble Apex Court after considering all the materials on record came to the conclusion that there are no materials to proceed against these petitioners, implicating the petitioners as accused Nos.2 to 10 invoking Section 319 of Cr.P.C. by the trial Court is apparently exceeding its limits and passing the perverse order. No fresh materials were made available to invoke Section 319 of Cr.P.C. and to implicate these petitioners after the criminal proceedings were
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quashed against them. These petitioners are in no way concerned with the complaint that was filed by accused No.1 against respondent No.2 and the various developments thereafter. None of the penal provisions are applicable against these petitioners. Under such circumstances, the trial Court could not have allowed the application under Section 319 of Cr.P.C. implicating these petitioners as accused Nos.2 to 10. It is nothing but abuse of process of the Court, when there are absolutely no materials to proceed against these petitioners. Therefore, the learned Senior Counsel prays for allowing the writ petition in the interest of justice.
16. Learned counsel for revision petitioner relied on the decision in Ram Singh Vs. Ram Niwas1 to contend that mere existence of prima facie case is not sufficient to exercise the jurisdiction under Section 319 of Cr.P.C. but the materials that are available on record if un-rebutted lead to the conviction of the accused, then only such a discretion could be exercised.
17. Learned senior counsel also raised objection for the learned counsel Sri.V.M.Sheelavant., who is incidentally 1 (2009) 14 SCC 25
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appointed as State Public Prosecutor to represent respondent No.2-complainant. I.A.No.1/2021 was also filed under Section 226 of Constitution of India to take note of the fact that the State Public Prosecutor is representing the complainant. He further submitted that even though there is no bar for the State Public Prosecutor to represent the complainant when the state is represented by learned Additional Government Advocate, He submits that the propriety demands for exercising restraint for such representation as the status of the complainant or the accused as an individual is the same and equal before the State.
18. Sri Neelendra D. Gunde, learned counsel representing the revision petitioner/accused No.10 in Crl.R.P.No.100153/2020 reiterated the submissions of the learned Senior Counsel and submitted that accused No.10 also stands on the similar footing and the criminal proceedings instituted against him was also quashed by this Court and upheld by the Hon'ble Apex Court. Under such circumstances, the application under Section 319 of Cr.P.C. should have been dismissed by the trial court. Accordingly, he prays for allowing
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the criminal revision petition by setting aside the impugned order passed by the trial Court.
19. Per contra, learned counsel for respondent No.2/complainant contended that at the time of filing the first information against all the accused, respondent No.2 was not having all these materials which were now collected by him. He examined himself as PW-1 and got examined PWs-2 to 6 before the trial Court and got marked Exs.P-1 to P-44. PWs-1 and 2 are the victims of the crime, who spoke about the commission of the offence by all the accused with the support of the documents. PW-3 is the senior officer of the respondent No.2 who spoke about the act of accused Nos.1 to 10 in insisting him for suspension of respondent No.2. This witness also spoke about writing confidential letter to General Manager, HESCOM, Hubballi, to initiate action against respondent No.2 and also spoke about the letter submitted by accused No.2 in the letterhead of the Employees' Union which is a fabricated document. Witness also stated that he had written one more letter to the General Manager, HESCOM as it is revealed that accused No.2 was not the Vice President of the Union and it was
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one Y.N. Nittur who was the Vice President and therefore, requested to ignore his earlier letter for initiation of action against respondent No.2. PWs-4 and 5 are the Panchas who spoke about taking of sample signatures of the accused for comparison, under a panchanama.
20. Learned counsel submitted that the disputed signatures with the admitted ones were forwarded to Forensic Lab for comparison and for report. The Forensic Lab Report is also received with the opinion that the disputed signatures tallies with the admitted/sample signatures. He further submitted that PW-6 is the Senior Officer of accused No.1 who spoke about lodging of complaint by accused No.1 against him and also against PWs-1 and 2. The witness also spoke about issuance of show cause notice, submission of explanation and the conspiracy of accused No.1 with others, including the petitioners, the concoction of false documents etc. and forwarding the complaints to the Chief Minister, Ministers etc. Thus, learned counsel submitted that these are all the additional materials that were made available before the trial Court which are sufficient to allow the application under Section 319 of Cr.P.C. and therefore,
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the trial Court rightly allowed the application and arrayed these petitioners as accused Nos.2 to 10. There is no illegality or perversity in the impugned order and both petitions are to be dismissed as devoid of merits.
21. Learned counsel for respondent No.2 opposing the submissions made by learned Senior Counsel with regard to he representing the complainant contended that, he is not opposing the State by representing the complainant. But on the other hand the state is supporting the prosecution against the accused and supporting the cause of the complainant. There is absolutely no bar for the State Public Prosecutor from representing the complainant in the present case, where there is no conflict of interest between two. Hence, he prays for dismissal of I.A.No.1/2021 as divide of merits.
22. Learned counsel for respondent No.2 relied on the decisions of the Hon'ble Apex Court in Municipal Corporation of Delhi Vs. Ram Kishan Rastogi and others2 to contend that if the prosecution can at any stage produce evidence which satisfies the Court that the order accused or those who have not 2 AIR 1983 SC 66
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been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused.
23. Learned Additional Government Advocate for respondent No.1/State supporting the contentions of respondent No.2 submitted that there are sufficient materials to constitute the offence alleged and the trial Court considered all the materials on record and came to be conclusion that there are sufficient materials to proceed against these petitioners and others. There is no illegality or perversity in the order and therefore, he prays for dismissal of both the petitions.
24. Perused the materials on record.
25. In the light of the rival submissions, the point that would arise for my consideration is,
1. Whether the application in I.A.No.1/2021 filed under Section 226 of Constitution of India is liable to be allowed ?
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2. Whether the criminal proceedings initiated against these petitioners/accused Nos.1 to 10 in both the petitions is liable to be quashed?
26. My answer to above the points are in the 'negative' for the following:
REASONS
27. Considered the contention taken by the learned Senior counsel raising objection for the learned counsel for the complainant to represent him in view of the fact that he is appointed as State Public Prosecutor. I do not find any reason to bar learned counsel from representing the complainant on the ground that he is also acting as State Public Prosecutor in his official capacity. His appointment as State Public Prosecutor will not bar him from representing respondent No.2 when admittedly there is no conflict of interest between the State and respondent No.2. I find the contention of the State in the present case on par with the contention of respondent No.2 and the learned Additional Government Advocate is supporting the say of respondent No.2 in favour of arraying the petitioners as accused and subjecting them for criminal trial. Therefore, I do not find
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any reason to entertain the I.A.No.1/2021. Accordingly, I answer point No.1 in the negative.
28. In view of the elaborate argument addressed by the learned Senior Counsel for the petitioner and the learned counsel for the respondents, I deem it proper to consider the position of law with regard to the initiation of the proceedings against the petitioners on the basis of the evidence lead by respondent No.2 and other witnesses before the trial Court, as provided under Section 319 of Cr.P.C.
29. The Hon'ble Apex Court in Ram Singh and others (supra) considered the requirement to exercise the jurisdiction under Section 319 of Cr.P.C. and held in paragraph 20 as under:
"20. The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word "appears". What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case. The High Court furthermore committed a serious error insofar as it
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failed to take into consideration that when the order dated 29-05-2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly".
(emphasis supplied)
30. In Hardeep Singh (supra), the Hon'ble Apex Court considered its various earlier decisions on the subject and summed up the conclusion as under:
"117. We accordingly sum up our conclusions as follows:
Questions (i) and (iii)
--What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND
-- Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
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Answer 117.1. In Dharam Pal3 case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till "evidence" under Section 319 Cr.P.C. becomes available for summoning an additional accused. 117.2.Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C., and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge- sheet.
117.3. In view of the above position the word "evidence" in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. 3 (2014) 3 SCC 306
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Question (ii)- Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? Answer 117.4. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question (iv) -- What is the nature of the satisfaction required to invoke the power
under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer 117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took
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cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question (v) -- Does the power under Section 319 Cr.P.C. extend to persons not named in the 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 Cr.P.C. 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 Cr.P.C. has to be complied with before he can be summoned afresh".
(emphasis supplied)
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31. In Rajesh Alias Sarkari and another (supra), the Hon'ble Apex Court relying on its earlier decisions including Hardeep Singh (supra) held that the trial Court as well as the High Court have not committed any error in summoning the accused to face the trial under Section 319 Cr.P.C.
32. In Municipal Corporation of Delhi (supra), the Hon'ble Apex Court has held as under:
"17. Although we uphold the order of the High Court we would like to state that there are ample provisions in the Code of Criminal Procedure, 1973 in which the Court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused. In the old Code, Section 351 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused. The Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and Section 319 of the present Code gave full effect to the recommendation of the Law Commission by removing the lacuna which was found to exist in S. 351 of the old Code.
18. This provision gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused. This provision was also the subject matter of a decision by this Court in Joginder Singh v. State of Punjab, (1979) 2 SCR
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306: (AIR 1979 SC 339) where Tulzapurkar, J., speaking for the Court observed thus:-
"A plain reading of section 319 (1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused."
19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this, we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully
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satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it."
(emphasis supplied)
33. If the allegations made against the petitioners herein are considered, the same is of serious in nature. A private complaint was filed by respondent No.2 against the petitioners for the offence punishable under Section 500 of IPC and there was also a criminal complaint, which are registered in Crime No.44/2017 of Malamaruti police station alleging commission of the offence punishable under Section 211, 420, 467, 468 and 478 read with Section 34 of IPC. The petitioners have approached this Court challenging the order passed by the revisional Court taking cognizance of the offence in the private complaint that was filed by respondent No.2. The said petition was allowed.
34. Respondent No.2 herein filed crime No.44/2017 along with Crime Nos.45/2017 and 46/2017 of Malmaruti police station against accused Nos.1 to 10 alleging commission of the offence punishable under Sections 192, 211, 195, 120B, 420, 467, 468 and 471 read with Section 34 of IPC.
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35. Since, the learned Magistrate took cognizance of the offence, accused Nos.2 to 10 have approached this Court by filing various writ petitions, seeking quashing of the criminal proceedings. The Criminal Revision Petitions were also filed, seeking similar relief's. It is pertinent to note that criminal petition Nos.100261 and 100253 of 2017 were filed by accused Nos.2 to 10 impugning the order passed by the revisional Court in Crl.R.P.No.277/2017, where under the impugned order passed by the trial Court dismissing the private complaint in PCR No.88/2017 was set-aside. All these writ petitions and criminal petitions were considered by this Court and vide common order dated 16.02.2019 allowed all the petitions. Consequently, all the impugned orders challenged were set-aside. Respondent No.2 approached the Hon'ble Apex Court by filing Special Leave appeal Nos.5064-5065 of 2018 impugning the orders passed in Crl.P.Nos.100261/2017 and 100253/2017.
36. The Hon'ble Apex Court while dismissing the Special Leave Petitions held that the private complaint will proceeded against remaining accused in accordance with law, which would include that the trial Court may exercise all powers including
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under Section 319 of Cr.P.C even against the concerned respondents if and when the occasion arises. Therefore, it is the contention of the learned Senior Counsel that the said liberty was reserved to invoke Section 319 of Cr.P.C before the trial Court only in the private complaint, but not in the police instituted criminal case.
37. In the present case, the facts and circumstances discloses that S.C.No.262/2019 was registered after taking cognizance against accused No.1 arising out of the complaint in Crime No.44/2017 of Malmaruti police station, for the offence punishable under Section 192, 211, 195, 120B, 420, 467, 468 and 471 read with Section 34 of IPC. During trial, PWs.1 to 6 were examined before the trial Court and thereafter an application under Section 319 of Cr.P.C was came to be filed seeking to initiate proceedings against the additional accused, who are petitioners before this Court. The said application was came to be allowed by the trial Court and the said order is being challenged by the petitioners.
38. I have considered the contentions of both the parties with regard to the applicability of Section 319 of Cr.P.C for
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proceeding against the petitioners. The trial Court under impugned order discussed at length about the materials that are available for proceeding against the petitioners and allowed the said petition.
39. Learned Senior counsel would contend that the finding given by the trial Court that the observations of the Hon'ble Apex Court is applicable to the entire common order is per say wrong since the Hon'ble Apex Court made such observation while dismissing the Special Leave Petition filed against dismissal of the private complaint by setting-aside the impugned order passed by the revisional Court. Therefore, it is contended that the said liberty cannot be made use of by the trial Court to invoke Section 319 of Cr.P.C, in the police instituted criminal case, which is pending before the trial Court in S.C.No.262/2019.
40. I have considered the submission made by the learned Senior Counsel in the light of the settled position of law in the matter of invoking Section 319 of Cr.P.C. The decision in Hardeep Singh (Supra), the Hon'ble Apex Court made it clear that where the materials disclose commission of the offence by
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any person other than the accused, the Court can proceed against such person and the Court need not have to wait for the evidence against the proposed accused to be summoned is tested by cross-examination. It is also held that the degree of satisfaction i.e., required to summon a person under Section 319 of Cr.P.C would be same as for framing a charge. The Hon'ble Apex Court also made it clear that Section 319 of Cr.P.C could be invoked to proceed against any person even though named in the FIR and charge sheet is not filed or is discharged, however, subject to requirement under Section 300 and 398 of Cr.P.C. The Hon'ble Apex Court in Municipal Corporation of Delhi (Supra) considered the authority under Section 319 of Cr.P.C in light of its earlier decisions on the subject and categorically held that the other accused those who have not been arrayed as accused against whom proceedings have been quashed could be arrayed as accused if it is shown that they have also committed the offence, the Court can take cognizance against them and try them along with the other accused. The Hon'ble Apex Court in the above decision made it clear that quashing of the criminal proceedings against any of the accused will not prevent the
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Court from exercising its discretion under Section 319 of Cr.P.C ,if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it. This finding of the Hon'ble Apex Court makes it clear that even in the absence of reserving any liberty with the trial Court to proceed against the accused against whom the criminal proceedings is already quashed, the trial Court can exercised its discretion under Section 319 of Cr.P.C and proceed against him if there are sufficient materials to take cognizance of the offence. Therefore, the contention of the learned senior counsel that the order referred to in the Special Leave petition only refers to the private complaint and not to the police instituted criminal case, makes no difference.
41. Now the question arises as to whether the trial Court was right in taking cognizance and proceeding against the petitioners under Section 319 of Cr.P.C on the basis of evidence which is led before it, when already materials placed before this Court was considered and criminal proceedings were quashed against the petitioners.
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42. On filing the first information by respondent No.2 against the accused alleging commission of the above said offences, FIR was came to be registered in crime No.44/2017 of Malmaruti police station. After holding investigation, the charge sheet was came to be filed, cognizance was taken, which was registered in S.C.No.262/2019. In the meantime, the said order taking cognizance of the offence was challenged before this Court by filing various writ petitions and criminal petitions by these petitioner which were came to be allowed by this Court as stated above, which are also confirmed by the Hon'ble Apex Court. But admittedly, the prosecution examined as many as six witnesses as PWs.1 to 6 and got marked Exs.P1 to 44. Respondent No.2 herein examined as PW1 and he categorically stated regarding commission of the offence against accused Nos.2 to 10 along with accused No.1. PWs.1 and 2 examined before the trial Court as victims of the crime, PWs.3 and 6 are their higher officers and PWs.4 and 5 are the panchas have spoken in detail about the commission of the offences by these petitioners.
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43. The trial Court refers to the evidence of these witnesses and forms an opinion that there are sufficient materials to proceed against these petitioners. The prosecution is also relying on the expert opinion produced before the Court to substantiate its contentions coupled with the oral evidence of PWs.1, 2, 3 and 6. As per the report/opinion of truth labs, after examining the disputed signatures with the admitted once, the person, who wrote standard signatures also wrote the question signatures found on the disputed documents. Under such circumstances, it cannot be said that there are no materials to proceed against the petitioners.
44. The evidence of PWs.1 to 6 as deposed before the Court, along with the documents that are exhibited are also produced before the Court. On going through all these materials on record, there are serious and specific allegations made against the petitioners, who are required them to answer the charge and to face the trial.
45. The contention of the petitioners that they are implicated in the matter without any basis and that they are being harassed or targeted even after quashing the criminal
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proceedings against them, cannot be accepted at this stage since the prosecution is successful in placing additional and sufficient materials to form an opinion that the petitioners are required to be tried for the above said offences. Under such circumstances, I do not find any merits in the contention taken by the petitioners seeking to quash the impugned order passed by the trial Court. Hence, I answer the point No.2 in the negative and proceeded to pass the following;
ORDER The Writ Petition and the Criminal Revision Petition are dismissed.
I.A.No.1/2021 filed in W.P.No.147718/2020 under Section 226 of Constitution of India is dismissed.
The impugned order dated 30.06.2020 passed in S.C.No.262/2019 by the Prl. District and Sessions Judge, Belagavi, is confirmed.
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In view of dismissal of the above petitions, pending applications if any, do not survive for consideration, accordingly disposed off.
Sd/-
JUDGE Naa/am