Karnataka High Court
Basavaraj K C vs The State Of Karnataka on 6 July, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION No.2956 OF 2018
BETWEEN:
1. Basavaraj K.C.
S/o Adiveppa,
Aged about 45 years,
Lecturer in Government P.U. College,
R/o Kolakere Village,
Thavarekere Post,
Channagiri Taluk,
Davanagere District-577 213.
2. Smt. Anasuya
W/o K.C. Basavaraj,
Aged about 38 years,
R/o Kolakere Village,
Thavarekere Post,
Channagiri Taluk,
Davanagere District-577 213.
3. Smt. Vasantha
W/o Basavaraj,
Aged about 41 years,
R/o Kolakere Village,
Thavarekere Post,
Channagiri Taluk,
Davanagere District-577 213.
.... Petitioners
(By Sri. Jaya Prakash K.N., Advocate)
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AND:
1. The State of Karnataka,
Rural Police Station,
Chitradurga.
Reptd. by its S.P.P.,
High Court Building,
Bengaluru-560 001.
2. Smt. Sannakka @ Sahana
W/o K.C. Gurumurthy,
Aged 32 years,
R/o Medahalli Village,
Chitradurga Taluk & District.
(R-2 has been added vide
order dated 25.04.2018)
... Respondents
(By Sri. Sandesh J. Chouta, SPP-II;
R-2 served)
This criminal petition is filed under Section 482
Cr.P.C. praying to quash the order dated 06.04.2018,
passed by the Court of the II Additional District and
Sessions Judge and Special Judge, Chitradurga in
Spl. Case SC/ST No.19/2016, and consequently
dismiss the application filed by the prosecution under
Section 319 of Cr.P.C.
This criminal petition is coming on for
'Admission' this day, the Court made the following:
ORDER
Respondent No.2 though served, remained absent. No representation.
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2. Heard learned counsel for the petitioners and learned SPP-II for the respondent-State. Perused the orders impugned in the petition.
3. The petitioners have called in question the order passed by the learned II Additional District & Sessions Judge and Special Judge, Chitradurga on the application filed under Section 319 of Cr.P.C. adding the petitioners as accused Nos.2 to 4.
4. The records discloses that, the complainant by name Smt. Sannakka, examined as PW-5 has lodged FIR for the offences punishable under Sections 498(A), 323, 506 R/w Section 34 of IPC, Section 4 of the Dowry Prohibition Act, 1961 and Section 3(1)(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, making allegations even against the petitioners that on 23.04.2016 at about 8.30 p.m. her husband Gurumurthy along with the petitioners have visited the house of the complainant and abused her in filthy language referring to her caste and also assaulted her 4 with their hands and kicked her with their legs etc. It is stated that at that time Mahalingappa, Muththaiah, Palanna and Mallikarjuna, who were present in the spot have resolved the dispute.
5. On the basis of the above said complaint, the police have registered a case in Crime No.180/2016 and investigated the matter and submitted the charge sheet only against accused No.1 and exonerated accused Nos.2 to 4 who are the petitioners herein on the ground that, they were actually not present on the said date, at the spot. The police have collected materials in this regard and also recorded the statement of witnesses which established that the petitioners were not present at the time of the incident. Based on that, charge sheet was filed only against accused No.1.
6. After faming of charges against accused No.1, the evidence of the witnesses were recorded by the trial Court. The prosecution has examined as many as six witnesses and recorded the finding that, 5 during the course of evidence, PWs.5 and 6 have stated about the presence of the petitioners and their overt acts are narrated in the FIR. Therefore, the Court has taken cognizance of the offences on the petitioners and issued notice to the accused on the application filed under Section 319 of Cr.P.C. and after hearing them, has issued summons to the accused by allowing the application filed under Section 319 of Cr.P.C. arraigning them as additional accused persons to face the trial along with accused No.1, which order is called in question before this Court.
7. Before adverting to the factual aspects of this case, the Court has to satisfy itself as to the necessary ingredients which attract Section 319 of Cr.P.C. Section 319 Cr.P.C. reads as follows:
"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 6 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.
A careful perusal of the above said provision clearly shows that, on the basis of material on record where during the course of inquiry or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which offence such person could be tried together with the accused, the Court may proceed against such person which he appears to have committed.
8. Interpreting the said provision, the Apex Court has laid down certain guidelines in this regard. In a decision reported in 2018 Crl.L.J Page 98 between Brijendra Singh and Others Vs. State of Rajasthan, the Apex Court has made certain observation at paragraph 12 which is necessary to be extracted:
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"12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh's case (AIR 2004 SC 1400, paras 88, 98, 99) and answered in the following manner:
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two Judge Bench of this Court in Vikas v. State of Rajasthan [(2014) 3 SCC 321] : (AIR 2014 SC (Supp) 1124) held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such 8 person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
xx xx xx 105. Power under Section 319 CrPC is a discretionary and an extraordinary 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.
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 9 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 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" 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 guilt of the accused."
A meaningful understanding of the above said decision, it is clear that the degree of satisfaction to arraign a third person as an accused under Section 319 of Cr.P.C. must be of the higher degree for 10 satisfaction and that is required in a stricter manner. The Court also observed that the power under Section 319 of Cr.P.C. being discretionary and extraordinary power, it should be exercised sparingly and only when the circumstances of the case warrant. However, it should not 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.
9. The Court has to visualize the entire circumstances including the charge sheet papers and find out whether any strict, cogent, convincing and satisfactory evidence which is of higher degree is available so as to arraign third person as an accused. Therefore, the Court should not in casual manner deal with such applications, but it should be in a careful manner. The Court has to exercise that power, if the Court is of the opinion that on the basis of probabilities of the case, looking at the surrounding circumstances, if the complicity of such 11 persons is evident, and it is more than a prima facie case available after framing of charges, then only sparingly the Court has to exercise such powers.
10. Now, coming to the factual aspects of this case, on the basis of the above said guidelines, now let me see whether the trial Court has exercised such a vested power in a proper manner.
11. The trial Court's order discloses that, the trial Court has observed that PWs.5 and 6 deposed with regard to the incident happened on 23.04.2016 stating that, these petitioners also came on that particular day and assaulted her and abused her in filthy language with reference to her caste and threatened her with dire consequences. PW.6 also half heartedly supported the same and on the basis of such evidence, the Court has come to the conclusion that there is prima facie material for the purpose of arraigning them as additional accused persons. But the Court has not examined the said evidence with other materials on record that, with of 12 the charge sheet papers. In order to ascertain as to whether there is any strong circumstance made out against the accused and the cogent and convincing evidence available on record, if that portion of the evidence is unrebutted and the same is sufficient to record the conviction against the accused persons. In the absence of such observations by the trial Court, now this Court has to examine as to whether such materials are available on record.
12. Of course among PWs.5 and 6, PW.5 has stated as narrated by the learned Sessions Judge that these proposed accused persons were also present on the date of the incident and they have abused her in filthy language and assaulted her. PW.6 has not fully supported the case, but he has stated about the presence of accused No.2, but not stated about the presence of other accused persons, but he has stated that some others have also dragged her, but he never stated that they have assaulted the complainant. So, therefore the statement of PW.5 is 13 not fully supported by PW.6 who is none other than the father of PW.5.
13. Apart from that, the independent eye witnesses were also examined. They are examined as PW.1 Ranganatha, PW.2 Maheshwarappa and PW.3 Maharudrappa. They never stated anything about the presence of these accused Nos.2 to 4 and they were examined in chief by the prosecution and the case is set down for cross examination. If we accept the examination-in-chief of these three witnesses and also PW.6, there is no strong, sufficient, cogent and convincing evidence to support the evidence of PW.5. Apart from the above, learned counsel also drawn my attention that, the Investigating Officer has deleted the names of PW.2 to 4 from the charge sheet on the ground that they were not present at the time of the incident. He further drawn my attention to the submission of one Lakshmana Hallada Mane, CW.15 who was working as Principal in Government P.U. College in Jhalaki Village, Indi Taluk, Vijayapura 14 District. He has specifically stated in his statement under Section 161 Cr.P.C that, on 20.04.2016, Basavaraj K.C., accused No.2/petitioner No.1 was doing valuation of PUC answer scripts particularly from 20.04.2016 till 02.05.2016 from morning 10.00 a.m to evening 5.00 p.m.
14. The Investigating Officer has also collected the attendance register and other material to support the same and thereafter, he has drawn the inference on the basis of such materials during the course of investigation that accused Nos.2 to 4 were not present at the time of the incident. Thus, the factual aspects and other evidence which are available on record have not been even looked into by the learned Sessions Judge, to take a over all view of the case and to draw inference as to material available on record and complaint made out for the purpose of arraigning the petitioners as accused. 15
15. In the above regard, the same decision as quoted above even on facts comes to the help of the petitioners.
16. It is stated on facts in that decision that at Para Nos.14, 15 and 16 that "Investigating Officer during the investigation finding that the additional accused persons were not present at the time of incident in the village and were present in Jaipur, 175 km. away from the place of incident, the documents like duty certificate, duty log book, prescription and evidence of Doctor revealing the additional accused visiting doctor for sickness and medicine slip collected during investigation proving absence of accused persons at the time of incident. Lower Court not taking into account documents submitted by the Investigating Officer, in not arraigning additional persons as accused on the basis of statements of accused persons and in view of the documentary and other evidence, and plea of alibi taken by additional accused found to be correct. Therefore, the order summoning additional 16 persons as accused is improper and liable to be set aside."
The Apex Court has also observed that if the trial Court has not done its duty properly, then the High Court on re-appreciating the materials on record, can take its view while passing orders considering the application filed under Section 319 of Cr.P.C.
17. Looking to the above said factual aspects before the Apex Court, though the factual aspects may not act as a precedent, but it is persuasive in nature. In fact, I am persuaded by factual aspects also and in the said case, it is absolutely on par with the factual aspect existing in the present case. The documents collected by the Investigating Officer and statements of the witnesses in support of the documents for the purpose of not arraigning the petitioners as accused at the time of charge sheet have not been looked into by the learned Sessions Judge.
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18. Therefore, it is not a prima facie case which is required for the purpose of arraigning the petitioners as accused persons, but it is the strong evidence which is satisfactory to the Court as well as it is the cogent and convincing evidence which is required for the purpose of arraigning a person as an additional accused, which is conspicuously absent so far as this case is concerned. In the above said circumstances, I have no hesitation to allow the petition and to set aside the order passed by the trial Court. Hence, I proceed to pass the following:
ORDER
i) The petition is allowed.
ii) Consequently, the order passed by the learned Sessions Judge in Spl. Case SC/ST No.19/2016 dated 06.04.2018 on the application filed under Section 319 of Cr.P.C. by the prosecution is hereby set aside.18
iii) Consequently, the application filed by the prosecution under Section 319 of Cr.P.c. is hereby dismissed.
Sd/-
JUDGE Bmc/-