Karnataka High Court
Tukaram Nagappa Mutnal vs State Of Karnataka By Sadalaga Police, on 6 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 1181
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
R
IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 6 T H DAY OF MARCH 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL REVISIO N PETITION NO .100052/2020
BETWEEN:
1. TUKARAM NAGAPPA MUTNALE
AGE : 66 YEARS , O CC : AGRICULTURE,
R/O : DA TTAWAD ROAD-SADALAGA
TQ : CHIKODI, DIS T: DHARWAD
2. AVAKKA TUKARAM MUTNA LE
AGE : 50 YEARS , O CC : AGRICULTURE,
R/O : DA TTAWAD ROAD-SADALAGA
TQ : CHIKODI, DIS T: DHARWAD
3. MAHESH TUKARA M MUTNALE
AGE : 32 YEARS , O CC : AGRICULTURE,
R/O : DA TTAWAD ROAD-SADALAGA
TQ : CHIKODI, DIS T: DHARWAD
... PETITIONERS
(BY SRI NEELENDRA D. GUNDE, ADVOCATE.)
AND:
STA TE OF KARNA TAKA
BY SADALAGA POLICE,
REP. BY THE S TA TE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD-560001
... RESPONDENT
(BY SRI PRAVEEN K. UPPAR, HCGP.)
2
THIS CRIMINA L REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
04/02/2020 PASSED IN S .C.NO.84/2017, PASSED BY
THE 7 T H ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI, SITTING AT CHIKODI, ARRAYING TH E
PETITIONERS AS ACCUSED BY ALLOWING
APPLICA TION FILED BY THE PROSECUTION UNDER
SECTION 319 OF CR.P.C., ETC.,.
THIS PETITION CO MING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLO WING:
ORDER
This revision petition is filed under section 397 read with section 401 of Cr.P.C., challenging the order dated 4.2.2020, passed in S.C.No.84/2017, on the application filed under section 319 of Cr.P.C. by the prosecution, allowing the same and to grant such other relief as deemed fit.
2. The factual matrix of the case is that, one Suresh Sadashiv Halakate had lodged a complaint on 7.9.2016 at about 7.45 p.m., suspecting that these petitioners and one Ravi have committed the murder and based on the said 3 complaint, a case has been registered against them for the offence punishable under section 302 and 201 of IPC. The Investigating Officer has investigated the matter and while filing the charge sheet, only arraigned the said Ravi as accused and these petitioners were left out. The trial has been commenced and some of the witnesses have been examined before the trial Court. The witnesses who have been examined, particularly CWs.1, 11 and 15, in their evidence they have pointed out the role of these petitioners in committing the murder. The prosecution filed an application under section 319 of Cr.P.C. to implead these petitioners as accused and the same has been considered by the trial Court.
3. The main grounds urged in the revision petition are that, the trial Court without looking into the material available on record allowed the application and the trial Judge ought to have 4 exercised its discretion with care and caution and the same has not been done. When the complainant and other witnesses while giving statement under section 161 of Cr.P.C., have given goby to their allegations made in the complaint, implicating the petitioners subsequently during the trial, indicates that the petitioners are falsely implicated only to humiliate and harass the petitioners.
4. The revision petitioner's counsel in support of his contention relied upon the judgment reported in (2019) 5 SCC 806, Shiv Prakash Mishra vs. State of Uttar Pradesh and another, and referring to this judgment the counsel brought to the notice of this Court particularly paragraph Nos.11 and referring to the said paragraph would contend that, in order to exercise the powers under section 319 of Cr.P.C., it is discretionary and extraordinary power and 5 the same has to be exercised 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 accrues against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.
5. The counsel also brought to the notice of this Court paragraph No.14 of the judgment, wherein the Apex Court held that, the appellant/complainant has not filed any protest petition then and there. During the investigation, when it was found that the accused was not present at the place of incident, the trial Court and the first appellate Court were right in 6 refusing to summon respondent No.2 as the accused.
6. The counsel also relied upon the judgment reported in (2009) 14 SCC 25, Ram Singh and others vs. Ram Niwas and another and the counsel referring to this judgment brought to the notice of this Court paragraphs No.11 to 20 and would contend that, while exercising the powers under section 319(1) of Cr.P.C., the trial Court is empowered to summon the accused only if a prima facie case is made out from the material available on record and also against whom showing their involvement in the offence comes before the criminal Court are included in the expression 'any person not being the accused' and the same also has to be exercised very sparingly not as a matter of course.
7. The counsel also brought to the notice of this Court particularly paragraph No.20 of the 7 judgment, wherein the Apex Court held that the High Court committed an error. Mere existence of a prima facie case would be sufficient to exercise the Courts jurisdiction under section 319 of Cr.P.C. and further observed that 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 rebutted, would lead to conviction of the persons sought to be added as accused in the case. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction, which has to be exercised sparingly.
8. Per contra, the HCGP appearing for the respondent State would contend that the evidence of CWs.1, 11, 15, who have been examined before the Court have deposed with regard to the very role of these petitioners and also in the evidence 8 specifically deposed that the police did not record their statement as they made and further the HCGP would contend that the trial Judge considering the evidence of these witnesses rightly came to the conclusion that there is a prima facie material to arraign the petitioners as accused persons and hence, the order passed by the trial Judge is with application of mind and does not require any interference.
9. Having heard the counsel for the petitioner and also the HCGP for the respondent State, the question arise before this Court is whether the trial Judge has committed an error in allowing the application filed under section 319 of Cr.P.C. and whether it requires interference of this Court.
10. In keeping the contentions urged by the petitioner's counsel and also the principles laid down in the judgment referred to supra, no doubt 9 exercising the powers under section 319 of Cr.P.C. is an extraordinary jurisdiction and the same has to be exercised sparingly and if the material available on record is enough to arraign the persons as accused, then only the Court can invoke section 319 of Cr.P.C. There is no dispute with regard to the principles laid down in the judgment referred to supra. The Court has to analyze the material available on record with due care and caution whether those persons are necessary to adjudicate the matter to meet the ends of justice.
11. This Court given anxious consideration to the principles laid down in the judgments and in keeping the principles, this Court has to analyze the material available on record. Firstly, this Court has to consider the complaint averments. On a perusal of the complaint averments, the same was given on the date of 10 incident in the evening making specific allegations against these petitioners and also another person by name Ravi that there was a civil dispute between the parties. The fact that civil dispute between the parties is not in dispute. On a perusal of the complaint, it is specifically mentioned in the complaint that all these persons might have committed the murder of the victim, since there was a civil dispute between the parties. The case has been registered against all the four persons including these three petitioners. The Investigating Officer investigated the matter and filed the charge sheet.
12. On a perusal of the entire charge sheet, the Investigating Officer cited 24 witnesses and not cited any of the witnesses as eye witness to the incident and while filing the charge sheet, when the Investigating Officer came to know about these petitioners were not involved in the 11 incident, ought to have given reasons, as to what is the reason to leave these petitioners. Nothing has been mentioned in the charge sheet as to why these three petitioners were left out while filing the charge sheet, except enclosing the statements of certain witnesses alleged to be recorded by the Investigating Officer under section 161 of Cr.P.C.
13. The witnesses who have been examined before the Court, particularly CW.1, deposed before the Court that these three petitioners were instigating Ravi, not to leave him and in spite of he has given statement before the police, the police have not recorded his statement.
14. On a perusal of the evidence of PW.5, who claims to be an eye witness to the incident and in his evidence he categorically deposed that, when he heard the sound near the house of the accused, by parking the motorcycle, all these petitioners were present. Avvakka and Tukaram 12 were holding the victim and these petitioners instigating that not to leave him and Ravi with a sickle inflicted the injuries on his stomach and neck, as a result, he fell down on the spot and being afraid of the incident, they left the place. PW.6 also reiterates the statement of PW.5.
15. The trial Court, while considering the evidence of CWs.1, 11 and 15, who have been examined as PWs.3, 5 and 6 comes to the conclusion that the evidence placed before the Court is sufficient to arraign these petitioners as accused persons to meet the ends of justice. When such being the reason has been assigned by the trial Court that too based on the evidence of CWs.1, 11, and 15, this Court cannot find fault with the trial Court invoking section 319 of Cr.P.C. This Court has already made an observation that the powers under section 319 of Cr.P.C. has to be exercised sparingly. When the 13 material available on record and when the witnesses appears before the Court that they are the eye witnesses to the incident, and also when the Investigating Officer did not assign any reasons to leave these petitioners while filing the charge sheet, this Court cannot come to the other conclusion that the trial Court has committed an error in invoking section 319 of Cr.P.C.
16. There is no dispute with regard to the principles laid down in the judgment referred to supra and it is also settled law that when prima facie material available on record and also when the witnesses who have witnessed the incident come and depose before the Court and specifies the overtact of these petitioners, it is the duty cast upon the Court also to examine the material available on record and then exercise the jurisdiction under section 319 of Cr.P.C. and to see that the same has been exercised sparingly. 14 Sparingly means to exercise the powers when there are material available on record to exercise the same and if evidence found involvement of the accused, then, in order to meet the ends of justice, to arraign the accused persons exercising the powers under section 319 of Cr.P.C. Hence, this Court do not find any reasons to set aside the order of the trial Court in exercising the powers under section 319 of Cr.P.C.
17. In view of the discussions made above, this Court proceed to pass the following:
ORDER The revision petition is dismissed.
Sd/-
JUDGE Mrk/-