Karnataka High Court
Smt. Kavya W/O Basavaraj Sindur vs The State Of Karnataka, on 26 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 1782
®
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.101767 OF 2017
BETWEEN
1. SMT. KAVYA,
W/O BASAVARAJ SINDUR
AGE: 33 YEARS,
OCC: AGRICULTURE,
2. VIJAY,
S/O RAMESH SINDUR
AGE: ABOUT 26 YEARS,
OCC: AGRICULTURE,
BOTH ARE R/O: TUNGAL,
TAL: JAMKHANDI, DIST: BAGALKOT. ...PETITIONERS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
THROUGH THE PSI,
SAVALAGI POLICE STATION,
JAMKHANDI,
REPRESENTED BY THE S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
2. SHANTA MARUTI JADHAV
AGE: 60 YEARS, OCC: HOUSEHOLD,
CRL.P. NO.101767 OF 2017
:2:
R/O. TUNGAL, TAL: JAMKHANDI,
DISTRICT: BAGALKOT. ...RESPONDENTS
(BY SMT. SEEMA SHIVA NAIK, HCGP FOR R1
SHRI SRINAND A. PACHCHAPURE, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE ORDER DATED
24.06.2017 IN CRIMINAL REVISION PETITION NO. 47 OF
2016 PASSED BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, BAGALKOT SITTING AT JAMKHANDI AND THE
ORDER DATED 26.05.2016 PASSED IN C.C.NO. 34 OF 2012
BY THE PRL. SENIOR CIVIL JUDGE AND JMFC
JAMKHANDI FOR OFFENCES UNDER SECTION 323, 326,
504, 506 READ WITH 34 OF IPC IN SO FAR AS
PETITIONERS.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition has been filed by the petitioner/accused Nos.4 and 5 under Section 482 of the Code of Criminal Procedure praying this Court to quash the order, dated 24.06.2017, passed by the I Additional District & Sessions Judge, Bagalkot, sitting at Jamakhandi, in C.R.P. No.47/2016 whereby the order, dated 26.05.2016, passed by the Principal Senior CRL.P. NO.101767 OF 2017 :3: Civil Judge & JMFC, Jamkhandi, in C.C. No.34/2012 allowing the application filed under Section 319 of Cr.P.C., was confirmed.
2. I have heard the learned counsel for the petitioners/accused Nos.4 & 5, learned High Court Government Pleader appearing for respondent No.1-State, and learned counsel for respondent No.2-complainant.
3. The case alleged by the complainant is that there was a dispute between the complainant's family and the family of the accused in respect of easementary rights in an agricultural land. On 02.04.2012, Basavaraj Sindur-accused No.1 had dumped crushed stone on the way. When he was questioned, all the accused persons abused and assaulted the complainant. On the basis of the complaint, a case has been registered in Crime No.32/2012. Thereafter a chargesheet was laid as against accused Nos.1 to 3 and CRL.P. NO.101767 OF 2017 :4: the case was dropped as against accused Nos.4 and 5. during the course of evidence, P.Ws.7 & 8 deposed stating the involvement of the petitioners/accused Nos.4 and 5. The learned Assistant Public Prosecutor filed an application under Section 319 of Cr.P.C. to implead the petitioner/accused Nos.4 and 5 as accused. The learned Magistrate, after considering the application and the evidence of P.Ws.7 and 8, has allowed the application. Against the said order a criminal revision petition was preferred and the same was confirmed. Challenging the same, the petitioners/accused are before this Court.
4. It is the contention of the learned counsel for the petitioners that the proceedings initiated by the Trial Court under Section 319 of Cr.P.C. are contrary to law and evidence place on record. It is his further submission that when a full-fledged investigation was conducted and accused Nos.4 and 5 were dropped as there was no evidence, the Court below ought not to CRL.P. NO.101767 OF 2017 :5: have considered the application and issued summons. It is his further submission that P.W.1 is the complainant and she, in her evidence, has not narrated the presence of the petitioners/accused and no overt acts have been stated. He further submitted that only on the basis of the subsidiary evidence of P.Ws.7 and 8, without there being any corroboration, the learned Assistant Public Prosecutor filed an application and the Court below, without giving an opportunity to the petitioners/accused, straight-away has issued the summons. It is his further submission that whenever an application is filed under Section 319 of Cr.P.C., the Court below has to consider that the evidence which has been produced is not only a prima facie evidence, but also a strong evidence so as to frame the charge and if no such evidence is available, then under such circumstances, the Court cannot take cognizance under Section 319 of Cr.P.C. It is further submitted that Section 319 of Cr.P.C. has been interpreted by the CRL.P. NO.101767 OF 2017 :6: Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and Others reported in (2014)3 SCC 92, wherein it has been observed by the Hon'ble Apex Court that the evidence led before the Court not necessarily tested upon the anvil of cross-examination, it requires a stronger evidence than the mere probability of his complicity and the said evidence must lead or correspond to conviction then only the Court can issue summons and after giving an opportunity the application should be allowed. In order to substantiate his further contention, he also relied upon the decision of a Co-ordinate Bench of this Court rendered in Crl.R.P. No.231/2017, disposed off on 30.03.2016, in the cse of Smt. Asha vs. State of Karnataka by Electronic City Police. By relying upon the decision of this Court in the case of Pandurang Vs. State Through Police Sub-Inspector, Afzalpur Police Station, Afzalpur, reported in 2016(5) Kar.L.J.283, submitted that the test to be applied is one which is more than a prima facie CRL.P. NO.101767 OF 2017 :7: 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, and under such circumstance the application has to be allowed otherwise the cognizance taken is bad in law and the same is liable to be set aside. It is his further submission that the evidence and the material do not substantiate the factual situation and hence, he prays to allow the petition and to quash both the orders of the Courts below.
5. It is the submission of the learned High Court Government Pleader that the evidence of P.Ws.7 & 8 clearly goes to show that the accused persons are involved in the alleged offence; they were also present and assaulted the complainant and other witnesses and on considering the said evidence, the Trial Court has rightly issued the summons. It is her further submission that when they appear before the Court CRL.P. NO.101767 OF 2017 :8: below they have every right to re-examine the witnesses and it will revert back to the original stage and they can file an application under Section 227 of Cr.P.C. seeking discharge by contending that there is no prima facie case, but instead of doing so they have challenged the said order without there being any substance. The Revisional Court, after considering the said fact, has rightly rejected the prayer and there are no grounds to interfere with the said order. On these grounds, she prayed to dismiss the petition.
6. Learned counsel appearing for respondent No.2-complainant justifying the orders of both the Courts submitted that the Courts below have rightly appreciated and have come to a right conclusion and he also prays to dismiss the petition.
7. I have carefully and cautiously considered the submissions made by the learned counsel for the parties, perused the records and also gone through the CRL.P. NO.101767 OF 2017 :9: decisions cited by the learned counsel for the petitioners.
8. Before going to consider the submission, I would like to emphasize that, as per the records, initially, the prosecution led the evidence of the material witnesses; after taking the cognizance and framing the charge when the evidence of the complainant was led, no such allegations were there, but subsequently, when P.Ws.7 & 8 came to be examined before the Court, they have deposed about the involvement of the accused in the alleged crime. Immediately, thereafter an application came to be filed by the learned Assistant Public Prosecutor under Section 319 of Cr.P.C. and, after considering the application, the Court below by order dated 26.05.2016 has allowed the application and issued the summons. For the purpose of clarity, I quote Section 319 of Cr.P.C. which reads as under:
CRL.P. NO.101767 OF 2017 : 10 : "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 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.
(2) Where such person is not attending the court he may be arrested or Summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the court, although not trader arrest or upon a summon, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the court proceeds against any person under subsection (1), then-
(a) The proceedings in respect of such person shall be commenced afresh, and the witnesses respondent-heard;
(b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the CRL.P. NO.101767 OF 2017 : 11 : offence upon which the inquiry or trial was commenced."
9. The said section has been interpreted by the Hon'ble Apex Court in the case of Hardeep Singh, quoted supra. At paragraphs 93 to 99 and 106, it has been observed by the Hon'ble Apex Court as under:
"Q. (iv) What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C.?
93. Section 319(1) Cr.P.C. empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court.
The word "appear" means "clear to the
comprehension", or a phrase near to, if not
synonymous with "proved". It imparts a lesser degree of probability than proof.
94. In Pyare Lal Bhargava v. The State of Rajasthan, AIR 1963 SC 1094, a four-Judge Bench of this Court was concerned with the meaning of the word 'appear'. The court held that the appropriate meaning of the word 'appears' is 'seems'. It imports a lesser degree of probability than proof. In Ram Singh & Ors. v. Ram Niwas & Anr., (2009) 14 SCC 25, a two- Judge Bench of this Court was again required to CRL.P. NO.101767 OF 2017 : 12 : examine the importance of the word 'appear' as appearing in the Section. The Court held that for the fulfillment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as an accused in the case.
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 Cr.P.C., 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, 2013 (11) SCALE 23, 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 person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
CRL.P. NO.101767 OF 2017 : 13 :
96. In Rajendra Singh, the Court observed: (SCC p.388, para 16)) "16. Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."
97. In Mohd. Shafi (Supra), this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.
98. In Sarabjit Singh v. State of Punjab, while explaining the scope of Section 319 Cr.P.C., a two- Judge Bench of this Court observed: (SCC pp. 54-55, paras 21-23) "21. ....For the aforementioned purpose, the courts are required to apply stringent tests;
CRL.P. NO.101767 OF 2017 : 14 : one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
22. ...... Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied." (emphasis supplied)
99. In Brindaban Das v. State of W.B. a two- Judge Bench of this Court took a similar view observing that: (SCC p.335, para 25) "25. ........the court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re- examination could prejudice the prosecution and delay the trial, the trial court has to exercise CRL.P. NO.101767 OF 2017 : 15 : such discretion with great care and perspicacity. (emphasis supplied) A similar view has been re-iterated by this Court in Michael Machado v. CBI
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 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."
CRL.P. NO.101767 OF 2017 : 16 : In the said case, the Hon'ble Apex Court has come to the conclusion that it is not prima facie case which has to be established from the evidence led before the Court, but it requires much stronger evidence than mere probability of his complicity; the test has to be applied is one which is more than a prima facie case as exercised at the time of framing of the charge, but short of satisfaction to an extent that the evidence, if it goes unrebutted, would lead to conviction. If the said decision of the Hon'ble Apex Court is looked into, then under such circumstances the decision taken by the Co-ordinate Bench in the case of Smt. Asha, quoted supra, appears to be just and proper therein it has been observed that if an application is filed under Section 319 of Cr.P.C., it necessarily requires that the accused should be heard before being so added and an opportunity has to be given to the accused, after considering the evidence placed on record and only after considering and satisfying that there is sufficient material as against the accused, they can be arrayed as accused.
CRL.P. NO.101767 OF 2017 : 17 :
9. In the light of the discussion made above, it makes clear that the petitioners/accused were required to be heard before the application under Section 319 was considered in this particular behalf, but the Trial Court, without hearing the petitioners/accused has passed the impugned order dated 26.05.2016. Under the said facts and circumstances, I am of the considered opinion that both the Courts below, without looking into the facts and circumstances of the case and without appreciating the same have wrongly come to the wrong conclusion. But, however, anyhow the Trial Court has issued summons, the petitioners/accused Nos.4 and 5 can appear before the Court and whatever contentions that have been taken up now with reference to the ratio laid down by the Hon'ble Apex Court, after considering their contentions, if the Court below comes to the conclusion that it is not merely a prima facie case and the material so produced, if unrebutted, would lead to conviction then under such circumstances, they can be added as accused. However, CRL.P. NO.101767 OF 2017 : 18 : at this juncture, the learned counsel for the respondent submitted that the matter has been posted for arguments of the parties, but as could be seen from Section 319 of Cr.P.C., if accused Nos.4 and 5 have been arrayed as accused, then under such circumstances, the case should be relegated to its original stage and they should be given an opportunity to cross-examine all the witnesses and thereafter, the further proceedings can be taken in accordance with law.
With the above observation, the petition is allowed and the impugned order dated 26.05.2016 is set aside and the matter is remitted back to the Principal Senior Civil Judge and JMFC, Jamkhandi, to dispose of the application in accordance with law as observed above by giving full opportunity to all the parties in the proceeding.
Sd/-
JUDGE Kms