Karnataka High Court
Smt. Suma W/O Sidramappa Bilagi vs S G Gunjati Traders on 1 August, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 101653 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 101653 OF 2023 (482)
BETWEEN:
1. SMT. SUMA W/O SIDRAMAPPA BILAGI,
AGE. 41 YEARS, OCC. HOUSEHOLD WORK,
R/O. HOUSE NO.120, OM SHANTI MARG,
SHAHU NAGAR, BELAGAVI,
DIST. BELAGAVI-590 010.
2. SHRI. SIDRAMAPPA VIRUPAXASAPPA BILAGI,
AGE. 41 YEARS, OCC. BUSINESS,
R/O. HOUSE NO.120, OM SHANTI MARG,
SHAHU NAGAR, BELAGAVI,
DIST. BELAGAVI-590 010.
... PETITIONERS
(BY SRI. GIRISH A YADAWAD, ADVOCATE)
VISHAL AND:
NINGAPPA S.G. GUNJATI TRADERS,
PATTIHAL REPRESENTED BY ITS PROPRIETOR,
SHRI. CHETAN S/O IRAPPA GANJATI,
Digitally signed by
VISHAL NINGAPPA AGE. 40 YEARS, OCC. BUSINESS,
PATTIHAL R/O. H.NO.734, RAVIVAR PETH,
Date: 2023.08.03 BELAGAVI, DIST. BELAGAVI-591307.
10:27:11 +0530 ... RESPONDENT
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.PC.,
SEEKING TO QUASH THE ORDER DATED 25.08.2022 PASSED BY THE
IV ADDITIONAL DIST AND SESSIONS JUDGE, BELAGAVI IN CR.R.P.
NO. 49/2022 CONFIRMING THE ORDER DATED 17.03.2022 PASSED
BY THE JMFC VIII BELAGAVI IN CC NO. 331/2020.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
The petitioner is before this Court calling in question an order dated 25.08.2022 by which the Court of Sessions rejects Criminal Revision Petition No.49/2022 affirming the order passed in C.C. No.331/2020.
2. Heard the learned counsel for the parties.
3. The petitioners and the respondent have a transaction. In furtherance of the said transaction, the petitioners appear to have issued certain cheques. The cheques having been dishonoured leads the complainant to the concerned Court by invoking Section 200 of Cr.P.C.
during the pendency of the proceedings. The complainant gets to know that the signatory of the cheque is the 1st petitioner and not the 2nd petitioner and therefore, files an application before the concerned Court under Section 319 of Cr.P.C. seeking to implead the signatory of the cheque that is objected to by the 2nd petitioner and the objections are held to be unsustainable and the application under Section 319 of Cr.P.C. is allowed.
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4. The petitioners call that in question before the Court of Sessions in Criminal Revision Petition No.49/2022 only to be dismissed. These proceedings that drives the petitioner to this Court in the subject petition.
5. Learned counsel for the petitioners submits that Section 319 of Cr.P.C. is not applicable to 138 proceedings and therefore the order allowing impleadment of accused i.e., 1st petitioner could not have been permitted by the concerned Court. The submission is noted only to be rejected, as this Court in Crl.P. No.4600/2022 has held as follows:
"14. It is the upturn of the order of the learned Magistrate which directed Mrs. Rupa Banerji and Mr. P.K.Majumdar to be arrayed as accused is what drives the complainant to this Court in all these petitions. The issue now to be considered is, whether the order of the learned Magistrate permitting Mrs. Rupa Banerji andMr. P.K. Majumdar to come on record as accused in the proprietorship concern was tenable in law or the order of therevisional Court upturning the same is sustainable. Section 319 of the 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 -4- NC: 2023:KHC-D:7987 CRL.P No. 101653 of 2023 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 under arrest or upon a summons, 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 sub-section (1) then--
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-
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 offence upon which the inquiry or trial was commenced."
Section 319 of the Cr.P.C. gives a right to the prosecution/complainant to seek
any other parties to be arrayed as accused in a proceeding, if during the course of evidence if it emerges that those parties will also have to be tried for the offence. But, this power to summon those persons who are not named in the charge sheet or given up in charge sheet in the case at hand while taking cognizance, is an extraordinary power which should be used in extraordinary circumstances. The circumstance in the case at hand is not where the accused are being tried for offences under the IPC. The accused are sought to be tried for offences punishable under Section 138 of the Act. The -5- NC: 2023:KHC-D:7987 CRL.P No. 101653 of 2023 purpose of Section 319 of the Cr.P.C. has been considered by the Apex Court in several judgments, a few of them are relied on by the learned counsel for the petitioner. I deem it appropriate to notice the ones that are germane to the facts of the case at hand. A Five Judge Bench of the Apex Court in the case of HARDEEP SINGH V. STATE OF PUNJAB AND OTHERS reported in (2014)3 SCC 92 has delineated the power under Section 319 of the Cr.P.C. Paragraphs 6 and 7 are the issues that fell for consideration before the Apex Court and they read as follows:
6. On the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this Bench:
(i) What is the stage at which power under Section 319 CrPC can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) CrPC 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?
(iii) Whether the word "evidence" used in Section 319(1) CrPC 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?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?-6-
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(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"
7. In this reference what we are primarily concerned with, is the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified. To add as a corollary to the same, thirdly, the manner in which such power has to be exercised, also has to be considered." Answering the said issues, the Apex Court holds as follows:
"55. Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.
56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections 200, 201, 202, etc. CrPC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence -7- NC: 2023:KHC-D:7987 CRL.P No. 101653 of 2023 against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded.
57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge- sheet or any other person who might be an accomplice.
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 -8- NC: 2023:KHC-D:7987 CRL.P No. 101653 of 2023 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 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 the guilt of the accused."
(Emphasis supplied) The Apex Court holds that extraordinary power should be used sparingly only if it appears from the evidence that any person not being the accused has committed the offence, he could be tried together with other accused.
3. The High Court of Delhi in the case of SARABJIT SINGH V. STATE OF NCT OF DELHI & OTHERS, Crl.M.C.2856/2015 & Crl.M.A.10176/2015 decided on 8-10-2018 arabjit Singh (supra) considering this issue has held as follows:
"8. In the complaint, reference was made to the company as an accused. It appears that under some confusion, inadvertently the name of the company was omitted from the array of accused. The complainant had brought an application immediately, in 2008 itself, to make suitable correction. By the time, the said application came -9- NC: 2023:KHC-D:7987 CRL.P No. 101653 of 2023 up for consideration, the summoning order had already been passed. Since the Magistrate did not have the power of review, there was some difficulty in entertaining the said request at that stage. This is why liberty was granted while permitting the first application under Section 319 CrPC to be withdrawn for such application to be moved again. The application on which the order was passed by the Metropolitan Magistrate which was set aside by the revisional Court, was an application moved in exercise of such liberty.
9. Since the evidence which has come on record does not show the complicity of the second respondent in the crime, the cheques in question having been issued against its account, it having received the notice of demand and not having made any payment in response thereto satisfying the claim of the complainant arising out of the said cheques, the exercise of jurisdiction of the Metropolitan Magistrate under Section 319 Cr.P.C. could and should not have been interfered with by the revisinoal court.
10. For the above reasons, the petition is allowed. The impugned order of the revisional Court is set aside and the order dated 22-08-2014 of the Magistrate is restored. The second respondent company consequently will face the prosecution in the criminal complaint alongwith the other accused, it having been summoned under Section 319 Cr.P.C."
(Emphasis supplied) The Delhi High Court considers the purport of Section 319 of the Cr.P.C. qua Section 138 of the Act and holds that the evidence which comes on record does show complicity of the person who is sought to be arrayed as accused in the crime and arraigning all those accused in terms of Section 319 of the Cr.P.C. could be permitted. This was called in question before the Apex Court by filing a special leave petition in M TECH DEVELOPERS PVT LTD., V.
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STATE OF NCT OF DELHI & OTHERS,
S.L.P(Crl.).No.15 of 2019. The Apex Court dismissed the S.L.P. by the following order:
"1. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order passed by the High Court.
2. In our view, the reasoning and the conclusion arrived at by the High Court does not call for any interference. The Special Leave Petition is accordingly dismissed.
3. However, we direct the concerned Magistrate, who is seized of the complaint, to decide the same in accordance with law within a period of six months from to-day."
(Emphasis supplied) The Apex Court holds on perusal of the record of the case that it was not inclined to interfere with the order impugned. In view of the reasoning and conclusion arrived by the High Court there was no warrant of interference. The reason so rendered by the High Court permitting impleadment is extracted hereinabove. If the facts of the case on hand is considered on the bedrock of the principles laid down by the Apex Court in the case of HARDEEP SINGH and that of the High Court of Delhi in the case of SARABJIT SINGH, what would unmistakably emerge is that the order passed by the learned Magistrate was tenable in law."
6. Wherein, it has held that Section 319 of Cr.P.C.
is applicable to 138 proceedings as well and the liability of
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In the light of the said judgment, the petition lacking in merit, stands rejected.
Sd/-
JUDGE Rsh/Ct:Bck List No.: 1 Sl No.: 35