Karnataka High Court
Smt. Julekhabi vs State Of Karnataka on 17 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.8666/2019
BETWEEN:
1. Smt. Julekhabi,
W/o late Shaik Alli Sab,
Age : 76 years,
Occ : Household,
R/o Tarasu Road,
Balagadi Village,
Koppa - 577 126.
Chikkamagaluru District.
2. Sri. Mohamed Hasan Sab,
S/o Late Shaik Alli Sab,
Age : 52 years,
Occ : Working as Driver,
O/o the Taluk Health Officer,
Koppa - 577 126.
Chikkamagaluru District. ... Petitioners
(By Sri. Manjunatha Rao Bhonsle K., Advocate)
AND:
State of Karnataka,
by Narasimharajapura
Police Station,
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Rep. by its State Public Prosecutor,
High Court Building,
Bengaluru - 560001. ... Respondent
(By Sri. H.R. Showri, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash/set aside the order dated
07.12.2019 in C.C.No.16/2013 passed on I.A. filed
under Section 319 of Criminal Procedure Code, passed
by the Civil Judge and Judicial Magistrate First Class,
Narasimharajapura.
This Criminal Petition is coming on for
Admission, this day, the court made the following:
ORDER
This petition has been filed by the petitioners/accused Nos.2 and 3 under Section 482 of Cr.P.C. to quash/set aside the order dated 07.12.2019 passed by the Court of Civil Judge and J.M.F.C., Narasimharajapura in C.C.No.16/2013.
2. I have heard the learned counsel for the petitioners/accused Nos.2 and 3 and learned High Court Government Pleader for the respondent-State. -3-
3. Though this case is listed for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. On the basis of the complaint, a case was registered against accused No.1 and subsequently, while recording the statements of CWs, an application came to be filed under Section 319 of Cr.P.C. for impleading the petitioners/accused Nos.2 and 3. The learned Magistrate after giving an opportunity to both the parties and hearing, has allowed the application. Challenging the same, the petitioners/accused Nos.2 and 3 are before this Court.
5. It is the submission of the learned counsel for petitioners/accused Nos.2 and 3 that when the Investigating Officer completed the investigation and filed charge sheet, they have not filed charge sheet against the petitioner/accused Nos.2 and 3. It is his further submission that the said complaint has been -4- registered after lapse of more than 18 years. It is his further submission that only in the year 2012, the petition came to be filed under the Domestic Violence Act, 2005 and thereafter, the present petition has been filed without there being any material. It is his further submission that the petitioners/accused Nos.2 and 3 are not residing with the complainant and there are no serious allegations as against them. It is his further submission that Section 319 of Cr.P.C. indicates that any person can be arrayed as accused when he being not an accused before the Court. Earlier when the complaint was filed, the petitioners/accused Nos.2 and 3 were arrayed as accused. Subsequently, at the time of the filing of the charge sheet, they have not been shown as accused. Under such circumstances, the Court ought not to have exercised the power under Section 319 of Cr.P.C. so as to make them as accused.
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6. It is his further submission that CWs.1 and 2 were came to be examined and only examination-in- chief has been done and without further cross- examination of the said witnesses, the said application has been filed and even during the course of cross- examination of CW.2, he has categorically admitted the fact that earlier he has not stated before the Police with regard to the allegations which have been made, but for the first time he is speaking before the Court. It is his further submission that the application filed and the Court allowing the same and arraying the petitioners as accused is nothing but abuse of process of law. On these grounds, he prayed to allow the petition and to set aside the order dated 07.12.2019.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that though the petitioners have not arrayed as accused at the time of filing of the charge sheet, subsequently, the evidence -6- of CWs.2 and 3 and the materials clearly go to show that the petitioners/accused Nos.2 and 3 have ill- treated and harassed the complainant for demand of dowry. By taking into consideration of all the aspects, the trial Court has passed reasoned order. It is his further submission that while exercising the power under Section 319 of Cr.P.C., the Court can consider the evidence recorded in examination-in-chief and it did not wait till the said evidence is tested by cross- examination and if the examination-in-chief is satisfied about the complicity of the accused to be added, then under such circumstances, he can be arrayed as accused on the basis of the application filed by the prosecutor. In order to substantiate his arguments, he has relied upon a decision of the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others reported in AIR 2014 SC 1400. He further submits that the order of the trial Court is reasoned order and there are no good grounds to interfere with -7- the order of the trial Court and to set aside the impugned order. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. Learned counsel for the petitioner has urged many grounds but the main contention which has been taken up by him is that as per Section 319 of Cr.P.C. "if 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. For the purpose of brevity, I quote Section 319 of Cr.P.C., which reads as under:
"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 -8- 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 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 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 enquiry or trial was commenced."
On going through the above Section, the expression of "any person not being the accused"
means, a person against whom no process was issued.
A person who is not already before the Court in the -9- case, but if the accused has been included as an accused in the FIR and he has been dropped by the Police during the course of the investigation, then that person is also not included as a person who is not being the accused.
On close reading of the said Section, even the person who has been dropped by the Police during the course of the investigation, but against whom evidence showing their involvement in the offence comes before the Court, then under such circumstances, they can be included in the said expression. For the purpose of brevity, I also quote the decision of the Hon'ble Apex Court in the case of Joginder Singh Vs. State of Punjab and another reported in AIR 1979 SC 339 at paragraph 9, it has been observed as under:
"9. As regards the contention that the phrase "any person not being the accused"
occurring in S.319 excludes from its operation an accused who has been released by the police under Sec.169 of the Code and has been shown in column No.2
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of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Sec.319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression."
10. Taking into consideration of the above said facts and circumstances and in view of the decision of Hon'ble Apex Court quoted supra, the contention of the learned counsel for the petitioners that since already the petitioners have arrayed as accused in the FIR and subsequently they have been dropped in the charge sheet, the provision of Section 319 of Cr.P.C. are not applicable, is not acceptable and the same is liable to be rejected.
11. The second contention which has been taken by the learned counsel for the petitioners is that the examination-in-chief is alone done and cross-
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examination is not yet been done and as such, entertaining the application filed under Section 319 of Cr.P.C. is premature and the same is not sustainable in law. But in the decision of the Hon'ble Apex Court in the case of Hardeep Singh (Supra) that at paragraphs 82 and 83, it has been observed as under:
"82. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination- in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.
83. As held in Mohd. Shafi AIR (2007 SC 1899) (supra) and Harbhajan Singh (supra), all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no
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straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words 'such person could be tried' instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross- examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini- trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross- examination at all, for in light of sub-section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence." On going through the said paragraphs, once the examination-in-chief is conducted, the statement
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become the part of the record, it is evidence as per the law, in the true sense at best, it may be readable. Merely because the said evidence is not yet been tested in the cross examination, it cannot be said to be not as an evidence and in that light, by taking into consideration of the said evidence, if the Court entertained the application filed under Section 319 of Cr.P.C., then under such circumstances, it cannot be held to be illegal. In that light also the contention of the learned counsel for the petitioners/accused does not stand to any reason. Even on going through the evidence of CWs.1 and 2 and other materials, which has been produced clearly go to show that the prosecution has produced the materials as against the petitioners/accused and it is clearly stated in their evidence about the overt acts of the petitioners. Whether the petitioners were present at the place of incident and whether they are residing at far of place is a matter to be considered and appreciates only at the time of final
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hearing. At this premature stage, this contention cannot be accepted.
12. Taking into consideration of the above said facts and circumstances and on perusal of the order of the trial Court, the petitioners/accused Nos.2 and 3 have not made out any good grounds to set aside the impugned order. The petition is devoid of merits and is liable to be dismissed. Hence, the above Criminal Petition is dismissed.
Sd/-
JUDGE NR/-