Karnataka High Court
Mr Sangamesha vs State Of Karnataka on 6 April, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 6TH DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No. 2832 OF 2017
BETWEEN:
1. Mr.Sangamesha,
S/o Bellada Kotrappa,
Aged about 39 years.
2. Mr.B.K.Mohan,
S/o Bellada Kotrappa,
Aged about 49 years.
3. Mr.Ganesh,
S/o B.K.Sangamesha,
Aged about 23 years.
4. Mr.Basavaraj,
S/o B.K.Sangamesha,
Aged about 22 years.
(Petitioners Nos.1 to 4 are
Residents of Parvathi Krupa,
O.S.M. Road,
Halenagar, Bhadravathi,
Shivamogga District.
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5. Mr.Jagadesh @ Jagannath,
S/o Bellada Kotrappa,
Aged about 53 years,
Resident of Nandi Nivasa,
Madavanagar, Tarikere Road,
Bhadravathi,
Shimoga District - 577 201.
...Petitioners
(By Shri P.N.Hegde, Advocate)
AND:
1. State of Karnataka,
Through Bhadravathi Paper Town P.S.,
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru - 560 001.
2. C.Mahesh Kumar,
S/o Chikkaiah,
R/o No.137, " Arunamane"
Gandhinagar,
Bhadravathi,
Shivamogga.
...Respondents
(By Shri Vijayakumar Majage, Additional
State Public Prosecutor for R-1)
This Criminal Petition is filed under Section 482 Of
Code of Criminal Procedure praying to quash the order dated
21.03.2017 passed by the IV Additional District and S.J.,
Shivamogga sitting at Bhadravathi in S.C.No.219/2011.
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This Criminal Petition coming on for Admission this day,
the court made the following:
ORDER
Heard the learned Counsel for the petitioners. The petitioners are aggrieved by the following circumstances:
The petitioners were said to be accused in Crime No.74/2014 on the file of the Bhadravathi Paper Town Police Station for offences punishable under Sections 120-B, 147, 307 read with Section 149 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity).
It transpires that the Criminal Investigation department had taken over investigation and had laid a charge sheet against one Jagadish and did not think fit to send the petitioners to trial on the ground of lack of evidence. The Trial Court having framed charges against the sole accused Jagadish, had proceeded to record the evidence of the prosecution witnesses.
It transpires that four witnesses were examined. The prosecution had then filed an application under Section 319 of 4 the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'CrPC', for brevity), seeking that the court include the petitioners as the accused in the matter. The Trial Court has accepted the application and has straight away sought to issue summons to the petitioners naming them as the accused. It is that which is under challenge in the present petition.
2. Though Section 319 of the CrPC does not contemplate the issuance of a show-cause notice to the person arraigned as an accused, the point has arisen for consideration before the Supreme Court in the case of Jogendra Yadav vs. State of Bihar, Criminal Appeal No.343/2012, decided on 15.7.2015. The apex court has noticed that the accused is not necessarily heard since inception before he is added as the accused. But however, a person who is added as an accused in terms of Section 319 CrPC is necessarily heard before being so added. Often he gets a further hearing if he so challenges the summoning order before the High Court. It can be incongruous and indeed anomalous when two sections are construed to 5 mean, namely, Section 227 of the CrPC and Section 319 of the CrPC, that a person who is added as an accused by the court after considering the evidence against can avail remedy of discharge on the ground that there is no sufficient material evidence against him. It is further observed that it is settled that the extra-ordinary power under Section 319 of the CrPC can be exercised only if very strong and cogent evidence occurs against a person from the evidence lead before the court. This is a position settled by a Constitution Bench decision in Hardeep Singh vs. State of Punjab and others, (2014)3 SCC 92, namely, that the standard of proof employed for summoning a person as accused under Section 319 of CrPC is higher than the standard of proof employed for framing a charge against the accused. The Court had observed that for the purpose of Section 319 of the CrPC, that "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 the conviction of a person sought to be added as the accused 6 in the case." As regards the degree of satisfaction necessary for framing a charge, the Supreme Court has observed thus :
"100. However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The Court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further."
The Court has concluded in para 106 as follows:-
"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 7 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."
Therefore, it was concluded that a person who is summoned as an accused to stand trial and added as such to the proceedings on the basis of a stricter standard of proof can be allowed to be discharged from the proceedings on the basis of a lesser standard of proof such as a prima facie connection with the offence necessary for charging the accused. Since section 227 CrPC is unavailable to an accused, who has been added under Section 319 CrPC, the Supreme Court has taken a view that the exercise undertaken by a court under Section 319 of the CrPC for summoning an accused on the basis of a higher standard of proof would be rendered totally infructuous and futile, if the same court were to subsequently discharge the same accused by exercise of power under Section 227 of the CrPC on the basis of a more prima facie view. Therefore, the exercise of power under Section 319 of the CrPC must be 8 placed on a higher pedestal and therefore, it was concluded that the accused summoned under Section 319 CrPC are entitled to invoke the remedy in law against an illegal or improper exercise of power under section 319, but cannot have the effect of the order undone by seeking a discharge under Section 227 of the CrPC. In any event, it would appear that in the case in which the Supreme Court had rendered the judgment aforesaid, was a case where a show cause notice had been issued to the accused and he had been heard and it is upon reasoning of the court negating the submissions made at the hearing that an appeal had been preferred. Whereas in the present case on hand, there is no notice issued to the accused before they are arraigned as accused and summoned before the court. Hence, they should be given an opportunity of hearing given the scheme of the law. The petitioners having been summoned without there being a show cause notice and being heard is bad in law.
Consequently, the petition is summarily allowed. The order impugned is therefore set at naught. The summons shall 9 be treated as show-cause notice issued to show-cause as to why they should not be made the accused and they shall be given an opportunity of hearing in this regard before the court proceeds in accordance with law.
Sd/-
JUDGE nv