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Karnataka High Court

Irfan And Anr vs The State Of Karnataka on 22 January, 2020

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

           IN THE HIGH COURT OF KARNATAKA

                  KALABURAGI BENCH

       DATED THIS THE 22ND DAY OF JANUARY, 2020

                           BEFORE

  THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.200077/2019

Between :

1. Irfan
   S/o Iliyas Khureshi,
   Age: Major, Occ: Business,
   R/o Khureshi Nagar,
   Kurla (East), Mumbai-100001.

2. Nayim
   S/o Yakhub Chowdhari,
   Age: Major, Occ: Business,
   R/o Kasai Galli,
   Near Bus Stand,
   Belgavi.                             .. Petitioners

   ( By Sri Shivanand V. Pattanashetti, Advocate )

And:

The State of Karnataka,
R/by Addl.SPP,
High Court of Karnataka,
Kalaburgi Bench-585103.
(Through APMC P.S.
Dist: Vijayapur-586101).                .. Respondent

( By Sri Mallikarjun Sahukar, HCGP)
                                            Crl.RP.No.200077/2019
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      This Criminal Revision Petition is filed under Section
397 read with Section 401 of Cr.P.C. praying to set aside
the impugned order dated 26.7.2019, passed in Sessions
Case No.82/2018, by the Prl.Sessions Judge at Vijayapur
and consequently discharge the petitioners in the interest
of justice and equity.


      This   Criminal    Revision   Petition   coming   on   for
Admission this day, the Court made the following:


                            ORDER

The present petitioners are included as accused Nos.37 and 38 in the respondent-Police Station Crime No.143/2016, which has ultimately culminated into Sessions Case No.82/2018, pending in the Court of learned Prl.District and Sessions Court, Vijayapura, (hereinafter for brevity referred to as `trial Court') for the offences punishable under Section 370 of Indian Penal Code and Sections 14, 14(a) and 14(c) of Foreigners Amendment Act, 2004 and Section 12(1)(c) of Passport Act, 1967.

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2. The undisputed fact is that originally present two petitioners were shown as accused Nos.34 and 35 in the FIR in the same crime number of respondent- Police Station for the same alleged offences. However, the Investigating Officer while filing the charge sheet, has dropped the present petitioners as accused Nos.34 and 35 and confined filing of the charge sheet as against the remaining accused. It appears, subsequently accused No.36 was added. The learned counsel for the petitioners submitted that accused Nos.1 to 33 pleaded guilty and obtained suitable order getting set off of the duration they have undergone in the judicial custody as the term of sentence of imprisonment for the guilt pleaded by them. However, the trial against the remaining accused No.36 was continued. It appears that, during the course of the trial, after noticing that certain incriminating materials are said to have been available Crl.RP.No.200077/2019 4 against the present petitioners, the prosecution/State filed their application under Section 319 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.'), seeking impleading these two petitioners as accused Nos.37 and 38 in the pending Sessions Case No.82/2018 in the Court below. The said Court by its impugned order dated 26.7.2019, allowed the said application and the present petitioners were permitted to be included by the State showing them as accused Nos.37 and 38. The summons was ordered against them. Challenging the said order, the petitioners are before this Court.

3. Learned counsel for the petitioners in his argument canvassed only one point that before considering the application under Section 319 of Cr.P.C., the Court below ought to have issued notice to the present petitioners and only after hearing them, the trial Court ought to have disposed of the said Crl.RP.No.200077/2019 5 application filed under Section 319 of Cr.P.C. In the absence of giving any notice to them and without hearing the present petitioners/proposed accused, the trial Court has passed the impugned order, as such, the same is not sustainable. In his support, he relied upon two unreported judgments of Co-ordinate Benches of this Court in Smt.Asha and others vs. State of Karnataka, Criminal Revision Petition No.231/2016, decided on 30.3.2016, and in Sri M.Basappa and others vs. State by Birur Police Station, Criminal Petition No.380/2027, decided on 4.12.2017.

In both the above judgments, the Co-ordinate Benches of this Court after relying upon few judgments of Hon'ble Apex Court, have observed that before considering the application under Section 319 of Cr.P.C., the Court is required to issue notice to the proposed accused whose inclusion in the case as an Crl.RP.No.200077/2019 6 accused is sought by the applicant. According to the petitioners in the instant case, the trial Court before passing the impugned order has not issued any notice to them, as such, they did not appear and contest the application.

Learned High Court Government Pleader fairly concedes that no such notice was ordered by the Court below.

4. A perusal of the certified copy of the order sheet of the impugned order maintained by the trial Court would also go to show that subsequent to filing of the application under Section 319 of Cr.P.C., which was on 18.6.2019, the trial Court partly heard the arguments on the said application on the next date of hearing which was on 3.7.2019 and proceeded to pass the impugned order on 26.7.2019. As such, there is no material to hold that any prior notice upon the said Crl.RP.No.200077/2019 7 application was given to the proposed accused before hearing on the application filed under Section 319 of Cr.P.C. Thus, the trial Court which was required to give notice to the proposed accused since has not given such notice, the impugned order deserves to be set aside and the application filed by the applicant/State under Section 319 of Cr.P.C. requires to be restored on the file of the trial Court for its hearing afresh and in accordance with law and after issuing notice to the proposed accused shown in the said application. At the same time, in order to avoid any further delay in the pending Sessions Case No.82/2018, it is considered fair to direct both the petitioners herein to appear before the trial Court to receive the notice if ordered by the trial Court, so that the time that would taken for the service of notice upon them could be saved.

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Accordingly, the Criminal Revision Petition stands allowed in part. The impugned order dated 26.7.2019, passed by the learned Prl.District and Sessions Judge, Vijayapura, in Sessions Case No.82/2018, allowing the application filed under Section 319 of Cr.P.C., is set aside and the application filed by the applicant/State under Section 319 of Cr.P.C. in the trial Court is restored on its file, with a direction to the trial Court to issue notice to the proposed accused (petitioners herein) on the said application and give them an opportunity to hear on the said application and then proceed to dispose of the said application in accordance with law.

The petitioners herein are directed to appear before the trial Court without anticipating any fresh notice or summons by the trial Court on the said application filed under Section 319 of Cr.P.C., on 10.2.2020.

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Registry to transmit a copy of this order to the Court below immediately.

Sd/-

JUDGE bk/