Karnataka High Court
Kallappa And Anr vs The State Of Karnataka on 25 January, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.200099/2017
BETWEEN:
1. Kallappa S/o Vittal Talawar,
Age : 24 years, Occ: Agriculture,
2. Ubaroo S/o Modin Mulla,
Age : 26 years, Occ : Agriculture,
Both are R/o Hattalli Village,
Tq : Indi, Dist : Vijayapura.
... Petitioners
(By Sri R.S.Lagali, Advocate)
AND:
The State of Karnataka,
Through the PSI,
Chadchan P.S - 586 205
Represented by
Addl. State Public Prosecutor,
High Court of Karnataka,
Kalaburagi Bench.
... Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
2
This Criminal Revision Petition is filed under
Section 397 R/w Section 401 of Cr.P.C praying to allow the
revision petition and thereby setting aside the order dated
26.08.2017 passed by the Special Judge and II Addl.
Sessions Judge, Vijayapura in Special Case (POCSO)
No.5/2016 (arising out of Chadchan P.S Crime
No.148/2015) on the application filed by the prosecution
under Section 319 of Cr.P.C seeking the summoning of the
petitioner to face trial for the offences punishable under
Sections 363A, 376, 344 of IPC along with Sec.3(A), 6, 11,
12(I) of POCSO Act.
This revision petition coming on for Final Hearing this
day, the Court made the following:
ORDER
Heard Sri R.S.Lagali learned counsel for the petitioners and learned High Court Government Pleader for respondent/State.
2. The revision petition is filed against the order dated 26.08.2017 passed by the learned trial Judge in Special (POCSO) Case No.5/2016 which reads as under:
"Accused absent. E.P. filed.
Application U/s 319 of Cr.P.C filed.3
Heard. The prayer of the PP is genuine. Hence, issue notice to the proposed Accused by 12/09."
3. As could be seen from the order, the learned trial Judge has issued only notice to the proposed accused.
4. The brief facts of the case are as under :-
A complaint came to be filed on 05.11.2015 by one Halimbu before Chadachan Police and based on that, case was registered by the Chadachan Police Station in Crime No.148/2015 and after thorough investigation, a charge-
sheet came to be filed against Shreeshail S/o Arjun Biradar for the offences punishable under Sections 363A, 376 and 344 read with Section 34 of IPC read with Sections 3(a), 6, 11 and 12 of the Protection of Children from Sexual Offences Act, 2012.
5. The present petitioners were shown as witnesses in the said charge-sheet. However, when the trial was under progress, an application came to be filed under Section 319 of Cr.P.C and the learned trial Judge 4 without application of mind, passed the order on 26.08.2017 as referred to supra.
6. No doubt there is some force in the contention urged on behalf of the petitioner that there is no application of mind before passing the impugned order. However, by passing the impugned order, the application is not yet allowed. In a matter of this nature, the trial court is required to follow the guidelines issued by the Hon'ble Apex Court in the case of Hardeep Singh vs. State of Punjab and others reported in (2014) 2 Supreme Court Cases (Cri) 86, in the case of Jogendra Yadav and Others vs. State of Bihar reported in AIR 2015 Supreme Court 2951 which was considered by the Coordinate Bench of this court in the case of Smt.Asha Somashekar and others vs. State of Karnataka reported in 2016 (4) AKR 392.
7. In Smt.Asha's case supra, the coordinate bench of this court has laid down the guidelines for considering the application under Section 319 of Cr.P.C. 5 For ready reference the said portion in the order is culled out hereunder:-
"11. The facts mentioned in the case of JOGENDRA YADAV (supra) disclose that prior notice had been issued to the four persons sought to be added as additional accused, before including them in the array of parties. By virtue of the notice, they had been asked to show cause as to why they should not be added as additional accused. They were ultimately summoned only after hearing them, that too, by passing a detailed order. In the present case, no such prior notice is issued to the petitioners before being added as accused under Section 319, Cr.P.C.
12. What is ultimately held in the case of JOGENDRA YADAV (supra) is found in paragraph 9 of the judgment and it is reproduced below:
9. It was, however, urged by learned counsel for the appellants that in order to avail of the remedies of discharge under Section 227 of the Cr.P.C, the only qualification necessary is that the person should be accused. Learned counsel submitted that there is no difference between an accused since inception and accused who has been added as such 6 under Section 319 of the Cr.P.C. It is, however, not possible to accept this submission since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 of the Cr.P.C., is necessarily heard before being so added.
Often he gets a further hearing if he challenges the sum-morning order before the High Court and further. It seems incongruous and indeed anomalous if the two sections are construed to mean that a person who is added as an accused by the court after considering the evidence against him can avail remedy of discharge on the ground that there is no sufficient material against him. Moreover, it is settled that the extraordinary power under Section 319 of the Cr.P.C., can be exercised only if very strong and cogent evidence occurs against a person from the evidence led before the Court. It is now settled vide the Constitution Bench decision in Hardeep Singh v. State of Punjab and others {(2014) 3 SCC 92: (AIR 2014 SC 1400)} that the standard of proof employed for summoning a person as an accused under Section 319 of Cr.P.C., is 7 higher than the standard of proof employed for framing a charge against an accused. The Court observed for the purpose of Section 319 of the Cr.P.C., 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 in the case." As regards the degree of satisfaction necessary for framing a charge this Court observed in para 100:-
What is observed in the said case is that the scope of invoking Section 227, Cr.P.C. by an accused who is summoned underSection 319, Cr.P.C. does not arise since the degree of material relied upon by the court summoning him is higher than the materials placed on record in the form of charge sheet."
8. Taking note of the above principles, the trial judge is required to consider the application on merits and pass appropriate order.
9. With the above observation, pass the following 8 ORDER Criminal revision petition stands disposed of.
Sd/-
JUDGE sn