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2023. KHC-K:7643 CRL.RP No.200062 of 2022 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE23D DAY OF SEPTEMBER, 2023 BEFORE THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL REVISION PETITION No.200062 OF2022(397) BETWEEN: RENUKA @ SHIVUBAI W/O. SHRISHAIL BYALYAL AGE:
26. YEARS, OCC: HOMEMAKER, R/O. NEBAGERI, TQ. MUDDEBIHAL, DIST. VIJAYAPURA-586212. …PETITIONER (BY SRI. KADLOOR SATYANARAYANACHARYA, ADVOCATE) AND:
1. SIDDAPPA S/O. CHANDAPPA BYALYAL AGE:
40. YEARS, OCC: AGRICULTURE, R/O. NEBAGERI, TQ. MUDDEBIHAL, DIST. VIJAYAPURA-586212.
2. THE STATE THROUGH, CIRCLE INSPECTOR, MUDDEBIHAL PS-586212, RPTD. BY ADDL. SPP, HIGH COURT OF KARNATAKA, KALABURAGI BENCH-585103. …RESPONDENTS (BY SRI. ANILKUMAR NAVADAGI, ADVOCATE, FOR R1; SMT. ANITA M. REDDY, HCGP FOR R2) - 2 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 THIS CRL.RP IS FILED U/S397R/W SEC. 401 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED0107-2022 PASSED BY HON'BLE III ADDL. DIST. AND SESSIONS COURT, VIJAYAPURA, ON I.A FILED U/SEC.319 CR.PC IN S.C.NO.47/2017 AND PASS NECESSARY ORDER
S DIRECTING THE TRIAL COURT TO ARRAIGN THE PROPOSED ACCUSED/RESPONDENT NO.1 HEREIN, AS ONE OF THE ACCUSED IN SC.NO.47/2017. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard the learned counsel for the petitioner, learned counsel for respondent No.1 and learned High Court Government Pleader for respondent No.2 - State.
2. The petitioner has filed this petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') praying to set aside the order dated 01.07.2022 passed by the learned III Additional District and Sessions Judge, Vijayapura (for short 'Trial Court') in S.C.No.47/2017 on an application filed under Section 319 of Cr.P.C.-. 3 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 3. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. The petitioner is the de-facto complainant, respondent No.1 is the proposed accused and respondent No.2 is the complainant/State.
4. Brief facts of the prosecution case are that, on the written complaint filed by petitioner against accused Nos.1 to 4 (her in laws) alleging that, since 2 to 3 months prior to 22.03.2016 accused Nos.1 to 4 were harassed her deceased husband and PW.6 - Renuka and tortured them, thus, they attempted to committ suicide, however, PW.6 survived and her husband died on 22.03.2016 at 11.00 a.m. in Nebageri village, Muddebihal taluka, hence, the jurisdictional police registered a case in Crime No.90/2016 for the offences punishable under Section 498-A and 306 of the Indian Penal Code, 1860 (for short 'IPC').
5. Initially UDR was registered and during the course of investigation, FIR came to be registered against - 4 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 in all four accused persons, however, the Investigating Officer deleted the name of accused No.3 - Siddappa S/o Chandappa, thus, he was not sent up for trial. The Trial Court framed charges against accused No.1 - Chandappa, accused No.2 - Neelamma and accused No.3 - Basavaraj for the aforesaid offences. During the course of evidence, PW.6 - Renuka, PW.8 - Chanamma Patil and PW.9 - Shivanagouda Patil have deposed against the proposed accused - Siddappa (shown as accused No.3 in FIR) and his role played in commission of the offence. Therefore, PW.6 filed an application under Section 319 of Cr.P.C. before the Trial Court, however, the Trial Court rejected the said application on 01.07.2022. Aggrieved by the order passed by the Trial Court, PW.6 - Renuka has filed this petition.
6. The learned counsel for the petitioner submitted that, as per the complaint averments, the allegation against accused No.1 - Chandappa, accused No.2 - Neelamma who are in-laws of petitioner and accused No.3 - 5 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 - Basavaraj brother-in-law of petitioner and proposed accused No.3 - Siddappa elder brother-in-law of petitioner, complaining that, they all with a common intention subjected the petitioner to physical and mental cruelty including her husband (deceased - Shrishail), whenever her husband came to her rescue, questioning them and he was teased for supporting her and asking the petitioner and her husband not to stay in the house and at that time petitioner and her husband demanded share in the family properties, thus, accused Nos.1 to 3 and proposed accused - Siddappa abused PW.6 and her husband in filthy language and asked both petitioner and her husband to go and die elsewhere by leaving the house, thus, being frustrated by the harassment made by accused Nos.1 to 3 and proposed accused - Siddappa, both the petitioner and her husband consumed poison on 22.03.2016 to commit suicide and on this process, petitioner - Renuka survived, whereas, her husband Shrishail died.-. 6 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 7. The learned counsel for respondent No.2 vehemently argued and submitted that, Investigating Officer has rightly investigated the matter and as there was no allegation against the proposed accused, the proposed accused was not sent up for trial, but, in the evidence, PWs.6, 8 and 9 have made general and omnibus allegations so as to attract Sections 498-A and 306 of IPC, therefore, the Trial Court has rightly rejected the application filed under Section 319 of Cr.P.C., hence, learned counsel relied upon the judgment of the Hon'ble Apex Court in the case of Hardeep Singh vs. State of Punjab and Others reported in (2014) 3 SCC92 8. The learned High Court Government pleader for respondent No.2 vehemently contended and submitted that, the name of proposed accused is shown in the FIR, but, he was not sent up for trial, whereas, in the evidence, the name of proposed accused is also stated by PWs.6, 8 and 9 and his active role played while commission of the offences and there is sufficient material against the - 7 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 proposed accused, hence, the Court may pass suitable orders in accordance with law.
9. Perused the complaint. In the complaint, the complainant has made specific allegation against accused No.1 - Chandappa, accused No.2 - Neelamma, accused No.3 - Siddappa and accused No.4 - Basavaraj, however, the Investigating Officer did not sent up accused No.3 - Siddappa for trial, whereas, in the evidence of PW.6, in page No.2 at paragraph Nos.3, 4 and 7, she categorically stated against proposed accused - Siddappa along with accused Nos.1 to 3. On perusal of the evidence of PW.8 - Chanamma Patil, the mother of PW.6 and mother-in-law of deceased, in categorical terms, she has stated about the role played by the proposed accused - Siddappa.
10. Further, PW.9 - Shivanagouda Patil, brother-in- law of deceased and brother of PW.6, has also in categorical terms stated about the role played by the proposed accused - Siddappa and harassment given by - 8 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 him to PW.6 - Renuka and her husband - Shrishail. It shows that, there is prima facie material against the proposed accused to proceed in trial. Under such circumstances, it is just and necessary to analyze 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 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 - 9 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 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 reheard; (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.
11. On perusal of the above proposition of law, the Court may issue summons to the proposed accused, if there is material against proposed accused in the evidence.
12. The case can be proceeded under Section 319 of Cr.P.C. if evidence produced in the course of trial on an offence, the Court is prima facie satisfied that such person has committed an offence, for which he can be tried with other accused. This ratio is laid down in the case of - 10 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 Suman Vs. State of Rajasthan reported in AIR2010SC518 13. In order to apply Section 319 of Cr.P.C., it is essential that, need to proceed against a person other than the accused appearing to be guilty of an offence, arises only on the evidence recorded in the course of any enquiry or trial.
14. The Hon'ble Apex Court in the case KANCHAN SHARMA v. STATE OF UTTAR PRADESH AND ANOTHER reported in (2021) 13 SCC806has held as under:
"14. In the judgment in S.S. Chheena v. Vijay Kumar Mahajan this Court reiterated the ingredients of offence of Section 306 IPC. Paragraph 25 of the judgment reads as under:
25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, - 11 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
15. On perusal of the material available on record, particularly, the evidence of PWs.6, 8 and 9, there is a prima facie case for framing charge under Section 306 of IPC, as there is nexus and proximity with the conduct and behaviour of the proposed accused-Siddappa with that of the suicide committed by deceased.
16. The Hon'ble Apex Court in the case of HARDEEP SINGH v. STATE OF PUNJAB AND OTHERS reported in (2014) 3 SCC92at paragraph Nos.105, 106, 107 has held as under: - 12 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 105. Power under Section 319 Cr.P.C. 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 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 Cr.P.C. In Section 319 Cr.P.C. 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 - 13 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 “for which such person could be convicted”. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. xxx xxx xxx 107. In Joginder Singh v. State of Punjab, a three- Judge Bench of this Court held that as regards the contention that the phrase “any person not being the accused” occurring in Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police under Section 169 Cr.P.C. and has been shown in Column 2 of the charge-sheet, the contention has merely 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 Section 319(1) Cr.P.C. 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.” - 14 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 17. The Hon’ble Apex Court in the case of SUKHPAL SINGH KHAIRA v. STATE OF PUNJAB reported in 2022 LIVELAW (SC) 1009 at paragraph No.16 has held as under: “16. In the above backdrop, the issue relating to the power to be exercised under Section 319 of CrPC had arisen for detailed consideration in Hardeep Singh (supra) wherein the scope, procedure and the stage at which such power was to be exercised was considered and summarised as follows:- 12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.
13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what - 15 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?.
15. It would be necessary to put on record that the power conferred under Section 319 CrPC is only on the court. This has to be understood in the context that Section 319 CrPC empowers only the court to proceed against such person. The word “court” in our hierarchy of criminal courts has been defined under Section 6 CrPC, which includes the Courts of Session, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Session is defined in Section 9 CrPC and the Courts of the Judicial Magistrates have been defined under Section 11 thereof. The Courts of the Metropolitan Magistrates have been defined under Section 16 CrPC. The courts which can try offences committed under the Penal Code, 1860 or any offence under any other law, have been specified under Section 26 CrPC read with the First Schedule. The Explanatory Note (2) under the heading of “Classification of offences” under the First Schedule specifies the expression “Magistrate of First Class” and “any Magistrate” to include Metropolitan Magistrates who are - 16 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 empowered to try the offences under the said Schedule but excludes Executive Magistrates.
40. Even the word “course” occurring in Section 319 CrPC, clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the entire wide range of the process of the pre- trial and the trial stage. The word “course” therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry up to the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word “course” ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time : duration and not a fixed point of time.
42. To say that powers under Section 319 CrPC can be exercised only during trial would be reducing the impact of the word “inquiry” by the court. It is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the - 17 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim a verbis legis non est recedendum which means, “from the words of law, there must be no departure” has to be kept in mind.
47. Since after the filing of the charge- sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the chargesheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pretrial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre- trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to - 18 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session.
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 chargesheet or any other person who might be an accomplice.
18. On perusal of the decisions cited supra, it appears that the decision to summon an additional accused either suo moto by the Court, or on an application under Section 319 of Cr.P.C. shall in all eventually be considered and disposed of before the judgment of - 19 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 conviction and sentence is pronounced, as otherwise the trial would get concluded and the Court will get divested of the power under Section 319 of Cr.P.C.
19. Further, the Hon’ble Apex Court in the case of SUKHPAL SINGH KHAIRA (supra) has elaborately discussed the scope of Section 319 of Cr.P.C. and issued certain guidelines, which reads as under: “33. For all the reasons stated above, we answer the questions referred as hereunder:- “I. Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other coaccused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?. The power under Section 319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced.-. 20 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable. II. Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?. The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion. III. What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?.” - 21 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 (i) If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. (ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. (iii) If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. (iv) If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. (v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. (vi) If the decision is that the summoned accused can be tried separately, on such order being made, there - 22 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with. (vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case. (viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial. (ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing. (x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.-. 23 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 (xi) Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. (xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier; (a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused. (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused.
20. On perusal of the material available on record, the impugned order and the decisions cited supra, it appears that there is prima-facie material against the proposed accused-Siddappa to proceed in the trial for the alleged offences along with accused Nos.1 to 3, but the trial Court, without analysing the evidence of PWs.6, 8 and 9 and the legal aspects, declined to allow the application - 24 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 filed under Section 319 of Cr.P.C. Hence, I pass the following ORDER
i. The revision petition is allowed. ii. The order dated 01.07.2022 passed by the III Additional District and Sessions Judge, Vijayapura, in Sessions Case No.47 of 2017 is hereby set aside. The application filed by PW.6-Smt. Renuka under Section 319 of the Code of Criminal Procedure, 1973, is allowed. The trial Court is directed to proceed against the proposed accused-Siddappa in accordance with the SUKHPAL SINGH guidelines issued in the case of KHAIRA v. STATE OF PUNJAB reported in 2022 LIVELAW (SC) 1009.-. 25 - NC:
2023. KHC-K:7643 CRL.RP No.200062 of 2022 The Registry is directed to send copy of the order to Trial Court forthwith. Sd/- JUDGE SRT - para Nos.1 to 13 KVK – paragraph Nos.14 to 20 List No.:
1. Sl No.:
2.