1 R Reserved on :
02. 07.2024 Pronounced on :
19. 07.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE19H DAY OF JULY, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.7280 OF2022C/W CRIMINAL PETITION No.274 OF2022IN CRIMINAL PETITION No.7280 OF2022BETWEEN: THE STATE OF KARNATAKA BY NUGGEHALLI POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001. ... PETITIONER (BY SMT.RASHMI JADHAV, ADDL. SPP) AND: D.T. KRISHNEGOWDA S/O LATE THIMMAPPA AGED ABOUT76YEARS, 2 RESIDENT OF DEVIGERE VILLAGE KASABA HOBLI, CHANNARAYAPATNA TALUK HASSAN – 573 131. ... RESPONDENT (BY SMT.SHOBHA H.K., ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO1SET ASIDE THE
ORDERDATED1712.2021 PASSED IN S.C.NO.81/2015 ON THE FILE OF IV ADDL. DISTRICT AND SESSIONS JUDGE, HASSAN AT CHANNARAYAPATNA; 2.DIRECT THE LEARNED DISTRICT AND SESSIONS JUDGE TO TAKE JUDICIAL CUSTODY OF HARISH AS ACCUSED NO.2 IN S.C.NO.81/2015 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT AT CHANNARAYAPATNA. IN CRIMINAL PETITION No.274 OF2022BETWEEN: RATHNAMMA K.S., W/O LATE KARNA D.T., AGED ABOUT60YEARS RESIDENT OF THOTADA MANE DEVIGERE VILLAGE KASABA HOBLI CHANNARAYAPATTANA TALUK HASSAN DISTRICT – 573 116. ... PETITIONER (BY SRI PRATHEEP K.C., ADVOCATE) 3 AND:
1. . THE STATE OF KARNATAKA REPRESENTED BY NUGGENAHALLI POLICE STATION CHANNARAYAPATNA TALUK HASSAN DISTRICT REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . D.T.KRISHNEGOWDA S/O LATE THIMMAPPA AGED ABOUT77YEARS RESIDENT OF DEVIGERE VILLAGE KASABA HOBLI CHANNARAYAPATTANA TALUK HASSAN – 573 116. 3 . HARISH D.K., S/O D.T.KRISHNEGOWDA AGED ABOUT45YEARS RESIDENT OF DEVIGERE VILLAGE KASABA HOBLI CHANANRAYAPATTANA TALUK HASSAN DISTRICT – 573 116. ... RESPONDENTS (BY SMT.RASHMI JADHAV, ADDL.SPP FOR R-1; SMT.SHOBHA H.K., ADVOCATE FOR R-2 AND R-3) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE
ORDERDATED1712.2021 IN S.C.NO.81/2015 PENDING ON THE FILE OF IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, AT CHANNARAYAPATNA AND CONSEQUENTLY ALLOW THE APPLICATION U/S319OF CR.P.C. 4 THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0207.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDERThese petitions call in question a solitary order. Criminal Petition No.7280 of 2022 is preferred by the respondent/State and Criminal Petition No.274 of 2022 is preferred by the complainant. They call in question an order dated 17-12-2021, passed by the 4th Additional District and Sessions Judge, Hassan District at Channarayapatna, in S.C.No.81 of 2015 by which, the concerned Court rejects the application of the prosecution to bring in the 3rd respondent in Criminal Petition No.274 of 2022 as an accused for conduct of trial with respect to offences punishable under Sections 307, 324, 504 and 506 of the IPC.
2. Heard Smt. Rashmi Jadhav, learned Additional State Public Prosecutor appearing for the petitioner in Crl.P.No.7280 of 2022 and respondent No.1 in Crl.P.No.274 of 2022; Smt. H.K. Shobha, learned counsel appearing for the respondent in Crl.P.No.7280 of 2022 and respondents 2 and 3 in Crl.P.No.274 of 2022. Sri K.C. 5 Pratheep, learned counsel appearing for the petitioner/complainant in Crl.P.No.274 of 2022.
3. Facts, in brief, germane are as follows:- For the sake of convenience facts obtaining in Criminal Petition preferred by the complainant are narrated. A complaint comes to be registered on 02-07-2014 which becomes a crime in Crime No.99 of 2014 for offences punishable under Sections 504, 324, 506, 307 r/w 34 of the IPC. The police conduct investigation and file a charge sheet. While filing the charge sheet, they drop accused No.2, one D.K. Harish. Trial goes on. On 13-03-2019 the prosecution witness No.1, the complainant is examined. While tendering herself for cross-examination it is deposed that the 3rd respondent/D.K. Harish who has been dropped while filing the charge sheet, also participated in the crime by assaulting the complainant and PWs-2 and 3 were the witnesses to the said incident. After examination of PWs-1 to 3, the prosecution files an application under Section 319 of the Cr.P.C., seeking to bring back the 3rd respondent into the web of trial as an accused. Objections 6 were filed by the 3rd respondent. Considering the application and the objections, the concerned Court rejects the application filed by the prosecution to bring back the 3rd respondent as an accused for conduct of trial. It is this order dated 17-12-2021 that has driven both the complainant and the prosecution/State to this Court in these petitions.
4. The learned counsel appearing for the complainant and the learned Additional State Public Prosecutor, would in unison, contend that the concerned Court has wholly erred in not permitting the 3rd respondent to be brought back into the web of crime as, according to the three witnesses, he was the one who inflicted injuries using a club. The club is recovered and, therefore, the 3rd respondent ought to be tried along with the other accused. The learned counsel would submit that the application be allowed, as it is within the parameters of what the Apex Court has held in plethora of cases, as to when the accused who has been dropped at the time of filing of the charge can be brought back into the web of crime. 7
5. Per contra, the learned counsel representing the 3rd respondent would vehemently refute the submissions to contend that the 3rd respondent was not even present at the alleged scene of crime. It is, on this ground, he has been dropped pursuant to investigation. He is a practicing Advocate and at that point in time he was appearing before the Assistant Commissioner and his initials are clearly marked in the order sheet thereto and therefore there is no warrant of interference with the order passed by the concerned Court. The father of respondent No.3 is accused No.1 and the trial against him is on. Since the 3rd respondent was not present at the scene of crime, merely on the statement of interested witnesses, he cannot be brought back into the web of crime. She would submit that PW-1 is the victim, PW-2 is the brother of the victim and PW-3 is a coolie who deposes that he has seen the accused after 7 years of such happening. He says that he is not related to anybody but was a passerby. She would submit that whatever is stated by PW-3 is highly improbable. She would seek dismissal of both the petitions. 8
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The story begins with an incident on 02-07-2014. It results in registration of crime in Crime No.99 of 2014. The allegation was that the complainant was assaulted with chopper and the 3rd respondent has tried to assault the complainant with a club. The complainant sustained injuries on the left thigh and falls down. It is after that, accused No.1 is alleged to have tried to throw a stone upon the complainant and at that juncture the brother of the complainant intervened and took the complainant in an ambulance for treatment. She was later admitted to Government Hospital at Channarayapatna where statement was recorded and a crime in Crime No.99 of 2014 was registered for the aforesaid offences. The 3rd respondent/D.K. Harish was arrayed as accused No.2 and the father of the 3rd respondent/D.K.Krishnegowda as accused No.1. The police conduct investigation. Conduct of investigation leads to filing of the charge sheet. Summary of the charge sheet as obtaining in column 17 reads as follows:
9. “17. PÉù£À ¸ÀAQë¥ÀÛ ¸ÁgÁA±À PÀ®A.504-324-506-307 L¦¹ ¢£ÁAPÀ 02-07-2014 gÀAzÀÄ ªÀÄzÁåºÀß 03-30 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è £ÀÄUÉÎúÀ½î ¥Éưøï oÁuÉ ¸ÀgÀºÀ¢ÝUÉ ¸ÉÃjzÀ, zÉëUÉgÉ UÁæªÀÄzÀ ¸ÁQë-1 gÀªÀgÀ ¨Á§ÄÛ ªÀÄ£É ªÀÄÄA¢£À d«Ää£À°è ¸ÁQë-1 gÀªÀgÀÄ ºÁUÀÆ EvÀgÀgÀÄ ªÉÄPÉÌeÉÆüÀ ©vÀÛ£É ªÀiÁr ¯ÉªÉ¯ï ªÀiÁqÀÄwÛzÁÝUÀ PÁ®A £ÀA.12gÀ°è PÀAqÀ DgÉÆæ CªÀgÀ ¨Á§ÄÛ PÁgï £ÀA PÉJ13 JA.9677 gÀ°è §AzÀÄ d«ÄãÀÄ «ZÁgÀzÀ°è ºÀ¼ÉÃAiÀÄ zÉéõÀ¢AzÀ CªÁZÀÑ ±À§ÝUÀ½AzÀ ¨ÉÊzÀÄ, ªÀÄaѤAzÀ vÀ¯ÉUÉ ºÉÆqÉzÀÄ ªÀiÁgÁuÁAwPÀ ºÀ¯Éè £Àqɹ ªÀÄvÀÄÛ zÉÆuÉÚ¬ÄAzÀ ªÉÄÊPÉÊUÀ½UÉ ºÉÆqÉzÀÄ gÀPÀÛUÁAiÀÄ¥Àr¹ ¥ÀÄ£À:ºÀ PÀ®è£ÀÄß JwÛºÁQ F ªÀÄÄAqÉAiÀÄ£ÀÄß ¸Á¬Ä¹ F d«ÄãÀ£ÀÄß ªÀ±À¥Àr¹PÉƼÀÄîvÉÛãÉAzÀÄ ¸ÁQë-1 gÀªÀjUÉ ºÉÆqÉzÀÄ ¸ÁªÀiÁ£Àå ¸ÀégÀÆ¥ÀzÀ gÀPÀÛUÁAiÀÄ¥Àr¹gÀĪÀÅzÀÄ vÀ¤SɬÄAzÀ zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ DzÀjAzÀ DgÉÆæAiÀÄ «gÀÄzÀÝ zÉÆõÁgÉÆÃ¥Àt ¥Àv.Àæ”
(Emphasis added)While filing the charge sheet, accused No.2/D.K. Harish, is dropped. Dropping of his name is on the score that D.K. Harish, a practicing Advocate was not present at the scene of crime. During conduct of investigation three witnesses were examined inter alia. Those three witnesses were the victim, brother of the victim and one Krishna who addresses himself as a coolie. After recording the statements of all the three witnesses, accused No.2 comes to be dropped while filing the charge sheet on 30-09-2014. The trial commences. During the trial, PW-1 tenders herself for examination and cross- examination. This happens on 13-03-2019. The relevant portion of the evidence of PW-1 reads as follows: “.... …. …. £ÁåAiÀiÁ®AiÀÄzÀ C£ÀĪÀÄw ªÉÄÃgÉUÉ ªÀÄÄzÉݪÀiÁ®ÄUÀ¼À ªÉÄðzÀÝ ªÉƺÀgÀÄUÀ¼À£ÀÄß vÉUÉAiÀįÁ¬ÄvÀÄ. F ªÀÄaѤAzÀ¯Éà DgÉÆæ £À£Àß vÀ¯ÉUÉ ºÉÆqÉzÀ, F ªÀÄZÀÑ£ÀÄß ªÀÄĪÀiÁ-1 JAzÀÄ 10 UÀÄwð¸À¯Á¬ÄvÀÄ. FUÀ £À£ÀUÉ vÉÆjzÀ zÉÆuÉÚ¬ÄAzÀ¯Éà ºÀjñÀ £À£Àß ªÀÄÄAUÉÊUÉ ªÀÄvÀÄÛ J® vÉÆqÉUÉ ºÉÆqÉzÀ. F zÉÆuÉÚAiÀÄ£ÀÄß ªÀÄĪÀiÁ-2 JAzÀÄ UÀÄwð¸À¯Á¬ÄvÀÄ. EzÉà PÀ®è£ÀÄß JwÛPÉÆAqÀÄ £À£ÀߣÀÄß PÉÆ¯É ªÀiÁqÀÄvÉÛÃ£É JAzÀÄ DgÉÆæ PÀȵÉÚÃUËqÀ §A¢zÀÝ, F PÀ®è£ÀÄß ªÀÄĪÀiÁ-3 JAzÀÄ UÀÄwð¸À¯Á¬ÄvÀÄ. £À£Àß vÀ¯É¬ÄAzÀ ¸ÁPÀµÀÄÖ gÀPÀÛ ¸ÉÆÃjvÀÄ. ¹ÃgÉ ªÀÄvÀÄÛ gÀ«PÉ gÀPÀÛªÁVvÀÄÛ. ¢:
04. 07.2014 gÀAzÀÄ ¥ÉưøÀgÀÄ D¸ÀàvÉæUÉ §AzÀÄ gÀPÀÛªÁVzÀÝ £À£Àß ¹ÃgÉ ªÀÄvÀÄÛ gÀ«PÉAiÀÄ£ÀÄß vÉUÉzÀÄPÉÆAqÀgÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è §gÉzÀÄPÉÆAqÀgÀÄ. D §gÀªÀtÂUÉ EzÉà DVzÉ CzÀÄ C¤-2 JAzÀÄ £À£Àß ¸À»AiÀÄ£ÀÄß C¤-2(J) JAzÀÄ UÀÄwð¸À¯Á¬ÄvÀÄ. ¹ÃgÉ EzÉà DVzÉ CzÀ£ÀÄß ªÀÄĪÀiÁ-4 JAzÀÄ, gÀ«PÉAiÀÄ£ÀÄß ªÀÄĪÀiÁ-5 JAzÀÄ UÀÄwð¸À¯Á¬ÄvÀÄ. DgÉÆæ PÀȵÉÚÃUËqÀ £À£Àß UÀAqÀ£À CtÚ. ¥Àæ«Ãt £À£Àß vÀªÀÄä. PÀȵÀÚ ªÄÀvÄÀÛ ²ªÀ°AUÉÃUËqÀ PÀ®ÌgÉ UÁæªÀÄ¢AzÀ D ¢£À £À£ÀUÉ PÀÆ° PÉ®¸ÀPÉÌ §A¢zÀÝgÀÄ. ¥Ánà ¸ÀªÁ®Ä: DgÉÆævÀgÀ ¥ÀgÀ £ÁåAiÀĪÁ¢UÀ¼ÁzÀ ²æà n J¸ï ¥ÀæPÁ±ï gÀªÀjAzÀ: ¸ÀzÀjAiÀĪÀgÀÄ G½zÀ ¥ÀævÀåPÀë ¸ÁQëzÁgÀgÁzÀ PÀȵÀÚ, ¥Àæ«Ãt ªÀÄvÀÄÛ ²ªÀ°AUÉÃUËqÀ EªÀgÀÄUÀ¼À ªÀÄÄRå «ZÁgÀuÉ ªÀÄÄPÁÛAiÀÄUÉƼÀÄîªÀ vÀ£ÀPÀ ¥ÁnøÀªÁ®£ÀÄß ªÀÄÄAzÀÆqÀ®Ä PÉÆÃgÀÄvÁÛgÉ.”
(Emphasis added)PW-1 narrates that D.K. Harish has assaulted the complainant with a club. PW-2 also narrates identically. They are the brother and sister. One Krishna, PW-3 is examined. He is said to be a coolie, an independent witness. His examination is as follows: “¥Áæ¸Á-1, ZÁ¸Á-2, 4 UÉÆvÀÄÛ. £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄA¢gÀĪÀ DgÉÆæ PÀȵÉÚÃUËqÀ UÉÆvÀÄÛ. ¢:
02. 07.2014 gÀAzÀÄ ªÀÄzÁsåºÀß 1.30 UÀAmÉ £ÀAvÀgÀ £ÁªÀÅ ¥Áæ¸Á-1 gÀªÀgÀ d«ÄäUÉ ©vÀÛ£É ªÀiÁqÀ®Ä ºÉÆÃVzÉݪÀÅ. DUÀ ¸ÀzÀj vÉÆÃlzÀ°è eÉÆüÀ ©vÀÛ£É ªÀiÁqÀĪÁUÀ DgÉÆæ C°èUÉ §AzÀÄ ªÀÄaѤAzÀ ¥Áæ¸Á-1 gÀªÀgÀ vÀ¯ÉAiÀÄ JqÀ¨ÁsUÀPÉÌ ºÉÆqÉzÀ. DPÉUÉ gÀPÀÛUÁAiÀĪÁ¬ÄvÄÀ. PÀÆqÀ¯Éà DPÉ PÀĹzÀÄ©zÀݼÀÄ. C°èAiÉÄà EzÀÝ DgÉÆæ ºÀjñÀ zÉÆuÉÚ¬ÄAzÀ gÀvÀߪÀÄä½UÉ ºÉÆqÉzÀ. £Á£ÀÄ ªÀÄvÀÄÛ ²ªÀ°AUÉÃUËqÀ ¥Àæ«Ãuï CªÀgÀ£ÀÄß ©r¹zɪÀÅ. DgÉƦ gÀvÀߪÀÄä¼À£ÀÄß ¸Á¬Ä¹©qÀĪÀÅzÁV CªÁZÀå ±À§ÝUÀ½AzÀ ¨ÉÊzÀÄ PÀ°è¤AzÀ ¨ÉzÀjPÉ ºÁQzÀ. £ÀAvÀgÀ D¸àÀvæÉUÉ ¸ÁV¸À®Ä CA§Ä¯É£ïì PÀgɹzɪÀÅ. ZÀ£ÀßgÁAiÀÄ¥ÀlÖt ¸ÀPÁðj D¸ÀàvÉæUÉ gÀvÀߪÀÄä¼À£ÀÄß £ÁªÅÀ ªÀÄƪÀgÀÄ PÀgÉzÀÄPÉÆAqÀÄ §AzɪÀÅ. zÉÆuÉÚ, ªÀÄZÀÄÑ, PÀ®Äè £ÉÆÃrzÀgÉ UÀÄgÀÄw¸ÄÀªÉ. £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ £ÉÆÃqÀÄwÛzÀÄÝ, CªÀÅUÀ¼ÀÄ FUÁUÀ¯Éà ªÀÄĪÀiÁ-1 jAzÀ 3 JAzÄÀ UÀÄgÀÄw¸ÀĪÉ. 11 ¢:04.07.2014 gÀAzÀÄ £Á£ÀÄ ªÀÄvÀÄÛ gÀvÀßPÀÌ gÀªÀgÀ vÀªÀÄä ºÀjñÀ ZÀ£ÀßgÁAiÀÄ¥lÀ Öt ¸ÀPÁðj D¸ÀàvÉæUÉ §AzɪÀÅ. ¥ÉưøÀgÀÄ C°è gÀvÀߪÀÄä vÉUÉzÀÄPÉÆlÖAvÀºÀ ¤Ã° §tÚzÀ gÀPÀÛ ºÀwÛzÀ ¹ÃgÉ ªÀÄvÀÄÛ gÀ«PÉ ªÀĺÀdgï ªÀÄÆ®PÀ CªÀiÁ£ÀvÀÄÛ ¥Àr¹PÉÆAqÀgÀÄ. ªÀĺÀdgï £ÉÆÃqÀÄwÛzÀÄÝ CzÄÀ ¤¦-2 JAzÀÄ FUÁUÀ¯Éà UÀÄgÀÄw¹zÉ. ¸ÁQë ¸À» ¤¦-2(©) JAzÀÄ UÀÄgÀÄw¹zÉ. ¸ÀzÀj §mÉÖUÀ¼À£ÀÄß £ÉÆÃrzÀgÉ UÀÄgÀÄw¸ÀÄªÉ CªÀÅUÀ¼ÀÄ FUÁUÀ¯Éà ªÀÄĪÀiÁ-4 ªÀÄvÀÄÛ 5 JAzÀÄ UÀÄgÀÄw¹zÉ. F §UÉÎ ¥ÉưøÀgÀ ªÀÄÄAzÉ £Á£ÀÄ ºÉýPÉ PÉÆnÖzÉÝãÉ. zÉÆuÉÚ¬ÄAzÀ ºÉÆqÉzÀ ºÀjñÀ£À£ÄÀß £ÉÆÃrzÀgÉ UÀÄgÀÄw¸ÀĪÉ. F ¢£À £ÁåAiÀiÁ®AiÀÄzÀ°è ¸ÀzÀj ºÀjñÀ E®è.” The moment this evidence comes about, the 3rd respondent is sought to be tried as an accused for conduct of trial. The incriminating material that they seek to project is recovery of a wooden club. The prosecution files application seeking to bring in D.K. Harish as an accused in the crime. The application reads as follows: “C¥ÀgÁzsÀ ¥ÀæQæAiÀiÁ ¸ÀA»vÉ PÀ®A319gÀ CrAiÀÄ°è C©üAiÉÆÃd£ÉAiÀÄ ¥ÀgÀªÁV ¸À°è¸ÀÄwÛgÀĪÀ Cfð: C©üAiÉÆÃd£ÉAiÀÄ ¥ÀgÀªÁV F PɼÀPÀAqÀAvÉ ¥Áæyð¹PÉƼÀî¯ÁVzÉ: F ªÉÄîÌAqÀ ªÉÆPÀzÀݪÉÄAiÀÄ£ÀÄß ¦ügÁåzÀÄzÁgÀgÀÄ ªÉÄïÁÌt¹zÀ DgÉÆæAiÀÄ «gÄÀzÝÀ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉAiÀÄ PÀ®A307 324, 504, 506 gÀ jÃvÁå zÉÆõÁgÉÆÃ¥Àt ¥nÀ Ö ¸À°è¹gÀÄvÁÛgÉ. ¸ÀzÀj zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀvÀæzÀ°ègÀĪÀ J¯Áè ¸ÁPÁëöåzÁsgÀUÀ¼À£ÀÄß ºÁUÆÀ £ÁåAiÀiÁ®AiÀÄzÀ°è ºÁdgÀÄ¥Àr¹gÀĪÀ ¸ÁPÀëöåªÀ£ÀÄß F CfðAiÀÄ MAzÀÄ ¨sÁUÀªÁV ¥ÀjUÀt¸À®Ä PÉÆÃgÀ¯ÁVzÉ. ¥Àæ¸ÀÄÛvÀ ¥ÀæPÀgÀtªÀÅ D¢ «ZÁgÀuÉAiÀÄ dAvÀzÀ°ègÀÄvÀÛzÉ. C©üAiÉÆÃd£É ¥ÀgÀªÁV ¨Á¢üvÀ ¸ÁQë-1 gÀvÀߪÀÄä, ¥Áæ¸Á-2 ¥Àæ«Ãt ªÀÄvÀÄÛ ¥Áæ¸Á-3 PÈÀµÚÀ gÀªÀgÀÄUÀ¼À£ÀÄß «ZÁgÀuÉ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ. ¸ÀzÀj ¸ÁQëzÁgÀgÀÄ WÀl£ÉUÉ ¥ÀÆgÀPÀªÁV ¸ÁPëÀöå £ÀÄr¢gÀÄvÁÛgÉ. ¥Áæ¸Á-1 gÀªÀgÀÄ vÀªÀÄä ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è “DgÉÆæAiÀÄ ªÀÄUÀ ºÀjñÀ zÉÆuÉÚ¬ÄAzÀ (ªÀÄÄ.ªÀiÁ-2) £À£Àß JqÀ ªÀÄÄAUÉÊ ªÀÄvÀÄÛ JqÀvÉÆqÉAiÀÄ ªÉÄÃ¯É ºÉÆqÀzÀ” JAzÀÄ £ÁåAiÀiÁ®AiÄÀzÀ ªÀÄÄAzÉ £ÀÄr¢gÀĪÀ ¸ÁPÀëöå¢AzÀ PÀAqÀÄ §A¢gÀÄvÀÛzÉ. 12 ¥Áæ¸Á-2 gÀªÀgÀÄ vÀªÀÄä ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è “DUÀ DgÉÆæAiÀÄ ªÀÄUÀ ºÀjñÀ C°èUÉ §AzÀÄ MAzÀÄ zÉÆuÉÚ¬ÄAzÀ (ªÀÄÄ.ªÀiÁ-2) gÀvÀߪÀÄä¼À JqÀ¨ÁsUÀzÀ vÉÆqÉ ªÀÄvÀÄÛ JqÀªÀÄÄAUÊÉUÉ ºÉÆqÉzÀ” JAzÀÄ £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ £ÀÄr¢gÀĪÀ ¸ÁPÀëöå¢AzÀ PÀAqÀÄ §A¢gÀÄvÀÛzÉ. ¥Áæ¸Á-3 gÀªÀgÀÄ vÀªÀÄä ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è “D°èAiÉÄà EzÀÝ DgÉÆæ zÉÆuÉÚ¬ÄAzÀ gÀvÀߪÀÄä½UÉ ºÉÆqÉzÀ” JAzÀÄ £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ £ÀÄr¢gÀĪÀ ¸ÁPÀëöå¢AzÀ PÀAqÀÄ §A¢gÀÄvÀÛzÉ. vÀ¤SÁ¢üPÁjAiÀĪÀgÀÄ zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀvÀæzÀ°è ¸ÁPÀµÀÄÖ ¸ÁPÁëzsÁgÀ ®¨sÀå«®èªÉA§ PÁgÀt¢AzÀ PÉÊ©nÖgÀĪÀ DgÉÆæAiÀiÁzÀ ºÀjñÀgÀªÀgÀÄ F ªÉÄîÌAqÀ ¥ÀæPÀgÀtzÀ PÀÈvåÀzÀ°è ¨sÁVAiÀiÁV C¥ÀWÁvÀªÉ¸ÀVgÀĪÀÅzÀÄ ¥Áæ¸Á-1, ¥Áæ¸Á-2 ªÀÄvÀÄÛ 3 gÀªÀgÀ ¸ÁPÀëöå¢AzÀ ªÀÄvÀÄÛ ¤¦-1 gÀ zÀÆj£À CA±ÀUÀ½AzÀ ¸ÀàµÀÖªÁV UÉÆÃZÀj¹gÀÄvÀÛzÉ. ¸ÀzÀj ºÀjñÀ£À£ÀÄß F ¥ÀæPÀgÀtzÀ°è ¥Àæ¸ÁÛ¦¹zÀ / ºÉZÀÄѪÀj DgÉÆæAiÀiÁV ¥ÀjUÀt¹ C¢ü«ZÁgÀuÉUÉ UÀÄj¥Àr¸ÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÁVgÀÄvÀÛzÉ. zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ°è DgÉÆæAiÀiÁV ¸ÉÃj¸À¢zÀÝgÀÆ ¸ÀºÀ £ÁåAiÀiÁ®AiÄÀzÀ C¢ü«ZÁgÀuÁ ºÀAvÀzÀ°è ¸ÁQëzÁgÀgÀÄ (¨Á¢üvÀgÀÄ) £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ºÁdgÀÄ¥Àr¹zÀ ¸ÁPÀëöåzÀ DzsÁgÀzÀ ªÉÄÃ¯É £ÁåAiÀiÁ®AiÀĪÀÅ «ZÁgÀuÉAiÀÄ AiÀiÁªÀÅzÉà ºÀAvÀzÀ°è AiÀiÁªÀÅzÉà ªÀåQÛUÀ¼À «gÀÄzÀÞ ¸ÁPÁëzsÁgÀUÀ¼ÀÄ ®¨ÀåsªÁVzÉ JAzÀÄ C©ü¥Áæ¬Ä¹zÀ°è PÉÊ©nÖgÀĪÀ DgÉÆævÀgÀ£ÀÄß / AiÀiÁªÀÅzÉà ªÀåQÛAiÀÄ£ÀÄß ºÉZÀÄѪÀj DgÉÆævÀgÁV ¸ÉÃj¹PÉÆAqÀÄ C¢ü «ZÁgÀuÉ ªÀiÁqÀ¨ÉÃPÁUÄÀvÛÀzÉ JAzÀÄ F PɼÀPÀAqÀ ¥ÀæPÀgÀtU¼ÀÀ°è ªÀiÁ£Àå ¸ÀªÉÇÃðZÀÑ £ÁåAiÀiÁ®AiÀĪÀÅ C¨ÀstÂ¥Áæ¥ÀnÖgÀÄvÀÛzÉ. 2021(3) PÉæöʪÀiïì 260(J¸ï.¹)ªÀÄAfvï¹AUï «gÀÄzÀÝ ºÀjAiÀiÁt gÁdå 2015(PÉæöʪÀiïì )50 (J¸ï.¹.) 2014(3) J¸ï.¹.¹.92 ºÀjÃ¢Ã¥ï ¹AUï «gÀÄzÀÝ ¥ÀAeÁ¨ï gÁdå. F ªÉÄîÌAqÀ wÃ¥ÀÄðUÀ¼À£ÀÄß ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ CªÀUÁºÀ£ÉUÁV F PÆÀ qÀ ¸À°è¸À¯ÁVzÉ. PÁ£ÀÆ£ÀÄ ¸ÀªÀÄävÀªÁzÀ C¢ü«ZÁgÀuÉUÉ ªÀÄvÀÄÛ £ÁåAiÀĸÀªÀÄävÀªÁzÀ wêiÀÁð£ÀPÉÌ §gÀ®Ä F ªÉÄîÌAqÀ zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀvÀæzÀ°è PÉÊ©nÖgÀĪÀ F ¥ÀæPÀgÀtzÀ DgÉÆæAiÀÄ ªÀÄUÀ£ÁzÀ ºÀjñÀ gÀªÀgÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ºÁdgÀÄ¥Àr¹PÉÆAqÄÀ C¢ü«ZÁgÀuÉ £ÀqɸÀĪÅÀzÄÀ CvÁåªÀ±ÀåPÀªÁVgÀÄvÀÛzÉ. DzÀÄzÀjAzÀ F ¥ÀæPÀgÀtªÀÅ zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀvÀæzÀ PÁ®A13gÀ°è £ÀªÀÄÆ¢¹gÄÀªÀ ºÀjñÀ gÀªÀgÀ£ÀÄß F WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ºÉZÀÄѪÀj / ¥Àæ¸ÁÛ¦¹zÀ DgÉÆæAiiÀÁV ºÁdgÁV C¢ü«ZÁgÀuÉ JzÀÄj¸À®Ä ¸ÀªÀÄ£ïì ºÉÆgÀr¸À¨ÉÃPÉAzÀÄ C©üAiÉÆÃd£É ¥ÀgÀ WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ°è ¥Áæyð¸À¯ÁVzÉ.” Detailed objections are filed by the 3rd respondent. The objections so filed insofar as it concerns facts read as follows:
13. “Objections filed by the proposed accused to the application filed by the prosecution u/s 319 of Cr.p.c.
1. The application filed by the prosecution is not at all maintainable in law and facts and the same is to be dismissed at the threshold. The application is filed only with an intension to harass the proposed accused.
2. It is a settled law that the basic requirement for invoking section 319 of Cr.p.c is that it should appear to the court from the evidence collected during the trial or enquiry that some other person who is not arraigned as an accused in that case, has committed the offence for which that person could be tried together with the accused who is already on record.
3. Further it is submitted that it is not enough that the court entertain some doubt from the evidence about the involvement of another person in the offence. In order to exercise the power U/s 319 of Cr.p.c., the hon'ble court must have reasonable satisfaction from the evidence already collected regarding two aspects (a) that other person has committed an offence (b) such other person could be well tried along with the accused who are already on record.
4. Here in the instant case, there is no material before the court to implead the additional / proposed accused, because on perusal of the prosecution papers it can be seen that the first informant has given the further statement to the police on 04/07/2014. In the said further statement she has stated that since she was in a panic condition, even though the proposed accused Harish was not present in the place of occurrence, she had stated that proposed accused also was involved in the alleged offence. In other words, C.W-1, in her further statement has admitted that the proposed accused has not participated in the alleged crime. 14
5. When the first informant herself has stated before the investigating officer that the proposed accused has not at all participated in the alleged crime, Merely because there is some improvement in her evidence to achieve her ill motive by discarding her further statement or without looking into her further statement, her evidence cannot be solely relied upon.
6. As per the further statement of PW-1, the proposed accused has not at all participated in the alleged crime, but she in her examination in chief has deposed in respect of the involvement of Harish, thereby there is a contradiction with respect to her previous statement before the investigating officer and her ocular evidence before the court. Even though there is contradictions in her evidence, the prosecution has not at all made any suggestion with respect to her further statement. When the prosecution document itself is against her oral evidence, they cannot insist the court to relay on her evidence and summon the proposed accused.
7. Further, based upon the information given by CW- 1, the investigating officer has not charge sheeted the proposed accused Harish. That means to say that the investigating officer has dropped Harish for want of evidence. It is submitted that the complainant has not challenged the final report filed by the investigating officer. In other words, there is no protest petition by either CW-1 or anybody in respect of the charge sheet filed by the investigating officer.
8. The other two witnesses PW-2 and P.W-3, in their examination-in-chief have deposed that this proposed accused Harish was involved in the alleged crime. It is submitted that this is an improvisation made by them during the evidence. On going through the statement of these two witnesses, which was given by them before the 15 investigating officer, they have not at all deposed anything with respect to the involvement of Harish in the crime. There is a clear omission in this regard. Subsequently they have been tutored. Hence their evidence cannot be relied.
9. More over on going through the prosecution case, it can be seen that the criminal law was set into the motion in respect of land dispute. P.W-2 and P.W-3 are the brothers of P.W-1. They are interested witnesses. This clearly shows that they are deposing as per the advice of P.W-1 and against to their own statement made before the investigation officer.
10. It is submitted that in order to resolve the land dispute, P.W- 1 is misusing the provisions of law. It is submitted that as civil dispute is not settled, P.W-1 wants to put pressure on the family of the accused to come to a settlement through this false allegations.
11. Further it is submitted that one more counter case in CC no.3326/2014 is pending against PW1and in order to escape from the clutches of law, these sorts of allegations are made by P.W1to 3 with an intension to harass the proposed accused. ….. ….. …… 18. Here also, PW-1 has given further statement that proposed accused was not involved in the crime. The other witnesses have not given any statement before the investigating officer with respect to the involvement of the intended accused is to be brought on record and PW-1 to PW-3 are the relatives and interested witnesses. The application is filed with an intention to settle the civil dispute which is not permissible. The prosecution witness cannot be allowed to depose according to their whims and fancies. Therefore, the objector prays this hon'ble court to dismiss the application filed by 16 the prosecution in the interest of justice and equity.” Considering the application and the objections, the concerned Court passes the order on 17-12-2021, relevant portion of which reads as follows: “REASONS7 Point No.1:- The present accused is charge sheeted the offence punishable U/s.504, 324, 506 and 307 of I.P.C. and he faced trial. When case is posted for statement U/s.313 of Cr.P.C., at this stage, the learned Public Prosecutor has filed the instant application. The proposed accused is none other than son of the present accused. The sole ground urged in the application is that since PW.1 to 3 have specifically deposed that proposed additional accused assaulted PW.1 Smt. Rathnamma with club, then he shall have to be faced trial. On the contrary, the said application is seriously opposed by the proposed accused. According to proposed accused only on the basis of improvement, the present application is filed. It is relevant to note here that though in the first information the proposed accused was made as one of the accused, however during the course of investigation I.O. dropped the proposed accused on the ground that there was no sufficient materials against proposed accused. According to proposed accused PW.1 to 3 are interested and related witnesses and their intention is to punish present accused as well as his son. Therefore, during the course of argument the learned counsel for the proposed accused strongly canvassed with reference to decision relied by the prosecution itself and submitted that absolutely there are no grounds before the Court for exercising discretionary power. In this regard, both sides have relied decisions passed by Hon'ble Supreme Court. …. …. … 9. On going through the above said decisions, it goes to show that the 5th decision passed in Hardeep Singh Vs. State of Punjab and others was referred by the Hon'ble Apex Court in 17 Manjeet Singh Vs. State of Hariyana and others. It is to be noted here that Manjeet Singh's case was decided on 24.8.2021, on the contrary the Hon'ble Supreme Court decided Sugreev Kumar's case on 15.3.2019. This case was not referred in Manjeet Singh's case. In Mukesh Chand's case the Hon'ble Supreme Court held that mere disclosing names of proposed additional accused during trial cannot be said to be strong and cogent evidence to make them to stand trial. In Shiv Prakash Mishra's case also the Hon'ble Supreme Court laid down clear principle that mere disclosure of some of the accused person during trial is not sufficient to implead such accused persons. The same principle is again reiterated in Brijendra Singh and others' case. It is also emphasized that the discretionary power U/s.319 of Cr.P.C., could be exercised at any stage before conclusion of trial. In Manjeet Singh's case the Hon'ble Supreme Court made it clear that adding of new person as accused is purely discretionary power with the Court and such power can be exercised only when there is sufficient material collected during enquiry though not evidence. So, in the instant case, though PW.1 to 3 have deposed that the proposed accused was also present at the time of alleged incident and have also deposed that the proposed accused assaulted PW.1. however prima-facie there is no material to believe this version. That apart during the course of argument, the learned Counsel for the proposed accused strongly canvassed that the I.0. has collected sufficient material that on the date of incident the proposed accused being an Advocate was representing his claim before one particular Revenue Court. So, if this kind of submission is taken into consideration and as there is some documentary evidence, under such circumstances the principles laid down by the Hon'ble Supreme Court in Shiv Prakash Mishra's case, shall have to be applied. So, I am of the opinion that viewed from any angle the present application does not survive due to devoid of merits. So, I hold that the prosecution has not made out satisfactory grounds for impleading the proposed accused as accused No.2 in this case. Hence, I answer this point in the 'Negative'.
10. Point No.2: In view of the findings and discussion, I proceed to pass the following:
ORDERThe application u/s.319 of Cr.P.C. filed by learned Public Prosecutor is dismissed.” 18 The reason rendered by the concerned Court to reject the application is that the proposed accused was not present at the time of the alleged incident, as there is no material to believe the version of the complainant, her brother or the independent witness to drag back D.K. Harish to the web of crime. The concerned Court also notices that the said accused being an Advocate was representing a party on the said date, at the said time, before the revenue Court at Hassan which is away from Channarayapatna. Looking at the law laid down by the Apex Court and plethora of judgments, the concerned Court rejects the application.
8. The issue now is, whether the order of the concerned Court rejecting the application would require interference. To answer the said issue, it is germane to notice Section 319 of the Cr.P.C., and its interpretation by the Apex Court. Section 319 of the Cr.P.C. reads as follows: “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. 19 (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 the 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 inquiry or trial was commenced.” Section 319 deals with power to proceed against other persons appearing to be guilty of offence. It mandates that in the course of any inquiry or trial, if it appears from the evidence that any person not being the accused has committed any offence for which the said person is to be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. The rigour and purport of Section 319 need not detain this Court for long or delve deep into the matter. Two constitution Bench judgments of the Apex Court would hold the field. The first of which is in the case of HARDEEP SINGH v. STATE OF PUNJAB reported in (2014) 3 SCC92and the other is 20 in the case of SUKHPAL SINGH KHAIRA v. STATE OF PUNJAB1. Since HARDEEP SINGH is quoted and followed, I deem it appropriate to notice the subsequent constitution Bench judgment in the case SUKHPAL SINGH KHAIRA. The Apex Court in the said case summarises its conclusions as follows: “…. …. …. 40.(II) Whether the trial court has the power under Section 319CrPC 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. 41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?. 41.1. If the competent court finds evidence or if application under Section 319CrPC 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. 41.2. The court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. 1 (2023) 1 SCC28921 41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. 41.4. 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. 41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. 41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with. 41.7. If the proceeding paused as in para 41.1 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. 41.8. 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 319CrPC 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. 41.9. 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 319CrPC, the appropriate course for the court is to set it down for re-hearing. 41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding 22 of joint trial or otherwise shall be decided and proceeded with accordingly. 41.11. 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. 41.12. 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.” (Emphasis supplied) Subsequent to the aforesaid judgments, the Apex Court has further clarified the intent of constitution Bench judgment in SUKHPAL SINGH KHAIRA. The Apex Court in the case of JUHRU v. KARIM2 has held as follows: “…. …. …. C. Analysis 10. There is no gainsaid that the alleged offence is grave and heinous in nature. The long arms of law must find out whether any person is guilty of abetting or taking away the precious life of a young girl who soon after her marriage met with such a tragic end. However, the only issue that falls for our consideration is whether there is sufficient evidence against the appellants to summon them as additional accused?. 2 (2023) 5 SCC40623 11. Section 319CrPC contemplates that: “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.
12. Illuminating the scope of Section 319CrPC, the Constitution Bench of this Court in Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC92: (2014) 2 SCC (Cri) 86]. laid down that : (SCC pp. 126 & 138, paras 57 & 105-106) “57. Thus, the application of the provisions of Section 319CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319CrPC 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 charge-sheet or any other person who might be an accomplice. *** 105. Power under Section 319CrPC 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 24 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 319CrPC. In Section 319CrPC 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 “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319CrPC to form any opinion as to the guilt of the accused.” (emphasis in original) 13. This Court has very recently, in Sukhpal Singh Khaira v. State of Punjab [Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC289: (2023) 1 SCC (Cri) 454]. , succinctly explained the powers bestowed on the Court under Section 319CrPC and ruled that : (SCC p. 300, para
15) “15. At the outset, having noted the provision, it is amply clear that the power bestowed on the Court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the Court, if it appears to the Court that such evidence points to any person other than the accused who are being tried before the Court to have committed any offence and such accused has been excluded in the charge-sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused.
14. In Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC92: (2014) 2 SCC (Cri) 86]. , it has been eloquently held that the word “evidence” in Section 319CrPC has to be broadly understood and thus materials which have come before the court in course of enquiry can be used for: (i) corroboration of evidence recorded by court after commencement of trial; (ii) for exercise of power under Section 319CrPC; and 25 (iii) also to add an accused whose name is shown in Column 2 of the charge-sheet. It was further explained that statement made in examination-in- chief also constitutes “evidence” and the court while exercising power under Section 319CrPC post commencement of trial, need not wait for evidence against person proposed to be summoned, to be tested by cross-examination.
15. In Sukhpal Singh Khaira [Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC289: (2023) 1 SCC (Cri) 454]. , the Constitution Bench refreshed the guidelines that the competent court must follow while exercising power under Section 319CrPC. It was ruled that:
15. 1. If the competent court finds evidence or if application under Section 319 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 and the court shall proceed to decide the fate of the application under Section 319 CrPC. 15.2. If the court decides to summon an accused under Section 319 CrPC, such summoning order shall be passed before proceeding further with the trial in the main case and depending upon the stage at which the order is passed, the trial court shall apply its mind to the fact as to whether such summoned accused is to be tried along with other accused or separately. 15.3. If the power under Section 319 CrPC is not invoked or exercised in the main trial till its conclusion and if there is a split-up case, such power 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).
16. It is, thus, manifested from a conjoint reading of the cited decisions that power of summoning under Section 319 CrPC is not to be exercised routinely and the 26 existence of more than a prima facie case is sine qua non to summon an additional accused. We may hasten to add that with a view to prevent the frequent misuse of power to summon additional accused under Section 319CrPC, and in conformity with the binding judicial dictums referred to above, the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material, more or less, carry the same weightage and value as has been testified against those who are already facing trial. In the absence of any credible evidence, the power under Section 319CrPC ought not to be invoked.
17. Adverting to the case in hand, the allegations against the appellants are that they too played an active role in the commission of the alleged offence.
18. The record reveals that after the application under Section 319CrPC was dismissed by the trial court, Respondent 1 was called on 6-12-2018 for further examination-in-chief as PW1 His deposition distinctively unravels that at the time of marriage, Appellant 1—Juhru (father-in-law) had asked Respondent 1 to spend a sum of Rs 20 lakhs on the marriage of Aamir and the deceased, to which Respondent 1 had agreed. Appellant 1 and his wife Akhlima (mother-in-law) were living under the same roof as his son Aamir (husband) and he would have been privy to all the alleged occurrences of torture, harassment or demand for more dowry. Viewed from this angle, it appears that the Ist appellant might have to sink or swim with his son and wife. The High Court order, to the extent of summoning Appellant 1, therefore, satisfies the ingredients of Section 319CrPC and may not warrant any interference by this Court.
19. As regard to Appellants 2 and 3 i.e. Sonam (sister-in- law), and Rijwan (brother-in-law) of the deceased, it appears to us that despite both of them being named in the FIR and in the examination-in-chief of Respondent 1, there is no credible evidence to connect them with the unnatural death of Rukseena. There is no cogent material that Appellant 2, even after her 27 marriage with Appellant 3, continued to reside in her parents' house or that they used to inter-meddle in the day-to-day marital life of the deceased and Aamir. In the absence of any authentic evidence to bring them in close proximity of the reported crime, it would be unjustified to call upon Appellants 2 and 3 to face trial as additional accused in this case. D. Conclusion 20. In light of the above discussion, we are of the considered view that while summoning of Appellant 1 sustains, but that of Appellants 2 and 3 will be far- fetched and they cannot be subjected to trial on the basis of mere strong suspicion. The High Court order under challenge is accordingly set aside qua Appellants 2 and 3.
21. Having held that Appellant 1 has been rightly summoned and is liable to be tried along with his son and wife, the next question that requires consideration is as to the manner in which the trial will proceed hitherto.
22. The information available on record suggests that the trial is at the stage of defence evidence. The guidelines that the trial court must follow, while commencing the trial against Appellant 1 have been extensively iterated by the Constitution Bench in Sukhpal Singh Khaira [Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC289: (2023) 1 SCC (Cri) 454]. , in the following terms : (SCC p. 312, para
41) “41. (III) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?. 41.1. If the competent court finds evidence or if application under Section 319 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. 41.2. The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. 28
41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. 41.4. 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. 41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. 41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
23. The trial court shall, thus, follow the cited dictum and proceed against Appellant 1 in accordance with law.
24. For the reasons aforestated but without expressing any views on merits, we partly allow this appeal and modify the impugned order of the High Court dated 27-1-2020 [Karim v. State of Haryana, 2020 SCC OnLine P&H5288 in the above terms.” (Emphasis supplied) The Apex Court observes that to bring back an accused under Section 319 the evidence should be far more than what was available at the threshold. The Apex Court holds that mere strong suspicion cannot be the reason to bring back an accused who had been dropped while filing the charge sheet. The Apex Court in the 29 case of N. MANOGAR v. INSPECTOR OF POLICE3 has held as follows: “…. …. ….
7. The principles of law governing the exercise of jurisdiction under Section 319 of the CrPC are well established. Notably, a constitution bench of this Court in Hardeep Singh (Supra) observed as under: “105. Power Under Section 319 Code of Criminal Procedure 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 laid 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 laid before the court, not necessarily tested on the anvil of cross- examination, it requires much strong evidence that near 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 Code of Criminal Procedure.
8. The aforesaid position was reiterated by this Court in Sagar v. State of Uttar Pradesh, (2022) 6 SCC389wherein it was opined that: “9. The Constitution Bench has given a caution that power Under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as notice above has to be 3 2024 SCC OnLine SC17430 applied is one which is more that 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….
9. In the present case, the High Court overturned the Trial Court Order; and accordingly impleaded the Appellants’ as accused person(s) in the Underlying Proceedings on the satisfaction of a prima-facie finding that the materials on record i.e., (i) vague allegations emanating from the underlying complaint; (ii) the Complainant's statement under Section 161 of the CrPC; and (iii) the Complainant's examination-in-chief, are sufficient to proceed against the Appellant(s).
10. In our considered view, the approach adopted by the High Court was not in consonance with this Court's opinion in Hardeep Singh (Supra). The High Court failed to appreciate that the discretionary powers under Section 319 of the CrPC ought to have been used sparingly where circumstances of the case so warrant. In the present case, the Trial Court Order was well reasoned and did not suffer from any perversity. Moreover, the materials on record could not be said to have satisfied the threshold envisaged under Hardeep Singh (Supra) i.e., more than a prima facie case, as exercised at the time of framing of charge but short of evidence that if left unrebutted would lead to conviction.” (Emphasis supplied) The Apex Court holds that the underlying proceedings before the High Court was only on prima facie finding of the material on record which included the complainant’s cross-examination or the statement under Section 161. The Apex Court holds that, that would not be enough, unless there is abundant material to bring 31 back the accused under Section 319. If the order impugned is considered on the touchstone of the principles laid down by the Apex Court, it would become unmistakably clear that the order does not warrant any interference.
9. The 3rd respondent, on the basis of documents produced, has demonstrated that he was before the Court of the Assistant Commissioner on 02-07-2014 at 3.30 p.m. which is away from Channarayapatna where the incident happened. The order sheet of the Court of the Assistant Commissioner was also produced before the concerned Court. The relevant portion of the said order sheet reads as follows: ”2-07-2014: Case called. Appellant absent. Counsel for respondent present and has filed objections. Posted for 27-08-2014.”
(Emphasis added)The 3rd respondent was representing the respondent therein and he was said to be present and filed objections. This is objected to by the State stating that he may not be the person who filed the 32 vakalath. Anybody can appear and present the case before the Assistant Commissioner. It is, therefore, the 3rd respondent has also produced the vakalath filed. He is the sole Advocate representing the respondent therein. The vakalath is appended to the documents that are produced before the Court. All these being in place, this Court is of the considered view that there is no warrant of interference with the impugned order, which declines to bring in the 3rd respondent as an accused back into the web of crime. The vehement submission of the learned counsel for the 3rd respondent merits complete acceptance for dropping the 3rd respondent in the proceedings, as it is in tune with the principles laid down by the Apex Court in the aforesaid judgments. In the light of the preceding analysis, the submissions of the learned counsel for the complainant and the Additional State Public Prosecutor would not lead to obliteration of the impugned order dated 17-12-2021, as they are unacceptable. 33
10. For the aforesaid reasons, finding no merit in the petitions, both the petitions are dismissed. Interim order, if any operating, shall stand dissolved. Sd/- JUDGE Bkp CT:MJ