IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.711/2017 BETWEEN Gangamma W/o Ganganna Aged about 35 years R/at Nalluru Chelur Hobli Gubbi Taluk Tumkur District – 572216.
(By Sri. M. Shashidhara, Advocate) AND State of Karnataka By Chelur Police Station Tumkur Rep. by the State Public Prosecutor High Court Building Premises Bangalroe – 01.
(By Sri. Thejesh .P., - HCGP) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the order dated 27.05.2017 for impleading petitioner in to Accused No.2 which is pending on the file of Principal District and Sessions Judge, Tumkur in Spl. Case No.220/2016.
This Criminal Revision Petition Coming on for Admission, this day, the court made the following:
ORDER This criminal revision petition is preferred by the petitioner challenging the order dated 27.05.2017 passed by the Court below in Spl.C.No.220/2016 issuing summons to CW.5 – Gangamma, the petitioner herein, as accused No.2 to appear before the Court to answer the charges.
2. The brief case of the prosecution is that on 22.01.2015 at 9.30 a.m. near Sathenahalli gate within the jurisdiction of Chelur Police Station, the accused is said to have stolen the sand worth Rs.3,000/- from Sheshanahalli Government tank and thereby committed theft of sand from Government Nala and as such committed an offence punishable under Section 379 of IPC. The said sand were found to be transporting in the tractor without displaying any registration number. In this regard, crime came to registered against accused No.1 – Ganganna in Crime No.5/2015 of respondent police for the offence punishable under Sections 42, 3 of Karnataka Minor Mineral Consistent Rules, 1994 and Section 379 of IPC. After completion of investigation, the IO laid the charge sheet against accused No.1 – Ganganna for the aforesaid offences which is now pending on the file of Prl.District and Sessions Judge, Tumkur in Spl.Case No.220/2016. Charges were framed against Accused No.1 and summons was issued to CW.1 to CW.4 and they were examined as PWs.1 to 4 and six documents were got marked as Exhibits 1 to 6. After examination of witnesses, the prosecution filed an application under Section 319 of Cr.P.C. for impleading CW.5 – Smt.Gangamma w/o Ganganna as Accused No.2 on the ground that the tractor in question was registered in the name of Gangamma who is said to be the wife of accused. It was the contention of the prosecution that on perusal of the entire evidence collected in the charge sheet and seizure mahazar in particular the seized vehicle stood in the name of CW.5 and registration number of the vehicle was not displayed which was an offence under section 192 of Indian Motor Vehicle.
3. The accused filed statement of objections to the application filed by the prosecution under Section 319 of Cr.P.C seeking dismissal of the application. The court below vide order dated 27.05.2017 allowed the said application and issued accused summons to petitioner/CW.5 as accused No.2 to appear before the Court to answer the charges. Hence, this petition is filed by Gangamma seeking to set-aside the impugned order by urging various grounds.
4. Learned counsel for the petitioner contends that prosecution had filed charge sheet only against accused No.1 –Ganganna. After framing of the charge, the trial was fixed and four witnesses were got examined. But all of them turned hostile though they were cross examined at length by the prosecution. Further, it is contended that Pws.1 and 2 have been examined on the part of the prosecution relating to mahazar as conducted by the IO. But these witnesses did not support the case of the prosecution relating to the fulcrum of Ex.P1- seizure mahazar. These witnesses have given a complete goby to the fulcrum of the mahazar. Therefore, there is no substance to arraign this petitioner as accused No.2.
5. The second limb of the arguments advanced by the learned counsel for the petitioner is that on the part of the prosecution PWs.3 and 4 are said to be examined in order to prove the spot mahazar at Ex.P4 as conducted by the IO. But these witnesses did not support the case of the prosecution relating to the fulcrum of facts at Ex.P4.
6. Lastly, the petitioner’s counsel contends that though the crime came to registered based upon the complaint and subsequent to the registration of crime against the accused, the IO has taken up the case for investigation and laid the charge sheet in C.C.No.217/2015 and subsequently, the case was committed to the committal court in Spl.C.No.220/2016. It is contended that the prosecution has not produced any material against the petitioner to show the prima-facie case and the witnesses have not stated anything against the petitioner. In the absence of the material against the petitioner, the court below has erred in allowing the application filed by the prosecution and the same is liable to set-aside. On all these grounds, learned counsel for the petitioner seeks to allow the petition by setting aside the impugned order passed by the Court below.
7. Per contra, learned HCGP for the State contends that the accused has been charge sheeted for the offences under Section 379 IPC read with 4(1A) and 21(1) of the MMDR Act for having illegally transported the sand without obtaining a valid permit under law. He contends that the tractor which was purchased and registered in the name of Gangamma who is said to be the wife of accused – Ganganna on perusal of the entire evidence collected in the chargesheet and seizure mahazar in particular, the seized vehicle stands in the name of Cw.5 and the registration number of the vehicle was not displayed. The non-displaying of the registration number though mentioned in the seizure mahazar and the material documents though collected during the investigation, the owner of the seized vehicle instead of arraying as an accused has been cited as a witness against whom Sec.192 of the M.V.Act is applicable. The IO has only cited the owner as CW.5 without arraying her as an accused though she is liable to answer all these charges. Therefore, the Court below was right in allowing the application filed by the prosecution under Section 319 Cr.P.C and issuing summons to CW.5 Gangamma as Accused No.2 to appear before the Court to answer the charges. On these grounds, he sought for dismissal of the petition.
8. In this backdrop of the contentions as taken by learned counsel for the petitioner and so also counter made by learned HCGP it is relevant to state that the IO has laid the charge sheet relating to Crime No.5/2015 for the offence under Section 379 IPC beside Section 42, 3 of the Karnataka Minor Mineral Consistent Rule, 1994. The accused Ganganna is the husband of the petitioner herein and so also the driver of vehicle which was seized by the IO during investigation for illegal transportation of sand. As the said vehicle was also not displaying its registration number, attracted provision of Section 192 of the Motor vehicles Act. Petitioner – Gangamma is the RC Holder of the seized vehicle and she was cited as CW.5. The Court below has observed that though commission of theft and damage to the public property is not attracted as against the owner of the vehicle, but erred in holding that the RC holder is answerable for use of the vehicle for illegal transportation of the sand as well as plying the vehicle without displaying the registration number.
9. It is relevant to note here that in order to apply Section 319 of Cr.P.C., it is essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the courses of any inquiry or trial. The case in Spl.C.220/2016 has been opened for trial and PWs.1 to 4 have already been examined relating to the seizure mahazar at Ex.P1 and spot mahazar – Ex.P4. However, accused No.1 – Ganganna is facing the trial for the aforesaid offences. But when the trial has begun, the prosecution is required to establish the case against the accused by putting forth cogent and corroborative evidence. Therefore, in instant case, it does not require to go in detail relating to consideration of the contention as taken by the learned counsel for the petitioner seeking for setting aside the order passed by the Court below. The Court below erred in not noticing that the prosecution has not made out any compelling ground to allow the application. However, keeping in view Section 22 of the MMDR Act and so also the role made by this accused merely because the owner of the vehicle in question is used by her husband, at this stage, it cannot be said that she is also one of the prime accused. Therefore, it is said that the Court below has not properly appreciated the material evidence available on record while passing the impugned order and it needs interference of this Court.
For the aforesaid reasons and findings, the criminal revision petition is hereby allowed. The impugned order dated 27.05.2017 passed by the Court below in Spl.C.No.220/2016 is hereby set-aside. Consequently, the application filed by the prosecution under Section 319 of Cr.P.C. stands rejected.
However, it is made clear that the trial Court shall not be influenced by the observations made in this order, and shall dispose of the case on merits in accordance with law.
DKB Sd/- JUDGE