IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3247 OF 2015 BETWEEN:
SMT. H. K. CHAYAKUMARI @ CHAYA WIFE OF SRI. MANJU AGED ABOUT 35 YEARS RESIDING AT KALIKAMBA TEMPLE ROAD CHITTANAHALLI STREET HOLENARASIPURA TOWN HASSAN DISTRICT – 573 211. …PETITIONER (BY SRI.SOMASHEKARA.K.M., ADVOCATE FOR SRI. C.R. GOPALASWAMY, ADVOCATE) AND:
1. STATE BY HOLENARASIPURA POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001.
2. SRI H. V. PRASAD SON OF LATE SRI. VENKATASUBBAIAH AGED ABOUT 39 YEARS RESIDING AT KOTE CHITTANAHALLI BEEDHI HOLENARASIPURA TOWN HASSAN DISTRICT – 573 211. …RESPONDENTS (BY SRI.VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R1) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 16/04/2015 PASSED BY THE CIVIL JUDGE AND JMFC, HOLENARASIPURA, IN C.C.NO. 12 OF 2012 ON AN APPLICATION FILED BY THE PROSECUTION UNDER SECTION 319 CR.P.C., SO FAR AS PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is aggrieved by the order dated 16.4.2015 passed by the Civil Judge and JMFC, Holenarasipura in CC No.12/2012 whereby the application filed by the prosecution to include the petitioner herein as co-accused has been allowed and the petitioner is directed to be impleaded as accused No.5.
2. A Charge sheet came to be lodged against four accused persons for offences punishable under sections 323 and 427 read with section 34 of the Indian Penal Code. During trial, the complainant was examined as PW.1. In his evidence, the complainant asserted that he has specifically implicated the petitioner herein in the FIR as well as in his statement before the Police, but the Investigating Officer has deliberately left out the present petitioner from the array of accused. Considering the said statement and looking into the material produced by the Investigating Officer, by the impugned order, the learned Magistrate allowed the application filed by the prosecution under Section 319 of Criminal Procedure Code and directed inclusion of the present petitioner as accused No.5.
3. Learned counsel for the petitioner, by referring to the statement of the witnesses examined by the prosecution namely, CWs.2,3,4 and 5 would submit that all these witnesses have consistently stated about the presence of only four accused persons. They have not named the present petitioner nor averred any overt-act by this petitioner and considering the said fact, the investigating officer had dropped the name of the present petitioner from the array of accused and therefore, the learned Magistrate ought not to have included the present petitioner as co- accused solely on the basis of the solitary testimony of the complainant. In support of his submission, the learned Counsel has placed reliance on a decision of the Hon’ble Supreme Court in Periyasami and Others vs. S.Nallasamy in Criminal Appeal No.456/2019 disposed of on 14.3.2019 and has emphasized that mere disclosing the names of the appellants cannot be said to be a strong and cogent evidence to make them stand trial for the offence under section 319 of the Criminal Procedure Code.
4. The learned Additional State Public Prosecutor however has argued in support of the impugned action and would submit that the petitioner having been named in the complaint as well as in the statement of the witnesses, the Trial Court was justified in allowing the application.
5. Considered the submissions and perused the records. A reading of the complaint indicates that at the earliest instance, the complainant had specifically alleged that the present petitioner was also present along with other accused. He has narrated the overt acts committed by the petitioner stating that all the accused including the petitioner herein demolished the compound wall. Even in his statement under Section 161 of the Criminal Procedure Code recorded by the Investigating officer, he has reiterated very same allegations. But, relying on the statements of the co-accused, CWS.2, 3, 4 and 5, the Investigating Officer appears to have dropped the name of the present petitioner in the charge sheet. Nevertheless in his evidence before the court, the complainant has once again reiterated the allegations made against the petitioner. The evidence of PW.1 clearly indicates that he was an eye witness to the incident. He has deposed that he was also assaulted and was pushed meaning thereby that he was also present at the spot and has personally witnessed the incident. Thus there is clear and cogent evidence to show that the petitioner herein was also one of the assailant. The material brought on record by the prosecution was sufficient to proceed against the petitioner for the alleged offences under Sections 323 and 427 of IPC.
6. The decision relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. In the said case, the proposed accused was not named either in the FIR or in the statement under section 161 of the Criminal Procedure Code and in the said circumstance, the Hon’ble Supreme Court held that mere disclosing the name of the appellants in the course of examination before the court cannot be said to be strong and cogent evidence to make them stand trial for the offence under section 319 of the Criminal Procedure Code. In the instant case, in the wake of clear assertions made by the petitioner which prima facie constitute ingredients of the offence charged against the petitioner, in my view, no interference is warranted in the impugned order.
Consequently, the petition fails and is accordingly dismissed.
Sd/- JUDGE nv