IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.5456 OF 2018 BETWEEN:
1. Savithramma W/o Late Bheemaiah Aged about 47 years, 2. Rajanna S/o Thimmaiah Aged about 30 years.
3. Roopa D/o Bheemaiah Aged about 20 years All are residing at Near Chamundeshwari Temple, City Club, Sira Gate Tumkur - 572105.
... Petitioners (By Sri Nataraj R - Advocate) AND 1. State of Karnataka By Town P. S., Tumkur Rep. by its SPP, High Court of Karnataka, Bangalore.
2. Jayalakshmi W/o H Narayan Auxiliary Nurse Midwife (ANM) Bheemasandra, Tumkur-572105.
... Respondents (By Sri. S Rachaiah – HCGP for Respondent) Crl.P filed under Section 482 Cr.P.C praying to set aside the order dated 11.05.2018.
This Criminal Petition coming on for admission, this day, the Court made the following:
O R D E R Heard Sri Nataraj.R., learned counsel appearing for petitioners and Sri S.Rachaiah, learned HCGP appearing for State. Perused the records.
2. Second respondent herein got married to one Sri Narayan on 02.06.2005. A complaint came to be lodged by her alleging that her husband, in-laws and the petitioners herein were torturing her physically and mentally with a demand for dowry. Said complaint came to be registered in Cr.No.115/2010 against Accused No.1 to Accused No.3 and present petitioners (as Accused No.4 to Accused No.6) and charge sheet came to be filed after investigation in C.C.No.1971/2011 against Accused No.1 to Accused No.3 for the offence punishable under Section 498A read with Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act. Petitioners were dropped from the charge sheet.
3. During the course of trial, an application under Section 319 of Cr.P.C. came to be filed by the prosecution for adding petitioners as Accused Nos.4 to 6 contending that evidence of complainant is in consonance with the complaint lodged by her which has been marked as Ex.P1 and even though their names were found in the complaint lodged by her, they have not been charge sheeted and these persons namely the petitioners who are also participants in the alleged criminal acts perpetrated against complainant are to be arraigned as accused persons. Said application came to be resisted by the proposed accused persons namely petitioners herein contending that the evidence on record is not sufficient to proceed against them and PW.1 has not deposed that petitioners were involved in any act, as such, based on the statements of the witnesses, the Investigating Officer had not charge sheeted the petitioners rightly and as such, question of entertaining said application even before other witnesses are examined was not called for and hence, sought for dismissal of the application. Trial Judge after considering rival contention, by impugned order dated 11.05.2018 has allowed the said application which is under challenge before this Court.
4. Sri R.Nataraj, learned counsel appearing for the petitioners has reiterated the grounds urged in the statement of objections filed to the application filed under Section 319 of Cr.P.C. before Trial Court and has relied upon the judgment of Hon’ble Apex Court rendered in K.SUBBA RAO AND OTHERS vs. THE STATE OF TELANGANA, REP. BY ITS SECRETARY, DEPARTMENT OF HOME AND OTHERS reported in 2018(2) Kar.L.R. 694 (SC). In this background he has sought for quashing of impugned order and prays for dismissal of the application in question.
5. Per contra, Sri S.Rachaiah, learned HCGP appearing for the State would support the case of the prosecution and prays for dismissal of the petition.
6. Having heard learned counsel appearing for the parties and on perusal of the records in general and particularly complaint lodged by the second respondent at the first instance along with statement of other witnesses as well as her deposition. Same would disclose at the first instance complainant has specifically alleged in her statement that these petitioners along with Accused Nos.1 to 3 were pestering and torturing her to persuade her parents to meet the demand of additional dowry which they had agreed namely, to pay a sum of Rs.25,000/-, which had remained unpaid for purchasing of a two wheeler vehicle and in this regard, they were torturing her physically and mentally. In her own words the statement made before the jurisdictional police reads as under:
“ªÀÄzÀÄªÉ DzÀ 15 ¢ªÀ¸ÀUÀ¼À £ÀAvÀgÀ £À£Àß UÀAqÀ £ÁgÁAiÀÄt CªÀgÀ vÀAzÉ ºÀ£ÀĪÀÄAvÀgÁAiÀÄ¥Àà, CªÀgÀ vÁ¬Ä dAiÀĪÀÄä, £À£Àß UÀAqÀ£À aPÀ̪ÀÄä£ÁzÀ ¸Á«vÀæªÀÄä, CªÀgÀ ªÉÄÊzÀÄ£À gÁdtÚ, ¸Á«vÀæªÀÄä£À ªÀÄUÀ¼ÁzÀ gÀÆ¥À, EªÀgÀÄUÀ¼ÀÄ ¸ÉÃj ¢éZÀPÀæ ªÁºÀ£ÀªÀ£ÀÄß ¤ªÀÄä ªÀÄ£ÉAiÀĪÀjAzÀ PÉÆr¸ÀÄ, ªÀgÀzÀQëuÉ ¨ÁQ 25,000/- gÀÆ. PÉÆr¸ÀÄ JAvÀ DVAzÁUÉÎ dUÀ¼À vÉUÉzÀÄ ªÀiÁ£À¹PÀ ºÁUÀÆ zÉÊ»PÀ »A¸É ¤ÃqÀÄwÛzÀÝgÀÄ.”
7. She has further stated that six months prior to her lodging the complaint, she was physically and mentally tortured with a demand for dowry and they had posed a threat of taking away her life. In her own words the statement made before the jurisdictional police reads as under:
“6 wAUÀ¼À »AzÉ £À£Àß UÀAqÀ ºÉZï.£ÁgÁAiÀÄt, ªÀiÁªÀ ºÀ£ÀĪÀÄAvÀgÁAiÀÄ¥Àà, CvÉÛ dAiÀĪÀÄä, £À£Àß UÀAqÀ£À aPÀ̪ÀÄä ¸Á«vÀæªÀÄä, PÉÆÃA ¯ÉÃmï ©üêÀÄAiÀÄå, CªÀgÀ ªÉÄÊzÀÄ£À£ÁzÀ gÁdtÚ, ¸Á«vÀæªÀÄä£À ªÀÄUÀ¼ÁzÀ gÀÆ¥Á EªÀgÀÄUÀ¼ÀÄ ¸ÉÃj £À£ÀUÉ DVAzÁUÉÎ ªÀiÁ£À¹PÀ ºÁUÀÆ zÉÊ»PÀ »A¸É ¤Ãr ªÀgÀzÀQëuÉ ºÀtPÁÌV MvÁ۬Ĺ £À£Àß UÀAqÀ ¨ÉÃgÉ ªÀÄzÀÄªÉ ªÀiÁrPÉƼÀÄîªÀ GzÉÝñÀ¢AzÀ £À£ÀߣÀÄß PÉÆ¯É ªÀiÁqÀ®Ä AiÀÄwß¹gÀÄvÁÛgÉ.
8. However, jurisdictional police after investigation have not filed the charge sheet against the petitioners. After evidence of complainant(PW.1) came to be recorded on 20.03.2015 and 30.03.2017, prosecution filed an application under Section 319 Cr.P.C. to include petitioners herein as accused for the reasons already noted herein above. The said application having been resisted, Trial Judge after evaluating rival contentions has allowed the application.
9. It is trite law that the power available to the Trial Judge under Section 319 Cr.P.C. can be exercised at any stage of the trial, which provision is meant to achieve the objective that the real culprit would not get away unpunished. If there is “some evidence” available against such persons on the basis of which it can be gathered that such person appears to be guilty of the offence, it would suffice for the Court to add such person and the material/evidence collected by the IO at the stage of inquiry/investigation can be utilized for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. This power available to the Trial Court is to be exercised sparingly and only in those cases where the circumstances of the case so warrants. Under Section 319 Cr.P.C. the test of prima-facie case is same and the degree of satisfaction is to be strict. It also goes without saying that Section 319 Cr.P.C., which is enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge- sheet is filed and before the pronouncement of the judgment.
10. The Hon’ble Apex Court in the case of HARDEI vs. STATE OF U.P. reported in (2016) 12 SCC 394 has held that FIR is not an encyclopedia of facts. It has been held as under:
“It is well accepted in criminal jurisprudence that F.I.R. may not contain all the details of the occurrence or even the names of all the accused. It is not expected to be an encyclopedia even of facts already known. There are varities of crimes and by their very nature, details of some crimes can be unfolded only by a detailed and expert investigation. This is more true in crimes involving conspiracy, economic offences or cases not founded on eye witness accounts. The fact that Police chose not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the Cr.P.C. to summon such a person on account of evidence recorded during trial. This is the factual scenario in the case at hand also.”
11. At the same time, the omnibus statement made by the complainant without there being foundation laid at the initial stage and specifically during the course of the trial, if complainant attempts to improvise the statement made in the complaint stage by stage and step by step and an attempt is made to rope in all such persons who are not even remotely connected to the offence, are sought to be roped in as accused, then under such circumstances it will have to be examined in the facts obtained in each case as to whether any such remoteness to the incident is there and if answer is in the affirmative, necessarily proceedings or order passed adding them as accused will have to be necessarily quashed. This view gets fortified by the law laid down by Hon’ble Apex Court in the case of K.Subba Rao referred herein to supra, wherein on the basis of a omnibus statement distant relatives were sought to be roped in as co-accused which was held to be erroneous by the Hon’ble Apex Court.
12. In the instant case, Sri R.Nataraj, learned counsel appearing for the petitioners would be correct in contending that petitioners are distant relatives and to that extent only he would be justified and not further, for the simple reason, though petitioners are distant relatives, are residing in the close vicinity of the house of the accused no.1 namely the husband of the complainant and she has specifically stated in her statement recorded under Section 161 Cr.P.C. by the jurisdictional police that not only these petitioners participated in the initial talks held with regard to the marriage, but also continuously have been visiting the matrimonial house day in and day out and were spending considerable length of time at their house. She has also stated specifically the overt acts alleged to have been committed by them which is already extracted herein above. Thus, allegation made in the complaint as well as in the deposition of the complainant (PW.1) would clearly indicate that if said evidence were to remain unrebutted, it would lead to their conviction and as such they will have to be necessarily added as accused 4 to 6. As such this Court is of the considered view that learned Trial Judge has rightly allowed the application and added petitioners as Accused Nos.4 to 6. Said order does not suffer from any infirmity either in law or on facts calling for interference at the hands of this Court.
No grounds. Criminal petition is rejected.
SD/- JUDGE DKB