IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.5487 OF 2017 BETWEEN:
SOMASHEKAR H.C. S/O. LAKSHMAIAH AGED ABOUT 58 YEARS R/AT OPP. CHICKEN STALL DANTARAMAKKI POND ROAD CHIKKAMAGALUR DISTRICT PIN: 577 101 … PETITIONER (BY SHRI B.S. SACHIN, ADVOCATE) AND:
1. STATE OF KARNATAKA BY TOWN POLICE STATION CHIKKAMAGALURU – 577 101 REP. BY THE S.P.P., HIGH COURT OF KARNATAKA BANGALORE – 560 001 2. SMT. RENUKA W/O. VIJAYAKUMAR AGED ABOUT 30 YEARS R/AT NEAR SHANESHWARA TEMPLE DANTARAMAKKI CHIKKAMAGALUR PIN: 577 101 ... RESPONDENTS (BY SHRI S. RACHAIAH, HCGP FOR R.1 SHRI N.D. JAYADEVAPPA, ADVOCATE FOR R.2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED 18.05.2017 PASSED IN CRL.RP.NO.38/2017 ON THE FILE OF PRL. DIST. AND S.J., CHIKKAMAGALURU THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri B.S. Sachin, learned advocate for the petitioner, Shri S. Rachaiah, learned HCGP for the State and Shri N.D. Jayadevappa, learned advocate for respondent No.2.
2. In a pending criminal case C.C.No.890/2016 before the learned Senior Civil Judge and CJM, Chikmagalur, learned Senior Public Prosecutor filed an application under Section 319 of Cr.P.C. on 03.02.2017, requesting the Court to add petitioner as an accused. Learned Magistrate rejected the said application by order dated 08.03.2017. Complainant challenged the said order before the learned Sessions Judge in a Revision Petition. By the impugned order, learned Sessions Judge has allowed the Revision Petition and directed the learned Magistrate to issue summons to the petitioner.
3. Shri B.S. Sachin, learned advocate for the petitioner placing reliance on a decision of this Court in Smt. Asha and others Vs. State of Karnataka (Crl.RP.No.231/2016 decided on 30.03.2016) submitted that it is necessary to issue notice to a proposed accused and to hear him before any order is passed against him.
4. Shri N.D. Jayadevappa, learned advocate for respondent No.2 submits that since there is sufficient material against the petitioner, learned Sessions Judge has allowed the Revision Petition and the same does not require any interference.
5. This Court, in the case of Asha (supra) has recorded as follows:
“15. Suffice to state that it is always incumbent upon criminal courts to issue prior notice to a person calling upon him or her to show cause as to why he/she should not be made an additional accused. Only on giving an opportunity of being heard, a suitable order should be passed. If the order is passed summoning a particular person in terms of Section 319, Cr.P.C. without giving prior notice, such an order would not withstand the legal scrutiny. Hence all criminal courts are expected to keep in mind this aspect of the matter as explained by the Hon’ble apex court in the case of JOGENDRA YADAV (supra).
16. It need not be reiterated that whenever a person is sought to be summoned as an additional accused in terms of Section 319, Cr.P.C., not only prior notice calling upon him to show cause is to be issued, but also the judge dealing with the case has to take extra caution to satisfy himself/herself that a stronger evidence exists as the basis for taking such action.” (emphasis supplied) 6. Admittedly, no notice was issued to the petitioner before passing the impugned order by the learned Sessions Judge. In the circumstances, impugned order is unsustainable in law.
7. Resultantly, this petition merits consideration and it is accordingly allowed. Order dated 18.05.2017 in Crl.RP.No.38/2017 passed by the Principal District and Sessions Judge, Chikkamagaluru, is set aside. The matter is remitted to the learned Sessions Judge for re-consideration of the Revision Petition after hearing the petitioner in the matter. Petitioner and respondent No.2 shall appear before the learned Sessions Judge on 11.02.2019, without any notice and act as per further directions of the learned Sessions Judge. All contentions are left open.
8. In view of disposal of the petition, I.A.No.1/2017 does not survive for consideration and the same stands disposed of.
No costs.
Sd/- JUDGE AV