IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO.380/2017 BETWEEN :
1. SRI M.BASAPPA S/O MALLAPPA AGED ABOUT 47 YEARS AGRICULTURIST INGLARANAHALLI KADUR TALUK CHIKKAMAGALURU DISTRICT – 577 548.
2. SRI M.OBALESHA S/O MUDIMALLAPPA AGED ABOUT 43 YEARS AGRICULTURIST R/O INGLARANAHALLI KADUR TALUK CHIKKAMAGALURU DISTRICT – 577 548.
3. SRI M.NAGARAJAPPA S/O MALLAPPA AGED ABOUT 42 YEARS AGRICULTURIST R/O INGLARANAHALLI KADUR TALUK CHIKKAMAGALURU DISTRICT – 577 548.
4. SRI N.RUDRAPPA S/O NELLAPPA AGED ABOUT 45 YEARS AGRICULTURIST R/O INGLARANAHALLI KADUR TALUK CHIKKAMAGALURU DISTRICT – 577 548.
(BY SRI K.R.LINGARAJU, ADV.) AND :
STATE BY BIRUR POLICE STATION REP. BY ITS S.P.P.
HIGH COURT OF KARNATAKA BENGALURU – 560 001.
(BY SRI S.RACHAIAH, HCGP.) …PETITIONERS …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER IN CRL.R.P.NO.9/2015 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU DATED 28.11.2016 AND THE ORDER IN C.C.NO.169/2009 DATED 13.10.2014 PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C., KADUR, ORDERING TO IMPLEAD THE PETITIONERS AS ACCUSED NOS.2 TO 5.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners have sought for quashing of the order dated 13.10.2014 passed by the Senior Civil Judge and JMFC., Kadur in CC.No.169/2009, as confirmed by the II Additional Sessions Judge at Chikkamagaluru, dated 28.11.2016 in Criminal Revision Petition No.9/2015.
2. I have heard the arguments of the learned counsel for the petitioners and the learned HCGP appearing for the respondent-State.
3. Perused the records. The learned APP has filed an application under Section 319 Cr.P.C. before the trial Court to implead the petitioners herein as additional accused on the ground that the evidence adduced by the prosecution shows that, the petitioners are also involved in the said case. The trial Court has allowed the said application and ordered to implead the petitioners as accused Nos.2 to 5 and issued process against them. The said order was questioned in Criminal Revision Petition No.9/2015 and vide order dated 28.11.2016, the said revision petition was dismissed.
4. As could be seen from the entire order sheet of the trial Court, there is no notice which has been issued by the trial Court on the application filed under Section 319 of Cr.P.C. and no opportunity was provided before considering the said application which is a legal requirement as per the decision of this Court in the case of Smt.Asha Somashekar & others Vs. State of Karnataka, reported in 2016(4) AKR 392, wherein this Court has categorically held:
“Section 319 of Cr.P.C. – Summoning of additional accused – Criminal Court must issue prior notice to any person, before calling upon him to be made an additional accused in any criminal case – Order of summoning any person as an accused without any prior notice and opportunity of being heard, shall not be sustainable – The Court has to take extra caution to satisfy itself that strong evidence exists against any person for summoning him as accused.”
5. In view of the above said dictum of this Court, the order passed by the trial Court and the order of the revisional Court confirming the said order are not sustainable in law. Hence, the said orders are liable to be set aside. As such the following order is made:-
Petition is allowed.
Consequently, the order dated 13.10.2014 passed by the Senior Civil Judge and JMFC., Kadur, in CC.No.169/2009 and also the order dated 28.11.2016 passed by the II Additional Sessions Judge at Chikkamagaluru in Criminal Revision Petition No.9/2015 are hereby set aside. The application filed by the learned APP under Section 319 of Cr.P.C. before the trial Court is restored to the file, with a direction to the trial Court to issue notice on the said application and to provide an opportunity to the proposed accused of being heard and then pass appropriate orders in accordance with law.
In view of disposal of petition, I.A.No.1/2017 is dismissed as it does not survive for consideration.
*ck/-
Sd/- JUDGE