IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.3512/2018 BETWEEN:
1. SRI SRINIVASA MURTHY S/O. LATE K.S.NANJAPPA AGED 62 YEARS 2. SMT. RAJESHWARI W/O. SRINIVASA MURTHY AGED ABOUT 53 YEARS 3. SMT. CHAITRA D/O. SRINIVASA MURTHY AGED 31 YEARS ALL ARE RESIDING AT NO.290, 2ND H CROSS 3RD STAGE, 3RD BLOCK WEST OF CHORD ROAD BENGALURU – 560 079 ... PETITIONERS (BY SRI HASHMATH PASHA, SR.COUNSEL FOR SRI RANJAN K.S., ADV.) AND:
1. STATE OF KARNATAKA BY BASAVESHWARANAGAR POLICE STATION BENGALURU CITY – 560001 (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) HIGH COURT OF KARNATAKA 2. SMT. MANASA SHEKAR W/O. SANTHOSH N.S AGED 25 YEARS R/AT 10TH MAIN, 3RD PHASE, GIRINAGAR BENGALURU – 560 015 ... RESPONDENTS (BY SRI S.CHANDRASHEKARAIAH, HCGP FOR R1; SRI V.LAKSHMINARAYANA, SR.COUNSEL A/W SRI P.B.RAJU, ADV., FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 26.04.2018 PASSED IN C.C.NO.15495/2016 ON THE FILE OF THE V A.C.M.M. BANGALORE WHICH HAS ARISEN OUT OF CRIME NO.103/2016 ON THE FILE OF THE BASAVESHWARNAGAR POLICE STATION, BANGALORE CITY FOR THE OFFENCES P/U/S 498A, 504, 506 OF IPC AND SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri Hashmath Pasha, learned Senior Counsel a/w Sri Ranjan Kumar appearing for petitioners and Sri. V.Lakshminaryana, learned Senior Counsel appearing on behalf of Sri P.B.Raju for respondent No.2. Perused the records.
2. The point that arise for consideration is:
“Whether the application filed under Section 319 of Cr.P.C. before the learned Magistrate in C.C.No.15495/2016 to implead petitioners herein as accused Nos.2 to 4 has been rightly allowed or not?”
BRIEF BACKGROUND:
3. Marriage between first petitioner’s son – Santhosh N.S. and respondent No.2 came to be solemnized on 13.11.2015 and on account of marital discord between them, it is stated that they have been residing separately from March, 2016. The allegations made by second respondent/wife in her complaint, which came to be lodged on 06.03.2016 with the jurisdictional police is to the effect that she was harassed in her matrimonial home by her husband, in- laws and sister-in-law and as such, she sought for taking suitable action against them by the jurisdictional police. After investigation said complaint came to be registered in Cr.No.103/2016 for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act and Sections 498A, 504 and 506 r/w 34 of IPC.
4. On investigation being completed, charge sheet has been filed against accused No.1 alone for the said offences and accused Nos.2 to 4 were dropped. Learned Magistrate has taken cognizance of the said offence on 26.07.2016 and Non Bailable Warrant came to be issued against accused No.1.
5. During the course of trial, as noticed hereinabove, an application under Section 319 of Cr.P.C. came to be filed to implead petitioners herein as accused Nos.2 to 4 on the ground that evidence adduced by P.W.1 shows that accused Nos.2 to 4 subjected the complainant to cruelty and demanded her to bring more dowry and thereby committed the offence punishable under Sections 498A of IPC and Sections 3 and 4 of Dowry Prohibition Act. Said application having been opposed by the petitioners on being notified, came to be adjudicated by the learned trial Judge and by impugned order dated 26.04.2018 has allowed the same with a further direction to the Jurisdictional Police to file supplementary charge sheet against petitioners/ accused Nos.2 to 4. Hence, this petition for quashing the impugned order dated 26.04.2018..
6. It is the contention of Sri.Hashmath Pasha, learned Senior Counsel appearing for petitioners that learned trial Judge without application of judicious mind has erred in allowing the application and exercise of power under Section 319 of Cr.P.C. should be used sparingly and in extraordinary circumstances where there is strong and cogent evidence having come on record during trial against that particular accused, who is sought to be added as an accused, which may ultimately be sufficient for his/her conviction. He has also drawn the attention of this Court to the depositions of various witnesses, who have already been examined before the learned trial Judge to buttress his arguments. There is not even an iota of material to attribute any complicity of petitioners and as such, jurisdictional police having found that there exists no material whatsoever against petitioners herein to charge them for the offences alleged had dropped them from charge sheet and now they have been erroneously included by the learned trial Judge under impugned order by completely ignoring the charge sheet material and as such, he would elaborate his submissions by contending that entire allegation is against accused No.1 and not against petitioners. He would submit order dated 15.06.2016 taking cognizance only against accused No.1 has reached finality and there being no new material having there on record, learned trial Judge could not have allowed the application. Hence, relying upon the judgment of Hon’ble Apex Court in the case of HARDEEP SINGH Vs. STATE OF PUNJAB AND OTHERS reported in (2014) (3) SC 92 he prays for allowing the petition.
7. Per contra, Sri.S.Chandrashekharaiah, learned HCGP appearing for first respondent/State and Sri.V.Lakshminarayana, learned Senior Counsel appearing for second respondent/complainant respectively would support the impugned order by relying upon the judgment of in the case of HARDEI Vs STATE OF UTTAR PRADESH reported in (2016) 12 SCC 394.
RE: ANSWER TO POINT FORMULATED HEREINABOVE:
8. A bare reading of Section 319 of Cr.P.C. would clearly indicate that power to prosecute against a person other than the accused is to be exercised in a judicious manner, inasmuch as, a party who is neither accused or who has been dropped, could be arraigned as accused by the Court to be tried along with other only in the event of court being satisfied that such person has committed the offence based on the evidence collected or produced in the course of trial and power so vested is to be exercised sparingly and cautiously. The expression “any person not being the accused found in Section 319 of Cr.P.C. encompass within its sweep who is not being tried already by the Court and even persons who have been dropped by the police during investigation but against whom evidence is showing their involvement of the offence comes before the criminal Court are included in the said expression. This view is fortified by the judgment of Hon’ble Apex Court in the matter of Joginder Singh vs. State of Punjab reported in (1979) 1 SCC 345.
9. It is in this background, order of learned trial Judge as well as application filed by the learned Public Prosecutor before the trial Court will have to be looked into or examined together with the material/evidence that was available before the trial Court to add petitioners as accused. At the outset, it requires to be noticed that in the complaint filed by respondent No.2 she has made specific allegations against the petitioners herein at paragraphs Nos.5, 12, 14 and 15 specifically and generally in other paragraphs. In fact, she has entered the witness box as P.W.1 and in her examination-in-chief dated 10.08.2012 she has specifically alleged to the following effect:
“3. ªÀÄzÀÄªÉ DzÀ £ÀAvÀgÀ ¢.15.11.2015 gÀAzÀÄ £Á£ÀÄ §¸ÀªÉñÀégÀ£ÀUÀgÀzÀ°ègÀĪÀ 1£Éà DgÉÆæAiÀÄ ªÀÄ£ÉUÉ ºÉÆÃzÉ£ÀÄ.
C°èUÉ ºÉÆÃzÀ ¥ÀæxÀªÀÄ ¢£À¢AzÀ 1£Éà DgÉÆæ ªÀÄvÀÄÛ DvÀ£À vÀAzÉ, vÁ¬Ä £À£ÀUÉ QgÀÄPÀļÀ ¤ÃqÀ®Ä DgÀA©ü¹zÀgÀÄ. £ÁªÀÅ ªÀiÁ«£À vÉÆÃl 1£Éà DgÉÆæAiÀÄ ºÉ¸ÀjUÉ §gÉzÀÄPÉÆnÖ®è ºÁUÀÆ ªÀÄzÀÄªÉ ZÉ£ÁßV £ÀqɹPÉÆnÖ®è JAzÀÄ QgÀÄPÀļÀ ¤ÃrzÀgÀÄ.”
In paragraph No.5 of her examination-in-chief she alleged:
“5. £ÀªÀÄä CvÉÛ, ªÀiÁªÀ gÀªÀgÀÄ AiÀiÁgÁzÀgÀÄ ªÀÄ£ÉUÉ §AzÁUÀ £À£ÀߣÀÄß GzÉÝò¹ £À£Àß ªÀÄUÀ¤UÉ EªÀ¼ÀÄ ¸ÀjAiÀiÁzÀ eÉÆÃrAiÀÄ®è JAzÀÄ ºÉüÀÄwÛzÀÝgÀÄ. £À£Àß ªÀÄUÀ ¤£ÀUÉ «ZÉÑÃzÀ£Á ¤ÃrzÀgÉ DvÀ¤UÉ 2£Éà ªÀÄzÀĪÉUÉ §ºÀ¼À ¨ÉÃrUÉ EzÉ JAzÀÄ ºÉüÀÄwÛzÀÝ. £À£ÀUÉ DgÉÆæ EµÉÖ¯Áè »A¸É ¤ÃrzÀgÀÄ £ÀªÀÄä vÀAzÉ vÁ¬ÄUÉ w½¸ÀÄwÛgÀ°®è. PÁgÀtªÉAzÀgÉ £Á£ÀÄ EwÛaUɵÉÖ ªÀÄzÀÄªÉ DVzÀÄÝ £À£Àß ¨Á¼ÀÄ ºÁ¼ÁUÀ¨ÁgÀzÉAzÀÄ F «µÀAiÀĪÀ£ÀÄß £À£Àß vÀAzÉ vÁ¬ÄUÉ ºÉýgÀ°®è. £À£Àß CvÉÛ ªÀiÁªÀ ªÀÄvÀÄÛ £Á¢¤ £À£ÀUÉ gÀÆA£À°è PÀÆr ºÁQ ºÉÆgÀUÉ ©qÀÄwÛgÀ°®è.
£À£ÀUÉ n« ¸ÀºÀ £ÉÆÃqÀ®Ä ©qÀÄwÛgÀ°®è. £Á£ÀÄ ¸ÀjAiÀiÁV ªÀgÀzÀQëuÉ vÀA¢gÀĪÀÅ¢®èªÉAzÀÄ CªÀgÀÄ £À£ÀUÉ F jÃw ªÀiÁqÀÄwÛzÀÝgÀÄ. JµÉÆÖ ¨Áj £À£ÀUÉ ¸ÀjAiÀiÁV Hl ¤ÃqÀÄwÛgÀ°®è. £Á£ÀÄ HlPÉÌ PÀÆvÁUÀ ¤Ã£ÀÄ ¸ÀjAiÀiÁV ªÀgÀzÀQëuÉ PÉÆnÖ®è JAzÀÄ ºÉý £À£Àß vÀAzÉ vÁ¬ÄUÉ ¨ÉÊzÀÄ £À£ÀUÉ zÉÊ»PÀ ªÀÄvÀÄÛ ªÀiÁ£À¹PÀ »A¸É ¤ÃqÀÄwÛzÀÝgÀÄ.”
(emphasis supplied by me) Insofar as petitioner No.3 is concerned, the allegations apart from above, and in specific is to the following effect:
“6. £À£Àß £Á¢¤ ZÉÊvæÀ gÀªÀgÄÀ £À£ÀUÉ QgÄÀ PÄÀ ¼À PÆÉ qÄÀ ªÀ G¥ÁAiÀĪÀ£ÀÄß ºÀÄqÀÄQ £À£Àß UÀAqÀ¤UÉ £À£Àß «gÀÄzÀÝ ºÉýPÉÆqÀÄwÛzÀݼÀÄ.”
and at paragraph No.7 and she has further stated that:
“7. ¢. 6.12.2015 gÀAzÀÄ £ÁªÀÅ ºÀ¤ªÀÄÆ£ï ªÀÄÄV¹PÉÆAqÀÄ £ÀªÀÄä CvÉÛ ªÀÄ£ÉUÉ §AzɪÀÅ. DzÀgÉ DgÉÆæ ªÀÄvÀÄÛ DvÀ£À vÀAzÉ vÁ¬Ä ¤Ã£ÀÄ ªÀgÀzÀQëuÉ vÀgÀĪÀªÀgÉUÉ £ÀªÀÄä ªÀÄ£ÉUÉ ¸ÉÃj¸ÀĪÀÅ¢®èªÉAzÀÄ ºÉýzÀgÀÄ.
8. ¢. 25.2.2016 gÀAzÀÄ £ÀªÀÄä vÀAzÉ vÁ¬Ä £À£ÀUÉ DgÉÆæAiÀÄ ªÀÄ£ÉUÉ ¥ÀÄ£ÀB ©lÄÖ§gÀ®Ä PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ. DgÉÆæ £À£ÀߣÀÄß £ÉÆÃrzÀ PÀÆqÀ¯É ¤Ã£ÀÄ bitch JAzÀÄ ºÉý £À£ÀUÉ ¨ÉÊzÀ£ÀÄ.”
10. When material allegations being available on record, for reasons best known, Investigation Officer had not been taken into consideration this material. In this background, learned trial Judge has rightly arrived at a conclusion that testimony of P.W.1 prima facie shows the act of each of the accused in harassing the complainant with a demand for dowry apart from physical and mental torture being inflicted on PW.1. This evidence available on record prima facie establishes that if said evidence were to be remain unrebutted it may lead to conviction of petitioners.
11. The contention of Sri Hashmath Pasha, learned Senior Counsel appearing for the petitioners is that evidence which can be looked into should be limited to fresh evidence, which would come on record and only such evidence should be looked into, is an argument which requires to be considered for the purposes of outright rejection. The expression ‘evidence’ used in Section 319 of Cr.P.C. in a comprehensive sense, which includes the evidence collected during investigation and by discerning the said evidence learned trial Judge in the instant case has arrived at a conclusion that petitioners had committed the offence and as such they are to be included as accused. The expression which has been used in sub-section (1) Section 319 of Cr.P.C. is to the effect in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed an offence for which such person could be tried together with the accused, Court may proceed against such person also for the offence which he appears to have committed”. The expression “committed” used in sub-section (1) of Section 319 Cr.P.C., it will have to be read with in the event of evidence adduced by the prosecution were to remain unrebutted or uncontroverted, which will lead to conviction then only the records could be taken under Section 319 of Cr.P.C. and not on the basis of ‘ifs’ and ‘buts’ and only in the event of trial Judge is of the opinion that there is possibility of accused having committed the offence. The evidence which was available or produced during inquiry before the investigating officer or during the trial before the Court, which is reiterated either by the victim or complainant, as case may be, when brought to the knowledge of trial Court it is empowered to add such of those persons as accused for being tried along with accused, in the event of such persons having been let out.
12. In the light of aforesaid discussion, this Court is of the considered view that learned trial Judge having evaluated the entire material including the evidence, has rightly arrived at a conclusion that summoning of all the petitioners is necessary and they are to be arraigned as accused Nos.2 to 4, is just and proper.
13. However, Sri Hashmath Pasha, learned Senior Counsel for the petitioners is correct and justified in contending that further direction issued by the learned trial Judge to the jurisdictional police to file supplementary charge sheet against accused Nos.2 to 4, is not called for, inasmuch as, sub-section (4) of Section 319 Cr.P.C. is complete answer to accept the contention of Sri.Hasmath Pasha. A plain reading of sub-Section (4) of Section 319 of Cr.P.C. would indicate that Court can proceed against any person who has been arraigned as accused by virtue of being added under sub-Section (1) of Section 319 and the proceedings in respect of such persons would commence afresh and witnesses are to be re-heard. In that view of the matter, to the extent of direction issued by the trial Court to the jurisdictional police to file additional or supplementary charge sheet, would not stand test of law and it requires to be set aside.
14. For the reasons aforestated, I proceed to pass the following:
ORDER (i) Criminal petition is allowed in part.
(ii) Order passed by the V Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.15495/2016 dated 26.04.2018 insofar as impleading the petitioners as accused Nos.2 to 4 is upheld and order passed by the trial Court directing Basaveshwaranagar Police Station to file supplementary charge sheet is set aside.
(iii) Learned trial Judge shall proceed with the trial keeping in view sub- section (4) of Section 319 of Cr.P.C.
In view of petition having been disposed of on merit, I.A.2/2018 for stay does not survive for consideration and same stands rejected.
SD/-
JUDGE HJ