IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.3158/2018 BETWEEN:
STATE OF KARNATAKA BY ASHOKAPURAM POLICE STATION MYSURU, REPRESETNED BY STATE PUBLIC PROSECUTOR HIGH COURT BUIDLING BENGALURU – 01.
(BY SRI. S.T. NAIK., ADVOCATE) AND:
1. SRI. RAJESH S/O CHIKKANNA AGED ABOUT 42 YEARS R/AT 29/3, 4TH MAIN ARAVINDA NAGAR MYSURU – 570 023.
2. SRI. RAVI S/O NAGENDRA KUMAR NO.EWS 80, 3RD STAGE KUVEMPUNAGAR, MYSURU.
3. SRI. KUMARA S/O NAGENDRA KUMAR AGED ABOUT 26 YEARS NO.EWS 80, 3RD STATE KUVEMPUNAGAR MYSURU – 570 023.
... PETITIONER 4. SRI. CHETHAN @ CHINGA NO.70, 3RD STAGE K.H.B. COLONY KUVEMPUNAGAR MYSURU – 570 023.
... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:22.12.2017 PASSED BY THE COURT OF III ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.242/2016, WHEREIN, THE SESSIONS COURT HAS DISMISSED THE APPLICATION FILED BY THE PROSECUTION UNDER SECTION 319 OF CR.PC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. S.T. Naik, learned HCGP appearing for petitioner-State. Perused the records.
2. State is seeking the order dated 22.12.2017 passed by III Additional Sessions Judge, Mysuru in S.C.No.242/2016 being set aside whereunder application filed by the prosecution under Section 319 Cr.P.C for trial being conducted against one Sri.Chethan @ Chinga as accused No.4, came to be dismissed.
3. It is the contention of Sri. S.T.Naik, learned HCGP appearing for petitioner-State that in the complaint which came to be filed by C.W.1 (P.W.1), he had made a specific allegation about fourth person who is involved in the alleged incident along with accused Nos. 1 to 3 and during his (P.W.1) examination-in-chief he has stated on oath that fourth person who attacked him was one Sri. Chethan @ Chinga and he would be required to be arraigned as accused No.4. Learned trial Judge on an erroneous assumption has dismissed said application. Hence, he prays for allowing the petition by quashing the impugned order.
4. Gist of the prosecution case is:
On 18.12.2014 at about 8.45 p.m. near Mahadeshwara Temple, Aravinda Nagar, Mysuru, C.W.1 was talking with C.W.2 and at that point of time, accused Nos. 1 to 3 came to the spot armed with sickle and spanner, on account of previous enmity, altercation took place resulting in accused No.1 assaulting C.W.1 with spanner on head and accused No.3 had assaulted C.W.1 with sickle on left thigh and hands and during that time accused No.2 caught hold of C.W.1 so that he could not move or run away and said assault was done with an intention to murder C.W.1. and thereby accused Nos.1 to 3 had committed the offence alleged. On the basis of same, FIR came to be registered and charge sheet came to be filed against accused persons for the offences punishable under Sections 307 and 326 r/w Section 34 of IPC.
5. On framing of charge, trial has commenced, C.W.1 was examined as P.W.1 and after examination-in-chief of P.W.1, his cross-examination came to be deferred at the request of defence, since it was submitted by the prosecution that they would cross-examine P.W.1 after examination-in-chief of C.W.2. At that stage, prosecution filed an application in question under Section 319 Cr.P.C to summon Chethan @ Chinga as accused No.4, since in the evidence of P.W.1, he has been stated that he was also attacked by said Chethan @ Chinga with wooden club.
6. Power vested under Section 319 Cr.P.C is discretionary power and it has to be used or exercised sparingly and under those circumstances of the cases where it warrants and it would not be exercised merely because learned sessions Judge is of the opinion that some other person is also guilty of having committed the offence and only where strong and cogent evidence is available on record against such persons which is discernable from material on record such power can be exercised. Evidence led before trail Court would disclose that third person who is not present other than accused persons is also sought to be arraigned as a person who is responsible for the alleged act. The test that has to be applied is one, which is more than prima facie case has to be exercised at the time of framing of charge subject to satisfaction to the extent that evidence if goes un-
rebutted would lead to conviction. In the absence of such decision, Court would refrain from exercising power under Section 319 Cr.P.C.
7. It is in this background, expression occurring under Section 319 of Cr.P.C. namely, “it appears from evidence that any person not being the accused has committed any offence” would acquire significance. In order to apply Section 319 of Cr.P.C it is essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on the evidence recorded on the course of any enquiry or trial. Therefore, no scope is available for the Court while acting under Section 319 Cr.P.C to form any opinion on the guilt of the accused at that stage. In this background, when the material on record is perused it would disclose that even the alleged confession statements of accused Nos.1 to 3 do not disclose the name of Chethan @ Chinga having been stated. The complainant-C.W.1 has not specifically stated about any overt- act committed by Chethan @ Chinga. After a lapse of three years, he would state on oath before trial Court, that too after framing of charge for the first time about participation of Chethan @ Chinga which would clearly indicate that prosecution has been attempting to improve its case stage by stage and step by step. This would not be a ground on which the said Chethan @ Chinga can be roped in as an accused.
8. That apart, on perusal of charge sheet material which has been made available by learned HCGP it would disclose on meticulous examination of statements of eye witnesses which the prosecution is relying upon not disclosing about either said Chethan @ Chinga being at the spot or he having participated in the alleged act of assaulting of C.W.1. Yet, the prosecution has filed the application in question only on the ground of fresh statement having been made on oath by C.W.1 in his examination-in-chief. Even if said statement of C.W.1 were to remain uncontroverted or not tested by the accused in the cross-examination, by no stretch of imagination it can lead to conviction of proposed accused Chethan @ Chinga. As such, question of entertaining said application was not called for. Learned trial Judge has rightly rejected the said application and it has been rightly observed by trial judge that there is no explanation by C.W.1-P.W.1 as to how he came to know about the identity of other person i.e., Chethan @ Chinga who accompanied accused No.1 to 3 and the reason as to why he did not mention his name to the Investigating Officer during the course of investigation. It is a crucial loophole in the theory put forward by prosecution and thereby taking the name of Chethan @ Chinga by PW-1 in his evidence that too after three years, it would only indicate that prosecution has been attempting to improve its case contrary to material available on record. This Court finds that there is no justification or good ground to entertain this petition.
9. It is apt and appropriate to observe in this petition that State being a responsible litigant while challenging the said orders or filing such application before a trial Court, should act with minimum responsibility and cautious approach has to be adopted that too where application is filed to rope in any third party as accused, who are in no way related to the incident. This step on the part of State would not only result in criminal justice coming to a grinding halt but it would also result in proceedings getting derailed. Application filed in question is bald, vague and bereft of any material particulars for prosecution to seek for Chethan @ Chinga being arraigned as accused No.4. As such, this Court is of the considered view that State is required to be mulcted with exemplary cost. The Hon’ble Apex Court in the case of MARY ANGEL AND OTHERS VS. STATE OF TAMIL NADU reported in AIR 1999 SC 2245 has held that inherent power of the Court can be exercised by imposing exemplary cost on petitioner-accused while rejecting a petition for being frivolous and vexatious. Same principle applies to State also.
In the light of findings recorded hereinabove, I proceed to pass the following:
ORDER (i) Criminal petition is dismissed with cost of `1,000/-.
(ii) Petitioner-State is directed to pay the cost of Rs.1,000/- to accused No.4 Chethan @ Chinga and same shall be deposited before jurisdictional trial Court.
SD/- JUDGE RU