IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.5575 OF 2017 BETWEEN:
Sanjay, S/o Basavaraju H.G, Aged 25 years, R/at No.660, Government School Road, Behind Srinivasa Kalyana Mantap, 3rd Cross, Near Nethaji Circle, Mathikere, Bengaluru -560 054. …. Petitioner (By Sri. Srinivasa M.G, Advocate) AND:
1. State by Kunigal Police Station, Pin code-572 130.
(Represented by S.P.P, High Court of Karnataka, Bengaluru-560 001).
2. Padma, W/o Ramanna, Aged 32 years, Kadumattikere Village, Kasaba Hobli, Kunigal Taluk - 572 130 Tumkur District.
(By Sri. S. Rachaiah, HCGP for R1) … Respondents This Criminal petition is filed under Section 482 of Code of Criminal Procedure praying to quash the proceedings against petitioner/accused No.19 in S.C.No.31/2017 for the offences punishable under Sections 120B, 395 of IPC on the file of the I Additional District and Sessions Judge, Tumkuru.
This Criminal Petition coming on for Admission this day, the Court made the following:
ORDER None appears for petitioner. Hence, I have heard the arguments of Sri. S. Rachaiah, learned HCGP appearing for respondent and perused the records.
2. Petitioner is seeking for quashing of proceedings in S.C. No.31/2017 registered for the offence punishable under Sections 120B and 395 of IPC pending on the file of I Additional District and Sessions Judge, Tumkur.
3. A complaint came to be filed by second respondent-complainant alleging that on 23.04.2016 at about 1:10 p.m., when she was proceeding near Areshankara Mata, Kithnagamangala, Kasaba Hobli, Kunigal Taluk, accused persons travelling in three vehicles from Nelamangala sat in a bus stop near National Highway and conspired to commit robbery and in furtherance thereof they threw chilly powder on the face of the complainant, threatened her showing knife and stole Rs.1,50,000/- cash, laptop, mobile phone and ran away from the spot. On the basis of said complaint, FIR came to be registered in Crime No.130/2016 by Kunigal Police Station against 10 to 15 unknown persons and on completion of investigation, charge sheet came to be filed against accused Nos.1 to 18 in C.C. No.53/2016 for the offence punishable under Section 395 of IPC. However, in Column No.13 of the charge sheet, it is specifically mentioned that petitioner’s/accused No.19 address was not correctly stated and as such, prayed for the trial Court to permit the Investigating Officer to file additional charge sheet against accused No.19.
4. When the matter stood thus, learned Senior Civil Judge and JMFC, Kunigal passed a committal order dated 31.01.2017, in C.C. No.53/2016, whereby case against accused Nos.1 to 19 was committed to Principal District and Sessions Judge, Tumakuru for the offence punishable under Sections 120(b) and 395 of IPC. In the meanwhile, petitioner appeared before the Committal Court and obtained regular bail and contended that his name was not found in the charge sheet and hence, prayed that case should not be committed against him and despite contention being raised on behalf of accused No.19 to said effect, learned Senior Civil Judge and JMFC, Kunigal proceeded to pass the order of committal against accused Nos.1 to 19.
5. There cannot be any dispute with regard to the proposition that Magistrate committing the case to the Sessions Court cannot pass such an order without securing the presence of all the accused. Likewise, the Sessions Court is not empowered to add any person or implicate as accused other than those shown in the FIR while passing committal order. As could be seen from the charge sheet filed in C.C. No.53/2016 by the Kunigal Police Station against accused Nos.1 to 18, insofar as accused No.19 is concerned in Column No.13 it has been specifically stated that he has not been charge sheeted due to his address not being traceable and as such, the Investigating Officer has sought the leave of the Court to file additional/supplementary charge sheet against accused No.19. In fact, the learned trial Judge, while passing the committal order on 31.01.2017, at paragraph 3 has also noticed this fact and has observed:
“3. The accused persons are on bail and they are represented by Sri TRN, Sri PNK, Smt.PS, Sri GPD and Sri MAC. Chargesheet copies have been supplied to the Advocates. It is relevant to note hereby as per police record the I.O did not charge sheeted accused No.19 Sanjay only for the reasons that his address was not traced out. However, this Court by order dated 16.11.2016 to file additional charge sheet if any. In spite of receipt of intimation the I.O did not filed any additional charge sheet. However, the accused No.19 even after filing of challen have obtained bail from Hon’ble 1st Additional District and Sessions Judge, Tumakuru in C.Mis.No.922/2016 on 10.08.2016. It is well settled position of law that the committal Court need not go into the merits of the prosecution case. In these back ground of the settled position of the law and also having regard the opinion of I.O. which prima facie shows involvement of accused No.19, but for want of full address he did not charge sheeted him. Since, he has been regularly appeared in this case, as such I am of the opinion that the case against accused No.19 along with other accused persons have to be committed.”
6. This Court in the matter of H.M. Revanna Vs.
State of Karnataka reported in 1997 CRI.L.J. 4627 has held that an order passed by the Magistrate committing the case to the Sessions Court without securing the presence of all the accused is improper. At this juncture, it is apt and appropriate to note the relevant provision which has a bearing namely, Section 209 of Cr.P.C. and it reads:
“209. Commitment of case to Court of Session when offence is triable exclusively by it – When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall – a) commit, after complying with the provisions of Section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial,;
c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
d) notify the Public Prosecutor of the commitment of the case to the Court of Session.”
7. In the background of statutory provision above referred when the impugned order passed by the learned Magistrate is perused, it is clear there from that without securing the presence of accused No.19 order of committal has been passed. Unless the accused appears or is brought before the committing Magistrate, his case cannot be committed to the Sessions Court. In fact, the Investigating Officer himself has sought leave of the Court to file additional/supplementary charge sheet against accused No.19 since his address was not traceable. That apart, the Investigating Officer had not filed the supplementary charge sheet before the learned Magistrate till the date of order of committal came to be passed.
8. In that view of the matter, the impugned order cannot be sustained. Hence, the following:
Order i. Criminal Petition is allowed.
ii. Committal order passed in C.C. No.53/2016 dated 31.01.2017 by Senior Civil Judge and JMFC, Kunigal insofar as accused No.19 is hereby set aside with liberty to respondent- prosecution to seek for such order of committal being passed against accused No.19 on supplementary/additional charge sheet being filed and after securing the presence of accused No.19.
iii. It is made clear that order of committal insofar as accused Nos.1 to 18 are concerned, stands affirmed and remains un-disturbed.
Sd/- JUDGE MBM