IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3068 OF 2014 BETWEEN:
1. SMT SWETHA D/O NANJUNDA GOWDA AGED ABOUT 28 YEARS, 2. SMT.ROOPA D/O NANJUNDA GOWDA, AGED ABOUT 30 YEARS, BOTH OF THEM ARE RESIDENT OF GUDIDODDI VILLAGE, KOPPA HOBLI, MADDUR TALUK, MANDYA DISTRICT PIN:571428 ... PETITIONERS (BY SRI. M.R.NANJUNDA GOWDA, ADVOCATE) AND STATE OF KARNATAKA BY BESAGANAHALLI, POLICE, MADDUR (TQ) MANDYA (DIST) PIN:571428 ... RESPONDENT (BY SRI: I.S.PRAMOD CHANDRA, SPP-II) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 5.3.2014 PASSED BY THE PRINCIPAL SESSIONS JUDGE, MANDYA IN S.C.NO.73/2009.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 30.01.2019 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
O R D E R Petitioners are aggrieved by the order passed by the Prl. Sessions Judge at Mandya in S.C.No.73/2009 dated 05.03.2014, whereby the application filed by the prosecution under Section 319 Cr.P.C. has been allowed and the petitioners herein are ordered to be added as accused Nos.5 to 8.
2. Initially, a case was registered in Cr.NO.59/2007 at Besagarahalli police station, Maddur, against accused Nos.1 to 5 for the offences under Sections 143, 147, 148, 323, 324, 504, 114, 302 r/w 149 Indian Penal Code in connection with the murder of one Marilingegowda. Circle Inspector of Police, Maddur took up the investigation and filed a charge sheet against accused Nos.1 and 2. Accused No.5 was shown as absconding. The trial court framed charges against accused Nos.1 and 2 for the above offences and proceeded with the trial. During the course of trial, CWs 1-3 and 5 were examined as PWs-1 to 4. PW-1 Mallegowda-the complainant as well as the witnesses examined by the prosecution implicated the petitioners herein in the alleged incident. In view of this evidene, Public Prosecutor moved an application under Section 319 Cr.P.C. seeking to implead the following four persons as additional accused via., 1. Swetha D/o. Nanjundegowda, 2. Roopa D/o. Nanjundegowda, 3. Shivalingaiah S/o. Late Lingegowda and 5. G.T. Prakasha S/o. Late Honnegowda.
3. Accused Nos.1 to 4 filed objections to the application and after hearing the learned Public Prosecutor and the counsel appearing for accused Nos.1 to 4, by the impugned order, the Sessions Judge directed to implead the above proposed persons as accused Nos.5 to 8 and try them alongwith accused Nos.1 and 2 and accordingly directed summons to the proposed accused Nos.5 to 8.
4. The proposed accused Nos.5 and 6 have filed this petition inter-alia contending that the impugned order passed by the learned Sessions Judge is contrary to the law laid down by the Apex Court and this Court. Evidence of PW-1 is full of material omissions and contradictions. It is only during his evidence before the Court on 5.02.2013, after a lapse of five years and four months, for the first time PW1 has come up with the allegation that the petitioners were standing near the place of occurrence. This evidence is contrary to the contents of the previous statement given by PW2 before the Investigating Officer under Section 161 of Cr.P.C. Likewise, PWs-3 and 4 also failed to implicate the petitioners at the first instance during the recording of their statements under Section 161 of Cr.P.C. and it is only on the date of their examination before the trial court, they have improved their version and therefore, solely on the basis of the statements made before the Court, the trial court ought not to have directed impleadment of the petitioners as co- accused.
5. I have heard the learned counsel for the petitioners and the learned SPP-II appearing for respondent –State and have perused the impugned order and the material on record.
6. In the course of argument, learned counsel for the petitioners has canvassed a legal contention relying on the decision of the Hon’ble Apex Court in the case of JOGENDAR YADAV AND OTHERS vs. STATE OF BIHAR AND ANOTHER, reported in (2015) 9 SCC 244 and the orders passed by this Court in Crl.RPNo.320/2016 dated 31.03.2016 and Crl.RP No.231/2016 dated 30.03.2016 and has taken up a plea that the impugned order having been passed without giving an opportunity of hearing to the petitioners is illegal and cannot be sustained.
7. Learned SPP-II appearing for the respondent-State, however, has argued in support of the impugned order and has sought for dismissal of the petition.
8. In the light of the contentions urged by the parties, the only question that arise for consideration is, “Whether a person who is added as an accused in terms of Section 319 of Cr.P.C. is required to be heard before being so added?”
9. In JOGENDAR YADAV AND OTHERS the question that fell for consideration of the Hon’ble Supreme Court was whether a person who is added as accused under Section 319 of Cr.P.C. ought to be given an opportunity to avail the remedy of discharge under Section 227 of Cr.P.C.?
10. Having noted that higher standard of proof is necessary for addition of an accused under Section 319 of Cr.P.C. and that a person is added as an accused under Section 319 of Cr.P.C. on the basis of evidence produced before the Court, whereas an accused is discharged under Section 227 of Cr.P.C. by sifting the material submitted by the prosecution in order to find out whether or not there is sufficient ground for proceeding against the accused, the Hon’ble Supreme Court held in the above decision that the accused added under Section 319 of Cr.P.C. is not entitled for an opportunity to avail the remedy of discharge under Section 227 of Cr.P.C. From the above ratio it follows that an accused added in terms of Section 319 of Cr.P.C. shall have no right to seek discharge under Section 227 of Cr.P.C., which right is normally available to an accused who is arraigned as accused in the charge sheet from the inception.
11. Undeniably, an accused since inception is not heard before he is added as an accused. Nonetheless, the Code provides for a valuable right to the accused since inception to argue for his discharge, but as held by the Hon’ble Supreme Court such a right is denied to the accused added in terms of Section 319 of Cr.P.C.. Therefore to subserve the ends of justice and to meet the principles of natural justice he must necessarily be given an opportunity of hearing before he is added as accused midst of trial, as he is deprived of a valuable remedy to challenge the order passed by the trial Court under Section 319 of Cr.P.C. Hence, following the above decision this Court in Smt. ASHA AND OTHERS VS. STATE OF KARNATAKA in CRL.R.P.NO.231/2016 disposed of on 30.3.2016 has held that ‘it is always incumbent on the 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 and only after giving an opportunity of being heard, a suitable order should be passed’. I am in respectful agreement with the principles laid down in the above decisions.
12. In the instant case, petitioners have been summoned as additional accused in terms of Section 319 of Cr.P.C. without affording an opportunity of hearing as laid down in the above decisions. As a result, the impugned order having been passed in violation of the principles of natural justice is liable to be set aside.
13. Consequently, petition is allowed. The impugned order dated 5.3.2014 passed by the Principal Sessions Judge, Mandya in S.C.No.73/2009 is quashed. The trial Court is directed to afford an opportunity of hearing to the petitioners to show cause as to why they should not be added as co-accused and thereafter pass appropriate orders in accordance with law. In order to expedite the proceedings, petitioners are directed to appear before the trial court on 10.06.2019 without any further notice.
14. Petition stands disposed of in terms of the above order.
Sd/- JUDGE MN/bkp