R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.720 OF 2012 Between:
1. Smt. Umakka W/o Late Sri Shikharegouda Aged 51 years R/o Thumati Layout Jagalur Town.
2. Sri G S Prabhakar @ Prabhu S/o Late Shikharegouda Aged 30 years, Businessman R/o Thumati Layout Jagalur Town.
3. Smt. Veena W/o Nagaraja Aged about 30 years Housewife R/o Horakere Jagalur Town.
... Petitioners (By Sri S G Rajendra Reddy - Advocate) And:
State by Bilichodu Police Jagalur Tauk Davanagere Dist.
Rptd., by S.P.P., High Court of Karnataka Bengaluru.
... Respondent (By Sri Thejesh .P - HCGP) ****** This Criminal Revision Petition is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the order dated 04.06.2012 passed by the II Additional Sessions Judge, Davanagere in S.C.No.121/2010.
This Criminal Revision Petition coming on for Hearing, this day, the Court made the following:
O R D E R Heard the learned counsel Shri S.G. Rajendra Reddy for the petitioner and the learned HCGP Shri Thejesh for the State.
2. This Criminal Revision Petition is directed against the order passed by the Court below in S.C.No.121/2010 dated 04.06.2012, allowing the application filed by the Public Prosecutor under Section 319 Cr.P.C. and directing the office to add the present petitioners as Accused Nos.2 to 4 to the charge sheet and thereby to issue summons for their appearance in order or face trial along with Accused No.1 for offences punishable under Sections 498A, 306 read with Section 34 IPC.
3. The factual matrix of this petition is as under:
The complainant one Sri. T. Manjanagouda – PW1 filed a complaint with Bilichodu Police which was registered as Crime No.108/2010 for offences punishable under Sections 498A, 302 read with Section 34 IPC, in view of the suicide of his daughter Smt.
Savitha in her matrimonial home. It was alleged that Savitha committed suicide by hanging in her matrimonial home at Chikka Arakere village in Jagalur Taluk as on 27.06.2010. Her husband Prasanna Kumar was arraigned as Accused No.1 in the complaint. The present petitioners being the mother, brother and sister of the first accused respectively, the State Public Prosecutor filed an application under Section 319 Cr.P.C. praying to include the said persons as accused nos.2, 3 and 4 in S.C.No.121/2010 and thereby to issue summons to them in the case so that they could face trial.
4. However, after completion of investigation, the Investigating Officer filed a charge-sheet only against Accused No.1 for the offences punishable under Sections 498A and 306 IPC. Further, in the charge- sheet, the I.O. has opined that since no offence is made out against proposed Accused Nos.2 to 4, he did not file a charge-sheet against them. On receipt of the said charge-sheet, the JMFC court registered the case as C.C.No.612/2010 and committed the case to the court of Sessions wherein it was registered as S.C.No.121/2010 against Accused No.1 alone. The Sessions Court in turn secured the presence of the accused and on hearing both sides, framed charges against Accused No.1 for the alleged offences. Thereafter, CW1 and CW5 were examined as PW1 and PW2, who were also cross-examined by the defence counsel. It is only after their cross-examination, the learned Public Prosecutor filed the application under Section 319 Cr.P.C. seeking to summon the present petitioners as co-accused and to proceed with the trial against them for the very same offences. The application was opposed by the counsel for the co- accused by placing reliance on eleven decisions. The Sessions Court as well had agreed with the proposition that in order to proceed against the proposed accused under Section 319 Cr.P.C., there must be satisfactory material against them and the court cannot proceed against them merely on the basis of some cryptic statements made during the course of cross- examination. However, since the names of the proposed accused had already appeared in the complaint, FIR, remand report and other initial papers of investigation, which were also substantiated by the oral evidence of PWs 1 and 2, the court below opined that the proposed accused could be convicted in case all such materials remained unrebutted. Hence, by its order dated 04.06.2012 in S.C.No.121/2010, the court below directed to add accused nos.2 to 4 – petitioners herein to the charge-sheet. It is this order which is under challenge in this petition seeking to set aside the same urging various grounds.
5. The learned counsel for the petitioner contends that power under Section 319 Cr.P.C. is an extra- ordinary power conferred on the Trial Court which ought to be used sparingly and only if compelling reasons exist to exercise the same. It is his further contention that though 47 witnesses had been stated in the charge sheet, only two witnesses had been examined for the prosecution, that too father and brother of the victim who are interested witnesses. In their testimony as well, no specific role is attributed to the petitioners attracting the ingredients of Sections 498A and 306 IPC. Further, their evidence is full of contradictions and improvements.
The learned counsel further contends that the independent witnesses cited in the charge-sheet, i.e., CW13, CW14, CW15, CW17, CW25 to CW32 have clearly stated in their statements that Accused No.1 Prasanna Kumar was the cause for the death of his wife Savitha. They had further stated that the deceased and her husband were residing separately and the parents of Accused No.1 and his brother Accused No.3 were residing separately and Accused No.4 Smt. Veena was married to one Nagaraja in the year 1996 and she was residing along with her husband separately. Thus, when the present petitioners – accused Nos.2 to 4 were residing away from the deceased, there was no basis for them to have ill-treated the deceased or instigated the deceased to commit suicide and hence the order of the Trial Court directing to summon them suffers from illegality and hence the same ought to be set aside. Hence, the learned counsel for the petitioners prays that the order passed by the Trial Court in S.C.No.121/2010 dated 4.6.2012 be set aside and the petitioners be discharged from the offence under Sections 498A and 306 IPC.
6. Per contra, learned HCGP for the State contends that having regard to the material on record, the Trial Court has rightly directed to add accused Nos.2 to 4 to the charge-sheet and to proceed against them which order being just and proper, needs no interference in this revision petition.
7. On a careful consideration of the contentions advanced by the learned counsel for the petitioner - accused and the learned HCGP and having regard to the material on record, it is seen that Accused nos.2 to 4 – petitioners herein were not at all residing with the deceased. After the marriage of the deceased with Accused No.1, it has come in evidence that both of them were residing separately. Further, petitioners 1 and 2 herein being accused nos.2 and 3 being the mother and brother of Accused No.1 were residing in a separate house. Further, petitioner no.3 herein being accused no.4 was married as early as in the year 1996 itself and she was residing separately with her husband. The evidence of the witnesses PW1 and PW2 being the father and brother of the deceased Savitha being only interested witnesses, is full of contradictions and improvements. Just because of the fact that the petitioners were the mother-in-law, brother-in-law and sister-in-law of the deceased Savitha, they have been roped in as the accused in the matter, which practice requires to be deprecated. This Court as well as the Apex Court have time in and again held in various decisions that the Criminal Court must issue prior notice to any person before calling upon him to be made an additional accused in any criminal case and further the court has to take extra caution to satisfy itself that strong evidence exists against any person for summoning him as accused. In one similar case reported in (2016) 4 AKR 392 in the case of SMT. ASHA SOMASHEKAR AND OTHERS vs. STATE OF KARNATAKA, the relevant paragraph reads thus:
“Criminal P.C.(2 of 1974), S.319 – 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 accused, without any prior notice and opportunity of being heard, shall not be sustainable – Court has to take extra caution to satisfy itself that strong evidence exists against any person for summoning him as accused.”
In view of the reasons cited above, I find that the Trial Court has committed an error in adding the present petitioners as Accused nos.2 to 4 and directing issue of summons to them. Hence, I proceed to pass the following.
ORDER This revision petition is allowed. The impugned order passed by the Trial Court in S.C.No.121/2010 dated 04.06.2012 directing to add the petitioners as Accused Nos.2 to 4 to the charge-sheet and treat them as Accused Nos.2 to 4 in the case, is hereby set-aside.
Sd/- JUDGE KS