S. Shivakumar v. The State of Karnataka

ORDER This petition is filed seeking to set aside the order dated 25.02.2010 passed by the Principal Civil Judge (Jr. Dn.) and JMFC, Hospet in CC.No. 1101/2008. wherein learned Magistrate has allowed application filed under Section 319 Cr,P.C by the learned Public Prosecutor and issued summons to the petitioner to face the trial in the said case by arraying him as accused No.5.

2. Oriinal1v. the case was registered for offences punishable under Section 143. 147. 148, 323. 324, 504 and 506 IPC read with Section 149 of IPC on the basis of the complaint of one Yasinkhan and after -3- investigation, charge sheet was filed against the accused No.1 to 5 before the Court and the learned Magistrate has taken cognizance of the offence and issued process to accused Nos. I to 5. The complainant was examined before the court and in the deposition before the Court, the complainant has stated that on 24.06.2008 at about

11.00 pm, the petitioner was also present when the complainant opened the door of his house and the petitioner has abused him with filthy language. On the basis of the said statement of the complainant before the Court, an application was filed by the learned Public Prosecutor, which came to be allowed. The petitioner challenges the said order summoning him to face the trial.

3. Heard Sri. Davanand M. Bandi, learned Counsel for the petitioner and Sri. Vinayak S. Kulkarni. learned HCGP for the respondent No.2-State. The respondent No.1 - complainant has been served with the notice, but he has not appeared before this Court. -4-

4. The learned Counsel for the petitioner submits the power under Section 319 Cr.P.C is to be sparingly used and the yard stick for using said power is that, there should be a possibility of conviction of the person in the said case wherein the accused is summoned to answer the charge. He submits that, except a stray statement in the deposition of PW 1, the entire charge sheet material does not disclose that the petitioner was either present or involved in the said case. He further submits that there is no chance of conviction of the petitioner even if the statement of PW 1 is taken as truth, since the said statement of PWI is an improved version, which is not at all found in any of the prosecution papers. The learned Magistrate cannot legally convict the petitioner on the basis of the said one sentence in the statement of PW 1. Hence he submits that facing of trial by the petitioner is a futile exercise. He has relied on the rulings of Hon’ble Supreme Court reported in (2009) 16 SCC 46 in the case of Sarabjit -5- Singh and Another Vs. State of Punjab and Another. which states as follows: - 4A. Criminal Procedure Code, 1973 - S. 319 - Nature, scope and applicability - Trial of persons not already arraigned as accused — Evidence on basis of which may be ordered test for — Prima fade case V enough - Implication by first informant or any — Relevant enough - Held, power under 5.319 witness, is an extraordinary power which is required to be exercised sparingly and V compelling reasons exist for taking cognizance against persons against whom action has not been taken — Before an additional accused can be summoned for standing trial, nature . of evidence should be such which would make out grounds for exercise of this extraordinary power — Materials brought before court must also be such which would satisfy court that it is one of those cases where its jurisdiction should be exercised - A higher standard for purpose of forming opinion to summon a person as additional accused is required to satisfy the ingredients thereof — An order under Section 319, should nat be passed only a -6- because flrths informant or one of witnesses seeks to implicate other person(s) — Sufficient and cogent reasons are required to be assigned by court so as to satisJjj ingredients of Section 319 - Mere ipse dixit would not serve the purpose — Such evidence must be convincing, at least for purpose of exercise of the extraordinary jurisdiction - For aforementioned purpose, courts required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought summoned — Mere existence of a prima fade case may not serve the purpose — Impugned judgment set aside and matter remitted.”

5. He has also referred to another case reported in AIR 2008 SC 1564 in the case of Kailash Vs. State of Rajasthan and Anr, which states as follows: - 4B. Criminal Trial - Appreciation of evidence — Standards required to be applied at different stages of trial — Held, dWerent standards are required to be applied at djfferent stages - Whereas test of prima fade a -7- cse may be sufficient for taking cognizance of an offence at stage offraming of charge, court must be satisfied that there exists a strong suspicion at stage of Section 319 CrPC — Criminal Procedure Code, 1973, Ss. 190, 200, 227, 228,239,240 and 319.”

6. The learned High Court Government Pleader, on the other hand. submits that the question of appreciation of evidence arises only after examination of the witnesses and after recording statement of the accused. At the stage of appearance of the accused, it cannot be stated that there is no chance of conviction of the accused and that the learned Court has only considered the evidence of PW I. It is left to the learned Magistrate to consider the entire evidence on record to find out whether the petitioner herein is liable for conviction or not. It is premature to decide the result of the case and to hold that the petitioner is not liable for conviction, even without considering the entire evidence on record. Hence he submits the learned S -8- Magistrate is fully justified in summoning the petitioner before the Court to face the trial and that the order of the learned Magistrate does not call for interference in this petition.

7. On a careful perusal of the complaint given by PW 1 before the police, it is seen that no where in the complaint, PW I has referred to the name of petitioner as either being present or any overt act has been alleged against this petitioner. Therefore, needless to say that the averments in the deposition of PW I is an improvement from what he has stated before the police at the time of giving the complaint. The complainant has not even referred to any unknown person in the complaint, but referred to one PRD who is not the petitioner.

8. Under circumstances. evidence tendered by PW 1 before the Court is an improvement and further, on a perusal of the evidence of PW1 before 4- 4 -9- the court, it is seen that, PW I has been treated hostile by the Public Prosecutor himself. Hence, the evidence of PW1 cannot be a base for conviction of the petitioner. The learned Magistrate has not referred to the entire material on record on the basis of which the petitioner is liable to face the trial. In that view of the matter, the order passed by the learned Magistrate is not supported by the materials on record and therefore, the said order is liable to be set aside. Accordingly, this petition is allowed. The order dated 25.02.20 10 passed by the learned Civil Judge (Jr.Dn.) and JMFC, Hospet, directing the petitioner to appear and face the trial in C.C.No.1 10 1/2008 is hereby set aside. Sd/rn JUDGE