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2010 DIGILAW 481 (KAR)

Kumar v. State of Karnataka

2010-04-05

ARALI NAGARAJ

body2010
Judgment : The petitioner herein who is summoned as Additional accused in Spl. (A) No.5 of 2006, on the file of the learned Sessions Judge and Special Judge at Shivamogga, by order dated 2-1-2010 passed on the application filed under Section 319 of the Criminal Procedure Code, 1973 by the prosecution has challenged in this petition filed under Section 482 of the Cr.P.C., the correctness of the said order. 2. Though this matter is listed today for admission, having regard to the nature of the relief sought for and the facts and circumstances of the case before the Trail Court, it is taken for final disposal and arguments of Sri Manjunath Pattan Shetty, the learned Counsel for the petitioner and Sri Vijaykumar Majage, the learned High Court Government Pleader are heard. Perused the impugned order, the charge framed against the accused therein, depositions of P.Ws. 1 and 2 and statements of charge-sheet witnesses. 3. The Trail Court has framed charge against accused 1 to 3 therein for the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘Atrocities Act’ for short). After PWs. 1 to 3 came to be examined the prosecution filed application under Section 319 of the Cr.P.C. seeking summons to the present petitioner namely Kumar as Additional accused alleging that he married one Rajeshwari, the sister of P.W.1-complainant-Thimappa and prior to his marriage with her, he caused miscarriage on two occasions and therefore, he committed an offence punishable under Section 312 of the Indian Penal Code, 1860. By its impugned order the Trail Court allowed the said application and issued summons to the present petitioner for the said offence. 4. Learned Counsel for the petitioner strongly contends that the evidence of P.Ws. 1 and 2 and also the statement of C.Ws. 7 to 10 and 12, pertaining to the alleged miscarriage of the said girl Rajeshwari by the present petitioner do not constitute the offence of miscarriage under Section 312 of the IPC and therefore, the impugned order summoning him as the additional accused in the said case for the said offence deserves to be set aside. 5. 7 to 10 and 12, pertaining to the alleged miscarriage of the said girl Rajeshwari by the present petitioner do not constitute the offence of miscarriage under Section 312 of the IPC and therefore, the impugned order summoning him as the additional accused in the said case for the said offence deserves to be set aside. 5. Per contra, the learned High Court Government Pleader contends that P.W.2-the victim Rajeshwari, has clearly stated in her evidence that, prior to her marriage with the petitioner Kumar, she had intimacy with him and consequently she became pregnant on two occasions and on both the occasions he took her to the doctor and got the abortion done and therefore, there is sufficient material to try the petitioner-accused for the said offence and hence the impugned order does not call for any interference in this petition. 6. P.W.2-Rajeshwari has stated in her evidence that she had fallen in love with the petitioner-Kumar and she had intimacy with him for more than two or three years, and that during that period, she became pregnant on two occasions and on both the occasions he got her aborted, despite she refusing to undergo abortion. 7. Though P.W.1 the eldest brother of P.W.2-Rajeshwari has stated in his evidence that the petitioner-accused was responsible for the abortion of P.W.2-Rajeshwari on two occasions prior to his marriage with her, he has stated further in his evidence that he came to know of the same through somebody. Thus it is clear that he has no personal knowledge as to the said facts. 8. Prosecution has sought to prove factum of abortion, through C.W.10-Dr. Rajesh. His statement clearly reveals that during the years 2003 and 2004 he did not conduct abortion on any girl by name Rajeshwari and the registers maintained by him for the said period in his clinic do not reveal that any girl by name Rajeshwari was treated by him and she underwent abortion in his clinic. C.Ws.7, 8, 9 and 12 though have stated in their respective statements recorded under Section 161 of the Cr.P.C. by Investigating Officer during investigation that P.W.2-Rajeshwari became pregnant on two occasions prior to her marriage with the petitioner-Kumar and there was abortion on both the occasions, none of these witnesses has stated that he/she has personal knowledge as to the alleged abortions. 9. 9. As to the power of the Trail Court to summon additional accused under Section 319 of the Cr.P.C., the learned Counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court in the case of Municipal Corporation of Delhi v Ram Kishan Rohtagi and others AIR 1983 SC 67 : (1983) 1 SCC 1 : 1983 Cri.L.J. 159 (SC): 1983 SCC(Cri.) 115. It is observed at Para Nos. 18 and 19 as under: “18. This provision (Section 319) gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused. This provision was also the subject-matter of a decision by this Court in Joginder Singh and Another v. State of Punjab and Another, AIR 1979 SC 339 : (1979) 2 SCR 306 , where Tulzapurkar, J., speaking for the Court observed thus: “A plain reading of Section 319(1), which occurs in chapter XXIV dealing with general provisions as to inquiries and trails, clearly shows that it applies to all the Courts including a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trail sufficient evidence indicating his involvement in the offence as an accused and direct him to be tried along with the other accused”. 19. In these circumstances, therefore, if the prosecution can at any stage produce evidence with satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power, which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this, we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. More than this, we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the Court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it”. 10. Following the above decision of the Hon’ble Supreme Court in the said case in the case of Balappa v. State of Karnataka 1986 Cri.L.J.653 (SC), Section 319. This Court has observed case as under: “Criminal Procedure Code (2 of 1974), Section 319 – Proceeding against other person appearing to be guilty-offence under Section 302 read with Section 34- During trail, application for trail of petitioner under Section 302 read with Section 109 on the ground that evidence discloses such offence against him-Held, there were no compelling reasons to proceed against petitioner-Issue of process was unwarranted. 1983 Cri.L.J.159 (SC), foll. Para 8. No doubt, it is open to the prosecution to produce evidence of any stage of the trail of a criminal case and satisfy the Court that any person not being the accused, has committed any offence for which such person could be tried together with the accused and in such a case the Court may proceed against such person for the offence which he appears to have committed and try him along with the other accused who were already before the Court. However, it must be noticed that this power given to the Court is really an extraordinary and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken and the Court proposed to take action only in the course of the trail of the other accused, of course on the basis of the evidence produced by the prosecution in the course of the trail”. 11. In its later decision in the case of Krishnappa v. State of Karnataka 2005 (1) Kar.L.J.322 (SC): AIR 2004 SC 4298 : 2004 AIR SCW 4809, Hon’ble Supreme court has held at para 6 as under: “6. 11. In its later decision in the case of Krishnappa v. State of Karnataka 2005 (1) Kar.L.J.322 (SC): AIR 2004 SC 4298 : 2004 AIR SCW 4809, Hon’ble Supreme court has held at para 6 as under: “6. It has been repeatedly held that the power to summon an accused is an extraordinary power conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken”. 12. Further, in its recent decision in the case of Mohd. Shafi v. Mohd. Rafiq and Another AIR 2007 SC 1899 , Hon’ble Supreme Court has observed (at para 12 therein) as under: “12. From the decision of this Court as noticed, above, it is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed”. (emphasis supplied) 13. Following the above principles laid down by the Hon’ble Supreme Court and also this Court, I am of the considered opinion that the evidence of P.Ws. 1 and 2 does not establish that the proposed accused (petitioner herein) caused miscarriage of P.W.2-Rajeshwari prior to his marriage. Further, the statement of C.W.10-Dr. N. Rajesh clearly rules out the case of the prosecution that the P.W.2-Rajeshwari was taken by this petitioner-accused to his hospital and caused her miscarriage on two occasions. Besides this the statements of P.Ws 7 to 9 and 12 also do not establish that P.W.2-Rajeshwari was pregnant on two occasions she came to be aborted and this petitioner-accused was responsible for her abortion. This being so, there is no possibility of this petitioner being convicted of the offence under Section 312 of the IPC on the basis of the said evidence. This being so, there is no possibility of this petitioner being convicted of the offence under Section 312 of the IPC on the basis of the said evidence. Therefore, I am of the opinion that the Trail Court is not justified in passing the impugned order summoning the present petitioner as additional accused. Hence the following: ORDER The present petition is hereby allowed. Impugned order dated 2-1-2010, passed by the learned Sessions Judge and Special Judge at Shivamogga. In Spl. (A) No. 5 of 2006, summoning this petitioner as the additional accused is hereby set aside.