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2019 DIGILAW 1121 (KAR)

Chandra Naik v. State Of Karnataka

2019-06-06

ALOK ARADHE

body2019
JUDGMENT : 1. Mr.S.P.Kulkarni, learned counsel for the petitioner. Mr.Vijay Kumar Majage, learned Additional State Public Prosecutor for respondent No.1. Mr.Chidambara G.S., learned counsel for respondent No.2. In this petition under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for short) the petitioner is a Child Specialist and is aged about 60 years has assailed the validity of the order dated 01.02.2019 passed by the Judicial Magistrate First Class, Chennagiri by which application under Section 319 of the Code of Criminal Procedure, 1973 has been allowed and the petitioner is permitted to be summoned as accused No.4. 2. Facts giving rise to filing of this petition briefly stated are that respondent No.2 who is the nephew of the petitioner, on 02.05.2017 filed a complaint against the petitioner. On the basis of the complaint filed by respondent No.2, the police have registered offences under 323, 506, 448 read with Section 34 of Indian Penal Code, 1860. On 04.05.2017, the statement of the complainant was recorded under Section 161 of the Code, in which it was stated that his uncle viz., the petitioner was not present at the time of the incident. The police after completion of the investigation filed the charge sheet against accused Nos.1 to 3. However, the charge sheet was not filed against the petitioner. At the time of recording of the evidence before the Trial Court, Plaintiff Witness No.1 did not implicate the petitioner. However, the petitioner No.2 in his examination-in-chief stated that his brother viz., the petitioner has also beaten him along with other three accused persons. On the basis of the aforesaid statement, an application under Section 319 of the Code was filed by the prosecution, which has been allowed by the Magistrate by order dated 01.02.2019 by which the petitioner has been summoned as accused No.4. 3. Learned counsel for the petitioner submitted that petitioner is a child specialist and is aged about 60 years. It is further submitted that his nephew viz., Plaintiff Witness No.1 did not implicate him initially. However, subsequently his brother viz., Plaintiff Witness No.2 had stated that he was also one of the assailants. It is also urged that the power to summon an accused has to be exercised for compelling reasons and same has to be exercised sparingly only when there is a strong and cogent evidence against a person. However, subsequently his brother viz., Plaintiff Witness No.2 had stated that he was also one of the assailants. It is also urged that the power to summon an accused has to be exercised for compelling reasons and same has to be exercised sparingly only when there is a strong and cogent evidence against a person. In support of his submissions, reference has been made to the decisions of the Supreme Court in the cases of S. Gopal & Anr. v. State of Karnataka, 2006 (6) AIR Kar R 184, Hardeep Singh v. State of Punjab and Anr., (2014) 3 SCC 92 , Brijendra Singh and Ors. v. State of Rajasthan, (2017) 7 SCC 706 , S. Mohammed Ispahani v. Yogendra Yadav, AIR 2017 SC 4994 , Pandurang and Ors. v. State, 2017 (3) AKR 345, Labhuji Amaraji Thakur and Ors. v. The State of Gujrath and Anr., Crl.Appeal No.1349/2018, Periyasamy and Ors. v. S. Nallasamy, Criminal Appeal No.456/2019. On the other hand, learned counsel for the respondent has supported the order passed by the Trial Court and have submitted that the discretion conferred on the Trial Court has been exercised on sound principles of law. 4. I have considered the submissions made by learned counsel for the parties. This court is conscious of the fact that the aforesaid observations made by the Supreme Court in the case of Periyasamy and Ors. supra have been made in the context of a matrimonial dispute. However, the same may be of relevance in the given facts of the case as the parties are members of the family and at the first instance, petitioner was not implicated in the offence. The Supreme Court in Periyasamy and Ors. supra has held as follows: Para 15 The High Court has set aside the order passed by the learned Magistrate only on the basis of the statements of some of the witnesses examined by the Complainant. Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the complainant is a husband and has initiated criminal proceedings against family of his in-laws and when their names or other identity were not disclosed at the first opportunity. 5. In the instant case, admittedly, the complainants are related to the petitioner as brother and nephew. 5. In the instant case, admittedly, the complainants are related to the petitioner as brother and nephew. At the first opportunity, the petitioner was not implicated in the offence. The petitioner is child specialist and is aged about 60 years. Subsequently, during the trial, the brother of the petitioner only stated that petitioner was one of the assailants along with three accused persons. It is pertinent to mention that no specific role has been attributed to the petitioner as to how and in what manner he has assaulted his brother viz., the complainant. Therefore, in the light of law laid down by Supreme Court in the case of Periyasamy and Ors. supra, there is no strong and cogent evidence against the petitioner to require him to face the trial for offence under Section 319 of the Code especially when the complainants are close relatives of the petitioner and neither his name nor identity was disclosed at the first available opportunity. 6. In the result, the impugned order 01.02.2019 passed by the Judicial Magistrate First Class, Chennagiri is hereby quashed and the petition is allowed.