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2022 DIGILAW 723 (KAR)

Theerthaprasad H. s. v. State of Karnataka

2022-06-08

M.NAGAPRASANNA

body2022
JUDGMENT 1. The petitioner is before this Court calling in question order dtd. 25/4/2022 passed by the Additional District & Sessions Judge (FTSC-I), Mysuru (Special Court for trial of cases filed under Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short)) in Special Case No.202 of 2020 whereby the application filed by the petitioner seeking his discharge from the proceedings is turned down. While framing charge, the petitioner is arrayed as accused No.11. 2. Brief facts leading to the filing of the present petition, as projected by the prosecution, are as follows:- A complaint is registered before the Police by the close consultant of Sakhi One Stop Centre, Cheluvamba Hospital, Mysuru alleging commission of sexual acts upon the victim who was 8 years old. The complaint or its merit is not the issue in the present lis. Based upon the said complaint a charge sheet is filed by the police for offences punishable under Ss. 5(g), 5(l), 5(m), 6, 9(g), 9(l), 9(m) 10 of the POCSO Act and Ss. 354A , 376(2) and 376DB of the IPC. The petitioner herein was not added as accused neither in the FIR nor while framing the charge. Evidence is recorded in Special Case No.202 of 2020. At the time of evidence during examination-in-chief and cross- examination of the victim facts that emerged led the prosecution to file the application under Sec. 319 of the Cr.P.C. seeking arraigning of the petitioner along with five others as accused Nos. 6 to 12. The petitioner is arrayed as accused No.11. 3. On the petitioner being arraigned as accused in the charges framed against other accused Nos. 1 to 5, the petitioner files an application before the learned Sessions Judge under Sec. 227 of the Cr.P.C. seeking his discharge from the case on the ground that he has nothing to do with the offences so alleged or the evidence that has come on record. The learned Sessions Judge by his order dtd. 25/4/2022 rejects the application on the ground that there were indications in the evidence about the involvement of the petitioner in the offences so alleged. It is this order declining to discharge the petitioner that drives him to this Court in the subject petition. 4. Heard Sri Rudrappa.P, learned counsel appearing for the petitioner and Sri K.S.Abhijith, learned High Government Pleader appearing for the respondent No.1. 5. It is this order declining to discharge the petitioner that drives him to this Court in the subject petition. 4. Heard Sri Rudrappa.P, learned counsel appearing for the petitioner and Sri K.S.Abhijith, learned High Government Pleader appearing for the respondent No.1. 5. The learned counsel appearing for the petitioner would vehemently argue and contend that Sec. 319 of the Cr.P.C. cannot be abused in this manner to direct anyone and everyone who are not connected with the offence to involve them. The evidence nowhere indicates any act of the petitioner that can become offence punishable under the POCSO Act or even offences under the IPC , as alleged and, therefore, seeks dropping of the name of the petitioner from the array of parties in the special case. 6. On the other hand, the learned High Court Government Pleader would refute the submissions made by the learned counsel for the petitioner to contend that the material that led the prosecution to bring in the petitioner as an accused is based on evidence and it is a matter for the petitioner to come out clean. 7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. 8. The afore-narrated facts as to what drives filing of the application by the prosecution to bring accused 6 to 12 into the array of accused after filing of the charge sheet is not in dispute. The contention of the learned counsel for the petitioner is that Sec. 319 of the Cr.P.C. has been abused by dragging in the petitioner into the web of the lis along with others, without there being any evidence whatsoever. Therefore, it becomes germane to notice Sec. 319 of the Cr.P.C. Sec. 319 of the Cr.P.C. reads as follows: "319. Power to proceed against other persons appearing to be guilty of offence.--(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-sec. (1), then-- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re- heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." Sec. 319 deals with power to proceed against other persons appearing to be guilty of the offence and directs that in the course of any inquiry or trial of an offence if it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. 9. Before embarking upon consideration of the facts of the case at hand, I deem it appropriate to notice the interpretation of Sec. 319 of the Cr.P.C. by the Apex Court. The Apex Court in the case of RAMESH CHANDRA SRIVASTAVA v. STATE OF U.P . 2021 SCC OnLine SC 741 in CRL.A.NO.990 OF 2021 decided on 13/9/2021 has held as follows: "10. The test as laid down by the Constitution Bench of this Court for invoking power under Sec. 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Sec. 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges. 11. It will all depend upon the evidence which is tendered in a given case as to whether there is a strong ground within the meaning of paragraph 105. 12. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges. 11. It will all depend upon the evidence which is tendered in a given case as to whether there is a strong ground within the meaning of paragraph 105. 12. We are of the view that from the facts of this case, it becomes necessary for us to direct the Sessions Judge, Khiri, to consider the matter afresh in the light of the principles which have been clearly enunciated by this Court." (Emphasis supplied) The Apex Court, in a later judgment rendered on 10/3/2022 in Criminal Appeal No.397 of 2022 in the case of SAGAR V. STATE OF U.P. AND ANOTHER, 2022 SCC OnLine SC 289 has held as follows: "7. The respondent/complainant, father of the deceased, filed Criminal Revision Petition before the High Court of Judicature at Allahabad. The learned Single Judge, without even appreciating the evidence of PW.1 and PW.2, which was recorded during the course of trial, in a casual and cavalier manner, set aside the well-reasoned order passed by the learned trial Judge under its order impugned dtd. 28/7/2021. It will be apposite to quote the manner in which the learned Single Judge has set aside a cogent reasoning recorded by the learned trial Judge under its order dtd. 28/7/2021. The relevant portion of the order of the learned Single Judge dtd. 28/7/2021 is reproduced hereunder: "I have perused arguments of Ld. Counsel for Revisionist, the case file and order under question. After going by the arguments of both sides the Ld. Counsels and the perusal of the case file, summarily the order dtd. 30/4/2018 passed by Additional Session Judge, Court No. 1, Muzaffarnagar seems erroneous. Therefore, this Criminal Revision is hereby accepted and Session Revision No. 508 of 2015, State v. Jagpal , passed by Additional Session Judge, Court No. 1 Muzaffarnagar vide order dtd. 30/1/2018 is hereby quashed it is hereby directed that without being influenced by the merits of any observation made in this order, after allowing sufficient opportunity to the parties, and after complete perusal of the case file appropriate order be passed in the matter within two months. 30/1/2018 is hereby quashed it is hereby directed that without being influenced by the merits of any observation made in this order, after allowing sufficient opportunity to the parties, and after complete perusal of the case file appropriate order be passed in the matter within two months. The Office is hereby directed to ensure of sending a copy of this order and the record of the case to the Court concerned without any delay." 8. The scope and ambit of Sec. 319 of the Code has been well-settled by the Constitution Bench of this Court in Hardeep Singh v. State of Punjab1 and paras 105 and 106 which are relevant for the purpose are reproduced hereunder: "105. Power under Sec. 319 CrPC is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross- examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Sec. 319 CrPC. In Sec. 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Sec. 319 CrPC to form any opinion as to the guilt of the accused." 9. The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Sec. 319 CrPC to form any opinion as to the guilt of the accused." 9. The Constitution Bench has given a caution that power under Sec. 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. The learned Single Judge of the High Court has even failed to consider the basic principles laid down by this Court while invoking Sec. 319 of the Code, which has been considered by the learned trial Judge under its order dtd. 30/1/2018. 10. Consequently, in our opinion, the appeal deserves to succeed and the same is accordingly allowed. The order passed by the High Court dtd. 28/7/2021 is hereby quashed and set aside. 11. Pending application(s), if any, shall stand disposed of." (Emphasis supplied) The Apex Court, in the aforesaid judgments, holds that the power of the Court to add the accused is available under Sec. 319 of the Cr.P.C., but it should be exercised cautiously, where there is evidence and the Court being satisfied with such evidence. 10. In the case at hand, initially, the complaint was registered only against 5 persons as the de facto complainant had narrated the incident as was narrated by the child to her. The police registered the compliant on several grave offences under the POCSO Act as also, the offence of gang rape of a minor girl under the IPC and began to conduct investigation. After conduct of investigation, a charge sheet was filed against several persons but not against the petitioner. The evidence of the child before the Court reveals certain grave instances of offence committed by other accused as well. After conduct of investigation, a charge sheet was filed against several persons but not against the petitioner. The evidence of the child before the Court reveals certain grave instances of offence committed by other accused as well. The cross- examination of the child on 12/2/2021 and 20/2/2021 assumes significance and reads as follows: varticular text omitted The evidence insofar as the petitioner is concerned, the child narrates that one Naveen and the petitioner had sexually assaulted the victim and on many instances, the petitioner had taken the child to certain places on the ground that he would get her some food and used to undress himself and undress the child. Certain other statements that are made by the child are so grave that they cannot be transliterated. It is on this evidence the petitioner is made an accused in the case along with others. Therefore, the submission of the learned counsel for the petitioner that without there being any evidence whatsoever in any statement during the trial the petitioner is dragged into these proceedings is unacceptable. 11. Though the complaint did not narrate names of several accused, but the child while tendering evidence before the Court speaks of abhorrent acts committed by the petitioner along with other accused. It is in the teeth of this evidence, the prosecution files the application to bring in the petitioner into the proceedings as an accused. The order passed by the learned Sessions Judge on the allegation reads as follows: ":: ORDERS ON APPLICATION FILED U/S. 319 CR.P.C.:: This is an application filed by the learned Public Prosecutor praying this court to proceed as against the other proposed accused persons appearing to be guilty of the alleged offences as mentioned in the charge-sheet. 2. Learned Public Prosecutor in the application has submitted that when the victim was examined before this court has not only made the allegations of the sexual offence committed as against her by the accused in this case, but also other persons such as Varuna, Bhuvana, Ranga, Naveen Kumar, Bomba and Theertha. 3. 2. Learned Public Prosecutor in the application has submitted that when the victim was examined before this court has not only made the allegations of the sexual offence committed as against her by the accused in this case, but also other persons such as Varuna, Bhuvana, Ranga, Naveen Kumar, Bomba and Theertha. 3. Thus it is the submission of the prosecution that the evidence of the victim prima-facie goes to show that even the proposed accused persons have committed the sexual offence as against the victim herein and has prayed that summons has to be issued to the proposed accused persons and they should be tried together with the accused persons in this case for the alleged offences in the charge-sheet. 4. On careful perusal of Sec.319 of Cr.P.C ., it is clearly mentioned that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. 5. Even in the case on hand, if the evidence placed on record by the victim who is aged about 8 years and who is examined as PW 1 if carefully looked into she has given incriminating evidence as against not only the accused persons in this case, but also as against one Ranga, Varuna, Naveen Kumar, Dhanu, Naveen, Theertha and Bomba and has stated that even these persons had sexually abused her. 6. As the ingredients of Sec.319 of Cr.P.C . is made out and as the learned Public Prosecutor has rightly drawn the attention of this court to the evidence placed on record and it appears from the evidence that the victim has categorically stated that the proposed accused persons were very much involved in the sexual offence as against her. Therefore, it requires that even the proposed accused persons have to be tried along with the accused persons in this case and for the reasons stated above the following order:- :: ORDER:: The application filed U/s.319 of Cr.P.C . by the learned Public Prosecutor is allowed. The proposed accused persons by name Ranga, Varuna, Naveen Kumar, Dhanu, Naveen, Teertha and Bomba are impleaded as accused No.6 to 12. by the learned Public Prosecutor is allowed. The proposed accused persons by name Ranga, Varuna, Naveen Kumar, Dhanu, Naveen, Teertha and Bomba are impleaded as accused No.6 to 12. Office to issue summons to accused No.6 to 12, returnable by 4/1/2022." (Emphasis added) The learned Sessions Judge on going through the evidence and the purport of Sec. 319 of the Cr.P.C. has come to a prima facie conclusion that the petitioner/accused No.11 is also involved in the offence. Therefore, in the light of the judgments rendered by the Apex Court recognizing the power of the Court under Sec. 319 of the Cr.P.C. as well as glaring revelations by the child in her evidence, I do not find any warrant to interfere with the order passed by the learned Sessions Judge in declining to discharge the petitioner from the proceedings. It is for the petitioner to come out clean in the trial. 12. For the aforesaid reasons, the Criminal Petition lacks merit and is dismissed. Consequently, I.A.No.1/2022 also stands dismissed.