Kantharaj and Others vs State of Karnataka

K. Ramanna, J.—This is a revision petition filed by the petitioners 1 to 5 to set aside the order of conviction and sentence passed by the trial Court, which has been confirmed by the learned Prl. Sessions Judge, Kolar, in Crl. A.No. 5/2003, mainly on the ground that the charges framed against the revision petitioners have not been in conformity with the mandatory requirement of law as contemplated u/s 239 and 240 of IPC and allowed the application filed to summon the revision petitioner No. 5 as the additional accused. The trial Court ought to have been examined P.Ws.1 and 2 afresh and instead of that, allowed the accused to examine the other witnesses and after recording the 313 statement, convicted the revision petitioners for an offence punishable under Sections 143, 148, 448, 427, 324 r/w Section 149 of IPC, which has been challenged by the revision petitioner in the criminal appeal but the learned Sessions Judge dismissed the appeal and confirmed the order of conviction and sentence. Therefore, the petitioners have come up with this revision petition.

Heard the arguments of the learned Counsel for the revision petitioners and the learned S.P.P. appearing for the respondent/State.

During the course of the arguments, learned Senior counsel appearing for the revision petitioner submitted that the trial Court as well as the learned Sessions Judge had failed to understand the provisions of Section 319(4)(1)(b) of Cr.P.C. When the petitioner No. 5 has been summoned as the additional accused on the basis of the application filed by the Addl.P.P. after recording the evidence of P.W. 1 and P.W.2 in part i.e., in examination-in-chief and when the charge against the revision petitioner has been framed but the trial has not been conducted afresh, it is mandatory on the part of the Court to strictly comply with the provisions of Section 319(4)(1)(B) of Cr.P.C. It is further submitted that the provisions of Section 273 Cr.P.C. has not been complied with. The evidence of the prosecution witnesses can be recorded in presence of the accused. So, in the instant case, the evidence of P.Ws. 1 and 2 were recorded before the petitioner No. 5 was arrayed as accused and therefore, any amount of evidence recorded in the chief examination of P.Ws. 1 and 2 will not be treated as the evidence. Therefore, the order of conviction and sentence recorded by the Courts below is illegal and erroneous and misreading of the mandatory provisions of Section 319 and 273 of Cr.P.C. It is further argued that the evidence of the witnesses should be examined in chief examination and cross-examination and therefore, any amount of evidence recorded before summoning of one of the accused shall not be treated as the evidence and it has to be recorded afresh and their enquiry or trial has to be commenced afresh. Therefore, it is prayed that the revision petition be allowed and the conviction and sentence passed by the trial Court be set aside.

In support of his arguments, learned Counsel for the revision petitioners relied upon a decision of the Supreme Court reported in case of Shashikant Singh v. Tarkeshwar Singh and Anr. 2002 SCC (Cri) 1203 wherein at Para.9 it has been held that "The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(1); appear to be only directory. "Could be" cannot under these circumstances be held to be "must be".

He has also relied upon another decision reported in case of Veeramadaiah and Others Vs. State of Karnataka, wherein, it has been held that "Merely because some statements are made against these petitioners, they cannot be impleaded as accused in a mechanical manner. There cannot be any dispute that power to summon certain person, as accused in a pending trial is an extraordinary power conferred on Courts, and that, therefore, it should be used very sparingly. Only if compelling situation is existing and if there is any likelihood of an order of conviction being passed against the newly arrayed accused, they may be summoned to be arrayed as accused. If there is remote chance for conviction of such persons, they should not be summoned. While proceeding u/s 319 of Cr.P.C, there should be reasonable prospects of conviction".

He has also relied upon another decision of the Supreme Court reported in case of Michael Machado and Another Vs. Central Bureau of Investigation and Another, wherein, at Para. 14 it has been held that "The Court while deciding whether to invoke the power u/s 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action".

Therefore, learned Counsel for the petitioners submitted that the impugned order of conviction and sentence passed by the trial Court which has been confirmed by the learned Sessions Judge are liable to be set aside.

On the other hand, learned S.P.P. appearing for the respondent/State submitted that since the trial Court convicted all the revision petitioners, including the revision petitioner No. 5 who has been summoned as an additional accused No. 5 before the trial Court and the trial Court has permitted the revision petitioner No. 5 to cross-examine the witnesses P.Ws. 1 and 2 and therefore, there is no illegality or incorrectness in not complying with the mandatory provisions of Section 319(4)(1)(b) or Section 273 of Cr.P.C. Hence, he prays for dismissal of the revision petition.

Having heard the learned Counsel appearing on both sides, the point that arises for my consideration and decision is whether the order of conviction and sentence passed by the trial Court, which has been confirmed by the learned Sessions Judge is illegal and incorrect or non compliance of the provisions of Section 319 and 273 of Cr.P.C?

On careful reading of the materials placed on record, it could be said that initially a complaint came to be filed against petitioners 1 to 4 and other persons, after hearing the matter, some of the witnesses were discharged by the trial Court and the charges have been framed against the petitioners 1 to 4 and the trial has been fixed. RWs. 1 and 2 were examined in chief and when the matter was posted for cross-examination, an application u/s 319 came to be filed by the Addl.P.P. which was allowed and the petitioner No. 5 was summoned as an additional accused and he was permitted to cross-examine P.Ws. 1 and 5 herein and the trial Court allowed the prosecution to cross-examine the other witnesses. So, after conclusion of the trial and hearing the arguments, the petitioners 1 to 5 herein were convicted for the aforesaid offences. Considering the fact that after allowing the application u/s 319 Cr.P.C. filed by the Addl. P.P., the trial Court ought to have examined P.Ws. 1 and 2 afresh instead of that, allowed the petitioners to cross-examine P.W.1, which is non-compliance of the mandatory provisions of Section 319 of Cr.P.C. Therefore, it could be said that any amount of evidence recorded behind back of the petitioner No. 5 will not become the evidence unless such witnesses are cross-examined. In the instant case, the ratio of the law laid down in the aforesaid decision is applicable to the facts of the case on hand. Therefore, at the inception itself, the trial Court has committed an error in not holding a denova trial and even the learned Sessions Judge has not properly appreciated the evidence placed on record in appeal. It is submitted by the learned Counsel for the revision petitioner that if all the witnesses are once again summoned, it will be mere waste of time of the Court and it would cause more hardship to the petitioners and the witnesses to appear before the Court.

Accordingly, the appeal is allowed. The order of conviction and sentence passed by the trial Court which has been confirmed by the learned Sessions Judge are hereby set aside for not complying with the mandatory provisions of Section 319 and 276 of Cr.P.C. and the matter is remitted back to the trial Court with a direction to summon P.Ws. 1 and 2, to re-examine them afresh and to allow the petitioners to cross-examine and then to dispose of the case in accordance with law. The evidence recorded by the trial Court other than P. Ws. 1 and 2 hold good. Rest of the contentions are left open to be urged before the trial Court.