K.P. Nagarathna vs State of Karnataka and Others

A.N. Venugopal Gowda, J.—Short of unnecessary details, the facts giving rise to the present petition are that:

"Marriage of one Nagaveni and Venkatesh Murthy -accused No. 1, was solemnized on 27.02.2005. The said Nagaveni having a suicidal death on 06.02.2012, her father lodged a complaint against the husband of the deceased and the petitioner. A case was registered on 06.02.2012 in Crime No. 33/2012 by the first respondent, for the offences punishable under Ss. 498-A and 304-B read with S. 34 of the IPC and Ss. 3 and 4 of the Dowry Prohibition Act. The Police having conducted investigation, submitted charge sheet against the husband of the deceased. The case was committed for trial to the Court of Sessions. Trial having commenced, the complainant -father of the deceased, was examined as PW.1 on 01.04.2014. An application was filed by the learned Public Prosecutor, under S. 319 of the Cr.P.C, for arraigning the petitioner as accused No. 2. The application having been allowed by the learned Sessions Judge, on 18.03.2015, on recording a finding that the material evidence produced through PW.1 prima-facie discloses about the commission of offence by accused No. 2, this petition was filed to quash the said order."

Sri P. Nataraju, learned advocate, contended that the Police, after conducting thorough investigation, having found that the offences alleged against the petitioner as not established and therefore, having deleted the name of the petitioner, learned Sessions Judge has committed an error and illegality in allowing the application and directing arraigning of the petitioner as accused No. 2. He submitted that the entire materials produced by the prosecution and the evidence of PW.1, when taken on its face value, do not show the ingredients of the alleged offences against the petitioner and the impugned order having been passed in a casual and mechanical manner, is unsustainable. He further submitted that there being no specific allegation against the petitioner, her inclusion in the case would cause undue hardship and mental agony, as she would be facing trial unnecessarily. Learned counsel contended that in the factual scenario, the impugned order being against the record of the case, is liable to be quashed.

Smt. Anitha R., learned HCGP, on the other hand, by taking me through the prosecution record and the evidence of PW.1, submitted that the record having disclosed about the commission of the alleged offence even by the petitioner, learned Sessions Judge is justified in allowing the application filed under S. 319 of Cr.P.C. Learned HCGP made submissions in support of the impugned order.

The scope and extent of powers of the Court to arraign any person as an accused during the course of an inquiry or trial in exercise of power under S. 319 of the Code, on a review of the authorities was set at rest by a Constitution Bench of the Apex Court in Hardeep Singh Vs. State of Punjab and Others etc. etc., AIR 2014 SC 1400 : (2014) CriLJ 1118 : (2014) 1 JT 412 : (2014) 1 SCALE 241 : (2014) 3 SCC 92 . The legal position has been summarized to the following effect:

"105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary 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.

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 Section 319 Cr.P.C. In Section 319 Cr.P.C 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 Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."

S. 319 of the Code confers powers on the trial Court to find out, whether a person, ought to have been added as an accused, has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction should be arrived at on the basis of the evidence, so led during the trial. In the aforesaid decision, the Apex Court has held that the degree of satisfaction of the Court is much higher than the one when the cognizance of the offence is taken and process issued to the accused.

PW.1 is the complainant. Complaint was lodged on 06.02.2012 at 03.00 p.m., and a case in Crime No. 33/2012 for the offences punishable Ss. 498-A and 304-B read with S. 34 of IPC and Ss. 3 and 4 of the Dowry Prohibition Act was registered. After investigation, charge sheet was filed only against the husband of the deceased. 26 witnesses have been cited in support of the prosecution case. Trial having commenced, PW.1 has deposed on 01.04.2014. A perusal of the complaint shows that the deceased was subjected to harassment by the accused and there was a demand for dowry. Unable to withstand the harassment and meet the demands, the deceased has committed suicide by hanging. The evidence of PW.1, when taken at its face value, appears to be in tune with the complaint lodged by him before the Police. In view of the allegations made in the complaint-Ex. P1 and the evidence of PW.1, there being prima-facie complicity of the petitioner in the crime, learned Sessions Judge is justified in allowing the application filed under S. 319 of the Code and in directing arraigning of the petitioner as accused No. 2 in the charge sheet. Since Ex. P1 and the evidence of PW.1 make out a prima-facie case for trial against the petitioner, the impugned order cannot be termed as either perverse or illegal.

Consequently, this petition being devoid of merit, is rejected. The alleged incident having taken place on 06.02.2012 and the charge sheet having been filed without any delay, learned Sessions Judge shall endeavor to decide the case with expedition and before 31st December, 2015.