Sri Kumar vs State of Karnataka

Arali Nagaraj, J.—The petitioner herein who is summoned as Additional accused in Spl. (A) No. 5/2006. On the file of the learned Sessions Judge and Special Judge al Shivamogga by order dated 2.1.2010 passed on the application filed u/s 319 Cr.P.C. by the prosecution has challenged in tins petition filed u/s 482 Cr.P.C., the correctness of the said order.

Though this matter is listed today for admission, having n regard 10 the nature of the relief sought for and the facts and circumstances of the case before the Trial Court, it is taken for final disposal and argument of Sri Manjunath Pattan Shetty the learned Counsel for the petitioner and Sri Vijay kumar Majage, the learned High Court Government Pleader are heard. Perused the Impugned Order, the charge framed against the accused therein, depositions of PWs. 1 & 2 and statements of charge sheet witnesses.

The Trial Court has framed charge against accused Nos. 1 to 3 therein for the of offence punishable u/s 3(1)(X) and SC and ST (Provisions of Atrocities Act, 1989) hereinafter referred to as ''Atrocities Act'' for short). After PWs. 1 to 3 came to be examined the petitioner filed application u/s 319 Cr.P.C. seeking summons to the present, petitioner namely Kumar as additional alleging that he married one Rajeshwari the sister of PW1 complainant Thimappa and prior to his marriage with her he caused miscarriage on two occasions and therefore, lie committed an offence punishable u/s 312 of IPC By its impugned Order the Trial Court allowed the said application and issued summons to the present petitioner for the said offence.

Learned Counsel for the petitioner strongly contends that the evidence of PWs1 and 2 and also the statement of CWs. 7 to 10 to 12. pertaining to the alleged miscarriage of the said girl Rajeshwari by the present, petitioner do not constitute the offence of miscarriage u/s 312 to IPC and therefore, the Impugned Order summoning him as the additional accused in the said case for the said offence deserve to be set aside.

Per contra, the learned High Court Government Pleader contends that PW2. the victim Rajeshwari, has clearly slated 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 arid 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.

PW2. 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.

Though PW1 the elder brother of PW2 Rajeshwari has stated in his evidence that the petitioner-accused was responsible for the abortion of PW2 Rajeshwari on two occasions prior to his marriage with her, he has slated further in his evidence that he came to know of the same through somebody. Thus it is clear that he has no persona knowledge as to the said facts.

Prosecution has sought to prove factum of abortion, through CW10 Dr Rajesh. His statement clearly reveals that during the years 2003 & 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. CWs. 7, 8, 9 and 12 though have suited in their respective statements recorded u/s 161 Cr.P.C. by Investigating Officer during investigation that PW2 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 witness has stated that he/she has personal knowledge as to the alleged abortions.

As to the power of the Trial Court to summon additional accused'' u/s 319 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 Vs. Ram Kishan Rohtagi and Others, . It is observed at Para Nos. 18 and 19 as under:

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 Vs. State of Punjab and Another, 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 provision and trials, clearly shows that it applies to all the Courts including a Sessions Court will have the power to add any person, not being accused before it but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.

In these circumstances, therefore, if the prosecution can at any stage produce evidence wilt 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 oilier 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 01 her person almost 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. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 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.

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. LJ 653, Section 319. This Court has observed case as under:

Criminal P.C. (2 of 1974), Section 319 - Proceeding against other person appearing to be guilty - Offence u/s 302 r/w Section 34-During trial, application for trial of petitioner u/s 302 r/w Section 109 on the ground that evidence discloses such offence against him - Held, there wert no compelling reasons to proceed against petitioner - Issue of process was unwarranted. Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, Foll.

Para 8. No doubt, it is open to the prosecution to produce evidence at any stage of the trial 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 as 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 faking 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 trial of the other accused, of course on the basis of the evidence produced by the prosecution in the course of the trial.

In this later decision in the case of Krishnappa Vs. State of Karnataka, Hon''ble Supreme Court has held at para No. 6 as under.

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.

Further, in its recent decision in the case of Mohd. Shafi Vs. Mohd. Rafiq and Another, Hon''ble Supreme Court has observed (at Para 12 therein) as under:

From the derision of tins 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 he 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. We may also like lo 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 by me]

Following the above principle''s laid down by the Hon''ble Supreme Court and also this Court, I am of the considered opinion that the evidence of PWs 1 and 2 docs not establish that the proposed aroused (petitioner herein} caused miscarriage of PW2 Rajeshwari prior to his marriage. Further, the statement of CW 10 that Dr. N. Rajesh clearly rules out the case of the prosecution that the PW2 Rajeshwari was taker by this petitioner-accused to his hospital and caused her miscarriage on two occasions. Besides this, the statements of PWs. 7 to 9 & 12 also do not establish that PW2 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 u/s 312 of IPC on the basis of the said evidence. Therefore I am of the opinion that the Trial 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. 5/2006 summoning this petitioner as the additional accused is hereby set aside.