Veeramadaiah and Others vs State of Karnataka

Mohan Shantanagoudar, J.—Sri P.M. Nawaz, learned H.C.GP., takes notice on behalf of the Respondent-State. Heard the learned Advocates on both sides and perused the material on record.

During the trial of S.C. No. 146/2002, P.W.s. 1 to 3 have deposed implicating the Petitioners herein in their examination-in-chief. On the said basis, the public prosecutor filed application u/s 319 of Cr.P.C., and prayed the trial Court to issue summons against the petitioners herein. Said application was allowed by the impugned order, which is under challenge in this Criminal Petition.

Heard Sri. N.S. Sampangiramaiah, Learned Counsel for the Petitioners as well as Sri. P.M. Nawaz, learned HCGP, for respondent-State.

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.

In the instant case, only on the basis of the deposition recorded during examination-in-chief of P.Ws.2 & 3, the trial Court has come to the conclusion that it is a fit case to issue notice/summons to the petitioners. The order sheet maintained by the Court below discloses that on 24.03.2005 P.Ws 2 & 3 were examined in part and their cross-examination was deferred and on the very same day, the prosecution has filed application u/s 319 of Cr.P.C. The said application is allowed by the impugned order. Learned Counsel for the petitioner is justified in his submission that the application filed u/s 319 of Cr.P.C., could not have been allowed by the Court below in the absence of cross-examination of P.Ws. 2 &3 by the defence. Unless the prosecution witnesses i.e., P.Ws. 2 & 3 are cross-examined, it cannot be said that their evidence is fully recorded. In the absence of cross-examination of P.Ws.2 & 3, the impugned order which is based on the material collected during the course of examination-in-chief cannot be sustained and the same is liable to be set aside. Hence, the following order is made.

The Criminal Petition is allowed. The impugned order dated 7.5.2005 passed by the learned District Judge, Fast Track Court-V, Bangalore Rural district, Bangalore in S.C. No. 146/2002 on the application filed u/s 319 of Cr.P.C., is set aside. The trial Court is directed to permit the defence to cross-examine P.Ws. 2 & 3 and thereafter make appropriate orders on the application filed by the prosecution u/s 319 Cr.P.C., without being influenced by the observations made in this order.

The Criminal Petition is disposed off accordingly.