Dismissed

Suheel @ Suhel S/O Mehaboobali Nadaf v. the State of Karnataka

Karnataka HC18 Nov 2020CRL.P/100127/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka examined a criminal petition seeking to quash an order under Section 319 Cr.P.C. that added petitioners as accused in a trial, despite them being dropped from the charge sheet. The court held that dropping names from the charge sheet does not preclude their impleadment if prima facie satisfaction exists based on the complainant's evidence.

What did the court decide?

Criminal Petition No. 100127/2020 stands dismissed; summons issued under Section 319 Cr.P.C. remain operative.

Suheel @ Suhel S/O Mehaboobali Nadaf Vs the… — Criminal Trial and Appeal | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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CRIMINAL PETITION NO.100127/2020

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Between:

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Susheel @ Suhel s/o Mehaboobali Nadaf, Age: 26 years, occ.: student, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Munavar s/o Mehaboobali Nadaf, Age: 25 years, occ: Computer Operator In D.C. Office, Haveri, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Mohammed Yakubsab s/o Fakeersab Nadaf, age: 76 years, occ.: Retired Teacher, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Fakruddin s/o Mohammed Yakubsab Nadaf, age: 31 years, Occ.: Agriculture, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Dadapeer s/o Mohammed Yakubsab Nadaf, age: 31 years, Occ: Student, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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CRL. P No. 100127/2020

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: 2 :

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Murtujali s/o Mohammed Yakubsab Nadaf, age: 47 years, occ: Teacher, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Babusab s/o Gudusab Nadaf, Age: 57 years, occ.: agriculture, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Mardanali s/o Babusab Nadaf, Age: 27 years, occ.: agriculture, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Ismail s/o Gudusab Nadaf, Age: 63 years, occ.: agriculture, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Jeelani s/o Ismailsab Nadaf, Age: 29 years, occ.: agriculture, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Ashrafali s/o Ismailsab Nadaf, Age: 24 years, occ.: agriculture, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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Mehboobali s/o Peersaab Nadaf, Age: 61 years, occ.: Retired Teacher, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri. ……Petitioners

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(By Sri K.M. Shiralli, Advocate)

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CRL. P No. 100127/2020

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: 3 :

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AND:

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The State of Karnataka by Bankapur Police Station, Represented by State Public Prosecutor, High Court of Karnataka Bench Dharwad.

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Garibsab s/o Sayedsab Nadaf, Age: 40 years, occ.: Agriculture, r/o Tavaramellihalli, Tq: Savanur, Dist: Haveri.

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…..Respondents

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(By Sri Praveen Uppar, H.C.G.P. for R1, Sri Prashant Mathapati, Advocate for Sri N.R. Kuppelur, Advocate for R2)

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This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the order passed by the learned First Additional District and Sessions Judge, Haveri in S.C. No. 21/2016 dated 17.12.2019 vide Annexure-L & etc.

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This Criminal Petition coming on for admission through physical hearing/video conferencing hearing this day, the court made the following:

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ORDER

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The petitioners who have been shown to have

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arraigned as accused Nos.6 to 12 and 14 to 18 in S.C.

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CRL. P No. 100127/2020

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: 4 :

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No. 21/2016 which is pending in the Court of the learned First Additional District & Sessions Judge, Haveri (henceforth for brevity referred to as ‘the trial Court’) have challenged the order dated 17.12.2019 passed by the trial Court upon an application filed under Section 319 of Code of Criminal Procedure (for brevity herein after referred to as ‘Cr.P.C.’) wherein the trial Court has allowed the application and ordered for issuance of summons to the present petitioners.

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Respondent No.1 is represented by learned

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High Court Government Pleader and respondent No.2 is represented by his counsel.

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Though this matter is listed for admission,

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however, with the consent from both sides the matter is taken up for its final disposal.

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Heard the arguments from both the sides.

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CRL. P No. 100127/2020

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: 5 :

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A perusal of the record would go to show that

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at the instance of the informant one Sri Garibsab Nadaf

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to the respondent No.1-Police, on 25.03.2015 a case in

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Crime No. 44/2015 of the first respondent Police was registered against 23 named accused for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 307, 441, 451, 504, 506 read with Section 149 IPC. After completion of the investigation, the Investigating Officer filed charge sheet for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 307, 341, 354, 504, 506 read with Section 149 IPC, however, confining total number of accused to only five. He did not charge sheet the other accused who were named in the complaint.

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After framing the charge, the trial was begun in the trial Court where the complainant was examined as PW3. The said complainant-Garibsab Nadaf appears to have, during the course of his evidence named the

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CRL. P No. 100127/2020

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: 6 :

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other accused also as assailants specifically naming them. Thereafter the prosecution filed an application under Section 319 Cr.P.C. for arraying those persons as accused Nos. 7 to 17. The trial Court by its impugned order dated 17.12.2019 allowed the said application and ordered for issuance of summons to those accused named in the application under Section 319 Cr.P.C. Aggrieved by the said order those accused against whom summons were ordered, have preferred this petition.

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Learned counsel for the petitioners in his

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arguments submitted that, admittedly the charge-sheet does not contain the names of these petitioners, it is only upon the alleged evidence of the complainant, the present petitioners are served with summons. Learned counsel made emphasis on the point that, the said complainant during the course of evidence is stated to have been referred the names of some of the accused

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CRL. P No. 100127/2020

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: 7 :

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whose names are shown to have written upon his palm,

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to which, he is said to have been referred while giving his evidence. He also submitted that since the very same accused were dropped by the Investigating Officer, an application under Section 319 Cr.P.C. cannot be filed by the prosecution seeking their impleadment.

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Learned H.C.G.P. in his arguments submitted

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that the complainant in his complaint had named all the 23 accused specifically. In his evidence as PW3 he has also named them individually. Though he is shown to have referred to some of the names said to have been written on his hand while in the witness box, but those names are only six in number whereas the impleaded accused are 11 in number, as such, the said contention that the names were read out by the complainant by referring to the scribbling on his palm, is not acceptable.

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CRL. P No. 100127/2020

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: 8 :

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Learned counsel for the respondent No.2 in his arguments submitted that the complainant has named 23 accused persons as culprits alleging overt act against them. Those persons include the present petitioners also. However, the Investigating Officer, for the reasons best known to him, has dropped several of them including the present petitioners. As such, merely because the Investigating Officer has not shown their name in the charge sheet, it does not mean that they can never be impleaded even under Section 319 Cr.P.C. In his support he relied upon the judgment of the Hon’ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others reported in (2014) 3 SCC 92 .

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In the instant case, a perusal of the F.I.R.

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with the complaint, certified copy of which is placed along with the petition would go to show that the complainant who is also stated to be the victim, has

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CRL. P No. 100127/2020

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: 9 :

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given names of 23 accused and alleged overt acts against them. However, during the course of investigation the Investigating Officer is said to have recorded a statement as re-statement of the complainant with a subsequent date and shown that the complainant has stated that, about 14 members mentioned in the re-statement were not involved in the alleged commission of crime, however, their names have been taken out by the complainant. The learned counsel for the complainant disputes the very further statement alleged to have shown as though given by the complainant before the Investigating Officer. The said Investigating Officer based upon the alleged restatement of the complainant has dropped all other accused who were named in the FIR except the five who were charge sheeted by him.

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Our Hon’ble Apex Court in the case of Suman

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v. State of Rajasthan & Anr. Reported in AIR 2010

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CRL. P No. 100127/2020

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: 10 :

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SC 518 in paragraph No. 15 of its judgment was pleased to observe as below:

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“a person who is named in the first information report or complaint with the allegation that he/ she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 Cr.P.C. if from the evidence collected/ produced in the course of any inquiry into, or trial of an offence, the Court is prima faci satisfied that such person has committed any offence for which he can be tried with other accused.”

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The same view was reiterated with more

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details and taking several other circumstances by the Hon’ble Apex Court in Hardeep Singh’s case (supra). In the said case at paragraph No. 117.6, the Hon’ble apex Court was pleased to observe as below:

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“117.6 A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been

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CRL. P No. 100127/2020

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: 11 :

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discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.”

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Thus, in the instant case, no doubt, names of

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the present petitioners were initially shown in the FIR but they were dropped in the charge-sheet. But that itself would not prevent the trial Court from summoning them and array them as accused. However, while doing so, the Court must be very cautious and should convince itself that there are materials to compel them to face a trial. The Court must be satisfied that there are materials, which apart from prima facie would also takes the Court further warranting it to summon them and face a trial. Whether such a material was available to the trial Court is the question in the present case.

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CRL. P No. 100127/2020

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: 12 :

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According to the petitioners, their names

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were added by allowing interlocutory applicaation filed under Section 319 Cr.P.C. after evidence of the complainant (P.W.3). It is the further case of the petitioners and argument of the learned counsel for the petitioners that the said PW3 had written names of those persons upon his hand and he had read those names in the Court in which, record of referring is also made in the deposition of PW3 by the trial Court.

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A perusal of the certified copy of the evidence of PW3 (CW1) recorded by the trial Court on 20.11.2017 would go to show that at the objection raised by the learned counsel for the accused that the witness was referring to the names of the accused by getting them written upon his hand in the Court, asked the witness to show his palm and noticed writing of six names in his palm. In the impugned order the court has referred to

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CRL. P No. 100127/2020

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: 13 :

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the said observation. However, it observed that the reliability of the evidence in that regard with respect to those people would be considered at the stage of appreciation of evidence but not at the stage of summoning of the witnesses.

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I do not find any error in the said finding of the trial Court for the reason that, even according to the petitioners the names that were said to have been written by the complainant on his palm was only six names, whereas, the present petitioners who have challenged their impleading in the matter are 12 in number. Secondly, undisputedly the names of these 12 persons had found a place in the FIR. However, in the charge-sheet their names were dropped. Thirdly, their names were again reiterated or repeated by none else than the complainant in his evidence with giving details of the alleged overt acts, said to have been committed by them.

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CRL. P No. 100127/2020

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: 14 :

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Therefore, when the complainant himself in

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his evidence apart from taking names of the present petitioners has also alleged certain overt acts against them and according to him he had named them at the earliest point of time in the complaint itself. Merely because the names of some of them were said to have been written on his palm would by itself would not make a way for their discharge, however, those accused who have been arrayed will have opportunities to test the veracity of the evidence of PW3 and truthfulness in his statement including the aspect of he writing six names upon his palm, at the appropriate stage of the trial.

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Therefore, I do not find any error in the impugned order which has allowed the I.A. filed under Section 319 Cr.P.C. As such, I proceed to pass the following order:

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CRL. P No. 100127/2020

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: 15 :

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ORDER

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The Criminal Petition stands dismissed.

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SD JUDGE

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bvv

Suheel @ Suhel S/O Mehaboobali Nadaf v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Suheel @ Suhel S/O Mehaboobali Nadaf v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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