Partly allowed

Mr. Omar Farooq v. the State of Karnataka

Karnataka HC25 Sept 2023WP/14371/2019

Case brief

AI extract

What is this about?

This writ petition challenged the setting aside of an order allowing prosecution of new accused under Section 319 Cr.P.C. The High Court allowed the petition in part, setting aside lower orders and directing the Trial Court to reconsider after the prosecution witness chief exam concludes.

What did the court decide?

Impugned orders set aside; Trial Court directed to reconsider Section 319 application after prosecution witness chief examination concludes and to ascertain material for Sections 448 and 506 IPC.

Mr. Omar Farooq Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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1 - NC: 2023:KHC:34854 WP No. 14371 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 14371 OF 2019 (GM-RES)

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BETWEEN:

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MR. OMAR FAROOQ AGED ABOUT 54 YEARS, S/O. A. SHAKOOR, NO.315, 8^TH CROSS, LAKSHMI ROAD, SHANTHINAGAR, BENGALURU-560 027.

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…PETITIONER

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(BY SRI. VIVEK, ADVOCATE FOR SRI. ABHINAV R., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA SAMPIGEHALLI POLICE STATION, SAMPIGEHALLI, BENGALURU-560 077. REPRESENTED BY SPP, HIGH COURT OF KARNATAKA.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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MR. H.GOPAL REDDY @ GOPI AGED ABOUT 61 YEARS, S/O. HANUMANTHAPPA, R/AT NO.34, SAPTHASWARA, 2^ND CROSS, NEAR M.K.AHMED SHOP CENTER, T.P.VENUGOPAL LAYOUT, GANGANAGAR, BENGALURU NORTH, BENGALURU-560 032.

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…RESPONDENTS (BY SRI. RAJAT SUBRAMANYAM, HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.1;

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SRI. G. NARASI REDDY, ADVOCATE FOR RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ORDER DATED 15.10.2018 PASSED BY THE XLV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY IN CRL.R.P.NO.453/2017 AT ANNEXURE-'A' TO THIS W.P. BY ALLOWING THE INSTANT PETITION AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has challenged the correctness of an order dated 15.10.2018 passed by the LXV Additional City Civil and Sessions Judge, Bengaluru City in Crl.R.P.No.453/2017 by which, it set aside an order dated 05.11.2016 passed by the Chief Metropolitan Magistrate, Bengaluru in C.C.No.32364/2011, allowing an application under Section 319 of Cr.P.C. and arraigning accused Nos.2 to 4 in the case.

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A prosecution was launched against the accused No.1 in C.C.No.32364/2011 for the offences punishable under Sections 420, 448, 427 and 506 of Indian Penal Code (henceforth referred to as 'IPC') for short. The Trial Court took cognizance of an offence punishable under Section 420 of IPC

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by accused No.1 and framed charges and set down the case for trial.

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The complainant was examined-in-part as PW.1 and after the case was adjourned for further chief-examination of PW.1, the Public Prosecutor filed an application under Section 319 of Code of Criminal Procedure (henceforth referred to as 'Cr.P.C.' for short) to arraign the accused Nos.2 to 4 in the case. It was contended in the application that the complainant had deposed that all the accused had tried to dispossess him from the property and that though the accused Nos.2 to 4 were named in the complaint lodged before the respondent No.1, yet the charge sheet was filed only against accused No.1. The Trial Court relying upon the judgment of the Hon’ble Apex Court in the case of Hardeep Singh Vs. State of Punjab - (2014) 1 Crimes 133, (2014) 3 SCC 92 allowed the application and ordered the accused Nos.2 to 4 to be arraigned as accused in the case. Being aggrieved by the said order, the accused No.3/respondent No.2 herein filed a revision petition before the Sessions Court in Crl.R.P.No.453/2017.

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The Sessions Court in terms of its order dated 15.10.2018 held that the complainant/PW.1 had also filed O.S.No.514/2009 for declaration that the sale deed dated 27.08.2008 executed in favour of accused No.3 was null and void. The Sessions Court held that the dispute in the case was civil in nature and that the accused No.3 was a bonafide purchaser of the property. It also relied upon the judgment of Hon’ble Apex Court in the case of Hardeep Singh Vs. State of Punjab - (2014) 3 SCC 92 and held that there was no sufficient ground to prosecute the accused No.3 and consequently allowed the petition and set aside the order passed by the Trial Court. Being aggrieved by the same, the complainant/petitioner has filed this petition.

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Learned counsel for the petitioner submitted that the Trial Court if it is satisfied that the evidence on record is sufficient to prosecute the other accused, it could exercise power under Section 319 of Cr.P.C. He submitted that the Trial Court need not wait for the evidence of PW.1 to be tested in the cross-examination. He also submitted that the accused No.3 was not entitled to be put on notice, as he was earlier cited as one of the accused in the complaint lodged before the

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respondent No.1. He relied upon the judgment of Hon’ble Apex Court in the case of Yashodan Singh and Others Vs. State of Uttar Pradesh and Another - 2023 SCC Online SC 890 .

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He invited the attention of the Court to paragraph Nos.26 and 27 which is extracted below:

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"26. From the aforesaid observations of the Constitution Bench of this Court in Hardeep Singh, it is noted that an inquiry is contemplated as against a person who has been discharged prior to the commencement of the trial in terms of Section 227 Cr. P.C. as extracted above but on an inquiry, if it appears that there is evidence against such a discharged person, then power under Section 319 Cr.P.C. can be exercised against such a discharged person. This clearly would mean that when a person who is not discharged but is to be summoned as per Section 319 Cr.P.C. on the basis of satisfaction derived by the court on the evidence on record, no inquiry or hearing is contemplated. This would clearly indicate that principle of natural justice and an opportunity of hearing a person summoned under 319 Cr.P.C. are not at all contemplated. Such a right of inquiry would accrue only to a person who is already discharged in the very same proceeding prior to the

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commencement of the trial. This is different from holding that a person who has been summoned as per Section 319 Cr. P.C. has a right of being heard in accordance with the principles of natural justice before being added as an accused to be tried along with other accused.

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27. Further, when a person is summoned as an accused under Section 319 Cr.P.C. which is based on the satisfaction recorded by the Trial Court on the evidence that has emerged during the course of trial so as to try the person summoned as an accused along with the other accused, the summoned accused cannot seek discharge. It is necessary to state that discharge as contemplated under Section 227 Cr.P.C. is at a stage prior to the commencement of the trial and immediately after framing of charge but when power is exercised the under Section 319 Cr.P.C. to summon a person to be added as an accused in the trial to be tried along with other accused, such a person cannot seek discharge as the court would have exercised the power under Section 319 Cr.P.C. based on a satisfaction derived from the evidence that has emerged during the evidence recorded in the course of trial and such satisfaction is of a higher degree than the satisfaction which is derived by the court at the time of framing of charge."

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He therefore contends that there was sufficient evidence before the Sessions Court to proceed against the accused No.3 and hence the Sessions Court committed an error in setting aside the order passed by the Trial Court.

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Learned counsel for respondent No.2 on the other hand, submitted that the chief-examination of the petitioner was not concluded and therefore, the Trial Court could not have exercised power under Section 319 of Cr.P.C. He also contended that notice of the application was not issued to respondent No.2 before an order under Section 319 of Cr.P.C. was passed. Further, he contends that there is no material to proceed against the accused No.3/respondent No.2 for an offence punishable under Section 420 of IPC and hence, the Trial Court committed an error in allowing the application filed by the prosecution under Section 319 of Cr.P.C. He relied on the judgment of a Coordinate Bench of this Court in the case of Smt. Asha Somashekar and others Vs. State of Karnataka

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- 2016(4) KAR 392 and submitted that before an accused is added, he should be heard.

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Learned High Court Government Pleader on the other hand submitted that when there is enough material to proceed against the accused No.3, the Trial Court was right in allowing the application.

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I have considered the submissions made by learned

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counsel for the petitioner as well as the learned counsel for the respondent No.2 and learned High Court Government Pleader.

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The Trial Court had taken cognizance of an offence punishable under Section 420 of IPC against the accused No.1. The allegations against accused No.1 was that he after having executed a power of attorney in favour of the petitioner/complainant, had cancelled it and thereafter conveyed the property to the accused No.1, who conveyed it later to the accused No.2, who thereafter conveyed it to accused No.3. The petitioner/complainant in his complaint before the respondent No.1 had stated that all the accused had attempted to trespass over the property and tried to dispossess him. Based on this, the respondent No.1 undertook investigation and had filed a charge sheet for the offences punishable under Sections 420, 448, 427 and 506 of IPC.

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The Trial Court took cognizance of the said offence and issued process. The trial was set down and CW.1 was examined as PW.1 whose chief-examination was recorded in part on 08.12.2015. Long thereafter, i.e., on 06.09.2016, an application was filed by the prosecution invoking Section 319 of Cr.P.C. to arraign the other accused. The Trial Court allowed the application, since CW.1 had stated that accused No.1 along with other unnamed accused had trespassed into the property and attempted to dispossess him. The Sessions Court held that there was no sufficient evidence on record to corroborate the allegations against the accused and that the petitioner had already approached the Civil Court by filing a suit for setting aside the sale deed executed in favour of accused No.3.

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In view of the judgment of Hon’ble Apex Court cited by learned counsel for the petitioner in the case of Yashodan Singh (supra) , it is trite that an unnamed accused can be involved in the prosecution by exercising power under Section 319 of Cr.P.C. based on the chief-examination of the complainant. It need not await for the chief-examination to be tested in cross-examination. The right of an unnamed accused, of being heard before being named as an accused, is only

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available to an accused who is discharged under Section 227 of Cr.P.C. and not to a person who is accused of an offence but not arrayed as one of the accused in the charge sheet.

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Taking the above into account, there is no error apparent on the face of the order passed by the Trial Court in exercising power under Section 319 of Cr.P.C. However, the Trial Court must have waited the conclusion of chiefexamination of CW.1/PW.1 and must have perused the material on record to ascertain whether there was any case made out to prosecute the accused No.3 for the offence punishable under Sections 448 and 506 of IPC.

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In that view of the matter, this petition deserves to be allowed-in-part and the impugned orders passed by the Trial Court as well as Sessions Court deserve to be set aside. The Trial Court deserves to be directed to reconsider the application after the chief-examination of CW.1 is concluded and also to consider, whether there is enough material to proceed against accused No.3/respondent No.2 herein.

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Accordingly, the petition is allowed-in-part and the impugned orders passed by the Trial Court as well as Sessions

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Court are set aside. The Trial Court is directed to reconsider the application under Section 319 of Cr.P.C. after the chiefexamination of CW.1 is concluded.

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It is needless to mention that the Trial Court shall consider the material placed on record by the prosecution to ascertain whether a case under Sections 448 or 506 is made out against the respondent No.2 herein/accused No.3.

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Sd/JUDGE

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List No.: 1 Sl No.: 31

Mr. Omar Farooq v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr. Omar Farooq v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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