Allowed

Shivayogeppa v. the State of Karnataka and Anr.

Karnataka HC22 Nov 2024CRL.P/201430/2024

Case brief

AI extract

What is this about?

A person dropped from the charge sheet challenged a Magistrate's order issuing notice to implead him as accused via a Section 319 Cr.P.C. application. Finding PW-2's evidence lacked any overt act by him, the High Court held summoning was abuse of process and quashed the notice order.

What did the court decide?

Order dated 03.09.2024 of Senior Civil Judge and JMFC, Indi issuing notice to petitioner in C.C.No.61/2016 quashed; petition allowed.

Shivayogeppa Vs the State of Karnataka and Anr. — Quashing and FIR | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-K:8719 CRL.P No. 201430 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA,

¶4

KALABURAGI BENCH

¶5

DATED THIS THE 22^ND DAY OF NOVEMBER, 2024

¶6

BEFORE

¶7

THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ

¶8

CRIMINAL PETITION NO. 201430 OF 2024 [(482(Cr.PC)/528(BNSS)]

¶9

BETWEEN:

¶10

SRI SHIVAYOGEPPA S/O. ARJUN NEDALAGI, AGED ABOUT 50 YEARS, OCC: AGRICULTURE, R/O. SALOTAGI, TQ: INDI, DIST: VIJAYPUR – 586101.

¶11

…PETITIONER

¶12

(BY SRI S S MAMADAPUR, ADVOCATE)

¶13

AND:

¶14

Digitally signed by KHAJAAMEEN L MALAGHAN Location: High Court Of Karnataka

¶15

THE STATE OF KARNATAKA THROUGH INDI POLICE STATION, REP BY ITS ADDITIONAL STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL’S OFFICE, HIGH COURT BUILDING, KALABURAGI – 585101.

¶16

SMT. MALLAMMA W/O. KASHINATH MALABAGI, AGED ABOUT 44 YEARS, OCC: HOUSEHOLD WORK, R/O. SALOTAGI, TQ: INDI, DIST: VIJAYPUR 586101 (DE-FACTO COMPLAINANT)

¶17

…RESPONDENTS

¶18

(BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1; NOTICE TO R2 DISPENSED WITH V/O DATED 22.11.2024)

¶19

¶20

NC: 2024:KHC-K:8719 CRL.P No. 201430 of 2024

¶21

THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF BNSS 2023, PRAYING TO SET ASIDE THE ORDER DATED 03.09.2024 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, INDI ISSUING NOTICE TO THE PETITIONER ON THE APPLICATION FILED UNDER SECTION 319 OF CR.P.C. IN CC NO.61/2016 FOR THE OFFENCES SECTION 323, 324, 354, 504, 506 R/W SECTION 34 OF IPC.

¶22

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶23

CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

¶24

ORAL ORDER

¶25

Petitioner has questioned the legality of the order passed by the learned Magistrate, issuing notice to him on an application filed by the prosecution, to implead him as an accused.

¶26

Respondent No.2 lodged a complaint at Indi Police Station against accused Nos.1 to 4 alleging that on 22.06.2015 the said accused came to her land, assaulted, abused, threatened and outraged her modesty, etc. Charge sheet was filed against accused Nos.1 to 3 for offences punishable under Sections 323, 324, 354, 504, 506 read with Section 34 of IPC.

¶27

The name of petitioner shown as accused No.1 in the FIR was dropped in the charge sheet as there was no sufficient material against him. In the course of trial, based on the evidence of

¶28

3 - NC: 2024:KHC-K:8719 CRL.P No. 201430 of 2024

¶29

the complainant/CW-1 examined as PW-2, the learned APP filed an application under Section 319 of Cr.P.C. to implead petitioner as proposed accused No.4. The learned Magistrate, vide order dated 03.09.2024, issued notice to the petitioner namely proposed accused No.4.

¶30

The Hon’ble Apex Court in Yashodhan Singh & Ors. vs. State of Uttar Pradesh & Anr.¹ has held that there is no requirement under Section 319 Cr.P.C. that summoned person must be given an opportunity of being heard before being added as an accused to face the trial and such summoned person can assail a summoning order before a superior court and moreover he will also have the right of cross-examining the witnesses, as well as can let in his defence evidence during trial, in accordance with law. Further, mere fact that an opportunity of being heard was provided in certain proceedings, would not make it mandatory or a precondition that at the time of summoning a person under Section 319 Cr.P.C., he should be given an opportunity of being heard.

¶31

1 (2023) 9 SCC 108

¶32

¶33

NC: 2024:KHC-K:8719 CRL.P No. 201430 of 2024

¶34

Further, the Hon’ble Apex Court in Yashodhan

¶35

Singh’s case (supra), at para-28 has held as under:

¶36

“28. In Brijendra Singh, after referring to Hardeep Singh, this Court considered the question as to the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question, namely, as to, in what situations, this power should be exercised in respect of a person named in the FIR but not charge-sheeted. This Court held that once the trial court finds that there is some “evidence” against such a person on the basis of which it can be gathered that he appears to be guilty of the offence, there can be exercise of power under Section 319 Cr.P.C. It was observed that the evidence in this context means the material that is brought before the court during trial. Insofar as the material or evidence collected by the investigating officer (IO) at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by court to invoke the power under Section 319 Cr.P.C.

¶37

The learned Magistrate could have formed an opinion on the basis of the evidence of the complainant to come

¶38

to a conclusion as to whether it is a fit case to issue summons to the proposed accused and thereafter, if there was sufficient

¶39

5 - NC: 2024:KHC-K:8719 CRL.P No. 201430 of 2024

¶40

evidence to proceed, could have issued summons to the accused. There was no requirement under Section 319 of Cr.P.C. to issue summons to the proposed accused, as held in the above decision. However, a person has a right to assail a summoning order before a superior Court.

¶41

Be that as it may, the question that would arise in the present case is as to whether there is sufficient material to proceed against the petitioner in this case to implead him as an accused. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. The Apex Court has held in the above decision that at that stage, the court need not form any definite opinion as to the guilt of the accused. The involvement of the proposed accused in committing the offence shall be based on the evidence recorded during the course of trial.

¶42

The Hon’ble Apex Court has distinguished between the degree of satisfaction arrived at while exercising power under Section 319 Cr.P.C. which is greater than the degree

¶43

¶44

NC: 2024:KHC-K:8719 CRL.P No. 201430 of 2024

¶45

which is warranted at the time of framing of charges against others in respect of whom charge sheet was filed. It is held, only where strong and cogent evidence occurs against a person from the evidence led before the court, that such power should be exercised. Such power should not be exercised in a casual or cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than a mere probability.

¶46

In the case on hand, I have perused the evidence of PW-2/complainant, on the basis of which the learned APP filed application and the learned Magistrate issued notice to the petitioner. Except stating that the petitioner was also present, nowhere it is stated by PW-2 that petitioner has either assaulted her or committed any other overt acts. The said evidence on record will not fulfill the requirement to summon a person as proposed accused. It cannot be said that, there is strong and cogent evidence against the petitioner, to exercise power under Section 319 Cr.P.C. Having not found sufficient material against the petitioner, charge sheet was not filed against him. This Court is of the considered view that the issuance of notice to petitioner is nothing but abuse of process

¶47

¶48

NC: 2024:KHC-K:8719 CRL.P No. 201430 of 2024

¶49

of law and therefore, the petition deserves to be allowed.

¶50

Hence, the following:

¶51

ORDER

¶52

(i) The petition is allowed.

¶53

(ii) The order dated 03.09.2024 passed by the

¶54

Senior Civil Judge and JMFC, Indi in C.C.No.61/2016 issuing notice to the petitioner is quashed.

¶55

In view of disposal of the petition, pending interlocutory applications, if any, stand dismissed.

¶56

Sd/(MOHAMMAD NAWAZ) JUDGE

¶57

SWK List No.: 1 Sl No.: 14 CT: PS

Shivayogeppa v. the State of Karnataka and Anr.

Case brief

What is this about?

What did the court decide?

Shivayogeppa v. the State of Karnataka and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr Paramjit Singh Kanda Vs State of Karnataka

Sri Prakash H v @ Taapu Vs the State by

Raju Vs the State of Karnataka and Anr.

Mallu @ Mallikarjun Vs the State and Ors.

Shivkumar and Ors. Vs the State and Anr.

Sudeep G T and Ors. Vs the State of Karnataka and Anr.