Dismissed

A.Venugopal, S/o. a.Shankar v. Smt Vedasri, Sumalatha W/o a.Venugopal

Telangana HC27 Dec 2014CRLRC/2589/2014

Case brief

AI extract

What is this about?

In a criminal revision filed under Sections 397 and 401 Cr.P.C., the High Court dismissed the petition challenging an order dismissing an application to array additional accused persons. The Court held there was insufficient evidence within the trial records to satisfy the mandatory requirements of Section 319 Cr.P.C. for arraying those persons. The revision was accordingly dismissed.

What did the court decide?

Revision dismissed; pending miscellaneous petitions closed.

A.Venugopal, S/o. a.Shankar Vs Smt Vedasri… — Criminal Trial and Appeal | Telangana HC (2014)

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THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO

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CRIMINAL REVISION CASE No.2589 of 2013

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ORDER:

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This Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C by the petitioner-complainant, having been aggrieved by the order dated 27.11.2013 passed by the Principal Assistant Sessions Judge, Srikakulam, in Crl.M.P.No.136 of 2013 in S.C.No.10 of 2012.

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2. The defacto-complainant is the revision petitioner herein who impugning the order, dated 27.11.2013 of the learned Principal Assistant Sessions Judge, Srikakulam, in dismissing her application in Crl.M.P.No.136 of 2013 under Section 319 of Cr.P.C. for array of A.2 to A.5 against whom cognizance is not taken in the private complaint filed by her even though she mentioned their names. It is in fact, pursuant to her chief examination continuation recorded on 18.07.2013 in the Sessions case (it is after receiving the transfer orders in Dis.No.1187 of 2011, dated 05.03.2011 of the learned Principal District Judge, to the learned Assistant Sessions Judge), as P.W.1 where she deposed the same for the first time. As can be seen from the chief examination continuation typed matter of that day, the relevant part of the chief examination continuation reads “on the instigation of Seela Aruna Kumar, Malla Gopalarao, Ramesh of Venkageswara Lab by stating to show his manliness, A.1 placed his hand on her chest and pulled her chunny by catching hold her hands”. It is pursuant to the said deposition in her chief examination continuation, she filed this application for arraying the accused persons 2 to 5 under Section 319 Cr.P.C., where the cross-examination even deferred. In fact there is no whisper so far as the additional accused No.1 Seela Appalanarasayya concerned (revision 2^nd respondent), hence the learned Assistant Sessions Judge, dismissed the application for no material.

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3. It is impugning the same, the present revision is filed by the said defactocomplainant with contentions in the grounds of the revision that the learned Assistant Sessions Judge ought to have seen that the movement witness giving names, the additional accused names have not been arrayed as accused and when

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an application is made under Section 319 of Cr.P.C., it has to be allowed automatically and the revision is thereby maintainable to impugn the same, that the learned Assistant Sessions Judge erred in dismissing the application to array the additional accused 2 to 5 on the allegation that neither First Information Report on the original report given by her registered (ultimately that was referred without charging the accused 4 in number arrayed) or in Section 161 Cr.P.C. statements or in the protest petition in the private complaint thereafter filed by the complainant showing 4 accused persons i.e. among the additional accused 1 to 4, that the learned Assistant Sessions Judge should have seen that when in the course of trial, it appears, from the evidence of any other person, not being an accused, committed an offence, such person shall be tried along with other accused, it need not be mentioned either in the FIR or in Section 161 Cr.P.C. statements and during trial particularly when there is any incriminating evidence that is sufficient to array as accused and thereby sought for allowing the revision by setting aside the dismissal order of the learned Assistant Sessions Judge. The learned counsel for the revision petitioner reiterated the above during the course of hearing.

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4. Whereas, it is the contention of the learned counsel for the proposed accused i.e. respondents 2 to 5 that the learned Assistant Sessions Judge is right in coming to the conclusion and there is no illegality or irregularity or impropriety within the scope of Section 397 of Cr.P.C. and for this Court while sitting in revision, there is nothing to interfere and thereby sought for dismissal of the revision.

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5. Heard both sides and perused the material on record.

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6. Now the points that arise for consideration are:

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1. Whether the impugned order, dated 27.11.2013 passed by the Principal Assistant Sessions Judge, Srikakulam, in Crl.M.P.No.136 of 2013 in S.C.No.10 of 2012. is unsustainable, if so, with what observations?

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2. To what result?

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Point No.1:

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7. The scope of entertaining the application under Section 319 of Cr.P.C.by the trial Court from the evidence on record of additional accused is different from the scope of sitting against the order in the revision by the petitioner appears as aggrieved only from the wording of Section 397 of Cr.P.C. From this now coming to the factual matrix, it is important to note even from the wording of sub-section (1) of Section 319 of Cr.P.C.-“where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed”.

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It is important to note from the very wording that it is subject to satisfaction of the trial Court from the evidence during trial on record of the other persons, save those are facing trial, also committed the offence or any other offence, it is not mere accusation that is suffice as it is against a person who is not before the Court, even during the adducing of evidence otherwise under Section 273 of Cr.P.C., the evidence must be recorded in the presence of the accused the Court is proceeding with, thereby subject to satisfaction of commission of the offence is a mandatory requisite from said wording of Section 319(1) of Cr.P.C. Now from this proposition, coming to the factual matrix, there is nothing to show the observations of the learned Assistant Sessions Judge of there is no accusation so far as the additional accused sought to be added by the defacto-complainant in the impugned order before the trial Court of any of them instigated the A.1, for outraging modesty of defacto-complainant by so called abatement from wording, she whisper in the additional chief examination in a stray sentence on 18.07.2013 that too, against the additional accused persons 2 to 4 and not even additional accused No.1 in her saying on the instigation of those three persons by stating to show his manliness, A.1 outraged modesty.

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8. Importantly in the FIR registered, there is no whisper of the additional accused persons now sought to be impleaded as A.2 to A.5 who made any instigation or committed any offence. Leave about police after investigation filed referred report under Section 173 of Cr.P.C. and after notice the defacto-complainant with a protest petition that was taken cognizance as private complaint case and the same was later committed to the Court of Sessions even in the sworn statement of the defacto-complainant not mentioned, even in the private complaint protest

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application, she did not whisper any instigation by these proposed accused 2 to 5, on which the A.1 has outraged her modesty. Not only in the FIR, even in the chief examination of P.W.1 in part recorded on 18.02.2013, she did not whisper in the three pages running material where at this stage, for further chief examination, no doubt, at the request of the learned Public Prosecutor for continuation deferred and the continuation was taken up about 5 months thereafter on 18.07.2013, there in the first sentence, she whispered as stated supra against three out of the 4 alleged persons. It is also to mention that in the private complaint filed by her she named only 4 persons and not even the 5 of the original FIR to say the name of 4^th proposed accused -5^th respondent to the revision even not there. In these factual scenario, it is for the trial Court to arrive after testing of the cross-examination as to any substance even therefrom of the additional accused, to the satisfaction of the Court, committed the offence for arraying them within the scope of Section 397 of Cr.P.C. The defacto-complainant from that chief examination stray sentence filed the application. Needless to say from the above material even the earlier omissions and contradictory versions detailed supra that is also be confronted, had there been opportunity for cross-examination to suffice for saying there is nothing that could be made out thereby the accused have committed the offence who are not arrayed that was to be arrayed within the scope of Section 319 Cr.P.C. now sought for and thereby the learned Assistant Sessions Judge by considering the entire material on record, came to the conclusion that there is no averment of the proposed additional accused committed the offence along with A.1 much less by instigation. It is also important to note that even in the pre-cognizance stage of the private complaint case from the protest petition referred supra, P.W.1 sworn statement even not shows whisper of P.W.1 about the presence and instigation of the proposed additional accused 2 to 5 to A.1.

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9. Having regard to the above, for this Court while sitting in revision there is nothing to interfere with the impugned order, dated 27.11.2013 passed by the Principal Assistant Sessions Judge, Srikakulam, in Crl.M.P.No.136 of 2013 in S.C.No.10 of 2012. Accordingly, Point No.1 is answered.

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Point No.2:

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10. In the result, the Revision is dismissed. Consequently, miscellaneous petitions, if any, pending in this revision, shall stand closed.

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Dr. B.SIVA SANKARA RAO J, Date: 27.08.2014. B/o vvr

A.Venugopal, S/o. a.Shankar v. Smt Vedasri, Sumalatha W/o a.Venugopal

Case brief

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A.Venugopal, S/o. a.Shankar v. Smt Vedasri, Sumalatha W/o a.Venugopal

Case brief

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What did the court decide?

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