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Sunil Bose v/s State of Karnataka

    Criminal Revision Petition Nos. 313 of 2017 & 1206 of 2016

    Decided On, 13 April 2017

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE P.S. DINESH KUMAR

    For the Petitioner: B.V. Acharya, B.L. Acharya, C.H. Jadhav, Senior Counsels for Rashmi Jadhav, Advocates. For the Respondent: R1, Venkatesh S. Arbatti, R2, R. Somasundara, Advocates.



Judgment Text

P.S. Dinesh Kumar, J.

1. The petitioners in both these petitions are challenging the legality and correctness of the order dated 7.9.2016 passed by the learned III Additional Sessions and Special Judge, Mysuru, in Special Case No. 13/2013, taking cognizance of offences punishable under Section 12 of the Prevention of Corruption Act (for short ' P.C.Act- ) and Section 109 of Indian Penal Code (for short ' IPC- ) r/w Section 7 and Section 13(1)(d) r/w Section 13(2) of P.C. Act and issuing process against them.

2. Heard Shri. B. V. Acharya, learned Senior Counsel for the petitioner in Crl.R.P.No.313/2017; Shri. C.H. Jadhav, learned Senior Counsel for the petitioner in Crl.R.P.No.1206/2016, Shri. Venkatesh S. Arbatti, learned Counsel for respondent No. 1 and Shri. R. Somasundara, learned Counsel for respondent No. 2 in both cases.

3. Brief facts of the case:

One Basavaraj (C.W.1) got registered an F.I.R. on 25.3.2010 with Lokayuktha Police alleging that a Senior Geologist, namely, V. J. Alphonsus, was demanding a sum of Rs.1,00,000/- as illegal gratification to issue permits to transport sand on the pretext that the said money had to be paid to one Sunil Bose, son of the local M.L.A. (petitioner in Crl.R.P.No.313/2017). Lokayuktha Police registered an FIR in Crime No. 8/2010 and conducted a successful trap. After investigation, charge sheet was filed only against V. J. Alphonsus. Learned Special Judge took cognizance of the offence and the trial is in progress. The complainant also sought to assist the prosecution by filing an application under Section 301(2), Cr.P.C.

4. The complainant, Basavaraju moved an application under Section 190(1)(b) of Cr.P.C. before the trial Court with a prayer to ' take cognizance of the offences against petitioners- in these two criminal petitions. The said applications were opposed by filing a common statement of objections. After hearing, the learned trial Judge allowed the application and recorded having taken cognizance of the offence punishable under Section 12 of the P. C. Act and Section 109 of IPC read with Section 13(2) of the P. C. Act and issued process against the petitioners herein. Feeling aggrieved by the said order, petitioners have filed these petitions.

5. Both learned Senior Counsel for the petitioners strongly contended that dates and events are very relevant and pointed out that the charge sheet was filed on 3.1.2013; learned trial Judge took cognizance of the offences on 22.1.2013; and charges were framed by the Court against V. J. Alphonsus on 16.8.2013.

6. Adverting to the above dates and events, learned Senior Counsel submitted that the complainant, after a long lapse of time, got filed the instant application on 25.2.2015 under Section 190(1)(b), Cr.P.C. They contended that the trial is said to have commenced once the charges are framed by the Court and in the instant case, it is 16.8.2013. If any new person is to be arraigned as an accused, the same could be done only by resorting to Section 319, Cr.P.C. They further contended that though charges were framed by the trial Court on 16.8.2013, recording of evidence of witnesses had not commenced as on the date of filing of the instant application. Therefore, there was nothing on record for the learned trial Judge to examine the complicity of petitioners herein.

7. Learned Senior Counsel further contended that once a charge sheet is filed by the police, the trial Judge is required to take cognizance of offences under Section 190(1)(b), Cr.P.C. At that stage, based on the material on record, if the trial Judge comes to a conclusion that the police have falsely implicated any person in the crime, he can choose not to frame charges against such person. Similarly, if it appears that the police have deliberately excluded any person, the trial Judge can issue process against such person if it appears from the evidence recorded in the course of any inquiry or trial that such person has committed any offence for which he could be tried together. Once the stage of taking cognizance under Section 190(1)(b) is complete and charges are framed against one or more accused, a trial Judge cannot proceed against any other person who is not an accused, unless the conditions prescribed in Section 319, Cr.P.C. are satisfied. In support of this contention, they placed reliance on an authority of the Hon'ble Supreme Court in the case ofHardeep Singh v. State of Punjab and others, reported in (2014) 3 SCC 92 : (AIR 2014 SC 1400).

8. Learned Senior Counsel further contended that the application filed by the complainant under Section 190(1)(b) is wholly misconceived as the prosecution is required to be conducted only by the Public Prosecutor. Having filed an application under Section 301, Cr.P.C, any advocate instructed by a complainant/private person, can at best, with the leave of the Court submit written arguments after recording of evidence is closed. They argued that the application filed by the complainant was not maintainable as held by the Hon'ble Supreme Court in the case ofShiv Kumar v. Hukam Chand and another reported in (1999) 7 SCC 467.

9. With the above submissions, learned Senior Counsel prayed that these petitions be allowed and the impugned order be set aside.

10. Shri. Venkatesh S. Arbatti, learned Counsel appearing for the respondent-Lokayuktha vehemently contended that it is the duty of the Court to find out the real offender and if it comes to the conclusion that the police had deliberately excluded certain persons, the Court may summon such person at any time. The word ' inquiry used in Section 319, Cr.P.C, is vide enough to encompass within itself all stages during the trial. Complainant being a prime witness, has dutifully brought to the notice of the trial Court, the complicity of petitioners in the crime.

Refuting petitioners argument that a complainant cannot maintain an application, he submitted that even a co-accused can maintain an application. He placed reliance on the following authorities of the Hon'ble Supreme Court:

(a)AIR 1967 SC 1167 (Raghubans Dubey v. State of Bihar);

(b)AIR 2001 SC 2747 (M/s. SWIL Ltd. v. State of Delhi and another); and

(c)(2015) 1 SCC 48 : (2014 AIR SCW 6134) (R. N. Agarwal v. R. C. Bansal and others).

11. Shri. S. Somasundara, learned Counsel for the applicant, supporting the impugned order submitted that the complainant having filed an application under Section 301, Cr.P.C., was desirous of assisting the trial Court. Therefore, he filed the instant application. As no evidence was recorded as on the date of filing of the complaint, it was open for the trial Court to examine if the petitioners were deliberately excluded by the police. Having carefully considered the material on record, the trial Court has allowed the application with cogent reasons and hence the impugned order does not require any interference. With these submissions, learned Counsel for the respondent- Lokayukta and the complainant prayed for dismissal of these petitions.

12. I have carefully considered the submissions made by the learned Counsel for the parties and perused the material papers.

13. These two petitions raise a common question with regard to the power of Court to summon a person, who is not charge sheeted by the police to stand a trial.

14. Admittedly, based on the final report filed by the Lokayukta police, learned Trial Judge framed charges against V. J. Alphonsus on 16.8.2013. Complainant has filed the instant application under Section 190(1)(b) of Cr.P.C. on 25.2.2015. As on the said date, recording of evidence of witnesses had not begun. The learned Trial Judge has taken cognizance and issued process against the petitioners based on the said application.

15. Section 190(1)(b), Cr.P.C. reads as follows:

"190. Cognizance of offences by Magistrate. -

(1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence ' "

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed."

16. An offence punishable under the P. C. Act is triable by a Special Judge as provided by Section 3 in Chapter II of the P. C. Act. A Special Judge shall be a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. Section 5 of the P. C.Act provides that the Special Judge shall follow the procedure prescribed by the Cr.P.C., for a trial of warrant cases by the Magistrates. Therefore, once cognizance of offence is taken by the Special Judge under Section 190(1)(b), he is required to follow the procedure prescribed in Chapter XIX of Cr.P.C. Charges are framed under Section 240. If the accused does not plead guilty, evidence shall be recorded under Section 242. If the evidence disclosed complicity of ' some other person or persons- in the crime, the trial Court could exercise its power under Section 319.

17. In the case ofHardeep Singh (AIR 2014 SC 1400, Paras 68, 69 & 98) relied upon by the learned Senior Counsel for the petitioners, the Constitution Bench of the Hon'ble Supreme Court has held as follows:

"75. A similar view has been reiterated by this Court inRajendra Singh v. State of U.P. (AIR 2007 SC 2786), observing that the Court should not exercise the power under Section 319, Cr.P.C. on the basis of materials available in the charge sheet or the case diary, because such materials contained in the charge sheet or the case diary, do not constitute evidence. The word ' evidence' in Section 319, Cr.P.C. contemplates the evidence of the witnesses given in the Court.

76. Ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached. A bare perusal of Section 227, Cr.P.C. would show that the legislature has used the terms ' record of the case' and the ' documents submitted therewith" It is in this context that the word ' evidence' as appearing in Section 319, Cr.P.C. has to be read and understood. The material collected at the stage of investigation can at best be used for a limited purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict the statements of the witnesses recorded before the court. Therefore, for the exercise of power under Section 319, Cr.P.C., the use of word ' evidence' means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319, Cr.P.C.

X X X

105. Power under Section 319, Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and

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not in a casual and cavalier manner." (Emphasis supplied) 18. It is relevant to note that the application filed by the complainant was to take cognizance ' against- the petitioners. The learned Trial Judge takes cognizance of an offence and not qua an accused. Admittedly, learned trial Judge had already taken cognizance of offences and framed charges against V. J. Alphonsus. Hence, the impugned order, where under, the learned trial Judge has taken cognizance under Section 190(1)(b), Cr.P.C. for the second time after framing of charges, is impermissible in law and therefore unsustainable. 19. So far as maintainability of application by the complainant is concerned, in the light of the authority in the case ofR. N. Agarwal (2014 AIR SCW 6134), relied upon by the learned Counsel for the Lokayukta, it is to be held that the instant application was maintainable at the instance of the complainant. 20. In the circumstances, in my considered view, these two petitions merit consideration and deserve to be allowed. 21. Resultantly, these revision petitions are allowed. The order dated 7.9.2016, passed by the III Addl. Sessions and Special Judge at Mysuru, in Special Case No. 13/2013 is set aside. Petitions allowed.
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