Case Note & Summary
The petitioners, who were originally named in the FIR but left out in the charge sheet, challenged the order of the II Additional Senior Civil Judge and JMFC, Bidar dated 19.01.2019 in C.C.No.253/2012, which allowed an application under Section 319 Cr.P.C. filed by the prosecution to add them as accused. The case arose from a complaint by Siddramappa Nagashetty Patil on 23.03.2012, leading to FIR No.58/2012 for offences under Sections 143, 147, 323, 504, 506 read with Section 149 IPC against eight persons, including the petitioners. After investigation, the police filed a charge sheet against only five accused, leaving out the petitioners. During trial, the complainant was examined as PW.1 on 02.07.2018, and in his examination-in-chief he stated that the petitioners had also assaulted him. Before cross-examination, the prosecution sought adjournment to file an application under Section 319 Cr.P.C., which was allowed by the Magistrate. The petitioners argued that the Magistrate acted mechanically without considering that the charge sheet had not named them, and that the examination-in-chief alone, without cross-examination, could not be the basis for summoning them. The High Court agreed, holding that the power under Section 319 Cr.P.C. must be exercised with caution and only if the evidence gives rise to a strong suspicion. The court found that the Magistrate did not apply his mind and passed the order in a mechanical manner. Consequently, the writ petition was allowed, and the impugned order was quashed.
Headnote
A) Criminal Procedure Code - Summoning of Additional Accused - Section 319 Cr.P.C. - Power to summon additional accused must be exercised only if evidence during trial gives rise to strong suspicion that the person has committed the offence - The court held that the Magistrate cannot summon the petitioners solely on the basis of examination-in-chief of PW.1 without cross-examination and without considering the charge sheet which had left them out - Held that the order was passed mechanically and without application of mind (Paras 5-7).
Issue of Consideration
Whether the order passed by the learned Magistrate under Section 319 Cr.P.C. summoning the petitioners as accused in the case is sustainable in law.
Final Decision
The writ petition is allowed. The order dated 19.01.2019 passed by the II Additional Senior Civil Judge and JMFC, Bidar in C.C.No.253/2012 is quashed.
Law Points
- Section 319 Cr.P.C. requires satisfaction that evidence during trial indicates involvement of person not yet accused
- power to summon must be exercised with caution
- examination-in-chief alone without cross-examination is insufficient to invoke Section 319 Cr.P.C.
Case Details
2021 LawText (KAR) (01) 9
Writ Petition No.202411/2019 (GM-RES)
Sri Jairaj K.Bukka, Sri Mohd. Vikharuddin, Sri Mallikarjun Sahukar, Sri Ravi B.Patil
Baswaraj S/o Bandeappa Humnabade, Jagannath S/o Basappa Police Patil, Shivaraj S/o Sidramappa Police Patil
State of Karnataka, Sidramappa S/o Nagshetty Patil
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Nature of Litigation
Writ petition under Articles 226 and 227 of Constitution of India read with Section 482 Cr.P.C. challenging order summoning petitioners as accused under Section 319 Cr.P.C.
Remedy Sought
Petitioners sought quashing of order dated 19.01.2019 passed by II Addl. Senior Civil Judge and JMFC, Bidar in C.C.No.253/2012 allowing application under Section 319 Cr.P.C. and issuing summons to them.
Filing Reason
Petitioners were named in FIR but left out in charge sheet; during trial, complainant in examination-in-chief implicated them, leading to application under Section 319 Cr.P.C. which was allowed.
Previous Decisions
The trial court allowed the application under Section 319 Cr.P.C. on 19.01.2019, against which the petitioners filed the present writ petition.
Issues
Whether the order passed by the learned Magistrate under Section 319 Cr.P.C. summoning the petitioners as accused in the case is sustainable in law.
Submissions/Arguments
Petitioners argued that the Magistrate acted mechanically without applying his mind, as the charge sheet had not named them and the examination-in-chief alone without cross-examination could not be the basis for summoning.
Respondent State supported the order, but the court found no merit in the order.
Ratio Decidendi
The power under Section 319 Cr.P.C. to summon additional accused must be exercised with caution and only if the evidence during trial gives rise to a strong suspicion that the person has committed the offence. The Magistrate cannot pass such order mechanically based solely on examination-in-chief without cross-examination and without considering the charge sheet.
Judgment Excerpts
The learned Magistrate has not at all applied his mind to the facts of the case and has mechanically allowed the application filed under Section 319 of Cr.P.C.
The order impugned is therefore liable to be quashed.
Procedural History
FIR registered on 23.03.2012; charge sheet filed against five accused leaving out petitioners; trial commenced; complainant examined as PW.1 on 02.07.2018; prosecution filed application under Section 319 Cr.P.C. on same day; Magistrate allowed application on 19.01.2019; petitioners filed writ petition on 27.01.2021.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 319, 482
- Indian Penal Code, 1860 (IPC): 143, 147, 323, 504, 506, 149
- Constitution of India: 226, 227
