Sri. Sunil Bose vs The State Of Karnataka

Section 109 of Indian Penal Code (for short 'IPC') r/w

Section 7 & 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.RP.No.313/2017;

Shri C.H. Jadhav, learned Senior Counsel for the

petitioner in Crl.RP.No.1206/2016, Shri Venkatesh S. -4-

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.

-5- 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-

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 -7-

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 of Hardeep Singh vs. State of Punjab and others

reported in (2014) 3 SCC 92.

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 -8-

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 of Shiv Kumar vs. 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 -9-

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 vs. State of Bihar);

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

c) (2015) 1 SCC 48 (R.N.Agarwal vs. 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

- 10 -

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

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

- 11 -

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

- 12 -

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 of Hardeep Singh 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 in Rajendra Singh v. State of U.P., observing that the court should not exercise the power under Section 319 CrPC 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 CrPC 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 CrPC would show that the legislature has used the terms "record of the case" and the "documents submitted

- 13 -

therewith". It is in this context that the word "evidence" as appearing in Section 319 CrPC 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 CrPC, 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 CrPC.

XXX

105. Power under Section 319 CrPC 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 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

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Judge had already taken cognizance of offences and

framed charges against V.J.Alphonsus. Hence, the

impugned order, whereunder, 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 of R.N.Agarwal, 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

- 15 -

Addl. Sessions and Special Judge at Mysuru, in

Special Case No.13/2013 is set aside.

Sd/-

JUDGE

Yn.