(Prayer: This criminal revision petition is filed under Section 397 r/w 401 of Cr.P.C., praying to set aside the order passed by the court of Prl.S.J., Kodagu- Madikeri in S.C.No.89/2015 dated 06.09.2016 duly dismissing the application of the respondent U/s 319 of Cr.P.C.)
1. This revision petition is filed by the proposed additional accused Nos.2 and 3 of S.C.No.89/2015 now pending on the file of the Principal Sessions Judge, Kodagu-Madikeri.
2. The accused No.1/Chengappa is the husband of first petitioner and father of second petitioner. He is charge sheeted for the offences under Sections 324, 326 and 307 of IPC.
3. Facts relevant for the purpose of adjudication of this revision petition is, on framing charges by the trial court, the prosecution entered into trial. Witnesses PWs-1 and 2 were examined in chief; at the request of the defence counsel, matter was adjourned for their cross-examination. In the meantime, the prosecution moved an application under Section 319 of Cr.P.C. seeking the Court to take cognizance against wife (petitioner No.1) and daughter (petitioner No.2) of the accused No.1, in respect of offences under Section 324, 326, 307 r/w 34 of IPC on the basis of complaint averments and also the evidence of PW-1 and PW-2.
4. The learned Sessions Judge after giving audience to both parties has allowed the petition and ordered summons to the petitioners herein.
5. Smt.Leela P.Devadiga, learned Counsel appearing for the petitioners on behalf of Sri.A.K.Subbaiah, assailing the order of the Sessions Court submits that the court below erred in considering the examination-in-chief evidence of PWs. In fact, PW-1 had given additional complaint to the Police, by exonerating the petitioners. PW-2 in his statement recorded under Section 161 of Cr.P.C. had not implicated the petitioners herein and issuance of summons to the petitioners even before subjecting the witnesses to cross-examination is bad in law and liable to be set aside.
6. Learned HCGP placing reliance on the judgment of the Co-ordinate Bench of this Court in Crl.R.P.No.231/2016 dt.30.3.2016 (Smt.Asha and others -vs- State of Karnataka) submits that, it is permissible for the court, on being convinced from the evidence of the prosecution witnesses that there is sufficient material, to proceed against the additional witnesses and try them along with the main accused. There is no such requirement that the witnesses must be subjected to cross-examination before issue of summons. The court below has dealt in detail with the question of law on the point and in exercise of its jurisdiction under Section 319 of Cr.P.C. only has ordered summons.
7. In the light of the above submissions and on perusal of the records, it emerges that, there was specific allegation in the First Information Report that the petitioners herein/wife and daughter of first accused at the time of alleged incident dated 18.2.2016 were present at the spot; on being injured, the complainant screamed and his father while rushed towards him for his rescue, the proposed accused restrained him. First additional accused assaulted with a club on the back of his father. Both additional accused persons put threat of dire consequence to his father and retreated with the weapon.
8. The short question that would arise for consideration in this revision petition is, whether the order of the trial court in summoning the petitioners in terms of Section 319 of Cr.P.C. was justified?
9. The ground urged by the revision petitioners that the Court below was not justified in taking cognizance of the offence against the petitioners even before the prosecution witnesses were subjected to cross-examination, is without authority. In Hardeep Singh -vs- State of Punjab and others reported in [(2014) 3 SCC 92] while enumerating the extraordinary and discretionary power of the Court under Section 319 of Cr.P.C., the Apex Court observed thus:
"106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the Court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. ........"
10. What is eye soaring in the case is, before the learned Sessions Judge made his mind to issue summons to the petitioners in exercise of his jurisdiction under Section 319 of Cr.P.C., no opportunity was given to them. No notice calling upon them to show cause why they shall not be tried as accused persons in the same trial was issued to them.
11. The judgment of Co-ordinate Bench of this Court relied by the prosecution in Criminal Revision Petition No.231/2016 goes against the prosecution. In the light of the law laid down by the Apex Court in Jogendra Yadav and others -vs- State of Bihar reported in (AIR 2015 SC P.2951), it was held thus:
"15. Suffice to state that it is always incumbent upon criminal courts to issue prior notice to a person calling upon him or her to show cause as to why he/she should not be made an additional accused. Only on giving an opportunity of being heard, a suitable order should be passed. If the order is passed summoning a particular person in terms of Section 319, Cr.P.C. without giving prior notice, such an order would not withstand the legal scrutiny. Hence all criminal courts are expected to keep in mind this aspect of the matter as explained by the Hon'ble Apex Court in the case of JOGENDRA YADAV (supra)"
12. For the said reason only but not for issuing summons before recording the cross-examination of witnesses, the impugned order is liable to be set aside.
Accordingly, the revision petition is allowed. The order dated 6.9.2016 passed in S.C.No.89/2015 passed by the Court of Principal Sessions Judge, Kodagu-Madikeri, is set aside.
The matter is remanded to the trial court for fresh consideration only after the cross-examination of the vital witnesses i.e., complainant and the eye-witnesses.