Amar and Others vs Vijaya Kumar and Others

K.N. Phaneendra, J.—1. The petitioners have come up before this Court seeking quashing of C.C. No. 2600/2015 on the file of Principal Civil Judge and JMFC-II, Bidar arising from a private complaint No. 138/2014, wherein the learned Magistrate has taken cognizance and issued summons to the petitioners to appear before him, vide his orders dated 14.12.2015 for the offences under sections 302, 120-B R/w S. 149 of Indian Penal Code.

The records disclose that, earlier the report was made to the police by the complainant in respect of the same offences in Crime No. 109/2013 and the police have registered that case for an offence under section 302 of Indian Penal Code against one accused by name Ravi S/o Nagshetty. The police after thorough investigation have submitted the charge-sheet against the said person and the learned Magistrate has taken cognizance in C.C. No. 1307/2013. Thereafter the learned Magistrate has committed the case to the Court of Session and a case is registered in Sessions Case No. 157/2013 on the file of Principal Sessions Judge, Bidar.

When the charge-sheet being filed before the learned JMFC, it appears defacto complainant in Crime No. 109/2013 by name Vijayakumar S/o Sangramappa (Respondent No. 1 herein) has received some information that apart from the accused cited in Crime No. 109/2013, there are other accused persons (petitioners herein and three others) were also involved in commission of said offence. Therefore, he approached the police to bring them also on record vide representation dated 28.08.2013, marking a copy to the Inspector General of Police. As the police did not take any action, the said defacto complainant Vijayakumar approached this Court by way of Writ Petition in No. 103257/2013 (GM-POLICE). This Court considering all the materials on record made an observation that the charge-sheet has already filed by the police in C.C. No. 1307/2013 on the file of JMFC Bidar. If the petitioner is aggrieved by the such charge-sheet on the ground that all the culprits have not been brought into case by the police, he can take recourse under section 200 of Code of Criminal Procedure, which is effacious remedy available to the said person and approaching the High Court is without any merit. Therefore, the said Writ Petition came to be rejected.

Being prompted by the said order passed by this Court in the Writ Petition, it appears the respondent No. 1 has approached the learned JMFC Bidar by way of a private complaint registered in P.C. No. 138/2014 and the learned Magistrate after recording the sworn statements and after completion of other formalities, ordered to register a case in C.C. No. 2600/2015 and ordered to issue summons to the petitioners to appear before him in order to commit the case to the Sessions Court. At this juncture it appears, the petitioners are before this Court seeking quashing of said private complaint and all further proceedings to be taken in pursuance of such private complaint.

During the pendency of the private complaint, before the jurisdictional Magistrate in the above said C.C. No. 2600/2015, it appears on the basis of police report and the committal proceedings in the earlier proceedings which culminated in Sessions Case No. 157/2013, the learned Principal District and Sessions Judge has proceeded to frame charges and recorded the evidence of witnesses. As could be seen from the records, the learned Sessions Judge has recorded the evidence of as many as 48 witnesses. It is relevant to note here the complainant in the private complaint was also examined as PW 45. On careful perusal of the evidence of complainant PW 45, in fact in the examination in chief, he has categorically reiterated what he has stated in the private complaint bringing it to the knowledge of the Court the names of petitioner Nos. 1, 6, 9 to 11 and also three other persons and stated that they all committed the crime and efforts made by him to bring them to the jurisdiction of the Court.

The above said proceedings make it abundantly clear that the matter is now ceased of by the learned Sessions Judge who has recorded the evidence of PW 45 and it is brought to the notice of the Court, the contents of the private complaint filed by the lst respondent. The Learned counsel for the petitioner strenuously contends that instead of cumbersome proceedings of securing the accused persons by the learned Magistrate and taking cognizance afresh and also follow committal proceedings afresh against these petitioners, the respondent may be given liberty to make necessary application before the Sessions Court under section 319 of Code of Criminal Procedure, so that he can urge the same facts whatever he has urged before the learned JMFC in the private complaint before the Sessions Judge seek for appropriate order, so that it can avoid all the cumbersome proceedings of committal by the learned Magistrate.

Learned counsel Sri Pinto appearing for the respondents though at the initial stages was reluctant to accept the said arguments of learned counsel for the petitioners, but he contends that if such opportunity is given to the Respondents to make necessary application under section 319 of Code of Criminal Procedure and argue before the Sessions Court and if such directions are issued to the learned Sessions Judge to pass appropriate orders, after hearing the necessary parties, in such eventuality the grievance of the complainant is secured and in single proceedings, the entire conflict between the parties can be thrashed out.

It is evident from the records that only after registration of the criminal case, the complainant came to know about the involvement of the petitioners and others in the case. He has made all his efforts to bring them on record by making necessary application before the police and also by filing private complaint before the jurisdictional Magistrate. Whenever the Court comes to know about the involvement of any other person other than the person who has been charge-sheeted, then it is bounden duty of the Court to proceed against such person or persons also even without there being any application by any person. That is the wide power provided under section 319 of Code of Criminal Procedure. Be that as may be. In this particular case, the Respondent No. 1 is inclined to make necessary application before the Sessions Court instead of proceeding with the private complaint before the jurisdictional Magistrate. Section 319, in fact reads in the following manner;

"319. Power to proceed against other persons appearing to be guilty of offence.--(1) 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.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

Sub-section (1) to Section 319 discloses that in the course of any inquiry into or trial of any offence from the evidence it appears that any person not being the accused has also committed any offence, then such person also shall be get tried together with other accused persons. The Court may proceed against such person for the offence which he appears to have committed. If such person is not attending the Court or before the Court already, the said person may be secured by issuance of summons or by any coercive steps. If the Court summons any other person other than the accused, the entire proceedings have to be started afresh so far as it relates to newly added accused persons are concerned, by considering the whether there are any materials available to proceed against them by framing charges. Thereafter the Court has to provide an opportunity for further cross examination of witnesses already examined and re-examine etc and thereafter the Court can proceed to dispose of the whole matter in nutshell.

With such efficacious remedy available before the same Court, as rightly contended by the learned counsel for the petitioners the continuation of private complaint may amount to abuse of process of the Court and it may cause loss of time. In the event the complainant making any application under section 319 of Code of Criminal Procedure, it would definitely expedite the proceedings before the Sessions Court and the Sessions Judge as well dispose of the entire case against all the accused. Under the above said circumstances I feel it is just and necessary to quash the private complaint pending before the learned JMFC Bidar by providing opportunity to the complainant who is examined as PW 45 before the learned Sessions Judge, Bidar, to make necessary application under section 319 of Code of Criminal Procedure before the learned Sessions Judge. With these observations, I pass the following:

ORDER

The petition is allowed. The private complaint filed by the 1st Respondent before the Principal JMFC at Bidar in C.C. No. 2600/2015 (P.C. No. 138/2014) and all further proceedings therein is hereby quashed.

The 1st Respondent is at liberty to make necessary application before learned Principal Sessions Judge, Bidar under section 319 of Code of Criminal Procedure and he is also at liberty to file necessary application to secure the records which are annexed to his private complaint before the learned Principal JMFC, Bidar to be brought before the learned Principal Sessions Judge, Bidar for further proceedings, if necessary.

Learned Sessions Judge is directed to provide opportunity to the learned public prosecutor and the lst Respondent to submit arguments on the said application and thereafter pass appropriate orders in accordance with law.