IRFAN Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The present petitioners are included as accused Nos.37 and 38 in the respondent-Police Station Crime No.143/2016, which has ultimately culminated into Sessions Case No.82/2018, pending in the Court of learned Prl.District and Sessions Court, Vijayapura, (hereinafter for brevity referred to as 'trial Court') for the offences punishable under Section 370 of Indian Penal Code and Sections 14 , 14(a) and 14(c) of Foreigners Amendment Act, 2004 and Section 12(1)(c) of Passport Act, 1967.

(2.) The undisputed fact is that originally present two petitioners were shown as accused Nos.34 and 35 in the FIR in the same crime number of respondent- Police Station for the same alleged offences. However, the Investigating Officer while filing the charge sheet, has dropped the present petitioners as accused Nos.34 and 35 and confined filing of the charge sheet as against the remaining accused. It appears, subsequently accused No.36 was added. The learned counsel for the petitioners submitted that accused Nos.1 to 33 pleaded guilty and obtained suitable order getting set off of the duration they have undergone in the judicial custody as the term of sentence of imprisonment for the guilt pleaded by them. However, the trial against the remaining accused No.36 was continued. It appears that, during the course of the trial, after noticing that certain incriminating materials are said to have been available against the present petitioners, the prosecution/State filed their application under Section 319 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as ' Cr.P.C .'), seeking impleading these two petitioners as accused Nos.37 and 38 in the pending Sessions Case No.82/2018 in the Court below. The said Court by its impugned order dated 26.7.2019, allowed the said application and the present petitioners were permitted to be included by the State showing them as accused Nos.37 and 38. The summons was ordered against them. Challenging the said order, the petitioners are before this Court.

(3.) Learned counsel for the petitioners in his argument canvassed only one point that before considering the application under Section 319 of Cr.P.C., the Court below ought to have issued notice to the present petitioners and only after hearing them, the trial Court ought to have disposed of the said application filed under Section 319 of Cr.P.C. In the absence of giving any notice to them and without hearing the present petitioners/proposed accused, the trial Court has passed the impugned order, as such, the same is not sustainable. In his support, he relied upon two unreported judgments of Co-ordinate Benches of this Court in Smt.Asha and others vs. State of Karnataka, Criminal Revision Petition No.231/2016, decided on 30.3.2016, and in Sri M.Basappa and others vs. State by Birur Police Station, Criminal Petition No.380/2027, decided on 4.12.2017. In both the above judgments, the Co-ordinate Benches of this Court after relying upon few judgments of Hon'ble Apex Court, have observed that before considering the application under Section 319 of Cr.P.C., the Court is required to issue notice to the proposed accused whose inclusion in the case as an accused is sought by the applicant. According to the petitioners in the instant case, the trial Court before passing the impugned order has not issued any notice to them, as such, they did not appear and contest the application. Learned High Court Government Pleader fairly concedes that no such notice was ordered by the Court below.