ABDUL KAREEM Vs. THE STATE

JUDGEMENT

(1.) The petition is filed seeking quashing of the order dated 24.07.2014 passed by the learned Sessions Judge, Yadgiri, in Spl. Case (SC/ST Act) No.46/2013, issuing NBW against the present petitioner arraigning him as Accused No.5.

(2.) The records disclose that Hunasagi Police have registered a case against 23 accused persons, but at the time of filing of the charge sheet, the Police have implicated only 15 accused persons, wherein the name of Accused No.5 in the charge sheet is shown as Abdul son of Rajsab, aged about 32 years doing centering work, Muslim by caste, residing at Dyamanal village. Subsequently, it appears, the Deputy Superintendent of Police, Yadgiri, on 24.07.2014, made an application through the Public Prosecutor to permit him to substitute the name of the petitioner in the place of Accused No.5 in the charge sheet and for issue of warrant against the petitioner. On that application, the learned Sessions Judge has passed an order on the same day in the following manner -

(3.) It appears, before passing such an order, the learned Sessions Judge has not bestowed his attention to ascertain as to whether the person by name Abdul Kharim, son of Dastagirsab Talikoti was in any way involved in the offences alleged in the charge sheet. It is not merely by means of substituting the name of one person to that of the other accused already arraigned in the charge sheet is sufficient to take cognizance and issue summons or warrant against such person. It will have its own impact and far-reaching consequences on the right of liberty of a person. If a person who is nowhere involved in commission of any offence or connected to that particular case, is called upon before the Court to appear, it would definitely cause violation of his constitutional right of liberty. Therefore, the Court should be very careful before issuing any summons or warrants against any person and before doing so, it should clarify itself and be sure that such person's appearance is imperative before the Court to answer any of the charges against him. In this background, the order passed by the learned Sessions Judge does not depict that he has applied his judicious mind to the charge sheet papers in order to ascertain whether the name of Abdul Kareem, son of Dastagirsab Talikoti, the present petitioner, can be incorporated in the charge sheet or he can be called upon to the Court to answer any of the charges. If the name of that person is substituted as Accused No.5, it virtually amounts to taking of cognizance against him. Therefore, at the time of taking cognizance pertaining to any offence against the accused, the Court should apply its mind to ascertain whether the allegations made in the charge sheet papers are sufficient to constitute any of the offences alleged against such person or not, before calling upon such person to appear before the Court. Such an exercise has not been done in this particular case. Therefore, the order dated 24.07.2014 passed by the learned Sessions Judge in the said case is very cryptic one as it is not based on any reasons.