THE ADDL. CIVIL JUDGE (JR.DN.) & JMFC, JAMKHANDI, IN C.C.NO.380/2010. : 2 : THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT, MADE THE FOLLOWING: ORDER This is petition is filed by petitioner, who said to have been arrayed as accused no.2 by the order dated 27.11.2013 passed by the JMFC Court at Jamakhandi.
2. Perusing the complaint in the case the copy of which is produced by the petitioner, criminal case was filed against accused No.1 on the allegations that on the alleged date i.e. on 12.01.2009 accused No.1 was transporting the country-liquor with the help of the vehicle and he tied the bag containing the country-liquor on the back side of the vehicle and as the complainant got the information about the same, they came and they were waiting at Linganur cross and because of the said suspicion, they were searching the vehicles, which were passing through the said place. It is also mentioned in the complaint that at 07.40p.m. one person came from the side of Linganur towards the place, where the complainant and others were : 3 : waiting on his scoter and raising suspicion, the staff of the complainant stopped the said person and they noticed one white colour bag on the back side of the said scoter, when he was asked about what is there in the said bag, he told that there are liquor sachets and in the presence of the panch witnesses, they have seized the said sachets. There were 200 sachets containing the liquor kept in the white colour fertilizer bag and the registration number of the said scoter is also mentioned in the said mahazar and firstly the case was registered against accused No.1 for the said offences under Section 32, 34 and 38A of the Karnataka Excise Act. Then, after conducting the investigation, charge sheet was also filed against accused no.1 for the offence punishable under Sections 11, 12, 14, 32, 38A of the Karnataka Excise Act. Then the lower Court taken up the trial. When the evidence of the witnesses was completed, basing upon the evidence of P.W.7, the investigation officer, filed an application dated 16.11.2012 under 319 of the Cr.P.C for inclusion of petitioner herein in the said case as accused No.2. After considering the said : 4 : application, learned JMFC allowed the application and the petitioner herein is ordered to be added as accused No.2 in the said case and summons was ordered to petitioner- accused No.2. Being aggrieved by the same, the petitioner accused No.2 is before this Court in this criminal petition.
3. Heard the arguments of the learned counsel appearing for the petitioner-accused No.2, so also the learned High Court Government Pleader for the respondent-State.
4. Learned counsel made the submission that there was no material in support of the application filed under Section 319 of Cr.P.C. to array the present petitioner as accused No.2. Counsel further made the submission that prosecution papers are clear that it is only accused No.1, who alleged to have committed the offence of transporting country-liquor on his scooter. Counsel submitted that during the course of the trial as it was transpired that the vehicle on which accused No.1 was transporting the liquor belongs to petitioner herein. On : 5 : that basis the application was moved before the Court, alleging that petitioner has also involved in committing the alleged offence. Counsel submitted that the Trial Court has not appreciated the fact that after detailed investigation conducted by the police only accused No.1 was sent up for trial and not the present petitioner. Counsel also submitted that, even looking to the oral evidence of P.W.7 the investigation officer, it will not make out the case to array the present petitioner as accused No.2. Hence, he submitted that the order passed by the JMFC Court allowing the application and issuing summons to the petitioner is patently illegal and it is not sustainable in law. Hence, he submitted that the order, which is challenged in this petition, is to be set-aside by quashing the proceedings.
5. Per contra the learned HCGP made the submission that looking to the order of the JMFC Court it is mentioned in detail about how the present petitioner is also a necessary party and about his involvement in : 6 : committing the alleged offence. He submitted that, the vehicle, which was used by accused No.1, belongs to the present petitioner. This itself clearly goes to show the involvement of the present petitioner also in committing the alleged offence. He submitted that the order passed by the trial Court is legal and valid and there is no merit in this petition, hence, same is to be rejected.
6. I have perused the grounds urged in the petition and also the documents produced by the petitioner along with the petition, so also, the order of the JMFC Court and the deposition of P.W.7 the investigation officer. I have also perused the contents of the complaint. The complaint averments goes to show prima facie that the allegations are against accused No.1 only. But basing on the deposition of P.W.7, the application was moved by the prosecution and the learned JMFC by making wrong observation that there is material to show the involvement of the petitioner-accused No.2 also in the case, allowed the application. Looking to the oral evidence of P.W.7 also, it : 7 : is no doubt true in the examination-in-chief, he has stated about the vehicle, which is said to be of the ownership of the petitioner herein, as seen at page no.3 of the deposition. But looking to the cross-examination of this P.W.7, on page No.6 of the deposition, in paragraph No.2 he deposed that, when he has enquired the accused, he told before him that he himself is producing the country- liquor and he is taking it for purpose of sale. But he has mentioned in the next sentence that about the said fact he has not mentioned in his complaint. When he had the knowledge after enquiring accused No.1 that it is accused No.1 himself produced the country-liquor and he was taking it for the purpose of sale. Then why he has not mentioned about such material fact in his complaint, there is no any answer from the investigation officer. Therefore, only on the basis that the vehicle belongs to the petitioner- accused No.2 it cannot be inferred automatically that he know accused No.1 using the said vehicle for the purpose of transportation of the country-liquor and after having full knowledge he has given his vehicle to accused No.1. : 8 : Hence, to this extent there is no material by the prosecution and even looking to the evidence of P.W.7 also nowhere it is stated that the present petitioner/accused No.2 having a prior knowledge that in case if he gave his vehicle to accused No.1 he will use it for the transportation of country-liquor, even then he gave the vehicle to accused No.1. In the absence of such material it cannot be said that so far as the application filed under Section 319 of Cr.P.C. arraying the present petitioner accused No.2 is concerned, there is no prima facie case. Even making out a prima facie case is also not sufficient. Sofar as the application under Section 319 of the Cr.P.C. is concerned, the prosecution has to make out a case more than the prima facie case as observed by Their Lordships in the larger bench decision reported in AIR 2014 SC 1400 in the case of Hardeep Singh vs. State of Punjab & Ors. The learned counsel appearing for the petitioner-accused No.2 also relied upon another decision reported in (2009)
16 SCC 46 in the case of Sarabjit Singh and another : 9 : vs. State of Punjab and another and the relevant paragraphs are paragraph Nos.18,19,21 to 23.
7. Therefore, perusing the principles enunciated in those two decisions also, only on the basis that the present petitioner gave his vehicle to accused No.1 without placing the further details about his knowledge that it will be used for such illegal purpose, the contention of the prosecution cannot be accepted. This important legal aspect is not at all appreciated by the learned JMFC, who allowed the application only basing on the evidence of P.W.7 which is not sufficient to allow the said application.
8. Therefore, the order passed by the learned JMFC court is patently illegal and it is not sustainable in law. Hence, the revision petition is allowed the order dated 27.11.2012 passed by the Addl. Civil Judge (Jr.Dn.) and JMFC Jamakhandi in C.C.No.380/2010 arraying the petitioner as accused No.2 is hereby set-aside. Sd/- JUDGE RHR/-
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