NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1964 OF 2010 (Arising out of S.L.P. (Criminal) No.4128 of 2010)

Bangarayya                                                ….Appellant

Versus

State of Karnataka & Ors.                          ….Respondents

JUDGMENT

AFTAB ALAM, J.  

1. Heard counsel for the parties.  

2. Leave granted.

3. On a report filed by the appellant on September 1, 2002, a case was  

registered against  17 persons named as accused in the report.  The police  

after  investigation,  submitted  charge  sheet  under  sections  143,  147,  451,  

323, 427, 504, 506 read with section 149 of the Penal Code against all the  

accused named in the FIR, excepting accused nos. 2, 3 & 6. The learned  

magistrate proceeded with the trial summoning only those accused against  

whom  the  charge  sheet  was  submitted.  During  the  trial,  prosecution  

witnesses  1  &  2  (examined  on  August  24,  2007  and  February  2,  2008  

respectively) in their deposition narrated the occurrence in detail and also

named accused nos.2, 3 & 6 (respondent nos.2-4 herein), against whom the  

police  had  not  submitted  the  charge  sheet,  among  the  offenders.  The  

prosecution then filed a petition under section 319 of the Code of Criminal  

Procedure (hereinafter  ‘the Code’) for summoning those three accused as  

well for facing trial. The magistrate by a brief order passed on August 18,  

2009, rejected the application. He took the view that the two witnesses were  

related to the complainant and no independent witness had till  then been  

examined before him. He further observed that it was an old case in which  

the accused had been appearing in court from 2003. Summoning of the three  

more accused would further  delay the matter.  Some of the accused were  

“teachers and well known persons” and they would suffer due to the delay  

caused by summoning the additional accused.

4. Against  the  judgment  and  order  passed  by  the  magistrate,  the  

appellant  filed  an  application  under  section  482 of  the  Code  which  was  

rejected by the High Court by order dated December 15, 2009. The High  

Court declined to interfere in the matter because the petition for summoning  

the three respondents as accused was made after long delay.

5. We are unable to see where was the delay. As noted above, the two  

prosecution witnesses were examined on August 24, 2007 and February 2,  

2008 respectively and the petition under section 319 of the Code was filed  

2

on March 6, 2008, i.e. a month and four days after the second witness was  

examined. In those facts it is quite unreasonable to hold that the application  

was made after long delay and was, therefore, liable to be rejected.

6. The reason assigned by the trial court is equally untenable. The two  

witnesses being related to the complainant or the accused already before the  

court, being “teachers and well known persons” can be no ground to reject  

the  petition  under  section  319  of  the  Code  for  summoning  some  other  

persons as well for facing the trial.  

7. We are, therefore, constrained to interfere in the matter.  The orders  

passed by the High Court and the magistrate are set aside and the matter is  

remitted to the magistrate to consider the petition under section 319 of the  

Code afresh and pass an appropriate order on it, in accordance with law.

8. In the result the appeal is allowed but with no order as to costs.

……………………………..J (AFTAB ALAM)  

………………………………J (R.M. LODHA)   

New Delhi, October  8, 2010

3