The main legal point established is that prior notice and an opportunity to be heard are essential before summoning a person as an additional accused under Section 319 of the Cr.P.C., and stronger evidence is required to support such action.

Heard the learned counsel for the petitioners, Mr.Hasmath Pasha and Mr.Rachaiah, learned HCGP representing the State,.

2. The present petition is filed under Section 397, Cr.P.C. by the petitioners who are arrayed as additional accused nos.3 to 6 in a criminal case in S.C.2/13. The respondent police have filed charge sheet against accused nos.1 and 2 for the offences punishable under Sections 498A, 304B read with Section 34, I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act, 1961. These petitioners had been shown as accused in the first information and after conclusion of investigation, they were not sent up for trial by the I.O. in the charge sheet filed.

3. Case came to be committed to the sessions court after submission of charge sheet against accused nos.1 and 2 for the above offences. The examination in chief of CW1, Venkatesh is recorded and he is examined as PW 1. On the basis of his examination-in-chief, the learned public prosecutor chose to file an application in terms of Section 319, Cr.P.C. seeking permission to array these petitioners as additional accused.

4. The learned sessions judge has allowed the same and issued summons to these petitioners to appear before him to trial for the above offences. It is this order which is called in question in this petition on various grounds as set out in the memorandum of revision petition.

5. Mr. Hasmath Pasha would contend that whenever an application is filed under Section 319, Cr.P.C. to array any person as an accused, prior notice is to be issued calling upon him/her to show cause why he/she should not be made and accused. Only after hearing him/her an order can be passed to that effect. It is argued that without issuing prior notice, the court is not justified in issuing summons against these petitioners to be roped in as accused.

6. Placing reliance on the decision of the Hon’ble apex court the case of JOGENDRA YADAV & OTHERS .v. STATE OF BIHAR (AIR 2015 SC 2951), he has argued that when a person is added as an accused under Section 319, Cr.P.C., he is necessarily to be heard before being so added and Often he gets a further hearing if he challenges the order before the High Court.

7. Mr.Rachaiah, learned HCGP has relied up on a twoJudge Bench decision of the Hon’ble apex court in the case of HARDEEP SINGH .v. STATE OF PUNJAB & OTHERS ([2009] 16 SCC 785). He has argued that before issuing summons or process, the criminal court is expected to see as to whether there is a prima facie case against the person sought to be summoned or against whom process is sought to be issued at that stage. It is argued that at the stage of issuing summons or process, the court has to see whether there is a prima facie case against the person sought to be summoned or against whom process is sought to be issued, and at that stage, no question of giving an opportunity of hearing such person arises, as the entire scheme of the Code of Criminal Procedure does not provide for an accused to come into the picture at all till process is issued. He has relied on an earlier decision in the case of NAGAWWA .v. VEERANNA ([1975] 3 SCC 736) referred to and relied upon by the Hon’ble apex court in the case of HARDEEP SINGH (supra).

8. After hearing the learned counsel for the parties and perusing the records, the only point that arises for the consideration of this court is:

Whether the trial court is justified in summoning the petitioners as accused in terms of Section 319, Cr.P.C. without giving them an opportunity of being heard?

REASONS

9. Mr.Hasmath Pasha has relied on the decision in the case of JOGENDRA YADAV (supra) rendered by a Bench consisting of two Hon’ble Judges. The Constitutional Bench of the Hon’ble apex court, in the case of HARDEEP SINGH .v. STATE OF PUNJAB & OTHERS ([2014] 3 SCC 92) has also relied on the case of JOGENDRA YADAV. As per the facts in the case of JOGENDRA YADAV, four persons had been added as accused in terms of Section 319, Cr.P.C. in a criminal case in S