Karnataka High Court
State Of Karnataka vs Ravi Govindan Nadar on 12 December, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 12TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRL.R.P.NO.100151 OF 2017
BETWEEN:
STATE OF KARNATAKA
REPRES ENTED BY
CAMP POLICE STA TION,
BELAGAVI , THROUGH
ADDL. STATE PUBLIC PROSECUTOR,
O/O THE ADV OCAT E GENERAL,
HIGH COURT OF K ARNATAKA,
DHARWAD.
... PETITIONER
(BY SRI.V .M.BANK AR, ADD L.S PP.)
AND
1. RAVI GOVINDAN N ADAR,
AGE : 23, R/ O.S HI VAKASI,
TAL : SATTURA , D IST : KAMARAJ NA GAR,
TAMIL NADU STAT E.
2. PANDI MUTTU NAD AR,
AGE: 27 YEARS ,
R/O. SHIVAKASI, NARAYANA PURAV ANA,
TAMIL NADU STAT E.
3. MAHENDRAN PAND I,
AGE : 30 YEARS,
R/O.SHIVAKASI ,
ANNAPORAMAKAY,
TAMIL NADU STAT E.
2
4. RAVI RAMAN NADA R,
AGE : 22 YEARS,
R/O.PALGAD DIST ,
KERALA STATE.
... RES PONDENTS
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C.,
PRAYING TO CALL FOR THE RECORDS OF THE TRIAL
COURT AND SET ASIDE THE ORDER PASSED BY THE X
ADDL. DISTRICT AND SESSIONS JUDGE, BELA GAVI I N
S.C. NO. 239 OF 2006 DATED 14.10.2015 BY
ALLOWING THIS CRIMINAL REVISI ON PETITION AN D
TO DIRECT THE COURT BELOW TO RE-OPEN THE CAS E
AND PROCEED W ITH THE MATTER IN ACCORDANCE
WITH LAW .
THIS REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The State is in revision challenging the order passed by the X Additional District and Sessions Judge, Belagavi in Sessions Case No.239 of 2006 dated 14.10.2015, whereby the learned Sessions Judge closed the case against the respondents/accused, against whom a split-up charge sheet was filed alleging offences 3 punishable under Sections 489-A, 489-B, 489-C read with Section 120-B of IPC.
2. Brief facts leading to the filing of present revision petition is that a split up case in S.C. No.239/2006 on the file of Court of Sessions Judge, Belgaum arising out of the main S.C. No.171/1996 was filed against the accused respondents arraigned as accused Nos.2, 4, 5 and 7 in respect of the offences punishable under Sections 489-A, 489-B, 489-C, 489-D and 489-E read with Section 120-B of I.P.C. Since the said accused were absconding, NBW came to be issued on several occasions and inspite of sufficient time granted to secure their presence and since they were not secured, proclamation and attachment warrants as per Sections 82 and 83 of Cr.P.C. came to be ordered. The proclamation issued under Section 82 of Cr.P.C. was duly published. Fresh attachment warrant also came to be issued 4 against the respondents. Fresh proclamation under Section 82 of Cr.P.C. and warrant under Section 83 of Cr.P.C. to attach the movables of the accused was also ordered and the proclamation was duly published. However, inspite of taking such coercive steps there was no progress in the case.
3. The learned Sessions Judge after considering that the case is still pending at the stage of proclamation and that in main S.C. No.171/1996 the accused therein were already acquitted by judgment dated 19.08.2015, proceeded to pass an order closing the case against accused respondents herein relying on the decisions rendered by this Court in the case of Mohammed Ilias v. State of Karnataka reported in 2001 (3) Kar.L.J. 551, and Devaraju v. State of Karnataka reported in 2011(1) KCCR 646. 5
4. The learned Additional S.P.P. appearing for the petitioner/State, Sri V. M. Banakar contended that the learned Additional Sessions Judge has committed a grave error in closing the case without giving opportunity to the prosecution to lead evidence under Section 299 of Cr.P.C. after completion of the procedure under Sections 82 and 83 of Cr.P.C. He submits that the impugned order is passed without following the due procedure contemplated under Chapter-IV of The Karnataka Criminal Rules of Practice, 1968 and without assigning any reasons the trial Court has abruptly closed the case which is erroneous and not sustainable in law and accordingly he seeks to allow the petition.
5. The perusal of the impugned order passed by the learned Additional Sessions Judge goes to show that the same was passed relying on two decisions of this Court, as noted supra. The 6 learned Sessions Judge after relying on the aforestated decisions observed that even if the accused are brought before the Court, the Court has to rely upon the same evidence recorded in the main case and even if the accused are secured the Court has to pronounce the judgment of acquittal.
6. It is relevant to see that this Court in the case of Mohammed Ilias (supra) while considering the case of an absconding accused held that since evidence against all accused persons is common, indivisible and inseparable, absconder who has been brought to trial after acquittal of co-accused cannot also be convicted on the basis of same evidence and hence quashed the proceedings.
7. In the case of Devaraju v. State of Karnataka (supra) in similar circumstances after 7 considering that the proceeding against the petitioner therein shall serve no useful purpose as the material witnesses for the prosecution had turned hostile, quashed the proceedings.
8. The learned Sessions Judge has failed to see that this Court while exercising its inherent power under Section 482 of Cr.P.C. in a petition filed by the accused under Section 482 of Cr.P.C. quashed the proceedings against the absconding accused. There is no provision as such in the Code of Criminal Procedure in respect of a Sessions trial to close the case against an absconding accused. The learned Sessions Judge has no power to close a criminal case against an absconding accused.
9. The Chapter-IV of Karnataka Criminal Rules of Practice deals with the cases of 8 absconding accused. Rules 1 to 5 of Chapter-IV is extracted hereunder :
"CHAPTER IV Cases of Absconding Accused
1. When process has been issued for the attendance of the accused, but the case has remained pending for a period of six months owing to the non-appearance of the accused and the Magistrate is satisfied that the presence of such accused cannot be secured within a reasonable time or when the accused person found to be of unsound mind is released under Section 466(1) or detained in safe custody under Section 466(2) of the Code, the Magistrate shall report the case for the orders of the Sessions Judge, who may, if he thinks fit, order that the name of such accused shall be removed from the Register of Criminal Cases (Register No.III). The case shall then be entered in the Register of Long Pending Cases (Register No.XIII), to be maintained by all Magistrates.
Provided that, before making such a report to the Sessions Judge, the Magistrate shall have complied with the requirements of Sections 87 and 88 of the Code and, whenever practicable, the provisions of Section 512.
CASE LAW Rule 1, Chapter IV - Where an absconding accused against whom evidence has been recorded under Section 512 is not produced, magistrate must enter it in the list of long pending cases - 1972(1) Mys.L.J.573.
2. When there are several accused persons in a case and only some of them have appeared or have been produced before the Court or some 9 of the accused have remained absent or having appeared or having been produced, remain absent at subsequent stages, if the Magistrate is satisfied that the presence of those accused cannot be secured within a reasonable time, he shall proceed with the case as against such of the accused as are present and dispose it of according to law. As regards the other accused, he shall give the case a new number and enter it in the Register of Criminal Cases (Register No.III) and, if it remains pending for six months or more and efforts to secure the presence of the accused have failed and the case against the accused who have appeared has been disposed of, the Magistrate shall report to the Sessions Judge, who may direct that the case against the absentee accused be removed to the Register of Long Pending Cases (Register No.XIII):
Provided that, before making such a report to the Sessions Judge, the Magistrate shall have complied with the requirements of Sections 87 and 88 of the Code and, whenever practicable, the provisions of Section 512.
3. (1) Before directing the transfer of a case, other than a case dealt with under Sections 466(1) and 466(2) of the Code, to the Register of Long Pending Cases (Register No.XIII) the Sessions Judge shall satisfy himself that all reasonable steps have been taken to follow the procedure prescribed under Sections 87 and 88 and also, when practicable, that the provisions of Section 512 of the Code have been complied with.
(2) Every Sessions Judge shall furnish to the High Court a list of cases directed by him to be transferred to the Register of Long Pending Cases (Register No. XIII) during each quarter. Such list shall be submitted in the first half of the month succeeding the quarter.
10
4. If subsequently, the absentee accused or any of them are produced or appear before the Magistrate, or the accused who was insane ceases to be insane, the case against them shall be registered under a new number and proceeded with in accordance with law.
5. If an accused person before the Court of Session has been released under Section 466(1) or detained in safe custody under Section 466(2) of the Code and the case has not been proceeded with for six months and there is no reasonable prospect of the trial of the accused being resumed within six months after the date of the order on account of the accused not being traced or not being capable or undergoing trial on account of his continued insanity, the Court may, with the previous approval of the High Court, transfer the case to the Register of Long Pending Cases (Register No.XIII):
Provided that, in the case of absconding accused, action shall have been taken under Sections 87 and 88 of the Code and to enforce the bond of the surety, if any, and, whenever practicable, under Section 512 thereof."
10. This Court in the case of State of Karnataka v. Lambadi Chandranaik reported in 1996(2) Kar.L.J. 157 while dealing with a case of an absconding accused in a warrant case before the Magistrate held that when there is specific procedure prescribed in Karnataka Criminal Rules of Practice for such cases, they cannot be ignored.11
11. Even though the present case pertains to Sessions trial, the Sessions Court is bound to follow the procedure as contemplated under the Karnataka Criminal Rules of Practice.
12. It is also relevant to quote Section 299 of Cr.P.C. which reads as under :
"299. Record of evidence in absence of accu sed. (1) If it is proved that an accuse d person has absco nded, and that there is no imme diate prospect of arresting him, the Court competent to try or commit fo r trial such perso n for the offence co mplaine d of may, in his absence , examine the witne sses ( if any) pro duced on behalf of the pro secutio n, and reco rd the ir depositio ns and any such de positio n may, on the arrest o f such person, be given in evide nce against him o n the inquiry into, or trial for, the offence with which he is charged, if the depone nt is dead or incapable o f giving evidence or cannot be found or his presence cannot be procure d without an amount of- de lay, expense or inconvenience which, under the circumstances o f the case, wo uld be unreasonable .
(2) If it appe ars that an offence punishable with death or imprisonment fo r life has bee n committed by some person o r persons unknown, the High Court or the 12 Sessions Judge may direct that any Magistrate of the first class shall ho ld an inquiry and e xamine any witnesses who can give evidence co ncerning the offe nce and any depositions so take n may be given in evide nce against any person who is subsequently accused of the offence , if the deponent is de ad or incapable of giving evide nce o r beyo nd the limits o f India."
13. Admittedly, the Court below has not examined any witnesses in the absence of the accused, as provided under Section 299 of Cr.P.C. The procedure followed by the Court below is contrary to the provisions prescribed under the Code of Criminal Procedure as well as the Karnataka Criminal Rules of Practice. At the cost of repetition, it is reiterated that the Sessions Court has committed an error in closing the case by placing reliance on the decisions rendered by this Court, wherein, this Court in a petition filed by the accused himself under Section 482 of Cr.P.C., by exercising the inherent power quashed the proceedings therein. For the foregoing reasons, I pass the following :
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ORDER i. The Revision Petition is allowed.
ii. The impugned order dated 14.10.2015
passed by X Additional District and
Sessions Judge, Belagavi in S.C.
No.239/2006 is hereby set aside.
iii. The case is remanded back to the
Sessions Court with a direction to
proceed against the accused/
respondents from the stage prior to
passing the impugned order, in
accordance with law.
Sd/-
JUDGE
Ckk/hnm