Karnataka High Court
Mansoor vs The State Of Karnataka on 1 June, 2018
Equivalent citations: AIRONLINE 2018 KAR 270, 2018 CRI LJ 4310, 2018 (3) AKR 757
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CRL.P. NO.1461/2018
BETWEEN
1. MANSOOR
S/O LATE HAMEED M K
AGED ABOUT 30 YEARS
R/AT DANDINPET
KUSHALNAGAR
KODAGU DISTRICT-573 231
2. IRFAN
S/O ABDUL AZEEZ
AGED ABOUT 23 YEARS
R/AT VIVEKANANDA BADAVANE
KUSHALNAGAR
KODAGU DISTRICT-573 231
3. HIDAYATHULLA
S/O ABDUL AHAMAD KHAN
AGED ABOUT 33 YEARS
R/AT NEAR SBI B.M. ROAD
KUSHALNAGAR
KODAGU DISTRICT-573 231
4. FAYAZ
S/O LATE HAMEED M K
AGED ABOUT 35 YEARS
R/AT DANDINPET
KUSHALNAGAR
KODAGU DISTRICT-573 231
5. MUNNA @ ABDUL RAHIMAN
S/O LATE HAMEED M K
AGED ABOUT 40 YEARS
2
R/AT DANDINPET
KUSHALNAGAR
KODAGU DISTRICT-573 231
6. FAREED
S/O LATE HAMEED M K
AGED ABOUT 47 YEARS
R/AT DANDINPET
KUSHALNAGAR
KODAGU DISTRICT-573 231
7. RASOOL
S/O. ADAM,
AGED ABOUT 48 YEARS,
R/AT DANDINPET,
KUSHALNAGAR,
KODAGU DISTRICT-573 231 ... PETITIONERS
(BY SRI. B. LETHIF, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY KUSHALNAGAR POLICE STATION
KODAGU DISTRICT
REP BY THE S.P.P.
HIGH COURT BUILDING
BANGALORE-560 001
2. NOORULLA H
S/O LATE A M HANEEF
AGED ABOUT 46 YEARS
R/AT DANDINPET
KUSHALNAGAR
KODAGU DISTRICT-573 231 ... RESPONDENTS
(BY SRI.CHETAN DESAI, HCGP FOR R-1;
NOTICE TO R-2 D/W V.O.D. 01.06.18)
THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETITIONER IN S.C.NO.66/2017 (CR.NO.30/2016) OF
3
KUSHALNAGAR P.S., KODAGU DISTRICT ON THE FILE
OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MADIKERI AT KODAGU.
THIS CRL.P COMING ON FOR ADMISSION ALONG
WITH IA NO.1/2018 THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Issuance of notice to Respondent No.2 is dispensed with.
2. The petitioners, who arrayed as Accused Nos.1 to 7 in S.C.No.66/2017 arising out of Crime No.30/2016 have filed this petition seeking quashing of S.C.No.66/2017, which is pending on the file of the Additional Civil Judge (Jr.Dn.) & JMFC Court, Somawarpet, Kodagu District.
3. It is the case of the petitioners that on the basis of the complaint lodged on 26.01.2016 in between 11:30 am. to 12:30 pm. The police have originally registered a Crime No.30/2016 against the petitioners for the offences punishable under Sections 324, 448, 307 read with Section 34 of the IPC and after completion of the investigation, police have filed a 4 charge sheet and after committal, a case has been registered in S.C.No.66/2017. On the basis of the counter case lodged by the 2nd respondent, in connection with the same offences, which occurred between the same parties, the police have also registered Crime No.31/2016 for the offences punishable under Sections 307, 323 read with Section 149 of IPC and in that case also, the police have completed the investigation and submitted charge sheet and after committal, a Sessions Case has been registered against the six accused persons in S.C.No.64/2017.
4. The learned counsel contended that both cases have been investigated by the same Investigating Officer which is illegal and it should have been investigated by two independent Investigating Officers.
Further, he contends that, after committal of the proceedings, the State has not appointed a separate Public Prosecutor to conduct the counter case in S.C.No.64/2017. Therefore, it is a clear violation of the recognized principle of criminal jurisprudence.
5Therefore, the whole proceedings are vitiated by serious incurable defect, as such, proceedings in S.C.No.66/2017 is liable to be quashed.
5. There is no dispute with regard to the factual aspects in this particular case. It is only a pure question of law involved in this particular case.
Therefore, there is no need to issue any notice to the 2nd respondent, as no adverse order is passed sofar as the proceedings in S.C.No.64/2017 is concerned.
6. It is worth to mention here a decision of this court reported in ILR 2012 KAR Page 509 between State of Karnataka, by Circle Inspector of Police V/s Hosakeri Ningappa and Another, wherein this court has specifically laid down certain principles to be followed by the Police and as well as the Court in respect of the case and counter case being registered by police and thereafter entertained by the courts. In view of the above said decision, it is clear that, if a case and counter case are registered, investigation should be conducted by the same Investigating Officer, but 6 prosecution should be conducted by two different public prosecutors and the trial should be conducted by the same court. After recording the evidence and after hearing the arguments in a case, the judgment should be reserved and thereafter, evidence should be recorded and the arguments should be heard in the other case and in both the matters, the judgment should be pronounced simultaneously one after another on the same day, by the same Judge, who heard the matters. At this stage, I feel that, it is worth to reproduce here the relevant portions of the said judgment for ready reference, which reads thus:-
A) CRIMINAL PROCEDURE CODE, 1973 -
Case and counter case-Trial of-Procedure to be followed in the absence of a specific statute-Importance of law declared by the Supreme Court in trying the case and counter case - HELD, The procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different public Prosecutors. The trial should be conducted by the same Court.
7
After recording the evidence and after
hearing the arguments, the judgment
should be reserved in one case and
thereafter the evidence should be recorded and the arguments should be heard in the other case. It is needless to observe that the arguments in both the matters shall be heard by the same Learned Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other - In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case. Further Held, If the Trial Court by not adopting the salutary procedure mentioned supra disposes of the case and the counter case on different dates 8 acquitting the accused therein and no appeal is preferred in one of the cases and appeal is preferred in the case decided later, the proceedings in the later case are not vitiated. The Court cannot compel the State to file an appeal in any given case. It is left to the wisdom of the State to decide as to whether the Judgment passed by the Court below needs to be questioned or not. If the State is satisfied about the Judgment passed in one case it may choose not to file appeal in that case. However, the State may feel that in the other case (i.e., in the counter case), appeal may be necessary. In such an event, nobody can prevent the State from filing the appeal. If two cases arise out of the same incident and if two charge sheets are filed, two trials will be held. - In a given case, the Trial Judge may choose to acquit the accused in both the cases or may choose to convict the accused in both the cases; the Trial Judge may even convict the accused in one case and acquit the accused in another case. The decision will depend upon facts and circumstances of each case. Merely because the appeal is not filed in one case and the appeal is filed in the other case, the 9 proceedings will not get vitiated automatically in the later case. In Court's considered opinion, in such a situation, the accused in such cases will have to show prejudice suffered by him. However, as a proposition of law, it cannot be laid down that the appeal filed in the second case by the State questioning the Judgment and Order of acquittal needs to be dismissed in limine on the ground that the proceedings in the later case is vitiated. It all depends upon facts and circumstances of individual case to be decided by the Appellate Court to see whether any prejudice is caused to the accused in not conducting the trial of the case and the cross case simultaneously. (Paras 16, 17) (B) CRIMINAL PROCEDURE CODE, 1973 - SECTION 465 - Reverse of a finding or sentence by reason of error omission or irregularity - Object of the Section - HELD, Section 465 of the Code is intended to cure any error, omission, irregularity or infraction of procedural law committed by the Court of competent Jurisdiction, unless such irregularity or illegality has in fact occasioned a failure of justice. The object 10 of the Section is to secure justice by preventing the invalidation of a trial held on the ground of technical breaches of any provisions of the Code causing no prejudice to the accused. The intention is to eliminate all possibilities of acquittal of persons committing offenses except on the merits. The procedural laws are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well-understood principles that accord with our notions of natural justice. If there be substantial compliance with the requirements of law providing the accused a full and fair trial in accordance with principles of natural justice, no order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. The procedural laws are designed to subserve the ends of justice and not to frustrate them. The test to be applied is whether the accused had a fair trial in spite of the transgression of the prescribed rule 11 or procedure. - FURTHER HELD, In judging the question of prejudice, Courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair tiral, whether he knew that he was being tried for; whether the main facts sought to be established against him were explained to him fairly and clearly; and whether he was given a full and fair chance to defend himself. - Each case has to be decided on merits based on the facts and circumstances of that case, as to whether the irregularity in the procedure adopted by the Trial Judge while proceeding with the trial has occasioned failure of justice or not. If the irregularity in procedure adopted by the Sessions Court had occasioned failure of justice, then only the proceedings vitiate. Otherwise, not. (Paras 13, 14) (C) CRIMINAL PROCEDURE CODE, 1973 - Case and counter case - Observations made in the case of "Abdul Majid Sab-ILR 2010 KAR 1719" - And law declared by the Supreme Court in "Nathilal Vs. State of UP (1990 suppl.SCC 145), Sudhir and Others 12 Vs. State of MP 2011 SCC (Crl.) 387 - Discussed. - HELD, There is no statute governing the procedure to be adopted in case and counter case or cross cases. However, the Supreme Court has laid down the procedure for trial in such matters. The Legislature ought to remedy the defect by enacting the procedure in that regard. However, the Judge, made law relating to procedure mentioned is being followed since 1929 till this day. The law declared by the Supreme Court binds all the Courts in India under Article 141 of the Constitution of India. Hence, the observations made by the Division Bench in the case of Abdul Majid Sab do not lay down good law on the point, inasmuch as, the observations run contrary to the well established principles of law as laid down by the Supreme Court from time to time. - FURTHER HELD, The Supreme Court has described the procedure and practice of simultaneous trial of case and counter case as "fair procedure", "
salubrious practice", "salutary practice", "generally recognized rule", "proper procedure to adopt" etc., in various judgments. The procedure to be adopted by the Courts while dealing with the case 13 and counter case is the Judge made procedure and not a statutory procedure. - It is also settled position in law as laid down by the Supreme Court in the aforementioned judgments that in deciding the case and the counter case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into, nor can the Judge be influenced by the arguments in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence and the arguments in the cross case. It is also relevant to note that the investigation is to be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors. The Government of Karnataka has issued the law Circular dated 24.9.1982 bearing No.4836 and the law Circular dated 12.11.1982 bearing No.4839, stipulating that the same Investigation Officer shall investigate case and counter case. (Paras 5,6,7,8) 14 (D) CRIMINAL PROCEDURE CODE, 1973 -
Case and counter case- Procedural irregularity in conducting Trial - Law declared by the Supreme Court - Protection available under Section 465 Cr.P.C. - HELD, If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal - Vs- State of U.P. reported in 1990 Suppl.SCC 145:1990 SCC(Cri)638, and in the case of Sudhir and Others-vs-State of M.P., reported in 2001 SCC (Cri)387, the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code. (Para 18(A))
7. In this particular case, the argument of the learned counsel for the petitioners that, the investigation should have been conducted by the Two Investigating Officers, is not acceptable. Therefore, the proceedings are not vitiated by the investigation done by the same Investigating Officer in the two cases i.e., in a case and counter case. However, the learned 15 counsel is right in submitting that the learned trial judge is erroneously proceeding with the matter with the help of the same public prosecutor attached to the said court. In fact, the said aspect should be taken into consideration by the learned Session Judge and see that a separate prosecutor is appointed for the purpose of conducting a counter case. If the Sessions Judge is of the opinion that the said case is a case and counter case, if for the purpose of framing charges in a counter case, the court has to hear arguments of the counsel for the accused and as well as the learned Public Prosecutor. In that context also, in my opinion before framing of charges and before recording the evidence of the witness, it is just and necessary for the Sessions Judge to see that a separate Public Prosecutor is appointed to proceed with the counter case. Otherwise, the trial may be vitiated and it may become an incurable defect later.
8. Under the above said circumstances, there are no materials produced before the court to quash the entire proceedings in S.C.No.66/201. However, a 16 direction can be issued to the Sessions Judge to strictly follow the principles laid down in ILR 2012 KAR Page 509 (Supra), if the above said two cases i.e., S.C.No.64/2017 and S.C.No.66/2017 are a case and a counter case.
With these observations, the petition is disposed of.
Office is hereby directed to send copy of this order to the learned Principal District and Sessions Judge, Madikeri for reference.
In view of disposal of this case, the application-IA No.1/2018 filed for stay, does not survive for consideration. Accordingly, the said application stands dismissed.
Sd/-
JUDGE KGR*