Karnataka High Court
The State Of Karnataka vs Suresha @ Kothi A-7 on 9 June, 2023
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NC: 2023:KHC:20055
CRL.RP No. 852 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 852/2015
BETWEEN:
1. THE STATE OF KARNATAKA
BY HANUMANTHANAGARA POLICE STATION,
BANGALORE-560 004.
...PETITIONER
(BY SMT. RASHMI JADHAV., HCGP)
AND:
1. SURESHA @ KOTHI A-7
S/O VANKATESH,
AGED ABOUT 21 YEARS,
KONAPPANA AGRAHARA POST,
ELECTRONIC CITY,
BANGALORE-560 100.
...RESPONDENT
Digitally
signed by A
(NOTICE TO RESPONDENT IS
K
CHANDRIKA DISPENSED WITH V/O DATED 21.10.2016.)
Location:
HIGH
COURT OF
KARNATAKA
THIS CRL.REVISION PETITION FILED U/S.397 R/W 401
CR.P.C BY THE S.P.P FOR THE STATE PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER
DATED 15.06.2015 IN S.C.NO.1065/2011 PASSED BY THE
ADDL. CITY CIVIL AND S.J., BANGALORE CITY AND PASS ANY
OTHER ORDER OR DIRECTION WHICH DEEMS FIT TO PASS IN
THIS CASE, IN THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:20055
CRL.RP No. 852 of 2015
ORDER
This revision petition is filed by the State being aggrieved by the orders dated 15.06.2015 passed in SC No.1065/11 by the Additional City, Civil and Sessions Judge, Bengaluru City closing the case against accused no.7 (respondent herein) holding that, there is no material to convict the accused based on the evidence produced by the prosecution as per the decision of this Court.
2. The case of the petitioner is that, respondent- accused (Accused-7) along with 14 other accused persons were charge sheeted by Hanumanthanagar Police in CC No.16101/2008 on the file of I Addl. Chief Metropolitan Magistrate, Bengaluru City for the offences punishable under Section 399 and 402 of IPC on the allegation that the accused persons on 20.05.2008 at 1.10 p.m. assembled at the open space on the side of Lord Pralayakalada Veerabhadra Swamy Temple in Hanumantha Nagar were making preparation to commit dacoity armed with deadly weapons. 13 accused persons were -3- NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 apprehended. The case was committed to the Sessions Court in SC No.19/2009. The case was initially split up against accused Nos. 3, 6 and 7. In so far as accused nos. 1,2,4,5,8,10,13 and 15 are conceeded, they were tried in SC No.19/2009 and later, accused no.6 was tried in SC 557/2011 and were acquitted.
3. It is the case of prosecution that, in so far as accused No.7 is concerned, since he was absconding, a case against him was split up and SC 1065/11 came to be registered. The trial Court issued non-bailable warrant, proclamation and warrant for attachment to secure the presence of accused no.7. Since his presence could not be secured, evidence was recorded under Section 299 of Cr.P.C.
4. Prosecution examined PWs.1 and 2 and got marked 3 documents and Exs.P1 to P3 and MO1. The proceedings were initiated to transfer the case on hand to the Register of Long Pending Cases. Instead of transferring the case to the Long Pending Case Register as -4- NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 required under law, the trial Court by order dated 15.6.2015 which is impugned in this petition, has closed the case against accused no.7 holding that, it is impossible to convict the accused based on the evidence produced by the prosecution.
5. Being aggrieved by the said order, the State is in this revision urging the following grounds:
That, the said order passed by the trial Court closing the Sessions Case pending against respondent i.e. accused no.7 is not legal and proper and the same is opposed to procedures laid down under law. Relying upon Chapter-IV of Karnataka Criminal Rules of Practice, 1968 which says, 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 or detained in -5- NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 safe custody as per provisions 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. The case shall then be entered in the Register of Long Pending Cases to be maintained by the Magistrates.
6. Further, it is urged that the benefit of acquittal rendered against the other accused should not have been extended to the present accused for the reason that the trial Court cannot decide the said issue without appreciating the evidence led in the present case. Thus, learned HCGP prays to allow the petition.
7. Heard Smt. Rashmi Jadhav, learned HCGP appearing for Revision Petitioner-State and perused the record.
8. Since respondent-herein i.e. accused no.7 is absconding, the trial Court has passed the impugned order relying upon the judgment of this Court in the case of -6- NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 State of Karnataka vs. K.C.Narasegowda1 wherein, it has been held that, as the entire material evidence of prosecution is one and the same as against all the accused including the non-appealing accused who is said to be the absconding, there is no second opinion that he is entitled for the same benefit of doubt as is extended to his co- accused.
9. In that case, considering the peculiar facts and circumstances of that case, this Court exercised its inherent powers under Sec.482 of Cr.PC instead of jurisdiction under Sec.395 of Cr.PC. and there, it was a case of non-appealing accused no.1 who was said to be absconding. Thus, the Court has observed based on the facts of that case. But, in the present case, the case was still pending. Hence, the principle so laid down has no application to the present facts of the case. 1 ILR 2005 (3) Crl.L.J.76 -7- NC: 2023:KHC:20055 CRL.RP No. 852 of 2015
10. As per the procedure enumerated under the Karnataka Criminal Rules of Practice, 1968, in case of non- bailable offences, if the accused remained absent before the Court, initially Court has to issue warrant against the accused persons and if he/she fails to appear before the Court, the Court has to exercise its power by invoking provisions of Sections 62,63,64,65 of the Code to secure his presence. So also, if accused remains continuously absent, it has to follow the procedure to issue proclamation against accused person. Thereafter, if the Court satisfies that in the near future, the presence of accused cannot be secured, Court has to post the matter for recording of evidence. After closure of evidence so recalled under Sec.299 of Cr.P.C. after satisfaction, the Execution Court has to pass a speaking order that, in the near future, the presence of the accused cannot be secured and hence, the case has to be transferred to the register of Long Pending cases. Thereafter, the Sessions Court has to seek permission of the High Court to transfer the said case to the Register of Long Pending Cases. But, -8- NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 in the present case, the learned Sessions Judge, instead of seeking permission of the High Court to transfer the case to the Registrar of Long Pending Cases, has ordered for closure of the case holding that the present accused No.7 is absconding.
11. The evidence under Sec. 299 of Cr.P.C. has already been recorded and PW.1 and 2 have been examined by the prosecution. Ex.P.1 to P3 and marked MO.1. The procedure so stated supra with regard to the absconding of the accused has been followed by the trial Court. Thereafter, learned trial Court has not followed the procedure stated under Chapter-IV of Karnataka Criminal rules of Practice, 1968. So it is apperant error and irregularity committed by the trial Court.
12. So far as procedure with regard to the summons, warrants are concerned, Chapter-VI of Cr.PC speaks with regard to process to compel appearance. The important provision of law with regard to the compelling the appearance are concerned - Section 62 of Cr.PC -9- NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 speaks of summons and how they are to be served. So far as summoning of the accused in this case, the steps of issuing summons have already been completed as per the order sheet maintained in this case. Sec.64 of Cr.PC speaks of service when persons summoned cannot be found. As per this section, the summons may be served if the person summoned cannot be found by leaving one of the duplicates for him with some adult male member of his family residing with him and the person with whom the summons is so left shall, if so required by the serving officer sign a receipt therefore on the back of the other duplicate.
13. In this case, the so called accused no.7 remained absent continuously therefore, the learned trial Court followed the procedure by issuing warrant of arrest as contemplated under Sec.70 of Cr.PC. So as per this procedure, warrant was directed against accused no.7 with a direction to the concerned police to execute the non- bailable warrant against accused no.7. The concerned
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NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 police officer without any delay has to follow the procedure and see that the non-bailable warrant is executed against the accused.
14. Rules 1 to 5 of Chapter-IV deal with a case of an absconding accused in a warrant case before the Magistrate. Thus, when there is a specific procedure prescribed under the Karnataka Criminal Rules of Practice for such cases, they cannot be ignored.
15. Section 82 of Cr.PC speaks of proclamation for person absconding and after publication of the proclamation as contemplated under Sec.82 of Cr.PC, if the accused fails to appear, then, as contemplated under Sec.83 of Cr.PC, the Court has to invoke the provisions of attachment of property of person absconding. Here in this case all these procedures have been followed by the trial Court. But, without proceeding further as per Chapter-IV of Karnataka Criminal Rules of Practice, the learned trial Court has closed the case only on the ground that in the other disposed of criminal case connected with the same
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NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 crime all the accused were acquitted, there is no second opinion and hence, by giving benefit of doubt, the sessions case so registered against accused no.7 was closed by the trial court. The offence alleged is under 395 of Cr.PC. Thus, there is a grave illegality being committed by the Sessions Court by closing the case by placing reliance on the decision rendered by this Court. The law is that, the learned Sessions Judge has no power to close a criminal case against an absconding accused. This court had an occasion to deal with similar situation in State of Karnataka vs. Ravi Govind Nadar and others2 wherein it is observed by this Court, that Rules 1 to 5 of Chapter-IV of the Karnataka Criminal Rules of Practice, 1968 deal with a case of absconding accused in a warrant case before the Magistrate, it is held that when there is specific procedure prescribed under the said Rules for such cases, they cannot be ignored. The Sessions Court is bound to follow the procedure as contemplated under 2 2019 (2) KLJ 29
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NC: 2023:KHC:20055 CRL.RP No. 852 of 2015 Chapter-IV of Karnataka Criminal Rules of Practice, 1968. Therefore, the learned trial Court has committed an error in closing the case without following the procedure as analyzed above. There is no provision as such in the Code of Criminal Procedure in respect of a Sessions trial to close a trial against absconding accused and the learned Sessions Judge has no power to close a criminal case against an absconding accused.
16. Therefore, the order passed by the trial Court closing the case against respondent-accused warrants interference by this Court. The petitioner/ State has made out acceptable grounds to allow this revision petition.
Resultantly, I pass the following:
ORDER
(i) Revision Petition is allowed.
(ii) Order dated 15.06.2015 passed in SC No.1065/2015 by the Addl. City Civil and Sessions Judge, Bengaluru City, is set aside.
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NC: 2023:KHC:20055 CRL.RP No. 852 of 2015
(iii) Case is remanded to the Addl. City Civil and Sessions Judge, Bengaluru City with a direction to follow the procedures enumerated under Chapter - IV of Karnataka Criminal Rules of Practice, 1968 and dispose of the case in accordance with law.
(iv) Send back the trial Court records forthwith along with a copy of this order.
Sd/-
JUDGE Sk/-