Karnataka High Court
Hameed vs State By Bidadi Police on 28 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.146/2021
BETWEEN:
1. HAMEED,
S/O EDINAB,
AGED ABOUT 26 YEARS,
R/O VATHSARE VILLAGE AND POST,
CHIKMANGALURU-577133.
2. JAIBHEEMA,
S/O BASAPPA,
AGED ABOUT 29 YEARS,
R/O INDRA NAGAR, BIDADI,
RAMANAGARA DISTRICT
AND TALUK-562159.
3. MAHENDRA S.P.,
S/O LATE SUBAPPA,
AGED ABOUT 30 YEARS,
R/O NO.94 LTI, 9TH 'A' CROSS,
6TH MAIN ROAD, KENGERI,
BENGALURU-560060.
4. VIJAY S.,
S/O SRINIVAS,
AGED ABOUT 28 YEARS,
R/O NO.327, 3RD CROSS,
MUNESHWARA BLOCK,
BENGALURU-560026.
2
5. SANTHOSH KUMAR GOWDA,
S/O SADASHIV GOWDA,
AGED ABOUT 28 YEARS,
R/O NO.506, 8TH CROSS,
11TH MAIN, T. DASARAHALLI,
BENGALURU-560057.
6. GIRISH V.,
S/O VARADACHARI,
AGED ABOUT 29 YEARS,
R/O NO.490, 3RD CROSS,
ITI COLONY, K.R.PURAM,
BENGALURU-560016.
7. SANTHOSH KUMAR,
S/O SAIBANNA,
AGED ABOUT 30 YEARS,
R/O YOGESHWAR LAYOUT,
BIDADI, RAMANAGARA,
DISTRICT AND TALUK-562159.
8. VENKATESHAIAH,
S/O GOVINDAPPA,
AGED ABOUT 27 YEARS,
R/O 6TH MAIN ROAD,
KENGARI SATELLITE,
BENGALURU-560060.
9. MANJUNATH N.S.
S/O SHIVALINGAPPA,
AGED MAJOR,
R/O KAMALAMMA KEMPANNA,
COMPOUND, DODDABOMASANDRA,
BENGALURU-560097.
10. BHIMAPPAMURUGUTTI,
S/O MALAKAPPA,
AGED ABOUT 30 YEARS,
3
R/O K.F.G. THIMAIAH,
NAGADEVANAHALLI,
BENGALURU-560056.
11. VASANTH KUMAR K.G.,
S/O KRISHNEGOWDA,
AGED ABOUT 27 YEARS,
R/O PUTTENAHALLI,
APPALAKSHMI LAYOUT,
J.P. NAGAR, BENGALURU-560076.
12. CHANDRASHEKARAPPA,
S/O NAANJUNDAPPA,
AGED ABOUT 37 YEARS,
R/O SANJEEVAIAH BUILDING,
KATHANAHALLI ROAD, BIDADI,
RAMANAGARA DISTRICT AND
TALUK-562159.
13. SHIVAKUMAR M.K.,
S/O KARIBASAPPA,
AGED ABOUT 30 YEARS,
R/O NO.373, 2ND B MAIN ,
2ND CROSS, R.R. LAYOUT,
NAGADEVANAHALLI,
BENGALURU-560056.
14. BASAVARAJU SINDHAGI,
S/O DODDAPPA,
AGED ABOUT 30 YEARS,
R/O NO.13, 4TH CROSS, 7TH MAIN,
KENGARI SATELLITE TOWN,
BENGALURU-560060.
15. KUMARSWAMY,
S/O PUTTASWAMY GOWDA,
AGED ABOUT 33 YEARS,
R/O NO.1124, 6TH CROSS,
4
2ND MAIN ROAD, T. MARI SCHOOL,
T. DASARAHALLI,
BENGALURU-560057.
16. PRAKSH B.E.,
S/O EROLAHAIAH,
AGED ABOUT 26 YEARS,
R/O BELEKAMPENAHALLI,
BIDADI, RAMANAGARA,
DISTRICT AND TALUK-562159.
17. SESHADHAR B.E.,
S/O BASAVARAJAPPA,
AGED ABOUT 29 YEARS,
R/O NO.504, JBS QUATERS,
13TH CROSS, NEW TOWNSHIP,
HAL, MARATHAHALLI,
BENGALURU-560037.
18. AYYAPPA N.C.,
S/O CHANDRA N.C,
AGED ABOUT 27 YEARS,
R/O NO.1538, 13TH CROSS,
KALYAN NAGAR, T. DASARAHALLI,
BENGALURU-560057.
19. SRINIVASA B.C.,
SO LATE CHIKKAMUDDAIAH,
AGED ABOUT 24 YEARS,
R/O INDRA NAGAR, BIDADI,
RAMANAGARA DISTRICT AND TALUK-562159.
20. BHASKAR B.U.,
S/O UMAPATHI,
AGED ABOUT 27 YEARS,
R/O NO.9, 5TH CROSS,
4TH BLOCK, DODDABAMASANDRA,
BENGALURU-560097.
5
21. PRAKASH H.R.,
S/O RAJEGOWDA,
AGED ABOUT 30 YEARS,
R/O NO.130, 1ST MAIN ROAD,
6TH 'C' CROSS,
BAIRAVESHWARA LAYOUT,
NEAR MAHESHWARAMMA TEMPLE,
T. DASARAHALLI,
BENGALURU-560057.
22. SANTHOSH KATTAMANI,
S/O PANDARI KATTAMANI,
AGED ABOUT 27 YEARS,
R/O NO.1, 4TH CROSS,
GANAPATHI NAGAR,
RAJGOPAL NAGAR MAIN ROAD,
BENGALURU-560058.
23. THIMMARAJU,
S/O LATE NAGARAJU,
AGED ABOUT 26 YEARS,
R/O SHIVANNA BUILDING,
6TH A MAIN ROAD,
NEAR ROBIN THEATRE,
KENGARI SATELLITE TOWN,
BENGALURU-560060.
24. PRASHANTH S.M.,
S/O MANJUNATHAIAH,
AGED ABOUT 30 YEARS,
R/O NO.32, J.K. TAILOR BUILDING,
WATER TANK ROAD,
BENGALURU-560060.
25. PARASU RAM,
S/O ERANNA PATTIGAR,
AGED ABOUT 26 YEARS,
R/O NO.282, 5TH CROSS,
6
2ND MAIN, BHABALI NAGAR,
BENGALURU-560013.
26. ANIL KUMAR
AGED ABOUT 31 YEARS,
R/O NO.86, 14TH CROSS,
INDRA COLONY, RPC LAYOUT,
VIJAY NAGAR, BENGALURU-560040.
27. MAHADEV BHANDAR,
AGED ABOUT 32 YEARS,
R/O NO.26, 1ST MAIN,
NAGADEVANAHALLI,
BENGALURU-560056.
28. SANNA SWAMY K.C.,
AGED ABOUT 30 YEARS,
R/O SUBBAMMA GARDEN,
VIJAY NAGAR, BENGALURU-560040.
29. SATHYA NARAYANA H.,
AGED ABOUT 28 YEARS,
R/O MANJU NILAYA,
1ST CROSS, HUCHAPPA LAYOUT,
SVG NAGAR, MUDALAPALAYA,
BENGALURU-560072.
30. RAMESH K.,
AGED ABOUT 44 YEARS,
R/O NO.17, 2ND MAIN,
2ND CROSS, SHIVAJINAGAR,
RAJAJI NAGAR,
BENGALURU-560010.
... PETITIONERS
(BY SRI. SHANKARAPPA S., ADVOCATE)
7
AND:
STATE BY BIDADI POLICE,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA
AT BENGALURU,
AMBEDKAR VEEDHI,
BENGALURU-560001.
... RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP AND
SRI. P. PRASANNA KUMAR, ADVOCATE [ASSITED THE STATE])
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 24.01.2019 IN
C.C.NO.1005/2011 ON THE FILE OF HONBLE PRL. CIVIL JUDGE
(JR.DN) AND J.M.F.C AT RAMANAGARA FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 114, 324, 323, 504
R/W 149 OF IPC CONFIRMED IN CRL.A.NO.4/2019 ON THE FILE
OF I ADDL.DISTRICT AND SESSIONS JUDGE, RAMANAGARA BY
ORDER DATED 26.02.2020 AND PETITIONERS MAY BE
ACQUITTED.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 05.11.2025, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
1. This revision petition is filed praying this Court to set
aside the judgment of conviction dated 24.01.2019 in
C.C.No.1005/2011 on the file of the Principal Civil Judge (Jr.Dn)
and JMFC at Ramanagara for the offences punishable under
Sections 143, 147, 114, 324, 323, 504 read with Section 149 of
IPC, which is confirmed in Criminal Appeal No.4/2019 dated
26.02.2020 on the file of the I Additional District and Sessions
Judge, Ramanagara and prayed the Court to acquit the revision
petitioners.
2. Heard the learned counsel Sri Shankarappa S
appearing for the petitioners and the learned counsel Sri
P.Prasanna Kumar who is permitted to assist the State vide
order dated 24.03.2025.
3. The factual matrix of the case of the prosecution
before the Trial Court is that the complainant was working as
Junior Officer HR in M/s. Stanzen Toyotetsu India Pvt. Ltd.,
Toyota Techno Park, Bidadi and allegation is made in the
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complaint that the accused persons with an intention to take
away the life had caused bodily injuries to their Senior
Management staff on 19.03.2011 at about 10.30 p.m. The
members of the unlawful assembly started protest inside the
Company and gathered near first aid room of the factory and
when its General Manager C.W.2 came to enquire the same,
accused Nos.6 and 13 assaulted him with first aid box and
window frame over his head and caused him bleeding injuries
and other accused assaulted C.W.3 to C.W.7 with their hands
and legs causing them simple injuries and threatened C.W.3 to
C.W.7 and abused in a filthy language and destroyed the
furnitures and glasses and attempted to snatch gold chain from
the neck of C.W.7. Based on the complaint Ex.P1, case was
registered in Crime No.173/2011. The police investigated the
matter and filed the charge-sheet for the offences punishable
under Sections 143, 147, 114, 324, 323, 504, 506, 427, 356
read with Section 149 of IPC. The jurisdictional Magistrate
having received the charge-sheet, in compliance with Section
207 of Cr.P.C., framed the charges for the above offences
against the accused and the accused persons did not plead guilty
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and claimed trial. Hence, the prosecution relied upon the
evidence of P.W.1 to P.W.15 and Exs.P.1 to 11 along with
M.Os.1 to 7. Exs.D.1 and 2 are marked for the defence, but the
accused did not choose to lead any defence evidence.
4. The Trial Court having considered both oral and
documentary evidence available on record and also the
respective submissions, convicted the accused only for the
offences punishable under Sections 143, 147, 114, 324, 323,
504 read with Section 149 of IPC and acquitted the accused
persons for the offences punishable under Sections 427, 356 and
506 read with 149 of IPC and instead of sentencing them to the
aforesaid offences, by exercising the power under Sections 3 and
4 of the Probation of Offenders Act, considered the case of the
accused falling under the provisions and called for the report
under the Act from the concerned authority by getting executed
bond with surety from all the accused.
5. The accused being aggrieved by the said judgment
of conviction passed by the Trial Court, preferred
Crl.A.No.4/2019. The Appellate Court, having re-assessed both
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oral and documentary evidence available on record, when there
was a delay of 4 days, condoned the same. However, accepted
the reasoning of the Trial Court in coming to the conclusion that
the prosecution has established beyond all reasonable doubts
that the accused persons by forming an unlawful assembly,
joined their hands and used criminal force or violence in the
assembly at the abetment of other accused and caused simple
injury to P.W.2 to P.W.7 by using M.O.1-steel window frame and
also accused persons have assaulted with hands and legs. The
First Appellate Court also comes to the conclusion that the
accused persons have not made out any case for interference
with the judgment and order of conviction passed by the learned
Trial Judge and dismissed the appeal.
6. Being aggrieved by the conviction and confirmation,
the present revision petition is filed before this Court.
7. The main contention urged by the revision
petitioners in this revision petition is that the First Appellate
Court erroneously allowed the application filed by the
prosecution under Section 391 of Cr.P.C. to examine P.W.15 and
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lead additional evidence to produce the certified copy of the FIR
registered in Crime No.174/2011 of Bidadi Police Station with the
true copy of the complaint as the same were not produced
before the Trial Court inspite of serious objection was filed by the
petitioners. It is contented that trial was conducted for more
than 7 years. The learned Sessions Judge committed an error in
allowing such an application. It is contended that the Court
below gravely erred in holding that Ex.P.1 is admissible under
Section 2(d) read with Section 154 of Cr.P.C. In fact, according
to the prosecution, date of offence is 19.03.2011 at about 10.30
p.m. After the said incident, P.W.15 Investigation Officer,
clearly admits in the evidence that on 19.03.2011 at about 11.00
p.m. he received a telephone call from P.W.12 and after the
receipt of said information, he arrived to the place of incident at
about 11.15 p.m. to 11.20 p.m. and P.W.15 met P.W.12 Mayana
Gowda in the place of incident and P.W.12 admits that he was
the person who informed about the cognizable offence to P.W.15
through telephone. P.W.15 Investigating Officer was there in the
spot from 11.20 p.m. upto 01.30 a.m. on 20.03.2011 and he
also received the information from P.W.12 about cognizance of
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the offence, but he did not record the statement of P.W.12
immediately.
8. It is also emerged during the course of evidence that
at 01.30 a.m. on 20.03.2011, P.W.15 left to the police station
and thereafter at about 02.00 a.m. on 20.03.2011 again came
back to the place of incident within half an hour and remained
there upto 06.00 a.m. He further admits that at 11.00 p.m. on
19.03.2011, P.W.12 and C.W.19 Uma Shankar, who is HR
Manager of the said Company have been enquired in detail and
after the receipt of the said information from P.W.12 and
C.W.19, he did not record their statements. He further admits
that on 19.03.2011 itself when P.W.15 came to the spot, P.W.15
thoroughly searched the spot and noticed M.O.1 to M.O.3 at the
spot and the same has been shown by P.W.12 and he also
further admits that there is no impediment for P.W.15 to seize
M.O.1 to M.O.3 and this material important aspect has been
clearly admitted by P.W.15 and further admitted that on
20.03.2011 at about 09.30 a.m. again P.W.15 came to the spot
and he remained for 1½ hours at the spot and thereafter he
14
went to the police station. It is also contended that Ex.P.1,
which is received by P.W.15 on 20.03.2011 at about 06.00 p.m.
clearly goes to show that Ex.P.1 is hit by Section 162 of Cr.P.C.
It is very clear that once the Investigating Officer goes to spot
and verify the spot and knew that cognizable offence has taken
place and he has received the information and the case is not
registered, the same is hit by Section 162 of Cr.P.C. and the
same is ignored by both the Courts.
9. It is also contended that both the Courts gravely
erred in holding that P.W.1 categorically admitted that
19.03.2011 was Saturday and it was holiday as per Ex.D.1 and
identification of the accused is very important because P.W.1 to
P.W.10 and P.W.12 have clearly admitted that there are security
officers working in the entrance near the gate and there are
three shifts and in all three shifts employees are working and in
all there are 1,500 employees working in the factory. There are
seven units in the factory and if any employee who has to enter
to respective units, they have to swipe the card and thereafter
the respective section supervisor will take their attendance. In
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the given case, neither the entrance entries and also presence of
employees on 19.03.2011, who have allotted special duty
records have not been produced in view of Ex.D.1, if any
employee has deputed for overtime work, the list will be
prepared a week prior, name of workers will be listed in view to
this, so the identity of the petitioners at the scene of offence is
very much important and list of the persons who were posted for
duty on 19.03.2011 is not produced, mere identification in the
Court randomly cannot be taken as admissible and this aspect is
also ignored by both the Courts.
10. It is also the contention of the petitioners that both
the Courts below erred that the statement of P.W.2 to P.W.6 was
recorded on 25.03.2011 and this delay of recording has not been
explained and there is tampering of dates of recording of
witnesses as 25th instead of 28th and these injured witnesses are
very much available in the said Company on 21.03.2011 itself
and there is no explanation from the prosecution and the Trial
Court ignored the material aspects, which has been admitted by
witnesses and P.W.15, still the Court below accepted that there
16
is no delay of recording of statements of witnesses and the said
finding is erroneous against the judgment of the Apex Court in a
case of Ganesh Bhavan Patel V/s State of Maharashtra
reported in AIR 1979 SC 135 and also in a case of Harbeer
Singh V/s Sheehpal reported in AIR 2016 SC 4958 wherein
the Apex Court held that recording of statements of witnesses
are fatal to the case of prosecution and this aspect is completely
ignored by the Trial Court as well as the First Appellate Court.
11. Both Courts below gravely held that Ex.P.2 - spot
mahazar is proved and panch witness P.W.11 who is working as
Manager in the said company has been examined as pancha and
even prior to Ex.P.2, P.W.15 has visited to the spot on
19.03.2011 and continuously he was very much present. The
witness P.W.15 admitted that he had seen MO-1 to MO-3 on
19.03.2011, but he did not seize the same. MO-1 is a steel
window frame said to have been used to assault P.W.2, if this
MO-1 has been removed from First Aid room, the place where it
has been removed is not been mentioned in Ex.P.2 and MO-1
has a blunt sharp edge weapon which cannot be lifted by one
17
person and MO-2 cotton cloth and MO-3 First Aid box, if these
M.O-3 was used to assault, it would cause the fracture. No
witnesses have stated that MO-3 was used to assault. Further
P.W.15 and other witnesses have admitted that in First Aid
room, for 24 hours, Doctors would be present, if working is
going on in a company. According to witnesses, a male nurse
was present and also no such male nurse was cited nor
examined and even prosecution further alleged that computer
instruments were broken, but no such broken pieces have been
seized nor the witness was at First Aid room. No such material
have been seized in First Aid room that is stones were thrown
inside First Aid room and that is the case of the prosecution and
there is no existence of light at the scene of offence, so
identifying the assailants of the injured is impossible and even if
it is admitted that there are about 10 to 12 security people
working in factory on shift basis, if any untoward incidents could
have happened in the premises, it is their duty to inform
jurisdictional police station and none of the security officers have
been examined nor secured as panchas to Ex.P.2. Inspite of this
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lacuna, the incident has been taken inside First Aid room is
highly unsustainable in law.
12. Both the Courts below gravely erred in holding that,
even though prima facie case of prosecution has not been
established and even P.W.1 and other witnesses admitted that
petitioners who served in a company for 10 to 15 years, they did
not provide insurance, provisional fund and medical assistance
and also did not increase their wages and also filed dispute
before Labour Commissioner.
13. The Court below gravely erred in accepting the
evidence of P.W.1 to P.W.6 as if it had been proved beyond
reasonable doubt. In fact P.W.15 who recorded the statements
of so called witnesses on 25.03.2011 and even then their
evidence is completely improved version and omissions are
proved through P.W.15. The P.W.1 and P.W.2 omission have
been proved and the same has been extracted during the course
of cross-examination. All the omissions which have been
extracted from the evidence of witnesses was not discussed by
both the Courts and particularly evidence of P.W.15 is very clear
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that nothing is stated before him and elaborative omissions are
extracted from his cross-examination. In a criminal case,
omissions, commissions and contradictions are very important
and the same was not taken note of either by Trial Court or First
Appellate Court.
14. The Court below gravely erred in accepting the
evidence of MO-6 coupled with MO-4 and MO-5 admitting MO-6
is a admissible evidence. In fact, though P.W.15 received and
seized M.O.6 under Ex.P.3, he did not view the contents of MO-6
and even under Section 65(B) of Evidence Act, as if the primary
evidence has not been viewed by P.W.15 and even MO-6 does
not disclose nor clearly visible with regard to who are the
persons in the MO-6 coupled with MO-4 and MO-5. Even P.W.15
who visited the scene of offence on 19.03.2011 at 11:15 p.m.,
and P.W.12 was also present and he has shown the CC T.V
footage of company premises, but did not disclose in Ex.P.2
inspite of this lacuna, in a prosecution case, still the Trial Court
below holds that admissibility of M.O-4 to M.O-6 is highly
unsustainable in law. The counsel also during his argument,
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apart from the grounds which have been urged in the revision,
vehemently contend that even inspite of accused No.17, who
filed the complaint, at the first instance itself registered the
C.Misc and not taken any action and hence it clearly shows that
I.O was acted upon in terms of the management.
15. The counsel also would vehemently contend that
statements of P.W.1, P.W.3 and P.W.4 is very clear that it is
nothing but a joint complaint and P.W.15 omissions elicited
during the course of cross-examination have not been discussed
and material omissions were not considered. The counsel also
would vehemently contend that the case of the accused was
registered after the registration of the case of the management
and the same goes to the very root of the case of the
prosecution. The counsel would vehemently contend that Ex.P.1
complaint was given after thought that is after 19 hours with
details of badge number. The witnesses P.W.2 to P.W.6 are the
injured witnesses and wound certificate clearly discloses that
injuries are simple in nature. The wound certificate doesn't
discloses the name of the assailants and particularly timings at
21
what time they went to the hospital and took the treatment and
wound certificate Ex.P.5 is from Fortis Hospital. P.W.14 is
examined and contents are spoken, but not treated the injured
and so also P.W.6 at Ex.P.6 and wound certificate of P.W.3 at
Ex.P.8 discloses that no external injury and so also wound
certificate of P.W.4 at Ex.P.9 which discloses that no external
injury and wound certificate of P.W.5 at Ex.P.10, but Doctor has
not been examined and no external injuries. Ex.D.1 clearly
discloses that it was Saturday an holiday. The MO-4 to MO-6 are
CC T.V footage and no 65(B) certificate is produced to prove the
CD which is second evidence.
16. The learned counsel also would vehemently contend
that there was a delay in lodging the complaint and F.I.R was
also registered belatedly and I.O is biased. The Ex.P.1 is signed
by P.W.1, P.W.3 and P.W.4 and attendance certificates are not
produced and security officials are not examined and even not
cited as witnesses. During the evidence, there was an
improvement. The Trial Court invoked the Probation of offenders
Act. Both the Courts ignored the material evidence and even
22
though I.O was very much present immediately after the
incident, not enquired anyone and recorded the statement.
17. Per contra, learned counsel appearing for the
respondent-State would submits that delay in giving the
complaint was due to obtaining permission from higher authority
and the same will not be a fatal to the case of prosecution. The
counsel would vehemently contend that CC T.V evidence to be
taken note of and the same is also displayed in Court. The
counsel would vehemently contend that though the Trial Court
invoked the Probation of offenders Act, but there is no any order
at all, only called for the report. But, the fact is that there is a
conviction, but no sentence. When such being the case, appeal is
not the remedy. The counsel would vehemently contend that no
judgment before the Court in view of not passing any order
invoking of Probation of offenders Act and with regard to the
M.O-5 is concerned, no 65-B certificate is necessary, since
original is produced. Once the original is produced, it does not
require any 65-B certificate.
23
18. The learned counsel would vehemently contend that
P.W.1 is examined who is the custodian of original CPU and the
very CC T.V is produced. The counsel also brought to notice of
this Court, the witnesses P.W.2 to P.W.7 are injured and Ex.P.4
to Ex.P.8 and Ex.P.10 are wound certificates. The witnesses
P.W.13 and P.W.14 are Doctors who have been examined before
the Court. The counsel would vehemently contend that the scope
of Revision Petition is very limited. P.W.1 and P.W.8 to PW12 are
the eye witnesses to the incident and no illegality is found in the
order of the Trial Court as well as the First Appellate Court. The
Court while exercising the revisional scope, very slow and delay
in registering the case is not a significant. P.W.15 rushed to the
spot and he was there at the spot immediately after the incident.
19. The learned counsel in support of his argument, he
relied upon the judgment reported in (2018) 8 SCC 165 in case
of Kishan Rao V/s Shankaragouda and brought to notice of
this Court paragraph No.12 while considering the scope of the
revision jurisdiction by the High Court. Therefore, it would not be
appropriate for the High Court to reappreciate the evidence and
24
come to its own conclusion on the same when the evidence has
already been appreciated by the Magistrate as well as the
Sessions Judge in appeal unless any glaring feature is brought to
the notice of the High Court which would otherwise tantamount
to gross miscarriage of justice. The Revisional Court is not meant
to act as an appellate court.
20. The counsel also brought the notice of this Court an
order passed in Crl.A.No.447-SB of 1984 in case of Rattan
Singh V/s State of Haryana and brought to notice of this
Court paragraph No.2 wherein an observation is also made that
when the legislature in its wisdom has not permitted an appeal
against the order of Court of sessions in which the sentence
passed only was imprisoned for a term not exceeding 3 months
or a fine not exceeding Rs.200/- or both such imprisonment and
fine, it cannot be conceived that an appeal was permissible when
no sentence at all had been passed.
21. The counsel also relied upon the judgment reported
in (2019) 10 SCC 161 in case of State of M.P V/s Man
Singh and brought to notice of this Court, paragraph Nos.8, 9
25
and 11 invoking of Probation of offenders Act. When the High
Court was deciding the revision petition against the order of
conviction, it could have, after calling for a report of the
probation officer in terms of Section 4 of the Act, granted
probation. Even in such a case, it had to give reasons why it
disagreed with the Trial Court and the First Appellate Court on
the issue of sentence. The Court must obtain a report from the
probation officer and then order his release on his taking bonds
with or without securities, to appear and receive sentence when
called upon during such period, not exceeding three years or as
the Court may direct and in the meantime to keep peace and
good behaviour. The proviso of sub-section (1) of Section 4
clearly provides that Court cannot order release of such an
offender unless it is satisfied that offender or his surety has a
fixed place of abode a regular occupation in the place over which
the Court can exercise jurisdiction. In paragraph No.11 also, an
observation is made that we fail to understand under what
authority the High Court could have passed such an order. Even
in a case where the High Court grants benefit of probation to the
accused, the Court has no jurisdiction to pass an order that the
26
employee be retained in service and held that grant of benefit of
probation under the Act does not have bearing so far as the
service of such employee is concerned.
22. The counsel also relied upon a judgment reported in
(2014) 10 Supreme Court Cases 473 in case of Anvar P.V
V/s P.K.Basheer and others and brought to notice of this Court
paragraph No.24 wherein the Apex Court discussed in detail the
situation would have been different had the appellant produced
primary evidence, by making available in evidence, the CDs used
for announcement and songs. CDs were made therefrom which
were produced in Court, without due certification. Those CDs
cannot be admitted in Evidence since the mandatory
requirement of Section 62 of the Evidence Act are not satisfied.
It is clarified that not withstanding what we have stated here in
the preceeding paragraphs and secondary evidence of electronic
record with reference to Sections 59, 65-A and 65-B of the
Evidence Act, if an electronic record as such is used as primary
evidence [under Section 62 of the Evidence Act], the same is
27
admissible in evidence, without compliance with the conditions in
Section 65-B of the Evidence Act.
23. The counsel also relied upon the judgment reported
in (2020) 7 SCC 1 in case of Arjun Pandit Rao Khotkar V/s
Kailash Kushanrao Gorantyal and brought to notice of this
Court relevant paragraph No.3 wherein discussion is made in the
said judgment once again re-iterated that quite obviously, the
requisite certificate in sub-section (4) is unnecessary, if the
original document itself is produced. This can be done by the
owner of a laptop computer, computer tablet or even a mobile
phone, by stepping into the witness box and proving that the
device concerned, on which the original information is first
stored, is owned and/or operated by him. In cases where the
computer as defined, happens to be a part of a computer system
or computer network and it becomes impossible to physically
bring such network or system to the Court, then the only means
of proving information contacted in such electronic record can be
in accordance with Section 65-B(1), together with the requisite
certificate under Section 65-B(4). The counsel referring these
28
statements would vehemently contend that when the original is
produced before the Court, no need of production of the 65-B(4)
certificate.
24. In reply to this argument, the counsel appearing for
the revision petitioner would vehemently contend that the very
arguments of the State cannot be accepted. The very hard disk
is not produced and only CD is produced and MO-5 is only a
storage device and the same is also not seized by drawing any
mahazar and MO-4 is CPU and no mahazar was drawn with
regard to the seizure of the same and the same is marked before
the Court. When the original is not produced and CD is
produced, it requires 65-B(4) certificate and the same is not
produced and this material was not considered by the Trial Court
as well as the Appellate Court.
25. In reply to this argument, learned counsel appearing
for the respondent-State would submits that mahazar is not
required and in the P.F, it is shown. The learned counsel also
relied upon the judgment reported in (1973) 1 SCC 471 in the
case of R M MALKANI vs STATE OF MAHARASHTRA and
29
brought to notice of this Court paragraph No.24 wherein
discussion was made that illegality was said to be a
contravention of Section 25 of the Indian Telegraph Act. There is
no violation of Section 25 of the Telegraph Act in the facts and
circumstances of the present case. The tape recorded
conversation was obtained by illegal means and even if the
evidence is illegally obtained, it is admissible. The reason given
was that if evidence was admissible, it matters not how it was
obtained. There is of course always a word of caution.
26. In reply to this argument, the counsel for revision
petitioner would submits that even P.F is also not produced
before the Court and not marked for seizure of MO-4 CPU and
only direction was given to the officials of the company to
produce the CD and even CD is also not prepared in the
presence of the I.O. The counsel also would vehemently contend
that when the CD is produced before the Court, it requires a
certificate that there was no any manipulation and no FSL report
is produced that the same is genuine and the same is not
manipulative. Hence, the counsel would vehemently contend
30
that both the Courts fail to take note of in the absence of
certificate under Section 65-B(4), ought not to have relied upon
M.O.6.
27. Having heard the revision petitioner's counsel and
also learned counsel appearing for the respondent-State and also
considering the principles laid down in the judgment referred
supra, this Court has to re-consider the material within the scope
and ambit of the revisional jurisdiction, the points that would
arise for consideration of this Court are:
(1) Whether the Courts below have committed an
error in convicting the accused persons for the
offences invoked against them and whether
this Court can exercise its revisional
jurisdiction in coming to the conclusion that
the reasoning of both Courts amounts to
miscarriage of justice?
(2) Whether the Courts below have committed an
error in not noticing the fact that FIR was hit
by Section 162 of Cr.P.C?
(3) Whether the Courts below have committed an
error in relying upon M.O.4 to M.O.6 for
31
convicting the accused persons and the said
electronic evidence is not the legal evidence
and inadmissible?
(4) Whether the revision is not maintainable as
contended by the State in the absence of
sentence or an order on Probation of Offenders
Act?
(5) What order?
Point Nos.(1) to (4):
28. It is the case of the prosecution before the Trial
Court that the accused persons have indulged in committing the
offence of forming an unlawful assembly and in furtherance of
common object, assaulted the victims and caused life threat and
abused in filthy language. As a result, some of them have
sustained injuries and they were assaulted with M.Os.1 and 3
and with their hands and legs and destroyed the furnitures and
glasses and attempted to snatch gold chain from the neck of
C.W.7. Hence, offences are invoked against them under Sections
143, 147, 114, 324, 323, 504, 506, 427, 356 read with Section
149 of IPC. The Police based on the complaint of P.W.1 and
others have registered the case and investigated the matter and
32
filed the charge sheet. The accused persons did not plead guilty
and claimed trial.
29. The prosecution mainly relies upon the evidence of
P.W.1 to P.W.15 and Exs.P1 to P11 along with M.O.1 to M.O.7
and documents Exs.D1 and D2 were marked on behalf of the
defence.
30. The Trial Court having assessed the oral and
documentary evidence, convicted the accused for the offence
under Sections 143, 147, 114, 324, 323 and 504 read with
Section 149 of IPC and acquitted the accused for the offence
under Section 427, 356 and 506 read with Section 149 of IPC.
The Trial Court, instead of sentencing the accused persons for
the offences for which they have been convicted, exercised the
powers under Section 4 of Probation of Offenders Act in coming
to the conclusion that Section 4 of the Probation of Offenders Act
could be invoked and called for the report and did not pass any
order fixing the date for further orders. The same is challenged
before the Appellate Court and the Appellate Court confirmed the
33
same. Hence the present revision petition is filed before this
Court.
31. This Court already in detail discussed the grounds
which have been urged in the revision petition and so also the
arguments addressed by learned counsel appearing for the
revision petitioners as well as learned counsel for the
respondent-State and also taken note of the principles laid down
in the judgments which have been referred supra. Now, this
Court has to re-analyze the material and the scope of revision is
very limited and need not reassess the evidence available on
record and only if there is any miscarriage of justice, then Court
can look into the evidence available on record. Learned counsel
appearing for the revision petitioners relied upon certain
judgments and so also learned counsel appearing for the
respondent-State which have been discussed above and this
Court also would like to rely upon those judgments having
considered the factual aspects of the case is concerned.
32. Now let this Court decide on the factual aspects of
the case. It is the specific case of prosecution that incident has
34
taken place on 19.03.2011 and the timings of the incident is
very significant that incident has taken place at 10.30 p.m. on
19.03.2011 within the jurisdiction of Bidadi Police Station and
place of incident is industrial area of Bidadi i.e., M/s. Stanzen
Toyotetsu India Private Limited. The incident is in connection
with the demands of the labours and accused Nos.1 to 30 are
also the employees of the said particular company. It is the case
of the prosecution also that near the factory first-aid room,
unlawful assembly was formed and when the C.W.2-General
Manager came forward to enquire, he was assaulted with
window frame by accused No.6 and accused No.13 assaulted
with first-aid box and other accused persons assaulted C.Ws.3 to
7 and as a result, all of them have sustained simple injuries.
Immediately, the Police Inspector rushed to the spot at around
11.20 p.m., who has been examined as P.W.15 before the Trial
Court.
33. The main contention of revision petitioners before
this Court is that a complaint was lodged by accused No.17, who
went to the Police Station on the same day and filed a complaint
35
and the same was received by H.C. No.449-Chandrappa and it
was registered as Crl.Misc.No.120/2011 and not registered as
criminal case. The main contention of revision petitioners is that
when the complaint was given, the same was registered as
criminal miscellaneous at the first instance, inspite of cognizable
offences are invoked against the management and its supporters
and allegation under Section 3(10) of SC & ST (POA) Act was
invoked. But, it is the main contention of learned counsel
appearing for the revision petitioners that when the Inspector
rushed to the spot, by that time P.W.1-Lokesh, Junior officer was
very much present at the spot and he did not give any complaint
and others were also very much present and the Police Officer,
who came to the spot noticed that cognizable offence has taken
place. But, he did not record the statement of either P.W.1 and
also the persons, who were present at the spot. The records also
reveal that the complaint was given by P.W.1, who was present
at the spot on the previous date, but given complaint on the
next day at 6:00 p.m. When the Police Officer came to the
vicinity, he did not lodge the complaint till the next day at 18.00
hours on 20.03.2011 and complaint was marked as Ex.P1 which
36
is a joint complaint given by P.Ws.1, 3, 4 and C.W.16. The said
complaint was registered as Crime No.173/2011 for the above
offences and while lodging the complaint, afterthought, they
included the Employees Badge Numbers of accused Nos.1 to 25
in the complaint Ex.P1 and also mentioned in Ex.P7-FIR. The
names of P.Ws.1 to 4, P.W.7 and C.W.5 are mentioned in Ex.P1-
complaint and in Ex.P7-FIR. It is also contented by learned
counsel appearing for the revision petitioners that though
according to the Police, complaint was given on 20.03.2011, FIR
was registered and the same was sent to Court on the very
same day on 20.03.2011 through P.C.No.959, but no time was
mentioned. But, the records disclose that Ex.P7 was received by
the Court on 21.03.2011 at 10.45 a.m. through P.C.No.959. But,
the P.C., who took Ex.P7 was not examined before the Trial
Court with regard to the delay and even if it is sent on the
previous day, what made to present the same before the learned
Magistrate on the next day at 10.45 a.m., no explanation and
P.C.No.959 was also not examined to explain delay.
34. It is also the main contention of revision petitioners
that Ex.P1-complaint and Ex.P7 are hit by Section 162 of Cr.P.C,
37
commencement and duration of investigation before lodging a
complaint is found on record. That means, P.W.15-Vijaykumar
visited the scene of offence on the very day of the incident i.e.,
at around 11:20 p.m. and he was very much present from 11:20
p.m. to 01.30 a.m. on 20.03.2011. He also inquired with P.W.1,
P.W.12 and P.W.9 also narrated the entire incident to P.W.15.
The P.W.15 also searched the entire premises at the scene of
offence and noticed CCTV cameras at the security office and
entrance gate. It has also emerged during the course of
evidence, though he went at around 01.30 a.m. to Police Station
and he came back to the spot at 02.00 a.m. and he was very
much present upto 06.00 a.m. and he remained at the scene of
offence and he even enquired with P.W.12-Mayannagowda and
he had shown the entire spot. It has also emerged during the
course of evidence that from 09.30 a.m. to 11.00 a.m. on
20.03.2011, P.W.15 has continued his enquiry in the scene of
offence. Hence, it is very clear that P.W.15 commenced his
investigation before lodging the complaint. It is important to
note that the complaint was lodged on 20.03.2011 at 06.00 p.m.
It is also important to note that according to P.W.15, mahazar
38
was drawn in the place of incident between 07.00 p.m. to 08.00
p.m. at first instance in terms of Ex.P2 and the place was shown
by P.W.11 and mahazar was drawn in the presence of these
witnesses and seized articles M.O.1-window frame, M.O.2-blood
stained cotton piece and M.O.3-first-aid box, since the case of
prosecution is also that assaulted the victim with window frame
and first-aid box. The PF was also given to the Court on
21.03.2011.
35. Having taken note of these materials, learned
counsel appearing for the revision petitioners relies upon the
judgment in State of A.P. vs. Punati Ramulu and others
reported in AIR 1993 SC 2644, wherein discussion was made
with regard to Section 154, complaint about cognizable offence
and also discussed with regard to Section 162, FIR or statement
recorded during investigation-Investigation Officer deliberately
not recording FIR after receipt of information of cognizable
offence-registering the complaint as FIR after reaching the spot
and after due deliberations, consultations and discussions,
complaint could not be treated as FIR, it would be a statement
39
made during investigation and hit by Section 162. In the case on
hand, it has to be noted that P.W.15 categorically admits and
witnesses, who have been examined on behalf of the prosecution
categorically depose that Police Officer-Vijaykumar rushed to the
spot at 11.20 p.m. and he was very much present from 11.20
p.m. to 01.30 a.m. and again he went to the Police Station, but
he did not register the case. Again, he came back to the incident
spot and he was very much present in the vicinity from 02.00
a.m. to 06.00 a.m. and also on the next day from 09.00 a.m. to
11.30 a.m. and he met P.W.1 and others, but he did not choose
to record their statement and also register the case and only
after due deliberations, consultations and discussion, case was
registered in terms of Ex.P1 and Ex.P7, since complaint was
lodged at 06.00 p.m. on the next day, but it reached the
Magistrate on the next date at 10.45 a.m on 22.03.2011. Hence,
it is clear that Investigating Officer was having knowledge about
cognizable offence has taken place, but he did not choose to
record the statement of P.W.1 at the spot, though he was very
much present and even did not record the statement of others,
who were present there and did not enquire with other persons,
40
who have witnessed the incident and only registered the case of
the management, even though the accused No.17 gave the
complaint earlier on the very same day, immediately after the
incident at the Police Station and the P.C., who received the
complaint i.e., P.C.No.449-Chandrappa registered the same as
criminal miscellaneous. It is also to be noted that having
registered the case of management in Crime No.173/2011 and
the complaint which was given earlier by accused No.17 was
registered as Crime No.174/2011 for the offence punishable
under Section 323 of IPC and Section 3(10) of SC & ST (POA)
Act subsequently. The Court has to take note of the said fact into
consideration and both the Courts have not taken note of the
said fact into consideration. Hence, the judgment of the Apex
Court referred supra i.e., State of A.P. vs. Punati Ramulu and
others, is very clear that the said complaint could not be treated
as FIR, it would be a statement made during investigation and
the same is hit by Section 162.
36. This Court also in the judgment in H.C. Karigowda
@ Srinivasa and Others vs. State of Karnataka, by
41
Holenarasipura Town Police reported in ILR 2013 KAR 992
discussed in detail the scope of Sections 154 and 162, FIR or
statement recorded during investigation-failure on the part of
the Investigating Officer to record the FIR immediately on
receipt of the information of cognizable offence-registering the
complaint as FIR after reaching the spot and after due
deliberations, consultations and discussion-legal sanctity of such
a complaint which was treated as FIR, held that if the
Investigating Officer deliberately does not record the FIR after
receipt of information of cognizable offence, registering the
complaint as FIR after reaching the spot and after due
deliberations, consultations and discussions, such complaint
cannot be treated as FIR, it would be only a statement made
during investigation and hit by Section 162 of Cr.P.C. In the case
on hand, it has to be noted that Investigating Officer had visited
the spot immediately after having the knowledge of cognizable
offence has taken place, but failed to record the statement and
even he went to the Police Station at 01.30 a.m. and he was in
the Police Station between 01.30 a.m. to 02.00 a.m. and again,
he came back to spot at 02.00 a.m. and he was very much
42
present till 06.00 a.m. and thereafter also again he visited the
factory premises at 09.00 a.m. on the next day and he was very
much present till noon. But, complaint was registered on the
next day evening at 06.00 p.m. and it clearly discloses that only
after due deliberations, consultations and discussions, complaint
was taken from P.W.1 and others and this fact is also not noticed
by the Trial Court.
37. It is also important to note that the complainant
P.W.1 categorically admits in the cross-examination that without
looking the shift chart, he cannot tell in which shift he was
working. He also categorically admits that on 19.03.2011, to
show that he was on duty, he has not produced any document
before the Investigating Officer and also he did not place any
record before the Investigating Officer, who are all working at
that time and when the Investigating Officer came to his office,
he did not furnish any of the documents. It is also important to
note that, he went to the office on the next day on 20.03.2011
and he was in the house in between 11.00 p.m. to 11.30 p.m.
and when he went to the company, there was no need to go to
43
company on the next day. But he was called upon by P.W.12-
Mayannagowda. It is also important to note that he categorically
says that whole night, till he left the office, the Sub-Inspector
was along with him and he was also having a mobile and there
was no any difficulty to lodge the complaint with the
Investigating Officer when Investigating Officer was along with
him, but the only reason given by him is that he was having
fear. But, when he came back to the office on the next day, he
was not having any fear and also categorically admits that while
coming and going, he has to go in front of the Police Station.
Further, he categorically admits that complaint was prepared in
the computer and admits that having discussed the same with
P.W.12-Mayannagowda, he prepared the complaint. Hence, it is
clear that, after due deliberations, consultations and discussions
with P.W.12 and also with the Inspector, who was there along
with him whole night complaint was given on the very next day
belatedly at 6:00 p.m on 20.03.2011.
38. It is also important to note that P.W.15 also
categorically admits that he had noticed all the M.O.1 to M.O.3
44
at the spot, when he had visited the scene of occurrence on the
previous day itself. But, he conducted the mahazar on the next
day in terms of Ex.P2 and seized M.O.1 to M.O.3. It is also
important to note that through P.W.1, M.O.4 to M.O.6 are
marked. M.O.6 is the C.D and there is no any Certificate under
Section 65-B(4), which mandates that whenever secondary
evidence is placed before the Court, it should contain a
Certificate. No doubt, mahazar was made after seizure of M.O.6-
C.D, the same was done in the Police Station, not in the factory
premises. It is also important to note that when M.O.6 was
marked through P.W.1, he categorically says that M.O.6-C.D.
was prepared on the instructions of the Police and he also
categorically says that Police have not noticed same and he got
prepared the C.D. from the C.C. camera and the same was
copied in a different place which was not mentioned in the
complaint. But, he categorically says that they went to Police
Station at around 04.00 p.m., but complaint was received at
06.00 p.m. and P.W.12-Mayannagowda was along with him from
02.00 p.m. to 04.00 p.m. and he gave the complaint and after
typing the complaint, he examined the CCTV visuals and did not
45
disclose the same before the Police and Inspector came to Police
Station at 05.00 p.m. and enquired him and Mayannagowda also
in detail informed the same. But the fact is that Inspector was
very much present on the previous day whole night in the
factory premises and also in the early morning and throughout
on the next date.
39. It is also important to note that when the mahazar
was conducted, with regard to the seizure is concerned,
signatures were not taken on the seized articles. But, he
categorically says that at the time of conducting the mahazar, he
had shown the CCTV camera to the Investing Officer and the
presence of CCTV camera was not noted in the mahazar and
nothing is mentioned in the mahazar also for having witnessed
the CPU and visuals. The Police also did not collect the same, but
only says that Inspector told him to give C.D. and about the said
instruction also, nothing is mentioned in the mahazar. He also
categorically admits that Police did not witness the CPU and even
CPU was not sealed and Police were very much present and no
instruction was given not to use the same. He also categorically
46
admits that in the presence of Police, he could have prepared the
C.D. and there was no difficulty and the same is also admitted.
But, the police only after leaving the scene of occurrence, he
prepared the C.D. and Police have also not given any
acknowledgement for having received the C.D. But, the Police
have drawn the mahazar and taken his signature and he
categorically admits that Police Inspector did not see the C.D.
visuals in his presence and also he cannot remember whether
the C.D. was sealed in a pack or not and whether his signatures
are there. Police Inspector did not see the C.D. visuals in his
presence and he also cannot remember whether C.D. was sealed
in pack and his signatures are there. It is also his evidence that
CPU recording will be there for 36 hours and thereafter, the
same will be erased. He cannot tell on 19.03.2011, on what date
storage was shifted to device and at what time, it was stopped
and there was no difficulty to handover the CPU and storage
device to produce the same before the Court as well as the
Police and the Police also did not ask him to produce the CPU
and storage device when the C.D. was handed over to the Police
47
and on what date the C.D. was handed over was also not
mentioned.
40. This Court has to take note of the evidence of
P.W.15, who is the Investigating Officer, coupled with the
evidence of P.W.1, since prosecution mainly relies upon M.O.3 to
M.O.6. P.W.15 - Police Sub-inspector, in his evidence speaks
about registration of the case in Crime No.173/2011 on
20.03.2011, when the complaint was given by P.W.1 in writing
and he identifies his signature in Ex.P1 and also issuance of FIR
in terms of Ex.P7. Thereafter, on the same day, he had visited
the spot and seized M.O.1 to M.O.3 and subjected the same to
PF and took the signature of panch witness and drawn the
mahazar in terms of Ex.P2 and he identifies his signature as
Ex.P2(c), signature of panch witness as Ex.P2(b) and another
witness as Ex.P2(d). On the same day, P.W.12-Mayannagowda
handed over the C.D. to him and the same was subjected to
P.F.No.113/2011 and produced the same before the Court and
also drawn the mahazar in terms of Ex.P3 and identifies the
signature as Ex.P3(c). At that time, P.W.12-Mayannagowda was
48
present and his signature is marked as Ex.P3(b) and so also the
signature of Umashankar as Ex.P3(d). He identifies C.D. as
M.O.6 and also produces the wound certificate and he completed
the investigation and filed the charge sheet.
41. P.W.15 was subjected to cross-examination. In the
cross-examination, he admits that on the date of the incident, he
went to spot around 11.15 p.m. to 11.20 p.m. and he met
Mayannagowda at the spot. At that time, there was not galatta
and he was there for about 2½ hours and he inspected the spot
thoroughly and though he admits that he noted in his notebook
regarding the call received from Mayannagowda, he did not
mention the same in the notebook. He also admits that while
going to the spot, he has to mention the same in the Station
House Diary, but he did not remember the same. He also admits
that when he receives the information, he has to make an
enquiry in detail and is having the power to issue FIR and there
is no difficulty to record the statement of P.W.12-Mayannagowda
and he came back to Police Station at around 01.30 a.m. and he
was in the station for about half an hour and again, he went to
49
the incident spot at 02.00 a.m. and was there till 06.00 a.m. and
again, he went to spot on the same day at 11.00 a.m. and found
Mayannagowda, Umashankar and other persons and again, he
enquired both Mayannagowda and Umashankar in detail. He has
also noted down at the time of enquiry the details given by
Mayannagowda and Umashankar, but he has not recorded their
statement. He also says that spot was shown by Mayannagowda
and also categorically admits that when he inspects the spot, he
can seize the articles at the spot and he is having such powers
and he had noticed the sign of incident at the spot and even
noticed M.O.1 to M.O.3 at the spot and there was no any
difficulty to seize M.O.1 to M.O.3 when he noticed the same. But,
he says that case was not registered, hence, he did not seize the
same and also says that he did not mention the same in the case
register, mahazar or in the Station House Dairy, since he did not
seize the same. He also admits that when he met and enquired
Mayannagowda, he came to know about the cognizable offence
and there was no any difficulty to register the case. But, witness
volunteers that management people have told him that they are
going to give complaint. Hence, he did not register the case. He
50
also categorically admits that they have not given any complaint
till the next day evening 06.00 p.m. He admits that when he
went to the incident spot, twice he had visited from previous day
night 11.00 p.m. to early morning and the same is also part of
the investigation. For having not registered the case also not
mentioned in the Station House Dairy and also did not conduct
any enquiry on 20.03.2011 from 11.00 a.m to 07.00 p.m. He
also admits that accused No.17 gave the complaint on the
previous day itself and the same was received by P.C.No.449-
Chandrappa and criminal miscellaneous was registered. He also
admits that Crime No.174/2011 was registered after the
registration of case of the management for the offence
punishable under Section 323 and Section 3(10) of SC & ST
(POA) Act. He also admits that P.C.No.449-Chandrappa was
there in the department on 19.03.2011 and management
complaint was registered in Crime No.173/2011 and thereafter,
the complaint of accused No.17 was registered subsequently.
42. Having considered all these admissions on the part
of P.W.15, it is very clear that immediately when he came to
51
know about the incident and met P.W.12- Mayannagowda,
P.W.1-Lokesh and Umashankar and thoroughly inspected the
spot and noticed M.O.1 to M.O.3 and also found that it is a
cognizable offence, he did not register the case and even after
detailed enquiry was made, he did not choose to record the
statement of these witnesses and waited till lodging of complaint
by the management till next day evening. When such being the
case, it is clear that he had discussed with the management and
deliberately not registered the case, though it had come to his
knowledge that it is a cognizable offence and waited till lodging
of complaint by the management. Hence, the judgments which
have been relied upon by learned counsel for the petitioners
referred supra reported in AIR 1993 SC 2644 and the
judgment of the Division Bench of this Court in ILR 2013 KAR
992 are aptly applicable to the case on hand and Sections 154
and 162 of Cr.P.C. are pressed into service in favour of the
petitioner that FIR and statement was recorded only after
lodging of complaint by the management and there was delay of
19 hours and also no explanation on the part of P.C., who took
the FIR to Court on the next day and almost, it is more than 30
52
hours of delay in taking the FIR to the Court, though it was
allegedly dispatched on the previous day evening and the same
is not explained by the prosecution as to the delay. Hence, the
same is hit by Section 162 of Cr.P.C. as held in the judgment of
the Apex Court as well as the judgment of the Division Bench of
this Court.
43. The another point for consideration by this Court is
that whether both the Courts have committed an error in relying
upon MO4 to MO6 for convicting the accused persons.
44. This Court already discussed with regard to MO6 is
concerned and the same is a CD and there is no Certificate under
Section 65B(4) of the Indian Evidence Act which mandates that
whenever secondary evidence is placed before the Court, there
must be a Certificate. No doubt, mahazar was made while
seizing MO6-CD and the same was done in the Police Station,
not in the factory premises. It is also emerged in the evidence of
PW1 that he had prepared the same on the instructions of the
police and the same was prepared based on the footage of CCTV
camera and the same was copied in a different place and the
53
said fact was not mentioned in the complaint. Hence, it is clear
that PW1 prepared the CD. PW1 evidence is very clear that he
had shown the CCTV camera to the Investigating Officer. The
presence of CCTV camera was not noted in the mahazar and
nothing is mentioned in the mahazar for having witnessed the
CPU and its visuals by the Inspector and the police have also did
not collect the same. But, only says that Inspector told him to
give CD and based on the said instruction, he prepared the CD.
PW1 also categorically admits that police did not witness the CPU
and even CPU was not sealed and police were very much present
in the vicinity for two days and no instruction was given for not
to use the same.
45. PW1 further admits that in the presence of police, he
could have prepared the CD and there was no difficulty to do the
same. He categorically says that after the police left the scene of
occurrence, he prepared the CD and Police have also not given
any acknowledgment for having received the CD. But mahazar
only discloses seizure of the CD that too which was drawn in the
police station. PW1 categorically admits that Inspector did not
54
see the CD visuals in his presence and also he cannot remember
whether the CD was sealed in a pack or not and whether his
signature was taken or not and police also did not see the CD
visuals in his presence.
46. Having taken note of these admissions on the part of
PW1, it is clear that he prepared the CD and handed over the
same to the police and the same was not sealed by any cover.
Apart from that whether CD was morphed or not or whether it is
genuine or not, no evidence before the Court. It is also
important to note that MO6 is not the primary evidence and the
same is a secondary evidence since PW1 transmitted the visuals
to the CD. The police did not even see the CD visuals in the
presence of PW1 and even the same is not sent for FSL to obtain
opinion that whether it is a genuine or not and also not taken
any report from the concerned department to prove that
whether the same is genuine or not. There is no any material
before the Court to show that whether the CD was morphed or
not and the same also not transmitted to the CD in the presence
of the police. Nothing is mentioned in the mahazar except
55
drawing of mahazar at Ex.P3 in the police station. Hence, when
the CD becomes as secondary evidence, it requires Certification
under Section 65B(4) of the Indian Evidence Act.
47. The Court also ensure the admissibility of CCTV
footage as evidence. To make CCTV footage admissible in the
Court, it should (i) ensure the system was functioning properly
during recording; (ii) maintain an unbroken chain of custody to
avoid tampering; (iii) obtain certificate under Section 65 of the
Indian Evidence Act from the operator or custodian of the CCTV
system. The seizure of hard discs in India must be conducted
with careful adherence to legal procedures to ensure the
integrity of the evidence and protect the rights of the person.
Key steps include creating mirror images, maintaining of chain of
custody and involving forensic experts. Failure to follow these
procedures can jeopardise the prosecution case and lead to
acquittals based on insufficient evidence. It is advisable to
consult with forensic experts and legal counsel throughout the
process to ensure compliance with legal requirements. Always
prepare a detailed seizure memo during the seizure of hard
56
discs. Engage forensic expert to create and verify mirror images
of the hard disc and failure to follow proper procedure can lead
the challenges regarding the admissibility of the evidence and
nothing is done in this case.
48. The Court procedure also the sealed mirror images of
the hard disc should be presented in Court for inspection by
experts from both parties. If an infringement is found, the
plaintiff must file an affidavit based on the findings as held in
MICROSOFT CORPORATION AND ANOTHER vs DHIREN
GOPAL AND OTHERS reported in 2010 (114) DRJ 248. The
Court may order the return of the hard disc or its copies to the
accused under specific conditions to prevent misuse as held in
SCREEN CRAFT vs STATE OF KARNATAKA AND OTHERS
reported in 2008 SCC ONLINE KAR 849.
49. A detailed record of the chain of custody must be
maintained for all evidence, including hard discs. This includes
documenting every transfer of the evidence to different
authorities or experts as held in VAIJINATH vs STATE OF
MAHARASHTRA reported in 2019 SCC ONLINE BOM 1357.
57
50. The Court may order the return of the hard disc or
its copies to the accused under specific conditions to prevent
misuse and also during the seizure, a seizure memo should be
prepared, documenting the details of the hard disc taken and the
same ensure a clear record of what was seized and under what
circumstances and the same was held in RASHID vs
STATE'case delivered on 27.05.2016 in Crl.A.No.1005/2014.
The hard disc should be sealed immediately after seizure to
maintain the chain of custody and prevent tampering and same
is held by the Delhi High Court in the case of MANOJ vs STATE.
51. In the case on hand, no such procedure is followed
regarding seizure of MO4 and MO5 and no seizure at all and
PW15-I.O. not spoken anything about MO4 and MO5. PW1
before the Court says that he is producing the same before the
Court, that too on 17.12.2012 voluntarily and till then, where it
was and what happened, nothing is stated by PW1.
52. It is crucial to involve forensic experts in the process
to create a forensic duplicate copy of the hard disc. This
includes generating hash values to verify that the data has not
58
been altered as held in STATE OF KARNATAKA vs NASIR
LIYAKATALI PATEL AND OTHERS reported in 2017 SCC
ONLINE KAR 4532.
53. In the seizure process, key procedures to be followed
during the seizure, a seizure memo should be prepared,
documenting the details of the hard disc taken which ensures a
clear record of what was seized and under preparation of mirror
images. In case involving suspected use of pirated software or
data, it is recommended to create a mirror image of the hard
disc rather than seizing the physical device. This method
preserves the data while allowing the original device to remain
with the person, thus, preventing potential misuse or blackmail
by the parties and the same is held in the case of MICROSOFT
CORPORATION referred supra.
54. The procedure for seizing hard discs in the Indian
judiciary system involves specific steps to ensure the integrity of
the evidence and to prevent misuse. The following points
summarise the key procedures based on the provided legal
documents. The seized device or media must be sealed in a
59
tamper-proof evidence bag, clearly labeled and securely stored
in the 'malkhana' (police evidence locker) and also obtained a
certificate under Section 65B for authenticity from the systems
custodian.
55. But in the case on hand, abruptly, PW1 produces the
same before the Court and marked the same. For the footage to
be accepted in Court, it must be accompanied by a certificate as
per Section 65B of the Evidence Act. This certificate must be
issued by the person in legitimate control of the Electronic
Device and secure the original device or extract a forensic copy
of the footage and take photographs or video of the seizure
process and record the chain of custody with signatures of all
parties present and every step of seizure and transfer must be
meticulously documented in a panchanama in the presence of
witnesses. seized, or a forensic copy of the footage can be
extracted onto a reliable storage medium like a USB drive or
external hard disc using write-blocking technology to protect the
original data. The method of acquisition depends on the
situation. The entire DVR/NVR unit may be seized or a forensic
60
copy of the footage can be extracted onto a reliable storage
medium and also identify the location and ownership of the CCTV
system and note the date, time and system details to prove the
CCTV footage. An authenticity and the defense can challenge
the footage if there is a possibility of manipulation. Generating
and documenting cryptographic hash values of the footage is a
standard forensic practice to ensure its integrity has not been
compromised. Proper seizure of the footage should be acquired
forensically, this often involves taking a mirror image of the
original storage device rather than just a simple copy to
preserve all and certification. If the footage is considered as
secondary evidence (e.g., a copy of transferred to another
drive), it may require an authentication certificate from the
person in lawful control of CCTV system, as per relevant
evidence under Section 65B of the Act. If the original hard disc
containing the footage is seized as primary evidence, this
certificate might not be required, but no such procedure is
followed.
61
56. But in the case on hand, no material for having
seized the original hard disc, no such above procedure was
adopted. Except producing the same before the Court through
PW1, there is no material for having original CPU which is
marked as MO4 was seized but placed before the Court on
17.12.2012 abruptly more than a year and no material is placed
how the same is produced before the Court and strict procedure
must be followed and no such procedure is followed and where it
was there till then. Identification of the location and ownership of
the CCTV system and note the time, date and systems and
ensure independent witnesses are present during the seizure and
secure the footage to prevent it from being overwritten and
acquisition and documentation must be made and all these steps
and key procedures are not followed. The production of MO4
and MO5 made through PW1 abruptly after 1 year 2 months
before the Court and no evidence to show that the above all
procedures are followed.
57. Having perused P.F.No.112/2011, the same is in
respect of only seizure of MO1 to MO3 while drawing the
62
mahazar in terms of Ex.P2 and other P.F. No.113/2011 is in
respect of seizure of CD which is marked as MO6 but in respect
of MO4 and MO5 are concerned, there is no seizure at all but
abruptly at the time of recording the evidence of PW1, the same
was produced and PW1 says that he is producing the same
before the Court while giving the evidence almost after a year.
Thus, no procedure as discussed above is followed and no
seizure at all about MO4 and MO5. The Investigating Officer who
has been examined as PW15 also not spoken anything about the
same stating that the same has been seized or given to
anybodies custody and also with regard to preservation. Hence,
MO4 and MO5 are not the part of charge-sheet and charge-sheet
documents reveals only P.F.Nos.112/2011 and 113/2011.
58. The Apex Court in the judgment reported in AIR
2020 SC 1 in the case of P GOPALKRISHNAN ALIAS DILEEP
vs STATE OF KERALA AND ANOTHER it is held with regard to
the compliance of Section 207, proviso 1, Section 173(5) - right
of accused to get copies of documents. The duty of the
Magistrate under Section 207 does not empower Magistrate to
63
withhold any "document" submitted by Investigating Officer
along with police report, unless it is voluminous. It is further
held with regard to Section 3 and Section 65B of the Indian
Evidence Act and even in respect of Information Technology Act,
it is held that document whether it is under the Information
Technology Act or any other document contents of memory-
card/pen-drive would be a "matter" and memory-card itself
would be a "substance". Hence, contents of memory-card would
be a "document" and meaning of document also discussed in
detail and also discussed with regard to the invoking of Article 21
of the Constitution of India wherein it is held that the right of the
accused to get copies of documents and that must be furnished
to accused in form of cloned copy of the same.
59. In the case on hand, first of all, MO4 and MO5 have
not been seized and even not subjected in P.F. and abruptly
placed before the Court without affording any opportunity.
When such being the case, the Trial Court and the First Appellate
Court ought not to have relied upon the said documents. I have
already pointed out that even in respect of CD which is marked
64
as MO6 also, no certificate under Section 65B(4) of the Act.
Hence, the Trial Court as well as the First Appellate Court
erroneously relied upon MO4 to MO6.
60. Regarding revisional jurisdiction is concerned, this
Court has to take note of the principles laid down in the
judgment of the Apex Court reported in (2012) 9 SCC 460 in
the case of AMIT KAPOOR vs RAMESH CHANDER AND
ANOTHER wherein categorically held that the revisional Court
may interfere where the findings of the subordinate Courts are
perverse, manifestly illegal or grossly unjust. Further, it is held
that justice must not only be done but it must manifestly appear
to be done or otherwise it will amounts the fundamental principle
of constitution under fundamental right of the party would be
defeated and both the Courts have to independently analyse the
evidence by adopting the reasoning of the Trial Court almost
verbatim, demonstrates, non-application of mind by the First
Appellate Court which amounts to miscarriage of justice. The
revisional jurisdiction of this Court exists precisely to correct
such errors as observed in the said judgment.
65
61. This Court would like to rely upon the judgment of
the Apex Court reported in (2017) 3 SCC 198 in the case of
STATE OF RAJASTHAN vs FATEHKARAN MEHDU wherein it
is held that interference in revision is justified when the lower
Courts have ignored the material evidence, applied wrong legal
principles or rendered findings that shock the judicial conscience.
The errors committed in the instant case are of precisely such a
nature and the same can be corrected by exercising the
jurisdiction under Section 397 of Cr.P.C. The jurisdiction of this
Court under Sections 397 and 401 of Cr.P.C. is intened to ensure
that findings of subordinate Courts are not vitiated by gross
misrepresentation of evidence, error of law or miscarriage of
justice. It is well settled law that while revisional power is not to
be exercised as a second appeal, the revisional Court is duty
bound to interfere where the findings under challenge are
perverse, manifestly illegal or based on no evidence, when it
leads to miscarriage of justice.
62. Having perused the material on record and in detail
discussion, it is clear that both the Trial Court and the First
66
Appellate Court have disregarded the fundamental principle that
concurrent findings cannot shield perverse reasoning. The
mechanical repetition of the Trial Court's conclusions by the First
Appellate Court, without independent appraisal of the evidence,
constitutes non-exercise of appellate jurisdiction under Section
386 of Cr.P.C. The revisional jurisdiction of this Court therefore,
stands squarely attracted. As held in the judgment of SANWAT
SINGH & OTHERS vs STATE OF RAJASTHAN reported in AIR
1961 SC 715 even concurrent findings of fact may be disturbed
in revision when they are shown to be based on misreading of
evidence or on disregard of vital material.
63. Having perused the material on record which have
been discussed above also nothing but the First Appellate Court
made an endorsement on the Trial Court reasoning which is
nothing but a miscarriage of justice which is manifest on the face
of record. The decision of the First Appellate Court is
unsustainable not only because it is perverse in reasoning but
also because it fails to conform to the minimum standards of
judicial evaluation. It does not frame points for determination, it
67
does not analyse evidence witness-wise or exhibit-wise and it
ignores binding precedent. Such an order cannot be permitted
to stand as a judicial pronouncement.
64. The Apex Court in CHANDRAPPA AND OTHERS vs
STATE OF KARNATAKA reported in (2007) 4 SCC 415 held
that an First Appellate Court is obliged to examine whether the
view of the Trial Court is possible view. The view adopted here
is not merely improbable but impossible in light of the record.
The revisional power exists precisely to rectify such aberrations.
65. Having analysed and reevaluated the material on
record it is clear that both the Courts have committed an error in
not considering the legal evidence available on record. There is
no legal evidence in respect of MO4 to MO6 and also even with
regard to the overt act as deposed in the evidence but not
before the Investigating Officer and Investigating Officer also
categorically admitted during his cross-examination that none of
the witnesses have spoken about overt act allegation against any
of the accused persons and nothing was elicited from the mouth
of PW15. But both the Courts comes to the conclusion that
68
accused have committed the offences but it amounts to a
miscarriage of justice. If revisional Court fails to exercise the
revisional power, it amounts to fundamental error in considering
the material on record as committed by the Trial Court and the
First Appellate Court. Hence, it is a fit case to exercise the
revisional power.
66. No doubt, the counsel appearing for the petitioners
relies upon the judgments of ANVAR P V and ARJUN PANDIT
RAO KHOTKAR referred supra. In those two cases, it is
specifically held that Certificate is mandatory. Even the counsel
for the State also brought to notice of this Court paragraph 24 of
the ANVAR P V's case referred supra, wherein the Apex Court
discussed in detail that the situation would have been different
had the appellant produced primary evidence, by making
available in evidence, the CDs used for announcement and
songs. CDs were made therefrom which were produced in Court,
without due certification. Those CDs cannot be admitted in
evidence since the mandatory requirement of Section 65B(4) of
the Evidence Act are not satisfied. Hence, it is clear that in the
69
absence of certification, the same cannot be relied upon. Even
the Apex Court in the said judgment clarified that
notwithstanding what we have stated herein in the preceding
paragraphs and secondary evidence of electronic record with
reference to Sections 59, 65A and 65B of the Evidence Act, if an
electronic record as such is used as primary evidence, the same
is admissible in evidence, without compliance with the conditions
in Section 65B of the Evidence Act. Hence, it is clear that there is
no any primary evidence and CD is a secondary evidence.
67. Even the counsel also relied upon the judgment of
ARJUN PANDIT RAO KHOTKAR's case referred supra wherein
discussion was made that the requisite certificate in sub-section
(4) is unnecessary if the original document itself is produced.
This can be done by the owner of a laptop computer, computer
tablet or even a mobile phone, by stepping into the witness box
and proving that the device concerned, on which the original
information is first stored, is owned and/or operated by him. In
cases where the computer as defined, happens to be a part of a
computer system or computer network and it becomes
70
impossible to physically bring such network or system to the
Court, then the only means of proving information collected in
such electronic record can be in accordance with Section 65B(1),
together with the requisite certificate under Section 65B(4). But
in the case on hand, it is very clear that CD is prepared, but no
certificate is produced before the Court. Thus, the same is not
the primary evidence, and it is a secondary evidence. Hence,
both the Courts ought not to have relied upon CD.
68. The other contention raised by the respondent/State
is that MO4 and MO5 are also produced before the Court. MO4 is
the CPU and MO5 is the device. It has to be noted that the
evidence of PW1 is very clear that the IO did not see the CPU
and also he did not see even the visuals of MO6 as well as MO4
and MO5. Even there was no any difficulty to seize the same by
PW15 at the spot itself when spot inspection was conducted. The
evidence of PW1 is very clear that he had shown the CCTV
camera to the Investigating Officer and the presence of CCTV
camera, but the same was not noted in the mahazar while
drawing the spot mahazar as per Ex.P2 and nothing was
71
mentioned in the mahazar for having witnessed the CPU and its
visuals by the Police Inspector. It is also admitted that police
also did not collect the same and only instruction was given to
give the CD. PW1 categorically admits that police did not witness
the CPU and even CPU was not seized and sealed in a pack and
police were very much present and no instruction was given. But
surprisingly, the CPU and its device at MO4 and MO5 were not
seized by the Inspector who had visited the spot and he did not
notice the same. But during the course of evidence, the same
was produced before the Court that too through PW1. The IO did
not conduct any mahazar, seizure and there is no PF. But
surprisingly, produced the same before the Court through PW1
after long time. Thus, the requisite of mahazar is not done.
Whatever the material objects seized by the Investigating
Officer, the same has to be seized by drawing a mahazar. In
order to substantiate the same, there must be witnesses to the
said seizure, but no such seizure and no such witnesses for the
same. But the trial Court and the First Appellate Court relied
upon MO4 and MO5 and the same are not the legal evidence
before the Court since, in the absence of any mahazar and
72
seizure of MO4 and MO5 by the Investigating Officer in the
presence of punch witnesses, MO4 and MO5 were produced.
Thus, no procedure was followed and surprisingly, the same
were produced before the Court through PW1 and PW15 -
Investigating Officer did not speak anything about MO4 and MO5
and even no statements of any of the witnesses were recorded
in this regard.
69. It is not the case of PW1 that he had produced MO4
and MO5 before the police and investigation conducted by the
Investigating Officer also even did not disclose the same in the
case diary or in any of the prosecution materials for having
seized CPU and its device at MO4 and MO5. In the absence of
legal evidence, the Court cannot look into the same. But both
the Courts have relied upon the same against the accused which
is not part of the investigation. Hence, the judgments relied
upon by the learned counsel appearing for the respondent-State
i.e., ANVAR P V and ARJUN PANDIT RAO KHOTKAR's case
referred supra would comes to the aid of the State to consider
MO4 and MO5. The very principle laid down in the judgments is
73
very clear that if primary evidence is produced, there cannot be
any insistence of Certificate. But in the case on hand, MO4 and
MO5 are not the part of the investigation and surprisingly
through PW1, the same was produced before the Court without
following the procedure by drawing the mahazar about the
seizure and IO also did not seize the same. Hence, the very
contention of the counsel for the State cannot be accepted.
70. However, the learned counsel appearing for the
respondent-State brought to notice of this Court the judgment of
the Apex Court reported in the case of R M MALKANI referred
supra and brought to notice of this Court paragraph 24 wherein
discussion was made that illegality was said to be a
contravention of Section 25 of the Indian Telegraph Act. There is
no violation and the same is with regard the tape recorded
conversation which was obtained by illegal means and even if
the evidence is illegally obtained and the same admissible. The
said judgment also will not come to the aid of the State since
MO5 and MO6 are not the part of investigation material. But
surprisingly, placed before the Court through PW1 and PW15
74
never speaks anything about seizure of CPU and its device that
is MO4 and MO5. Whatever the material collected by the
Investigating Officer as contemplated in Cr.P.C, the same has to
be provided to the accused to meet the case of the prosecution.
But no such opportunity was given to the accused person to
meet the case of the prosecution and surprisingly the same was
marked through PW1 when the same was not part of the
investigation and also not the material collected against the
accused during the course of the investigation and Investigating
Officer only has given instructions to PW1 to produce the CD.
The same is also not prepared in the presence of the
Investigating Officer. Hence, nothing discloses about the
collecting of MO4 and MO5 during the course of investigation.
Thus, the same cannot be relied upon as against the accused
without supplying the same. Hence, both the Courts have failed
to take note of the same and lost sight to consider the MO4 and
MO5 as well as no certificate with regard to MO6. Hence, both
the Courts have committed an error in relying upon MO4 to MO6.
75
71. The other contention was raised by the State is that
the revision petition is not maintainable in the absence of any
sentence or an order on Probation of Offenders Act. No doubt, on
perusal of the operative portion of the order of the Trial Court, it
discloses that there is no any sentence. But an observation is
made that Probation of Offenders Act could be invoked in the
case on hand. It is also noticed that an order was passed to
secure the report of probation officers. But no date was fixed for
consideration of the report of probation officers and nothing
discloses that such report was obtained. But this Court having
noticed the same, obtained the report and the same is the part
of record of this Court and no such report against the petitioners'
herein. At this juncture, this Court would like to extract Sections
3 and 4 of the Probation of Offenders Act, 1958 (for short 'the
Act of 1958'), which read as follows:
3. Power of court to release certain
offenders after admonition.--When any person is
found guilty of having committed an offence
punishable under section 379 or section 380 or
section 381 or section 404 or section 420 of the
Indian Penal Code, (45 of 1860) or any offence
76
punishable with imprisonment for not more than two
years, or with fine, or with both, under the Indian
Penal Code or any other law, and no previous
conviction is proved against him and the court by
which the person is found guilty is of opinion that,
having regard to the circumstances of the case
including the nature of the offence, and the
character of the offender, it is expedient so to do,
then, notwithstanding anything contained in any
other law for the time being in force, the court may,
instead of sentencing him to any punishment or
releasing him on probation of good conduct under
section 4, release him after due admonition.
4. Power of court to release certain
offenders on probation of good conduct.--(1)
When any person is found guilty of having committed
an offence not punishable with death or
imprisonment for life and the court by which the
person is found guilty is of opinion that, having
regard to the circumstances of the case including the
nature of the offence and the character of the
offender, it is expedient to release him on probation
of good conduct, then, notwithstanding anything
contained in any other law for the time being in
force, the court may, instead of sentencing him at
77
once to any punishment direct that he be released
on his entering into a bond, with or without sureties,
to appear and receive sentence when called upon
during such period, not exceeding three years, as
the court may direct, and in the meantime to keep
the peace and be of good behaviour:
Provided that the court shall not direct such
release of an offender unless it is satisfied that the
offender or his surety, if any, has a fixed place of
abode or regular occupation in the place over which
the court exercises jurisdiction or in which the
offender is likely to live during the period for which
he enters into the bond.
(2) Before making any order under sub-section
(1), the court shall take into consideration the
report, if any, of the probation officer concerned in
relation to the case.
(3) When an order under sub-section (1) is
made, the court may, if it is of opinion that in the
interests of the offender and of the public it is
expedient so to do, in addition pass a supervision
order directing that the offender shall remain under
the supervision of a probation officer named in the
order during such period, not being less than one
year, as may be specified therein, and may in such
78
supervision order impose such conditions as it deems
necessary for the due supervision of the offender.
(4) The court making a supervision order
under sub-section (3) shall require the offender,
before he is released, to enter into a bond, with or
without sureties, to observe the conditions specified
in such order and such additional conditions with
respect to residence, abstention from intoxicants or
any other matter as the court may, having regard to
the particular circumstances, consider fit to impose
for preventing a repetition of the same offence or a
commission of other offences by the offender.
(5) The court making a supervision order
under sub-section (3) shall explain to the offender
the terms and conditions of the order and shall
forthwith furnish one copy of the supervision order to
each of the offenders, the sureties, if any, and the
probation officer concerned.
72. Having considered the proviso which have been
referred above, it is very clear that the Court has power to
release certain offenders after admonition when any person is
found guilty of having committed an offence under Section 3 of
79
the said Act of 1958 instead of sentencing him to any
punishment or releasing him on probation of good conduct under
Section 4 of the said Act of 1958. Section of 4 of the said Act of
1958 also very clear that the Court has power to release certain
offenders on probation of good conduct. No doubt, the Trial
Court also invoked the provisions of the Act of 1958 and called
for the report. But based on the said report, not exercised the
powers under Section 4 of the Act of 1958 except calling of the
report no order was passed. Hence, the very contention of the
counsel appearing for the State cannot be accepted since the
very conviction itself is stigma on the revision petitioners and
also the petitioners lost their job on account of this incident of
conviction.
73. The counsel for the State in support of his arguments
relied upon the judgment of Rattan Singh referred supra and
brought to notice of this Court paragraph 2 wherein an
observation is also made that when the legislature in its wisdom
has not permitted an appeal against the order of the Court of
sessions in which the sentence passed only was imprisoned for a
80
term not exceeding 3 months or a fine not exceeding Rs.200/- or
both such imprisonment and fine, it cannot be conceived that an
appeal was permissible when no sentence at all had been
passed. No doubt, in the case on hand, no sentence was passed.
But an observation is made that Probation of Offenders Act could
be invoked and hence, this judgment also will not comes to the
aid of the State and also called the report to invoke Section 4 of
the Act.
74. The counsel also relied upon the judgment of Man
Singh's case referred supra and relies upon paragraphs 8, 9 and
11 wherein also discussion was made with regard to invoking of
Section 482 of Cr.P.C. The Trial Court had given reasons for not
giving benefit of probation. When the High Court was deciding
the revision petition against the order of conviction, it could
have, after calling for a report of the probation officer in terms of
Section 4 of the Act, granted probation. But in the case on hand,
it has been noted that the Trial Court has not invoked the
Probation of Offenders Act. But High Court has invoked the said
Act. But conviction was upheld.
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75. But in fact reduced the sentence to the period
already undergone meaning thereby that the conviction was
upheld and sentence was imposed. In paragraph 9 discussed
that another error is that the order quoted hereinabove has been
passed in violation of the provisions of Section 4 of the Act which
mandates that before releasing any offender on probation of
good conduct, the Court must obtain a report from the probation
officer and then order his release on his entering bonds with or
without securities, to appear and receive sentence when called
upon during such period, not exceeding three years or as the
Court may direct, and in the meantime to keep peace and good
behaviour. The proviso of sub-section (1) of Section 4 clearly
provides that Court cannot order release of such an offender
unless it is satisfied. But in the case on hand, it has to be noted
that only a report is called for and also the Court is not satisfied
that offender or his surety has a fixed place abode. But no such
order was passed. Hence, the very contention of the learned
counsel appearing for the respondent-State that revision is not
maintainable cannot be accepted as there is no such order,
invoking of Probation of Offenders Act, though an observation is
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made that it could be invoked, but called the report and no order
was passed but conviction order is in force.
76. Having considered the material with regard to the
merits is concerned, this Court has to take note of the fact that
whether the Court can exercise its revisional jurisdiction in
coming to the conclusion that reasoning of both the Courts
amounts to miscarriage of justice. This Court already in detail
considered the evidence of P.W.1 wherein it clearly discloses that
he was very much present at the time of the incident. But he did
not lodge the complaint, till there was a discussion with P.W.12,
Mayanna Gowda and both of them discussed and then lodged
the complaint. This Court already pointed out that PW15-
Investigating Officer was very much present immediately after
the incident whole night and also in the next day morning till
evening i.e., till the registration of the case. Thus, it is nothing
but deliberately not recorded the statement of any of the
witnesses when he was very much present and the offences
which have been attributed are cognizable offences. PW15 also
categorically admits that he did not register the case since the
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management told him that they are going to lodge the
complaint. Hence the evidence of PW1 and PW15 not inspires the
confidence of the Court. However, the prosecution also relies
upon the evidence of injured witnesses.
77. It is emerged during the course of evidence that they
did not go to any of the hospitals which are very near to the
vicinity of the incident place, but went to the hospitals which are
far from the place of incident. The witnesses also categorically
admitted that hospitals are nearby located from the incident
place both private and government hospitals. Apart from that
the wound certificates which have been produced through the
doctor at Ex.P4 and P5, history is given as assault by mob and
not mentioned the name of any of the accused persons. Hence,
it is clear that this incident was a mob fury and also the victims
were unable to point out the role of any of the particular accused
persons at the time of giving history and the same is evident
from Ex.P4. Ex.P5 is also very clear that the victim went to
hospital on the next day not on the same day and only history of
assault was given and no details of particular accused has
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assaulted him. So also Ex.P6 is of the next day at 10.05 a.m.,
and the incident was on the previous day and immediately after
the incident, the victim did not rush to the hospital. Thus, these
documents clearly discloses that all of them went to the hospital
on the very next day and there was a deliberation by the
Management along with them and also not pointed out any
assault by any of the particular accused.
78. Another wound certificate at Ex.P8 is from the
K.R.Hospital with history of assault by the employees around 30
members but not mentioned the timings on what time, the
patient went to hospital. In Ex.P9, except stating the history of
incident on 19.03.2011 at 10.30 a.m., no timing is mentioned
that at what time, the patient went to the hospital and on what
date, he went to the hospital. So also in Ex.P10, the similar
history is mentioned. Hence, all these documents clearly disclose
that these certificates are obtained from the K.R. hospital
wherein there is no history of involvement of any of the accused
persons was given and date of visit made by the injured to
hospital is also not mentioned. Hence, there is a force in the
85
contention of the counsel appearing for the revision petitioners
that in the absence of any particular history of treatment that at
what time, it was taken and what time he had been to the
hospital, Ex.P8 to P10 cannot be relied upon. I have already
pointed out that other wound certificates at Ex.P4 to Ex.P6
disclose that only an after thought, the injured persons went to
the hospital and only given history of assault but not mentioned
the name of any of the accused persons. Admittedly, it is a
history of mob fury and 30 accused persons have been arrayed
as accused and no single overt act allegations against any of
those accused persons at the first instance but there was an
improvement in the case of prosecution while giving complaint
given even badge numbers of employees.
79. It is also emerged that the statement of these
witnesses were recorded as per the Investigating Officer on
25.03.2011 i.e., after the sixth day of the incident. But, it is
categorically admitted by the P.W.15 that date 28.03.2011 was
corrected as 25.03.2011. Hence, it is clear that even according
to the statement of witnesses that is particularly injured
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witnesses were also tampered mentioning the date as
25.03.2011 instead of 28.03.2011. If, in one case, it is altered,
the Court can accept the same, but in all the cases, the dates
are tampered as 25.03.2011.
80. The witness P.W.2 in his evidence speaks about he
also witnessed the incident and when they were assaulting, he
also ran towards First Aid room and he was also assaulted by
Thimmaraju on his nose, as a result blood came out and others
were also assaulting others. He specifically says that Girish and
Shivakumar came to the said spot and taking the steel window
frame assaulted on his head by Girish and Shivakumar assaulted
him with First Aid box. This witness was subjected to cross-
examination and in the cross-examination, he categorically
admits that while coming to Kirloskar, there is a Columbia
Hospital and also there is a Nursing home at Kengeri and
Government Hospital and to proceed infront of Rajarajeshwari
Hospital. There are private and Government Hospital at Bidadi.
Even he did not go to the Police Station and gave the statement
and on the next day also he did not go to the company and even
87
not availed a leave and also admits that he was in need of taking
immediate treatment, but admits that no Hospital in the campus,
but having First Aid Centre. He categorically admits that he
would have taken treatment either in the private Hospital or in
the Government Hospital, but he did not make any such attempt
and hence, this evidence is clear that he did not got to the
Hospital, only on the advice of the Management, he went to
Hospital and he did not visit any of the Hospital which were near
the vicinity and the wound certificate also doesn't disclose the
timings of treatment. He categorically admits that when the
assault was made and he gave the statement, there was no any
difficulty to mention the name of the persons who assaulted
them. He categorically admits that he will not give any
statement as against the management at any point of time and
Police have also not seized any bloodstain cloth and also even
not shown to them and even he did not see the same. Hence,
this evidence also not supports the case of prosecution and does
not inspire the confidence of the Court and he was very much
present when the Police came to vicinity but not given complaint
in writing immediately.
88
81. The other witness is P.W.3, who is also an injured.
He speaks about the overt act. He admits that their family has to
be run based on the salary given by the Management. He also
admits that there are Hospitals near the vicinity of the place of
incident and he did not go to any of the Hospital which are near
to the place of incident and only went to Hospital on the next
day after deliberation with the management.
82. The other witness P.W.4, who is also an injured
witness. He says that accused persons assaulted with equipment
and caused the damages of computers and nothing is seized. He
gave the complaint along with P.W.1 and Deepak. He also admits
that while seizing MO.1 to MO.3, himself, Mayanna,
Umashankar, P.W.1 and Deepak were there and he went to K.R
Hospital. He also admits that there are Hospitals in Bidadi and
also there is a Rajarajeshwari Hospital on the way and also
Government Hospital at Kengeri and other Hospitals are also
there nearby the place of incident and suggestion was made that
he has not taken any treatment at K.R Hospital and documents
are created and the evidence of this witness also not inspires the
89
confidence of the Court having considered the admissions and
only after thought went to K.R Hospital on the next day.
83. The P.W.5 also deposed that he was abused and
assaulted. He also categorically admits that surrounding the
place of incident, there are private and Government Hospitals,
but he says that he went to the Sahana Hospital and he also did
not take the treatment in the surrounding Hospital. But, he went
to Fortis Hospital after 2 days and hence, it is clear that after
deliberation went to the Hospital for creation of document.
84. The other witness is P.W.6 and he also says that he
was abused in a filthy language and assaulted. In the cross-
examination also he admits that he did not go to nearby any of
the Hospital. He was not taken to any Hospital when the Police
came to the spot and Police also did not see the injuries on his
body and he did not show the injuries to the Police, but, he
orally stated about the injuries sustained by him and hence, it is
clear that document of wound certificate are created after
deliberation.
90
85. The other witness is P.W.7 and he was also an
injured. He says that when the Police came, he informed about
the incident to the Police. He speaks about the incident was
taken place in respect of wages is concerned, but he was not
sent to Hospital by the Police immediately, but went to Hospital
after thought.
86. Having considered the evidence of these injured
witnesses and the same has to be considered coupled with the
evidence of I.O who has been examined as P.W.15. Whether the
evidence of these witnesses corroborates with each other. In the
cross-examination of P.W.15-I.O, this Court already discussed
with regard to that he rushed to the place of incident
immediately, but not recorded the statement of any of the
witnesses including the injured witnesses also at the spot and
some of the witnesses also says that they did not bring it to the
notice of injuries sustained by them to the I.O at the spot.
87. The P.W.15 categorically admits that immediately
after filing of complaint, he has to record the statement of
injured as well as eye witnesses. But, injured statements were
91
not recorded immediately. This Court already pointed out that
injured statements are recorded according to prosecution on
25th, but dates are changed as 25th instead of 28th and there are
manipulations in the said statement with regard to the date of
recording of statement of witnesses only with an intention to put
early date.
88. The P.W.15 also categorically admits that he did not
go to any of the Hospital to record the statement of any of the
injured witnesses, but P.W.15 says that he did not get time to go
and record the statement of injured witnesses, but he got time
to be there in the incident spot on that day and also on the next
day till lodging compliant including deliberate with management.
He also admits that immediately after the registration of the
case, he came to know about the injured persons are in the
hospital. He did not meet them and enquired them and also even
did not see them. P.W.15 categorically admits that the
statement of P.W.2, P.W.3, P.W.5 and P.W.6 are not in his hand
writing. He categorically admits that dates are corrected in the
statement of P.W.3 and P.W.5 as 25th instead of 28th and so also
92
the P.W.6. He also admits that he did not record the statement
of injured witness Vikram on 25.03.2011. He also admits that for
having collected the wound certificate, he has not put his
counter signature. Suggestion was made that wound certificates
are created for the purpose of the case and the same was denied
and also Court has to take note of omissions on the part of
P.W.15-I.O. In a criminal jurisprudence, omissions, commissions
and contradictions are the prime material for consideration of
the case.
89. This Court also would like to rely upon the judgment
reported in AIR 1979 SC 135 in case of Ganesh Bhavan Patel
V/s State of Maharashtra wherein also while invoking Section
161, taken note of recording of statements delay and effect of
duty of Investigator in paragraph Nos.15 and 29 that normally in
a case where the commission of the crime is alleged to have
been seen by witnesses who are easily available, a prudent
investigator would give to the examination of such witnesses
precedence over the evidence of other witnesses. But, in the
case on hand, the same was not done and even he did not
93
record the statement of injured witnesses immediately and
statement was though allegedly recorded on 25th, but actually it
was on 28th since there was an admission that date 28th was
corrected as 25th and the delay in recording the statements of
the material witnesses caused a cloud of suspicion on the
credibility of the very story of the prosecution.
90. The witness P.W.15 also says that he was not having
a time to record the statement. But, Apex Court in the very
same judgment while invoking Section 3 held that evidence
regarding time of recording statement of witness merely because
witness was labourer, it could not be said that he had no sense
of time.
91. This Court also would like to rely upon the judgment
reported in AIR 2016 SC 4958 in case of Harbeer Singh V/s
Sheehpal wherein discussed with regard to the jurisdiction of
the Appellate Court and powers of Appellate Court categorically
held that mere fact that another view could also have been
taken on evidence on record is not a ground for reversing an
order of acquittal, but view favorable to accused to be adopted
94
when two views are possible and also taken note of Section 161
recording of statement, delay and effect and the said delay
ought to have been explained and it is not the case of P.W.15
that injured witnesses were not available. But, his evidence is
that he was not having time to record the statement of injured
witnesses.
92. The P.W.15 categorically admits that witnesses have
not spoken about anything about the incident has taken place
near the First Aid center and also witness did not inform before
him that having taken note of the galata, none of the witnesses
spoken that they followed and several omissions are elicited
from the mouth of P.W.15 regarding overt act of each of the
accused persons and categorically admits that not made any
statement with regard to accused persons started assaulting and
pushing them and witnesses also not made any statement that
when the P.W.2 did not make any statement that accused
Thimmaraju assaulted him on his nose, as a result blood was
oozing from his mouth and also witness categorically says that
injured also not made any statement that Deepak also started to
95
assault him and categorically admits that P.W.2 not stated
anything about him that he was assaulted with steel frame by
Girish on his head and also not stated that Shivakumar assaulted
on his head with First Aid Box and also admits that witnesses
have not stated anything about the incident was taken place
near the First Aid room while giving their statement and for
having caused the damages to the glasses and computers and
not seized anything and C.W.2 also not stated that Thimmaraju
assaulted him and also not spoken anything about Girish
assaulted him and whatever the evidence spoken by the injured
witnesses in the evidence was put to the I.O and the answers
are elicited from the mouth of P.W.15 omissions with regard to
each and every overt act spoken by the injured witnesses. These
omissions were not considered by either the Trial Court or First
Appellate Court and also categorically admits that P.W.8 while
giving statement, not stated that he knows each and every
accused persons and also he categorically admits that Ravikumar
was stated that no one made statement that Ravikumar was
taken to the Fortis Hospital while giving the statement. Further,
admits that C.W.2 to C.W.7 injured persons have not stated
96
before him that in the said incident they have sustained injuries.
When such answer is elicited from the mouth of P.W.15 with
regard to the nature of injuries and treatment is concerned and
overt act is concerned, there are clear omissions on the part of
the evidence of P.W.15. But, the Trial Court accepted the
evidence of injured witnesses as well as the P.W.15 and material
contradictions and omissions were not taken note of by both the
Courts. Hence, it is a clear case of miscarriage of justice in
considering the material on record.
93. No doubt, the learned counsel appearing for the
respondent-State brought to notice of this Court unless the
miscarriage of justice, question of interference in the Revision
Petition doesn't arise. No doubt that is also a settled law. Even
the judgment relied upon by the learned counsel appearing for
the respondent-State in case of Kishan Rao V/s Shankara
Gowda, the Apex Court while considering the case (1999) 2
SCC 452, the principles was taken note of in paragraph No.12
and extracted paragraph No.5 wherein with regard to the
exercising of revisional jurisdiction held that ordinarily,
97
therefore, it would not be appropriate for the High Court to re-
appreciate the evidence and come to its own conclusion on the
same when the evidence has already been appreciated by the
Magistrate as well as Sessions Judge in appeal, unless any
glaring features is brought out to the notice of the High Court
which would otherwise tantamount to gross miscarriage of
justice. Even the Apex Court in paragraph No.13 discussed the
judgment reported in (2015) 3 SCC 123 in a case of Sanjay
Sin Ramrao V/s Dattatreya Gulab Palke and exacted
paragraph No.14 wherein also an observation is made that
unless the order passed by the Magistrate is perverse or the
view taken by the Court is wholly unreasonable or there is non
consideration of any relevant material or there is palpable
misreading of records, the revisional Court is not justified in
setting aside the order merely because another view is possible.
Revisional Court is not meant to act as an Appellate Court.
94. Having considered the principles laid down in the
judgment referred by the learned counsel appearing for the
respondent-State and the said judgment will not comes to the
98
aid of State having taken note of the materials which have been
discussed above in detail that omissions of P.W.15 is very clear
that none of the injured witnesses have spoken about the overt
act what has been deposed before the Court while recording his
statement. Hence, it is clear that the same is nothing but an
improvement at the time of leading an evidence by the
prosecution with regard to overt act and also the wound
certificate which have been produced not have discloses on what
date and time treatment was taken and even there is no any
overt act allegation against any of the petitioners, even by the
injured witnesses while giving history in the Hospital. All these
glaring material and error on the part of the Trial Court and
Appellate Court is very clear that both the Courts carried away
by considering the evidence of prosecution witnesses, but not
looked into in a proper perspective. When such being the case, it
is a clear case of miscarriage of justice and also the Court has to
take note of conduct of the Investigating Officer who conducted
the investigation with bias in favour of the management.
99
95. The Apex Court also in the judgment reported in
(2009) 10 SCC 206 in case of Aarulelu with regard to
perverse finding is concerned, in detail discussed that the finding
which is not only against the weight of evidence, but is
altogether against the evidence itself is nothing but a perverse
finding and the same has been discussed in detail in paragraph
Nos.24 to 30. Further observed in paragraph No.16 that the
contents of FIR should atleast mention the broad story of the
prosecution and not mentioning of material and vital facts
though may not affect the credibility of the FIR. This Court also
in detail discussed under what circumstances FIR came into
existence since I.O was very much present in the place of
incident for about two days and discussed with the management
witnesses who have lodged the complaint with the I.O and there
was a prior deliberation and discussion before registering the
case, the same is also admitted by the prosecution witnesses as
well as the I.O who has been examined before the Court as
P.W.15 and FIR registered after almost two days.
100
96. Having perused the material available on record,
though incident was taken place in the previous night at 10:30
p.m., and P.W.15 rushed to the spot within a span of 45 minutes
that he was there in the place of incident at 11:15 p.m., and he
was there till 1:30 a.m., and only he left for half an hour in
between 1:30 a.m., to 2:00 a.m., and he came back there to the
place of incident again at 2.00 a.m., he was very much present
from 2:00 a.m., to 6:00 a.m., and again he came back in the
early morning at 9:30 a.m., till 11:00 a.m., and till receipt of the
complaint at Ex.P.1 on the next day evening at 6:00 p.m., and
he had met the complainant P.W.1 and P.W.12-Manager and
discussed everything as well as even inspected the spot of
incident and noticed MO.1 to MO.3 which were lying at the spot
and throughout for about 19 hours he was very much present in
the place of incident and FIR reached Court after two days of
incident and no explanation. Hence, this Court also found that
the proceedings initiated by the I.O., is hit by Section 162 and
having knowledge about everything that a cognizable offence
was taken place even he did not choose to record the statement
of any of the witnesses either the injured witnesses or persons
101
who have witnessed the incident, but only acted upon after the
deliberation and pre consultation that too complaint is received
at the instance of the Management as admitted and then
registered the case. The complaint was given by accused No.17
in the previous day itself and only the same is registered as
C.Misc and after the registration of case of the Management in
Cr.No.173/2011 and subsequently, Cr.No.174/2011 was given to
the complaint of accused. Though he was very much present and
observed the CC T.V and did not seize the MO.4 and MO.5 and
also no material that MO.4 and MO.5 are produced by any of the
management witnesses and surprisingly the same was marked
through the P.W.1 before the Court and there is no any seizure
of MO.4 and MO.5 and only seizure of MO.6-C.D that too in the
Police Station by drawing Mahazar at Ex.P.3. When the P.W.1
transmit the same to the C.D and produces the same before the
police and the said seizure of Ex.P.3 is in the Police Station and
even he did not see the visuals of the said CC T.V and whether it
is tampered or morphed and also not taken any opinion from the
expert whether the same is genuine or not and even there is no
any certificate under Section 65-B(4) when the secondary
102
evidence is placed and seized. But, all these materials were not
taken note of by the Trial Court as well as the First Appellate
Court and when there is no any legal evidence before the Court
while convicting the accused Nos.1 to 30, even witnesses have
not been spoken at the first instance by any of the injured
persons that the particular accused persons have assaulted
them, but only there was an improvement in the evidence. The
P.W.15-I.O categorically deposed before the Court that with
regard to the overt act is concerned, there is a omissions of each
and every one witnesses have not spoken anything about the
overt act. Under the circumstances, it is nothing but a
miscarriage of justice. Hence, it is a fit case to exercise the
revisional jurisdiction to acquit the accused persons by
exercising the revisional jurisdiction since there is a clear
miscarriage of justice. Hence, I answered all the points
accordingly as there is a clear miscarriage of justice and also
even the FIR was hit by Section 162 of Cr.PC and MO.4 to MO.6
ought not to have relied upon by the Courts below and Courts
have committed an error in relying upon the same and apart
from that the very contention of the counsel appearing on behalf
103
of State that revision is not maintainable since there is no any
sentence cannot be accepted. But, the fact is that all of them
have been convicted for the offences is not in dispute. The fact
that Probation of Offenders Act was invoked, but the probation
officer's report though it was called, but not secured and passed
any order and not passing of an order on P.O Act cannot curtail
the rights of the petitioners when they have been convicted for
the offences and it was a mistake on the part of the Court
getting the report and passing an order on the same. Hence, the
contention that revision petition is not maintainable cannot be
accepted. All the points which have been arises for the
considerations are answered accordingly that conviction amounts
to miscarriage of justice in the absence of any legal evidence
and all procedures which have been made are illegal and hit by
Section 162 and also no legal evidence before the Court with
regard to MO.4 to MO.6. Hence, the petitioners are entitled for
acquittal and answered accordingly.
97. Having considered the material on record, it
discloses that this Court also taken note of lapses on the part of
104
the Investigating Officer who had visited the spot within 45
minutes of the incident and through out, he was very much
present in the vicinity i.e., whole night as well as on the next day
almost a day but he acts upon only based on the complaint of
the management in terms of Ex.P1 inspite of complaint was
given by accused No.17 and about the cognizable offence only,
the criminal miscellaneous was registered. But only after
registering the case by the management, Crime No.174/2011
was given. Hence, it is clear that the Investigating Officer has
investigated the matter with bias and not acted upon without
any bias and even failed to take the cognizance when cognizable
offence was came to his knowledge on the previous night itself
and met the complainant-PW1 at the spot and he did not choose
to record the statement of PW1 at the spot or even recorded the
statement till filing of the complaint by the management and
waited for management complaint as admitted. After due
deliberation and negotiation when throughout he was having the
knowledge about the cognizable offence was taken place in the
incident, fails to act upon and also he categorically admits that
he did not register the case since management was intend to file
105
a complaint. This Court already comes to the conclusion that the
very initiation of criminal prosecution is with due deliberation
after having discussing the same with PW1, PW12 and with the
management. Hence, it is a fit case to direct the Director
General of Police and IG to initiate action against the
Investigating Officer who has been examined as PW15 in
accordance with law delegating the powers to the concerned
disciplinary authority where at present he is working and submit
the progress report regarding taking up of action against him.
98. In view of the discussions made above, I pass the
following:
ORDER
i) The Revision Petition is allowed.
ii) The impugned judgment of conviction dated 24.01.2019 passed in C.C.No.1005/2011 against the petitioners are hereby set aside and also the affirmation made in Criminal Appeal No.4/2019 dated 26.02.2020 by the Appellate Court is also set- aside. Consequently, the bail bonds executed by the 106 petitioners are cancelled. The Petitioners are acquitted for the offences invoked against them.
iii) The Director General of Police and IG is directed to initiate action against the Investigating Officer who has been examined as PW15 in accordance with law delegating the powers to the concerned disciplinary authority where at present he is working and submit the progress report regarding taking up of action against him within Four months.
iv) The Registry is directed to communicate this judgment to DG and IG to initiate action and report as directed.
Sd/-
(H.P. SANDESH) JUDGE MD/RHS/ST/SN