Karnataka High Court
Appayanna Since Dead By Lrs vs State Of Karnataka on 2 July, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:24758
CRL.P No. 2551 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 2551 OF 2024
BETWEEN:
APPAYANNA SINCE DEAD BY LRS
1. NAVEEN KUMAR,
AGED ABOUT 54 YEARS,
S/O LATE APPAYANNA.
2. RAVICHANDRA,
AGED ABOUT 48 YEARS,
S/O LATE APPAYANNA.
BOTH ARE RESIDING AT
BIDARE AGRAHARA VILLAGE @
CHINNA NAGENAHALLI VILLAGE,
BIDARAHALLI HOBLI, BENGALURU EAST TALUK,
Digitally signed
by NAGAVENI BENGALURU URBAN DISTRICT - 560 049.
Location: HIGH ...PETITIONERS
COURT OF (BY SRI GURUPRASAD C. REDDY, ADVOCATE)
KARNATAKA
AND:
1. STATE OF KARNATAKA
BY KADUGODI RURAL POLICE,
REPRESENTED BY HCGP
HIGH COURT OF KARNATAKA
BENGALURU - 01.
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NC: 2024:KHC:24758
CRL.P No. 2551 of 2024
2. CHANNAPPA,
AGED ABOUT 75 YEARS,
S/O LATE CHIKKA MUNIYAPPA,
BIDARE AGRAHARA VILLAGE @
CHINNA NAGENAHALLI VILLAGE,
BIDARAHALLI HOBLI,
EARLIER BENGALURU SOUTH TALUK,
NOW BENGALURU EAST TALUK,
BENGALURU URBAN DISTRICT - 560 049.
3. PRATAP REDDY,
AGED ABOUT 74 YEARS,
S/O LATE K.C. REDDY,
R/AT NO.18, BELLARY ROAD,
SADASHIVA NAGAR,
BENGALURU - 560 003.
4. B.K.RAMESH REDDY
AGED MAJOR,
S/O SRI KRISHNA REDDY,
BALAGERE VILLAGE, VARTHUR HOBLI,
BENGALURU EAST TALUK - 560087
...RESPONDENTS
(BY SRI P.THEJESH, HCGP FOR R-1;
SRI ARUN G., ADVOCATE FOR R3
SRI RAHUL S.REDDY, ADVOCATE FOR R4)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO 1) SET ASIDE THE IMPUGNED ORDER
DATED 06.02.2024 ON THE FILE OF THE ADDL. CHIEF
JUDICIAL MAGISTRATE, BENGALURU RURAL DISTRICT, IN
C.C.NO.2811/2012 AS PER ANNEXURE-T AND CONSEQUENTLY;
2) ALLOW THE SAID APPLICATION FILED U/S 311 R/W SEC.
242 OF THE CR.P.C. TO SUMMON THE JURISDICTIONAL
TAHSILDAR, BENGALURU EAST TALUK, TO PRODUCE THE
ORIGINAL MUTATION REGISTERED FOR THE YEAR 1986-87 OF
BIDARE AGRAHARA VILLAGE FOR VERIFYING AUTHENTICITY
OF M.R. NO.6/1986-87 AS PER ANNEXURE-S.
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NC: 2024:KHC:24758
CRL.P No. 2551 of 2024
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question an order dated 06-02-2024 by which the concerned Court rejects the application filed by the petitioners under Section 311 r/w Section 242 of the Cr.P.C.
2. Heard Sri Guru Prasad C Reddy, learned counsel appearing for petitioners, Sri P Thejesh, learned High Court Government Pleader appearing for respondent No.1, Sri Arun G, learned counsel appearing for respondent No.3 and Sri Rahul S Reddy, learned counsel appearing for respondent No.4.
3. Facts in brief germane are as follows:
It is the averment in the petition that the father of the petitioners get an extent of 2 acres and 9 guntas of land through registered partition deed. Accused No.1 begins to interfere with the peaceful possession of the petitioners which leads these petitioners to register O.S.424 of 1994. Later there -4- NC: 2024:KHC:24758 CRL.P No. 2551 of 2024 are several civil proceedings between the parties. The complainants then file a private complaint in PCR No.118 of 2011 before the concerned Court. The matter is referred to investigation which becomes a crime in Crime No.87 of 2011.
The issue is pending before the concerned Court, after the police filing the charge sheet against the accused in C.C.No.2811 of 2012. The issue in the lis does not concern the merit of the proceeding before the concerned Court. The complainants/petitioners file an application under Section 311 r/w Section 242 of Cr.P.C. to summon the jurisdictional Tahsildar to produce the original mutation register of the year 1986-87 maintained at the office of the Tahsildar. This is rejected by the concerned Court in terms of its order dated 06-02-2024. It is this that has driven the petitioners to this Court in the subject petition.
4. Learned counsel appearing for petitioners submits that summoning of the Tahsildar to depose on the maintenance of the mutation register would be imperative and it would cut at the root of the matter. He would contend that it was therefore -5- NC: 2024:KHC:24758 CRL.P No. 2551 of 2024 necessary to allow the application filed before the concerned Court.
5. Per-contra, learned counsel representing the 4th respondent/accused No.3 would contend that the Tahsildar has already issued an endorsement that the mutation register, the complainants are claiming is not available to the investigating officer. Therefore, there is nothing that the Tahsildar would come and depose with regard to the maintenance of the document. He would contend that the petitioners are only wanting to drag the proceedings which are pending since 2011.
6. The afore-narrated facts are not in dispute. The issue lies in a narrow compass. An application is preferred by the complainant under Section 311 r/w 242 of the Cr.P.C. seeking to summon the Tahsildar to depose for a document that the petitioners would want to rely upon. No doubt the Tahsildar has issued an endorsement to the Investigating Officer and it is marked as Ex.P3. All that the petitioners want is, whether the mutation had been transferred in the name of one Chikkamuniyappa. The endorsement is indicative of the fact -6- NC: 2024:KHC:24758 CRL.P No. 2551 of 2024 that there is no such document. The endorsement is vague.
The concerned Court bases its order of rejection of the application solely on the strength of the endorsement dated 24- 09-2011. It cannot be said that there is no mutation register maintained in the name of Chikkamuniyappa. The allegation against the accused is, a fake mutation entries are used to purchase the subject property. If that be the allegation against the accused and the fact that the office of the Tahsildar had no mutation entry would necessarily entail allowing of the application filed under Section 311 r/w 242 of the Cr.P.C., as creation of fake mutation entry would be prima facie vindicated if it is produced and Tahsildar deposes on the said production of the information/document.
7. The spirit of Section 311 of the Cr.P.C. is discovery of truth. Therefore, the provision permits filing of an application at any stage. The purport of the said provision need not detain this Court for long or delve deep into the matter. The Apex Court in the case of VARSHA GARG V. STATE OF MADHYA PRADESH1 has held as follows:
12022 SCC OnLine SC 986 -7- NC: 2024:KHC:24758 CRL.P No. 2551 of 2024 "31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC.
Section 311 provides that the Court "may":
(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been examined.
32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re- examine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.
33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.
34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:
"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re--8-
NC: 2024:KHC:24758 CRL.P No. 2551 of 2024 examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision -- either discretionary or mandatory -- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice."
35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:
"18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti -9- NC: 2024:KHC:24758 CRL.P No. 2551 of 2024 v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:
"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest."
38. Section 91 CrPC empowers inter alia any Court to issue summons to a person in whose possession or power a document or thing is believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the CrPC.
39. Section 91 forms part of Chapter VII of CrPC which is titled "Processes to Compel the Production of Things". Chapter XVI of the CrPC titled "Commencement of Proceedings before Magistrates" includes Section 207 which provides for the supply to the accused of a copy of
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NC: 2024:KHC:24758 CRL.P No. 2551 of 2024 the police report and other documents in any case where the proceeding has been instituted on a police report.25 Both operate in distinct spheres.
40. In the present case, the application of the prosecution for the production of the decoding registers is relatable to the provisions of Section 91 CrPC. The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found. The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower. The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Section 91 on the one hand and Section 311 on the other. The summons to produce a document or other thing under Section 91 can be issued where the Court finds that the production of the document or thing "is necessary or desirable for the purpose of any investigation, trial or other proceeding" under the CrPC. As already noted earlier, the power under Section 311 to summon a witness is conditioned by the requirement that the evidence of the person who is sought to be summoned appears to the Court to be essential to the just decision of the case."
8. In the light of the preceding analysis and the need for production of documents or the deposition on the document, the application ought to have been allowed. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Order dated 06-02-2024 passed by the Additional Chief Judicial Magistrate, Bengaluru
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NC: 2024:KHC:24758 CRL.P No. 2551 of 2024 Rural District in C.C.No.2811 of 2012 stands quashed.
(iii) The application filed by the petitioner stands allowed. The concerned Court shall fix a date for the purpose of execution of the application - summoning of the witness on a fixed date.
(iv) It is made clear that the Court shall not, in any manner, permit dragging of the proceedings on the ruse of examination or cross-examination. All shall be concluded in one single day.
(v) The applications of the kind of whatever nature they are, should not merit entertainment at the hands of the concerned Court.
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JUDGE BKP List No.: 1 Sl No.: 52