Karnataka High Court
Harshavardhan Shetty vs State Of Karnataka on 17 April, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 17TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.2412 of 2011
BETWEEN:
Harshavardhan Shetty,
Son of Shekar Shetty,
Age: 38 years,
Occupation: Business,
Resident of Kottakki,
Rattadi Village,
Taluk - Kundapur,
District - Udupi. ...PETITIONER
(By Shri. C.H. Jadhav, Senior Advocate)
AND:
State of Karnataka,
By Amasebailu Police Station,
Represented by the State
Public Prosecutor,
High Court Building,
Bangalore - 560 001. ...RESPONDENT
(By Shri. Satish R.Girji, Government Pleader)
2
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the entire
proceedings in Crime No.4/2011 of Amasebailu Police Station,
Udupi, pending on the file of the Additional Civil Judge,
(Jr.Dn.) and Judicial Magistrate First Class, Kundapur.
This petition is coming on for Hearing this day, the court
made the following:
ORDER
Heard the learned Senior Advocate Shri C.H.Jadhav appearing for the petitioner and the learned Government Pleader.
2. The brief facts of the case are that the petitioner is the accused in respect of an offence punishable under Section 174-A of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). It is alleged that on 6.2.1995, at about 10 p.m., the petitioner, along with other accused, had gone to the house of one Baby Shedthi, situated at Rattadi Village and threatened them to vacate the house belonging to the petitioner, failing which, they would set fire to the house. 3 The accused had also caused damage to the windows and abused them. In this regard, a case had been registered on 7.2.1995 on the file of the Shankarnarayan Police Station, in Crime No.17/1995, for the offences punishable under Sections 143, 147, 448, 427,504, 506 read with Section 149 of the IPC. The accused were charge-sheeted in Case in CC No.129/1996 on the file of the Court of the Judicial Magistrate First Class, Kundapur. The petitioner was arraigned as accused no.7 in the said case, but he was absconding. Therefore, the case against the petitioner was split up and was reregistered in CC No.1326/2000. In the said case, the accused were acquitted. In the split up case against the petitioner, a non-bailable warrant was issued and thereafter, the case was reregistered as a long pending case in LPC 46/2004. The petitioner was not traced. However, it transpires that on 15.5.2009, a new Police station was established and the court had issued warrant against the petitioner in the above said LPC and thereafter, he was declared as a proclaimed offender. since the petitioner did 4 not participate in the trial the complainant had requested to initiate against the petitioner under section 174-A of the IPC. It is in this background that a case has been registered as aforesaid and that is under challenge.
3. The learned Senior Advocate would point out that Section 174-A is a new section introduced into the IPC by Act 25/2005 with effect from 23.6.2006. Therefore, the case against the petitioner is that he had failed to appear at the specified place and specified time as required by a proclamation published under sub-section (1) of Section 82 of the Code of Criminal Procedure, 1973. In the present case, the proclamation so issued against the petitioner was published as on 27.7.2004. If the petitioner had failed to appear against such proclamation, the cause of action had arisen in the year 2004 and therefore, the rigour of Section 174-A would not apply to the case of the petitioner at all and the offence sought to be made out would not fall within the scope of Section 5 174-A, when it was not on the statute book on the relevant date as it has come into force with effect from the year 2006.
4. The learned Government Pleader, on the other hand, would submit that the complaint has been lodged as on 6.3.2011 and therefore, the offence sought to be made out under Section 174-A of the IPC would be with reference to the date of complaint and not the date of proclamation. Admittedly, if the petitioner had failed to comply with the proclamation, it would then be possible for the State to allege and prove that the petitioner was punishable for the offence committed as aforesaid.
5. In the light of the rival contentions, the question is whether the breach would have occurred when the petitioner had failed to appear much pursuant to the proclamation on the specified date when he was required to appear. If that be so, the question is whether the date was subsequent to the introduction or insertion of Section 174A into the Statute Book or whether 6 it was earlier. In the instant case, admittedly it was earlier. The mere filing of a complaint after the insertion of the section would not make it applicable, as the cause of action alleged is much prior to the introduction or insertion of Section 174A. Therefore, the complaint having been instituted and cognizance having been taken by the court below, are not in accordance with law.
Consequently, the petition is allowed. The proceedings before the court below are quashed.
Sd/-
JUDGE nv