Karnataka High Court
Smt B S Chitra vs Sri Amar Singh on 2 January, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL PETITION No.7495/2012
BETWEEN:
Smt.B.S.Chitra,
Major,
W/o Sri.Arvind Singh,
D/o G.Bhavani Singh,
No.746, "Srinidhi", Kadugodi,
Near White Field Railway Station,
Bangalore-560 067. ... Petitioner
(By Sri. S. G. Bhagavan, Advocate)
AND:
1. Sri. Amar Singh,
Aged 59 years,
S/o. Late Ananth Singh,
Residing at No.75,
"Singh Quarters",
Bangalore-Neelgiri Road,
Gundlupet.
2. Smt.Shanta Bai,
Aged 56 Years,
W/o. Sri.Amar Singh,
Residing at No.75,
"Singh Quarters",
Bangalore-Neelgiri Road,
Gundlupet.
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3. Sri.Anup Singh,
Aged 34 years,
S/o Sri.Amar Singh,
Residing at No.401,
2nd Floor, 8th Cross,
8th Main B.T.M. 2nd Stage,
Bangalore-560 076.
4. Smt.Ashwini,
Aged 30 years,
W/o Sri.Kiran Singh,
Residing at No.69,
1st Main, B.T.M. Layout,
Bangalore-560 076.
5. The State of Karnataka,
By the Officer-in charge,
Kadugodi Police Station,
Bangalore. ... Respondents
(By Sri.P.Karunakar, HCGP, for R-5)
This Criminal Petition is filed under Section 482 of the
Cr.P.C praying to quash the proceedings in the order Dated
16.11.2012 passed by the Chief Judicial Magistrate,
Bangalore Rural District, Bangalore in C.C.No.397/2011.
This Criminal Petition coming for orders on this day,
the Court made the following:
ORDER
Office objections are over-ruled.
2. Heard the learned counsel for the petitioner. 3
3. Petitioner is the de-facto complainant before the police, on whose complaint the case came to be registered and after investigation, charge sheet for the offences punishable under Sections 498-A, 307, 506(2), 406, 120(B) r/w. 34 of IPC and Section 3, 4 & 6 of the Dowry Prohibition Act ( for short, 'D.P. Act') came to be filed against the respondents herein arraigned as Accused No.1 and others in C.C. No.397/2011 on the file of the Additional Chief Judicial Magistrate, Bangalore Rural District, Bangalore.
4. In the charge sheet, Accused No.1 was shown as residing in Okalahama City, U.S.A. Respondents - 1 to 4 arraigned as Accused Nos. 2 to 5 were released on bail during investigation and on service of summons, upon taking cognizance of the offences alleged in the charge sheet, they appeared before the learned Magistrate. The process issued against Accused No.1 residing in a foreign country could not be served. The non-bailable warrants issued through the Embassy of India, through the 4 Commissioner of Police, Bangalore City, also reported to have been returned un-executed. At that stage, Respondents-1 to 4 filed application under Section 317(2) of Cr.P.C. seeking splitting-up of the case against Accused No.1 and committing the case against them to the court of sessions since one of the offences alleged in the charge sheet was triable exclusively by court of sessions. The said application was opposed by the prosecution.
5. The learned Magistrate after hearing the learned counsel on both sides, by the order impugned in this petition, allowed the application and directed splitting-up of the case against Accused No.1 and ordered committing of the case against Accused Nos. 2 to 5 to the court of sessions. The de-facto complainant is aggrieved by the said order.
6. Sri. S.G. Bhagavan, learned counsel for the petitioner, drawing attention of this Court to the provisions of Rule-2 of Chapter-IV of Karnataka Criminal Rules of Practice and the decisions of this Court in the 5 case of H.M. Revanna Vs. State of Karnataka [ 1998 (4) Kar. L.J 76] and State of Karnataka Vs. Lambadi Chandranaik [ 1996(2) Kar. L.J. 157] contended that the order passed by the learned Magistrate is opposed to law, since before ordering splitting-up of the case, the learned Magistrate ought to have waited for the return of non-bailable warrants issued through interpol in accordance with the guidelines issued by the Central Government and ought to have complied with the requirement of Sections-82 & 83 and even without specifying as to whether or not the presence of Accused No.1 could be secured within a reasonable time, the learned Magistrate has proceeded to order splitting-up of the case and this would cause greater hardship to the de- facto complainant.
7. I have bestowed my anxious considerations to the submissions made by the learned counsel.
8) Rule-2 of Chapter-IV of Karnataka Criminal Rules of Practice contains two parts. The first part deals 6 with the situation where there are several accused persons in a case and only some of them have appeared and other accused have remained absent and if the Magistrate is satisfied that the presence of those absentee accused cannot be secured within a reasonable time, he would be empowered to proceed with the case as against such of the accused, who are present before him and dispose of the case in accordance with law. The second part deals with the procedure to be followed in respect of the absentee accused.
8. In the case on hand, the learned Magistrate during the course of the order has referred to the steps taken for service of summons and the process issued against Accused No.1. Admittedly, Accused No.1 is residing in overseas country. Cognizance of the offence was taken on 29.01.2011. The court thereafter ordered issue of non-bailable warrant against Accused No.1 with a letter to the Commissioner of Police, Bangalore City and also letter addressed to the Embassy of India, 2107, Massachuesetts Avenue, NW, Washingon, DC 20008, 7 through the Commissioner of police to secure the presence of Accused No.1. The learned Magistrate has noticed in Para-9 of the order that the non-bailable warrants issued against Accused No.1 are un-executed till the date of the order. No doubt, the application for splitting-up of the case was filed by the accused, who have appeared before the Court.
9. Reading of the provisions of Rule-2 of Chapter -IV would indicate that the power is required to be exercised by the Court on being satisfied about the existence of the situation wherein the presence of the absentee accused could not be secured within a reasonable time. These facts could be brought to the notice of the Court by the accused, who have appeared before the Court. Therefore, application filed by the other accused appearing before the Court seeking splitting-up of the case as against the absentee accused and committal of the case to the court of sessions, cannot be held as not maintainable. 8
10. Perusal of the order impugned would clearly indicate that several efforts have been made by the court to secure the presence of Accused No.1, who is admittedly residing in an overseas country and all those efforts have not yield any result. Though cognizance is taken on 29.01.2011, for more than 1½ years the presence of Accused No.1 has not been secured. Therefore, in my opinion, the learned Magistrate has rightly held that the presence of Accused No.1 could not be secured within a reasonable time. Accused Nos. 2 to 5 have been repeatedly appearing before the Court. In the absence of Accused No.1, Accused Nos. 2 to 5 cannot be asked to undergo hardship of appearing before the Court on every hearing date till the presence of Accused No.1 is secured before the Court. Therefore, the procedure adopted by the learned Magistrate in ordering splitting-up of the case as against Accused No.1 and committing the case as against Accused Nos. 2 to 5 to the court of sessions, cannot be found fault with.
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11. The two decisions relied upon by the learned counsel have no application to the facts of this case. In the case of H.M. Revanna referred to supra, this Court has laid-down the procedures to be followed before committal of the case to the court of sessions. It has been laid-down therein that it is a condition precedent for trial of an accused before the sessions court that he should be present himself before the Magistrate. It has been held in the said decision that when some out of 106 accused persons named in the charge sheet remained absent, the case against all of them cannot be committed to the court of sessions. In the case on hand, situation is not similar to the one in the reported decision.
12. The learned Magistrate has not committed the case against all the accused including the absentee accused. The learned Magistrate has followed the procedure laid-down in first part of Rule-2 of Chapter-IV by splitting-up the case against Accused No.1 and 10 committing the case as against Accused Nos. 2 to 5 to the court of sessions.
13. In Lambadi's case referred to supra, this Court has laid-down the procedures to be followed before transferring the case to the Register of Long Pending Cases. In view of proviso to Rule-4, this Court has held that the correct procedure is to follow the provisions under Chapter-IV of the Karnataka Criminal Rules of Practice and after obtaining permission of the Sessions Judge, the case has to be registered in the Long Pending Cases. In the case on hand, the learned Magistrate has not ordered transfer of the case as against Accused No.1 to the Register of Long Pending Cases. It is only the case is ordered to be transferred to the Register of Long Pending Cases, the court will have to comply with the procedures contemplated under Sections 82 & 83 of Cr.P.C.
14. Having regard to the facts and circumstances of the case and in view of the fact that several efforts have been made to secure the presence of Accused No.1 and in 11 spite of best efforts his presence could not be secured, in my opinion, the learned Magistrate is justified in ordering splitting of the case against Accused No.1 and directing committal of the case as against Accused Nos. 2 to 4 to the court of sessions. I find no error in the order impugned in this petition, therefore, I find no grounds to entertain this petition. Hence, the petition is dismissed.
Sd/-
JUDGE KGR*