Karnataka High Court
Sri. Honnaiah T.H vs The State By Maddur Police Station on 20 December, 2021
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.1384/2019
BETWEEN:
SRI. HONNAIAH T.H.,
S/O LATE HONNAIAH,
AGED ABOUT 38 YEARS,
R/A THOPPANAHALLI VILLAGE,
MADDUR TALUK,
MANDYA DISTRICT - 57428.
... PETITIONER
(BY SRI.N.TEJAS, ADVOCATE)
AND:
1. THE STATE BY MADDUR POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. SRI. T. S. MUTTHU RAJU,
S/O T K SHIVANNA,
AGED ABOUT 32 YEARS,
(NOW IN JUDICIAL CUSTODY),
UTP NO.17071,
TUMKUR JAIL,
3. SRI.RAMALINGAIAH @ RAMALINGA,
S/O NINGAIAH,
2
AGED ABOUT 43 YEARS,
(NOW IN J C), UTP NO.8794
MANDYA JAIL.
4. SRI. JAGADEESHA @ JAGA,
S/O LATE SIDDAIAH,
AGED ABOUT 43 YEARS,
(NOW IN J C), UTP NO.12415,
TUMKUR JAIL.
5. SRI. DEEPAK T. D.,
S/O T K DEVARAJU,
AGED ABOUT 27 YEARS,
6. SRI. YOGESHA T D @ YOGARAJU,
S/O T K DEVARAJU,
AGED ABOUT 22 YEARS,
7. SRI. SWAMY T D.,
S/O T. K. DEVARAJU,
AGED ABOUT 24 YEARS,
(NOW IN J C),
CRIME NO.444/2018,
OF MADDUR P S.,UTP NO.561/19,
TUMKUR JAIL.
8. SRI. SHIVARAJU T D.,
S/O T K DEVARAJU,
AGED ABOUT 24 YEARS,
(NOW IN J C),
IN CRIME NO.444/2018,
OF MADDUR P S.,
UTP NO.562/19,
TUMKUR JAIL.
9. SRI. SHIVANNA T K.,
S/O POLI KALEGOWDA,
AGED ABOUT 63 YEARS,
10. SRI. T. K. DEVARAJU,
S/O POLI KALEGOWDA,
AGED ABOUT 63 YEARS,
3
11. SRI. T. N. HEMANTH KUMAR,
S/O NINGAIAH,
AGED ABOUT 20 YEARS,
(NOW IN J C IN CRIME
NO.444/2018 OF MADDUR P S.,
UTP NO.3742, RAMANAGAR JAIL.
12. SRI. T. K. NINGAIAH,
S/O POLI KALEGOWDA,
AGED ABOUT 50 YEARS,
13. SRI. SHIVARAMU T K.,
S/O KALAIAH @ POLI KALEGOWDA,
AGED ABOUT 45 YEARS,
14. SMT. SHOBHA,
W/O SHIVARAMU T K.,
AGED ABOUT 38 YEARS,
15. SRI. T. M. PUTTASWAMY,
S/O LATE H.MALLAIAH,
AGED ABOUT 52 YEARS,
16. SRI. T. M. SHIVAKUMAR,
S/O LATE MOLLEGOWDA @ MOLLAIAH,
AGED ABOUT 39 YEARS,
17. SRI. KUMARA,
S/O MOTEGOWDARE MILL @ NINGAIAH,
AGED ABOUT 28 YEARS,
18. SRI. T.N. SHIVU,
S/O NINGAIAH,
AGED ABOUT 22 YEARS,
19. SRI.T. S. PRASANNA,
S/O T. K. SHVIANNA,
AGED ABOUT 31 YEARS,
NOW IN J C IN CRIME,
NO.444/2018 OF MADDUR P S
UTP NO.3744, RAMANAGAR JAIL.
4
ALL RESPONDENT NO.2 TO 19
ARE R/O THOPPANAHALLI VILLAGE,
MADDUR TALUK,
MANDYA DISTRICT - 571 428.
...RESPONDENTS
(BY SRI.K.S.ABHIJITH, HCGP FOR R1;
SRI.M.R.NANJUNDA GOWDA, ADVOCATE FOR R2, R5,
R6, R9, R10, R12, R15 AND R18;
R7, R8,R11, R13, R14, R16, R17 AND R19,
R3 AND R4 ARE SERVED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE
FINDING/ORDER DATED 03.10.2019 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA IN
S.C.NO.82/2017 IN THE EVIDENCE OF PW7 BY ALLOWING THIS
CRL.RP AND PERMIT THE PROSECUTION TO GOT IT MARKED
THE COMPLAINT AND SIGNATURE ON IT THROUGH HIM.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Heard the learned counsel appearing for the parties with consent, even though the matter is listed for admission. Perused the records.
2. Revision petitioner is the defacto complainant.
He has challenged the order dated 03.10.2019 passed by the 1st Additional District and Sessions Judge, Mandya in S.C. No.82/2017 whereby the learned trial Magistrate refused to mark the document confronted by the prosecution.
53. Brief facts of the case read as under:
Accused/ respondent Nos.2 to 19 are facing trial for the offences punishable under Sections 143, 147, 148, 504, 323, 307, 302, 114 r/w 149 of Indian Penal Code. When the complainant-PW7 is examined in - chief, the prosecution proceeded to confront the document- complaint. The same was objected to by the accused stating that the said statement was recorded under the provisions of 161 of Cr.P.C. and therefore, the same cannot be marked as a document. The learned Sessions Judge noting the objection and taking note of the veracity of the document that is sought to be confronted as exhibit, rejected the prayer of the prosecution. Being aggrieved by the same, de-facto complainant is before this Court.
4. Learned counsel for the revision petitioner has challenged the said order on the following grounds:
(i) That the impugned finding passed by the learned Session Judge is contrary to the 6 facts and circumstances of the case.
Hence, the same is liable to be set aside.
(ii) The learned Sessions Judge while passing the impugned finding assigned certain reasons which are erroneous, improper and illegal. Hence, he has reached to a wrong conclusion.
(iii) The learned Sessions Judge grossly erred in holding that the witness PW7 who did not depose before the court in his evidence that he has given complaint to the police and further depose that while taking treatment he has given the statement to police in presence of Doctor hence the statement of the witness can not be treated as first information report even though as per the charge sheet and prosecution the statement of PW7 is the first information to the police based on that statement Criminal law set in to motion hence the said statement is the complaint and it will not comes in the purview of 161 statement but the court below without applying juridical mind mechanically acted and decline to mark 7 the complaint and signature of the witness on the complaint as Exhibit Prohibit is highly unsustainable in law.
(iv) The learned Sessions Judge grossly erred in holding that PW2 doctor who depose before the Court that on 25.12.2016 at 7.25 pm police brought the injured resident of the Thoppanehalli Village with a history of assault, hence already there is a no information before the doctor before the statement of PW7, hence the statement of the complainant can not be treated as complaint even though, injured initial furnished that history before doctor that is not the first information or complaint to the police still court below wrongly comes to the conclusion that history furnished before doctor is the first information reported and the statement of PW7 is only statement under 161 Cr.P.C. is bad in law.
(v) The learned Sessions Judge failed to take note of the fact that as per the prosecution the statement of PW7 recorded before the Doctor at K.R. Hospital Mysore is the first 8 information report i.e., complaint based on that the criminal law set into motion, but the court below ignored this important aspect is highly unsustainable in law.
(vi) The learned sessions judge accepting the contention of the defence wrongly comes to the conclusion which is contrary to the facts and circumstances of the case and material on record and the finding of the court below liable to be set aside.
(vii) The learned sessions judge grossly erred in holding that the wintess i.e., Pw7 depose that he made statement to place before doctor and the witness did not depose he lodge a complaint to police, but the court below failed kept in mind that the complaint can be in the form of Statement or in the form of the Written complaint, which set the criminal law in the motion is treated as complaint but the court below wrongly understood and gave the impugned finding is bad in law, on this sole ground the finding of the court below is liable to be set aside.
9(viii) The petitioner further submitted that he may be permitted to adduce additional ground at the time of hearing and no similar portion filed or pending before this Hon'ble Court or before any other court for same relief.
5. Reiterating the said contention, learned counsel for the revision petitioner - Sri Tejas N. vehemently contended that primary duty of the State is to challenge the impugned order but the State has not filed any revision petition against the order dated 03.10.2019 which has adversely affected the right of the de-facto complainant. He has also pointed out that in the absence of the said document being marked, the rights of the complainant would be hampered. He has also relied on the judgment in the case of Bipin Shantilal Panchal Vs. State of Gujarat and another reported in 2001 (3) SCC
1. Relevant para Nos.12 to 14 read as under:
12. As pointed out earlier, on different occasions the trial Judge has chosen to decide questions of admissibility of documents or 10 other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the concerned parties to go before the higher courts for the purpose of challenging such interlocutory orders.
13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-
canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not 11 put on record by the trial court. In such a situation the higher court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence - taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the 12 judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).
6. He has also relied on the judgment of the Apex Court in the case of Ratanlal Vs. Prahlad Jat and others reported in (2017) 9 SCC 340 and the relevant pars Nos.7 to 11 read as under:
7. Having regard to the contentions urged, the first question for consideration is whether the appellant has locus standi to challenge the order of the High Court.
8. In Black's Law Dictionary, the meaning assigned to the term 'locus standi' is 'the right to bring an action or to be heard in a given forum'. One of the meanings assigned to the term 'locus standi' in Law Lexicon of Sri P.Ramanatha Aiyar, is 'a right of appearance in 13 a Court of justice'. The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the court, that is to say, he only has a right to move the court for seeking justice. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in India and the Constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds. It is now well-settled that if the person is found to be not merely a stranger to the case, he cannot be non-suited on the ground of his not having locus standi.
9. However, criminal trial is conducted largely by following the procedure laid down in Cr.P.C. Locus standi of the complaint is a concept foreign to criminal jurisprudence. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. This general principle is founded on a policy that an offence, that is an act or omission made punishable by any law 14 for the time being in force, is not merely an offence committed in relation to the person who suffers harm but is also an offence against the society. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. In A.R. Antulay v. Ramdas Sriniwas Nayak & Anr. (1984) 2 SCC 500, a Constitution Bench of this Court has considered this aspect as under: (SCC pp.508-09, para 6) "6.... In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would 15 exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception".
10. In Manohar Lal v. Vinesh Anand & Ors. (2001) 5 SCC 407, this Court has held that doctrine of locus standi is totally foreign to criminal jurisprudence. To punish an offender in the event of commission of an offence is to subserve a social need. Society cannot afford to have a criminal escape his liability since that would bring about a state of social pollution which is neither desired nor warranted and this is irrespective of the concept of locus.
1611. In Arunachalam v. P.S.R. SADHANANTHAM & ANR. (1979) 2 SCC 297, this Court has considered the competence of a private party, as distinguished from the State to invoke the jurisdiction of this Court under Article 136 of the Constitution against a judgment of acquittal by the High Court. It was held that appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. Article 136 of the Constitution vests the Supreme Court with a plenitude of plenary, appellate power over all Courts and Tribunals in India. The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the Court to set limits to itself within which it has to exercise such power. The power is vested in the Supreme Court but the right to invoke the Court's jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it. The Court found that the judgment of acquittal by the High Court has 17 led to serious miscarriage of justice. Therefore, it was held that Supreme Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and not the State has invoked the Court's jurisdiction.
7. Based on the above, learned counsel for the revision petitioner sought for allowing the criminal revision petition.
8. Per contra, learned counsel appearing for the accused-Respondent Nos.R2, R5, R6, R9, R10, R12, R15 and R18 - Sri M.R.Nanjunda Gowda vehemently contended that very revision petition itself is not maintainable at the instance of the de-facto complainant. He has also pointed out that the learned trial Judge has rightly concluded that the document that is sought to be confronted is the Statement recorded under Section 161 of Cr.P.C. and not the complaint and same cannot be marked as a document.
At the best, the said document can only be considered for the purpose of eliciting truth as contemplated under 18 Section 162 of Cr.P.C. and prosecution cannot mark the statement of the defacto complainant as an Exhibit and thus, sought for dismissal of the revision petition and he has also relied on the decision of this Court in the case of H.C. Karigowda @ Srinivasa and Others Vs. State of Karnataka by Holenarasipura Town Police reported in ILR 2013 KAR 992.
9. Learned HCGP contended that despite the complaint being not marked as an exhibit, case came be proceeded in accordance with law and therefore, the State has not filed any revision petition against an order passed by the learned Trial Judge and sought for passing an appropriate order.
10. In view of the rival contentions, the following points would arise for consideration:
(i) Whether the revision petition at the instance at the defacto complainant is maintainable?19
(ii) Whether the impugned order is
revisable order?
11. In the case on hand, admittedly, the revision petitioner is a defacto complainant. When his examination in chief is in progress, complaint filed by the complainant sought to be marked as exhibit before the trial Court. The same was objected to by the accused contending that prior to lodging of the complaint by the complainant, the Investigating Agency had already registered a case in Crime No.582/2016 and had already recorded a statement of the injured in the hospital and based on the same, a case came to be registered in Crime No.582/2016 and therefore, the statement, if any, that has been given by the complainant would only be further statement in Crime No.582/2016 and that could only be recorded by the Investigating agency/officer by exercising power under Section 161 of Cr.P.C. and therefore, it cannot be considered as first information or complaint. The learned trial Judge after considering the rival contentions, rejected 20 the prayer in marking the alleged statement/complaint given by the defacto complainant.
12. The State has left the matter as it is.
However, it is the complainant who is now agitating before this Court by challenging the said order. The word 'victim' is defined in Section 2(wa) of the Cr.P.C. which reads as under:
"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;
13. In a given case, it also includes the rights of the complainant which is carved out under Section 372 of Cr.P.C. only for the purpose of challenging the order passed by the Court acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation. Except these three requirements in the amended Cr.P.C. for the victim/complainant, when the 21 Cr.P.C. is silent as to the further rights of a victim/complainant, the filing of the revision petition challenging the every order that would be passed during the pendency of the trial is not maintainable. Therefore, revision petition at the instance of the defacto complainant/victim, in the considered opinion of this Court, is not maintainable.
14. Learned counsel for the revision petitioner however, tried to contend that the statement given by the complainant which is sought to be marked as Exhibit need not be gone into in the revision petition. In view of the finding of this Court that the revision is not maintainable, at the instance of the revision petitioner, the question is 'whether statement given by the revision petitioner could be treated as a complaint and thus, needs to be marked can be gone into by this Court?' Moreover, since the order rejecting the prayer to mark as Exhibit would be an interlocutory order, there is a bar under Section 397(2) of Cr.P.C. to entertain this revision petition by this Court and 22 also revision petition fails since this Court can dismiss the revision petition for more than one reason and this Court even deems it fit to look into rival contentions urged by this Court by placing reliance on the judgments referred to supra.
15. However, having said thus, the complainant cannot be left remedy-less. In the event, an adverse order is suffered by the complainant, the order dismissing the present revision petition would not come in the way of he pursing the matter before the appellate Court in accordance with law.
16. With the above observation, point Nos.1 and 2 are answered in the negative. Revision petition is not maintainable. Hence, dismissed.
Sd/-
JUDGE BS