Karnataka High Court
D M Nagaraja Setty vs Smt. Vasundara Radhakrishna on 5 October, 2010
Author: C.R.Kumaraswamy
Bench: C.R.Kumaraswamy
'W39'
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE DST" DAY OF OCTOBER 2010
BEFORE
THE HON'BLE MR. JUSTICE C.R. KUMARASWAME:
CRIMINAL PETITION NO.133E-. (5VF"'2~G;Q V
BETWEEN:
D M NAGARA}A SETTY
S/O LATE MUDDUNAGAIAH SHETTY
AGED ABOUT 58 YEARS
R/A NO.12O, 80 FEET MAIN ROAD " «.
S B M COLONY, BANGALORE. ' _ ';.--«..RETITIONER
(BY SR1: H S CHANDRASHEKAR, 'F'\D\r'O"CATE)_=._
AND:
SMT. VASUNDARA RA.'D?1}'X%<F<£ISi?1f~l;f.X
W/O RADHAKRISHNA,.MA3O.R " I
No.61, CHAMUN_DE.SHwA_R'I'LAYOL:T" "
VIDYARANYAPURA ' ' '-
BANGALORE. ' ...RESPONDENT
(BY SR1: R';2RABHA;<.ER,-ADVOCATE)
_ _ THIg__iCRININAL "PETITION" IS FILED UNDER SECTION 482 OF
C:ODE"*OF C*RIMI.N.AL"I«RROCEDURE PRAYING TO SET ASIDE/QUASH THE
ORDER D'A'T--ED ~v34§;a:,'2'O.1"'I'; PASSED BY THE PRESIDING OFFICER, FTC--II,
V BANGA'LOR"E_,%.A I'TI:""~«.§_:RL}R;~R.NO.226/2008 AND THE ORDER DATED
'27.S.2008.l?ASSE,D'E5"{_1'T-1E ><vIII ADDL. CMM, AND xx ASCJ, BANGALORE
KIN C,C.NO.3 eI.2)'2AVOO;3?.
' 'gr.TH'IS_CRININAL PETITION COMING ON FOR ADMISSION BEFORE
. "TH'E.COU'RT.THIS DAY, THE COURT MADE THE FOLLOWING:--
'-*3
W'
ORDER
This Criminal Petition is filed under Section 482 of Cod,e"~--_,, of Criminal Procedure praying to set aside/quash dated 3.2.2010 passed by the Presiding Officer, Bangalore, in Cr|.R.P.No.226/2008 andJmthe« ,_o'rde.;r' 27.5.2008 passed by ><\/111 Addl. _CMiViw,_ "a_nd >o§--i.l,AscJ",--.""'--. Bangalore in C.C.No.3612/2003.
2. 1 have heard the lea"i'.n5'e,d, Cou.jnse'l"~--.f;or:the petitioner as well as the learned couhnsei."fo'.*.--ti':'eV
3. The Vltteiolw has filed an application Codheoflzcriminal Procedure. It is narratedliat'-paraefiuf'.of_l'the"'iiaoplhication that the cheque bearing were issued blank to «Mr';'iVi.N.Netra Murthy and it is the conspira.tio'na:lf.,act'aiof. Mr.P.Vishwanath Herle. That on imniediately thereafter when Mr.G.Ramesh and "-if-Tis{i'i<._lVi~»..l\i.Netra,V__li?iurthy had turned hostile, the accused filed a Q?!"--.Vip'r'§\,/uaV*.li,e'w.co'r'nplaint in PCR i\lo.256S/2003 against the above "r.VisaEd_Mp_érsons, explaining how they conspired to cheat her. ./ {W/, The accused states that the complainant is in iiiegai possession of the disputed instrument. Hence, the accused fiiing the appiication seeking the permission of the Cou.r_t examine the witnesses mentioned therein regard'i"n.'g fire"
transactions between the accused and wi't;nes"s'es_ with to the disputed cheque and Ex.D.7g.which'~._wa.s. executed Mr.G.Ramesh in favour of the accuised'-i.in the--.aE3o§1eV'case. Therefore, she filed this appii.ca't.ion seiekinig permissiion the Court to examine Mr.M.N.Netra and:.iiiV1.Ar5~¢}Ramesh as witnesses in defence;~'oi""«hger case,
4. rfoihjection to this application. is »t'ii.e"'o__bje{.tion that accused fiied two appiication diffe*rerit' fiurider the same provision of___iaw, tha5t"isA.unde'i 311 read with 91 of Code of summoning of two witnesses by ':g_Aname'" and Mr.Ramesh, who have nothing V7?'_.to do with" the: case and are third parties to the proceedings ;b_.y the compiainant. Both the appiications came to /' by the triai Court. The accused preferred two revision petitions and both the revision petitions came to be dismissed by the Court of Fast Tracl<~Ii, Bangalore. Having failed in her attempt to protract the proceeding the accused.» has now come up with this application again to proceedings.
The complainant further states that theaboive of the year 2003. By this timefV_ca_se viiotildw vbeeriii coriciuded but for the frivolous the accused to proiorig the proc'ee'dings,s.:_yt:he'~-niotive being to deny the complainant an early-deciisioyniggoyfg She has aided and supporteq§~.'iip'y:_ri:e»r avdvocaitefir'iv,'Ft.Vi§ra't)hakara to file frivolous moreover is instigated by Sri.R.Prabhai<ara-up against three ad'vVocates,,.}inciuding"'theradvocate of the complainant. The Ba'ri__CoL:mcii the complaint against the advocate for the failed there also, the accused and V7Z3her--Vadvoc"ate'rnaking hectic efforts to delay the decision or case. V 3/ The compiainant further states that in the case Emmediateiy after the statement of the accused wa.s"w_ recorded, no list of witnesses has been fiied by the It is oniy after the cross-examination of DWI accused has fiied two applications with thefiisanie pro:.iisii:oin_of~--i'i» law on two different dates and both the'~ai5'p_|.icatioVi_iis"'were*::"'~., dismissed.
The compiainant cross~ examination of accuysed ciea'riy--'her entire defence put forth.» have any foundation a_n.d_,_ No prudent person couIdlbe|.ieye'iisu;hi:'aystory___n-arrated by the accused in her defence. Therefore; dismiss the application. ;_s:um_Aand'" substance of the finding of the triai Couii is SS' Lm'd._éTr..i The"-tria'i 'Court perused the contentions raised by the objections fiied by the compiainant. The cheque 'V"Vi.v."i..':Istadniiiitted and the signature on the cheque is admitted by as.»-
the accused but the issuance of the cheque is not admitted and the transaction is also not admitted. To rebut the'"--._ presumption, above said witnesses are necessary accused. Therefore, the trial Court came to the co'nciuvsiiion"R that the application fiied under Secticiniiiiiziifi-<3-._ Criminai Procedure deserves to be aiiowed".and sui*n'nmn's..\"--~ V"
were issued to the said witnesses.
6. The sum and Lt f.t'i"'i~».;;=L'V».CAfinding of the revisionai Court is as uh-dyer: it C C C it C The the case in C.C.No.3612:/Vétiwosdiagaiiiifst a¢i¢'use§d for the offence punishabie Instruments Act.
During the stageiéof t'riaViV,'V-.th'esaccused has filed an application of Criminal Procedure which came to be trial Court. The said order was Track Court--VII, Bangaiore. Against the ~ifs-ai.i_d'-order, "(:ri1minai Petition 484/2005 was fiied before this 4:'~'.V.VCou'rt. said petition was disposed of on 19.4.2006 with 'i7a*n,'oioservation that 'for the present, the petitioner shaii go 'W§Hdf_/ with the evidence before the trial Court and thereafter, when the stage of the defence evidence comes, the respondent, could make an appiication for summoning the same. learned Magistrate feels necessary to summon {the S documents, he can pass orders in acJcord'a'nc_e-«,w;i'th,:"iawv."7 Entertaining such appiication at the thres_ho*i.g_l. itseg'if_lAAi's'» notJ"--~ proper'. Thereafter the complainant"l~ed'-lthe ev--ide'nc_?s:
the triai Court. The aCCuS§ifd Dilvl.
Thereafter the accused filed an 'Section 91 of Code of Criminal by the trial Court. Again appiication under Section 91 anid"3V1ojiijriirniiniavi"Procedure which was aiso dismissed'«.b'y'.'_ aggrieved by the said orders, the a_ccuset:..fliedeCriArni'n'aiV Revision Petition S86/2007 an,_d'V"Crimivn_jai'i ;iA?.:evi.sAionAAx?et--ition 628/2007. These Revision PetitVi'ons" on 6.2.2008 with an observation accused has'e7ev:ery right to examine any witness as __.i_d'_e_fen'c_e witn~ess;. under Section 254 of Code of Criminai ':P_roce'dUre and even after closure of the case, the Court can power under Section 311 of Code of Criminal 1?»/"
Procedure. Thereafter the accused filed an application under Section 254 of Code of Criminal Procedure which was allowed by the trial Court on 27.5.2008. Looking into the defenceyy put forth by the accused the witnesses cited application filed under Section 254 of Code of Procedure are relevant. It is open to theV"accu'se_d"«.to-;e:<am_inVe'7' the necessary witnesses to rebut the presu_m'p,tion. "
witnesses are relevant, an opportunitifrias to be ptovidedllto the accused to defend his case;~~.__ The revisionai 'C-ovurt filing the application by the of Code of Criminal the order passed in Criminal Revision and Criminal Revision Petition buti'also' observed by this Court in Based on the material on recordp passed the impugned order dated inf/._S.200'8._. T__herei'ore, the revisional Court held that there is inlthe said order and the revision petition was Q"/.
dismissed. The impugned order passed in C.C.3612/2003 dated 27.5.2008 was confirmed.
7. Feeling aggrieved by the same, this Criminal Pet_it.ion.4'_:'i~.a_ is filed by the complainant challenging the order of -2 Court as well as the revisional Court.
8. It is the contention of the learned"r;ounseVl-v_iA.fo»r petitioner that summoning of witnesses M;N~;!§etré.= and Ramesh serves no purpose as"it'he:r;ro'!e._ in the"case is waived by the learned Magistrater Ttjis:'the:.ilco_n.t'e'ntion of the learned counsel for :lZ'!'l'L'?«.;p:Vét§tl¢'l'1e::!' t.i'iat.,i5'oth,if?!.lVjl.l\letra Murthy and Ramesiifwéreaaeccusaa i:n'.V,§;rimi«n'aE"'éase No.21637/2007 on the flie ivietropolitan Magistrate, Bangalore._ _ It istrieV_'cont--enAt,i_on~~-"'of the learned counsel for the p'eVtiti0nerftha--t: s»i.nce'Athe*-y--«are accused in C.C.21637/2007, thelseg Dfe_rson's»._sno'ugld"--.not be summoned as witnesses in this i',gc.c.21'a3V7}2oo7 emanates from C.C.3612/2003.
-..,l'_j'Leai*ned counsel for the petitioner relies on the decisions in '1._i_'4'catsg'g'af"'sTATE or BOMBAY v/s. KATHI KALU OGHAD i 'VF-eplorteéd in AIR 1961 sc 1808, in case ofJODH1 YADAV v/s. 10 KASHI YADAV & ORS reported in 2003 Cr.L.J. 1385, and also in case of P J FRANCIS 'W8. A PRADEEP & ANR reported iii'-._ 2004 Cr.L.3. 3827.
9. In case of STATE or BOMBAY v/s. KATi«i_I:'_f'i< 5i.fu--{,__f' oomp reported in AIR 1961 sc 1808,mthe Beimffjjof"jlji-_ Judges of Hon'bIe Apex Court has held as:=.pnd_er;fi' "16. In View of these consicl__eratior:_s,' we :ha"-.?_e__,_ come to the following cohclusionszi-"'a_ (1) An accused pers.oh«« ca-'jno--t.sai'd, to have been compekied to be a wEtnes.s'Va:_ia'i'nst h,imse!f'simply because he made aistaterrieint 'whiie=i.n-_po!ice. Eustody, without anything§--_moj}'é.._. Inother writes', th'e"'mere fact of beingjin poilice _,cuisto-dj/"~«..atthe time when the statementxin «question.»was«..m'ade would not, by itself, as a propositVi'o«n_Vhhof law,4VE'e_n"d.:it'self to the inference that the accused wasicomipelied to make the statement, t'hougVh-- that'..&fact,h""in«V conjunction with other .vc.ircuVmstaI'2.ces_"disciosed in evidence in a particular case,"wouv'|'d'\'bve__ agreilevant consideration in an enquiry whether or the accused person had been T"-..«,_Co,mpe|!ed_to make the impugned statement.
it '(.2) "The mere questioning of an accused person "poiice officer, resuiting in a voluntary statement, 11 which may uitimateiy turn out to be incriminatory, is not 'compuision'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that it to say, as including not rnereiy making of oraljior ii"
written statements but also productionmof docI;rr'ien':ts>"'~V. or giving materials which may be relevantat «atria! '- determine the guilt or innocence of theiaaccuseid. (4) Giving thumb impressio_ns._or Empressioinrisii foot or palm or fingers or speci..r_n'en wi;i'tinigis':or':§ showings parts of the body" by waiyiiof' ifldienitifgicationvCare"
not inciuded in the expression v'to'ibefaiiwit'nVess'i;» _ (5) 'To be, a WivtF--'.ESS' V.rn,ea'n"s. V"i'-rnipiarting knowiedge in res,tj'c--:ri_E'of*__rel§evant'= an oral statement or a"sita~tei'ne'ntV in_V'-w'r'i~tiVn'g_, "made or given in Court or otherwise. .
(6)7.fTo._ be Va'-"wi«tn'ess" ordinary grammaticai sense means giving._ora;ltestirnony in Court. Case iaw has gone beyond 'thVis'vstri,ct'l~iterai interpretation of the ....express.ion'which"may now bear a wider meaning, :"._Vna'meV'|Vv, bEearing.g_testimony in Court or out of Court by 'a _perso'n. a'ccu:ed._ of an offence, oraliy or in writing. (7) the statement in question within V the prohib-i'tio'n"of Art.20(3), the person accused must stoiocfdin the character of an accused person at t:h'e.Vtiim«e he made the statement. it is not enough 12 that he shouid become an accused, any time after the statement has been made."
10. In case of DHARMAPAL & ORS. V/S. SMT.RAMSHRIr._» & oas. reported in 1993 CRL..L.}. 1049 (sc), the i-i.Q_nd'i5Vi'e44of'»r2. Supreme Court has held thus:
"(#0 Criminai r>.c. (2 of 1974), S.S:"4V8'2;"j"9.7_('g:§V'V:V:I:.uT'V:
Revision -~ Scope ~---- Order by Magis'trat.e'=? Rie.vi"si_on«V against ---- Dismissal by Sessions'? Ccmrt" 5 Sec-on.d_"
revision against, before High Vtariruo-t entertained in exercise of~..i_ts irrnereritVV'pe_wers"under S.482." it
11. Learned fdr theyresf3o'_nde'nt'submits that C.C.21637/ZQCWVT' whereas the present casedflperrtairisigitloii:ch<§§i'ii§_.'bounce. It is also the contention of th'e""..iearned Aicounsei for the respondent that theymagteriai'rvwitrnesses to rebut the statutory presurrsrptgiono."-.j'h.é*fwtnesses which the accused--respondent Vi'~rr.hverein vvants togekarnine are not strangers to this case. ,Section 132 of Indian Evidence Act reads as under:
_' "witness shaii not be excused from answering any "fd"'~..Vqt_:_e§stion as to any matter relevant to the matter in F} is»?
13 issue in any suit or in any civil or criminai proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to. criminate, such witness, or that it wiil expose, or directly or indirectly to expose. such witness-jtio penalty or forfeiture of any kind:
provided that no such answer, aii'wit'ness shalt be compelled to give, s%1aii.._vsubj'e-ct'him arrest or prosecution or be provvedxagainst' ~h_irh -in any criminal proceedings, except a.il'p'ro-secutiipn fo«r"'g.iviv'ng false evidence by such an"s~.ve--r."'--
13. in this caséigoin this Court, an application liof Code of Criminal Procedure theiltri-all «C0ur.tv"thought it fit to ailow the said app'l_icat_loii the said application was ailowed, againstwvriich Revision Petitions were filed _a"r'i~d,_'the_y'3'«iNe.re also ud'ism..i_s.sed. The application was filed on an'-~.obse'rvati.onl jineae in Criminal Revision Petition S86/2007 'crin?iina'i7i'iaei}i'sion Petition 628/2007. But these _,_f--._'_observatlons2;remain intact as the same has not been atta'cl:<ed'-..,by the complainant challenging the same in the C" ._highei;' Court.
14
14. Section 254(2) of Code of Criminai Procedure reads as under:
"The Magistrate may, if he thinks fit, on the apfiiication of the prosecution or the accused, issue summons to any witness directing him to attend 'V' to produce any document or other thing."
15. If the Magistrate thinks fit that t_he..:'do'cu:ne'ntsor' the witnesses are required for justdecision-..ohf' the the Magistrate can pass '_ an an application. in this case, iea'r.n-"ed aiiowed the appiication on the ground materiai witnesses to arrix/e,at§i'j'Li~st..decisionpofhtnecase. It is the contention petitioner that the persons whoiiare' soug_ht--i:.'to:_'Eie:"suh"imoned by the accused- respondent 'herein in some other case. Articie ofiinidiiva says that no person accused of any:ofi°en¢'ev.:s:ha"iiiVft;e.1~'compeiied to witness against himseif. A'"T"i":is pro'tecti__ori.h'i§sgiven only to a person accused of an ""'::o'i'FeVn*ceganciuhias not been extended to a witness. In the p'rese.nt-».ca'se accused wants to examine M.N.Netra Murthy 15 and Ramesh as witnesses. These persons are not accused in the present case. Only the accused in a case will have benefit of Articie 20(3) of Constitution of India and would be cited as witnesses and not as accused. it is difficult to accept the contention of the learned"'cou5.S.gii_ it for the petitioner that protection uncizheirni/'_3:i'i'*tici};=«._T Constitution of India extends to, the 4'witnesses..':Lna'm'ely*:
M.N.Netra Murthy and Ramesh. ""'i4.F{yenthou'g_h"'it.i?iey",are accused in some other case.,"in__ thi«sV"'casey.tVhie..y are cited as witnesses and not as accused. Section Indian Evidence Act, 1872,§.n*.eVnyi:--ions' not excused from answering'on;theC1':§irou:'r;'t;iV:'-thatiiansfwer wiii criminate. Immunity under is appiicabie only to the accused and'v.nVot_:t'o--""nthe witness. In case if no opp'o~r.tunity§¥.isE>_tjimen to"'th-e-«taccused to put forth her case, there--.Awi.i.l'bet.riai insofar as the accused is concerned. If:;jifierefoi9eA.»"ain oppVo'jrt.t3nity shouid be given to the accused to jputé "forth he..rtc;_ase and to establish her defence. It is «iu'nd_isvputed'"pfact that the triai Court has ailowed the ajp_o__|'i'c'ation and aggrieved by the same, the complainant has 33 Z{_/'' I 16 preferred revision petition before the Court of Sessions. The Court of Sessions has affirmed the order of the trial Cot;rt.__ Now by way of second revision petition, the petitioner':Vhas:'--,:V. filed this Criminal Petition. Applying the principie by the Hon'ble Supreme Court in case Of'DAHfi¥RMfflPAVL' v/s. SMT.RAiViSHRI & ORS. reported in.»':1l49:9.-3"CRi;;{_iJ;. (SC), in my view, against the ordVer.:'Of._disriiis_saE,_olf._:rVe«y'i'si'on:
by the Revisionai Court, a second reviision tinder Siec-tio.-rig 482 of Code of Criminal Procedure by this Court. This being t_he-iiliegal Petition is devoid of merits lbgedismissed.
16. In the__relsuit,V--i__:pass«ithe.foilowing:
Thisffiriininatl dismissed.
Sdl '-
]UDGE it .V "'~i<i1