Karnataka High Court
Sri K A Shivappa Gowda vs Sri B L Jayesha on 30 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2529, 2021 (2) AKR 244
Bench: B.Veerappa, K.Natarajan
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.45 OF 2015
BETWEEN:
SRI K.A. SHIVAPPA GOWDA
S/O. LATE APPANNA GOWDA KODATHALU,
AGED 60 YEARS,
KOCHAVALI VILLAGE,
THEKKUR (P), SHRINGERI TALUK,
CHIKMAGALUR DISTRICT - 571 113.
... APPELLANT
(BY SRI ASHOK N. NAIK, ADV.)
AND:
1. SRI B.L. JAYESHA
S/O. LATE LINGAPPA GOWDA,
AGED 40 YEARS,
AGRICULTURIST,
VOKKALIGA GOWDA,
RESIDENT OF KALASANAGADDE,
BANNUR VILLAGE,
N.R. PURA TALUK,
CHIKMAGALUR DISTRICT - 577 114.
2. STATE
BY BALEHONNUR POLICE,
N.R. PURA TALUK,
CHIKMAGALUR DISTRICT - 577115,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE.
... RESPONDENTS
(BY SRI S. SHANKARAPPA, SENIOR ADV., FOR R-1 & SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P., FOR R-2) 2 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 20-8-2014 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, CHIKAMAGALUR, IN S.C. NO.138 OF 2010, AND CONVICT & SENTENCE THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 304-B OF THE IPC AND UNDER SECTIONS 3 AND 4 OF THE D.P. ACT.
THIS CRIMINAL APPEAL IS COMING ON FOR ORDERS ON MEMO AND I.A. NO.1 OF 2020, THIS DAY, B. VEERAPPA, J., MADE THE FOLLOWING:
ORDER ON MEMO AND I.A. NO.1 OF 2020 The present appeal is filed by the appellant-
complainant against the impugned judgment and order of acquittal dated 20-8-2014 made in Sessions Case No.138 of 2010 on the file of II Additional Sessions Judge, Chikmagalur, acquitting the accused for the offences punishable under Section 498A, 304B of the Indian Penal Code (for short, 'the IPC') and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, 'the D.P. Act').
2. The appeal came to be admitted by this Court on 10-3-2016. After hearing the learned counsel for the appellant-complainant, the learned counsel for respondent No.1-accused and the learned State Public Prosecutor for respondent No.2-State, this Court by a detailed 3 i. Order dated 13-10-2020 allowed the appeal in part; ii. The accused was acquitted for the offences under Section 304B of the IPC and Sections 3 and 4 of the D.P. Act and he was convicted for the offence under Section 498A of the IPC and sentenced to undergo imprisonment for a period of two years with a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months;
iii. The fine of Rs.25,000/- was ordered to be payable to P.W.7-Hemavathi, mother of the deceased Niveditha as compensation under Section 357(3) of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.'); iv. The accused was entitled for the benefit of set off under Section 428 of the Cr.P.C.; and v. The trial Court was directed to secure the presence of the accused to undergo remaining sentence.
3. On 20-10-2020, the learned counsel for respondent No.1-accused filed a 'Memo for Being Spoken 4 To', wrongly mentioned as Advocate for the petitioner. It is stated that this Court partly allowed the appeal on 13-10-2020 and the appellant in the present case expired on 4-11-2018. In spite of the appellant being dead, it is not brought to the notice of the Court and the prosecution of the appeal is bad in law. Therefore, the respondent prayed this Court to allow the memo in the interest of justice. Subsequently, on 29-10-2020, the learned counsel for the appellant has filed I.A. No.1 of 2020 under Sections 372 and 482 of the Cr.P.C. for impleading Smt. Hemavathi, wife of the appellant, as the appellant. The learned counsel for the accused opposed I.A. No.1 of 2020 by filing the statement of objections on 30-11-2020.
4. It is stated in the application that the affidavit filed by the impleading applicant is not sworn in accordance with the Oath Act, 1969. The affidavit which is produced is not identified by an Advocate and it is left blank and not signed except notarising the affidavit and the proposed impleading applicant has not stated whether she is aware of the facts of the case and hence, the same is not 5 maintainable in law. It is further contented that even in the affidavit, it is admitted that the complainant- Sri K.A. Shivappa Gowda expired on 4-11-2018 and even in the affidavit or in the application not assigned any reasons for delay in filing the impleading application and even the affidavit is not in accordance or the signature of Smt. Hemavathi is not identified by an Advocate and it is left blank. Therefore, the application is not maintainable and sought to reject the application.
5. Heard the learned counsel for the parties.
6. Sri Ashok N. Naik, learned counsel for the appellant-complainant, submits that the death of the complainant was not brought to his notice. Therefore, he could not bring to the notice of the Court while disposing of the case on merits. Subsequently, he filed I.A. No.1 of 2020 for impleading the wife of the complainant. Today, in the open Court, he filed a memo praying to dismiss the said application as not pressed. Memo is placed on record. 6
7. Per contra, Sri S. Shankarappa, learned senior counsel for respondent No.1-accused, submits that the very application filed by the applicant under the provisions of the Oath Act, 1969, is not maintainable as the sole appellant died on 4-11-2018. The appeal came to be disposed of on 13-10-2020. Therefore, the appeal abates as on 4-11-2018. The judgment passed by this Court is bad in law. Hence, the judgment passed by this Court is required to review in view of the provisions of Section 362 of the Cr.P.C. though decided on merits.
8. The learned senior counsel further submits that in view of Section 362 of the Cr.P.C. and since this Court has not signed the judgment passed on merits, it could be recalled and opportunity be provided for hearing the respondent. Therefore, he sought to recall the judgment dated 13-10-2020.
9. Sri Vijayakumar Majage, learned Additional State Public Prosecutor for respondent No.2-State, submits that once the appeal is entertained by this Court and even on death of the appellant-complainant, the appeal will not be 7 abated. The judgment passed by this Court on 13-10-2020 is in accordance with law. The provisions of Section 362 of the Cr.P.C. is not applicable to the facts and circumstances of the present case. Therefore, he sought to reject the memo filed by the learned counsel for the accused.
10. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for our consideration are;
i. Whether the appeal stands abate due to
the death of the sole appellant-
complainant, who died on 4-11-2018?
ii. Whether respondent No.1-accused has made out any ground to recall the judgment passed by this Court dated 13-10-2020 exercising the powers under Section 362 of the Cr.P.C.?
11. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 8
12. It is not in dispute that the present appeal came to be filed by the appellant-complainant against the impugned judgment and order of acquittal dated 20-8-2014 made in Sessions Case No.138 of 2010 on the file of II Additional Sessions Judge, Chikmagalur, acquitting the accused for the offences punishable under Section 498A, 304B of the IPC and Sections 3 and 4 of the D.P. Act. It is also not in dispute that, this Court by the order dated 10-3-2016, admitted the appeal. Hence, this Court entertained the appeal filed against the impugned judgment and order of acquittal.
13. It is also not in dispute that after hearing the parties, this Court by a detailed order dated 13-10-2020, decided the case on merits by partly allowing the appeal and confirmed the acquittal for the offences under Section 304B of the IPC and Sections 3 and 4 of the D.P. Act, but convicted the accused for the offence under Section 498A of the IPC and sentenced him to undergo imprisonment for a period of two years with a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment 9 for a period of six months; the fine of Rs.25,000/- was ordered to be payable to P.W.7-Hemavathi, mother of the deceased Niveditha as compensation under Section 357(3) of the Cr.P.C., the benefit of set off under Section 428 of the Cr.P.C. was also given to the accused and the trial Court was directed to secure the presence of the accused to undergo remaining sentence.
14. After seven days of the judgment dictated in the open Court, on 20-10-2020, a Memo for Being Spoken To is filed by the learned counsel for the accused (wrongly mentioned as Advocate for the petitioner), which reads as under:
"Memo for being spoken to The above named respondent humbly begs to state as follows:-
The respondent further submits that the appellant has filed this appeal against impugned judgment of acquittal passed by the II Addl. District and Sessions Judge, Chikkamagaluru in SC. No.138/2010 by its judgment dated 22.08.2014. The respondent 10 further submits that this matter was posted before Hon'ble division bench consisting of their lordships Hon'ble Mr. Justice B. Veerappa and Hon'ble Mr. Justice Natarajan K. their lordships were please to partly allow the appeal on 13.10.2020. The respondent further submits that the appellant in the above matter has expired on 04.11.2018 in spite of the appellant being dead this is not brought to the Hon'ble courts notice and the prosecution of the appeal is not bad in law wherefore the above named respondent humbly pray before this Hon'ble court to allow this memo in the interest of justice."
Sd/-
Advocate for the Petitioner
15. On 29-10-2020, I.A. No.1 of 2020 is filed by the learned counsel for the appellant to implead Smt. Hemavathi, wife of the appellant, as the appellant. However, during the course of the arguments, the learned counsel for the appellant has filed memo dated 30-11-2020 for withdrawal of I.A No.1 of 2020, which reads as under: 11
"MEMO FOR WITHDRAWAL In this case, in view of the rulings relied and submitted by the proposed impleader of Hon'ble APEX COURT, the impleader herewith intends to withdraw IA. Hence permission may be granted in the ends of justice."
16. In view of the memo for withdrawal filed by the learned counsel for the appellant, there is no need to decide the application filed for impleading. Therefore, the contention raised by Sri S. Shankarappa, learned counsel for the accused, that the application filed for impleading the applicant is not maintainable would not arise.
17. It is not in dispute that the present appeal came to be filed by the appellant under the proviso to Section 372 of the Cr.P.C. The proviso to Section 372 of the Cr.P.C. came into force with effect from 31-12-2009, thereby the victim shall have a right to file an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal 12 ordinarily lies against the order of conviction of such Court. Earlier to amendment, there was no provision for the appellant to file an appeal. The definition of 'victim', as defined under Section 2(wa) of the Cr.P.C. came to be amended with effect from 31-12-2009, 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."
18. It is relevant to state at this stage that the State has not filed any appeal under Section 378 of the Cr.P.C., which was substituted with effect from 23-6-2006.
19. The provisions of Section 394 of the Cr.P.C. deals with abatement of appeals, which reads as under:
"394. Abatement of appeals:
(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.13
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.
PROVIDED that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the appellate court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
Explanation: In this section, "near relative"
means a parent, spouse, lineal descendant, brother or sister."
On careful reading of the said provisions makes it clear that it applies to appeals against an order of acquittal and an appeal to the High Court for enhancement of sentence shall finally abate upon the death of the accused. The appeal filed by the accused against sentence of fine will not abate upon the death of the appellant. An appeal from a composite order of sentence combining the substantive sentence of imprisonment with fine also will not abate on the death of the accused. All other appeals 14 filed by the accused shall finally abate on death of the accused. The provisions of Section 394 of the Cr.P.C. applies to an appeal filed under Section 449 of the Cr.P.C., but does not refer to the appeal under Section 454 of the Cr.P.C. A reading of Section 394 of the Cr.P.C. depicts that once an appeal against acquittal is entertained by this Court, this Court is bound to consider and dispose of the same in accordance with law and the same will not abate on account of the death of the appellant-complainant. Section 394 of the Cr.P.C. corresponds to Section 431 of the Cr.P.C., 1898. There is no much difference between Section 431 of the Cr.P.C., 1898 (old Code) and Section 394 of the Cr.P.C. (present Code) which would warrant a different interpretation. Evidently, Section 394(1) of the Cr.P.C. has no application to cases of death of the complainant in an appeal presented under the proviso to Section 372 of the Cr.P.C. The words "every other appeal under this Chapter" apply to the appeals filed under Sections 377 and 378 of the Cr.P.C. The result is that an appeal filed under Section 372 of the Cr.P.C. does not abate on the death of the complainant.
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20. Therefore, this Court cannot dismiss the appeal as abated. The appeal has to be heard and disposed of on merits. Admittedly, on 13-10-2020, when the case was taken up on merits, the death of the sole complainant was not brought to the notice of this Court either by the learned counsel for the appellant, or by the learned counsel for the accused, or by the learned Additional State Public Prosecutor, and this Court proceeded to decide the appeal on merits. As on the date, the appellant was not available, the proceedings before this Court cannot be abated as the appeal against acquittal is already entertained; it becomes the duty of this Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or unable to prosecute it for one reason or the other. The sole appellant died subsequent to the decision on merits will not abate the appeal. Once an appeal is entertained, it is the Court and the accused and even assuming that the sole appellant died, his legal heirs can prosecute the appeal.
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21. The next question that would arise for consideration is whether the legal heirs of the appellant can be impleaded as additional appellant in an appeal filed against acquittal. It is well settled principles that in order to get assistance for the proper determination of the case on merits, the appellate Court can permit anyone, whom it deems fit, to place before it all the relevant facts and the evidence in the case so that no aspect of the matter escapes the Court's notice. Further, the appearance of such a person is analogous to that of amicus curiae to assist the Court. Admittedly, in the present case, there was proper assistance from the learned counsel for the parties to dispose of the case on merits.
22. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of KHEDU MOHTON AND OTHERS v. STATE OF BIHAR reported in AIR 1971 SC 66, at paragraph No.8, it has held as under:
"8. From this section it is clear that an appeal under Section 417 can only abate on the death of the accused and not otherwise. Once an 17 appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or unable to prosecute it for one reason or the other. The argument that while introducing sub- section (3) to Section 417, Criminal P.C., the Parliament overlooked the provisions contained in Section 431, does not deserve consideration. The language of Section 431 is plain and unambiguous. Therefore no question of interpretation of that provision arises."
23. Sri S. Shankarappa, learned counsel for the accused, contended that in view of the provisions of Section 362 of the Cr.P.C., the judgment passed by this Court on merits should be recalled and an opportunity should be given to the accused to put forth his case. The said contention of the learned counsel is fallacious as Section 362 of the Cr.P.C. expressly subjected to "what is otherwise provided by the Code or by any other law for the time being in force." Exceptions carved out in Section 362 of the Cr.P.C. would apply only to those provisions where the Court has been expressly authorised either by the Code 18 or by any other law, but not to the inherent power of the Court under Section 482 of the Cr.P.C. is saved, where an order has been passed by the criminal Court, which is required to be set aside to secure the ends of justice, or where the proceeding amounts to abuse of the process of Court. It is also not in dispute that if a judgment is pronounced without jurisdiction or in violation of the principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of Court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality, the order becomes a nullity and the provisions of Section 362 of the Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.
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24. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of NEW INDIA ASSURANCE CO. LTD. v. KRISHNA KUMAR PANDEY reported in 2019 SCC ONLINE 1786, at paragraph Nos.11 and 12, it has been held as under:
"11. But the above contention of the learned Senior Counsel for the respondent is fallacious for two reasons. The first is that Section 362 of the Code is expressly subjected to "what is otherwise provided by the Code or by any other law for the time being in force." Though this Court pointed out in Davinder Pal Singh (supra) that the exceptions carved out in Section 362 of the Code would apply only to those provisions where the Court has been expressly authorized either by the Code or by any other law but not to the inherent power of the Court, this Court nevertheless held that the inherent power of the Court under Section 482 Cr.P.C is saved, where an order has been passed by the criminal Court, which is required to be set aside to secure the ends of justice, or where the proceeding amounts to abuse of the process of 20 Court. In paragraph 46 in particular, this Court held in Davinder Pal Singh as follows:
"46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment.
However, the party seeking recall/alteration has to establish that it was not at fault."21
12. The case on hand is one where the respondent secured an order from the High Court, behind the back of his employer that his conviction will not have an impact upon the service career of the respondent. The High Court did not have the power to pass such an order. If at all, the High Court could have invoked, after convicting the respondent, the provisions of the Probation of Offenders Act, 1958, so that the respondent could take shelter, if eligible, under Section 12 of the said Act. In this case, the High Court ventured to do something which it was not empowered to do. Therefore, the respondent cannot take umbrage under Section 362 of Cr.P.C. The second reason why the argument of the learned Senior Counsel for the respondent is fallacious is that the respondent himself was a beneficiary of what he is now accusing the appellant of. As we have stated earlier, the criminal revision petition filed by the respondent in Cr.R.No.402 of 2012 was disposed of by the High Court by a Judgment dated 29.06.2012. Thereafter the respondent moved a Miscellaneous Application in Criminal case No.8951 of 2012 purportedly for the correction of the order. There was neither an arithmetical nor a clerical error in 22 the judgment of the High Court, warranting the invocation of Section 362 Cr.P.C. The respondent cleverly borrowed the language of Section 362 Cr.P.C to affix a label to his petition and the High Court fell into the trap. After having invited an order, which, by the very same argument of the respondent, could not have been passed, it is not open to the respondent today to contend that there was no jurisdiction for the High Court to pass such an order. It is nothing but a case of pot calling the kettle black."
25. Admittedly, in the present appeal, memo came to be filed by the learned counsel for the accused after seven days of deciding the case on merits on 20-10-2020 stating that the appellant died on 4-11-2018 and in spite of the appellant being dead, the same was not brought to the notice of the Court. Therefore, the learned counsel for respondent No.1-accused cannot take umbrage under Section 362 of the Cr.P.C. The arguments of the learned counsel for the accused are fallacious as the accused himself was a beneficiary to some of the offences made out in the charge. It is not in dispute that while passing the 23 judgment on merits, opportunity was provided to the learned counsel for the accused to defend his case. In fact, the learned counsel for the accused while justifying the impugned judgment and order of acquittal has argued as referred to in paragraphs No.9 and 10 of the judgment on merits and has taken up all contentions. After hearing the learned counsel for the parties, this Court disposed of the case on merits on 13-10-2020. Thereafter, the memo filed by the learned counsel for the accused is purportedly for the correction of the order. There was neither an arithmetical, nor a clerical error in the judgment warranting the invocation of Section 362 of the Cr.P.C. The learned counsel for the accused cleverly borrowed the language of Section 362 of the Cr.P.C. to affix a label to the present appeal and this Court would not fall into trap as the case is decided on merits. Therefore, the contention of the learned counsel for the accused that in view of the provisions of Section 362 of the Cr.P.C., the judgment passed by this Court on merits requires to recall cannot be accepted.
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26. For the reasons stated above, point No.1 raised in the present appeal is answered in the negative holding that the appeal will not abate due to the death of the appellant- complainant and this Court once entertained the appeal and decided the case on merits irrespective of the fact that appellant-complainant either does not choose to prosecute it or unable to prosecute it for one reason or the other. Accordingly, point No.2 is answered in the negative holding that respondent No.1-accused has not made out any ground to recall the judgment dated 13-10-2020 passed on merits in exercise of the powers under Section 362 of the Cr.P.C.
27. In view of the above reasons, the memo filed by the learned counsel for respondent No.1-accused dated 20-10-2020 stands rejected.
28. In view of the submission and memo filed by the learned counsel for the appellant-complainant, I.A. No.1 of 2020 is dismissed as not pressed.
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29. The judgment passed by this Court on merits dated 13-10-2020 stands unaltered.
Sd/-
JUDGE Sd/-
JUDGE kvk