Karnataka High Court
Tirupati S/O Kamanna Chigrihal vs State Through Kembhavi Ps on 13 December, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 13TH DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
CRIMINAL PETITION NO. 16200/2012
BETWEEN :
Tirupati
S/o.Kamanna Chigrihal
Aged 25 years, Occ: Agriculture
R/o.Shkapur
Shotapur Taluk
Gulbarga Dist. .. PETITIONER
(By Sri Avinash A.Uploankar, Adv.,)
AND :
State through
Kembhavi Police Station .. RESPONDENT
(By Sri Sanjay A.Patil, Addl.SPP)
This petition is filed under Section 482 of Cr.P.C. by
the advocate for the petitioenr praying that this Hon'ble
Court may be pleased to quash the proceedings initiated in
pursuance of the order dated 16.11.2012 pending before
District & Sessions Judge at Yadagir (SC.No.26/2010, Crime
No.44/2009) in the interest of justice and equity.
This petition coming on for admission, this day the
Court made the following:-
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ORDER
Petitioner has sought for quashing the order dated 16.11.2012, pending on the file of the Sessions Court, Yadgir (SC.No.26/2010).
2. The records reveal that S.C.No.26/2010 was tried before the Sessions Court, Yadgir and the matter was posted for rendering the judgment on 16.11.2012. However, on that day, accused Nos.2 to 9 were absent. They filed application for exemption. The same was rejected, since the Sessions Court found that no valid reasons are assigned. The matter was posted on 17.11.2012. On that day also, accused Nos.2 to 9 were not present and therefore Non Bailable Warrants were issued against them. In view of the absence of accused Nos.2 to 9, the bail bonds executed by them were cancelled (because of violation of bail conditions) and that the bail bonds executed and surety bonds were forfeited to the State. Hence, -3- show-cause notice was issued to sureties of accused Nos.2 to 9. Further, the Chief Administrative Officer of the Court was directed to lodge a complaint against accused Nos.2 to 9 for the offence punishable under Section 229-A of IPC before the jurisdictional Magistrate in view of the absence of accused Nos. 2 to
9. The judgment in Sessions Case was not pronounced either on 16.11.2012 or on 17.11.2012. Once again the matter was posted on 20.11.2012, warrants were once again issued against accused Nos.2 to 9, but they could not be traced. The matter was again adjourned to 22.11.2012, 23.11.2012 and to 26.11.2012. On that day, it seems, the Presiding Officer had to hand over the charge inasmuch as he was transferred. Therefore, the following order came to be passed on 26.11.2012:-
"A2 to 9 are absent. Since A2 to 9 absent, judgment cannot pronounced.-4-
PSI, Kembhavi P.S. submitted report that accused are not traced out.
Issue NBW to A2 to 9 executable by S.P., Yadgiri.
All four sureties are present and submitted, they are not able to produce A2 to 9 today. Sureties pray time but this prayer is rejected. Hence, accused bond and sureties bonds are forfeited to the Government to the amount what stated in the bond for each accused.
Issue Fine Levy Warrant to sureties for recovery to bond amount and write to Deputy Commissioner, Yadgiri to initiate necessary recovery proceedings as per Section 446(2) Cr.P.C. by using lands/properties given as security to this Court. Hence, issue FLW to four sureties above ordered.
The judgment itself is ready. When the judgment day is fixed on 16.11.2012 but could not be pronounced since A2 to -5- 9 absent. Hence, judgment dated 16.11.2012 prepared in this case is kept in sealed cover so as to enable the successor Hon'ble Sessions Judge for taking further action as per law. The said sealed cover containing judgment text is presently handed over to Hon'ble Chief Judicial Magistrate, Yadagiri so as the same be handed over to successor Hon'ble Sessions Judge, who preside over this Hon'ble Court.
Issue NBW to A2 to 9 executable by S.P., Yadagiri."
3. Sri Uploankar, learned counsel for the petitioner submits that the Sessions Court should not have instructed the Chief Adnministrative Officer to place the draft judgment before the succeeding Presiding Officer for his perusal, inasmuch as it is for the Presiding Officer who adores the seat of Sessions Court to hear the arguments afresh and pass the judgment of his own.
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4. As aforementioned, pronouncement of the judgment was fixed on 16.11.2012. On that day, probably deliberately, accused Nos.2 to 9 were absent. In this regard, the submission of Additional SPP that the accused having understood the mind of the Sessions Court, must have absconded, assumes importance. They continued to remain absent till 26.11.2012. Inspite of repeated Non Bailable Warrants and notices issued to the sureties, the accused Nos.2 to 9 did not appear. Thus, the conduct of accused Nos.2 to 9 is unpardonable. Their presence will have to be secured by the jurisdictional Court as per law, in case if they do not surrender and thereafter the matter will have to be dealt with as per law.
5. However, the learned Sessions Judge is not justified in observing in the order sheet dated 26.11.2012 that the judgment is kept in a sealed -7- cover so as to enable the succeeding Sessions Judge for taking further action as per law. Such an observation is uncalled for. Once the Judge is transferred, he ceases to be the Judge of that Court. Even if the judgment is written and the same is not pronounced, the said judgment cannot be treated as the judgment, inasmuch as the same is not pronounced. It is also not open for the earlier Sessions Judge to make available a copy of the draft judgment to the next Presiding Officer. The subsequent Presiding Officer who would be posted as Sessions Judge will have to hear the arguments of the prosecution as well as the defence afresh and thereafter shall have to take decision as per law. The decision of the Presiding Officer should be independent and should be unbiased. Therefore, the judgment if any, in the sealed cover directed to be handed over to the subsequent Sessions Judge should not be made use of by the succeeding posted Sessions -8- Judge and he has to take his decision independently after hearing the prosecution as well as the defence and after perusal of the records.
The observations of the Court below made in this regard on 26.11.2012 shall not be taken into consideration by the succeeding Presiding Officer of the Sessions Court.
Having regard to the facts and circumstances of the case, this Court is of the clear opinion that accused Nos.2 to 9 have misused the liberty by absconding without any valid reason, that too, when the Sessions Case was posted for rendering the judgment. The reason is obvious. Such accused who absconded after releasing on bail and who violated the conditions of bail are not entitled to the mercy from the Court, while they file application for bail subsequently. Hence, this Court directs the Sessions Court to keep in mind these facts and circumstances -9- of the case and the observations made during the course of this order while considering the applications for bail, if any, to be filed by accused Nos.2 to 9 in future during the pendency of the Sessions Case.
With the aforesaid observations, petition stands disposed of.
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JUDGE *ck/-