Karnataka High Court
State Of Karnataka vs Jaleel V/S Nabisab on 5 June, 2023
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NC: 2023:KHC:19114
CRL.A No. 1256 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1256 OF 2019
Between:
State of Karnataka
By Jayanagara Police Station,
Shivamogga,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru.
...Appellant
(By Smt. Rashmi Jadhav, HCGP)
And:
1. Jaleel V/s Nabisab,
Digitally signed Aged 27 years,
by VEERENDRA
KUMAR K M Mason,
Location: HIGH R/o. Hanumantha Nagara,
COURT OF Shivamogga.
KARNATAKA
2. Chandra
S/o. Manjanaika,
Aged 30 years,
Mason,
R/o. Hanumantha Nagara,
Shivamogga.
...Respondents
This Criminal Appeal u/s 378 (1) and (3) Cr.P.C., praying
to grant leave to appeal against the judgment and order of
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NC: 2023:KHC:19114
CRL.A No. 1256 of 2019
acquittal dated 09.08.2018 on the file of the III Additional
Sessions Judge, at Shivamogga in S.C.No.166/2011, acquitting
the accused/respondents for an offence p/u/s 307 r/w section
34 of IPC and etc.
This Criminal Appeal, coming on for orders, this day, the
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal has been listed for orders on notice to be issued to respondents No.1 and 2. Having noticed the fact that respondents No.1 and 2 did not participate during trial and a grave error committed by the trial court in deciding S.C.No.166/2011, we have disposed of this appeal after hearing the learned High Court Government Pleader.
2. Jayanagara Police, Shivamogga filed charge sheet against four accused for the offences punishable under Sections 341, 504, 323, 398 and 307 read with Section 34 of IPC. The respondents in this appeal are accused No.1 and 2 against -3- NC: 2023:KHC:19114 CRL.A No. 1256 of 2019 whom the charge sheet was split as they had absconded. The original charge sheet was registered as S.C.No.154/2008 and accused No.3 and 4 stood acquitted after trial.
3. The judgment impugned in this appeal shows that since the presence of accused No.1 and 2 could not be secured after exhausting all the processes, the learned trial Judge proceeded to record evidence under Section 299 of Cr.P.C., and issued summons to CW1, CW12 and CW13. CW1 was the first informant or the complainant and the police could not secure his presence. Thereafter the ASI was examined as PW1 and the PSI as PW2. One B.Devaraju who registered the FIR was examined as PW3. After recording the evidence of three witnesses PWs.1 to 3, the learned trial Judge, instead of taking steps to transfer the case to the register of Long Pending Cases, acquitted accused No.1 and 2 of the offences mentioned -4- NC: 2023:KHC:19114 CRL.A No. 1256 of 2019 above by following the judgment of this court in the case of STATE OF KARNATAKA BY SUB INSPECTOR OF POLICE, BAGEPALLY VS. VADDE YERRA VENKATARAMANA @ RAJU [ILR 2003 KAR 3958]. The trial Judge has given the following reasons for acquitting accused No.1 & 2:
"9. It is settled rule that, if there is sufficient evidence against the accused persons who is absconding, the court can proceeded to record the evidence of such witnesses and transfer the case to L.P.R. and after arrest of the accused in the future, the case would be re-opened and accused may be tried. But when there is no evidence at all in order to prove the alleged charges for which the accused in future in the event of their arrest they may be tried there would be no meaning to keep alive such file."
4. Amongst other grounds, the State has taken one ground that acquittal of the respondents i.e., accused No.1 and 2 was against the procedure -5- NC: 2023:KHC:19114 CRL.A No. 1256 of 2019 contemplated under law in the sense that when once the court recorded evidence under Section 299 of Cr.P.C., the case should have been removed to the register of long pending cases.
5. We find that the trial court Judge has committed an error and he should not have acquitted the respondents after recording the evidence of three witnesses under Section 299 of Cr.P.C. We also find that the learned trial Judge has wrongly applied the ratio in the case of Vadde Yerra Venkataramana @ Raju (supra). The said judgment does not say that the accused should be acquitted in a circumstance like this. What has been observed is that in circumstances where the accused cannot be produced before the court, the case has to be closed!
6. We find it pertinent to refer to a judgment of this court in the case of STATE OF KARNATAKA VS. LAMBADI CHANDRANAIK [ILR -6- NC: 2023:KHC:19114 CRL.A No. 1256 of 2019 1996 KAR 1600]. In this case, it is clearly held by the learned Single Judge as below:
5. On a perusal of the decision reported in ILR 1994 KAR 3308, I find as rightly pointed out by the learned High Court Government Pleader that the procedure prescribed under the Rules of Practice has not been brought to the notice of the High Court in that case and therefore the Court held that if the accused is not traceable the correct procedure is to close the matter. In that case the offence alleged was under Section 379 IPC which was a warrant case.
In the case on hand, the offences alleged against the accused are under Sections 354, 324 and 506 read with Section 34 IPC. The procedure governing the trial of the offences under Sections 354 and 324 IPC is that of a warrant case. Therefore the provisions under Chapter-4 of the Criminal Rules of Practice apply. In my -7- NC: 2023:KHC:19114 CRL.A No. 1256 of 2019 view the decision in ILR 1994 KAR 3308 has been rendered only because the provisions under Chapter 4 of the Karnataka Rules of Practice have not been brought to the notice of the Court. When there is specific procedure prescribed in the Karnataka Criminal Rules of Practice for such cases they cannot be ignored. I therefore find that the impugned order cannot be sustained.
7. The case of Vadde Yerra Venkataramana @ Raju (supra) is rendered by the Division Bench of this court. We notice that the Division Bench was not appraised of Chapter IV of the Karnataka Criminal Rules of Practice. Therefore we are of the opinion that there was no scope for the trial court to acquit respondents No.1 and 2 after recording the evidence of three witnesses under Section 299 of Cr.P.C. The trial Judge has clearly observed that the presence of complainant could not be secured and all the three -8- NC: 2023:KHC:19114 CRL.A No. 1256 of 2019 witnesses examined are police personnel. Merely for the reason that other two accused were acquitted, respondents No.1 and 2 would not become entitled to acquittal automatically. Instead of acquitting respondents No.1 and 2, the learned trial Judge ought to have proceeded to take steps to transfer the case to the register of Long Pending Cases. Therefore the impugned judgment is not sustainable and it requires to be set aside. Hence the following:
ORDER Appeal is allowed.
The judgment of acquittal passed by the III Additional Sessions Judge, Shivamogga in S.C.No.166/2011 dated 09.08.2018 is set aside. Case is remanded to the trial court for taking steps in accordance with Chapter-IV of the Karnataka Criminal Rules of Practice.-9-
NC: 2023:KHC:19114 CRL.A No. 1256 of 2019 The case shall be called in the trial court on 03.07.2023.
Copy of this judgment be sent to the trial Judge, who rendered the impugned judgment.
Sd/-
JUDGE Sd/-
JUDGE KMV List No.: 1 Sl No.: 2