Karnataka High Court
Mustaq Ahmed vs State Of Karnataka on 25 September, 2018
Author: R.B Budihal
Bench: R.B Budihal.
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.353/2011
BETWEEN:
1. MUSTAQ AHMED
SON OF ABDUL KHADAR
AGED ABOUT 53 YEARS
2. TOHID AHMED
SON OF G.MUMTAZ AHMED
AGED ABOUT 35 YEARS
3. ASIF AHMED
SON OF KHALEEM SAB
AGED ABOUT 40 YEARS
RESIDING AT TAYALUR VILLAGE
MULBAGAL TALUK
KOLAR DISTRICT. ...APPELLANTS
(BY SRI PAVAN KUMAR G. A/W
SRI S.SHANKARAPPA, ADVS.)
AND:
STATE OF KARNATAKA
MULBAGAL POLICE
REPRESENTED BY S.P.P.
HIGH COURT BUILDING
BANGALORE. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
17/18.03.2011 PASSED BY THE PRL.S.J., KOLAR IN
2
S.C.NO.116/2009 CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCES P/U/S 307 AND 504 R/W 34 OF IPC AND
THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
R.I. FOR A PERIOD OF 7 YEARS EACH AND TO PAY FINE OF
RS.50,000/- (RUPEES FIFTY THOUSAND ONLY) EACH AND IN
DEFAULT, TO UNDERGO S.I. FOR A PERIOD OF ONE YEAR FOR
THE OFFENCE P/U/S 307 R/W SECTION 34 OF IPC AND THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO R.I.
FOR A PERIOD OF ONE YEAR EACH AND TO PAY FINE OF
RS.5,000/- EACH AND IN DEFAULT TO UNDERGO S.I. FOR A
PERIOD OF THREE MONTHS, FOR THE OFFENCE P/U/S 504
R/W SECTION 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellants-accused Nos.1 to 3 being aggrieved by the judgment and order of conviction dated 17.3.2011 passed by the Principal Sessions Judge, Kolar in S.C.No.116/2009 where under the appellants-accused were convicted for the offences punishable under Sections 307, 504 r/w Section 34 of IPC and accused Nos.4 and 5 were acquitted for the offences punishable under Sections 144, 148, 307, 323, 324, 504, 506 r/w Section 149 of IPC. The appellants- accused Nos.1 to 3 have challenged the legality and 3 correctness of the said judgment on the grounds as mentioned in the grounds of memorandum of appeal.
2. Heard the arguments of the learned counsel appearing for the appellants-accused Nos.1 to 3, so also, the arguments of learned Additional State Public Prosecutor appearing for the respondent-State.
3. Learned counsel appearing for the appellants- accused Nos.1 to 3 submits that there is case and counter case. On the same incident dated 25.2.2009 two crimes were registered one in Crime No.61/2009 wherein the present appellants along with accused Nos.4 and 5 were shown as accused persons and another in Crime No.62/2009 wherein the complainant of this case and other persons were arrayed as accused persons on the complaint filed by accused No.2 in this appeal. After investigation of the matter in Crime No.62/2009 charge sheet came to be filed. Accordingly, 4 case was registered in C.C.No.307/2009 for the offences punishable under Sections 323 and 324 r/w Section 34 of IPC. But so far as Crime No.61/2009 is concerned as one of the offences alleged under Section 307 of IPC was triable by the Sessions Court, the matter was committed to the Sessions Court and the Sessions Court took cognizance of the offences as against appellants herein along with accused Nos.4 and 5. Learned counsel further submits that looking to the date, time and place of the incident, the cases registered under Crime Nos.61/2009 and 62/2009 are case and counter cases. Though it was brought to the notice of the learned JMFC Court at Mulbagal that counter case in Sessions Case is pending before the Sessions Court, the learned Magistrate has not sent the records to the Sessions Court invoking Section 323 of Cr.P.C. to try the said case along with Sessions Case No.116/2009 and Sessions Court has tried Sessions Case No.116/2009 alone and pronounced the judgment convicting the 5 accused persons. Hence, it is his submission that when there are case and counter cases regarding which there is no dispute even by the other side, both the cases ought to have been tried together and judgment ought to have been pronounced on the same day simultaneously. Hence, there is illegality committed by the Sessions Court which prejudices the interest of the appellants-accused Nos.1 to 3 herein. Hence, submitted to allow the appeal and to send back the same to the concerned Sessions Court with a direction to secure the case papers pertaining C.C.No.307/2009 pending on the file of JMFC, Mulbagal to its file and to try both the cases one after another and to pronounce the judgment simultaneously. In support of his contention, learned counsel for the appellants-accused has relied upon the Full Bench decision of this Court reported in ILR 2012 KAR 509 in the case of State of Karnataka, by Circle Inspector of Police Vs. Hosakeri Ningappa and another and also relied upon the 6 judgment of this Court rendered by the learned Single Judge in Crl.A.No.1338/2007 dated 21.3.2013.
4. Per-contra, learned Additional State Public Prosecutor submits that the alleged incident is of the year 2009. While cross-examining the prosecution witnesses before the Sessions Court, the appellants herein have not at all brought to the notice of the Sessions Court that another counter case in C.C.No.307/2009 is pending before the JMFC Court, Mulbagal. When it was not brought to the notice of the Sessions Court about the pendency of another counter case, there is nothing wrong with the Sessions Court in proceeding with the matter and pronouncing the judgment in S.C.No.116/2009. He submitted that if the appeal is allowed and matter is remanded back to the trial Court, it will consume lot of time for disposal of both the cases. He further submitted that so far as C.C.No.307/2009 is concerned, looking to the report 7 dated 17.9.2018 of the learned Principal District & Sessions Judge, Kolar it goes to show that accused No.3 has not appeared before the said Court and NBW is issued against him. Hence, securing accused No.3 also consumes lot of time. As such, it is not necessary to allow the appeal and to send back the records to the concerned Sessions Court to try both the cases together. He submitted that the appellants-accused Nos.1 to 3 have not at all made out any grounds to allow the appeal. Hence, sought for rejecting the contention of the learned counsel for the appellants and to take up the matter for hearing on merits.
5. I have perused the grounds urged in the memorandum of appeal, judgment and order of conviction passed by the Court below as against the appellants herein, so also, perused the full bench judgment of this Court regarding the procedure to be followed while trying and disposing of case and counter 8 case and also the judgment of this Court rendered by the learned Single Judge, referred to above. I have also considered the oral submissions made by the learned counsel on both sides at the bar.
6. It is not in dispute that the alleged incident took place on 25.2.2009 at 9 a.m. in Mosque road at Thayaluru village. It is also not in dispute that on the basis of the same incident, two crimes were registered in Crime Nos.61/2009 and 62/2009. In Crime No.62/2009 after investigation, the investigating officer has filed charge sheet for the offences under Sections 323, 324 r/w Section 34 of IPC and it was registered in C.C.No.307/2009 on the file of the JMFC Court, Mulbagal. So far as crime No.61/2009 is concerned, charge sheet came to be filed for the offences punishable under Sections 144, 148, 307, 323, 324, 504, 506 r/w Section 149 of IPC and accordingly, appellants herein along with accused Nos.4 and 5 were 9 tried for the said offence in S.C.No.116/2009 on the file of the Principal Sessions Judge at Kolar and ultimately, the said case ended in conviction as against appellants- accused Nos.1 to 3 for the offences punishable under Sections 307 and 504 r/w Section 34 of IPC and accused Nos.4 and 5 were acquitted from all the charges. Hence, the materials on record shows that both the cases under Crime Nos.61/2009 and 62/2009 are case and counter cases. I have also perused the Full Bench judgment of this Court regarding the procedure to be followed in case and counter case for recording evidence and also for disposal of case that, while dealing with case and counter case, the trial should be conducted by the same Court and judgment is to be pronounced simultaneously one after the other. But, in the case on hand, the learned Magistrate has not at all sent the records of the case in C.C.No.307/2009 by invoking Section 323 of Cr.P.C. to the concerned Sessions Court for the purpose of trying 10 the same along with S.C.No.116/2009. The materials also goes to show that it was brought to the notice of the learned Magistrate that the counter case is pending before the Sessions Court. In spite of that, the said case was not sent to the Sessions Court. It is also the submission of the learned counsel appearing for the appellants herein that it was even brought to the notice of the learned Sessions Judge regarding pendency of the counter case in C.C.No.307/2009 before the JMFC Court at Mulbagal.
7. Even though it is submitted by the learned Additional State Public Prosecutor that there is a long delay and at this stage, matter cannot be remanded back to the concerned Sessions Court for the purpose of trying both the cases together, which will consume lot of time, but when there is case and counter case even according to the prosecution, their Lordships in the Full 11 Bench decision of this Court, referred to above, in paragraph No.11 have observed as under:
"11. Use of the words in the judgments cited supra, no doubt is prima facie indicative of mandatory character of the procedure to be followed in case and counter case, a close analysis thereof, in the light of the provisions contained in Section 465 of the Code would indicate that non- compliance of such procedure, by itself, is not sufficient to denude the concerned Judge of the jurisdiction to proceed with the trial and to pass the final order. If the procedure as stated by the Supreme Court mentioned supra in the case of NATHI LAL and similar matters is not followed, the same would be a case of irregularity, but not a case of want of competency. The wrong procedure adopted by the Trial Judge in such matters does not in any way relate to competency of the Court, but, it relates to adopting irregular procedure."
Further, in paragraph 16 of the said judgment it is observed as under:
"16. To sum up, the procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors. The trial should be conducted by the same Court. After recording the evidence and after hearing the 12 arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard in the other case. It is needless to observe that the arguments in both the matters shall be heard by the same Learned Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other."
Therefore, looking to the procedure in the said Full Bench decision of this Court regarding the manner in which the case and counter case are to be tried, I am of the opinion that the said procedure has not been followed. There is a provision under Section 323 of Cr.P.C. for the learned Magistrate to send the records to the concerned Sessions Court for the purpose of trying both the cases together. The learned Magistrate has not invoked the said provision and not sent the records to the concerned Sessions Court. Hence, it is necessary that trial of both the cases are to be conducted by the same Court one after another and judgment is to be 13 pronounced simultaneously on the same day one after another.
8. In view of the same, appeal is allowed. The judgment and order of conviction passed by the Court below as against the appellants-accused Nos.1 to 3 is hereby set aside. The matter is remitted back to the concerned Sessions Court. The learned Sessions Judge shall secure the records pertaining to the case in C.C.No.307/2009 on the file of JMFC, Mulbagal to its file and try both the cases together, by following the procedure as contemplated in the Full Bench decision of this Court, referred supra. Since the alleged crime is of the year 2009, the learned Sessions Judge shall take up both the matters on priority basis and to dispose of both the cases early and not later than six months from the date of receipt of the copy of this judgment.
Registry to send the copy of this judgment to the concerned Sessions Court immediately. 14
In view of the disposal of the appeal, I.A.No.1/2018 filed for early hearing does not survive for consideration and it is accordingly disposed of.
Sd/-
JUDGE bkp