Karnataka High Court
Srikanth H S vs State Of Karnataka on 27 March, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:12772
CRL.P No. 13023 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 13023 OF 2023
BETWEEN:
SRIKANTH H.S
AGED ABOUT 42 YEARS
S/O LATE SHANKARA MURTHY
RESIDING AT NO 223, 11TH MAIN
37TH CROSS, 4TH T BLOC JAYANGARA
BANGALORE - 560 041.
...PETITIONER
(BY SRI HAREESH N, ADV.)
AND:
1. STATE OF KARNATAKA
STATE BY JNANABHARATHI POLICE
STATION, BENGALURU REP BY ITS SPP HIGH
COURT BUILDING, HIGH COURT
Digitally signed BANGALORE - 560 001.
by B A KRISHNA
KUMAR
Location: HIGH 2. RAGHAVENDRA V
COURT OF S/O VENKATASUBBAIAH V.N
KARNATAKA AGED ABOUT 58 YEARS
RESIDING AT NO.45
SHIVANANDA BLOCK
ULLAL MAIN ROAD, JNANAJYOTHI
NAGAR, GNANABHARATHI POST
BANGALORE - 560 056.
...RESPONDENTS
(BY SRI R. RANGASWAMY, HCGP FOR R-1;
SRI H. SURESH, ADV., FOR R-2)
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NC: 2024:KHC:12772
CRL.P No. 13023 of 2023
THIS CRL.P FILED U/S 482 CR.PC PRAYING TO SET ASIDE THE
ORDER DATED 15.02.2023 PASSED IN C.C.NO.26207/2016 PASSED
BY IX A.C.M.M AT BENGALURU AT ANNEXURE-A.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Petitioner is before this Court under Section 482 of Cr.PC with a prayer to set aside the order dated 15.02.2023 passed in C.C.No.26207/2016 by the Court of IX Addl. Chief Metropolitan Magistrate, Bengaluru.
2. Heard the learned Counsel for the parties.
3. Facts leading to filing of this petition as revealed from the records are, petitioner is being tried before the Trial Court in C.C.No.26207/2016 for the offences punishable under Sections 465, 468, 471, 420 IPC. During the course of recording the evidence, the public prosecutor had filed an application under Section 242 read with 91 of Cr.PC with a prayer to permit the Investigation Officer to produce certain additional documents in support of the case of the prosecution. The said application was opposed by the petitioner by filing objections. The Trial Court vide the order impugned dated 15.02.2023 has allowed the said application. The same was questioned by the petitioner -3- NC: 2024:KHC:12772 CRL.P No. 13023 of 2023 before the Court of LX Addl. City Civil & Sessions Judge, Bengaluru, in Crl.R.P.No.263/2023 which was dismissed on 31.10.2023 on the ground that the revision petition is not maintainable. It is in this background, petitioner is before this Court.
4. Learned Counsel for the petitioner having reiterated the grounds urged in the petition, submits that the application filed by the prosecution is not maintainable. The documents now sought to be produced are not part of the charge sheet, and therefore, unless the Investigation Officer seeks permission from the Trial Court under Section 173(8) of Cr.PC for further investigation, the documents cannot be produced. He submits that additional documents can be produced only by filing additional charge sheet and not otherwise. In support of his arguments, he has placed reliance on the order passed by the coordinate bench of this Court in Crl.P.No.6996/2015 disposed of on 25.11.2015.
5. Learned HCGP and the learned Counsel for respondent no.2, on the other hand, have opposed the petition. They submit that in view of the language used in Section 242 of -4- NC: 2024:KHC:12772 CRL.P No. 13023 of 2023 Cr.PC, the Trial Court can permit the Investigation Officer to produce any evidence or documents which are not part of the charge sheet. They submit that a coordinate bench of this Court in the case of B.L.UDAYA KUMAR & OTHERS VS THE STATE OF KARNATAKA BY KUSHALNAGAR POLICE - ILR 2018 KAR 4093, has considered this aspect of the matter in detail and has held that any evidence or document which is not part of the charge sheet can be produced before the Trial Court and the same can be permitted by the Trial Court in exercise of its power under Section 242(3) of Cr.PC.
6. Section 242 of Cr.PC reads as under:
"242. Evidence for prosecution.- (1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the Magistrate shall fix a date for the examination of witnesses:
Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its -5- NC: 2024:KHC:12772 CRL.P No. 13023 of 2023 witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:
Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination."
7. The powers under Section 242 of Cr.PC vis-à-vis Section 173(8) of Cr.PC was taken into consideration by this Court in Udaya Kumar's case supra and in paragraphs 12 & 13 of the said judgment, it has been observed as under:
"12. As could be seen from the above, sub- Section (3) mandates the Magistrate to take all such evidence as may be produced in support of the prosecution. The use of the language "all such evidence" in the sub-section means that the Court is required to take or receive all such evidence which the prosecution may produce in support of its case. Having regard to the wide language used in the section, the expression "all such evidence"-6-
NC: 2024:KHC:12772 CRL.P No. 13023 of 2023 cannot be given a restrictive meaning so as to hold that only such evidence as relates to those of persons who have been examined by the Police or only the documents collected during investigation could be produced before the Court. To read the section in such a restricted manner would amount to reading into the sub-section something which is not there. Even otherwise "evidence" in strict sense means oral and documentary evidence. As defined in Section 3 of the Evidence Act "Evidence means and includes-(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) (all documents including electronic records produced for the inspection of the Court) such documents are called documentary evidence."
13. Thus it is clear that sub-Section (3) of Section 242 casts a mandatory duty on the Magistrate to take all such evidence as may be produced in support of the prosecution. The word "produced" in sub-Section (3) also cannot be given a restrictive meaning to hold that only the materials collected during investigation could be permitted to be produced in evidence. Such a construction would defeat the very purpose of trial. If the main object of criminal trial is to discover -7- NC: 2024:KHC:12772 CRL.P No. 13023 of 2023 truth, necessarily all and every piece of evidence while could help the Court to arrive at a just decision should be allowed to come on record. Therefore, it is immaterial, whether the "evidence" sought to be produced during trial was either collected in the course of investigation or subsequent thereto. Section 91 Cr. P.C. no doubt empowers the Court or the officer in charge of the Police Station to ensure the production of any 'document or other thing' 'necessary or desirable' for the purpose of any investigation, enquiry or other proceedings by issuing summons or written order to the person in whose possession or power such document or thing is; but Section 242(3) Cr. P.C. requires the Court to take all such evidence which the prosecution desires to produce including the documents which are not mentioned in sub- Section (5) of Section 173 Cr. P.C. subject of course furnishing to the accused a copy thereof and providing him a reasonable opportunity to meet the same. The only safeguard or restriction that could be thought of in view of the provisions of the Evidence Act is that such evidence must relate to the matters of fact in enquiry. In other words, as long as the proposed evidence, either oral or documentary, is relevant and in support of the prosecution case, the Magistrate cannot refuse to receive it."
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NC: 2024:KHC:12772 CRL.P No. 13023 of 2023
8. This Court in Udaya Kumar's case supra has observed that Section 242(3) of Cr.PC confers power on the Magistrate to take all such evidence as may be produced in support of the prosecution and the said provision is a stand alone provision and cannot be said to be controlled by Section 173(8) of Cr.PC.
9. Section 173(8) of Cr.PC confers a statutory right on the police officer, in the event of availability of evidence bearing on the guilt of the accused to conduct further investigation.
10. The Trial Court depending on the facts and circumstances of the case on the application made by the prosecution under Section 173(8) of Cr.PC, can grant permission for further investigation, but that shall not come in the way of the Trial Court to exercise its powers under Section 242(3) of Cr.PC which is wide enough to invest powers in the Magistrate to take all the evidence produced by the prosecution in support of its case.
11. The order in Crl.P.No.6996/2015 disposed of on 25.11.2015 supra on which reliance has been placed by the learned Counsel for the petitioner has not dealt the aforesaid -9- NC: 2024:KHC:12772 CRL.P No. 13023 of 2023 aspect of the matter, and therefore, the same cannot be of any aid to the petitioner. Under the circumstances, I do not see any merit in this petition. Accordingly, the petition is dismissed.
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JUDGE KK