Karnataka High Court
Annappa vs The State Of Karnataka on 20 September, 2024
Author: K Natarajan
Bench: K Natarajan
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NC: 2024:KHC-K:7136
CRL.P No. 201341 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K NATARAJAN
CRIMINAL PETITION NO.201341 OF 2023
(482(Cr.PC)/528(BNSS))
BETWEEN:
SRI. ANNAPPA S/O HUSENI KALAWANT,
AGED ABOUT 72 YEARS, OCC: NIL,
R/O TADAVALAGA VILLAGE, TQ. INDI
DIST. VIJAYPUR-586101.
...PETITIONER
(BY SRI. S. S. MAMADAPUR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH HORTI POLICE STATION,
Digitally signed REP. BY ITS
by KHAJAAMEEN
L MALAGHAN ADDITIONAL STATE PUBLIC PROSECUTOR,
Location: High ADVOCATE GENERAL'S OFFICE,
Court Of HIGH COURT BUILDING, KALABURAGI-585101.
Karnataka
2. SHRI S. B. KATTIMANI,
AGE: MAJOR, OCC: SERVICE SALES OFFICER,
OFFICE OF ARCS,
INDI, DIST. VIJAYAPUR.
(AMENDED V/O DATED ORDER 27/09/2023)
...RESPONDENTS
(BY SRI. JAMADAR SHAHABUDDIN, HCGP FOR R1;
NOTICE TO R-2 SERVED BUT UN-REPRESENTED)
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NC: 2024:KHC-K:7136
CRL.P No. 201341 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
15.07.2023 PASSED BY THE II ADDL. DISTRICT AND
SESSIONS JUDGE, VIJAYAPUR, ON THE APPLICATION FILED
UNDER SECTION 91 OF CR.P.C. IN CRL.APPEAL NO.84/2017
AND CONSEQUENTLY ALLOW THE SAME.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR JUSTICE K NATARAJAN) This petition is filed by the petitioner under Section 482 of Cr.P.c. praying to set aside the order dated 15.07.2023 passed by the II Addl. District and Sessions Judge, Vijayapur, on the application filed under Section 91 of Cr.P.C. in Criminal Appeal No.84/2017. -3-
NC: 2024:KHC-K:7136 CRL.P No. 201341 of 2023
02. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent No.1 - State.
03. The case of the petitioner is that the Horti Police have filed the charge-sheet against the petitioner for the offence punishable under Section 409 of IPC. Subsequently, the petitioner faced the trial. He has been convicted and sentence to undergo simple imprisonment for 02 years and fine. Feeling aggrieved by the same, the petitioner has filed an appeal before the District and Sessions Judge, in Crl.A.No.84/2017. During pendency of the appeal, the petitioner has filed an application under Section 91 of Cr.P.C. for summoning the documents from the Chief Administrative Officer of PKPS, Tadavalaga and Assistant Director of Cooperative Audit, Sub-Division Indi, to produce the some documents, as the petitioner is having zerox copy which reserved with the said persons. Hence, prayed for summoning the documents. -4-
NC: 2024:KHC-K:7136 CRL.P No. 201341 of 2023
04. The First Appellate Court after hearing the arguments dismissed the application on the ground that the application is filed after 04 years only in order to drag the proceedings, which is under challenge.
05. Having heard the arguments and on perusal of the records, which reveals that the petitioner said to be employee under the PKPS. During his tenure of service, he said to be misappropriated some amount and not given charge and misused the funds total more than of Rs.4,00,000/-. He has found guilty and convicted by the Trial Court, which is challenged before the First Appellate Court.
06. The learned counsel for the petitioner submits that the petitioner has given charges to the concerned authority. But same has not brought notice of the of Court, during the cross-examination as well as statement under Section 313 of Cr.P.C. Therefore, if these documents were summoned and produced before the First Appellate Court, as additional evidence, then it will clinches the issue that -5- NC: 2024:KHC-K:7136 CRL.P No. 201341 of 2023 he has not committed any offence. Therefore, if these documents are considered as additional evidence, there is chances of reversing the judgment is not ruled out. Hence, he has filed an application, which came to be dismissed. Hence, the petitioner is before this Court.
07. Considering the fact of the case, of course the petitioner either prosecution or the accused, can permitted to file an application under Section 391 of Cr.P.C. in the appeal for leading additional evidence. If any such application is filed, the appellate court, if it is Sessions Court or High Court can direct the Magistrate to record the evidence and send it back for giving findings on the additional evidence or else the appellate court itself can record the evidence and give the findings with the judgment.
08. It is also parameteria in CPC under Order 41 Rule 27 of CPC for an additional evidence adducing in the appeal. But herein in this case, the petitioner has not filed any such application under Section 391 of Cr.P.C. for -6- NC: 2024:KHC-K:7136 CRL.P No. 201341 of 2023 leading additional evidence, either production of documents copy or original and along with the said application, the petitioner ought to have file an application for summoning the documents as well as summoning any witnesses on his behalf to lead additional evidence. Prior to that, he should required to himself required to give evidence in the appellate court as additional evidence, which is not done. Therefore, there is no other option for the appellate court for dismissing the application filed under Section 91 of Cr.P.C.
09. Even on perusal of the provision under Section 91 of Cr.P.C. it give right to summon the document of any person during the course of inquiry, investigation or trial, but it does not say that in the appeal, documents required to be summoned. Therefore, considering the fact of the case, even though under the provision of 91 of Cr.P.C. it is not provided in the appellate stage, documents to be summoned. However, the first appeal is nothing but continuation of the original proceedings. -7-
NC: 2024:KHC-K:7136 CRL.P No. 201341 of 2023
10. Such being the case, the petitioner is required to file application under Section 391 of Cr.P.C. with list of witness or along with under Section 91 of Cr.P.C. for summoning the documents. Therefore, without doing so, the Trial Court is not possible to pass any order to summon the documents. Therefore, this Court does not find any material in the order of the Trial Court, but it is a error committed by the counsel without filing the application for additional evidence, but summoning the documents, which is not correct. Therefore, for the limited purpose this Court, set-aside the order of the First Appellate Court and remitted back the matter for fresh consideration. Accordingly, I proceed to pass the following;
ORDER I. The petition is allowed.
II. The order of the learned Sessions Judge, under Section 91 of Cr.P.C. is set-aside.
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NC: 2024:KHC-K:7136 CRL.P No. 201341 of 2023 III. The petitioner is at liberty to file an application under Section 391 of Cr.P.C. if so filed, the First Appellate Court shall consider the same along with under the provision of Section 91 Cr.P.C. and pass appropriate order in accordance with law.
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(K NATARAJAN) JUDGE KJJ List No.: 1 Sl No.: 18 CT:SI