Karnataka High Court
Tulasaraddi @ Mudkappa vs State Of Karnataka on 12 September, 2014
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL PETITION No.101268/2014
C/w.
CRIMINAL PETITION No.101090/2014
IN CRIMINAL PETITION No.101268/2014
BETWEEN:
TULASARADDI @ MUDKAPPA
S/O. KRISHNAPPA GADREDDI
AGE: 40 YEARS, OCC: NIL
R/O. KURTKOTI, DIST: GADAG
... PETITIONER
(BY SRI. V. M. SHEELVANT, ADV.)
AND:
STATE OF KARNATAKA
R/BY ITS HIGH COURT
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH.
... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, HCGP)
2
THIS CRIMINAL PETITION IS FILED U/S 407 OF
CR.P.C. SEEKING TO WITHDRAW S.C.NO.37/2012
FROM THE FILE OF THE ADDL. DIST. & SESSIONS
JUDGE, GADAG, MADE IT OVER TO ANY OTHER
SESSIONS COURT, GADAG.
IN CRIMINAL PETITION No.101090/2014
BETWEEN:
SMT.NEELAVVA PATIL
W/O. BASAVANGOUDA PATIL
AGE: 27 YEARS,
OCC: HOUSEHOLD WORK
R/O. TADASI, TQ: RAMDURG
DIST: BELGAUM.
... PETITIONER
(BY SRI. NEELENDRA D. GUNDE, ADV.)
AND:
THE STATE OF KARNATAKA
GADAG RURAL POLICE STATION
R/BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
DHARWAD BENCH.
... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, HCGP)
---
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE ORDER PASSED BY
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THE DIST. & SESSIONS JUDGE, GADAG, IN
S.C.NO.37/2012, DATED 26.06.2014, THEREBY
APPOINTING SHRI. K.M. DAVENGERE AS ADVOCATE
FOR THE PETITIONER HEREIN AS AGAINST THE
PETITIONER.
THESE PETITIONS COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is accused No.2 in S.C.No.37/2012 on the file of the Addl. District and Sessions Judge, Gadag and he filed this petition with a prayer to withdraw the said case from the file of Addl. District and Sessions Judge, Gadag and to hand over it to the Sessions Court for trial. The grounds urged by the petitioner is that, the learned Judge is having prejudicial attitude towards this petitioner. In order to narrate the existence of prejudicial mind, the learned Counsel submitted that he had filed an application under Section 309 of Cr.P.C. (submission made that wrong 4 provision is made instead of Section 231 Cr.P.C.) and he made a prayer therein to defer cross- examination. He has stated in the said application that the cross-examination of witnesses may kingly be deferred after completion of examination of all material prosecution witnesses. It is submitted, if it is not deferred, the accused will be deprived in his defence.
2. The said application was dismissed on 11.07.2014. The dismissal itself is improper and irregularity on the part of the learned Judge. This is one of the instances to indicate prejudicial mind against the petitioner. Secondly, the statement recorded by the learned Judge for the purpose of Section 164 of Cr.P.C. should have been in the sealed cover and should have been opened in the open Court in the 5 presence of the accused. Whereas the said statement has been transmitted to the learned Judge by the prosecution. The petitioner apprehends that the said statement has not been opened in the open Court and there may be chances of tampering and that extent he had been deprived of his liberty.
3. By referring Section 207 of Cr.P.C, learned counsel submitted that accused is entitled for copies, list of documents therein including the statement recorded under Section 164 of Cr.P.C. But in the instant case, except statement under Section 164, all the statements have been furnished to the petitioner. To demonstrate the prejudicial attitude, the learned counsel submits that application filed under Section 309 of Cr.P.C. has been dismissed on 11.07.2014, in which the learned Judge has 6 referred the presence of the petitioner. Whereas again at the end he refers that the counsel for accused No.2 was not present. At one breadth for dismissing the application filed under Section 309 of Cr.P.C., he was present and on the other breadth, he was not present. This shows that it is a prejudicial attitude of the learned Judge. Hence, learned counsel submitted to transfer this matter from the said learned Judge to another Judge in the interest of justice as this Court do it under Section 407 of Cr.P.C.
4. The learned counsel for accused No.4 submits that the learned Judge has the power to direct the trial Court to appoint an advocate on behalf of accused No.4. Counsel for accused No.4 retired from the case on 15.05.2014. Hence, the prayer made to the learned Judge by 7 accused No.4 himself for appointment of a counsel, the same was rejected. The learned counsel filed power on 11.07.2014 and that was rejected. It is the right of the accused to get legal assistance by any counsel of his choice and it is his birthright. When such being the case, it is the rejection of the accrued right of accused No.4.
5. The learned counsel for the Government submits to dismiss these two petitions on the following grounds. It is submitted that the rejection of the application filed under Section 309 of Cr.P.C. is curable defect. In non supplying of 164 statement to the petitioner, it is now to be supplied to the petitioner, that itself is not sufficient to transfer the case to the other Court. Under Section 164 of Cr.P.C. the accused is entitled for copies 8 referred therein and if any copies are not supplied, it is a curable defect. Further, the learned counsel submitted that the presence of the learned counsel for accused No.2 has been referred as absent, which is a procedural irregularity or may be a mistake. On this ground alone, the prayer cannot be made to transfer the case, as the mistake on the part of accused No.2 in self drawing inference of prejudicial against him. Secondly, the learned counsel stated that Section 309 application of Cr.P.C.(Section 231 as corrected) not furnished for the purpose of deferment of C.W.2 for cross- examination. C.W.2 was cross-examined in the year 2013. To substantiate the submission, learned counsel referred the case between Prithvi Singh Yadav Vs. State of Madhya Pradesh reported in LAWS(MPH) - 1995-9-8. In paragraph No.4, the Hon'ble Court by referring 9 the judgment reported in AIR 1947 PC 67 has held that, it is a curable defect.
6. The learned counsel for the petitioner referred the judgment reported in AIR 2008 SC 1333 between Kulwinder Kaur Allas Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and Others and submitted that reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which the suit is pending, itself is sufficient to seek transfer of the case. He also referred to the unreported judgment of the Hon'ble Supreme Court in Special Leave Appeal No.20346/2014 between Raghavendra Swamy Mutt Vs. Uttaradi Mutt, wherein, an observation has been made that the apprehension may or may not be true but the incident as one mentioned by the petitioner, in 10 our view, is likely to create such an apprehension.
7. I heard both. Application under Section 309 (231 Cr.P.C.) has been filed by the petitioner, in which, prayer has been made to defer the cross-examination of the witnesses after completion of the prosecution witnesses. On the face of it, this application has to be rejected, accordingly, it is rejected. An incomplete application unless, list of witnesses for which it is to be deferred is to be mentioned. It is only stated therein that the matter is highly contested one and all the material witnesses would be cross-examined after completion of chief-examination at one stretch. In paragraph 3, the prayer has been made to defer the cross- examination. The deferment is permissible under Section 231 of Cr.P.C. Sub-Se ction (2) of 11 Section 231, states that, the Judge may, in his discretion, 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. Under Sub-Section (2) of Section 231, any witness which includes a particular witness for the purpose of deferment. The application is silent as to what are the other witnesses to be deferred till completion examination-in-chief of the given witnesses. Under these circumstances, rejection is duly by exercising the discretionary power under Sub-Section (2) of Section 231.
8. The second submission made by the petitioner that the learned Judge while rejecting the application filed under Section 309 (231) of Cr.P.C. on 11.07.2014, on the same day, C.W.11 was examined-in-chief and also cross-examined. 12 Though in rejection order it is referred as learned counsel for C.W.11 present, but in the order sheet dated 11.07.2014 at 2.00 p.m. it is stated that counsel for accused No.2 was called absent. This may be for the reason that at the particular time, the learned Judge must have seen the counsel or may be that counsel was not available when the case was called. Even if he is present and if it is referred as absent, it may be a bonafide mistake. Such a bona fide mistake cannot be construed as prejudice against any person including the learned counsel. Though it is not accepted for all the time, but as and when an inference could be drawn that a Judge has taken a decision on a particular person based on that situation. If it is his case that his presence has been shown wrongly as absent, it was for him to file necessary application or request the learned Judge to rectify the mistake, then the 13 mistake could have been rectified. But no such attempt has been made except filing this petition before this Court. On this ground also petition is to be rejected.
9. Transferring the trial from one Court to another Court under Section 407, it is the power of the High Court to transfer cases and appeals, whenever it is made to appear to the High Court that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto. In order to exercise power under Section 407 of Cr.P.C., I also not found other materials, which can persuade this Court to transfer the present case to another Court. The judgment referred by the learned counsel reported in AIR 1996 SC 513 between P.K.Ghosh, I.A.S. and Another Vs. J.G.Rajput, it is referred that, 14 "A basic postulate of the rule of law is that justice should not only be done but it must also be seen to be done. If thee be a basis which cannot be treated as unreasonable f or a litigant to expect th at this matter should not be heard by a particular Judge and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned Judge should recuse himself f rom the Bench hearing that matter. This step is required to be taken by the learned Judge not because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant th at the mind of the learned Judge, may be subconsciously, has been inf luenced by some extraneous f actor in making the decision, particularly if it happens to be in f avour of the opposite party. Credibility in the f unctioning of the justice delivery system and the reasonable perception of the aff ected parties are relevant considerations to ensure the continuance of public conf idence in the credibility and impartiality of the judiciary. 15 This is necessary not only f or doing justice but also f or ensuring that justice is seen to be done."
10. In AIR 2008 SC 1333, it is referred at paragraph 14 that, "reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; 'interest of justice' demanding for transf er of suit, appeal or other proceeding, etc."
11. In unreported judgment in Raghavendra Swamy Mutt's case, the Hon'ble Supreme Court has observed that:
"The apprehension may or may not be true but the incident as one mentioned by the petitioner, in our view, is likely to create such an apprehension."16
12. The judgments referred above, which clarifies that reasonable apprehension in the mind of a litigant that he may not get justice is sufficient for transfer. It is not automatic that whenever an apprehension is raised in the mind of a litigant is the ground to transfer a case. An apprehension should be reasonable. That apprehension as it is stated in Section 407 of Cr.P.C. The guidelines are:
a) Fair and impartial inquiry or trial cannot be had in any Criminal Court.
b) That some question of law of unusual difficulty is likely to arise; or
c) That an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.17
13. The case of the petitioner is examined in the light of the judgments referred above and also under the provisions. It is true that this Court has got power to transfer a case provided that, a person who approaches the Court should make out a clear case, reasonableness in cropping up of apprehension. By examining case narrated in the petition, I do not find any truth in it and any material to transfer. Accordingly, the case of the petitioner who made a prayer for transfer is not accepted.
14. In the petition filed by accused No.4 for a direction to appoint a counsel of his choice is examined. The counsel for accused No.4 remained absent since 15.05.2014. Thereafter on four occasions the matter was adjourned and none appeared. Hence, in order to provide best legal aid to the accused, amicus curie was 18 appointed. Hence, nothing wrong could be found in that. The rejection of accused No.4 prayer to engage counsel of his choice is viewed seriously making false submissions to this Court as he is stated to have prevented from the learned Judge to engage counsel. No Judge will refuse any prayer specially for engaging a counsel, since it is his birth right to defend his case. Hence, connected petition is liable to be rejected. Accordingly, it is rejected. However, it is for him to make necessary application before the learned Judge for consideration.
15. The petition filed by accused No.2 for transfer the case on the grounds sought in the petition is dismissed. All the grounds taken therein are viewed seriously and the petitioner is imposed with cost of Rs.1,000/-.
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16. Be that as it may, the facts narrated in the order on the basis of the materials available in this petition are examined. There are not grounds to raise such an apprehension by the petitioner. At the same time, the learned Judge against whom the apprehension is raised by the petitioner as if he is prejudiced against him, it may also cause discomfort to the learned Judge. Only in order to save the Judge from that discomfort, I pass the following:
ORDER The petition stands transferred and the learned Judge is directed to pass necessary orders in this regard.
SD/-
JUDGE gab/MBS/-