Karnataka High Court
State By Inspector Of Police vs T R Ashwathanarayana on 8 February, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 1246 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 1246 OF 2021
BETWEEN:
STATE BY INSPECTOR OF POLICE
CENTRAL BUREAU OF INVESTIGATION
(ANTI -CORRUPTION BRANCH)
No.36, BELLARY BRANCH
GANGANAGAR
BENGALURU-560 032.
...PETITIONER
(BY SRI. PRASANNA KUMAR P, ADVOCATE)
AND:
1. T R ASHWATHANARAYANA
S/O LATE RAMASWAMY SHETTY
AGED MAJOR
RESIDING AT 'SRINIDHI'
1-PARALLEL ROAD, DURGIGUDDI
Digitally signed
by SANDHYA S SHIVAMOGGA - 577 201.
Location: HIGH
COURT OF 2. T A RAMPRASAD
KARNATAKA S/O T R ASHWATHARANAYANA
MAJOR
RESIDING AT 'SRINIDHI'
1-PARALLEL ROAD, DURGIGUDDI
SHIVAMOGGA - 577 201.
3. S S NAGAPPA
S/O LATE SOMEGOWDA
RETD. PSI AND FORMER SHO
RURAL P.S SHIVAMOGGA
RESIDENT OF 4TH CROSS
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CRL.P No. 1246 of 2021
SESHADRIPURAM
SHIVAMOGGA - 577 201.
PETITION HAS BEEN ABATED AS
AGAINST R3 VIDE ORDER DTD.29.11.21.
...RESPONDENTS
(BY SRI P N HARISH, ADVOCATE FOR
R1 & R2 V/O DTD. 29.11.21,
PETITION IS DISMISSED AS AGAINST R3)
THIS CRL.P IS FILED U/S.407 CR.P.C PRAYING TO
TRANSFER THE CASE IN C.C.NO.3048/2019 PENDING ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC
SHIVAMOGGA TO THE COURT OF THE LEARNED XXXII
ADDITIONAL CITY CIVIL AND SESSIONS (SPECIAL) JUDGE,
BENGALURU WHERE SPL.C.C.No.44/2004 IS PENDING.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Though this petition is listed for admission, by consent of both the learned counsel, it is taken up for final disposal.
2. This petition is filed seeking transfer of C.C.No.3045/2019 pending on the file of First Addl. Civil Judge and JMFC, Shivamogga to the Court of XXXII Additional City Civil and Sessions Judge and Spl. Judge for -3- CRL.P No. 1246 of 2021 CBI cases, Bengaluru where Spl.C.C.No.44/2004 is pending.
3. Heard Sri. P Prasanna Kumar, learned Special Public Prosecutor for petitioner and Sri. P N Harish, learned counsel for respondent Nos. 1 and 2.
4. The petitioner laid the charge sheet against respondent Nos.1 to 3 and two other accused persons for offences under Section 120B read with 420 r/w 511, 193, 196, 201 and 218 IPC and Section 13(2) read with 13(1)(d) read with Section 15 of Prevention of Corruption Act, 1988. (hereinafter referred to as 'P.C. Act' for short) and the case came to be registered in Spl.C.C.No.44/2004 pending on the file of XXXII Additional City Civil and Sessions Judge and Spl. Judge for CBI cases, Bengaluru. The respondent Nos.1 to 3 and another who were accused Nos.2 to 5 in the said Spl.C.C.No.44/2004 filed application seeking their discharge under Sections 227 of Cr.P.C. and 239 of Cr.P.C. The said discharge application came to be allowed by the Special Court by order dated 26.09.2009. -4- CRL.P No. 1246 of 2021 The petitioner has challenged the said order before this Court in Crl.RP.No.504/2010. The said Revision Petition came to be allowed by order dated 18.09.2017 by setting aside the order dated 26.09.2009 passed in Spl.C.C.No.44/2004 by XXXII Additional City Civil and Sessions Judge and Spl. Judge for CBI cases, Bengaluru. The respondent No.2 and others have challenged the said order dated 18.09.2017 passed in Crl.RP.No.504/2010 before the Hon'ble Apex Court in Special Leave to Appeal (Crl.)No.1889/2018. The Hon'ble Apex Court on 20.08.2018 passed the following order, which reads thus:
"Having heard learned counsel appearing for both the parties and upon perusal of the record, we consider it appropriate in the interest of justice to make the following order:
The respondent-CBI shall make an appropriate application to the Motor Accidents Claims Tribunal (MACT) under Section 340 of the Code of Criminal Procedure regarding the alleged offences under Section 193,196,201,209, and 420 read with 120B of the Indian Penal Code.
The MACT shall cause an inquiry to be made after hearing the petitioners- -5- CRL.P No. 1246 of 2021 accused, and take a decision to file an appropriate complaint before the concerned Court.
With the aforesaid directions, the instant special leave petition is dispose of.
Pending interlocutory applications, if any, stand disposed of."
5. Based on the above order of the Hon'ble Apex Court, learned XXXII Additional City Civil and Sessions Judge and Spl. Judge for CBI cases, Bengaluru has ordered for stop of further proceedings by order dated 06.10.2018 in Spl.C.C.No.44/2004. Thereafter, the petitioner filed application under Section 340 of Cr.P.C. as per order dated 20.08.2018 of Hon'ble Apex Court before the Motor Accidents Claims Tribunal (MACT), Shivamogga. Based on the order passed on that application, a private complaint came to be filed by Prl.Senior Civil Judge and VI Addl. MACT, Shivamogga represented by Narasimha Murthy R and came to be registered in PCR No.331/2019. The said PCR is filed against respondent Nos.1 to 3 herein. -6- CRL.P No. 1246 of 2021 Learned I Addl. Civil Judge and JMFC, Shivamogga in the said PCR No.331/2019 by order dated 30.11.2019, took cognizance for offences punishable under Sections 193, 196, 201, 209 and 218 read with 34 of IPC against accused Nos.1 to 3 who are respondent Nos.1 to 3 herein and the case came to be registered in C.C.No.3048/2019 against these respondent Nos.1 to 3.
6. Thereafter, this petition came to be filed seeking transfer of C.C.No.3048/2019 pending on the file of I Addl. Civil Judge and JMFC, Shivamogga to XXXII Additional City Civil and Sessions Judge and Spl. Judge for CBI cases, Bengaluru where Spl.C.C.No.44/2004 is pending.
7. The petitioner by filing the application in Spl.C.C.No.44/2004 got advanced the said matter on 26.12.2018 and filed memo stating that the petitioner has moved application under Section 340 of Cr.P.C. before the CJM and MACT, Shivamogga and the said memo has been -7- CRL.P No. 1246 of 2021 taken on record. Subsequently on 29.07.2022, the petitioner filed application and got advanced the Spl.C.C.No.44/2004. The petitioner filed a memo and after hearing the Special Public Prosecutor for petitioner, the Special Court has passed the order on 29.07.2022, which reads thus:
"Heard the learned PP. It is submitted that the SLP filed by the accused before the Hon'ble Supreme Court has been dismissed. Therefore, the matter is required to be taken up again to proceed further in accordance with law.
Perused the order sheet. Since the further proceedings was stopped as per the interim order passed by the Hon'ble Supreme Court. In view of the disposal of the SLP, it is necessary to continue the proceedings.
Accordingly, it is ordered to re-opened the case.
Issue summons to A2 to 5, returnable by 29.08.2022."
8. Learned counsel for the petitioner submits that the documents which are to be relied upon and the witnesses which have to be examined in both the cases are -8- CRL.P No. 1246 of 2021 one and the same, except the complaint in C.C.No.3048/2019. He contends that if the criminal case which is sought to be transferred, if transferred, it will be helpful for respondent Nos.1 and 2 also, as they can face joint trial before the Special Court in Bengaluru and they can avail benefit of Section 428 of Cr.P.C. They can also avoid conviction in two different cases.
9. Learned counsel for respondent Nos.1 and 2 by reading the order of Hon'ble Apex Court dated 20.08.2018 submits that liberty has not given to the petitioner to continue the proceedings in Spl.C.C.No.44/2004 for the remaining offences. Therefore, the petitioner cannot continue the proceedings in Spl.C.C.No.44/2004. He contends that he has challenged the order dated 29.07.2022 passed in Spl.C.C.No.44/2004 before this Court by filing Criminal Petition under Section 482 of Cr.P.C. seeking quashing of the said order dated 29.07.2022. He contends that the order dated 29.07.2022 is passed without -9- CRL.P No. 1246 of 2021 notice to the respondent Nos.1 and 2. He contends that continuance of proceedings in Spl.C.C.No.44/2004 are subject to the result of the petition filed by him under Section 482 of Cr.P.C. He contends that there is no role of the petitioner in C.C.No.3048/2019 and it is to be conducted by the Assistant Public Prosecutor attached to the JMFC Court in which it is pending.
10. He also contends that out of respondent Nos.1 to 3, respondent No.3 is dead, respondent No.1 is aged 81 years and respondent No.2 is aged 62 years. They will face difficulty in attending the case at Bengaluru if the said criminal case is transferred. He contends that the Spl.C.C.No.44/2004 was not pending as on the date of filing of this transfer petition.
11. Learned Special Public Prosecutor for petitioner placing reliance on the decision of this Court passed in Crl.P.No.321/2003 dated 29.05.2003 in the case of
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CRL.P No. 1246 of 2021K.M.Ganesha and Another vs. Statye of Karnataka by S.H.O., Madikeri and Others reported in ILR 2003 KAR 2489 by referring to Paragraph No.14, contended that as per Section 26 of Cr.P.C., the Sessions Court has the power to try the offence under IPC. The said paragraph No.14 is reads thus:
"14. In this context, a reference may be made to Section 26 of Cr.P.C. which states that the Sessions Court has the power to try any offence under I.P.C. That means, the Sessions Court can try offences even which are not exclusively triable by the Sessions Court. In this connection, a reference may be made to the judgment of the Hon'ble Supreme Court in the case of SUDHIR AND OTHERS vs STATE OF M.P. The observations made and the dictum laid down therein are aptly applicable to the facts of this case."
12. He contends that even as per Section 4 of the P.C. Act under Sub Section 3, the Special Judge may also try any offence other than the offence specified in Section 3 with which the accused may under Criminal Procedure Code, be charged at the same trial.
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CRL.P No. 1246 of 2021
13. Whether the proceedings in Spl.C.C.No.44/2004 are to be continued or not, is the matter for consideration before this Court in the Criminal Petition filed by respondent Nos. 1 and 2 under Section 482 of Cr.P.C. challenging the order dated 29.07.2022 passed in Spl.C.C.No.44/2004. Therefore, this Court in this transfer petition cannot dwell upon the correctness of the order dated 29.07.2022 passed in Spl.C.C.No.44/2004.
14. Respondent Nos.1 and 2 are accused in C.C.No.3048/2019 pending on the file of I Addl. Civil Judge and JMFC, Shivamogga for the offence punishable under Sections 193, 196, 201, 209 and 218 of IPC. The said case was registered on the complaint filed by Prl. Senior Civil Judge and IV Addl. MACT, Shivamogga represented by Narasimha Murthy R who is Chief Ministerial Officer of the said Court. The transfer of the said case is sought on the ground that the Spl.C.C.No.44/2004 is pending on the file
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CRL.P No. 1246 of 2021of XXXII Additional City Civil and Sessions Judge and Spl. Judge for CBI cases, Bengaluru.
15. Sections 3 and 4 of the P.C. Act, which is relevant for consideration and are extracted as under:
"3. Power to appoint special Judges- (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:-
(a) any offence punishable under this Act;
and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause
(a).
(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974)
4. Cases triable by special Judges-
(1)Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-
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CRL.P No. 1246 of 2021section (1) of Section 3 shall be tried by special Judges only.
(2)Every offence specified in sub-section(1) of Section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.
(3)When trying any case, a special Judge may also try any offence, other than the offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
(4)Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the trial of an offence shall be held, as far as practicable, on day-to-day basis and an endeavour shall be made to ensure that the said trial is concluded within a period of two years.
16. As per Sub Section (1) of Section 3, the Special Courts can try offences under P.C. Act and any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the said Act. As per Sections 3 and 4 of the P.C. Act, without trying any case,
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CRL.P No. 1246 of 2021the Special Judge can try other than the offence specified in Section 3 with which the accused persons are charged at the same trial. The term used is 'same trial'.
17. On conjoint reading of Section 3(1) and 4(3) of the P.C. Act, the Special Court in the same trial can try the offence alleged against the accused persons for offence under P.C. Act and any other offence with which the accused persons are charged. The said provision does not provide for holding the different trial against the accused persons charged for offence under IPC separately. If the case in C.C.No.3048/2019 pending on the file of I Addl. Civil Judge and JMFC, Shivamogga is transferred to the Special Court at Bengaluru dealing with CBI cases, cannot try the said offences in a separate trial. More so, the respondent Nos.1 and 2 are residents of Shivamogga and respondent No.1 is aged 81 years and respondent No.2 is aged 62 years. As such, it will cause inconvenience to the said accused persons.
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CRL.P No. 1246 of 2021
18. Considering all the above aspects, the petitioner has not made out any ground for transfer of C.C.No.3048/2019 pending on the file of I Addl.Civil Judge and JMFC to XXXII Additional City Civil and Sessions Judge and Spl. Judge for CBI cases, Bengaluru. Hence, the petition is dismissed.
Sd/-
JUDGE SSD