Karnataka High Court
Sri Biligiri vs The State Of Karnataka on 29 November, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29th DAY OF NOVEMBER 2017
:BEFORE:
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
Criminal Petition No.4036 of 2017
Between:
Sri. Biligiri,
S/o. Late Ranganayaka,
Aged about 26 years,
R/at Bidaragudu Village,
Nanjangud Taluk,
Mysuru District 571124.
...Petitioner
[By Sri.Jagadeesh C.M., Advocate]
And:
1. The State of Karnataka,
By Hullahalli Police Station,
Rep.by State Public Prosecutor,
High Court of Karnataka,
Bengaluru - 560 001.
2. Basavaraju,
S/o.Sakkregaddanayaka,
Age: 40 years, Hallididdi Village,
Chatra Hobli,
Nanjangud Taluk,
Mysuru District 571124.
...Respondents
[By Sri. S. Rachaiah, HCGP for R1;
Notice to R2 is dispensed with v/o
Dated 29/11/2017)]
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This Criminal Petition is filed under Section 482
of Cr.P.C. praying to quash the order dated
05.11.2016 passed by the II Additional Sessions
Judge, Mysuru, in S.C.No.39/2016 (offence under
Section 302,201,114,120 (B),176 IPC) under Section
218 of Cr.P.C. splitting the Sessions case for trial
against this petitioner, accused Nos. 1 to 4 and
accused Nos. 5 to 19.
This Criminal petition coming on for Admission,
this day, the Court made the following:
:O R D E R:
Heard the learned counsel for the petitioner and the learned High Court Government Pleader for R1.
2. The learned counsel for the petitioner files a memo for dispensation of notice to second respondent.
3. On perusal of the entire materials on record, the participation of the second respondent is unnecessary. Therefore, notice to be issued to second respondent is dispensed with. The trial Judge has suo-motu re-opened the case and passed the impugned order.
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4. The petitioner has called in question the order passed by the learned II Additional Sessions Judge at Mysuru in S.C.No.39/2016 dated 05-11- 2016. The learned II Additional Sessions Judge has ordered for splitting up of cases against accused Nos. 5 to 19 for the offence under Sections 176 and 201 of Indian Penal Code.
5. The learned counsel for the petitioner strenuously contends that the chargesheet is filed against all the accused persons making allegation that accused Nos. 5 to 19 are also accused persons who have assisted the other accused persons and also screening the material things in connection with the offences done by accused Nos. 1 to 4. Therefore, all the accused persons shall be tried in a same trial and they cannot be split up and offences cannot be send to any other Court for the purpose of trial.
6. The learned High Court Government Pleader also brought to the notice of this Court that Section 4 176 of Indian Penal Code cannot be entertained by the Sessions Judge because of the simple reason that Section 195 of Criminal Procedure Code is a bar for taking cognizance and taking offence under Section 176 without there being a complaint in writing by the public servant concerned or some other public servant authorized.
7. I have carefully perused the charge sheet papers.
8. The chargesheet discloses that the accused No.1 Biligiri is alleged to have illicit intimacy with one Geetha who is accused No.4. The said Geetha was given in marriage to one Kumar (deceased). Even after their marriage, it is alleged that the illicit intimacy between Biligiri and Geetha continued. The husband of Geetha was found to be an obstacle for this illicit intimacy. Therefore, it is alleged that accused Nos.1 and 4 have conspired with each other in order to eliminate the said Kumar, husband of 5 accused No.4. In this context, it is alleged that accused Nos.1 and 4, have taken the assistance of Puttaraju and Ranga Shetty and other accused persons. It is alleged that on 17.02.2015 these accused 1 to 4 have abducted deceased Kumar and on 18.2.2015 they have committed the murder of the said Kumar. It is alleged that, CWs 12 and 15 have seen the said incident of deceased Kumar being taken by accused No. 1 to 3 etc., Accused Nos. 5 to 19 are the persons who knew about the death of the deceased and the fact that the dead body was burnt. Inspite of that, in order to screen the accused persons and also to make the evidence disappear, they did not inform the said fact to anybody much less to the police and other competent authorities to take proper action against the accused Nos. 1 to 4. The aforesaid factual aspects clearly discloses that factual aspects pertaining to the allegations on accused 1 to 4 and 5 to 19 are interdependent with each other. 6
9. Though there is no allegation of any conspiracy or participation of accused 5 to 19 in actual commission of murder of deceased Kumar, however, their role is inter connected with the commission of the offence by accused 1 to 4, because, it is alleged that they made attempt to screen accused persons as well the material evidence having conceded the same without disclosing the same to the competent authorities. Therefore, aforesaid facts are inter-connected with each other. This act of the accused 5 to 19 is nothing but the continuation of the original offence alleged to have been committed by accused 1 to 4. The trial court misconceived with the factual aspect of the case had said that offence alleged against accused 5 to 19 are independent to that of the allegations made against accused 1 to 4 and not in continuation of the same transaction and therefore, ordered to split up offences under Section 176 and 201 Indian Penal Code so far as accused 5 to 19 are concerned. Very peculiarly, the Trial Judge 7 has not specifically stated that if the offences are split up where it should be tried, whether before the same court or before some other court. Therefore, the order passed by the learned Sessions Judge does not stand to the logic or in accordance with the statute.
10. Section 218 of Criminal Procedure Code specifically says with reference to framing of charges that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person. Nothing in sub-section (1) shall affect the operation of the provisions of Sections 219,220,221 and 223.
11. Therefore, looking to the above said provision, learned Sessions Judge has mis-conceived 8 himself with regard to the charges to be separately framed and tried separately. Though it is a distinct offence alleged against the petitioner, but they are inter-connected with the allegations made against accused Nos. 1 to 4 in connection with the offences alleged to have been committed by accused 1 to 4. It is alleged that accused Nos. 5 to 19 have screened the accused persons and tried to make the evidence disappear and not disclosed the same to the competent authorities. Therefore, it cannot be said that offence is so distinct that they should be tried separately apart from accused Nos. 1 to 4. However, the Court can frame charges distinctly and separately, but trial should be by the same Judge, because the allegations made against accused Nos. 1 to 4 and the allegations made against accused Nos. 5 to 19 cannot be so distinctly separated because one connects another. Under the aforesaid circumstances, the order of the learned Sessions Judge is not proper and appropriate and the same is liable to be set aside. 9
12. It is also seen from the records that the trial Magistrate as well as the Sessions Judge have not applied their judicious mind so far as offences under Section 176 invoked by the police is concerned. Section 176 is a provision which says that, whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees or with both.
13. Section 195 of Criminal Procedure Code is a bar to take any cognizance of any offence punishable under Sections 172 to 188 are committed, without there being a complaint by the competent officer or any of the officer subordinate to him who is authorized to file the complaint. Therefore, the 10 cognizance taken and the proceedings under Section 176 is bad in law. The Court cannot frame charges against accused Nos. 5 to 19 for the offence under Section 176 of Indian Penal Code. However, they can proceed to frame charges so far as other offences are concerned as ordered by the Trial Court.
14. In view of the above, I proceed to pass the following:
ORDER
(i) Petition is allowed.
(ii) Order dated 5.11.2016 in
S.C.No.39/2016 passed by the II
Additional Sessions Judge, Mysuru, is
hereby set aside.
(iii) The Trial Judge is hereby directed to frame charges against these accused persons separately and distinctly apart from the charges to be framed against accused Nos. 1 to 4. Though the separate and distinct charges are 11 framed, accused Nos. 5 to 19 shall also be tried along with the other accused persons so as to avoid multiplicity of proceedings and in view of the facts noted above.
(iv) However, no charges can be framed against accused Nos. 5 to 19 for the offence under Section 176 of Indian Penal code.
Sd/-
JUDGE tsn*