Karnataka High Court
Mehaboob S/O Khansaheb Nadaf vs The State Of Karnataka on 3 March, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.100373/2017
BETWEEN
1. MEHABOOB S/O. KHANSAHEB NADAF,
AGE : 56 YEARS, OCC : COOLIE NOW NIL,
R/O. NEGINAL, TAL : BAILHONGAL
DIST : BELAGAVI.
.........PETITIONER
(BY SMT. SHAILA BELLIKATTI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH THE POLICE SUB INSPECTOR,
BAILHONGAL POLICE STATION,
BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
.....RESPONDENT
(BY SMT. VEENA HEGDE, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO ALLOW THIS CRIMINAL
PETITION BY SETTING ASIDE THE ORDER DATED
10.02.2017 IN CRIMINAL REVISION PETITION NO.
289/2016 ON THE FILE OF IX ADDL.DISTRICT AND
SESSIONS JUDGE, BELAGAVI AND ETC.,
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THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent- State. Perused the records.
2. The petitioner is the accused in C.C. No. 742/2005 before the CJM and JMFC, Bhailhongal registered for the offences under Sections 408 and 477 (A) of IPC. The Court after framing the charges for the above said offences found the accused guilty and convicted him for the said offences by imposing sentence. Being aggrieved by the same, the petitioner herein preferred an appeal before the Sessions Court, Belgaum in Criminal Appeal No.111/2014. The Sessions Judge and II FTC Court Judge, Belgaum vide judgement dated 22.12.2014 set aside the said judgement of conviction and sentence and remitted the matter with a direction to alter and frame charges for the offences under Section 409 and 477(A) of IPC and then 3 to dispose off the case after giving opportunity to lead further evidence to both the partries.
3. After the remand, the trial Court, in fact as per the directions of the Sessions Court, has alterered the charges and re-framed the charges for the offences punishable under Section 409 and 477(A) of IPC and posted the case for further evidence of the prosecution. As the prosecution has not led any evidence and the accused was also called upon to lead his evidence and the defence Counsel has also submitted that he has no defence evidence on the accused side, then the case was posted for arguments. In the meantime, the learned Counsel for the petitioner-accused has filed an application under Section 311 of Cr.P.C. and the said application came to be rejected by the trial Court. The said order passed by the learned Magistrate under Section 311 of Cr.P.C. was also called in question in Cr.R.P. No. 315/2015 before the II Addl. District and Sessions Judge, Belgaum and the said criminal revision petition was dismissed for non prosecution. It appears that the petitioner did not 4 precipitate the said criminal revision petition, but, filed another application before the trial Court under Section 217 of Cr.P.C. seeking permission of the Court to lead further evidence by cross examining the prosecution witnesses. The learned JMFC has dismissed the said application vide order dated 08.07.2016 on the ground that earlier such application under Section 311 of Cr.P.C. was dismissed and the petitioner has submitted that he has no evidence when he was asked earlier and the prosecutor also submitted no further evidence of the prosecution and further observed that if such applications are allowed, it would facilitate the parties to drag on the proceedings like anything. Therefore, it dismissed the petition on cost of Rs. 1000/-.
4. Being aggrieved by the said order, again the petitioner has approached the XI Addl. District and Sessions Court, Belgaum by way of Cr.R.P.No. 289/2016. Vide order dated 10.02.2016 the Sessions Judge has also dismissed the said application on the same ground as dismissed by the Trial Court. Except that nothing has been 5 done by the Sessions Court in dismissing the said revision petition. Being aggrieved by the order of the trial Court and the revision Court, petitioner is before this Court.
5. Admittedly, earlier the accused was convicted for the offences punishable under Sections 408 and 477(A). The said judgement was set aside and the case was remanded to the trial Court by the Sessions Court with a direction to alter the charges for the offences u/S. 409 and 477(A) of IPC. It is also admitted that the Court has called upon the prosecution and the accused to lead evidence, if any, on their side. As both the parties have stated that they have no evidence, the Court has recorded the same and posted the case for further arguments.
6. Though, it is stated that accused has no evidence, but immediately the conduct of the accused shows that he realized that he ought to have cross examined the witneses on the amended charges. Therefore, immediately, he filed an application under Section 311 of Cr.P.C. and subsequently, under Section 217 of Cr.P.C. Though, the earlier application filed under 6 Section 311 of Cr.P.C. was dismissed by the trial Court, it has not reached its logical end, as it appears in Cr.R.P.No.315/2015 before the learned Sessions Judge was dismissed for non prosecution.
7. In order to get an opportunity, the petitioner has once again approached the trial Court under Section 217 of Cr.P.C, the conduct of the petitioner though shows that he was very eager to cross examine the witnesses in order to substantiate his defence. It cannot be at any stretch of imagination be said that the accused has got any deliberate intention only to drag on the proceedings. The provision under Section 217 of Cr.P.C. empowers the Court to recall any of the witnesses or re-summon any of the witnesses, already examined, for the purpose of further cross examination. When particularly, the charges are altered or added to by the Court after commencement of the trial. Of course, this particular aspect has been done by the trial Court.
8. Irrespective of the above said orders passed by the trial Court, the Court should bear in mind, the 7 fundamental basic principles of criminal jurisprudence. Though, particularly in criminal cases where the consequences of altering charge and proceeding with the accused leads to a severe consequence, if no proper opportunity is given to the parties. In such circumstances, irrespective of the delay, the Court should afford sufficient opportunity to the parties to lead their evidence, at the initial stage, before the trial Court itself. The Court would take care of two aspects in affording opportunity to the parties; one is at the initial stages itself the parties would get fullest opportunity before the trial Court, so that the trial Court itself can appreciate such evidence at the time of disposal of the case and consequently, it can avoid unnecessary future complexities in the case. Secondly, it would avoid the accused from moving the appellate Court or the revisional Court for the purpose of leading additional evidence. Therefore, in my opinion, when the case is still before the trial Court, it is just and necessary to provide fullest opportunity to the parties to putforth their case. 8
9. Even the trial Court and the Revisional Court have dismissed the application, this Court has got inherent power under Section 482 of Cr.P.C. to set right the mistakes committed or even the orders of the trial Court are correct. But, still this Court by exercising the discretionary power, can provide opportunity to the parties in order to, otherwise, secure the ends of Justice. Though, I don't find any abuse of process of the Court in this case, but nevertheless in order to secure the ends of Justice, I am of the opinion, the petition deserves to be allowed for the purpose of providing fullest opportunity to the parties to the proceedings.
10. Added to the above said circumstances, the provisions under Section 409 of IPC for which, the Court has altered the charges, carries severe punishment of either description, for imprisonment of life, or which may extend to 10 years and shall also be liable to fine. Considering the severity of the punishment, in my opinion, the parties should not be denied with the opportunity. Therefore, under the above said facts and circumstances, I 9 am of the opinion, though earlier applications were dismissed by the trial Court and revision Court, the present petition deserves to be allowed. Hence, the following order is passed.
ORDER The petition is allowed. Consequently, the orders passed by the learned Additional Civil Judge and JMFC, Bhailhongal in C.C. No. 742/2005, dated 08.07.2016 and consequently, order passed by the learned IX Addl. District and Sessions Judge in Cr.R.P. No. 289/2016, dated 10.02.2017 are hereby set aside. The application filed by the petitioner/accused before the trial Court under Section 217 of Cr.P.C. is hereby allowed. The trial Court is hereby directed to provide opportunity to the petitioner to cross examine the witnesses as sought for in the application on the altered charge and also if need be, allow him to lead his defence evidence and thereafter hear the arguments on merits and dispose off the case on merits in accordance with Law.
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As the matter is pretty old, the accused should assist the Court in disposing of the case at the earliest. The trial Court has to make all its endeavour to dispose off the case as expeditiously as possible preferably within six months from the date of receipt of a copy of this order.
Sd/-
JUDGE BVV/MNS