Karnataka High Court
Mr Abdul Kareemlal Telgi S/O Lad Sab ... vs The State Of Karnataka on 27 October, 2009
Equivalent citations: 2010 CRI. L. J. (NOC) 614 (KAR.), 2010 (2) AIR KAR R 255
IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 2731 day of October, 2009"'-A BEFORE THE HON'BLE MR. JUSTIC-TJARALIE CRIMINAL REVISION PE'1'I1'i"I_C)t§_'t No.é'r4/5), o.0é\':~~t.fi'7 BEE! WEEN Mr.Abdul Ka1'eem,lalTe_lgi, A" Major in age, I S/0.Lad Sab Telgi, .. - R/a.N0.5, I F1001", . A Shirin Manzjl,' 1 Waiton Road, . A _ Coloba, . " _ 7 Now at Central 1f:1jis01j1S " Parap'pai1at'.4'ggrah1é1'ra _, ' ' » . Banga.I0re+56Cw.1'QO; ' ~ .. Petitioner [By Sri Sha'r=_ka1'ap15é¢, Adv. :q£'r.1 T Nanaiah & Shankarappa Assts.} ANQ : n t_ it stégte gffiafxaataka By U~p_pa_rpe£. _Pj.S., *BAa*r1;gaI0re-,._ through Central: Bujreau of Investigation. Respondent (By R Nanjundaiah, Sr.Sp1.PP for (:1-31 and ' .._sri B N Maheshwara, Jr.SPl.PP for CB1} A This Cr1.RP is filed 15/8 397 read with Section 401 A V. Cr.P.C., praying to set aside the order dated 7.8.2008 gm-..$"""'"\.._,..\__' ') in SC N(').9;"'2001 on the fiie of 'the learned Special Judge, XXXV Aciditionai City Civil and Sessions Judge. Bangalore and direct the Jaii Authorities to provide homely foo<.'i 21%' his cost. This (TARP coming on for orders this the court passed {he foliowing: ORDER
The :"<..-vision pe1'.ii.io11e:r herein, fwhou :iccj:,zs"'e_d ' No.13 in sc No.9/2001 on the fiie éfithe iieaii-iaeri Judge, Additional end' V Bangalore {§'1{?i"CiHafi.€f i'ei"er'red:_:'toes 'Trim Court' for short) has c':i"ia1i1enge:ci.n.'in'fiiivs__.1je*:}ision petition the Correretne_ss.5'<'§i""Vine oi-def dated 7.8.2008 passed in the said ozise4':f:.{jec.fifi_ing"1{14i's--._':§ipizilieation, filed under Section 3030f ' Ka1'i1;..EI"{_~1.1§i2i '1Prisc)ns Act, 1963 [hereinafter referred toias "*:éx:s.:ms Act' for short), seeking direction to the .Sen_ior' «§3~;._1';':)e§'iifitendeili, Cenéirai Prison, Bangalore, to permit i"iii 1'i {&1(.)CU.S€d} to receive homely food from 2 'outside 1.1'1<.:: gmsoini.
(..:*~w---« 3
2. The said application was opposed by the respondent -- C131 by filing written objections to it. After hearing both the sides, the Trial Court passed the impugned order rejecting" the said application. Therefore, the revision petitioner --- a_ecuse'dT:--- challenged the correctness of the orderj " 1:
3. At the outset, Sri B R Natijuttatiatitttlie Senior counsel and SeniorfipecialpPublic "P_'roVseeutor'~.' appearing for the respondent-- strongly contended that since the im u nedtordse1?'»is t:t'u:ienterlocuto order, 11> _ . _ ry passed. in the VsaidSeses__i"on_s" Case during its pendency, the presenthrevisionpetition challenging its correctness is As against this, Sri Shankarappa, L' :counsel for the revision petitioner strongly contendede:'i._that though the said application of this petitioner was an interim application, the impugned passed by the Trial Court, rejecting the said application, has decided right of the petitioner to get € 4 homely food from outside the prison and therefore the G impugned order cannot be termed as interlocutory order', hence the present revision petition 'is maintainable'.
4. In support of his contention, Nanjundaiah, the learned "Senior it Prosecutor for the respondent ~»~ decisions of Horfble Supre1ne"~~Court,.__(i} vs.'" V State, reported in,»_A1R_.i~1s'so'*-.sc H9't'i25:and (ii) Sethurezm':citr,1'.':)§;::_:Raj§;tnici'nic!<:cim reported in 2009(2) sec 627."
5. 'In. first-of the sa.id two decisions ie in AIR 1980 S(V:3Vd"96§JpI'{it)11T}1)1C Supreme Court has observed at para. 66 of~"i_.jt-s j'ud'gme'ii~t" as under:
'Court has therefore taken the View in ~~AI'1j'a1" Na1:h's case that the expression . "interlocutory order" has been used in 3397(2) of the Code in a restricted sense, that it " 'denotes' orders of a purely interim or temporary nature which do not decide or touch the important rights or Iiabiiities of the parties and T 5 that any order which substantially affects the rights of the accused is not an interlocutory order. On that reasoning, an order for the framing of a charge against the accused in this case cannot be said to be an interiocutory order." . __
5. Even applying these principles to the present case, it could be seen that by order, the Triai Court has dec'i'dc--dp .Vxo4f'.f,the it petitioner -- accused to get the 'food the prison. Therefore, I am-v._of~..the hconsidefred-ifiewdthat' the impugned order",.__though*.'v§hasaA_._beeri"passed on interlocutory application' ?oy__..the.~v.petitioner during pendencjf of No.9/2001, it cannot be terrned pas order so as to bar the present revisionpetition.
it second said decisions relied upon by the Counsel for respondent --- CB1 i.e. in 2009(2)' 627 (Sethuramcm vs. Rajamcmickam), V. {-ieo.1ji'bIe. Supreme Court has observed at para No.5 as under:
6
"5. Secondly, what was not rea.lised was that the orders passed by the trial court refusing to call the documents and rejecting the application under Section 311 Cr.PC, were interlocutory orders and as such. the revision against those orders was clearly barred under Section 39'?'[2f}"--.g Cr.PC. The trial court, in its common order. clearly mentioned that the cheque V' admittedly signed by the respondent~a;::cuse'd.i'g:'~-- *' and the only defence that was raised.
his signed cheques were lost and'"'tha,tj the appellant complainant had falselyused onevsochv " ' cheque. The trial court alsoA._rec;or.ded'ie»a finding"eeA.__ that the documents were not.__ne.cessary*~, T' order did not, in any Vmanner, '-decide ieanythring finally. Therefore, both thelorders LC. one on the application under Sectio_n ,91 "Cr.PC E for production of vd'ocumen'ts* _and'<,other'"on*' the application und--erf Sectrgon Cr.PC for recalling the witne'ss.'i---.twere_g 'tile " orders of interlocutory natu.r.e_,'=. in which "case. under Section _ .-397(2),; revisio_Ii"~f'--was clearly not n1aintai_naLfie.V .Und:'erV such circumstances, the learned Judge co°u1d"'~--not have interfered in his revisional §urijsdict.i_on.. The impugned judgment is clearly iricorrect in law and would have to be _ set a4side.r - it is 'accordingly set aside. The . appeals are gallovsI'ed."
t --. to say that these observations of Hon'b1e H cannot be applied to the order impugned' this Criminal Revision Petition. it Further, the learned counsel for the revision petitioner «- accused has placed reliance on the decision c___5"""'")r\.....»..-
of Hon'ble Supreme Court in the ease of _.._State represented by Inspector of Police vs Mrs.Renidradeyi reported in 1999 C:-1.LJ 2955. Hon'ble Supremlel' has observed at para Nos. 19, 21 and. 22 "19. It cannot be debated"*.thI1tA' eveiy order"
which is not final need; not be;an-- interloczivtory '; order. There could be In'teI'med1ate categor_y"*oVf order also, which is notvfirial. Whenenl order, though an interim order, decides the issues} on merits and determines ;t'he" ilssués affectVi"r'1g" the rights of the ----._pe,rti£*_s. vit"*-.._oax1not be an interoiocutory orderflnlother *_wo.r'ds;' any order pending disposal of the case passed the trial Court as_a'n.__interirnarrangeI}'1ent_, which does not decidefthe issue, "or "r1ght"ean* certainly be called anI.int.er1oc§1toI'yuorder. » .... 9 lilcgnipfiasislsuppliedzby me}
21. '-- 'Any 'didper».Wh_ich substantially affects or decides the rlght ofpthejparties cannot be said to be an4_1r1terlocutory_order, so as to bar a revision 'against that Vorder. As indicated earlier, some _§ orders ni'ay_Vnot be equated with the expression .,'_.'*ir:_terlocutory"order and the same may not be _ final order too. Merely because it is not a final 9 por=de11v"'it cannot be called as interlocutory order . _ ppureor siniple. Some kinds of orders may fall in . betweejn.' the two. They are called as an 1nter:n.--3d1ate order. In that case. the bar In
-Section 397(2) Cr.PC is not attracted to such kind of intermediate order.
The "interlocutory orders" are not to be if confused with the "intermediate orders" which though not final orders, are sometimes passed MW during the course of trial or enquiry. When such intennediate orders do not decide the dispute of the parties finally, it could decide'@ some points of controversy regarding rights.a_'i~.y_ finally and then in respect of those orders, then}. bar put in Section 397 Cr.PC does attracted."
10. Following the above obAse1--ya:tfivon.g.:iof Supreme Court in the above case 'Va?_so,5l' of {emphasis supplied by me} considered opinion that the _irTi}a_ugned.'ord:er passed by the Trial Court rejecftinxg the of this revision petitioner ~« accused:.seeki'ngservice homely food to him from cannot be held to be an in1;er0loc't:7tory'3order;aand hence, the present revision challenging its "correctness is maintainable.
11. ;'The groundls stated by the revision petitioner --« f* (al apblication filed under Section 30 of the A
-vA':'TAhis accused has been infected with HIV, a dreadful decease and is under regular treatment. Therefore, he shall have to take homely food and to live in stress free atmosphere. In the event, if the same is not strictly followed, it may endanger to his life. '._.__.C""\--"'\----«...v not"get.f:-"
{b) 9 While he was in judicial custody at Pune regularly taking medicines in long life:
The petitioner sought for hornely food at his cost and the same was permittedg..};)y'g_'the Hon'ble Court (Trial Court) after hgearingfthe complainant and thereby the Cou§rtldifre.cte'd_V"
the Senior Superintendent of Ceritraijg'Pri'sons2 to permit him to have Jhyomelyifoodgll . ' The petitioner also niade;"si.r}:1il'ar'stibrnission:
before the Mumbaj (3.oi.i--rt where" he ';was under going trial and he gWas'per._mitte--d to have homely food;°*»
12. The said appli"oatio_'nW:_ by the respondent -- CB1 by to it as under:
-. 22.2.2003 passed by XXI ~Add1_."City--.._Ci.v11 & Sessions Judge and "'-c_Speci'all:conr_;t for CB1 cases, Bangalore, permitftinlg the petitioner W accused to secure homely food as he was still under trial prisoner and he was permitted to do so 'minder the provisions of Section 30 of the Act.
" But} the petitioner has been convicted in 'Alf-otiier cases in the States of Karnataka and ' , Maharashtra and therefore he is not entitled to service of homely food from the outside prison inasmuch as Section 30 of the Act does not permit for service of such home food from outside to the convicts;
.5-:---~_S"M"""'"'"*~s.«/~ EU (11) i'i"i'1-as pet.1t.io11e1~ is pem1it1*.ed to have seeuxrecl §1m'}'1e1y food from the outside, he would <".;.-'i.i'§'"}-' on his earliel' business through such ;}a__*1's<,>1"1s and therefore he (_?an11.o'é«, be ;><--'rmaitted *;<:.) ggef: the food from oL1_.ts.i_C3e 'the 1ms<,>z1 as p1'a__\__re.d in the said app1ig:at'io.r1';e-"V;~ V.
13. Aftea' this revision petition came _tofDe ti'1--e_ responclem CB1 filed its objections'*§,(>*"1't._.:
1.10.2008, '%"1;e1"eafi"c:=1.*. :m.z1'ed seditious'.s:aj¢c'ti¢sg§'e<cdv_ the revisirm petition. 1(i,11.2008.
17.8.2009 and 3.9.2A.oi;9. '1fesdAp'o:1dez1'c:A Q CB1 has taken sevens! A:_'onte1'11aiio1_1'S in "objections and additional _;§§:3_ic-=r;;{at:'io11s4'*hf;;iddif{'icm"'ro'*th()se taken by it in its ohj_eet.iox as'--'§.;1:~._1_»h~e é1'«1)_ff:'}.:;{_'r.;a*{.ior1 filed under Section 30 of the Prisomz é;7ct'""od3,r.-- viloze revision pet1't:ioner -- accused before the '£'§*:';:_1&C3c;)L:m.. I need not advert". to each and » jexzgry_vCo;1§.ei";:§..;<>1'1 t:a.ke:"s by the 1'espoI1dem: «-- C81 in all its 'sasi-d' obje'(;*>t.§é:T:_:':s and a('1c'1i:'ionai objeeijoxzs.
14. , 'me: 1:2;-my eo11ier1t.io;'1 taken by the learned Senior iSdp'eeia1 P:1§":}%<= S-"mse%(':1:.1<"31" for 1"espor1c1e1':t » CB1 is that in View of the S;-::;:t_ that the revision pet:it.io£'1er W accused c..._f"'*'------°' E1 came: to be convicted by aha Special Various offences under LPG pertaining ' 5335 and eircuiatimz of {aka tr: underge R1 for 13 years anfi, si1}.c£é-his pfégéiiice ~' 1810.9/2001 came to be V§é/IT8.'I1t against Znim, his detefitikon a..VSV"'11V:'IVL}.d»€r tria} prisoner came to be he 13 not entitied, uncigir <33' of the Prisons Act, is beg. from out side: the prisozfi that, in the prison, {I18 petitioréafifié' provided. wit.I"; théi food a3 per the _di€?£'V<;h;;::*i"'z*e;{i:>1§i.mr3:1ded by the Medicai Qfiieer w.1f1§}" e§ié;:r:iV%:::=;é iizim far his 'J3I'iOE.iS ailments including etc. and th€I'1'f:fOI'€, the gcsurxég stated by Ezim said applicaiicn far the service if hams};
" ' f:"(3::;1'.€;utsi€14.z-1 the pfifitfin are 310$ tenahié. After this revision petition czmne to be fiieci, this 4 Ceurt obtained 9; report fiom the Bfleéical Officer as to s::'*--"'""""""°"' tiae traafmerxt given to the petitioner ~ accusad and diet prescribed for hijn. The report of the Mediate} Cfificer, C€fiI'1tI'Ei}. Prison Hespitai, Bangaiore dated submitted through the Chief :§t3.peI*iI1te:;;;§it§;1,1;,' Prison, Bangakere on 'aijsrgg the Chief S11psri11t.:5:I1cieI1t, , : " 'Prisogfi, / *' I'fiV:'3;81 that the revision pefiiigghet -~ being served with the diet as.'_f9rg;sL%i£3.Jr;§ci«.uncie$AI«iamataica Prison Ruies and also pay czi'et"'c:~;;;;r~:r prescribed by the '}?L§:*théf_"':'e:$orts of the C{}I1Ct?ZI'I1€d Medical a}i£'i.ir:€:'r V<;§£itai111e1€i~~.,§);r-1 varieus dates timing the pfimisgfgcy bf Eh..is;. .1?é*;iSi<3n petitjcn raves} that heaith ,-_c0I'i«<:ii'¥;ie;;~:7; t1"1e"pE:'E;ii:i0:1er - accuged has rsmaizaeé the L__.s;?a;i:Te and he is being served Wiih the: f«;:.~(:z<:1 in §};1Tr4.:*._4 :§)I'I1$:>'1f:};' §e:' 816 die: shalt prescribfid by €116 '~€:t£§i1{:€i'{f1f;(§ Madicai Qfiioers. 26.9.2008, an orciecr {$31116 to be passed in this _'v_R5::visi0I1, directing the Superiniendent, iiisntrai Prism}, € .
Bangalore to serve to the petitioner food in the prison as per the diet chart given by the doctor C0flC€ii"_fi'€l.f,lpI-_:.V{_'}n
15.10.2008, when this Revision Was listed the arguments on merits, thev-iearnedfl co_i,1n'sel tor; the 0 revision petitioner --« aceusedfteafter si1bmitting."~.his.VV argument in part, submittedflto the 'C.ou.rtgldespitel the order of this Court dated:lvr_:2fdl9..§200l8l"direoting the Superintendent, to serve to the petitionerliopod given by the doctor, 'complied with till that daY- of the learned counsel. tor the learned counsel for the respondent" {CB1-, L Sanjeev, submitted that he :,,,e.oIn1fnunielate'Vto the Superintendent of Central that the petitioner be served with food as per chart given by the doctor.
1&7}?"~._Thereafter, on 1'7.8.2009, when this Revision was again listed for hearing further arguments, Sri c_____r'"'--'--"\...-.»-
E4 Shankainappa, the laazined caunsel for the revisian petitianer submitted that despite tha iniexim order directing the Supexintendent, Central Prison, Ba.ng@Ieye to acme ta the petititmer the fond as per the _ given by {ha cioctar, the Jail} Aflthqfitififi aa.%"e1*<3':1f;ar;~i:'g£'v.rVi3:1g'4 " = 'V him the foezml as per the said presence of the revision petiiidncr sec°.i1rt::'s:1'i;§§:i':r:1j;e.Vti1is --. ' Court for swearing afiidavi13:13:>._that e.:i£':'e:<f1::,_ View of the said submission, '"i:i"*z'e-- . ;3:jei§:.éj;3<it;f:lof"A the petitioner - agcusevid' Wfi#géCUF€d on 28.8.2009.
18. {M13 __tf(::at' the petitianer W accu;sa~:i_ sfibniiiitad in the prison, he had been . tha as per {ha éiat chart given by the fe;d'i::ai Ofiiorzzr. He did next aiso chwge ta fiie afi§dax,iri=5: ::1aig'I";g any aliegation against the pfisen : "f3u:h<}rii:.i€s in the mazier 9%' Sarvica af food to him as yer '$156: iciiat; chart prascrihed by the Madicai Otficer. ~~E'i0w<*:ver, on the said data, the rgvisian petitionar r""""~{'\'""""""
1?
"BO. Maintenance of catain prisoners private sou;rce5:»~ A civil prisoner at --1- zlnconvicted climinal plisonmr 311.233} be L" M to maintain himself and to puI°<:hase_--u1*v--r:%c¢iiF2:
from private sources at p1"(3}E3€:r4'3:1()u:':3 12:-.:_»c£, ciothing, bedding or matfifiais, V bdekitg V newspapers or other neces°3:£ti'e.s,A' subj_¢c*:.V to"
examination and to s13c;i1.'regu1f;ifi<j11s as.v»mayV'be ; approved by the IflSp€C'vtO1f!G€§f116I'a1.'? __ '
23. Referrirlg to 1:he pfévisiozég, Sri Sharikarappa, the the revision petitioner «w z:»r,.(v:<4:_';,:1'-:"sc:§d "t'hat the words 'rmcauvictgfi to mean the pers9x1',w"1'1:3 ti1é""p1i;son for facing his Trial EhGilg}i .}}€ is cfaurt, other than the Trial (30:31, in a '€iiIf€3I'(ftI7}.{ €_3.S:5',V and merefbre, {ha View taken {ha petifitmer «-- accused is fiat service of food fmm his home is &:fr£;__f:e01;$§ fie further Sfibmittfié that though the . 'wpetitiarzgfi. has been cenvicted in other cases, the fact "'-fcmaims that ha is stifi; 'under trial' prisoner in cannecfiian SC No.9/.2681' in ixzhich case he is being flied by the Trial Court and theitfare his etiaatention in <d______§"'s..~"'\,..--«-*\ *C§I1i'i€{:1Ti{}I".l with the said case carmot be heid 23:? V' 713:5' as .4 that 0:' a 'cenvlcted priscmer'.
21. Per contra, the Ieaxfxed Sfariisré Sgpefgiéi-v'._}3'uvbI§CV?"~w Prasecutsr representing the r€sp(i§I¢,dE;1fii'jw contanded that the wards indicate that; the _ 11oté 'fxavég been convicted in any Case; therefbre, since the revj:3i (§;;-_ has been C£I)I1ViCt€3(i '§;}'yV:"(§iI7tiér€nt Courts in the States {if he cannot be §€I'I11€Ci so as ta get the benefit 0:? provisionsf' 63' $316. 30 A bf Vtiie Prisons Act. gt dispute that the revisien peigiiiioner -- a¢e;:;1As::Li i"1€;é§;'*--.E3~é£11 ccnvicted fer various offiances under
-;§§'€ éé.§1éf;ena:::m1snts by the Special Gear: at Puma aiso {:16 Speciai ifieurt at Bangaiore. it is aiso 1191:
- :3'1"{}:ié§p'é.1t.e tlzzat the praserzce of this pétifjiflfifil' has been ""V駢'£1reci in SC': No.9/2081 by issaing had; warrant ¢~--~r~""'*"'""
$9 against: him as he was detained in Central .J£lail.: Yerawada, by reason of his ccsrxviction by * Court at Puma, in Spiilase No.2 am of "£136 csnsidered opinion thai. 't,hé§.A_'_détei1'ti§§13."_e::f: W revisien petit.i013er--accused f79 r' said Sessions Case, came: ?L'3'€=h 'ihatii of an 'tmconvicted prisoner' sagzfic;-.3' -{he beneiit of Sectien 30 of hcskd that the Trial Ciaufi: in racczrding its finding:;VVf1?i§it --- amused caxmet be tanned a':3 S3 as is seek the benefit of Se§"i;jg§n~ .i3i3 bi". Prisons Act. _3..ustiy'«.,A t;?1_e learned counsel fer the revision pétifiénéx' ---sfi*§ngly comenclad that ihe word; §Uf}{3(5i"}Y;i€3I€i& gzrisoner' 'rs net defined in my {iic:1:i0I1ary A V~ff:::::r:16;L"a1;1e1*ei?::>}:*e it should be uméerstoed '20 21:63:: 'unéer " tfigal prisoner' in connection with SC N09/$2881 in which he is facing trial. This centantion vzzazmm: b6 E 2.9 accaptsd far tha reason that, as observed £33: me sgxpra, fiiiough he is arm faciflg trial in the said sessim';$-- (*:aS€3, in View of his conviction by the Special (39:31: * and 3330 by the Special Court at-*6angalQfHé:',:Wjihig character of an under trial pzisoricr. For the reasons aforessagiiii,» thté 'pres¢nf'V'*--,§ia°vi§ibn 'V petition is dzsmssw; as;"'bz§ii:§"'--§isvdid'"Aofv: merits. However, it is made cieéf.'ti§:1tv'V:the_.Jai§1:V.g5;1;t§1orities Shall pmviae me zjavisiisn ;;»e:i;:<:m: 'A-¥>~ §,=ze::(31'11'V:V~;'»A6d with the mod as peaihthe' may be prescribed by the c0nceme€iLi§/iediéaj t3fiiSé_f?S from aims to time. Sd/-
JUDGE man.