Karnataka High Court
Malappa Govindappa Govindappagoal vs The State Of Karnataka on 20 October, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 20 T H DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRL.RP.NO.100297 OF 2019
BETWEEN
1. MALAPPA GOVINDAPPA GOVINDAPPAGOAL,
AGE: MAJOR, OCC: AGRICULTURE
R/O DUNDANATTI,
TQ:GOKAK, DIST: BELAGAVI.
2. BASAPPA MADDEPPA PADIMANI
AGE:MAJOR, OCC:AGRICULTURE
R/O MAMADAPUR,
TQ:GOKAK, DIST: BELAGAVI.
3. MADEPPA YALLAPPA BANASI,
AGE:MAJOR, OCC:AGRICULTURE
R/O MAMADAPUR,
TQ:GOKAK, DIST: BELAGAVI.
4. BASAVARJ RAMACHANDRA GOVINDAPPAGOAL
AGE:MAJOR, OCC:AGRICULTURE
R/O DUNDANATTI,
TQ:GOKAK, DIST: BELAGAVI.
5. SHIVALINGAPPA KALLAPPA GONDIAPPAGOAL
AGE:MAJOR, OCC:AGRICULTURE
R/O DUNDANATTI,
TQ:GOKAK, DIST: BELAGAVI.
6. RAMACHANDRA KALLAPPA GOVINDAPPAGOAL
AGE:MAJOR, OCC:AGRICULTURE
R/O DUNDANATTI,
TQ:GOKAK, DIST: BELAGAVI.
...PETITIONERS
(BY SRI.SRINIVAS B. NAIK, ADVOCATE)
2
AND
THE STATE OF KARNATAKA,
REPD. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA ,
DHARWAD BENCH.
RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. SEEKING TO CALL FOR
RECORDS IN SPECIAL CASE NO.702/2019 ON THE FILE OF
XII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI
SITTING AT GOKAK AND SET ASIDE THE ORDER DATED
10.10.2019 PASSED IN SPECIAL CASE NO.702/2019 ON THE
FILE OF XII ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI SITTING AT GOKAK, REJECTING THE APPLICATION
FILED UNDER SECTION 227 OF CR.P.C. ALLOW THE
APPLICATION AND DISCHARGE THE PETITIOENRS FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 4(1), 4(1A), 21
OF MMDR ACT AND RULE 44(1) OF MMDR AND UNDER
SECTION 379 OF IPC.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
This Revision Petition is preferred by accused Nos.1 to 6 aggrieved by the orders passed in Special Case No.702/2019 on the file of XII Additional District and Sessions Judge, Belagavi, Sitting at Gokak thereby rejecting the oral discharge application of petitioner herein.
2. Though this case is listed for admission with the consent of both parties, it is taken up for final disposal.
3. Heard Sri.Srinivas B.Naik, learned counsel for the petitioners and Sri.Ramesh B.Chigari, Leaned High Court Government Pleader for respondent-State.
4. Brief facts giving rise to filing of this revision petition is as under :
On the complaint filed by Tahasildar Gokak dated 18.07.2017 with regard to extraction and transportation of sand by petitioners, a complaint came to be registered. 4 On reaching the spot, the complainant noticed that the petitioners were extracting sand and loading the same in the tractor and trailer through earth moving machine. Immediately, they conducted a raid and on finding that the sand was illegally extracted and transported, accused was apprehended. Complainant seized the goods vehicle by drawing up of panchanama. A case came to be registered against accused in Crime No.146/2017 of Gokak Rural Police Station for the offence punishable under Section 379 of I.P.C. and Section 4(1) and 4(1A) read with Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the Act') and under Rules 3, 42 and 44 of the Karnataka Minor Mineral Concession Rules, 1994. Pursuant to the registration of crime, investigation came to be commenced.
5. During the course of investigation, the Investigating Officer filed a Private Complaint under Section 200 of Cr.P.C. for the offence 5 punishable under Section 22 of the Act, pursuant to which cognizance was taken for the aforesaid offences, summons came to be issued to the accused.
6. It is the case of petitioners that during pendency of the case bearing C.C.No.2922/2018, complainant therein filed an application under Section 210 of Cr.P.C. to club the crime registered in Crime No.146/2017 and C.C.No.2922/2018 since both the matters arose out of the same incident. It is the case of petitioners that the application filed by complainant is not maintainable in view of the fact that the final report was not yet filed in Crime No.146/2017, despite that the trial Court had passed an order on 03.10.2018 allowing the application and directed to merge the F.I.R. and Private Complaint. Pursuant to merging of the complaint and F.I.R., both the cases were committed to the Sessions Court and numbered as Special Case No.702/2019. Learned counsel 6 for petitioners submits that petitioners filed an application under Section 227 of Cr.P.C. seeking for discharge and after hearing petitioners, the trial Court rejected the application for discharge. Aggrieved by the rejection order for discharge petitioners have approached this Court in the present revision petition.
7. Learned counsel for the petitioners contends that during the course of investigation a Private Complaint came to be filed under Section 200 of Cr.P.C. for the offence punishable under Section 22 of the Act. Pursuant to cognizance being taken, a case was registered in C.C.No.2922/2018 and prior to that, F.I.R. had been registered in Crime No.146/2017 on 18.07.2017 under Section 397 of I.P.C. and under Section 4(1), 4(1A) read with Section 21 of the Act and Rule 3, 42 and 44 of the Rules. He further contends that on 10.09.2018 the Private Complaint came to be filed for the offence punishable under Section 7 397 of I.P.C. and under Section 4(1), 4(1A) read with Section 21 of the Act and Rule 3, 42 and 44 of the Rules which is registered as C.C.No.2922/2018. He further contends that on an application filed by the complainant under Section 210 of Cr.P.C to merge the crime registered in Crime No.146/2017 and C.C. No.2922/2018 as both the matters arose out of the same incident, trial Court ordered to merge the F.I.R. and the Private Complaint and committed to the Sessions Court and numbered as Special Case No.702/2019.
8. Learned counsel for petitioners contends that this merger under Section 210 of Cr.P.C., merging the Crime No.146/2017 and C.C.No.2922/2018 itself is not maintainable as there was no final report filed in Crime No.146/2017. Therefore, the procedure adopted by trial Court is totally erroneous and illegal and calls for interference by this Court. Learned counsel for the petitioners further contends that 8 though he had argued on the application for discharge, trial Court has not considered the relevant material and has erroneously come to a conclusion that prima-facie case is made out against the petitioners and rejected the application.
9. It is the contention of learned counsel that no grounds are made out for the trial Court to proceed to frame charges against accused/petitioners herein and that they have been falsely implicated in the case. He further contends that trial Court has not applied its mind while considering the discharge application. On these grounds and submissions, he seeks for set aside the order of trial Court and consequently discharge the petitioners for the aforesaid offences.
10. Per Contra, learned Government Pleader vehemently contends that primarily there is no application filed by the petitioners seeking 9 discharge. Though, an oral submission was made to discharge the petitioners. The main contention of petitioners before the trial Court was noncompliance of Section 167(5) of Cr.P.C. as the investigation sought to be conducted was not concluded within a period of six months from the accused being arrested. This aspect of the matter was not considered by the trial Court and held against the petitioners herein as Section 167(5) of the Cr.P.C. would not attract to the facts and circumstances of the present case. Learned Government Pleader further contended that the provisions of Section 167(6) of the Cr.P.C. would not be attracted to the facts and circumstances of the case.
11. He further contends that, if it is the case of petitioners that they are aggrieved by the noncompliance of Section 167(5) of Cr.P.C. and an order is passed against the petitioners not appreciating the said provision. The petition filed by the petitioners herein against that order 10 would not be maintainable in view of the fact that the said application though not in writing, if it is an oral interlocutory application and any such order passed under Section 167(5) of Cr.P.C. or under Section 167(6) of Cr.P.C. by the trial Court could not be challenged before the revisional jurisdiction under Section 379 of Cr.P.C. It is further contended by learned Government Pleader that on the prayer for oral discharge, trial Court has considered the material available and has prima-facie come to a conclusion that there are grounds to proceed against the petitioners and has held that there is merit to proceed to frame charges against the petitioners. On these grounds and submissions he seeks for dismissal of the revision petition as there is no illegality and perversity in the order passed by the trial Court.
12. Having heard the learned counsel for petitioners and learned Government Pleader this Court will have to consider whether there is any 11 illegality or perversity in the order passed by trial Court. It is seen from the order that the trial Court has rejected the prayer of the petitioners for discharge and posted the matter for framing of charges. On careful perusal of the order, it is seen that the submissions of the petitioners mainly on the ground of Section 167(5) of Cr.P.C. having been not complied and therefore, the proceedings ought to have been stopped by the District and Sessions Judge, Belagavi. It is important to note here Section 167(5) the Cr.P.C. reads as under :
"167(5). If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of 12 the investigation beyond the period of six months is necessary."
13. Section 167(6) of Cr.P.C. reads as under :
"167(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."
14. On perusal of these provisions, it is noticed that this is applicable to the summons case, which are tried by the Magistrate and investigation is not concluded within the period of six months from the date of arrest of accused, the Magistrate shall make an order to stop further proceedings unless the officers 13 satisfies the Magistrate with special reasons for continuation of the investigation beyond the period of six months and thereafter the consequences would follow to stop further investigation if the Magistrate satisfied that such application is made under Section 167(6) of Cr.P.C. It is seen that primarily Sec.167(5) is not applicable to the Sessions Judge while dealing with the case on hand. But nevertheless, these contentions of the petitioners were appreciated and rejected by the trial Court. It is noticed that trial Court has not appreciated the contentions of petitioners with regard to discharge of petitioners. It is also seen that no written application has been filed by the petitioners seeking for discharge before the District and Sessions Judge, Belagavi.
15. Under the facts and circumstances of the case, without going into the merits of the matter, it would suffice to remand this matter to the District and Sessions Court, Belagavi for 14 providing sufficient opportunity to the petitioners/accused to file necessary application, if any, and urge all possible grounds therein seeking for discharge. Accordingly, I pass the following:
ORDER The revision petition is partly allowed. The order passed by the XII Additional District and Sessions Judge, Belagavi sitting at Gokak in Special Case No.702/2019 is hereby set aside.
The Sessions Judge shall consider the material available on record and dispose of the application, if any, filed by the petitioners in accordance with law.
Sd/-
JUDGE HMB/CKK