Karnataka High Court
Puvith vs Manju on 17 March, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2022 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1261/2017
BETWEEN:
PUVITH
S/O GURUSWAMY
AGED ABOUT 26 YEARS
AGRICULTURIST
R/O B.CHOWDENAHALLI VILLAGE
DANDIGANAHALLI
CHANNARAYAPATNA-573 116. ... PETITIONER
(BY SRI ASHOK N. NAIK, ADVOCATE)
AND:
1. MANJU
S/O MARIGOWDA
AGED ABOUT 30 YEARS
R/AT B. CHOWDENAHALLI
DANDIGANAHALLI HOBLI
CHANNARAYAPATNA TALUK-573 116.
2. SHANKARA
S/O. AMASEGOWDA
AGED ABOUT 38 YEARS
R/AT B.CHOWDENAHALLI
DANDIGANAHALLI HOBLI
CHANNARAYAPATNA TALUK-573 116.
2
3. CHANDREGOWDA @ CHANDRA
S/O. RANGEGOWDA
AGED ABOUT 38 YEARS
R/AT B. CHOWDENAHALLI
DANDIGANAHALLI HOBLI
CHANNARAYAPATNA TALUK-573 116.
4. DINESHA S/O. RAJANNA
AGED ABOUT 28 YEARS
R/AT B. CHOWDENAHALLI
DANDIGANAHALLI HOBLI
CHANNARAYAPATNA TALUK-573 116.
5. SWAMY
S/O. SIDDEGOWDA
AGED ABOUT 33 YEARS
R/AT B. CHOWDENAHALLI
DANDIGANAHALLI HOBLI
CHANNARAYAPATNA TALUK-573 116.
6. RAGHU
S/O. RANGEGOWDA
AGED ABOUT 31 YEARS
R/AT B. CHOWDENAHALLI
DANDIGANAHALLI HOBLI
CHANNARAYAPATNA TALUK-573 116.
7. STATE BY
CHANNARAYAPATNA RURAL POLICE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560 001. ... RESPONDENTS
(BY SMT. RASHMI JADHAV, HCGP FOR R7;
SRI PRATHEEP K.C. ADVOCATE FOR R1 TO R6)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF THE 4TH ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT, DATED
10.10.2017 IN CRL. APPEAL NO.228/2016.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 10.03.2022 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
This Revision Petition is filed under Section 397 of Cr.P.C., challenging the judgment and order dated 10.10.2017 passed in Crl.A.No.228/2016 by the IV Additional District and Sessions Judge, Hassan District (Sit at Channarayapattana), questioning, set aside the judgment passed by the Trial Court on remanding the matter for fresh consideration and pass such other orders as this Hon'ble Court deems fit in the circumstances of the case.
2. The factual matrix of the case of the prosecution is that the accused persons by forming an unlawful assembly with a common object to commit the offences on 14.04.2013 at 8:00 p.m, in the coconut garden land of P.W.1 - Guruswamy at B. Chowdenahalli Village and in prosecution of such object abused P.Ws.1, 5, 2, 3 and 7 and assaulted them. P.W.2 had sustained 4 the grievous injuries and others have sustained simple injuries and gave criminal intimidation. Hence, based on the complaint, P.W.9 registered the crime. P.W.10, investigated the matter and filed the charge-sheet; the same is numbered as C.C.No.1222/2013 against the respondents herein and tried after securing their appearance. The Trial Court considering the evidence of PWs.1 to 11, documents - Exs.P1 to P6 and three material objects i.e., MOs.1 to 3, convicted respondent Nos.1 to 6, herein.
3. Being aggrieved by the order of conviction, the respondents herein have filed Crl.A.No.228/2016. The Appellate Court considering the judgment of this Court in the case of State of Karnataka, by Circle Inspector of Police v. Hoskeri Ningappa and another reported in ILR 2012 KAR 509, was comes to the conclusion that when a case and counter case are registered ought to have been disposed of simultaneously by the same Judge and the same has not been done. Hence, set aside the judgment of conviction passed in the criminal case and directed to decide the said case along with counter case in 5 C.C.No.1378/2013 in accordance with the decision in Hoskeri Ningappa's case (supra). Hence, the present revision petition is filed before this Court contending that the very order impugned is not in accordance with the judgment in Hoskeri Ningappa's case (supra). The Appellate Court had not applied his mind and failed to take note of the fact that during the course of whole trial; the accused in that case never took the defense and insisted for simultaneous disposal of the case and counter case.
4. The learned counsel appearing for the petitioner would vehemently contend that during the course of trial, the accused side even not suggested the witness, who have been examined regarding pending of counter case and also not cross- examined the witnesses on the point of aggressor. In 313 statement accused side not stated anything about the counter case and even not confronted any documents pertaining to the counter case. The learned counsel also would vehemently contend that the judgment in Hoskeri Ningappa's case (supra), referred by the Appellate Court, is not applicable to the facts of the case on hand. This Court in the said judgment categorically 6 held that under Section 465(2) of Cr.P.C., not violates disposal of the case. It is contended that earliest point of time not raised the said objection and kept quiet deliberately and took up the said argument for the first time before the Appellate Court.
5. Per contra, the learned counsel appearing for respondent Nos.1 to 6 would submit that it is not in dispute that two cases are registered; the police have investigated the matters and filed the charge-sheets; one was filed in the year 2014 and another was filed in the year 2015. The learned counsel also would submit that the charges were framed based on the different charge-sheets filed. Further, the learned counsel would contend that the same APP was in-charge while framing the charges in both the cases. P.W.1 was examined in the year 2015. The learned counsel also would submit that in the cross- examination of PWs.1 and 2, a suggestion was made that a case and counter case are registered and both of them are admitted in the cross-examination. The learned counsel also would submit that in page - 13 of the Trial Court judgment discussed with regard to the case and counter case and the same is within 7 the knowledge of the Trial Court. When such being the factual aspects of the case, the Trial Court ought not to have passed any judgment and ought to have considered both the matters simultaneously and the same has not been done.
6. The learned counsel in support of his arguments relied upon the order passed by this Court in the case of Mustaq Ahmed and others v. State of Karnataka in Criminal Appeal No.353/2011 (D.D.25.09.2018), wherein, this Court also referred the judgment of Hoskeri Ningappa's case (supra), set aside the judgment and remitted the matter to the Sessions Court to consider both the matters together.
7. The learned counsel also relied upon the order passed by this Court in the case of Mansoor and others v. The State of Karnataka and another in Criminal Petition No.1461/2018 (D.D. 01.06.2018), wherein also, this Court set aside the judgment and remitted the matter for fresh consideration referring the judgment of Hoskeri Ningappa's case (supra).
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8. The learned counsel also brought to the notice of this Court the judgment passed by this Court in the case of State of Karnataka, by Circle Inspector of Police v. Hoskeri Ningappa and another reported in ILR 2012 KAR 509.
9. The learned counsel also relied upon the judgment of the Apex Court in the case of State of M.P. v. Mishrilal (dead) and others reported in (2003) 9 SCC 426, and contend that the Apex Court also in the earlier judgment held that in the case and cross cases before the Court should be tried together by the same Court irrespective of the nature of the offences involved.
10. The learned counsel also relied upon the order passed by this Court in the case of Munibyregowda and others v. The State by Hoskote Police Station in Criminal Appeal No.1338/2007 (D.D. 21.03.2013), wherein also, referring the judgment of Hoskeri Ningappa's case (supra), set aside the order, remanded the matter and brought to the notice of this Court paragraph Nos.8 and 9 of this judgment. 9
11. The learned counsel, in reply to the arguments of the learned counsel for the petitioner, in his arguments, he vehemently contend that this Court in Hoskeri Ningappa's case (supra), categorically held that where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code. The learned counsel would vehemently contend that disposal of the matter altogether different cannot vitiate the proceedings. Hence, the very order passed by the Appellate Court is not sustainable in the eye of law and the order passed by the Sessions Judge remanding the matter requires to be set aside.
12. Having heard the respective learned counsel and also on perusal of the material available on record, the points that would arise for the consideration of this Court are:
(i) Whether the Appellate Court was committed an error in setting aside the order passed by the Trial Court and remanding the matter to the Trial Court to consider both the cases together 10 and simultaneously dispose of the said matters since both the cases are case and counter cases?
(ii) What order?
Point No.(i):
13. Having heard the respective counsel and on perusal of the material available on record, it is not in dispute that in respect of the same incident, two cases are registered and two separate charge-sheets are filed and also not in dispute that a case and counter cases are registered. The present case is arising out of disposal of the case in C.C.No.1222/2013 and the other case is C.C.No.1378/2013. These cases are in respect of the same incident dated 14.04.2013, which had taken place at 8 p.m.
14. Having considered the order passed by the Appellate Court taken note of both the cases arising out of the same incident dated 14.04.2013, which had taken place at 8 p.m, the Appellate Court also taken note of the judgment of this Court in Hoskeri Ningappa's case (supra), and comes to the conclusion 11 that the Trial Court did not consider the principle laid down in the said judgment, disposal of the case and counter case. It is observed as per the guidelines, the judgment should be pronounced by the same Judge simultaneously one after the other. In the case on hand, in spite of the same, the Trial Court has committed an error in disposal of one case and not decided on the counter case. Hence, set aside the order and remanded the matter for fresh consideration along with the other counter case.
15. The main contention of the learned counsel for the petitioner is that the Appellate Court failed to take note of the fact that for the first time the issue of case and counter case has been raised before the Appellate Court. The respondents never took the defense and insisted for simultaneous disposal of the case and counter case. The other contention also during the course of the trial, the accused persons have not raised the objections and not cross-examined the witnesses on the point of aggression. The said contention cannot be accepted for the reason that on perusal of cross-examination of PWs.1 and 2, a 12 specific question was put to them that other case is also registered against PWs.1 and 2 and the same is admitted in the cross-examination of PWs.1 and 2. There is a force in the contention of the learned counsel for the respondents that there is a cross-examination to that effect. Though, the learned counsel would contend that no such defense was taken before the Trial Court, it is evident on record that PWs.1 and 2 cross- examined with regard to the pendency of other counter case.
16. It is also important to note that the Trial Court while disposing of the case particularly in page No.13, taken note of the fact that the witnesses - PWs.1 and 2 have admitted in the cross-examination that in C.C.No.1378/2013, a case has been registered. But only they claims that the false cases are registered. Hence, it is clear that not only they took the defense of counter case registered in C.C.No.1378/2013 and the same has been admitted by PWs.1 and 2. Apart from that, the trial Judge also having the knowledge in disposal of the case in C.C.No.1222/2013 that other counter case in C.C.No.1378/2013 is pending before the Trial Court. Hence, the very contention of 13 the Revision Petitioner before this Court is that for the first time they have raised the issue before the Appellate Court, cannot be accepted.
17. The other contention is that not cross-examined the witness and no defense was raised and first time raised the same in the appeal also cannot be accepted. The grounds which have been taken in this Revision Petition cannot be accepted as the same was in the knowledge of the Trial Court as well as the defense was raised before the Trial Court. No doubt, in 313 statement, the accused have not raised the said issue. But it was in the knowledge of the Trial Court as well as the witnesses.
18. Now coming to the procedure for disposal of the case and counter case is concerned, this Court would like to rely upon the judgment of the Apex Court in the case of Nathi Lal v. State of U.P. and another reported in 1990 (Supp) SCC 145, wherein, the Apex Court held, what would be the procedure to be followed in case and counter cases. This Court would like to extract paragraph No.2 of this Judgment, which reads as follows: 14
"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."
19. The Apex Court in Mishrilal's case (supra), reiterating the earlier judgment of the Apex Court referred supra, held that, the cross cases should be tried together by the same Court irrespective of the nature of the offences involved. It is further held that the rationale behind this is to avoid 15 conflicting judgments over the same incident. This Court would like to refer paragraph No.8 of the Judgment, which reads as follows:
"8. In the instant case, it is undisputed, that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just, fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathi Lal case [1990 Supp SCC 145 : 1990 SCC (Cri) 638]. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross-cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either one of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice."16
20. This Court in the judgments of Criminal Appeal No.1338/2007 (D.D. 21.03.2013), Criminal Appeal No.353/2011 (D.D.25.09.2018) and the order in Criminal Petition No.1461/2018 (D.D. 01.06.2018), referring the judgment of this Court in Hoskeri Ningappa's case (supra), the same is delivered by three Judges, wherein, this Court considered the earlier judgments of the Apex Court in the case of Sudhir and others v. State of M.P. reported in 2011 SCC (Cri.) 387, and comes to the conclusion that how a trial has to be conducted. In paragraph Nos.13 to 16 in detail discussion, it comes to the conclusion that the proceedings will not vitiate except where prejudice is shown to have been caused to the accused.
21. The learned counsel appearing for the petitioner would vehemently contend and referring to the judgment of Hoskeri Ningappa's case (supra), submits that where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings 17 are protected under Section 465 of the Code. Hence, disposal of the case separately will not vitiate the case of the respondents. The very said contention cannot be accepted in view of the principles laid down in the judgments referred supra. The Apex Court in the earlier judgment laid down the procedure what has to be followed in Nathi Lal's case (supra), and in Mishrilal's case (supra) and also this Court in Hoskeri Ningappa's case (supra). In Hoskeri Ningappa's case (supra), referred the judgment of Sudhir's case (supra), wherein, it is held that there is no statute governing the procedure to be adopted in case and counter case or cross cases. It is taken note of that the Supreme Court has laid down the procedure for trial in such matters. The Legislature ought to remedy the defect by enacting the procedure in that regard. However, the Judge made law relating to procedure mentioned is being followed since 1929 till this day. The law declared by the Supreme Court binds all the Courts in India under Article 141 of the Constitution of India. It is also observed that each case must be decided on the basis of the evidence which has been placed on record in 18 that particular case without being influenced in any manner by the evidence and the arguments in the cross case.
22. Having considered the principles laid down in the judgments referred supra, I am of the opinion that the very contention of the learned counsel for the petitioner is that the Appellate Court has committed an error in setting aside the conviction order and remanding the matter for consideration cannot be accepted. It is settled law that both the matters to be considered simultaneously by the same Judge. The very object of deciding both case and counter case is to find out, who is the aggressor and other object is to avoid conflicting judgments and it should be decided by the very same Judge simultaneously. The investigation must be by the same Investigating Officer, but different prosecutor should conduct the trial on behalf of the prosecution.
23. On perusal of the records also, it is clear that the other counter case is still pending before the Trial Court and this Court also secured the records and the records discloses that still the matter is under trial. Hence, it is important to note that this 19 matter pertaining to the year of the incident i.e., 2013 and almost a decade has been lapsed and the case has not been decided. Hence, it is appropriate to give a direction to dispose of both the matters on priority basis with time bound direction. Point No.(ii):
24. In view of the discussions made above, I pass the following:
ORDER
(i) The revision petition is dismissed.
(ii) The impugned judgment and order dated 10.10.2017 passed in Crl.A.No.228/2016 by the IV Additional District and Sessions Judge, Hassan District (Sit at Channarayapana), is hereby confirmed.
(iii) The Trial Court is directed to dispose of both the matters within a period of three months from the next date of hearing i.e., on 31.03.2022.
(iv) The respective parties are directed to assist the Trial Court for disposal of the case within the time stipulated and conclude the 20 trial as expeditiously as possible to consider the matter simultaneously not more than three months period and no further time would be extended.
(v) The Registry is directed to send the Trial Court Records and the Appellate Court Records to the respective Courts, forthwith.
Sd/-
JUDGE cp*