Karnataka High Court
Smt. Dodavva Siddappa Inchal vs Rudrappa Gurupadappa Doddamani on 28 February, 2024
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NC: 2024:KHC-D:4654
CRL.A No. 100099 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100099 OF 2022 (378)
BETWEEN:
SRISHAILA BASANAGOUDA PATIL DIED BY LRS
1. SMT. DODAVVA SIDDAPPA INCHAL
AGE: 78 YEARS, OCC: HOUSEHOLD,
R/O. MARUTHIGALLI, BAILHONGAL
DIST. BELAGAVI.
2. RAMANGOUDA BASANNAGOUDA PATIL
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. MARUTHI GALLI, BAILHONGAL
DIST. BELAGAVI.
- APPELLANTS
(BY SRI RAJASHEKAR R. GUNJALLI, ADVOCATE)
AND:
1. RUDRAPPA GURUPADAPPA DODDAMANI,
AGE: 63 YEARS, R/O. KUMBAR ONI, KITTUR,
TQ. BAILHONGAL, DIST. BELAGAVI-590001.
SAROJA
HANGARAKI 2. SHIVAPPA RUDRAPPA WALIKAR,
AGE: 62 YEARS, R/O. CHENNAPUR KITTUR,
Digitally signed by
SAROJA HANGARAKI TQ. BAILHONGAL, DIST. BELAGAVI-590001.
Date: 2024.03.01
10:08:07 +0530
3. RUDRAPPA BASAPPA APPOJI,
AGE: 78 YEARS, R/O. SOMAPURPETH, KITTUR
TQ. BAILHONGAL, DIST. BELAGAVI-590001.
4. MALLAPPA GANGAPPA NAYAKAR,
AGE: 68 YEARS, R/O. BASARKOD,
POST. DEGAOV, TQ. BAILHONGAL
DIST. BELAGAVI-590001.
5. SHIVALINGAPPA CHANNABASAYYA LADDIMATH,
AGE: 78 YEARS, R/O. SOMAWARPETH, KITTUR,
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NC: 2024:KHC-D:4654
CRL.A No. 100099 of 2022
TQ. BAILHONGAL, DIST. BELAGAVI-590001.
6. MALLIKARJUN SHIVAPPA KUMBARGOUDA
AGE: 68 YEARS, R/O. SOMAWARPETH, KITTUR,
TQ. BAILHONGAL, DIST. BELAGAVI-590001.
7. SURESH BASAPPA DODDANAYKAR,
AGE: 58 YEARS, R/O. GIRIYAL K.A.KITTUR,
TQ. BAILHONGAL, DIST. BELAGAVI-590001.
8. RUDRAPPA YALLAPPA KURUBGATTI,
AGE: 52 YEARS, R/O. KITTUR
TQ. BAILHONGAL, DIST. BELAGAVI-590001.
9. SHEKAPPA THIPPANNA SANGOLLI
AGE: 63 YEARS, R/O. CHANNAPUR, KITTUR,
TQ. BAILHONGAL, DIST. BELAGAVI-590001.
10. VIJAY VASANTH DODDAMANI,
AGE: 48 YEARS, R/O. SOMAWARPETH,
KITTUR, TQ. BAILHONGAL,
DIST. BELAGAVI-590001.
- RESPONDENTS
(BY SRI CHETAN J. LIMBIKAI, ADVOCATE FOR R1 TO R9;
R-10 SERVED ON HIS RELATIVE)
THIS CRIMINAL APPEAL IS FILED U/SEC. 378(4) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF DISMISSAL/
ACQUITTAL DATED 07.04.2021 PASSED IN C.C. NO. 82/2016
PASSED BY THE PRL. CIVIL JUDGE AND JMFC AT BAILHONGAL VIDE
ANNEXURE-C IN OFFENCE U/S 138 N.I. ACT AND U/SEC. 423, 463,
464, 465, 470 R/W 34 OF IPC & ETC.
THIS CRIMINAL APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:4654
CRL.A No. 100099 of 2022
JUDGMENT
Appellants / complainants being the legal heirs of deceased Shrishaila Basanagouda Patil, who had filed the complaint against the accused feeling aggrieved by the order passed by the Prl. Civil Judge & JMFC, Bailhongal dated 07.04.2021, have preferred this appeal.
2. The parties to the appeal are referred to as per their ranking of the trial court for the sake of convenience.
3. Heard the arguments of both the sides.
4. After hearing both the sides and on perusal of the records produced by the appellants, the following points would arise for consideration.
(i) Whether the impugned order of the trial court in dismissing the complaint U/s 256(1) of Cr.P.C., is perverse, capracious, illegal and not sustainable?
(ii) What order?
5. On careful perusal of the records produced by the appellants, it would go to show that one Shrishaila Basanagouda Patil filed a complaint against accused Nos.1 to 13 for the offences punishable U/s 423, 463, 464, 465, 470 r/w -4- NC: 2024:KHC-D:4654 CRL.A No. 100099 of 2022 Sec. 34 IPC. The said complaint was referred to Bailhongal Police Station in terms of Sec. 156(3) of Cr.P.C. to investigate and report. The Investigating Officer after conducting investigation filed 'B' summary report. The complainant had filed protest petition against the 'B' summary report filed by the Bailhongal Police. The trial Court by order dated 11.01.2016 has taken cognizance of the offences U/s 423, 463, 464, 465 and 470 r/w Sec. 149 of IPC and ordered to issue process against accused Nos.1 to 13 for their appearance to answer the allegations made in the complaint. Accused Nos.1, 3 to 7 and 9 to 13 have appeared through their counsel and were released on bail. In the meantime the complainant was reported to be dead and application was filed U/s 256 of Cr.P.C. along with application U/s 5 of the Limitation Act to condone the delay to bring the LRs of the complainant on record. Thereafter due to pandemic COVID-19, the matter was not taken by the Court and the matter was listed on 05.09.2010 for filing objections to the application filed by complainant. The trial court by order dated 07.04.2021 dismissed the complaint U/s 256(1) Cr.P.C.
6. The correctness and legality of the said dismissal order passed by the trial court has been assailed by the legal heirs of -5- NC: 2024:KHC-D:4654 CRL.A No. 100099 of 2022 original complainant contending that the impugned order under appeal is perverse, capracious and cannot be legally sustained. The complaint cannot be dismissed for non taking steps against accused No.9 in terms of Sec. 256(1) of Cr.P.C. The other accused have already appeared before the Court and coercive steps could have been taken to secure the presence of accused No.9.
7. Per contra, learned counsel for the respondents seeks to justify the impugned order of the trial court contending that the trial court had given sufficient opportunity to the complainant to take steps against accused No.9. However, the same was not utilized by the complainant and the trial court having left with no other remedy, proceeded to dismiss the complaint in terms of Sec. 256(1) of Cr.P.C.
8. Learned counsel for the appellants has produced the certified copy of the order sheet under a memo. On careful perusal of the order sheet, it would go to show that the trial court on receipt of the complaint has chosen to exercise power U/s 156(3) of Cr.P.C. referred the complaint to Bailhongal Police Station to investigate and report. The Investigating -6- NC: 2024:KHC-D:4654 CRL.A No. 100099 of 2022 Officer after conducting investigation filed 'B' summary report. Notice of 'B' summary report was given to the complainant who filed objections to the 'B' summary report.
9. The trial Court on being prima facie satisfied of the materials produced by complainant, has taken cognizance of the offences against accused Nos.1 to 13 and by order dated 11.01.2016 ordered to issue process against the accused. In response to the order of trial court, accused Nos.1, 3 to 7 and 9 to 13 have appeared before the Court and they are represented by their respective counsel. The order sheet further goes to show that it is only the accused no.2 who has not appeared in the said case.
10. The order sheet of the trial court would go to show that the complainant was reported to be dead and necessary application U/s 256 of Cr.P.C. was filed by the appellants to come on record and also filed application U/s 5 of the Limitation Act to condone the delay. Copies of the said application were duly served on the other side who took time to file objections and the same stage continued till 09.03.2021. The matter was adjourned to 07.04.2021. On the said date, the accused Nos.1, -7- NC: 2024:KHC-D:4654 CRL.A No. 100099 of 2022 3 to 6, 10 and 11 were present. Accused nos. 7, 12 and 13 were absent and exemption petition was filed which came to be allowed by the trial court in the morning session. The matter was kept by at 3.00 p.m. The case was again called in the second session at 3.00 p.m. and by noting the presence of accused Nos.1, 3 to 6, 10 and 11, again kept the matter by 5.30 p.m. The matter was taken at 5.30 p.m. At that time, the complainant and counsel remained absent. The trial court having observed that inspite of giving sufficient opportunity, the complainant and counsel did not appear before the Court to take proper steps. Hence, it reveals that complainant is not diligent to prosecute the case against the accused. Hence, dismissed the complaint U/s 256(1) of Cr.P.C.
11. The earlier stage of the case on 09.03.2021 was to file objections by the accused to the application filed by complaint U/s 256 Cr.P.C. and also on the application filed U/s 5 of the Limitation Act. The presence of the complainant or counsel was not required at that point of time. It was the duty of the accused to file objections, if any, to the aforementioned applications filed by the legal heirs of deceased complainant. In that regard, what steps the complainant was required to -8- NC: 2024:KHC-D:4654 CRL.A No. 100099 of 2022 take is not made known by the order of the trial court. If the trial court is not exempting the accused No.9 from his appearance before the Court, then it could have ordered to issue non bailable warrant against him to secure the presence. However, no such order has been passed by the trial court. In the absence of any such order passed by the trial court, what was the need for the complainant to take steps against accused No.9. The trial court never observed by order dated 07.04.2021 that complainant could not take steps against accused No.2. If at all no such steps was taken by the complainant accused No.2 to secure his presence before the Court, then the matter could have been proceeded in accordance with law by splitting the case against accused No.2 and proceeded with the matter against accused who have already appeared before the Court. The trial Court is yet to decide the application filed by the legal heirs of the complainant. Therefore, under these circumstances, there was no need either for the complainant or his counsel to be present before the Court on 07.04.2021 when the matter was slated for filing of objections to the applications filed by the complainant. Therefore, under these circumstances, the impugned order of -9- NC: 2024:KHC-D:4654 CRL.A No. 100099 of 2022 the trial court in dismissing the complaint U/s 256(1) Cr.P.C. cannot be legally sustained and the same is required to be interfered by this Court. Consequently, proceed to pass the following order.
ORDER Appeal filed by the applicants/ legal heirs of the complainant is allowed;
The impugned order of trial Court on the file of Prl. Civil Judge & JMFC, Bailhongal dated 07.04.2021 in dismissing the complaint U/s 256(1) of Cr.P.C. is hereby set aside; The matter is remanded to the trial court with a direction to proceed with the matter and to dispose of the case in accordance with law.
Sd/-
JUDGE bvv CT:GSM List No.: 1 Sl No.: 25