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2003 DIGILAW 536 (KAR)

P. SHEKAR v. K. S. MURALIDHAR

2003-07-10

K.BHAKTHAVATSALA

body2003
K. BHAKTHAVATSALA, J. ( 1 ) THIS criminal revision petition filed under Section 397 r/w 401 of Cr. P. C. is directed against the order dated 20-12-1999 passed in C. C. No. 2195/1995 on the file of the I Additional C. M. M. , Bangalore City discharging the accused for the offences under Sections 448 and 427 of IPC on the ground that trial did not commence though the case is pending for more than two years, on the basis of the judgment of Apex Court rendered in "common Cause v. Union of India" reported ILR 1996 Kant 2063 : (1996 Cri LJ 2380 ). ( 2 ) THE respondent is represented by Sri M. T. Nanaiah Sri H. S. Chandramouli, learned S. P. P. assisted the Court. ( 3 ) HEARD arguments. ( 4 ) THE petitioner is referred to as "the complainant" and the respondents as "the accused" as arrayed in the trial Court. ( 5 ) THE brief facts of the case leading to the filing of the revision petition may be stated as under :the complainant filed a private complaint under Section 200, Cr. P. C. against the accused, in PCR No. 19/1995 on the file of I Additional C. M. M. , Bangalore City. On perusing the complaint, the learned Magistrate referred the same to K. G. Nagar Police Station for investigation and report under Section 156 (3) of Cr. P. C. ( 6 ) THE case of the complainant is that he is in occupation of the premises bearing No. 76/79 as tenant under Late Srinivas Murthy, the father of the accused since 1973 on payment of monthly rent of Rs. 700/- p. m. , and carrying on business in different varieties of cattle feed. The accused/landlord filed an eviction petition against the complainant under Section 21 (1) (h) of KRC Act registered in HRC No. 2454/1989 for eviction, which case came to be dismissed in terms of settlement. According to the settlement the complainant should deliver vacant possession of the first floor premises to the extent of 75 ft. x 10 ft. The accused, few months prior to lodging a private complaint, demanded the complainant to give possession of the first floor premises, but he did not oblige. According to the settlement the complainant should deliver vacant possession of the first floor premises to the extent of 75 ft. x 10 ft. The accused, few months prior to lodging a private complaint, demanded the complainant to give possession of the first floor premises, but he did not oblige. On 27-12-1994, when the complainant came to the premises, he found newly created opening, and a ladder from ground floor to first floor premises of the accused and the cattle feed materials were scattered on the ground floor as well as on the first floor around the said opening. Immediately, he approached the Police Sub-Inspector of New Taragupet Police Station and informed about the matter. But, the Police did not take the complaint nor visited the spot. The complainant apprehending his dispossession by the accused filed a suit on 28-12-1994 for permanent injunction against the accused and obtained an order of temporary injunction against the accused. Later on, the complainant served copies of the pleadings and copy of the order of temporary injunction obtained in his favour. In spite of that the accused hurriedly widened the opening of the first floor and blocked the entrance by raising a brick wall. On physical verification of the stock, the complainant found that there was shortage of stock worth about Rs. 84,765/-, and the stock was dishonestly removed and retained by the accused. Thus, it is the case of the complainant that the accused has committed house tress-pass, theft, caused damage, etc. On the basis of the Court order, the K. G. Nagar Police registered the case, and after investigation, submitted a final report for the offences under Sections 448 and 427 of IPC as against the accused. ( 7 ) ON 4-4-1995, the accused voluntarily appeared before the trial Court and obtained bail. The case was adjourned from time to time for argument before charge. On 7-9-1999 the trial Court after noticing that it was a summons case, the case was adjourned to 28-10-1999 for recording plea, on which date plea was ready, but the Advocate for accused wanted to file an application for discharge. The case was adjourned from time to time for argument before charge. On 7-9-1999 the trial Court after noticing that it was a summons case, the case was adjourned to 28-10-1999 for recording plea, on which date plea was ready, but the Advocate for accused wanted to file an application for discharge. Hence, it was adjourned to 17-11-1999 and subsequently heard arguments and passed the impugned order on 20-11-1999 discharging the accused for the offence under Sections 448 and 427 of IPC, on the ground that trial did not commence, though the case was pending for more than two years, following the directions given by the Apex Court in Common Cause case. This is impugned in this revision petition. ( 8 ) THE learned counsel appearing for the petitioner/complainant submitted that the learned trial Judge erred in discharging the accused as per the directions given by the Supreme Court reported in the case of Common Cause, a Registered Society through a Director v. Union of India, (1996 Cri LJ 2380 ). ( 9 ) ON the other hand, the learned counsel appearing for the respondent/accused submitted arguments in support of the impugned order. ( 10 ) THE direction 2 (b) of the Apex Court, reported in AIR 1996 SC 1619 : (1996 Cri LJ 2380) reads as under :"2 (B) Where the case pending in Criminal Courts for more than two years under IPC or any other law for the time being in force are compoundable with permission of the Court and if in such cases trials have still not commenced, the Criminal Court shall, after hearing the Public Prosecutor and other parties represented before it or their Advocates, discharge or acquit the accused, as the case may be, and close such cases. " therefore, the learned trial Judge discharged the accused because the present case satisfied the requirement of the above said direction. The learned trial Judge has not referred to the subsequent clarificatory order (vide AIR 1997 SC 1539 : (1997 Cri LJ 195 ). Clause (iii) which reads as under : " (iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make. Clause (iii) which reads as under : " (iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make. " ( 11 ) IN the instant case, after the charge-sheet was filed against the accused under Ss. 448 and 427 IPC, it was registered as C C No. 2195/1995 and since the accused was absconding, the trial Court issued NBW and adjourned the case to 17-5-1995. But, on 4-4-1995 itself the accused voluntarily surrendered before the Court and the accused was enlarged on bail. The case was being adjourned from time to time for hearing before charge from 17-5-1995 to 7-9-1999. On 7-9-1999, the trial Court, on perusal of the charge-sheet, came to the conclusion that it was a case of summons trial, and therefore, adjourned the case, for recording plea of the accused under S. 251 of Cr. P. C. to 28-10-1999, on which date the accused was present, plea was also ready, but the learned counsel appearing for the accused wanted to file an application for discharging the accused. Therefore, the case was adjourned to 17-11-1999 and after hearing arguments, the learned Magistrate discharged the accused on 20-12-1999 following the decision in AIR 1996 SC 1619 : (1996 Cri LJ 2380) solely on the ground that the offences alleged against the accused are punishable for less than 2 years and compoundable with permission of Court, and the case is pending for more than two years and trial still not commenced. ( 12 ) SRI H. S. Chandramoli, the learned State Public Prosecutor who was requested to assist the Court submitted that the Apex Court in P. Ramachandra Rao v. State of Karnataka AIR 2002 SC 1856 : (2002 Cri LJ 2547 : 2002 AIR Kant HCR 1210) overruled both the decisions rendered in Common Cause v. Union of India reported in AIR 1996 SC 1619 : (1996 Cri LJ 2380) and AIR 1997 SC 1539 : (1997 Cri LJ 195) and therefore directions and clarificatory order passed by the Apex Court in Common Cause case are no more binding on this Court. ( 13 ) ADMITTEDLY the impugned order came to be passed on 20-12-1999. ( 13 ) ADMITTEDLY the impugned order came to be passed on 20-12-1999. But, the Hon'ble seven Judges of the Apex Court disposed of Ramachandra Rao Case (vide AIR 2002 SC 1856 ) : (2002 Cri LJ 2547 : 2002 AIR Kant HCR 1210) on 16-4-2002 that is subsequent to passing the impugned order by the trial Court. The Apex Court in the case of P. Ramachandra Rao has held in paragraphs 24 and 28 of the judgment which reads as under :"24. Bars of limitation, judicially engrafted, are, no doubt, meant to provide a solution to the aforementioned problems. But, a solution of this nature gives rise to greater problems like scuttling a trial without adjudication, stultifying access to justice and giving easy exit from the portals of justice. Such general remedial measures cannot be said to be apt solutions. For two reasons we hold such bars of limitation uncalled for and impermissible : first, because it tantamounts to impermissible legislation - an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A. R. Antulay's case (1992 Cri LJ 2717 : AIR 1992 SC 1701 : 1992 AIR SCW 1872) and, therefore, run counter to the doctrine of precedents and their binding efficacy. 28. Prescribing periods of limitation at the end of which the trial Court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law making power available to Constitutional Courts, howsoever liberally we may interpret Articles 32, 21, 141 and 142 of the constitution. The dividing line is fine but perceptible Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. The dividing line is fine but perceptible Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated, in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do But it may not, like legislature, enact a provision akin to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973. " ( 14 ) THEREFORE, the impugned order is liable to be set aside. Hence, I pass the following order:the criminal revision petition is allowed and the impugned order dated 20-12-1999 passed in C. C. No. 2195/1995 on the file of the I Addl. C. M. M. Bangalore City discharging the accused for the offences under Ss. 448 and 427 of IPC is set aside and the matter is remitted back to the trial Court to dispose of the case in accordance with law at the earliest. The accused is directed to appear before the trial Court for further proceedings on 1-8-2003. ( 15 ) THE Registry is directed to send the Lower Court Records forthwith and facilitate the Court to proceed with the case on 1-8-2003. ( 16 ) I place a word of appreciation for the able assistance rendered by the learned State Public Prosecutor Sri H. S. Chandra-mouli. Petition allowed. --- *** --- .