Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 638 (KAR)

STATE OF KARNATAKA v. RAMACHANDRA BHIMRAO BHAMANE

2003-08-04

M.F.SALDANHA, M.S.RAJENDRA PRASAD

body2003
M. F. SALDANHA, J. ( 1 ) AN interesting position in law has arisen in this case which we shall very briefly summarise. The-accused is alleged to have assaulted the complainant and caused injuries of some seriousness to him. He was tried by the learned jmfc, Sakaleshpur in Cri. Case No. 56/1997', found guilty and sentenced to undergo SI for 3 months and to pay a fine of Rs. 300/- for the offence under S. 326,1. P. C. and S. I. for one month and to pay fine of Rs. 100/- for the offence under Section 504, I. P. C. The accused filed an appeal against this order and strangely enough, a very unusual point was raised before the appeal court which was that the Government had not appointed a Prosecutor in the trial Court and since there was no Prosecutor the learned magistrate himself put the questions to the witnesses, recorded their statements and completed the case. Though this was a technical objection, the argument was that the learned Judge has effectively taken over the role of the Public Prosecutor in so far as he has conducted the examination-in-chief and that consequently, the Court has acted both as a Judge and as a Prosecutor. The contention was that effectively where the presiding Officer discharges the functions of a prosecutor that it would vitiate the trial and that consequently, the conviction should be set aside. The appeal Court upheld this contention and set aside the conviction and sentences. The State has filed an appeal against the order of acquittal. ( 2 ) WE have heard the learned Counsel on both sides on the last date of hearing. The learned SPP submitted that the prosecution evidence is conclusive and that but for the technicality, that the conviction could never have been set aside. His initial submission is that since there was no prosecutor and in order to avoid delaying the case any further the learned Magistrate has virtually taken down the evidence which is perfectly in order and that it is wrong to say that the learned Magistrate performed the functions of the Prosecutor. It is also contended that if this Court, as a matter of propriety, were to uphold the appellate order then there is no option except to order a retrial and that this should be done. It is also contended that if this Court, as a matter of propriety, were to uphold the appellate order then there is no option except to order a retrial and that this should be done. At that stage we asked the respondent's" learned advocate to keep his client present because we desired to ascertain his status and other allied issues in order to decide whether this is a case in which a retrial should be ordered. ( 3 ) WE are unable to accept the submissions canvassed by the learned Addl. SPP who tried to defend the order of the trial court. There are well defined principles with regard to the conduct of criminal cases wherein the case for the prosecution is required to be presented by the Public prosecutor and that the accused is defended by the Counsel for the defence. It is the function of the Presiding Officer to hear the case impartially and it is a well defined principle of law that if at any stage the Presiding Officer does any act which indicates that some bias favouritism or prejudice is shown towards one of the several parties, then the decision would be vitiated. This is a well defined principle of procedure based on well accepted cannons of ethics and it is really the foundation for the confidence that is required to be reposed in the Courts. To say that we are not only shocked but distressed, would be an understatement because it is not a question of evidence being recorded but of the fact that the Presiding Officer virtually took over the role of the Prosecutor, which is a total breach of the cannons that we have indicated earlier and consequently, the appeal Court was perfectly justified in having set aside the conviction on this ground. ( 4 ) ON the next question as to whether we should order a retrial, the learned Addl. SPP submitted that assuming that the earlier trial was vitiated a retrial is a must because otherwise the accused technically gets away after having committed an offence of some seriousness. We have perused the records very carefully and we do not share the view that the incident was one of seriousness, the injuries caused themselves were relatively minor which is why the trial court on the earlier occasion awarded a very light sentence. We have perused the records very carefully and we do not share the view that the incident was one of seriousness, the injuries caused themselves were relatively minor which is why the trial court on the earlier occasion awarded a very light sentence. The more important aspect is that the learned advocate who represents the accused points out to us that he is a person of very modest means, he is present in Court and he informs us that he works as agricultural labourer. The incident is of the year 1995. It took place on 3-10-1995 to be exact. Almost 8 years have elapsed now and we find on the present record that the state which is also responsible for the trial getting vitiated on the earlier occasion, has now come forward with the plea that a retrial be ordered. Respondent's learned advocate makes a strong plea to the Court that no such retrial be ordered principally on the ground that it would be harsh to the accused because the accused has already gone through the ordeal not only of a trial but also of an appeal and the third stage of the litigation before this Court. The short question is as to whether the accused should be prejudiced or punished for the negligence of the State and the answer to this question is an emphatic "no". The State was duty bound to have ensured that the Prosecutor was appointed in the trial Court and if that had not been done the State cannot be heard to ask for a retrial at this late stage of the proceeding. ( 5 ) AS far as the trial being vitiated is concerned, the decision reported in the ILR 2002 kant 4390 : (2002 Cri LJ 389 : 2002 AIR kant HCR 2848) really concludes the issue, but on the question as to whether a retrial should be ordered we need to go back to the principles that have now been well crystallised by the courts under Art. 20 (Art. 21) of the Constitution particularly while dealing with the doctrine of right to a speedy trial. Those principles have been reiterated by the courts in numerous cases and it is that doctrine that we propose to apply in the present case while refusing to order a retrial. Those principles have been reiterated by the courts in numerous cases and it is that doctrine that we propose to apply in the present case while refusing to order a retrial. If the accused was responsible for the delay or the accused was responsible for what had happened before the trial Court the position would have been different but since that is not the case, we refuse to accede to the submissions canvassed on behalf of the State that a retrial be ordered at this late point of time. The additional reason for this is because assuming the witesses are re-summoned after a lapse of 8 years, human memory being what it is, the quality of the evidence will be so very poor that the Prosecution is bound to fail and if the entire exercise is going to end in futility, this Court will not pass any order which is on par with an infructuous order. ( 6 ) BEFORE parting with this judgment we need to take cognisance of the fact that this litigation has taken place because of the default on the part of the State in making the necessary appointments. No grounds of excuses or reasons are good enough for what has happened and we therefore direct that the State shall ensure hereinafter that not a single Court in the State is without a Prosecutor for even a single day. The Registrar general to forward a copy of this judgment to the Law Minister and the Law Secretary with a direction that the observations of this court be noted and consequential follow up action be ensured. ( 7 ) WITH these directions the appeal which fails to stand dismissed on merits. Appeal dismissed. --- *** --- .