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2014 DIGILAW 566 (KAR)

Thamanna Yellappa Dollin v. A. Ramappa

2014-06-05

K.N.PHANEENDRA

body2014
Judgment : 1. The petitioner has approached this Court seeking quashing of the proceedings pending before the J.M.F.C., Yelburga in C.C. No.226/2012 registered against the petitioner for the offences under Sections 279, 337 and 338 of I.P.C. 2. I have heard the arguments of the learned Counsel for the petitioner and as well as the respondent herein. I have carefully perused the records produced along with the petition. Both the Counsels have no grievance so far as the documents which are produced before this Court are concerned and the factual aspects with regard to one proceedings disposed and another complaint pending before the Courts are concerned. Therefore, it is just and necessary for this Court to have a brief factual aspects of the case before adverting to the grounds urged before this Court. 3. The facts of the case in fact are admitted by both the parties i.e. to say Kukanoor Police, Koppal District earlier have registered a case in Crime No. 128/2006 and after the investigation it was culminated in Criminal Case in C.C. No. 100/2007. The said case was registered against the respondent - Ramappa herein for the offence under Sections 279, 337 and 338 of I.P.C. It is also an admitted fact that the said case was concluded and the Court has acquitted the accused vide its Judgment dated 29th March 2010. It is also not in dispute that the respondent - Ramappa earlier had also filed a private complaint on 18.01.2007 before the J.M.F.C., Yelburga and the same subsequently registered in C.C. No.226/2012 for the offences punishable under Sections 279; 337 and 338 of I.P.C. and the Court has issued summons to the accused persons i.e. the petitioner herein. 4. Both the above said cases arising out of the factual aspects that, on 24.12.2006 at about 3.30 p.m. on Gadag - Koppal NH-63 Road after 2 kms., from Khanapar Cross, the accident took place between a KSRTC Bus bearing its Registration No. KA-37/F-178 being driven by the respondent - Ramappa herein and a Tractor bearing its Registration No. KA-37/T-4214 with Trolly No. KA-37/T-4215 alleged to had been driven by the petitioner herein. In the said accident it is an undisputed fact that some of the witnesses have sustained simple injuries and severe injuries. In the said accident it is an undisputed fact that some of the witnesses have sustained simple injuries and severe injuries. In connection with the above said accident the first information report has been filed against the respondent-1 Ramappa herein making allegations that he drove the bus in a rash and negligent manner. On the other hand, respondent No.1 also filed a private complaint as stated above making allegations that the petitioner herein drove the Tractor in a rash and negligent manner. Therefore, both the cases i.e. the private complaint also culminated in a criminal case in C.C. No.226/2012 and on the other hand the first information report lodged against the respondent No.1 also culminated in C.C. No. 100/2007. Therefore, it is clear a case and counter case were filed before the same court. 5. The learned Counsel for the petitioner Sri. Gundawade strenuously contended that, at the time of filing the first information report to the Police, the respondent No.1 was very much present and he was very much available to the Police, but he did not give any first information report as such against the petitioner. But subsequently, after a long lapse of time he made a complaint to the Magistrate. Moreover, the criminal case registered against the respondent No.1 since 2007 being proceeded upto 2010 before the J.M.F.C., Yelburga and in that particular case the respondent not whispered even a word before the Court that his private complaint is also pending before the same Court and the said case also should be taken on record and both the cases should be tried simultaneously as they are case and a counter case. Further, he contended that the evidence recorded and the observations made by the learned Judge while acquitting the respondent No.1 in the said case discloses that, even during the course of the cross- examination not even a suggestion has been made to any of the eye witnesses or to the Investigating Officer that the petitioner actually has committed such an offence, drove the tractor in a rash and negligent manner in order to support his contention in the private complaint filed by him. He also specifically contends that the witnesses who are examined in the case against the respondent No.1 in C.C. No. 100/2007 particularly by name Mallappa - PW-3 and one Sharanappa - PW-7, who were also examined by the respondent in his private complaint have deposed before the Court during the course of cross -examination that the petitioner was not at all driving the vehicle and they don't know the name of the person who drove the tractor on that particular day, he further contends that they cannot turn back and say subsequently in the private complaint of the respondent that the petitioner was driving the tractor on that particular day. Therefore, when the entire matter has already been culminated in trail and ended in acquittal of the respondent, now after waiting for his acquittal in the criminal case thereafter he proceeded in his private complaint and taken an order from the Magistrate getting the summons issued against the petitioner, which amounts to abuse of process of law. Therefore, for all these reasons the petition deserves to be allowed and the private complaint filed by the respondent deserves to be quashed. 6. Per contra, the learned Counsel for the respondent Sri. Mrutyunjay S. Hallikeri strenuously contends countering the above said arguments that when a case and counter case have been filed, each case have to reach their logical end, merely because in one case the accused has been acquitted, it does not mean to say that the other case should be quashed. The learned Counsel also contends that the evidence recorded by the learned Magistrate in C.C. No. 100/2007 cannot be read into the private complaint filed by the complainant -respondent. At this stage, in order to come to any conclusion that those witnesses are not believable and on that ground the complaint is liable to be quashed. It is the domain of the Magistrate to consider all these facts during the course of evidence in the private complaint. 7. Secondly, he contended that the respondent has not whispered of course anything about the pendency of the private complaint in the case registered against him in C.C. Hp. 100/2007, out the silence of the accused should not be taken as a proof of the innocence of the petitioner. 7. Secondly, he contended that the respondent has not whispered of course anything about the pendency of the private complaint in the case registered against him in C.C. Hp. 100/2007, out the silence of the accused should not be taken as a proof of the innocence of the petitioner. The innocence or otherwise of the petitioner has to be considered by the Court independently in C.C. No.226/2012 in the private complaint lodged by the respondent herein. The learned Counsel also contends that there is no delay in lodging the private complaint. Further, he contends that, on 27.12.2006 within three days of the incident itself he went to the Police Station after taking treatment, but the Police did Dot entertain his information. But on the other hand, they have proceeded with the case lodged against the respondent herein and filed the charge sheet. He also brought to my notice that as soon the private complaint was filed the matter was referred to the Police on 24.01.2007, but within two days that was on 26.01.2007 'B' report was filed wherein the Police have taken more than five months to investigate the earlier case and to file the charge sheet. In the above said rival contentions and background, the Court has to see whether the culmination of the proceedings against the respondent in acquitting him in C.C. No. 100/2007 in any way causes any legal impediment to proceed private complaint filed by him against the petitioner herein in C.C. No.226/2012. 8. Admittedly, both the cases are a case and a counter case and there is no dispute so far as this aspect is concerned. Here the first information lodged in the earlier case was on 24.12.2006 itself and the private complaint was lodged on 18.01.2007 i.e., to say after about 24 days. An explanation was also offered that after the accident the respondent has taken treatment and went to Shabarimalai and immediately after coming back he came to know that the Police have not at all taken any action on the information given by him on 27/0 2/2006 against the petitioner. Therefore, he was advised to file a private complaint. I don't find any inordinate delay in lodging the complaint before the Criminal Court. Therefore, he was advised to file a private complaint. I don't find any inordinate delay in lodging the complaint before the Criminal Court. Moreover, the law also provides and prescribes limitation to initiate criminal proceedings depending on the punishment prescribed for the offences: The offences punishable under Sections 279, 337 and 338 of I.P.C. or any offence punishable to the maximum extent of three years, the Criminal Procedure Code gives the power to the complainant to lodge a complaint within three years from the date of the offence. The delay in filing the complaint cannot be a ground for totally dismissing the complaint or quashing the complaint. The delay as well can be explained during the course of die evidence and it is the domain of the Magistrate either to accept the said delay or to find out whether such delay in fact causes any impediment to the case of the complainant and thereby it can favour the accused. Therefore, on this ground the said complaint cannot be quashed. 9. Now, coming to the other aspect taken up by the learned Counsel that, the respondent has not whispered anything in C.C. No. 100/2007 about the pendency of the criminal complaint lodged by him against the petitioner. Of course, this is a serious lapse on the part of the respondent. Though he is having full knowledge about the pendency of his private complaint before the same Court but neither in his 313 Statement nor in the evidence of the witness he has suggested that any case is pending against the petitioner in his private complaint. But whether i.e. itself is sufficient to totally discard the complaint is the question to be considered by this Court. Merely because the person who has not brought to the notice of the Magistrate his case cannot be totally ousted from the Court of law because of the simple reason the private complaint lodged by him if at all lodged only after the culmination of the entire proceedings before the Trial Court, I could have understood that there is a serious lapse on the part of the complainant and his action was deliberate. But here, the private complaint was also simultaneously filed before the same Court. But here, the private complaint was also simultaneously filed before the same Court. In the order sheet produced before this Court in C.C. No.226/2012 discloses that almost all the dates the complainant present before the Court, for one or the other reasons the said case being adjourned. Though after the acquittal in the case against him he proceeded with the private complaint by getting recorded his sworn statement and also examining the witnesses. Nevertheless, the order sheet discloses that even prior to that he has been appearing before the Court. It was brought to my notice that both the cases were pending before the same Judge in the same Court. Atleast in my opinion, when this particular man was appearing in two cases, the Court also ought to have made some efforts to ascertain why this man is appearing in the other case so as to understand that whether those cases are case and a counter case. It is also the responsibility of the Office to find cut that whether two cases are arising out of the same accident so that both the cases can be placed before the same Judge and tried by the same Court simultaneously. Further added to that the petitioner might not had been properly advised by his counsel in both cases. Therefore, merely because he has not whispered anything about the pendency of the said case, it cannot be said that on that ground his private complaint has reached to a logical end. Even if he disclosed the said fact what would have been the consequences of the same. The learned Magistrate would have taken the said case also on his record and disposed of simultaneously along with C.C. No. 100/2007. Therefore, it goes without saying that both the cases should reach a logical end and both the cases should be tried by the same Judge and the cases should be disposed of, otherwise the second case will remain as it is and it will not reach to its logical end. Therefore, on this ground also, in my opinion, mere non-mentioning of the pendency of the said case is not sufficient to throw out the case of the private complaint from the Court. 10. Therefore, on this ground also, in my opinion, mere non-mentioning of the pendency of the said case is not sufficient to throw out the case of the private complaint from the Court. 10. The further contention of the learned Counsel is that, two witnesses have been examined in C.C. No. 100/2007, one PW-3 - Mallappa and PW-7 Sharanappa their evidence can't be believed in the private complaint. Of course, they have not supported the case of the prosecution, but they have not implicated the tractor driver as an accused in the case. Nevertheless, they have stated in the private complaint that the tractor driver was at fault and due to his rash and negligent driving of the tractor the accident happened. This clearly goes to show that there are totally divergent evidence given by these two witnesses. But as rightly contended by the learned Counsel for the respondent that the evidence of this case cannot be read into the private complaint. The private complaint has to be dealt with on the basis of the statements of the witnesses at that stage along with the contents of the complaint to find out a prima facie case for issuance of summons. However the veracity of the statements of the witnesses can be tested by confronting the previous statements under Section 145 of Evidence Act, to draw an inference whether their evidence is trust worthy for credence or acceptance. Therefore, I am of the opinion, merely because these witnesses have earlier stated in favour of the respondent and not whispered about the culpability of the tractor driver (petitioner), it does not mean to say their evidence should not be believed or their evidence should not be accepted by the Court in a subsequent proceedings. But as I have said it all depends on appreciation of the evidence by said Court. 11. The learned Counsel for the Respondent has cited two decisions of the Hon'ble Supreme Court reported in Nathi Lal and others Vs. State of Uttar Pradesh and another in SCC-1990-SUPPL-145 and also AIR 1975 SC 149 in Mitthulal and another Vs. The State of Madhya Pradesh. The Apex Court in both the cases dealt with the legal aspects as to how case and counter case have to be tried and disposed. State of Uttar Pradesh and another in SCC-1990-SUPPL-145 and also AIR 1975 SC 149 in Mitthulal and another Vs. The State of Madhya Pradesh. The Apex Court in both the cases dealt with the legal aspects as to how case and counter case have to be tried and disposed. The guidelines are as follows:- "the case and counter case have to be tried separately and the witnesses in one case are undoubtedly accused in another case. It is going through the evidence in both the cases that the Court has to understand the real story, but it cannot mix up the evidence recorded in both the cases. But the evidence recorded, in one case can be confronted to the witnesses in. the other case. It is difficult to comprehend as to how the Court could rely of upon, the evidence in both cases however cases should be simultaneously tried. It is an elementary principle that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at a decision. It is also said that where there are cross cases, preferably the same Judge must try both the cases one after another. After recording the evidence in one case is completed, he must hear the arguments and 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 case, 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 Bach case must be decided on the basis of the evidence which has been placed on record in the 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 another". . 12. . 12. But in this particular case, the cases have not been tried simultaneously by the same Judge for the simple reason the pendency of the counter case in C.C. No.226/2012 was never brought to the notice of the learned Judge and he was not having any knowledge of the pendency of the said case. Therefore, I cannot find fault with the learned Judge or the petitioner herein. But, it is the mistake on the part of the respondent in not brining the same to the notice of the learned Judge. But as I have already said that merely because he has committed some mistake that does not mean to say that on that ground his complaint has to be thrown out. When it is categorically stated in the above said Rulings that the evidence of one case should not be read into another case for the purpose of arriving at the conclusion. Therefore, even a private complaint is conducted independently then no harm or injustice would be caused because of the reasons the Court cannot rely upon the evidence recorded in the earlier case, that evidence recorded in the earlier case can as well only be used for the purpose of confronting the same to the witness under Section 145 of the Indian Evidence Act and also to consider whether the said witness is trust worthy for acceptance or not. Therefore, I am of the opinion, when the private complaint filed in accordance with law and procedure has been properly followed by the learned Judge, registered the case, taken cognizance, recorded the sworn statement and as well the statement of the witnesses and on the basis of the complaint averments and as well as the statements of the witnesses the learned Judge has come to the conclusion that there was a prima facie case to call upon the accused to answer to the queries raised. 13. I don't find any illegality in the orders passed by the learned Judge. Such an order cannot be interfered and such proceedings cannot be quashed. Therefore, the private complaint also should reach its logical end. 14. With these observations, I am of the opinion, this petition deserves to be dismissed. Accordingly, the petition is dismissed and the learned Trial Judge is directed to proceed with C.C. No.226/2012 and dispose of it as early as possible.