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Karnataka High Court · body

2015 DIGILAW 653 (KAR)

U. AMARNATH SHETTY v. STATE OF KARNATAKA

2015-06-23

A.N.VENUGOPALA GOWDA

body2015
Order : A private complaint alleging commission of offences punishable under S.3(1)(x) of SC/ST (Prevention of Atrocities) Act and under S.323 of IPC was filed by the respondent No.2. The learned Sessions Judge, directed an enquiry under S.156(3) of Cr.P.C., by the jurisdictional Police. A case in Crime No.157/2004 for the said offences was registered. After investigation, on 20.01.2005, ‘B’ report was filed. The complainant filed protest petition on 13.06.2005. Sworn statement of the complainant was recorded on 27.09.2005 and 24.10.2005. The learned Sessions Judge, by an order dated 13.01.2006, took cognizance against the petitioner/accused No.1, for the offence punishable under S.3(1)(x) of the SC/ST (Prevention of Atrocities) Act and also under S.323 of IPC. Cognizance of the offence under S.3(1)(x) of the SC/ST (Prevention of Atrocities) Act, was also taken against the accused Nos.2 and 3. A criminal case was registered and summons was issued to the accused. PWs. 1 and 2 having deposed on 01.10.2009 and 31.10.2009, charge was framed on 27.04.2010. An order as follows was passed: “XXX XXX XXX” 2. The learned Sessions Judge having passed an order on 11.10.2010 holding that the case being a sessions case, the complainant cannot prosecute the same through a private advocate and Public Prosecutor alone can conduct the case and having directed the registry to take steps for appointment of a Special Public Prosecutor and having posted the case for further evidence of complainant and witnesses i.e., after framing of the charges on the basis of the evidence of the witnesses recorded on 01.10.2009 and 31.10.2009, i.e., after framing of the charges, this petition was filed to quash the aforesaid order dated 11.10.2010. 3. Sri Vishwajith Shetty, learned advocate, firstly contended that the learned Sessions Judge having framed the charge on 27.04.2010, on the basis of the evidence recorded on 01.10.2009 and 31.10.2009 i.e., before framing of the charge, could not have posted the case for further evidence of the complainant and her witnesses. 3. Sri Vishwajith Shetty, learned advocate, firstly contended that the learned Sessions Judge having framed the charge on 27.04.2010, on the basis of the evidence recorded on 01.10.2009 and 31.10.2009 i.e., before framing of the charge, could not have posted the case for further evidence of the complainant and her witnesses. He submitted that the learned Sessions Judge has failed to follow the mandatory procedure under S.246 of Cr.P.C. Secondly, ‘B’ Report filed by the Police was challenged by the complainant and after recording her sworn statement and that of the witnesses, cognizance of the offences having been taken and process having been issued, subsequently, proceeding to record the evidence of complainant and her witnesses before the charge, through the advocate for complainant, has committed illegality in holding that the procedure followed in the case is bad in law. He submitted that a private advocate could not have been allowed to represent the complainant and the Public Prosecutor is only entitled to represent the complainant in the Sessions Court. He submitted that the procedure followed by the Court below being contrary to the mandatory procedure under S.246 of Cr.P.C., and the entire proceedings being vitiated, interference is called for. Learned advocate by placing reliance on the decision in the case of STATE OF KARNATAKA Vs. DHANDAPANI MODALIAR, ILR 1991 KAR 2040, submitted that this petition is liable to allowed and the impugned order quashed. 4. Sri B. Visweswaraiah, learned HCGP, on the other hand, submitted that on account of the irregularity in the proceedings conducted by the learned Sessions Judge, the petitioner having not suffered any prejudice and as he has option to cross-examine PWs.1 and 2 prior to the examination of other witnesses by the prosecution, no interference is called. 5. Perused the record and considered the rival contentions. Point for consideration is, whether the impugned order and the proceeding are vitiated and call for interference ? 6. Chapter XV of Cr.P.C., containing Ss.200 to 203, deals with the complaints made to the Magistrate. Chapter XIX of Cr.P.C., containing Ss.238 to 250 regulates trial of warrant cases. Part-A therein i.e., Ss.238 to 240 deal with the cases instituted on a Police report and Part-B i.e., Ss.244 to 247 deal with the cases instituted otherwise than on a Police report. Part-C i.e., Ss.248 to 250 is with regard to the conclusion of trial. 7. Chapter XIX of Cr.P.C., containing Ss.238 to 250 regulates trial of warrant cases. Part-A therein i.e., Ss.238 to 240 deal with the cases instituted on a Police report and Part-B i.e., Ss.244 to 247 deal with the cases instituted otherwise than on a Police report. Part-C i.e., Ss.248 to 250 is with regard to the conclusion of trial. 7. S.246 provides the procedure where the accused is not discharged. 8. In AJOY KUMAR GHOSE Vs. STATE OF JHARKHAND AND ANOTHER, (2009) 14 SCC 115 , Trial Court had framed charges against the accused without the prosecution having no evidence whatsoever in terms of S.244 of Cr.P.C. When the matter reached the Apex Court, it was held that procedure adopted by the trial court was not correct. Because, S.246(1) Cr.P.C., itself sufficiently indicates that charges have to be framed against the accused on the basis of the evidence offered by the complainant at the stage of S.244(1). The relevant portion of the judgment is extracted herein below: “39. The charge is framed under Section 246(1) Cr.P.C., which runs as under: "246. Procedure where accused is not discharge. (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." The language of the Section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of Section 244(1) Cr.P.C., that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 Cr.P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge.” 9. In SUNIL MEHTA AND ANOTHER Vs. Therefore, ordinarily, when the evidence is offered under Section 244 Cr.P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge.” 9. In SUNIL MEHTA AND ANOTHER Vs. STATE OF GUJARAT AND ANOTHER, (2013) 9 SCC 209 , the question determined is, whether the deposition of complainant and his witness recorded in Chapter XV of Cr.P.C., before cognizance is taken by Magistrate would constitute evidence for the Magistrate to frame charges against the accused under Part-B of Chapter XIX of Cr.P.C? In that case, the complainant, instead of adducing evidence in support of the prosecution, filed a Memo, stating that the evidence submitted along with the complaint may be considered as evidence for the purpose of framing of charge. The Magistrate took the memo on record, fixed the date for framing of charges and ultimately, framed the charges against the accused. The order having been assailed in a revision petition, learned Sessions Judge allowed the petition on the ground that non compliance with S.245(2) Cr.P.C., renders the order passed by the learned Magistrate unsustainable. Consequently, the matter was remitted back to the Trial Court, to proceed in accordance with the provisions of Ss.244 to 247 of Cr.P.C., and by keeping in view the decision in the case of AJOY KUMAR GHOSE (supra). Complainant having questioned the said order by filing a petition under S.482 Cr.P.C., the Criminal Petition was allowed. The said order having been questioned in the Apex Court, the aforesaid question was raised for determination and was answered as follows: “24. In the light of what we have said above, we have no hesitation in holding that the High Court fell in palpable error in interfering with the order passed by the Revisional Court of Sessions Judge, Gandhi Nagar. The High Court was particularly in error in holding that the appellant had an opportunity to cross-examine the witnesses or that he had not availed of the said opportunity when the witnesses were examined at the stage of proceedings under Chapter XV of the Code. The High Court, it is obvious, has failed to approach the issue from the correct perspective while passing the impugned order [MGD Electronics (P) Ltd. v. State of Gujarat, Special Criminal Application No.1917 of 2011, decided on 21-11-2011 (Guj)]” 10. The High Court, it is obvious, has failed to approach the issue from the correct perspective while passing the impugned order [MGD Electronics (P) Ltd. v. State of Gujarat, Special Criminal Application No.1917 of 2011, decided on 21-11-2011 (Guj)]” 10. In DHANDAPANI MODALIAR (supra), with regard to the scope and purport of the words appearing in S.246(4) Cr.P.C. i.e., ‘at the commencement of the next hearing of the case’ it has been held as follows: “5. Section 246 of the Code of Criminal Procedure provides that after recording of evidence, if the Magistrate is of the opinion that there is a ground for presuming that the accused has committed an offence triable under this Chapter, he shall frame in writing a charge against the accused. The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. Further, subsection (4) of Section 246 lays down that if the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted on a plea of guilt, he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. It is, therefore, apparent from the scheme of Section 246 of the Code of Criminal Procedure that the law provides the accused an opportunity of thinking over the matter in the light of the evidence that has been adduced before the Court and then to inform the Court whether he wishes to cross-examine the witnesses already examined by the prosecution before framing of the charge. Obviously, such an opportunity is to be given to the accused because in large number of cases they are ignorant of the law and must need advice before they can make up their mind whether to further crossexamine the witnesses already examined by the prosecution. Obviously, such an opportunity is to be given to the accused because in large number of cases they are ignorant of the law and must need advice before they can make up their mind whether to further crossexamine the witnesses already examined by the prosecution. The express words employed in Section 246(4) viz., 'at the commencement of the next hearing of the case' emphasises this aspect of the matter, so that the accused is not compelled to make a decision on the spot immediately after framing of charge. It is worth remembering that the evidence that is adduced before the framing of charge is only directed to establish a case which if unrebutted would lead to the conviction of the accused. Since that is the limited purpose for which evidence is adduced before framing of the charge, the accused may not feel it necessary to cross-examine such witnesses at length so as to make out his defence. The stage for serious consideration on this aspect of the matter arises only if the Court decides to frame a charge and actually frames a charge against the accused. It is therefore of significance that law provides for some time to intervene between the date on which the charge is framed and the date on which the accused is required to state as to whether he wishes to cross-examine any or all the witnesses examined by the prosecution before the framing of the charge.” 11. In the instant case, the dates and events, noticed supra, being not in dispute, the decision in the case of SUNIL MEHTA (supra), squarely applies. Since, the learned Sessions Judge has used the statements of PWs. 1 and 2 without affording to the accused i.e., an opportunity to cross-examine, there is illegality. Hence, I do not find merit in the contention of the learned HCGP. 12. The proceedings having not been conducted in the manner provided in the aforesaid statutory provisions and there being apparent illegality, a case for exercise of power under S.482 of Cr.P.C., has been made out. In the result, the petition is allowed and the proceedings of Spl.C.C.No.44/2006, commencing from 13.01.2006, till the date of passing of the impugned order dated 27.04.2010 is quashed. Learned Sessions Judge shall proceed with the matter in accordance with the provisions of Ss. In the result, the petition is allowed and the proceedings of Spl.C.C.No.44/2006, commencing from 13.01.2006, till the date of passing of the impugned order dated 27.04.2010 is quashed. Learned Sessions Judge shall proceed with the matter in accordance with the provisions of Ss. 244 to 247 of Cr.P.C., and by keeping in view the decisions of the Apex Court and this Court, noticed supra. Complaint having been lodged on 26.06.2004, learned Sessions Judge shall endeavour to decide the matter with as much expedition as possible and at any event within a period of one year from the next hearing date.