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2016 DIGILAW 205 (KAR)

Nagaraj son of Shivayya Kattimani v. Syed Kareem Babu

2016-02-26

G.NARENDAR

body2016
ORDER : G. Narendar, J. Criminal Petition No. 200710/2015 is preferred being aggrieved by the Order dated 16.6.2015 rendered in S.C. No. 58/2010 on the application preferred by the present petitioner under the provisions of Sections 278(1) and (2) of Cr.P.C. and also under Section 327(2) of the Cr.P.C. 2. The petitioner is the defacto complainant and is none other than the father of the victim who is said to have been sexually assaulted by the respondent-accused herein. 3. The gist of complaint is that while the petitioner’s daughter/victim, who is charge sheet witness No. 2 and has deposed as PW6 was on her way to attend to her tuition classes in the 3rd week of October, 2005, at about 6.30 P.M. the tyre of her scooty motor cycle suffered a puncture and as there was no one nearby and as she was waiting, the accused came in a car and passed her by. Thereafter they turned the car around and came and stopped the vehicle very near to her. Suddenly the first accused is alleged to have tightly held on to her mouth and dragged her towards the car. Thereafter the other accused held her legs and she was bodily lifted and forced into the car. It is further alleged that the first accused stuffed cloth into her mouth and tied it around to prevent her from raising an alarm and another accused tied her legs and an other tied her hands and she was driven to a desolate spot on the outer ring road where the 1st accused is alleged to have indulged in sexual perversions and committed the offence of rape and that the victim was further threatened that if she revealed this fact to anybody or to the police, her family would be finished off. 4. It is also alleged that subsequently the accused in SC No. 59/2010, taking advantage of the situation intimidated her and forced her to accompany him to Bengaluru and is said to have committed forcible rape upon her and is also said to have kept her in a lodge and thereafter confined her in Al-Huda Girls Hostel at Bengaluru between 9.3.2006 to 15.3.2006. 5. 5. The complaint came to be lodged on 08/09.3.2006 and came to be registered as Crime No. 31/06 and initially was registered for the offences punishable under Sections 363, 504 and 506 r/w. 34 of the IPC and later the complainant agitated by the tardy investigation approached the higher ups in the department including the DGP and also lodged a complaint with the then Hon’ble Chief Minister, Home Minister and DGP on account of which the investigation was handed over to the COD, Bengaluru. The COD after investigation have now submitted charge sheet for offences punishable under Sections 366(A), 376, 506, 114 and 120(B) of the IPC in SC No. 58/2010. The commission of the offences prior to 08/09.3.2006 and the commission of the offence after the said date is said to have been revealed on account of the investigation pursuant to registration of the complaint dated 9.3.2006 which is registered as Crime No. 31/2006. Hence, two separate charge sheets have been filed as the result of the single complaint. The accused in SC 59/2010 has been charged under Sections 366(A), 376 and 342 of IPC. The committal order in the 2 cases came to passed 20.1.2010 and 18.01.2010 by the III Addl. Civil Judge (Jr.dn.) and JMFC Gulbarga in CC No. 541/2008 and CC No. 2404/2009. In SC 58/2010, 33 witnesses are arrayed and in S.C. 59/2010, 39 witnesses are arrayed to be examined on behalf of the prosecution. 6. After committal it appears that the Learned Public Prosecutor is said to have filed a memo praying for clubbing of both the cases as the complainant and the victim are one and same in both the cases and witnesses are also common and prayed for common trial. The memo came to be filed on 15.11.2011. The Counsel for A3 in SC 58/2010 submitted his no objection for the clubbing of the case, whereas Counsel for A1, A2 and A4 alone submitted their objections to the memo and objected to the clubbing of the cases. The Trial Court i.e. the Court of the Principal Sessions Judge by its detailed Order dated 29.3.2012 was pleased to order the clubbing of both the cases in order to have a common trial and thereafter adjourned the hearing to 8.5.2012 for commencement of the trial. 7. The Trial Court i.e. the Court of the Principal Sessions Judge by its detailed Order dated 29.3.2012 was pleased to order the clubbing of both the cases in order to have a common trial and thereafter adjourned the hearing to 8.5.2012 for commencement of the trial. 7. On the aforesaid date CW1 was present but on account of A1 being absent, the witness was bound over and it was adjourned to 26.5.2012. On the said date, A3 was absent and hence the case was adjourned to 26.6.2012 and the witness was bound over. On subsequent dates also i.e. 13.7.2012, 18.8.2012 and 30.8.2012, one or the other accused was absent and examination of the witnesses had to be postponed and on 5.11.2012 all the accused were present but on the request of the public prosecutor, the witnesses CWs 1, 2, 3 and 4 were discharged and the case was adjourned to 6.11.2012. On the said date, the accused-A 1, A3 and A4 were absent and the witnesses were also absent and the case was adjourned to 7.11.2012. On the said date A3 alone was present and the rest of the accused were absent. On 8.11.2012 none of the accused were present before the Court and trial was adjourned to 9.11.2012-On the said date, A2 alone was present and the other accused absented themselves and the case was adjourned to 24.12.2012-On 24.12.2012, matter came to be adjourned to 28.1.2013 on the request for the Counsel for the accused and the prosecutor. On the said date, two of the accused remained absent. 8. The matter was adjourned to 8.3.2013 and on 8.3.2013 the Court suo motu recorded an order “for hearing regarding as to whether this case and SC No. 59/2010 have to be tried separately grid for FDT. call on 4.4.2013 (underling by me). On 4.4.2013 again some of the accused were absent, EP filed and exemption granted. The Order Sheet reveals as follows: “Counsel for accused submitted that they wants to prefer a revision against the order dated 29.3.2013 gassed by this Court where under this case and S.C. No. 59/2010 have been clubbed together for common trial and prays time for FDT, granted, (underlining by me). For hearing and FDT, call on 31.5.2013". Matter was adjourned to 31.5.2013. 9. For hearing and FDT, call on 31.5.2013". Matter was adjourned to 31.5.2013. 9. The Order Sheet on the date 31.5.2013 reads as follows: “Time prayed for FDT by Counsel for accused stating that accused has not yet preferred revision against the order dated 29.3.2012 passed by this Court and that the accused will file revision against the said order within next date of hearing, (underlining by me) "Hence for FDT and hearing call on 28.6.2013". On 28.6.2013 the Order Sheet reads as follows: “For FDT counsel for accused prays for time on the ground that by the next date of hearing he will prefer a revision against the order dated: 29.3.2012 Bussed by this Court and to produce the order passed by Hon'ble High Court, hence time granted finally. For FDT call on 30.7.2013". The matter was adjourned to 30.7.2013. On the next date of hearing i.e. 30.7.2013 the Order Sheet reads as follows: “A1 to A3 are absent. A4 is present. For A3 EP and same is allowed for the reasons stated therein and exemption granted for the day. Counsel for A1 and A2 and A4 is called out absent. Counsel for A3 submitted that they have not preferred any revision against the order dated: 29.3.2012 passed by this Court. The matter is of the year 2010. Hence, time granted finally for furnishing copy of the order if any passed by Hon’ble High Court and issue NBW against A1 and A2 by 30.8.2013". Later hearing date was advanced to 8.8.2013 for getting the NBW recalled. On 30.8.2013 the case was again adjourned on the request of the accused and was adjourned to 27.9.2013. On 27.9.2013 the Order Sheet reads as follows: “A2 and A4 are present. For A2 and A3 EP filed, exemption is granted. For FDT time prayed by the counsel for accused on the ground that only they are going to prefer revision before the Hon’ble High Court against order dated 29.3.2012 passed by this court, time granted as last chance by 28.10.2013". 10. On 28.10.2013 the Order Sheet reads as follows: “Counsel for the accused submitted that they have preferred revision before the Hon’ble High Court of Karnataka, against the order dated: 29.3.2012 and today the matter will come up for hearing and prays for FDT, granted. For FDT call on 10.12.2013 (underlining by me). 10. On 28.10.2013 the Order Sheet reads as follows: “Counsel for the accused submitted that they have preferred revision before the Hon’ble High Court of Karnataka, against the order dated: 29.3.2012 and today the matter will come up for hearing and prays for FDT, granted. For FDT call on 10.12.2013 (underlining by me). On 10.12.2013 the order sheet reads as follows: “In spite of giving sufficient time and accused have not produced any order passed by HC hence 30.12.2013. 11. On 30.12.2013 the order sheets reads as follows:- “For FDT time prayed by both sides on the ground that this case has to be transferred to Special Court i.e. Vth Addl Sessions Court, Gulbarga. Hence, for hearing and FDT call on 30.1.2014 and the matter was again adjourned to 6.2.2014 and thereafter to 4.3.2014. By proceedings dated 2.4.2014 the case was withdrawn and transferred to the court of Vth Addl. Dist. & Sessions Court, Gulbarga. Matter was adjourned to 7.4.2014. On 7.4.2014 case was again adjourned to 26.4.2014 and on 26.4.2014 it is recorded that CW1 to CW4 and CW10 are present and are bound over. Call on 14.5.2014. Thereafter the witnesses were present before the Court on the subsequent dates 14.5.2014, 10.6.2014, 10.7.2014, 2.8.2014, 16.9.2014. On 25.10.14 CW 1 & 9 were present and were bound over and the Court directed issuance of summons to CW 2 to 4 and CWs 6 to 8 and also to CW10 to 15 and also to CWs 16 to 21. 12. Curiously the order sheet records that on 5.11.2014 the Trial Court, suo motu taking cognizance of the order dated 29.3.2012 whereby the case came to be clubbed for common trial, was pleased to conclude that the provisions of the Cr.P.C. do not provide for clubbing of cases and hence trial will be conducted separately and in effect revised the earlier order dated 29.3.2012. 13. On 19.12.14 CW2 i.e. the victim was examined partly-in-chief as PW6 and exhibits P8, P8(a) and MO No. 1-4 were marked and bound over. On 20.12.2014 Examination in chief was fully completed and exhibits P9, P10, P9(a) and P10(a) were marked. The witness was not cross examined (victim) and the matter was adjourned to 23.12.14. On that day though PW5 and 6 were present, he was not cross examined and the matter was adjourned to 31.12.14. On 20.12.2014 Examination in chief was fully completed and exhibits P9, P10, P9(a) and P10(a) were marked. The witness was not cross examined (victim) and the matter was adjourned to 23.12.14. On that day though PW5 and 6 were present, he was not cross examined and the matter was adjourned to 31.12.14. On the said date CW12 was examined as PW7 and exhibits P11 and P11(a) were marked. Though PWs 5 & 6 were present, they were not cross examined. Cross examination was deferred at the request of the Counsel for the accused. On 7.1.2015 PW5 & 6 were present but cross examination were deferred and at the request of accused Counsel, adjourned to 13.1.2015. This scenario continued till 15.5.2015. On the said date A1 again changed his Counsel and vakalath came to be filed. A1 had also engaged another Counsel on 19.3.2015. 14. On 15.5.2015 PW5 i.e. the complainant was cross examined. After the cross examination, PW6, i.e. the victim, also cross examined by the Counsel for A1 & 2. The Counsels for the A3 and A4 prayed time and the witnesses were bound over to 5.6.2015 and then to 9.6.2015. It is recorded in the order sheet dated 5.6.15 that PWs 5 & 6 who were present sought time on the premise that they were not feeling well. On 9.6.2015 the applications under the provisions of Section 278 (1) and (2) and 327 (2) of Cr.P.C. came to be filed. Objections were filed to the applications on 12.6.2015 and the impugned order came to be passed on 16.6.2015. 15. The application under Section 278(1) and (2) of Cr.P.C. has set out in detail the alleged occurrences during the proceedings on 15.5.2015. The contents of paragraph 7 are extracted for the sake of convenience. During the course of the proceedings i.e. during the Laptop scene PW-6 expressed openly in the open Court in the presence of witnesses that, the Deposition is being recorded in an incorrect and unfair manner as per the dictation of the new Defence counsel (Sri. B. V. Pinto). The contents of paragraph 7 are extracted for the sake of convenience. During the course of the proceedings i.e. during the Laptop scene PW-6 expressed openly in the open Court in the presence of witnesses that, the Deposition is being recorded in an incorrect and unfair manner as per the dictation of the new Defence counsel (Sri. B. V. Pinto). When the said fact was bought to the notice of the Learned P.P. by the Complainant he uttered as under: VERNACULAR MATTER That, to show and reveal as to how the deposition of PW-6 during Cross examination was recorded incorrectly and in an unfair manner, the description of the same in question and answer form is stated as under: VERNACULAR MATTER Evidence incorrectly recorded as under :- VERNACULAR MATTER The evidence incorrectly brought on record by Sri. B. V. Pinto VERNACULAR MATTER PW6 got confused at this question and while she was in a brief pause before she could answer, the defence counsel Sri. B. V. Pinto straight away dictated unilaterally to the steno as under :- VERNACULAR MATTER -this statement was not brought on record which needs to be added in the said Para. VERNACULAR MATTER Wrongly dictated & recorded by Sri. B. V. Pinto VERNACULAR MATTER PW-6 Protested...... VERNACULAR MATTER In spite of the Protest made by the PW6 against the incorrect, illegal and unfair recording of evidence the learned counsel Sri. B. V. Pinto expressed as under: VERNACULAR MATTER 16. It is alleged in the application that during the cross examination of the victim one of the Counsels for the accused came out of the Court hall and collected a lap top bag from an unknown person and went inside the Court hall. It is alleged by the complainant/petitioner smelling foul play and mischief, he along with other witness forcibly entered the Court hall despite the peons protestations and submitted to the Court regarding the fact of the Counsels taking in the lap top bag. It is alleged by the complainant/petitioner smelling foul play and mischief, he along with other witness forcibly entered the Court hall despite the peons protestations and submitted to the Court regarding the fact of the Counsels taking in the lap top bag. This was denied by the defence Counsel and on the insistence of the petitioner and other witnesses, the bag was opened and it was found to be a lap top and at this juncture, A1 is said to have suddenly jumped out from the accused box and snatched the bag and run out of the Court and returned after handing it over to someone and during this commotion, it is alleged that the victim PW6 is alleged to have openly stated that the deposition is not recorded correctly and the things which were not stated by her are brought on record in an incorrect and unfair manner and about the intimidatory tactics being adopted by the new defence Counsel and that they came to know about the identity of the Counsel only after the adjournment of the Case in the fag end of the day i.e. in the evening hours. It is their case that the Counsel was not present when the proceedings commended and when the complainant/petitioner and other witnesses and parties ere asked to leave the Court room. It is alleged that the deposition of the victim in the course of cross examination was recorded as per the dictates of the defence Counsel and not as deposed by the witness it is also alleged that the defence Counsel not only tried to browbeat but snubbed her and misguided her stating that the deposition is to be recorded in the manner as is being done. To these specific allegations objections came to be filed by A1 alone. Other accused have not filed their objection. The objections are perfunctory and it contains no specific denial of the allegations made therein. 17. In sum and substance it was stated that as the application is not filed by the witness and it is filed by the complainant i.e. the father of the witness who is CW 1, the same cannot be entertained. The objections are perfunctory and it contains no specific denial of the allegations made therein. 17. In sum and substance it was stated that as the application is not filed by the witness and it is filed by the complainant i.e. the father of the witness who is CW 1, the same cannot be entertained. It is also contended that as per the provisions of Section 278 of Cr.P.C. the deposition of the witness must be read over to them and later if there is any correction in regard to typical mistakes the same can be corrected at the request of the witness and signed and this procedure has to be completed on the said date itself and the witness has affixed her signature without any further objection. It is contended that the witness cannot be permitted to resile from her statement in the name of corrections and since corrections as suggested by PW6 on 15.5.2006 have been carried out, the application is not maintainable. 18. It is contended by the petitioner that though the application in S.C. No. 58/2010 is not signed by the victim/witness, she has signed in the application preferred in S.C. No. 59/2010. That apart the victim/PW6 has preferred an affidavit before this Court. The said affidavit termed as affidavit for immediate purposes. In the said affidavit the victim has verbatim recounted the contents of the affidavit before the Trial Court. In the said affidavit it is also alleged that she resisted signing the deposition but on the intervention of the Learned Judge she affixed her signature with reluctance and also orally conveyed her protest to the contents and also correctness of the deposition. (underlining by me) 19. Heard the petitioner, who is party in person and the victim who is before the Court and the Learned Counsel for the respondent/accused. The petitioner would contend that there has been a manifest failure of justice and that the proceedings dated 15.5.2015 are a mockery and an abuse of the process of the Court. He would submit that the Trial Court has miserably failed in discharging its duty in ensuring a fair trial to discover the truth. Thus it has abdicated its responsibility by permitting the new defence Counsel to dictate the response of the witness during cross examination. He would submit that the Trial Court has miserably failed in discharging its duty in ensuring a fair trial to discover the truth. Thus it has abdicated its responsibility by permitting the new defence Counsel to dictate the response of the witness during cross examination. He would contend that the proceedings are contrary to the very spirit of the provision of Section 327(2) of Cr.P.C. He would submit that the legislature in its wisdom has mandated that trials in respect of offences under Section 376 etc. are to be conducted as, in-camera proceedings and that the proviso provides that as far as practicable, the Presiding Officer must be a women. He would submit that the said amendments have been introduced into the statute only in order to ensure free and congenial atmosphere to the witnesses, more especially the victim who has suffered a traumatic experience and also to ensure that there is no intimidation of the witness in such sensitive cases. He would also Point out that the provision for trial by the lady Judge is only to ensure that the witnesses are not intimidated by demeaning questions and gestures and thereby ensuring that the witnesses do not succumb to such intimidation and threats. He would also submit that the evidence was neither read over nor explained to the witness as is mandated by law. In fact he would refer to Karnataka Criminal Rules of Practise, 1968 Chapter-7 which states that after the recording of the evidence of a witness it must be read over or explained to him as required by (Section 360 of the Code) and it must be admitted by the witness to be correct, the Magistrate or Judge shall append a certificate to the effect that the deposition has been so read over or explained to the witness and was admitted by the witness to be correct. He would contend that the act of the Presiding Judge in allowing the defence Counsel to modulate and dictate the deposition of the witness has resulted in the entire proceedings of the cross-examination and a mock trial being reduced to a farce. He would contend that the act of the Presiding Judge in allowing the defence Counsel to modulate and dictate the deposition of the witness has resulted in the entire proceedings of the cross-examination and a mock trial being reduced to a farce. He would submit that the very intention behind it is to dilute the effectiveness of the deposition and that such an exercise is illegal and contrary to the provisions of Section 276 of Cr.P.C. which mandates that the evidence shall be taken down in writing either by the Presiding Judge himself or by his dictation in the open Court or under his direction or superintendence by an officer appointed by him in this behalf. He would further elaborate that the record of proceedings on 15.5.2015 was neither taken down by the Judge nor was recorded on his dictation or by any officer appointed by him. He would also state that despite the protestations by PW6, the Learned Judge omitted to make a memorandum thereon regarding the objections nor has he made any remarks as is deemed necessary. He would submit that the proceedings dated 15.5.2015 has occasion in he monumental failure of justice and is a gross abuse of the process of law and Court and the Learned Judge facilitated the same by abdicating his responsibilities. The learned Counsel for the petitioner would rely on the judgment of the Hon’ble Apex Court in Satyajit Banerjee And Others v. State of West Bengal and Others, (2005) 1 SCC 115 wherein the Apex Court has held that only in the extraordinary situation of the first trial being found to be a farce and a “mock trial” obtains, directions for retrial and recalling of witness and taking of additional evidence can be justified. He would further submit that the occurrences/developments during the proceedings on 15.5.15, especially during the cross examination of the victim is manifestly contrary to the procedure laid down in law and resulted in flagrant violation of law and consequent miscarriage of justice. 20. He would also rely on the judgment of the Hon’ble High Court of Kerala in Bhagavat Singh G. v. State of Kerala, LAWS (KER)-2008-10-13 which has been rendered in similar circumstances. 20. He would also rely on the judgment of the Hon’ble High Court of Kerala in Bhagavat Singh G. v. State of Kerala, LAWS (KER)-2008-10-13 which has been rendered in similar circumstances. A composite reading of the pleadings and affidavit of the victim would amply demonstrate that the evidence was neither read over nor explained to the witness, wherein the Court has elucidated on the Procedure to be adopted by the Courts while recording oral evidence and has held that the imposition under Chapter 7 Rule 7 of the Karnataka Criminal Rules of Practise mandating the Judge to append a certificate to the deposition recorded is mandatory and non-compliance of the same is fatal. The petitioner has also relied upon the judgment of the Hon’ble Apex Court reported in AIR 1980 SC 258 and another judgment rendered in Dhariwal Tobacco Products Ltd. And Others v. State of Maharashtra And Another, Crl.A. No. 2055 of 2007. The pronouncements cited above pertain to the exercise of inherent powers. It is contended by the petitioner that in the judgment reported in AIR 1980 SC 258 it has been held that there is no total ban on the exercise of inherent power where abuse of the process of the Court or other extraordinary situation excites the Courts jurisdiction. The limitation is self-restraint, nothing more. The same is the view expressed by the Apex Court in the case of Dhariwal Tobaco Products Ltd. And Others (supra). The petitioner would also rely on the judgment of Apex Court in 2004 (4) SCC 158 . He would draw the attention of this Court to the observations wherein it is held that the deficiencies in investigation or prosecution are to be dealt with an iron hand, appropriately within the framework of law. Judicial criminal administration should be kept clean beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards of the type prohibited by the constitution. It was a case where the public perception about the quality of credibility by the public prosecutor and the role of investigating agency are perfunctory and not impartial. The Apex Court observed in para 51 the need for circumspection while invoking the provisions of Section 311 and relied upon its own pronouncements in the case of Rajendra Prasad v. Narcotic Cell, Crl. The Apex Court observed in para 51 the need for circumspection while invoking the provisions of Section 311 and relied upon its own pronouncements in the case of Rajendra Prasad v. Narcotic Cell, Crl. A No. 2055 of 2007, wherein it was held that no party in a trial can be for foreclosed from correcting errors. In paragraph 54 the Court was pleased to hold, though justice is depicted to be blind folded it is only a veil not to see who the party before it is while pronouncing judgment and the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the Court away from the truth of the cause or his before it, in disregard to its duty to prevent miscarriage of justice. 21. In the sense the Apex Court has held that one of the primary duties of the Court is to prevent miscarriage of justice. It is further argued that such indifference or lethargy or inaction on the part of the Courts taking action would result in erosion of the faith of the general public in the judicial system, ultimately destroying the very justice delivery system of the country itself and that doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings. 22. He would also draw the attention of the Court to the conclusion of the Apex Court that the task of the Court is not merely to act as a tape recorder but to get at the truth. And that the greater duty upon the Court is to render justice and prevent making a mockery of criminal justice administration itself. 23. The petitioner has also relied upon a judgment reported by the Apex Court reported in (2004) 4 SCC 158 . It is argued that the scale must be held even between the prosecution and the accused. He would also draw the attention of this Court to the contents of Paragraphs 36, 38, 43, 46 and 55 and would emphasise and impress upon this Court that the purpose of and the role of the Presiding Judge in the trial should be the search for truth. 24. Per contra, Learned Counsel for the respondent would submit that a witness cannot be permitted to resile from the statement under the guise of correction. 24. Per contra, Learned Counsel for the respondent would submit that a witness cannot be permitted to resile from the statement under the guise of correction. In this regard he would rely upon die judgment rendered by the High Court of Kerala in 2015 (l) Crimes 543 (Ker.) wherein the court has reiterated the fact that duty is cast on the Presiding Officer to read over the deposition and same to be recorded by the Presiding Officer at the foot of the deposition and then obtain the signature of the persons (underlining by me) and in the said case after appending the signature the petitioner later found certain omission and mis-recording of his/her statement and moved an application for his/her re-examination, which the Court held is impermissible in law. It held once the signature is affixed by the witness without objecting to the recording, he/she is estopped from challenging the contents of the same and in that he is required to exercise his option at the first opportunity before signing the deposition. 25. He has also relied upon the judgment of Supreme Court reported in AIR 1989 SC 1785 wherein the Apex Court has held that the provision of Section 278 cannot be invoked to enable a witness to resile from his statement under the guise of correction of testimony and further relied on the order of this Court in Criminal Petition No. 9115/2009 where the Court has been pleased to castigate the complainant, petitioner herein on the complaint of the accused that he is not co-operating in the trial and that the Court has not shown interest in leading evidence. The petitioner would object and submit that he is not arrayed as a party. The respondent would also rely on another petition i.e. Crl. P. No. 200237/2014 wherein it has hauled up the Court and observed that it is unfortunate to notice that the Learned Sessions Judge instead of holding trial on a day-to-day basis is holding trial on year-to-year basis. Yet again it is seen that the petitioner is not arrayed as a party. The respondent Counsel would state if the corrections as suggested in the affidavit is carried out, it would cause enormous damage to the case of the accused. Yet again it is seen that the petitioner is not arrayed as a party. The respondent Counsel would state if the corrections as suggested in the affidavit is carried out, it would cause enormous damage to the case of the accused. Apart from stating he has not demonstrated as to what is the prejudice that would be caused he would submit that the petitioner, who is the father of the victim is in the habit of getting emotionally charged and has often created ruckus during the proceedings. He would support the impugned order and canvass its correctness. 26. He would submit that the procedure under Section 278 has been correctly followed. He would submit that the evidence has been read over and that the witness suggested 4 to 5 corrections which has been carried out by the Court and the corrected copy was signed (underlining by me). He would also point out that the application is not filed by the witness and that the application has been filed as an after thought. In that PW5 complainant cannot seek the re-trial at all. He would further submit PW6 having signed the deposition, she is estopped from resiling and that the witness is not an illiterate person. He would submit that he has no objection in respect of the other application preferred under Section 327(2) of Cr.P.C. He would pray that the trial be permitted to continue by rejecting the application under Section 278 of Cr.P.C. 27. In reply to the contentions on behalf of the respondent/accused, the complainant would reiterate that the bullying and intimidation of the witness is illegal. The dictation of the answers by the defence Counsel is illegal. That the Court abdicated its duty and allowed the particular defence Counsel to dictate the Court proceedings. He would further point out that the witness objected on the very same day but was compelled to affix her signature by the Learned Judge. He would further state that it is not a case of the witness from resiling the statement or seeking corrections but a case of disputing the correctness of the recording of the deposition (underlining by me). He would submit that the witness has signed this application before the Trial Court and by oversight she has not affixed her signature in S.C.58/2010 and he would also request the Court for permission to amend the prayer seeking for denovo trial. He would submit that the witness has signed this application before the Trial Court and by oversight she has not affixed her signature in S.C.58/2010 and he would also request the Court for permission to amend the prayer seeking for denovo trial. 28. In response to this, the Learned Counsel for the respondent would submit that, it is permissible only if the transferee Judge is of such an opinion. The Learned HCGP would simply support the impugned order. Sri. Avinash, Learned Counsel for respondent No. 1, would state that he is adopting argument advanced on behalf of the other respondents. 29. Crl. P. 200710/2009, arising out of the applications, filed under Sections 278 (1) & (2) and 327(2) and Crl. P. 200709/2009 arising out of the applications filed under Section 327(2) of Cr. P.C, are taken up together with the consent of the Learned Counsel and parties as similar contentions are urged and similar legal issues are required to be adjudicated as the investigation is pursuant to the complaint arising out of Crime No.31/2006 though subsequently the investigating authorities have preferred separate charge sheets. There is also an order of the Trial Court dated 29.3.2012 whereby it has been ordered for clubbing of the cases by prayer made by prosecution and it has been reversed unilaterally by the Trial Court by its order dated 6.11.2014. The correctness of that order reviewing and over ruling of the earlier order directing common trial is not pressed in this petition but is recounted here merely as a pointer to the approach and attitude of the Trial Court during the proceedings. 30. The party-in-person before this Court, in sum and substance, is complaining of abdication of duty by the Presiding Officer of the Court. A reading of the application before the Trial Court would demonstrate that in essence the complaint is against the manner and method in which the proceedings were conducted by the Judge of the Trial Court on 15.5.2015. 30. The party-in-person before this Court, in sum and substance, is complaining of abdication of duty by the Presiding Officer of the Court. A reading of the application before the Trial Court would demonstrate that in essence the complaint is against the manner and method in which the proceedings were conducted by the Judge of the Trial Court on 15.5.2015. The crux of the allegation is that the Judge allowed the proceedings to be hijacked by the defence Counsel and thereby failed in complying with the mandatory provisions of Sections 276 & 278 of the Cr.P.C. The provision of sub-Section (1) of 276 of Cr.P.C. mandates that the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Presiding Judge himself or by his dictation in open Court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. Sub-Section (2) provides that the evidence may be taken down in the form of a narrative, but the Presiding Judge may, in his discretion take down or cause to be taken down, any part of such evidence in the form of the question and answer. 31. This Court is required to examine if the mandate under sub-Section(1) has been complied with. 32. In paragraph 7 of the application and in paragraph 8 of the affidavit submitted by the victim (who was cross examined on the eventful day) it has clearly detailed the question that was asked, answer that was given by the witness and the modulated version which was dictated by the defence Counsel and recorded as deposition of the witness. A perusal of the perfunctory objection filed on behalf of AI does not demonstrate even a semblance of a denial of the contents of paragraph 7 of the application. Even the impugned order, which is mainly based on the technical objections raised by the accused, does not reflect any consideration of the allegations. The impugned order merely recounts the grounds of objections stating that the application is beyond the scope of Section 278 of Cr.P.C. and has reasoned that the Court has no power to delete the evidence which is objected as not tendered by the particular witness. The impugned order merely recounts the grounds of objections stating that the application is beyond the scope of Section 278 of Cr.P.C. and has reasoned that the Court has no power to delete the evidence which is objected as not tendered by the particular witness. It has reasoned that the application is liable to be rejected because the evidence was read over to the witness and she accepted the correctness of the same by affixing signature to the same and as the application is not moved by the witness herself, it is liable to be rejected. 33. Thus what could be inferred from the impugned order is that the only reasoning on which the application is rejected is, on the ground that it is not preferred by the witness. The impugned order leaves much to be desired to say the least. 34. The approach of the Trial Court, in considering and adjudicating the serious allegations, which are not only directed against the defence Counsel but also against the Court itself in a very casual manner is unacceptable. The reading of the impugned order amply demonstrates that the Trial Judge has omitted to pass a considered and speaking order and it is not known if the omission is deliberate or unintended. Though the application is filled with specific and serious allegations which virtually cast a shadow on the functioning of the said Judge, he has deemed it proper or convenient to ignore the allegations while passing the impugned order and disposing of the same. The allegations if true substantiate the complaint of flagrant violation of procedures as mandated by law. It is also indicative of the abdication of the duty cast upon the Court. The Trial Court has merely considered the provisions of Section 278 of Cr.P.C. and has omitted to consider the implications of its failure to comply with the mandate of the provisions of Section 276 of Cr.P.C. 35. A mandate is clearly cast upon the Court and judge in particular to take control of the proceedings particularly with regard to the examination of the witnesses in such class of cases and stipulates the three modes only for accomplishing it i.e. either by himself writing it down or on his dictation in open Court or recording of the same by any officer of the Court appointed by him specifically in this regard. 36. 36. In the case on hand the specific complaint is, that the responses of the witness or the deposition of the witnesses in cross examination were dictated by the defence Counsel and the same has been recorded as proceedings of the Court. This allegation has neither been denied by the defence nor has the Court endeavored to ascribe a reasoning which would in effect falsify the contentions. The provisions of Section 276 having mandated 3 modes of recording of the deposition and in the facts and circumstances of the case this Court is constrained to accept or rather believe the contention on behalf of the petitioner that the recording of the proceedings is in violation of the mandate under the provisions of Section 276(1). This has virtually resulted in a flagrant violation of the law and to the prejudice of the victim. The failure of the Trial Court to address itself to the allegations cannot be condoned, as it constitutes a serious breach of law, and casts a doubt in the mind of this Court regarding its impartiality. 37. The apprehension in the mind of this Court is not without substance. A perusal of the record of proceedings more particularly the order sheet rings alarm bells. The order sheet discloses that, pursuant to the Order dated 29.2.2012, it is recorded that the accused after a lapse of nearly a year are said to have represented to the Trial Court on 4.4.2013 that they intend to prefer a revision before the High Court against the order for common trial. This submission on 4.4.2013 is preceded by another order dated 8.3.2013 which records as under: “For hearing regarding as to whether this case and SC No. 59/10 have to be tried separately and for FDT call on 4.4.2013”. The order sheet does not indicate as to who made the submission or which Counsel was instrumental in provoking the thought process of the Court. It is also not stated as to whether the Court is empowered in law to review the earlier order of the Court directing common trial. The Trial Court on every subsequent date of hearing had been granting time to the accused to approach and seek orders from the High Court and the impasse continued for several months. It is also not stated as to whether the Court is empowered in law to review the earlier order of the Court directing common trial. The Trial Court on every subsequent date of hearing had been granting time to the accused to approach and seek orders from the High Court and the impasse continued for several months. The record of proceedings as reflected in the order sheet indicate that the reasons for adjournment are the reasons given by the Counsel for the accused. On 30.8.13 the Counsel for the accused submitted that they have not preferred any revision. On 27.9.13 it is recorded that the accused Counsel have submitted before the Court that on that day they are preferring revision. Subsequently on 28.10.13 the order sheet reflects the submission by the Counsel that they have indeed preferred revision before the Court on the said date i.e. on 28.10.13 and the matter will be coming up for hearing and sought time. On 10.12.13 the Trial Court records that in spite of giving sufficient time and opportunities, accused have not produced any order from the High Court. Thereafter on 2.4.14 the case was transferred to the V Addl. Dist. & Sessions Court, Gulbarga and thereafter the order sheet does not reflect anything about the filing of the cases before the High Court. On a query from this Court to the respondent Counsel as to whether any revision has in fact been preferred, it is answered by the Counsel for first respondent that no revision has been preferred and when the Court asked as to how and why submissions were made otherwise before the Court, the Counsel pleaded ignorance and stated that he was not aware of the contents of the order sheet and that neither he nor any other Counsel had sought for time on the basis of preferring revision petition and he would further suggest that the order sheet is maintained by the Court and hence they are not answerable/responsible for the entries/contents therein. To say the least this response is not only shocking but indicative of a deeper malaise. It is relevant to note that the Counsels here are the Counsels appearing before the Trial Court. It is seen that as narrated supra the order sheet reveals that the witnesses were present before the Court on several dates. But this Court in Crl. To say the least this response is not only shocking but indicative of a deeper malaise. It is relevant to note that the Counsels here are the Counsels appearing before the Trial Court. It is seen that as narrated supra the order sheet reveals that the witnesses were present before the Court on several dates. But this Court in Crl. P. No. 200237/2014 dated 19.8.2014 has been pleased to castigate the Trial Judge for holding the trial on a year to year basis rather on a day-to-day basis. This Court thereafter has directed the case to be decided on merits within a period of 6 months. This order is relied upon by the respondent Counsel to demonstrate their bonafides and to establish their innocence with regard to the daily orders recorded in the order sheet pertaining to a filing of the revision petition. 38. It is seen that the examination in chief of the PW6 (victim) was completed way back on 20.12.2014 but the accused failed to cross examine her for a period of 5 months. In fact examination in chief commenced on 19.12.2014 and ultimately on 15.5.2015 the new defence Counsel filed his vakalath and commenced cross examination, which is the proceedings, this day has become the subject matter of the lis before this Court. 39. The contention on behalf of the respondent and the reasoning of the Court holding that the evidence was read over and explained to the witness and thereafter it was signed by the witness is seriously assailed. In fact in ground No. 6 it has been asserted that the deposition was not read over by the witness by the Court below and in ground No.8 they have assailed the finding of the Court below in the impugned order (at page 17 of the Petition) that the same was read over and explained to the witness as one which is totally and palpably false, misleading and incorrect. 40. To adjudicate the assertion and counter assertions the parties were directed to place the copy of the deposition before the Court. Accordingly the copy of the deposition dated 15.5.2015 was furnished to this Court. A perusal of the deposition more particularly the cross examination dated 15.5.2015 would show that no certificate has been appended certifying the fact that the evidence has been read over to the witness in the presence of the accused. Accordingly the copy of the deposition dated 15.5.2015 was furnished to this Court. A perusal of the deposition more particularly the cross examination dated 15.5.2015 would show that no certificate has been appended certifying the fact that the evidence has been read over to the witness in the presence of the accused. This again constitutes a serious infraction of the law as mandated by the provisions of Section 278 of Cr.P.C. Even assuming for a moment that the allegations of the petitioner are kept aside and if the allegation is examined in isolation with the material on record and Sections 278 (1) & (2) of Cr.P.C whether it falsifies the allegations of the petitioners, the answer is no. In fact, the impugned order maintains a deathly silence about the allegations of protestations regarding the incorrect recording. The only inference that could be drawn from the impugned order is that there was no protestation by the witness and that the evidence was recorded without any hindrance or objections and that the witness has signed admitting the correctness of the recording but the pleading in the objection to the application casts a doubt and forces this Court to disbelieve the version and assertion in the impugned order. The reason being the admission by the accused in paragraph 3 of the objection statement wherein it is stated that certain corrections were pointed out by PW6 i.e. the victim and the said corrections were carried out and thereafter accepting the same, she has signed the deposition sheet without any objection. This assertion is neither reflected in the order nor considered by the Trial Judge. 41. The provisions of Section 278 (2) of Cr.P.C. demands that the Presiding Judge make a memorandum thereon regarding objection made to it, and shall add such remarks as it is necessary. The admission of the accused regarding carrying out correction goes to demonstrate the fact that all is not well in the conduct of proceedings. The other factor which influences the thinking of this Court is the subsequent conduct of the Presiding Judge. The admission of the accused regarding carrying out correction goes to demonstrate the fact that all is not well in the conduct of proceedings. The other factor which influences the thinking of this Court is the subsequent conduct of the Presiding Judge. The Presiding Judge has by letter dated 24.8.2015 requested for transfer of the cases to some other Court on the ground that the complainant i.e. the petitioner, the father of the victim, has expressed doubt regarding the recording of the depositions by him and hence it is not proper on his part to proceed with the trial of the said cases. He has also charged this petitioner of pressurising the Court to record such evidence which is not concerned to the charge of the case and that the complainant/petitioner is disturbing the in-camera proceeding by entering into Court hall and shouting and that he is not at all cooperating with the conduct of the trial. 42. This Court is unable to appreciate the high moral ground adopted by the Learned Trial Judge. It is not the case of the Learned Trial Judge that he was ignorant of the pleading in the application. The allegations are clearly directed against him i.e. rather his failure to control the proceedings or rather conducting the proceedings/examination under his guidance and superintendence. Had the Learned Trial Judge requested for transfer without considering or passing orders on the application, the recusal sought could have been better appreciated. But he has chosen to pass the impugned order and that too in a very casual manner and has there after sought for transfer of the cases to some other Court. This fact of request of transfer was brought to the notice of this Court by the Counsels upon a query as to why the case was transferred, the information has been provided by the Registry. A perusal of the letter addressed by then Learned Judge clearly vindicate the assertion of the petitioner with regard to the happenings on the said date rather this Court is inclined to lean towards the assertions of the petitioner on account of a perusal of the letter of the Learned Trial Judge. In his request letter, he has narrated that the complainant is entering the Court hall during in-camera proceedings and he is shouting and is not co-operating with the conduct of the trial. In his request letter, he has narrated that the complainant is entering the Court hall during in-camera proceedings and he is shouting and is not co-operating with the conduct of the trial. None of this is forthcoming in the impugned order though it is specifically averred in the application. As noted above, the order sheet reveals that the witnesses, including the petitioner, have been present before the Court on all dates. The order sheet does not disclose the said facts as set out in the representation by the Learned Judge. On the other hand the very same facts have been pleaded and asserted by the petitioner. The allegation against the petitioner in the letter is also admitted by the petitioner, but he has detailed the reason which provoked him to resort to such methods. The letter speaks volumes and does not inspire the confidence of this Court, with regard to the manner in which the proceedings have been conducted and the legality of the impugned order. In view of the above factual aspects alone, the plea of the petitioner and the victim requires to be accepted by this Court with regard to the conduct of the proceedings more especially with regard to the several adjournments on the ground of filing revision petition (non existing) and the answer given by the Counsels for the respondents before this Court that they are unaware. It does not bode well nor does it augur well as regards the sanctity and sustainability of the impugned order or the impartiality of the Court. 43. The Apex Court in the judgment reported (2012) 9 SCC 408 has distinguished and laid down the law as regards fair trial and speedy trial. The qualitative difference between the same has been brought out in detail and it has further held that the right of the accused for speedy trial cannot be allowed to dent the public confidence in justice delivery system and it is to be ensured that serious crimes do not go unpunished. The social impact of crime in question is also a relevant factor. It has further held that the supremacy of justice is to be preserved. It has further held that fair trial is an absolute right but a speedy trial is a relative right. The Supreme Court in that circumstances was pleased to order re-trial. The social impact of crime in question is also a relevant factor. It has further held that the supremacy of justice is to be preserved. It has further held that fair trial is an absolute right but a speedy trial is a relative right. The Supreme Court in that circumstances was pleased to order re-trial. But it has also been pleased to warn the Courts to be on guard and it has also held the retrial or denovo trial is warranted in exceptional case and such power should not be exercised in a routine manner. It has further held that the demand for justice must be the hall mark of the Appellate Courts order directing retrial. It has been pleased to observe that though it is the duty of the Court to ensure that the accused gets a fair trial but it must also ensure no person goes scot free. It was also pleased to examine the adverse impact of undeserved acquittal on public confidence. It has also reiterated the principle the right of a criminal to justice. 44. As is seen in the case on hand the Trial Judge has abdicated its duty and responsibility to ensure a fair trial. The abdication is apparent and is amply demonstrated by the vigour and specific nature of the un-rebutted allegations, virtually rendering the trail to farcical levels and making a mockery of the justice delivery system. The allegations against the accused are of serious nature and are a crime against the society and not just the victim girl. The crimes are of the nature which shocks the conscience of the common man which is further compounded by the inept handling (deliberate or otherwise) of the proceedings by the Learned Judge. If the impugned order is allowed to stand it would render the trial to a farce and would only embolden manipulators and the violators of law. As laid down by the Hon’ble Apex Court ensuring of public confidence in the justice delivery system and more particularly in the institutions of Courts is of paramount importance. If the impugned order is allowed to stand it would render the trial to a farce and would only embolden manipulators and the violators of law. As laid down by the Hon’ble Apex Court ensuring of public confidence in the justice delivery system and more particularly in the institutions of Courts is of paramount importance. Apart from the legal importance as pointed out above with regard to the mandate imposed by the provisions of Section 276 and 278(1) and (2) of the Cr.P.C. and as also that of the provisions of the Karnataka Criminal Rules of Practise, 1968 and keeping in view the facts and circumstances of this Case, this Court is of the considered opinion that the impugned order warrant interference at the hands of this Court. 45. Hence, as observed by the Apex Court technicalities cannot come in the way of rendering substantial justice and ensuring fair play in the delivering of justice as it is not enough if justice is done but it must also appear to have been done. The facts and circumstances of the case do not inspire this Court that justice appears to have been done. In fact on the contrary this Court is of the considered opinion that the proceedings before the Trial Court has resulted in miscarriage of justice and an abuse of the process of the Court and which if allowed to stand would set-at-naught the efforts of the State to assure and secure justice not to the victim herein but also to such similarly placed victim and maintain the public confidence in the justice delivery system and the impartial efforts of the investigating authorities. In the opinion of this Court the trial has been reduced to a farcical and mock trial. 46. Hence, the following: ORDER (i) Criminal Petitions are partly allowed; (ii) The impugned orders are set-aside and the applications are partially allowed. (iii) The Trial Court is directed to recall/summon PW6 (victim) and conduct retrial to the limited extent of cross examination of the PW6 afresh. The Trial Court is directed to eschew the record of proceedings pertaining to cross examination of PW6 on behalf of the accused Nos. 1 to 2 dated 15.5.2015 from its consideration and in the disposal of the above cases. (iv) The Trial court is directed to permit the mother & sister of the victim PW6 to be present during in-camera proceedings. 1 to 2 dated 15.5.2015 from its consideration and in the disposal of the above cases. (iv) The Trial court is directed to permit the mother & sister of the victim PW6 to be present during in-camera proceedings. Criminal Petitions are partly Allowed.