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2023 DIGILAW 321 (KAR)

Narayana Das v. Papanna

2023-02-24

S.VISHWAJITH SHETTY

body2023
JUDGMENT/ORDER 1. Having regard to the similitude of facts and the question of law involved in these cases and also taking into consideration that all the cases arise out of a common incident, these six revision petitions are clubbed, heard together and disposed of by this common order. 2. Heard the learned Counsel for the petitioners and the learned Amicus Curiae for the respondents. 3. The respondent/complainants had filed three separate private complaints against the appellants herein alleging that the petitioners/accused had committed the offence punishable under Sec. 500 IPC. It is their specific case that accused no.1 (Narayana Das) was the News Reporter and accused no.2 (Kalavida Vishnu) was the Editor and Publisher of Kannada Weekly Newspaper - Kannada Tilaka which was published from Malur. It was alleged in their complaint that a news article which was published in the aforesaid weekly newspaper dtd. 12/6/2000 as per Ex.P-1 contained the defamatory article, wherein it was stated that the complainants were indulged in land grabbing and in the institutions run by the complainants, admission was not given to students belonging to Scheduled Caste and Scheduled Tribe and the article also narrated about the maladministration of the educational institutions by the complainants. 4. After receipt of the complaints, the jurisdictional Magistrate had recorded the sworn statement of the respective complainants and after taking cognizance of the alleged offence has proceeded further and three separate cases were registered against the accused in C.C.Nos.285/2000, 286/2000 & 287/2000. Upon receipt of summons in the said proceedings, accused persons had appeared before the learned Magistrate and they did not plead guilty. The complainants in order to establish their case had examined themselves as PW-1 and also examined another witness as PW-2 and got marked the newspaper in which the alleged defamatory article was published as Ex.P-1. Accused no.2 had led the defence evidence and also got marked certain documents in support of his defence. The Trial Court, thereafter, heard the arguments on both sides and by three separate judgment and order dtd. 23/5/2009 convicted the accused for the alleged offence. Being aggrieved by the said judgment and order of conviction passed in the aforesaid three cases, accused no.2 had filed Crl.A.Nos.12 to 14 of 2009 before the Court of Principal Sessions Judge, Kolar, while accused no1. had filed Crl.A.Nos.16 to 18 of 2009. The learned Principal Sessions Judge, by judgment dtd. 23/5/2009 convicted the accused for the alleged offence. Being aggrieved by the said judgment and order of conviction passed in the aforesaid three cases, accused no.2 had filed Crl.A.Nos.12 to 14 of 2009 before the Court of Principal Sessions Judge, Kolar, while accused no1. had filed Crl.A.Nos.16 to 18 of 2009. The learned Principal Sessions Judge, by judgment dtd. 18/7/2014 had dismissed the aforesaid six criminal appeals filed by the accused and it is in this factual background, the accused persons are before this Court in these revision petitions. 5. Learned Counsel appearing for the petitioners submits that the Trial Court as well as the Appellate Court had erred in convicting the accused for the alleged offence. They submit that the Trial Court had recorded a common plea and a common statement under Sec. 313 Cr.PC which is not permissible in law. They submit that because of the defective trial, the order of conviction passed by the courts below cannot be sustained. Learned Counsel for accused no.1 submits that there is absolutely no material to show that accused no.1 was the reporter of the defamatory article which was published in the newspaper at Ex.P-1. He submits that the courts below only on the basis of the statement under Sec. 313 Cr.PC have recorded a finding that accused no.1 was the reporter of the said news article. Learned Counsel for the petitioners also submitted that since the complaint is of the year 2000, this is not a fit case for remand to hold a denova trial as the petitioners/accused have already suffered for the last nearly 23 years, and accordingly, they pray to allow the revision petitions. 6. Per contra, learned Amicus Curiae appearing on behalf of the respondent/complainants does not dispute that recording of common plea and common statement under Sec. 313 Cr.PC is bad in law and the same will prejudice the case of the accused persons. However, he submits that the petitioners have not been able to point out the prejudice that is caused to them because of the defective trial, and he accordingly, prays to dismiss the revision petitions. 7. I have carefully considered the arguments addressed on both sides and also perused the material available on record. 8. The petitioner-accused were tried before the Trial Court for the offence under Sec. 500 IPC. 7. I have carefully considered the arguments addressed on both sides and also perused the material available on record. 8. The petitioner-accused were tried before the Trial Court for the offence under Sec. 500 IPC. Undisputedly, the cases registered against the petitioners before the Trial Court are summons case. After service of summons in the said cases, petitioners had appeared before the Court and the petitioners did not plead guilty. Sec. 228 of Cr.PC provides for recording the plea in cases which are tried by the Sessions Court, whereas Sec. 240 of Cr.PC provides for recording plea by the Court in warrant cases. Sec. 251 of Cr.PC provides for recording the plea in summons case. 9. From the reading of the aforesaid provisions of law, it is clear that under Ss. 228 & 240 Cr.PC, the Court is required to frame the charge and read over it and explain the same to the accused person and accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. However, in respect of summons case, the framing of charge is not necessary and in summons case, when the accused appears or is brought before the Court, the accusation against him is required to be put forward to him by the Magistrate and the Magistrate is required to ask whether the accused pleads guilty or has any defence to make. 10. In the present case, the Magistrate has recorded common plea of both the accused persons. The accused persons in these cases do not stand on the same footing. Accused no.1 is allegedly the reporter of the defamatory article, while accused no.2 is the Editor and Publisher of the newspaper at Ex.P-1, in which the defamatory article was published. In so far as accused no.2 is concerned, there is a presumption against him under Sec. 7 of the Press and Registration of Books Act, 1867 (for short, 'the Act'), which is not available against accused no.1. The burden is completely on the complainant to prove his case against accused no.1, whereas in case of accused no.2 it is not so in view of Sec. 7 of the Act. The accusation as against accused nos.1 & 2 in these cases, therefore, cannot be common, and therefore, the learned Magistrate in any event, could not have recorded a common plea. The accusation as against accused nos.1 & 2 in these cases, therefore, cannot be common, and therefore, the learned Magistrate in any event, could not have recorded a common plea. Even otherwise, while recording the plea, the learned Magistrate is required to record the same individually and common recording of the plea is always likely to prejudice the defence of the accused and the trial is likely to be rendered defective. 11. It is also seen that the learned Magistrate has recorded the common statement of both accused under Sec. 313 Cr.PC. Even this procedure followed by the learned Magistrate is bad in law. Sec. 313 of Cr.PC provides for examining the accused by the court and this can be done at any stage of the case. The principles of following natural justice is embedded in this provision of law and this is an important stage of trial, wherein an opportunity is being given to the accused to explain the circumstances appearing in the evidence against him. Therefore, common statement of the accused persons under Sec. 313 Cr.PC cannot be recorded. In a case where there are many accused, each of the accused persons may have a separate explanation to offer, and therefore, in the event of recording a common statement under Sec. 313 Cr.PC, the case of the accused is likely to be prejudiced. 12. In the case of VAIJINATH VS STATE OF KARNATAKA - ILR 1993 KAR 543, the Division Bench of this Court has held that recording of joint statement of the accused persons under Sec. 313 Cr.PC is bad in law and the same amounts to non- compliance of the mandatory requirement of Sec. 313 Cr.PC which would vitiate the order passed by the Trial Court. 13. Similarly, in the case of VENKATESHAPPA VS STATE OF KARNATAKA (Crl.A.No.1424/1998 disposed of on 11/7/2001), the Division Bench of this Court has reiterated the law laid down in Vaijinath's case supra and has held that recording of joint statement under Sec. 313 Cr.PC is not permissible. 14. In the case of EMPEROR VS. BALKRISHNA ANANT HIRLEKAR AND OTHERS - ILR (1931) 55 BOM 356, the Bombay High Court held that if there are several accused, the Magistrate must examine each accused separately; if he records the statements of all the accused collectively, the trial is vitiated and the conviction must be set aside. 15. 14. In the case of EMPEROR VS. BALKRISHNA ANANT HIRLEKAR AND OTHERS - ILR (1931) 55 BOM 356, the Bombay High Court held that if there are several accused, the Magistrate must examine each accused separately; if he records the statements of all the accused collectively, the trial is vitiated and the conviction must be set aside. 15. In the case of STATE OF KARNATAKA VS SHARANAHALLI REVANNA & OTEHRS - 1997(2) KantLJ 374, the Division Bench of this Court has observed as under: ".....Though we do accept the position that the provisions of Sec. 313 Cr. P.C. must be strictly complied with and that if the Trial Court breaches those provisions and there is even the possibility of prejudice or injustice occurring to the accused that it would vitiate the verdict, we do not agree that in each and every case a de novo trial is the only solution. In our considered view if the error has taken place at the end of the trial it is unnecessary for the Trial Court to go through the entire exercise of re- recording the evidence and the appeal Court could as well direct the correct recording of the Sec. 313 statement and a re-consideration of the case from that stage onwards. 3. Mr. Chandrasekharaiah at this stage submitted that there is one pre-dominant consideration which this Court must take into account viz., the question as to whether any useful purpose would be served through a remand either total or partial at this late stage. He has demonstrated to us that if there is a total remand, that the Court will have to consider whether at all on the facts of the present case which do not represent a very serious state of affairs, it is desirable to burden the Trial Court with the exercise of re-hearing the entire matter. We are conscious of the fact that the incident is six years old and that this being a criminal trial if there is any divergence in the evidence between the last occasion and the present one and more importantly if due to the lapse of time as is most likely, the witnessness are unable to fully and correctly recall the incident, that the entire operation would be an exercise in futility. 4. 4. Having regard to the principles that govern the aspect of remand particularly in criminal cases, we are inclined to uphold the submission canvassed by Mr. Chandrasekhariah though the learned Additional SPP has submitted that they should be left to the Trial Court insofar as if the evidence is either forthcoming or is unsatisfactory that the Trial Court will take an appropriate decision, out this Court should not anticipate such a possibility. Where the offences are extremely serious and where it is necessary that a miscarriage of justice should not result due to some default, it is most essential that merely because of technical or procedural defects, the accused should not get the benefit and that justice should correctly be done. Where, if the incidents are not of much seriousness and where a long period of time has elapsed and it is also on record that the accused have one faced the trial and have obtained a verdict in their favour, in our considered view it would not be appropriate particularly after the lapse of 6 to 7 years to burden the Trial Court with a re-trial. It does not require very much of speculation to anticipate as to what the result of the entire operation would be, insofar as it would be almost impossible to expect that sufficiently clear and cogent evidence could come forward at this late stage. Even if we were to direct that the statement under Sec. 313 were to be correctly recorded and the matter were to be re-decided, on the stage of the present record we do not visualise any other verdict. 5. Having regard to the totality of these considerations, we are of the view that the remand is contra-indicated in this case and that it would be futile. Under these circumstances even though we have upheld the objections canvassed virtually on both sides, we hold that no useful purpose would be served by prolonging this litigation. In this view of the matter, we are not inclined to disturb the order of acquittal recorded in favour of the respondents accused. The appeal fails and stands disposed of." 16. Under these circumstances even though we have upheld the objections canvassed virtually on both sides, we hold that no useful purpose would be served by prolonging this litigation. In this view of the matter, we are not inclined to disturb the order of acquittal recorded in favour of the respondents accused. The appeal fails and stands disposed of." 16. In the aforesaid judgment, the Division Bench has held that compliance of Sec. 313 Cr.PC is mandatory and common statement of the accused cannot be recorded and refused to remand the matter to the Trial Court on the ground that the accused had already faced the trial and it may not be appropriate to burden the Trial Court to hold re-trial after a lapse of 6 to 7 years. 17. In the present case, the complaints were filed in the year 2000 and already 23 years have lapsed by now. The advocate for the respondent-complainants in all these revision petitions was throughout absent, and therefore, this Court had no other option but to appoint learned Counsel Sri A.N.Radha Krishna as Amicus Curiae for the purpose of assisting the Court. This would go to show that the complainants themselves are not interested in prosecuting the case. In addition to the same, the accused have been held guilty and convicted by the Trial Court principally on the basis of the statement under Sec. 313 Cr.PC and the Trial Court observed that accused no.1 has admitted in his Sec. 313 statement that he was the author of the defamatory article. A perusal of the statement under Sec. 313 Cr.PC recorded in these cases do not disclose that accused no.1 admitted that he was the author of the defamatory article, and on the other hand, he has only said that the contents of the article are true and correct. 18. The impugned judgment and order of conviction and sentence passed by the courts below are liable to be set aside for non-compliance of the requirement of Sec. 251 Cr.PC and Sec. 313 Cr.PC as the entire trial is rendered defective having regard to non-compliance of the aforesaid mandatory provisions of law. 18. The impugned judgment and order of conviction and sentence passed by the courts below are liable to be set aside for non-compliance of the requirement of Sec. 251 Cr.PC and Sec. 313 Cr.PC as the entire trial is rendered defective having regard to non-compliance of the aforesaid mandatory provisions of law. Though in normal circumstances, this Court would have set aside the impugned judgment and order of conviction and sentence passed by the courts below and remanded the matter to the Trial Court to proceed further in accordance with law, having regard to the lapse of time, nature of evidence available on record and also considering the fact that the complainants themselves are not interested in prosecuting these cases, I am of the considered view that this is not a fit case for remand. Accordingly, the following order: 19. The revision petitions are allowed. The judgment and order of conviction and sentence dtd. 23/5/2009 passed by the Trial Court in C.C.Nos.285/2000, 286/2000 & 287/2000 and the judgment and order dtd. 18/7/2014 passed by the Appellate Court in Crl.A.Nos.12 to 14, 16 to 18 of 2009 are set aside. The petitioners are acquitted of the offence under Sec. 500 IPC. 20. The services of learned Counsel Sri A.N.Radha Krishna as Amicus Curiae is appreciated and his fee is fixed at Rs.15, 000.00.