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2024 DIGILAW 239 (KAR)

Sayed Buranuddin v. Syed Ahamad

2024-03-21

C M JOSHI

body2024
ORDER : C M Joshi, J. This revision petition is filed against the order passed by the First Appellate Court in Crl.A.No.29/2020 dated 21.10.2021 whereby the appeal came to be dismissed on the ground that the State has not been made a party to the appeal. 2. The factual matrix of the case are that a complaint was filed alleging that on 02.01.2005 the accused had entered the land of the complainant and collected the Toor crop and loaded the same into a Lorry and had taken away the crop dishonestly and thereby they had committed the offence under Section 379 of IPC. The valuation of the crop was made at Rs. 9,000/-. After the investigation, the Investigating Officer has filed the charge-sheet. The charge was framed and the 11 witnesses were examined before the Trial Court and Ex.P.1 to 12 were marked. After recording the statement of the accused under Section 313 of Cr.P.C., the Trial Court came to the conclusion that the charge is not proved and therefore, passed a judgment of acquittal. 3. Being aggrieved by the said judgment, the complainant had filed an appeal before the learned Sessions Judge in Crl.A.No.29/2020. In the said appeal, the State was not made a party, but only the accused were made party. By the impugned order dated 21.01.2021, the learned II Additional District and Sessions Judge, Basavakalyan passed the following order:- "Appellant and his counsel called out absent. No representation is made. The present appeal is filed under Section 372 of Cr.P.C. being aggrieved by the order of acquittal passed by the Trial Court in C.C.No.99/2007 for the offence punishable under Section 34 of IPC. In the said case Basavakalyan Town Police filed charge sheet against the accused for the offence punishable under Section 379 of IPC. The Trial Court i.e., Civil Judge and JMFC, Basavakalyan acquitted the accused by judgment dated 07.02.2020. The present appeal is filed by the complainant challenging the said acquittal order against the accused Nos. 1 and 2. But the State is not party to the present appeal. The relief claimed by the appellant in the present case is to set aside a acquittal judgment and to remand the case to the Trial Court for further investigation and further trial for providing opportunity to examine all the witnesses and to decide the case afresh. 1 and 2. But the State is not party to the present appeal. The relief claimed by the appellant in the present case is to set aside a acquittal judgment and to remand the case to the Trial Court for further investigation and further trial for providing opportunity to examine all the witnesses and to decide the case afresh. But in the present appeal since the State is not party and hence this Court is of the view that the appeal is not maintainable. With this observation appeal is dismissed as not maintainable." 4. It is not in dispute that the criminal case was arising out of a charge-sheet which has been filed by the Investigating Officer i.e., Basavakalyan Town Police Station. Therefore, the State was a necessary party in the said appeal. It is evident that if the Court comes to the conclusion that the State is also a necessary party to the appeal, it could have directed the appellant to implead the State as a party or even could have directed the public prosecutor to take notice for the State. The appeal could not have been dismissed by the Trial Court without directing the appellants to make the State as party and even if the appellants do not make the State as a party, nothing prevented the First Appellate Court to issue notice to the public prosecutor to make his submissions. The First Appellate Court being a Court of facts, dismissal of appeal on technical grounds cannot be approved for any reason. Therefore, the impugned order is prima-facie not sustainable under law. Consequently, the revision petition deserves to be allowed. Hence, the following; ORDER I. The Revision Petition is allowed. II. The impugned order dated 21.10.2021 passed by the First Appellate Court is hereby set-aside. III. The matter is restored to the file of the First Appellate Court. The registry is directed to intimate this order to the First Appellate Court forthwith.