Anwar vs State By Thunganagar Police ...
2021 Latest Caselaw 6999 Kant

                          1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 22ND DAY OF DECEMBER, 2021

                    BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO.1236/2012

BETWEEN
1 . ANWAR
    S/O PAILWAN DASTAGIR
    AGED ABOUT 28 YEARS
    OCC:COOLIE

2 . MANSOOR @ PAWN KING
    S/O PAILAWAN DASTAGIR
    AGED ABOUT 31 YEARS
    OCC:COOLIE

3 . SYED MANSOOR
    S/O SYED YOUSUF
    AGED ABOUT 33 YEARS

4 . KRISHNAMURTHY @ KITTI
    S/O H N SRINIVASA
    AGED ABOUT 31 YEARS

   ALL ARE RESIDING AT
   MUTHINAKOPPA
   BIG STREET, N R PURA TALUK
   CHIKKAMGALUR DISTRICT-577102
                                   ...PETITIONERS
(BY SRI NATARAJ DONKENNANAVAR FOR SRI PRUTHVI
WODEYAR, ADVOCATES)
                                2


AND

STATE BY THUNGANAGAR POLICE STATION
SHIVAMOGGA
REPRESENTED BY SPP
BANGALORE-01
                                                ...RESPONDENT
(BY SRI. VINAYAKA V.S, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED:22.10.12
PASSED BY THE P.O., FTC-III, SHIVAMOGGA IN
CRL.A.NO.890/11 AND ORDER DATED:18.10.11 PASSED
BY THE III ADDL.C.J., AND JMFC, SHIVAMOGGA IN
C.C.NO.299/10.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                           ORDER

Heard Sri Nataraj Donkennanavar, learned counsel

representing Sri Pruthvi Wodeyar, for the Revision

Petitioners and Sri V.S.Vinayaka, learned High Court

Government Pleader for the respondent - State and

perused the records.

2. This Revision Petition is filed by the accused,

who suffered an order of conviction in C.C.No.299/2010 on

the file of the III Additional Civil Judge and JMFC,

Shivamogga by Judgment dated 18.10.2011 whereby they

have been convicted for the offences punishable under

Sections 279, 337 and 338 of IPC and Section 3(1) read

with Section 181 of IMV Act read with Section 71(A) of the

Karnataka Forest Act, which was confirmed in Criminal

Appeal No.890/2011, on the file of the Fast Track Court -

III, Shivamogga by judgment dated 22.10.2012.

2. Brief facts of the case are as under:

The case of the prosecution is that on 05.06.2009 at

about 7.30 p.m., forest officers by name Nagaraj and

others were on patrolling duty. The accused persons were

traveling in a Maruthi Omni bearing No.KA-43-M-270 did

not hear to the signals given by the forest officials and

drove the said maruthi van in a rash and negligent

manner. On suspicion about the non hearing to the signal

and driving the maruthi van in a haphazard manner, forest

officials chased the car and intercepted the same and

stopped it. On stopping the said maruthi omni car, and on

search, the forest officials found 5 logs of wood being

illegally transporting in the maruthi omni car. There was

no licence to carry the wood logs in the maruthi omni car

and as such, the forest officials sealed the same as illegal

timber and seized the same along with the car and drafted

a mahazer as per Ex.P1. There afterwards, proceedings

were initiated against the accused persons. After thorough

investigation, the jurisdictional Police filed charge sheet

against the accused persons for the aforesaid offences.

3. The presence of the accused persons were

secured before the learned Magistrate and charge was

recorded. Accused persons pleaded not guilty and as such,

trial was held.

4. In order to prove the case of the prosecution,

prosecution in all examined 7 witnesses as PWs.1 to 7 and

relied on 9 documentary evidence which were marked and

exhibited as Exs.P1 to 9.

5. On conclusion of the prosecution evidence,

accused statements as contemplated under Section 313

Cr.P.C were recorded, wherein accused persons denied all

the incriminatory circumstances found in the prosecution

evidence. However, accused persons did not place their

version on record by examining themselves or by placing a

written submission as is contemplated under Section

313(5) Cr.P.C.

6. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

and sentenced as under:

"The accused no.4 shall pay a sum of Rs.1,000/- for the offence punishable uls.279 of L.P.C. In default, he shall undergo Simple Imprisonment for a period of 45 days.

The accused no.4 shall pay a sum of Rs.500/- for the offence punishable u/s.337 of 1.P.C. In default, he shall undergo Simple Imprisonment for a period of 15 days.

The accused no.4 shall pay a sum of Rs.1,000/- for the offence punishable u/s.338 of I.P.C. In

default, he shall undergo Simple Imprisonment for a period of one month.

The accused no.4 shall pay a sum of Rs.500/- for the offence punishable u/s.3(1) r/w Sec.181 of I.M.V.Act. In default, he shall undergo Simple Imprisonment for a period of 15 days.

The accused no.1 to 4 shall go Simple Imprisonment for a period of Eighteen Months for the offence punishable u/s 379 of IPC r/w Section 71(A) of Karnataka Forest Act."

7. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.890/2011.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Thereafter, the accused

persons are in this Revision Petition.

8. In the Revision Petition, the following grounds

are raised:

¾ "That both the Courts below have passed the impugned judgment of conviction and sentence without appreciating the oral and documentary evidence on record.

¾ The impugned judgment of conviction and sentence passed by both the courts below are illegal, arbitrary, contrary to law and the reasons assigned therein are perverse.

¾ That both the courts below have passed the impugned judgment of conviction and sentence relying on the evidence of CW1 to CW4, without considering the fact that CW1 to CW4 are none other than the officials of Forest Department.

¾ That both the courts below erred in passing the impugned judgment of conviction and sentence without appreciating the fact that CW1 & CW2 subsequent to seizer of the property and the Maruthi Van involved in the said alleged offence have not complied with the mandatory requirement provided U/Sec. 62(3) of the Karnataka Forest Act 1963, which mandates strict compliance.

¾ That both the courts below erred in passing the impugned judgment of conviction and sentence without considering the fact that CW1 & CW2

have acted contrary to Sec. 71A of the Karnataka Forest Act by producing the appellants, seized properties before the Police Officials, wherein Sec. 71-A of the act mandates that subsequent to seizure, without any officer authorized by the State Government in this behalf by notification in the official gazette, not below the rank of an Asst. Conservator of Forest.

¾ That both the courts below erred in passing the impugned Judgment and conviction and sentence without appreciating the fact that, the prosecution has failed to establish their defence / case of accident and also has failed to prove the incident by examining the independent witness CW6 the cyclist.

¾ That both the courts below erred in passing the impugned judgment and conviction and sentence without considering the discrepancy in the evidence of the witnesses, wherein CW1 the complaint in his complaint has stated that at the time of the incident apart form CW1 & CW2 no other persons were present, but on the contrary PW3 in his statement dtd:6.6.2009 has stated that at the time of the incident along with CW1 & CW2, PW3 & 4 other persons were present.

¾ That both the courts below erred in passing the impugned judgment and conviction and sentence without considering the discrepancy in the evidence of the witnesses, wherein CW1 the complaint in his complaint has stated that behind the bus there was Maruthi Van, but PW2 in his statement and evidence has very categorically stated that there was no vehicle behind the bus the time when the bus was being checked by CW1 at the check post.

¾ That both the courts below erred in passing the impugned judgment and decree by considering the evidence of PW2, who has stated that after 30 minutes of the incident, the ambulance came near the spot and after sending the cyclist in the ambulance, they same near the Maruthi Van i.e. after 45 minutes of the incident and found that appellant 1 to 3 where still sitting in the van along with 5 wooden logs, which cant be believed and accepted at any point of time because according to the case of the prosecution nobody and nothing prevented the appellants herein to run away or play the vehicle from the spot within that 45 minutes".

Reiterating the above grounds, Sri. Nataraj

Donkennanavar, learned counsel for the Revision

Petitioners vehemently contended that both the Courts

have not properly appreciated the materials on record and

wrongly convicted the accused persons resulting in

miscarriage of justice and thus, sought for allowing the

Revision Petition. Alternatively, he further contended that

in the event this Court maintaining the order of conviction,

the Court may consider the grant of probation as

admittedly the Revision Petitioners are the first time

offenders and sought for allowing the Revision Petition to

that extent.

9. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that the forest official did not possess any previous enmity

of animosity against the accused so as to falsely implicate

the accused persons in the case. He also points out that

when the hand signals were made by the forest officials,

the accused persons did not stop the maruthi omni car

wherein they were illegally transporting the wood

logs/timber and being suspicious about the same, the

forest officials have chased the omni car and intercepted

the same and catch hold of the accused persons. He also

contended that since the accused persons were caught red

handed with the seized timber as is found in photographs

Exs.P2 and P3, are the ingredients to attract the offence

alleged against he accused stands proved and therefore,

prayed for dismissal of the Revision Petition.

10. Insofar as alternate plea is concerned, learned

High Court Government Pleader contends that if such

perpetrators claim is allowed partly by showing lenience,

the same would encourage the similarly situated

perpetrators of the crime and therefore, sought for

dismissal of the Revision Petition.

11. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused persons are guilty of the offences punishable under Sections 279, 337 and

338 IPC and Section 3(1) read with Section 181 of IMV Act read with Section 71(1) of K.F.Act, which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

12. In the case on hand, the interception of

maruthi omni car by the forest officials on 05.06.2009

stands established by placing necessary oral and

documentary evidence on record. Admittedly, the car

contains 5 timbers as is found in Exs.P2 and P3. There is

no dispute that the same was seized by the forest officials

on the date of the incident. The very fact that the seized

timbers were being transported in the maruthi car without

a proper licence, the forest officials were justified in

treating the same as illegal timber and seized the same. In

the absence of any proper explanation offered by the

accused, all ingredients to attract the offences alleged

against the accused persons as referred to supra stands

established by placing necessary oral and documentary

evidence on record. Further, there is no explanation

offered for the incriminatory circumstance found in the

case of the prosecution by the accused persons at the time

of recording the accused statements or by examining

themselves as the witnesses. Under such circumstances,

the learned trial Magistrate rightly concluded that the

accused persons are guilty of the offences as aforesaid and

passed an order of sentence. Learned Judge in the First

Appellate Court rightly re-appreciated the materials

available on record and concurred with the findings

recorded by the learned trial Magistrate and therefore, this

Court is of the considered opinion that there is no legal

infirmity or perversity in reaching out such a finding by the

learned trial Magistrate confirmed by the First Appellate

Court. Accordingly, point No.1 is answered in the negative.

13. Insofar as sentence is concerned, admittedly,

the accused persons are the first time offenders.

Therefore, the learned trial Magistrate ought to have taken

note of grant of probation as per the following dictums of

the Hon'ble Apex Court:

i. In the case of Chandreshwar Sharma v. State

of Bihar reported in (2000) 9 SCC 245 at paragraph

No.3, it is held as under:

"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the

Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed.

Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Cr.P.C. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief

Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

ii. In the case of Gulzar v. State of M.P reported in

(2007) 1 SCC 619, it has been held as under:

"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such

significant differences could not be intended to co- exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable".

However, the learned trial Magistrate failed to consider the

grant of probation. Unfortunately, the First Appellate Court

also did not bestow its attention on to the said aspect of

the matter. Accordingly, a case is made out by the

Revision Petitioners being the first time offenders to find

out the feasibility of granting probation. The incident is of

the year 2009 and only for the purpose of getting the

report from the Probation Officer, if the matter is remitted

to the trial Court, the same would render a futile exercise.

Accordingly, this Court is of the considered opinion that if

the accused persons are directed to execute a bond in a

sum of Rs.50,000/- each with one surety for the likesum to

the satisfaction of the trial Court, which shall be in force

for a period of two years for their good behavior and

ordered to pay fine of Rs.25,000/- each, would meet the

ends of justice. Accordingly, point No.2 is answered and

pass the following:

ORDER

i. Criminal Revision Petition is allowed-in-part.

ii. While maintaining the order of the conviction of the accused persons for the offence punishable under Sections 279, 337 and 338 of IPC and Section 3(1) read with Section 181 of IMV Act read with Section 71(A) of the Karnataka Forest Act, accused persons are directed to execute a bond in a sum of Rs.50,000/- each with one surety for the likesum to the satisfaction of the trial Court, which shall be in force for a period of two years for their good behaviour and ordered to pay fine of Rs.25,000/- each inclusive of

fine already imposed by the trial Magistrate on or before 31.01.2022.

iii. It is made clear that any violation of the bond condition or non-payment of the fine amount as aforesaid, the order of the learned trial Magistrate confirmed by the First Appellate Court stands automatically restored.

Office is directed to return the trial Court records with copy of this order, forthwith.

Sd/-

JUDGE

KA*