Karnataka High Court

Shri. Girimalla vs The State Of Karnataka on 24 February, 2021

Author: K.Natarajan

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

  DATED THIS THE 24th DAY OF FEBRUARY 2021

                        BEFORE

       THE HON'BLE MR.JUSTICE K. NATARAJAN

   CRIMINAL REVISION PETITION NO. 100008/2021
 c/w CRIMINAL REVISION PETITION NOs.100010/2021,
      100011/2021, 100012/2021, 100013/2021


IN CRL.RP NO.100008 OF 2021

BETWEEN

1 . SHRI. RUDRAPPA
S/O. YALLAPPA TEGUR,
AGE. 47 YEARS, OCC. COOLIE,
R/O. PALMBHAVI, TQ. JAMAKHANDI,
DIST. BAGALKOT-587110

2 . SHRI. SUDIR
S/O. SHIVAPPA DEVANNAVAR @ HANAGANDI
AGE. 31 YEARS, OCC. COOLIE,
R/O. MUGALKHOD, TQ. RAIBAGH,
DIST. BELAGAVI-587110
                                          ...PETITIONER
(BY SRI. HEMANTHKUMAR L HAVARAGI, ADV,)

AND

THE STATE OF KARNATAKA
TERDAL POLICE STATION,
TERDAL, R/BY STATE PUBLIC PROSECUTOR
                             2




HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD-580001
                                              RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND
SET ASIDE ORDER OF DISMISSED FOR NON-PROSECUTION ORDER
DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND
SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A.
NO.40/2015 AND JUDGMENT DATED 10/04/2015, PASSED BY CIVIL
JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.196/2009, FOR
OFFENCES PUNISHABLE U/S 379 R/W 34 OF IPC. IN SO FAR AS
PETITIONERS ARE CONCERNED.



IN CRL.RP NO.100010 OF 2021

BETWEEN

SHRI. SUDIR
S/O. SHIVAPPA DEVANNAVAR @ HANAGANDI
AGE. 31 YEARS, OCC. COOLIE,
R/O. MUGALKHOD, TQ. RAIBAGH,
DIST. BELAGAVI-587110
                                              ...PETITIONER
(BY SRI. HEMANTHKUMAR L HAVARAGI, ADVOCATE)

AND

THE STATE OF KARNATAKA
TERDAL POLICE STATION, TERDAL,
R/BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD-587110
                                              RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)
                             3




     THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND
SET ASIDE ORDER OF DISMISSED FOR NON-PROSECUTION ORDER
DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND
SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A.
NO.42/2015 AND JUDGMENT DATED 10/04/2015, PASSED BY CIVIL
JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.198/2009, FOR
OFFENCES PUNISHABLE U/S 379 R/W 34 OF IPC. IN SO FAR AS
PETITIONER IS CONCERNED.


IN CRL.RP NO.100011 OF 2021

BETWEEN


 SHRI. GIRIMALLA
S/O. LAXMAN DEVANNAVAR @ HANAGANDI
AGE. 29 YEARS, OCC. AGRICULTURE,
R/O. MUGALKHOD, TQ. RAIBAGH,
DIST. BELAGAVI-587110
                                            ...PETITIONER
(BY SRI. HEMANTHKUMAR L HAVARAGI, ADV.)

AND

THE STATE OF KARNATAKA
TERDAL POLICE STATION, TERDAL,
R/BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD-587110
                                             RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND
SET ASIDE THE DISMISSED FOR NON-PROSECUTION ORDER
DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND
                             4




SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A.
NO.36/2015 AND JUDGMENT DATED 10/04/2015, PASSED BY CIVIL
JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.199/2009 FOR
OFFENCES U/S 379 R/W 34 OF IPC.



IN CRL.RP NO.100012 OF 2021

BETWEEN

SHRI.GIRIMALLA
S/O. LAXMAN DEVANNAVAR @ HANAGANDI
AGE. 29 YEARS, OCC. AGRICULTURE,
R/O. MUGALKHOD, TQ. RAIBAGH,
DIST. BELAGAVI-587110
                                            ...PETITIONER
(BY SRI. HEMANTHKUMAR L HAVARAGI, ADV.)

AND

THE STATE OF KARNATAKA
TERDAL POLICE STATION, TERDAL,
R/BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD-580001
                                             RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND
SET ASIDE ORDER OF DISMISSED FOR NON-PROSECUTION ORDER
DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND
SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A.
NO.39/2015 AND JUDGMENT DATED 10/04/2015, PASSED BY CIVIL
JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.198/2009,
O/P/U/S.379 R/W 34 OF IPC, IN SO FAR AS PETITIONER IS
CONCERNED.
                             5




IN CRL.RP NO.100013 OF 2021

BETWEEN

SHRI. GIRIMALLA
S/O. LAXMAN DEVANNAVAR @ HANAGANDI
AGE. 29 YEARS, OCC. AGRICULTURE,
R/O. MUGALKHOD, TQ. RAIBAGH,
DIST. BELAGAVI-587110
                                             ...PETITIONER
(BY SRI.HEMANTHKUMAR L HAVARAGI, ADV.)

AND

THE STATE OF KARNATAKA
TERDAL POLICE STATION, TERDAL,
R/BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD-587110.
                                              RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND
SET ASIDE ORDER OF DISMISSED FOR NON-PROSECUTION ORDER
DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND
SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A.
NO.38/2015 AND JUDGMENT DATED 10/04/2015,O/P/U/S.379 R/W
34 OF IPC PASSED BY CIVIL JUDGE AND JMFC COURT, BANAHATTI
IN C.C.NO.196/2009.

     THESE PETITIONS COMING ON FOR ORDERS THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
                                     6




                               ORDER

Though these matters came up for suspension of sentence,

with the consent of both the counsel appearing for the petitioners

and the learned High Court Government Pleader, the cases were

heard finally.

2. Accused No.2(Sri.Girimalla) filed Criminal Revisions

Petition Nos.100008/2021, 100012/2021 and 100013/2021,

accused Nos.1 and 4 (Sri.Rudrappa and Sri Sudir) filed and Criminal

Revision Petition No.100008/2021 and accused No.3 (Sudir) filed

Criminal Revision Petition No.100010/2021 against the order of

dismissal of the appeals filed by the petitioners for non-prosecution

by the learned I Additional District and Sessions Judge, Bagalkot,

sitting at Jamakhandi, in Criminal Appeal Nos.40/2015, 38/2015,

36/2015, 39/2015 and 42/2015 vide order dated 10/04/2015

(hereinafter referred as the 'first appellate Court') on the judgment

passed in CC Nos.196/2009, 199/2009, 198/2009 vide order dated

18.06.2018 by the learned Civil Judge and JMFC, Banahatti

(hereinafter referred as the 'trial Court').

3. Heard the argument of the learned counsel for the

petitioner and the learned High Court Government Pleader and

perused the records.

4. The case of the petitioners before the trial Court is that

the Terdal Police filed charge sheet against the accused persons 1

to 4 for the offence punishable under Sections 379, 357 read with

Section 34 of the Indian Penal Code and three cases were

registered in CC Nos.196/2009, 199/2009 and 198/2009. After

trial, the trial Court convicted the accused persons and sentenced

them to undergo imprisonment for six months for the offence under

Section 379 read with Section 34 of IPC in all the cases. Assailing

the same, the accused filed appeals before the first appellate Court

in Criminal Appeal Nos.40/2015, 38/2015, 36/2015, 39/2015 and

42/2015 which were dismissed for non-prosecution for the absence

of the appellant's counsel. Assailing the same, the

petitioners/accused have preferred these revision petitions.

5. Learned counsel for the petitioner contended that the

first appellate Court committed an error in dismissing the appeals

filed by the petitioners for non-prosecution. The first appellate

Court was required to re-appreciate the evidence on record and

could have disposed of the appeals on merits. Dismissal of the

appeal for non-prosecution is bad in law. At least the first appellate

Court could have appointed an Amicus Curiae to represent the

accused and later could have disposed of the matter on merits.

Therefore, the first appellate Court committed an error in

dismissing the appeals for non-prosecution. Hence, prayed for

setting aside the order of dismissal and sought for remanding the

matters.

6. Per contra, learned High Court Government Pleader

submits that the matter could be remanded to the first appellate

Court for disposal on merits.

7. Upon hearing the arguments addressed by the learned

counsels for the petitioners and the learned Government Pleader

and on perusal of the records, the point that arises for my

consideration is

Whether the first appellate Court committed error in dismissing the appeals for non-prosecution and calls for interference?

8. It is not in dispute that the accused persons faced trial

before the JMFC, Banahatti, and they have been charge sheeted for

the above said offence and the trial Court has convicted the

accused and assailing the same, the accused preferred appeals

before the first appellate Court which came to be dismissed for non-

prosecution due to the absence of the counsel which is against the

provisions of Cr.P.C. as well as the liberty granted to the accused

persons under the Constitution of India. As already stated, learned

Government Pleader fairly admitted that dismissal of the appeals

for non-prosecution could not have been passed by the first

appellate Court, as it has to re-appreciate the evidence on record

and dispose of the appeals on merit.

9. On perusal of the order sheet of the first appellate Court

which is produced by the petitioners' counsel it reveals that the first

appellate Court took up the matter on 18.06.2018 and held that

there was no representation since from one year and the appeal is

of the year 2015 and the learned counsel for the appellants failed to

address arguments in spite of sufficient opportunities given and

accordingly, dismissed the appeal for non-prosecution.

10. On perusal of the order under revision, I am on the

considered opinion that the first appellate Court committed an error

in dismissing the appeals for non-prosecution. The first appellate

Court was required to re-appreciate the evidence on record and

disposed of the matter on merits. But it cannot be dismissed for

non-prosecution merely because the counsel was not present and at

least the first appellate Court ought to have issued notice to the

accused intimating non-appearance of the counsel in the matter or

could have appointed an Amicus Curiae to represent the accused

and thereafter could have heard the appeals and disposed of the

matter on merits. The dismissal of the appeals by the first

appellate Court for non-prosecution is illegal and against the

principles laid down by the Hon'ble Supreme Court in the case of

Bani Singh Vs. State of U.P. reported in 1996(5) Supreme 455

wherein the Hon'ble Supreme Court has held as under:

" Held: the plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of

Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of t he appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by t he trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record.

Further Held: The law excepts the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be

given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so."

11. In view of the principles laid down by the Hon'ble

Supreme Court and even on perusal of Sections 303 and 304 of

Cr.P.C., the first appellate Court has not chosen either to issue

notice to the accused or appointed any Amicus Curiae for disposing

of the matter on merits. But committed an error and illegality in

dismissing the appeals for non-prosecution which is against the law

and the same is liable to be set aside. Accordingly, the matter

require to be remanded back to the first appellate Court for

disposing of the matter on merits.

12. Accordingly, I pass the following order:

The Criminal Revision Petitions are allowed. The order of

dismissal passed by the learned I Additional District and Sessions