Karnataka High Court

Puvith vs Manju on 17 March, 2022

Bench: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 17TH DAY OF MARCH, 2022         R
                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

         CRIMINAL REVISION PETITION NO.1261/2017

BETWEEN:

PUVITH
S/O GURUSWAMY
AGED ABOUT 26 YEARS
AGRICULTURIST
R/O B.CHOWDENAHALLI VILLAGE
DANDIGANAHALLI
CHANNARAYAPATNA-573 116.                  ... PETITIONER

             (BY SRI ASHOK N. NAIK, ADVOCATE)

AND:

1.     MANJU
       S/O MARIGOWDA
       AGED ABOUT 30 YEARS
       R/AT B. CHOWDENAHALLI
       DANDIGANAHALLI HOBLI
       CHANNARAYAPATNA TALUK-573 116.

2.     SHANKARA
       S/O. AMASEGOWDA
       AGED ABOUT 38 YEARS
       R/AT B.CHOWDENAHALLI
       DANDIGANAHALLI HOBLI
       CHANNARAYAPATNA TALUK-573 116.
                           2



3.   CHANDREGOWDA @ CHANDRA
     S/O. RANGEGOWDA
     AGED ABOUT 38 YEARS
     R/AT B. CHOWDENAHALLI
     DANDIGANAHALLI HOBLI
     CHANNARAYAPATNA TALUK-573 116.


4.   DINESHA S/O. RAJANNA
     AGED ABOUT 28 YEARS
     R/AT B. CHOWDENAHALLI
     DANDIGANAHALLI HOBLI
     CHANNARAYAPATNA TALUK-573 116.


5.   SWAMY
     S/O. SIDDEGOWDA
     AGED ABOUT 33 YEARS
     R/AT B. CHOWDENAHALLI
     DANDIGANAHALLI HOBLI
     CHANNARAYAPATNA TALUK-573 116.


6.   RAGHU
     S/O. RANGEGOWDA
     AGED ABOUT 31 YEARS
     R/AT B. CHOWDENAHALLI
     DANDIGANAHALLI HOBLI
     CHANNARAYAPATNA TALUK-573 116.


7.   STATE BY
     CHANNARAYAPATNA RURAL POLICE
     REPRESENTED BY SPP
     HIGH COURT OF KARNATAKA
     BENGALURU-560 001.                ... RESPONDENTS

         (BY SMT. RASHMI JADHAV, HCGP FOR R7;
       SRI PRATHEEP K.C. ADVOCATE FOR R1 TO R6)
                                 3



     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF THE 4TH ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT, DATED
10.10.2017 IN CRL. APPEAL NO.228/2016.

    THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 10.03.2022 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:

                           ORDER

This Revision Petition is filed under Section 397 of Cr.P.C.,

challenging the judgment and order dated 10.10.2017 passed in

Crl.A.No.228/2016 by the IV Additional District and Sessions

Judge, Hassan District (Sit at Channarayapattana), questioning,

set aside the judgment passed by the Trial Court on remanding

the matter for fresh consideration and pass such other orders as

this Hon'ble Court deems fit in the circumstances of the case.

2. The factual matrix of the case of the prosecution is

that the accused persons by forming an unlawful assembly with

a common object to commit the offences on 14.04.2013 at 8:00

p.m, in the coconut garden land of P.W.1 - Guruswamy at B.

Chowdenahalli Village and in prosecution of such object abused

P.Ws.1, 5, 2, 3 and 7 and assaulted them. P.W.2 had sustained

the grievous injuries and others have sustained simple injuries

and gave criminal intimidation. Hence, based on the complaint,

P.W.9 registered the crime. P.W.10, investigated the matter and

filed the charge-sheet; the same is numbered as

C.C.No.1222/2013 against the respondents herein and tried after

securing their appearance. The Trial Court considering the

evidence of PWs.1 to 11, documents - Exs.P1 to P6 and three

material objects i.e., MOs.1 to 3, convicted respondent Nos.1 to

6, herein.

3. Being aggrieved by the order of conviction, the

respondents herein have filed Crl.A.No.228/2016. The Appellate

Court considering the judgment of this Court in the case of

State of Karnataka, by Circle Inspector of Police v. Hoskeri

Ningappa and another reported in ILR 2012 KAR 509, was

comes to the conclusion that when a case and counter case are

registered ought to have been disposed of simultaneously by the

same Judge and the same has not been done. Hence, set aside

the judgment of conviction passed in the criminal case and

directed to decide the said case along with counter case in

C.C.No.1378/2013 in accordance with the decision in Hoskeri

Ningappa's case (supra). Hence, the present revision petition is

filed before this Court contending that the very order impugned

is not in accordance with the judgment in Hoskeri Ningappa's

case (supra). The Appellate Court had not applied his mind and

failed to take note of the fact that during the course of whole

trial; the accused in that case never took the defense and

insisted for simultaneous disposal of the case and counter case.

4. The learned counsel appearing for the petitioner

would vehemently contend that during the course of trial, the

accused side even not suggested the witness, who have been

examined regarding pending of counter case and also not cross-

examined the witnesses on the point of aggressor. In 313

statement accused side not stated anything about the counter

case and even not confronted any documents pertaining to the

counter case. The learned counsel also would vehemently

contend that the judgment in Hoskeri Ningappa's case (supra),

referred by the Appellate Court, is not applicable to the facts of

the case on hand. This Court in the said judgment categorically

held that under Section 465(2) of Cr.P.C., not violates disposal

of the case. It is contended that earliest point of time not raised

the said objection and kept quiet deliberately and took up the

said argument for the first time before the Appellate Court.

5. Per contra, the learned counsel appearing for

respondent Nos.1 to 6 would submit that it is not in dispute that

two cases are registered; the police have investigated the

matters and filed the charge-sheets; one was filed in the year

2014 and another was filed in the year 2015. The learned

counsel also would submit that the charges were framed based

on the different charge-sheets filed. Further, the learned counsel

would contend that the same APP was in-charge while framing

the charges in both the cases. P.W.1 was examined in the year

2015. The learned counsel also would submit that in the cross-

examination of PWs.1 and 2, a suggestion was made that a case

and counter case are registered and both of them are admitted

in the cross-examination. The learned counsel also would

submit that in page - 13 of the Trial Court judgment discussed

with regard to the case and counter case and the same is within

the knowledge of the Trial Court. When such being the factual

aspects of the case, the Trial Court ought not to have passed

any judgment and ought to have considered both the matters

simultaneously and the same has not been done.

6. The learned counsel in support of his arguments

relied upon the order passed by this Court in the case of Mustaq

Ahmed and others v. State of Karnataka in Criminal Appeal

No.353/2011 (D.D.25.09.2018), wherein, this Court also

referred the judgment of Hoskeri Ningappa's case (supra), set

aside the judgment and remitted the matter to the Sessions

Court to consider both the matters together.

7. The learned counsel also relied upon the order

passed by this Court in the case of Mansoor and others v. The

State of Karnataka and another in Criminal Petition

No.1461/2018 (D.D. 01.06.2018), wherein also, this Court

set aside the judgment and remitted the matter for fresh

consideration referring the judgment of Hoskeri Ningappa's

case (supra).

8. The learned counsel also brought to the notice of this

Court the judgment passed by this Court in the case of State of

Karnataka, by Circle Inspector of Police v. Hoskeri

Ningappa and another reported in ILR 2012 KAR 509.

9. The learned counsel also relied upon the judgment of

the Apex Court in the case of State of M.P. v. Mishrilal (dead)

and others reported in (2003) 9 SCC 426, and contend that

the Apex Court also in the earlier judgment held that in the case

and cross cases before the Court should be tried together by the

same Court irrespective of the nature of the offences involved.

10. The learned counsel also relied upon the order

passed by this Court in the case of Munibyregowda and

others v. The State by Hoskote Police Station in Criminal

Appeal No.1338/2007 (D.D. 21.03.2013), wherein also,

referring the judgment of Hoskeri Ningappa's case (supra), set

aside the order, remanded the matter and brought to the notice

of this Court paragraph Nos.8 and 9 of this judgment.

11. The learned counsel, in reply to the arguments of the

learned counsel for the petitioner, in his arguments, he

vehemently contend that this Court in Hoskeri Ningappa's case

(supra), categorically held that where the irregular procedure

adopted by the Trial Court has caused prejudice to the accused

and has occasioned failure of justice, the proceeding and the trial

vitiates. Otherwise, the proceedings are protected under Section

465 of the Code. The learned counsel would vehemently

contend that disposal of the matter altogether different cannot

vitiate the proceedings. Hence, the very order passed by the

Appellate Court is not sustainable in the eye of law and the order

passed by the Sessions Judge remanding the matter requires to

be set aside.

12. Having heard the respective learned counsel and also

on perusal of the material available on record, the points that

would arise for the consideration of this Court are:

(i) Whether the Appellate Court was committed an error in setting aside the order passed by the Trial Court and remanding the matter to the Trial Court to consider both the cases together

and simultaneously dispose of the said matters since both the cases are case and counter cases?

(ii) What order?

Point No.(i):

13. Having heard the respective counsel and on perusal

of the material available on record, it is not in dispute that in

respect of the same incident, two cases are registered and two

separate charge-sheets are filed and also not in dispute that a

case and counter cases are registered. The present case is

arising out of disposal of the case in C.C.No.1222/2013 and the

other case is C.C.No.1378/2013. These cases are in respect of

the same incident dated 14.04.2013, which had taken place at 8

p.m.

14. Having considered the order passed by the Appellate

Court taken note of both the cases arising out of the same

incident dated 14.04.2013, which had taken place at 8 p.m, the

Appellate Court also taken note of the judgment of this Court in

Hoskeri Ningappa's case (supra), and comes to the conclusion

that the Trial Court did not consider the principle laid down in

the said judgment, disposal of the case and counter case. It is

observed as per the guidelines, the judgment should be

pronounced by the same Judge simultaneously one after the

other. In the case on hand, in spite of the same, the Trial Court

has committed an error in disposal of one case and not decided

on the counter case. Hence, set aside the order and remanded

the matter for fresh consideration along with the other counter

case.

15. The main contention of the learned counsel for the

petitioner is that the Appellate Court failed to take note of the

fact that for the first time the issue of case and counter case has

been raised before the Appellate Court. The respondents never

took the defense and insisted for simultaneous disposal of the

case and counter case. The other contention also during the

course of the trial, the accused persons have not raised the

objections and not cross-examined the witnesses on the point of

aggression. The said contention cannot be accepted for the

reason that on perusal of cross-examination of PWs.1 and 2, a

specific question was put to them that other case is also

registered against PWs.1 and 2 and the same is admitted in the

cross-examination of PWs.1 and 2. There is a force in the

contention of the learned counsel for the respondents that there

is a cross-examination to that effect. Though, the learned

counsel would contend that no such defense was taken before

the Trial Court, it is evident on record that PWs.1 and 2 cross-

examined with regard to the pendency of other counter case.

16. It is also important to note that the Trial Court while

disposing of the case particularly in page No.13, taken note of

the fact that the witnesses - PWs.1 and 2 have admitted in the

cross-examination that in C.C.No.1378/2013, a case has been

registered. But only they claims that the false cases are

registered. Hence, it is clear that not only they took the defense

of counter case registered in C.C.No.1378/2013 and the same

has been admitted by PWs.1 and 2. Apart from that, the trial

Judge also having the knowledge in disposal of the case in

C.C.No.1222/2013 that other counter case in C.C.No.1378/2013

is pending before the Trial Court. Hence, the very contention of

the Revision Petitioner before this Court is that for the first time

they have raised the issue before the Appellate Court, cannot be

accepted.

17. The other contention is that not cross-examined the

witness and no defense was raised and first time raised the

same in the appeal also cannot be accepted. The grounds which

have been taken in this Revision Petition cannot be accepted as

the same was in the knowledge of the Trial Court as well as the

defense was raised before the Trial Court. No doubt, in 313

statement, the accused have not raised the said issue. But it

was in the knowledge of the Trial Court as well as the witnesses.

18. Now coming to the procedure for disposal of the case

and counter case is concerned, this Court would like to rely upon

the judgment of the Apex Court in the case of Nathi Lal v.

State of U.P. and another reported in 1990 (Supp) SCC 145,

wherein, the Apex Court held, what would be the procedure to

be followed in case and counter cases. This Court would like to

extract paragraph No.2 of this Judgment, which reads as follows:

"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."

19. The Apex Court in Mishrilal's case (supra),

reiterating the earlier judgment of the Apex Court referred

supra, held that, the cross cases should be tried together by the

same Court irrespective of the nature of the offences involved.

It is further held that the rationale behind this is to avoid

conflicting judgments over the same incident. This Court would

like to refer paragraph No.8 of the Judgment, which reads as

follows:

"8. In the instant case, it is undisputed, that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just, fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathi Lal case [1990 Supp SCC 145 : 1990 SCC (Cri) 638]. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross-cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either one of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice."

20. This Court in the judgments of Criminal Appeal

No.1338/2007 (D.D. 21.03.2013), Criminal Appeal

No.353/2011 (D.D.25.09.2018) and the order in Criminal

Petition No.1461/2018 (D.D. 01.06.2018), referring the

judgment of this Court in Hoskeri Ningappa's case (supra), the

same is delivered by three Judges, wherein, this Court

considered the earlier judgments of the Apex Court in the case

of Sudhir and others v. State of M.P. reported in 2011 SCC

(Cri.) 387, and comes to the conclusion that how a trial has to

be conducted. In paragraph Nos.13 to 16 in detail discussion, it

comes to the conclusion that the proceedings will not vitiate

except where prejudice is shown to have been caused to the

accused.

21. The learned counsel appearing for the petitioner

would vehemently contend and referring to the judgment of

Hoskeri Ningappa's case (supra), submits that where the

irregular procedure adopted by the Trial Court has caused

prejudice to the accused and has occasioned failure of justice,

the proceeding and the trial vitiates. Otherwise, the proceedings

are protected under Section 465 of the Code. Hence, disposal of

the case separately will not vitiate the case of the respondents.

The very said contention cannot be accepted in view of the

principles laid down in the judgments referred supra. The Apex

Court in the earlier judgment laid down the procedure what has

to be followed in Nathi Lal's case (supra), and in Mishrilal's

case (supra) and also this Court in Hoskeri Ningappa's case

(supra). In Hoskeri Ningappa's case (supra), referred the

judgment of Sudhir's case (supra), wherein, it is held that there

is no statute governing the procedure to be adopted in case and

counter case or cross cases. It is taken note of that the

Supreme Court has laid down the procedure for trial in such

matters. The Legislature ought to remedy the defect by

enacting the procedure in that regard. However, the Judge

made law relating to procedure mentioned is being followed

since 1929 till this day. The law declared by the Supreme Court

binds all the Courts in India under Article 141 of the Constitution

of India. It is also observed that each case must be decided on

the basis of the evidence which has been placed on record in

that particular case without being influenced in any manner by

the evidence and the arguments in the cross case.

22. Having considered the principles laid down in the

judgments referred supra, I am of the opinion that the very

contention of the learned counsel for the petitioner is that the

Appellate Court has committed an error in setting aside the

conviction order and remanding the matter for consideration

cannot be accepted. It is settled law that both the matters to be

considered simultaneously by the same Judge. The very object

of deciding both case and counter case is to find out, who is the

aggressor and other object is to avoid conflicting judgments and

it should be decided by the very same Judge simultaneously. The

investigation must be by the same Investigating Officer, but

different prosecutor should conduct the trial on behalf of the

prosecution.

23. On perusal of the records also, it is clear that the

other counter case is still pending before the Trial Court and this

Court also secured the records and the records discloses that still

the matter is under trial. Hence, it is important to note that this

matter pertaining to the year of the incident i.e., 2013 and

almost a decade has been lapsed and the case has not been

decided. Hence, it is appropriate to give a direction to dispose of

both the matters on priority basis with time bound direction.

Point No.(ii):

24. In view of the discussions made above, I pass the

following:

ORDER

(i) The revision petition is dismissed.

(ii) The impugned judgment and order dated 10.10.2017 passed in Crl.A.No.228/2016 by the IV Additional District and Sessions Judge, Hassan District (Sit at Channarayapana), is hereby confirmed.

(iii) The Trial Court is directed to dispose of both the matters within a period of three months from the next date of hearing i.e., on 31.03.2022.

(iv) The respective parties are directed to assist the Trial Court for disposal of the case within the time stipulated and conclude the

trial as expeditiously as possible to consider the matter simultaneously not more than three months period and no further time would be extended.