Karnataka High Court

State By Inspector Of Police vs T R Ashwathanarayana on 8 February, 2023

Bench: Shivashankar Amarannavar

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                                                       CRL.P No. 1246 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 8TH DAY OF FEBRUARY, 2023

                                           BEFORE
                   THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                             CRIMINAL PETITION NO. 1246 OF 2021
                   BETWEEN:

                         STATE BY INSPECTOR OF POLICE
                         CENTRAL BUREAU OF INVESTIGATION
                         (ANTI -CORRUPTION BRANCH)
                         No.36, BELLARY BRANCH
                         GANGANAGAR
                         BENGALURU-560 032.
                                                                ...PETITIONER

                   (BY SRI. PRASANNA KUMAR P, ADVOCATE)

                   AND:

                   1.    T R ASHWATHANARAYANA
                         S/O LATE RAMASWAMY SHETTY
                         AGED MAJOR
                         RESIDING AT 'SRINIDHI'
                         1-PARALLEL ROAD, DURGIGUDDI
Digitally signed
by SANDHYA S             SHIVAMOGGA - 577 201.
Location: HIGH
COURT OF           2.    T A RAMPRASAD
KARNATAKA                S/O T R ASHWATHARANAYANA
                         MAJOR
                         RESIDING AT 'SRINIDHI'
                         1-PARALLEL ROAD, DURGIGUDDI
                         SHIVAMOGGA - 577 201.

                   3.    S S NAGAPPA
                         S/O LATE SOMEGOWDA
                         RETD. PSI AND FORMER SHO
                         RURAL P.S SHIVAMOGGA
                         RESIDENT OF 4TH CROSS
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                                           CRL.P No. 1246 of 2021




    SESHADRIPURAM
    SHIVAMOGGA - 577 201.

    PETITION HAS BEEN ABATED AS
    AGAINST R3 VIDE ORDER DTD.29.11.21.
                                                 ...RESPONDENTS

(BY SRI P N HARISH, ADVOCATE FOR
 R1 & R2 V/O DTD. 29.11.21,
PETITION IS DISMISSED AS AGAINST R3)

     THIS CRL.P IS FILED U/S.407 CR.P.C PRAYING TO
TRANSFER THE CASE IN C.C.NO.3048/2019 PENDING ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC
SHIVAMOGGA TO THE COURT OF THE LEARNED XXXII
ADDITIONAL CITY CIVIL AND SESSIONS (SPECIAL) JUDGE,
BENGALURU WHERE SPL.C.C.No.44/2004 IS PENDING.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                              ORDER

Though this petition is listed for admission, by

consent of both the learned counsel, it is taken up for final

disposal.

2. This petition is filed seeking transfer of

C.C.No.3045/2019 pending on the file of First Addl. Civil

Judge and JMFC, Shivamogga to the Court of XXXII

Additional City Civil and Sessions Judge and Spl. Judge for

CRL.P No. 1246 of 2021

CBI cases, Bengaluru where Spl.C.C.No.44/2004 is

pending.

3. Heard Sri. P Prasanna Kumar, learned Special

Public Prosecutor for petitioner and Sri. P N Harish,

learned counsel for respondent Nos. 1 and 2.

4. The petitioner laid the charge sheet against

respondent Nos.1 to 3 and two other accused persons for

offences under Section 120B read with 420 r/w 511, 193,

196, 201 and 218 IPC and Section 13(2) read with

13(1)(d) read with Section 15 of Prevention of Corruption

Act, 1988. (hereinafter referred to as 'P.C. Act' for short)

and the case came to be registered in Spl.C.C.No.44/2004

pending on the file of XXXII Additional City Civil and

Sessions Judge and Spl. Judge for CBI cases, Bengaluru.

The respondent Nos.1 to 3 and another who were accused

Nos.2 to 5 in the said Spl.C.C.No.44/2004 filed application

seeking their discharge under Sections 227 of Cr.P.C. and

239 of Cr.P.C. The said discharge application came to be

allowed by the Special Court by order dated 26.09.2009.

CRL.P No. 1246 of 2021

The petitioner has challenged the said order before this

Court in Crl.RP.No.504/2010. The said Revision Petition

came to be allowed by order dated 18.09.2017 by setting

aside the order dated 26.09.2009 passed in

Spl.C.C.No.44/2004 by XXXII Additional City Civil and

Sessions Judge and Spl. Judge for CBI cases, Bengaluru.

The respondent No.2 and others have challenged the said

order dated 18.09.2017 passed in Crl.RP.No.504/2010

before the Hon'ble Apex Court in Special Leave to Appeal

(Crl.)No.1889/2018. The Hon'ble Apex Court on

20.08.2018 passed the following order, which reads thus:

"Having heard learned counsel appearing for both the parties and upon perusal of the record, we consider it appropriate in the interest of justice to make the following order:

The respondent-CBI shall make an appropriate application to the Motor Accidents Claims Tribunal (MACT) under Section 340 of the Code of Criminal Procedure regarding the alleged offences under Section 193,196,201,209, and 420 read with 120B of the Indian Penal Code.

The MACT shall cause an inquiry to be made after hearing the petitioners-

CRL.P No. 1246 of 2021

accused, and take a decision to file an appropriate complaint before the concerned Court.

With the aforesaid directions, the instant special leave petition is dispose of.

Pending interlocutory applications, if any, stand disposed of."

5. Based on the above order of the Hon'ble Apex

Court, learned XXXII Additional City Civil and Sessions

Judge and Spl. Judge for CBI cases, Bengaluru has

ordered for stop of further proceedings by order dated

06.10.2018 in Spl.C.C.No.44/2004. Thereafter, the

petitioner filed application under Section 340 of Cr.P.C. as

per order dated 20.08.2018 of Hon'ble Apex Court before

the Motor Accidents Claims Tribunal (MACT), Shivamogga.

Based on the order passed on that application, a private

complaint came to be filed by Prl.Senior Civil Judge and VI

Addl. MACT, Shivamogga represented by Narasimha

Murthy R and came to be registered in PCR No.331/2019.

The said PCR is filed against respondent Nos.1 to 3 herein.

CRL.P No. 1246 of 2021

Learned I Addl. Civil Judge and JMFC, Shivamogga in the

said PCR No.331/2019 by order dated 30.11.2019, took

cognizance for offences punishable under Sections 193,

196, 201, 209 and 218 read with 34 of IPC against

accused Nos.1 to 3 who are respondent Nos.1 to 3 herein

and the case came to be registered in C.C.No.3048/2019

against these respondent Nos.1 to 3.

6. Thereafter, this petition came to be filed

seeking transfer of C.C.No.3048/2019 pending on the file

of I Addl. Civil Judge and JMFC, Shivamogga to XXXII

Additional City Civil and Sessions Judge and Spl. Judge for

CBI cases, Bengaluru where Spl.C.C.No.44/2004 is

pending.

7. The petitioner by filing the application in

Spl.C.C.No.44/2004 got advanced the said matter on

26.12.2018 and filed memo stating that the petitioner has

moved application under Section 340 of Cr.P.C. before the

CJM and MACT, Shivamogga and the said memo has been

CRL.P No. 1246 of 2021

taken on record. Subsequently on 29.07.2022, the

petitioner filed application and got advanced the

Spl.C.C.No.44/2004. The petitioner filed a memo and

after hearing the Special Public Prosecutor for petitioner,

the Special Court has passed the order on 29.07.2022,

which reads thus:

"Heard the learned PP. It is submitted that the SLP filed by the accused before the Hon'ble Supreme Court has been dismissed. Therefore, the matter is required to be taken up again to proceed further in accordance with law.

Perused the order sheet. Since the further proceedings was stopped as per the interim order passed by the Hon'ble Supreme Court. In view of the disposal of the SLP, it is necessary to continue the proceedings.

Accordingly, it is ordered to re-opened the case.

Issue summons to A2 to 5, returnable by 29.08.2022."

8. Learned counsel for the petitioner submits that

the documents which are to be relied upon and the

witnesses which have to be examined in both the cases are

CRL.P No. 1246 of 2021

one and the same, except the complaint in

C.C.No.3048/2019. He contends that if the criminal case

which is sought to be transferred, if transferred, it will be

helpful for respondent Nos.1 and 2 also, as they can face

joint trial before the Special Court in Bengaluru and they

can avail benefit of Section 428 of Cr.P.C. They can also

avoid conviction in two different cases.

9. Learned counsel for respondent Nos.1 and 2 by

reading the order of Hon'ble Apex Court dated 20.08.2018

submits that liberty has not given to the petitioner to

continue the proceedings in Spl.C.C.No.44/2004 for the

remaining offences. Therefore, the petitioner cannot

continue the proceedings in Spl.C.C.No.44/2004. He

contends that he has challenged the order dated

29.07.2022 passed in Spl.C.C.No.44/2004 before this Court

by filing Criminal Petition under Section 482 of Cr.P.C.

seeking quashing of the said order dated 29.07.2022. He

contends that the order dated 29.07.2022 is passed without

CRL.P No. 1246 of 2021

notice to the respondent Nos.1 and 2. He contends that

continuance of proceedings in Spl.C.C.No.44/2004 are

subject to the result of the petition filed by him under

Section 482 of Cr.P.C. He contends that there is no role of

the petitioner in C.C.No.3048/2019 and it is to be

conducted by the Assistant Public Prosecutor attached to

the JMFC Court in which it is pending.

10. He also contends that out of respondent Nos.1 to

3, respondent No.3 is dead, respondent No.1 is aged 81

years and respondent No.2 is aged 62 years. They will face

difficulty in attending the case at Bengaluru if the said

criminal case is transferred. He contends that the

Spl.C.C.No.44/2004 was not pending as on the date of filing

of this transfer petition.

11. Learned Special Public Prosecutor for petitioner

placing reliance on the decision of this Court passed in

Crl.P.No.321/2003 dated 29.05.2003 in the case of

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CRL.P No. 1246 of 2021

K.M.Ganesha and Another vs. Statye of Karnataka by

S.H.O., Madikeri and Others reported in ILR 2003 KAR

2489 by referring to Paragraph No.14, contended that as

per Section 26 of Cr.P.C., the Sessions Court has the power

to try the offence under IPC. The said paragraph No.14 is

reads thus:

"14. In this context, a reference may be made to Section 26 of Cr.P.C. which states that the Sessions Court has the power to try any offence under I.P.C. That means, the Sessions Court can try offences even which are not exclusively triable by the Sessions Court. In this connection, a reference may be made to the judgment of the Hon'ble Supreme Court in the case of SUDHIR AND OTHERS vs STATE OF M.P. The observations made and the dictum laid down therein are aptly applicable to the facts of this case."

12. He contends that even as per Section 4 of the

P.C. Act under Sub Section 3, the Special Judge may also

try any offence other than the offence specified in Section 3

with which the accused may under Criminal Procedure

Code, be charged at the same trial.

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CRL.P No. 1246 of 2021

13. Whether the proceedings in Spl.C.C.No.44/2004

are to be continued or not, is the matter for consideration

before this Court in the Criminal Petition filed by respondent

Nos. 1 and 2 under Section 482 of Cr.P.C. challenging the

order dated 29.07.2022 passed in Spl.C.C.No.44/2004.

Therefore, this Court in this transfer petition cannot dwell

upon the correctness of the order dated 29.07.2022 passed

in Spl.C.C.No.44/2004.

14. Respondent Nos.1 and 2 are accused in

C.C.No.3048/2019 pending on the file of I Addl. Civil Judge

and JMFC, Shivamogga for the offence punishable under

Sections 193, 196, 201, 209 and 218 of IPC. The said case

was registered on the complaint filed by Prl. Senior Civil

Judge and IV Addl. MACT, Shivamogga represented by

Narasimha Murthy R who is Chief Ministerial Officer of the

said Court. The transfer of the said case is sought on the

ground that the Spl.C.C.No.44/2004 is pending on the file

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CRL.P No. 1246 of 2021

of XXXII Additional City Civil and Sessions Judge and Spl.

Judge for CBI cases, Bengaluru.

15. Sections 3 and 4 of the P.C. Act, which is

relevant for consideration and are extracted as under:

"3. Power to appoint special Judges- (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:-

(a) any offence punishable under this Act;

and

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause

(a).

(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974)

4. Cases triable by special Judges- (1)Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-

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CRL.P No. 1246 of 2021

section (1) of Section 3 shall be tried by special Judges only.

(2)Every offence specified in sub-section(1) of Section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.

(3)When trying any case, a special Judge may also try any offence, other than the offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(4)Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the trial of an offence shall be held, as far as practicable, on day-to-day basis and an endeavour shall be made to ensure that the said trial is concluded within a period of two years.

16. As per Sub Section (1) of Section 3, the Special

Courts can try offences under P.C. Act and any conspiracy

to commit or any attempt to commit or any abetment of

any of the offences specified under the said Act. As per

Sections 3 and 4 of the P.C. Act, without trying any case,

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CRL.P No. 1246 of 2021

the Special Judge can try other than the offence specified in

Section 3 with which the accused persons are charged at

the same trial. The term used is 'same trial'.

17. On conjoint reading of Section 3(1) and 4(3) of

the P.C. Act, the Special Court in the same trial can try the