Karnataka High Court
Sri Rajendra Sing And Ors vs The State Of Karnataka And Anr on 9 February, 2023
Bench: V Srishananda
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CRL.P No. 200339 of 2022
R
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL PETITION NO. 200339 OF 2022
BETWEEN:
1. SRI RAJENDRA SING S/O GOKUL SINGH,
AGE. 64 YEARS, OCC.ADVOCATE,
R/O H,NO. 4-255, MAKTAMPUR KALABURAGI,
TQ AND DIST KALABURAGI
2. SRI RAVINDRA SINGH S/O GOKUL SINGH
AGE. 60 YEARS, OCC. AGRICULTURE,
R/O KALIGALLI BASAVAKALYAN,
TQ. BASAVAKALYAN DIST BIDAR
3. SRI DEVINDRA SINGH S/O GOKUL SINGH
AGE. 58 YEARS, OCC. AGRICULTURE,
R/O KALIGALLI BASAVAKALYAN,
TQ. BASAVAKALYAN DIST BIDAR
Digitally 4. SURINDRA SINGH S/O GOKUL SINGH
signed by B
NAGAVENI AGE 54 YEARS, OCC. AGRICULTURE,
Location: R/O KALIGALLI BASAVAKALYAN,
High Court
of TQ. BASAVAKALYAN DIST BIDAR
Karnataka
...PETITIONERS
(BY SRI. RAVI B. NAIK L.SR. COUNSEL FOR GANESH NAIK, S.S.
HIREMATH.,ADVOCATE)
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CRL.P No. 200339 of 2022
AND:
1. THE STATE OF KARNATAKA THROUGH BRAHMAPUR
POLICE STATION, KALABURAGI
DISTRICT KALABURAGI,
REPRESENTED BY ADDL SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH DIST KALABURAGI 07
2. KASTURIBAI W/O PRABHU SINGH THAKUR
AGE. 54 YEARS, OCC. TEACHER,
R/O H.NO. 4-257, 4-259. MAKTAMPUR,
NEAR SAI BABA MANDIR MILAN CHOWK,
KALABURAGI 01 NOW AT R/O J.R NAGAR
ALAND ROAD, KALABURAGI
DIST KALABURAGI
...RESPONDENTS
(BY SRI.MAYA T. R. HCGP FOR R1 AND SRI. BASARAJ M.
POLICEPATIL FOR R2.,ADVOCATE)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO,
SET ASIDE THE ORDER DATED 30.12.2021 IN CRL. REV.
PETITION NO. 87/2021 PASSED BY THE III ADDL. DIST. AND
SESSIONS JUDGE AT KALABURAGI, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING :
ORDER
1. This petition is filed under Section 482 Cr.P.C., with
the following prayer:
"WHEREFORE, the petitioners pray that
this Hon'ble Court may be pleased to set aside
CRL.P No. 200339 of 2022
the order dated 30.12.2021 in Crl.Rev.P.No.
87/2021 passed by the III Addl. District and
Sessions Judge at Kalaburagi, in the interest of
justice and equity."
2. Heard Sri Ravi B. Naik, learned Senior counsel for
the petitioners, Smt. Maya T.R., learned High Court
Government Pleader for the first respondent-State and Sri
Basavaraj M. Police Patil, learned counsel for second
respondent and perused the records.
3. Brief facts of the case which are necessary for
disposal of the petition are as under:
Second respondent herein filed a private complaint
against the accused/petitioners herein in PC No.549/2019 on
the file of the IV Additional Civil Judge and JMFC, Kalaburagi,
seeking action against the petitioners for the offence
punishable under Sections 339, 340, 341, 342, 343, 344, 420,
441, 442, 447, 448, 452 read with Section 34 IPC. There is a
pending civil dispute between the parties. The said private
complaint was referred to police for investigation and filing of
appropriate report by exercising powers under Section 156(3)
of Cr.P.C., by the learned Trial Magistrate.
CRL.P No. 200339 of 2022
4. Based on the said reference, police registered a
case in Crime No.10/2020 and filed 'B' final report.
5. The defacto complainant filed a protest petition
against the 'B' final report. The learned Trial Magistrate after
recording the sworn statement of the complainant and
considering the documentary evidence placed on record, was
not satisfied that the proposed accused persons (petitioners
herein) are to be summoned for further trial and therefore,
dismissed the protest petition.
6. Being aggrieved by the said order of the learned
Trial Magistrate, the defacto complainant filed a Revision
Petition before the District Court in Criminal Revision Petition
No.87/2021. The learned District and Sessions Judge, even
without issuing notice to the petitioners herein, secured the
records and allowed the Revision Petition by passing following
order:
"The Revision Petition filed by the revision
petitioners/complainant under section 397 of
Code of Criminal Procedure is hereby allowed. The
order dated 16.09.2021 made in
CRL.P No. 200339 of 2022
P.C.R.No.549/2019 (Crime No.10/2020) passed
by the IV Addl. Civil Judge and JMFC, Kalaburgi is
set aside.
Consequentially, "B" final report submitted
by Investigating Officer is rejected. The trial Court
shall take cognizance against the accused persons
for the offence punishable under Sections 420,
447, 448 read with Section 34 of Indian Penal
Code and issue process against accused persons.
Complainant is directed to appear before the trial
Court on 24.01.2022 without awaiting any notice
from the trial Court.
Office to send trial Court records and copy
of this order to the trial Court forthwith."
7. Being aggrieved by the same, the petitioners are
before this Court.
8. Re-iterating the grounds urged in the petition Sri
Ravi B. Naik, learned Senior counsel vehemently contended
that the approach of the District Court in not issuing notice to
the petitioners and unilaterally deciding the Revision Petition in
the absence of the petitioners resulted in miscarriage of justice,
besides being flouting all settled principles of law in respect of
CRL.P No. 200339 of 2022
the doctrine of principles of natural justice and sought for
allowing the petition by passing an order as referred to above.
9. Per contra, learned High Court Government Pleader
submits that appropriate orders are to be passed inasmuch as
the police had already filed 'B' report.
10. Learned counsel for the second respondent Sri
Basavaraj M. Police Patil, while supporting the impugned order
contended that the learned District Judge has considered the
sworn statement and the material documents produced before
him and rightly allowed the Revision Petition and sought for
dismissal of the petition.
11. In reply, Sri Ravi B. Naik, learned Senior counsel
placing reliance on the judgment of the Hon'ble Apex Court in
the case of Subhash Sahebrao Deshmukh Vs. Satish
Atmaram Talekar and Others reported in 2020(6) SCC
625, contended that the course adopted by the learned District
Judge in allowing the Revision Petition is totally opposed to the
principles of natural justice and therefore, the present petition
needs to be allowed and impugned order passed by the learned
CRL.P No. 200339 of 2022
District Judge in Criminal Revision Petition needs to be set
aside and the matter be remitted to the Revisional Court for
fresh disposal in accordance with law.
12. The relevant portion of the said decision reads as
under:
" 7. The restoration of the complaint by the
Additional Sessions Judge was undoubtedly to the
prejudice of the Appellant. The right of the
Appellant to be heard at this stage need not detain
us any further in view of Manharibhai (supra)
observing as follows:
53......We hold, as it must be, that in a
revision petition preferred by the
complainant before the High Court or the
Sessions Judge challenging an order of the
Magistrate dismissing the complaint under
Section 203 of the Code at the stage under
Section 200 or after following the process
contemplated under Section 202 of the
Code, the Accused or a person who is
suspected to have committed the crime is
entitled to hearing by the Revisional Court.
In other words, where the complaint has
been dismissed by the Magistrate under
Section 203 of the Code, upon challenge to
the legality of the said order being laid by
the complainant in a revision petition before
the High Court or the Sessions Judge, the
persons who are arraigned as accused in the
complaint have a right to be heard in such
revision petition. This is a plain requirement
CRL.P No. 200339 of 2022
of Section 401 (2) of the Code. If the
Revisional Court overturns the order of the
Magistrate dismissing the complaint and the
complaint is restored to the file of the
Magistrate and it is sent back for fresh
consideration, the person who are alleged in
the complaint to have committed the crime
have, however, no right to participate in the
proceedings nor are they entitled to any
hearing of any sort whatsoever by the
Magistrate until the consideration of the
matter by the Magistrate for issuance of
process. We answer the question
accordingly. The judgments of the High
Courts to the contrary are overruled."
13. In view of the rival contentions of the parties and
the principles of law enunciated above, this Court perused the
material on record meticulously.
14. On such perusal of the material on record, it is an
admitted fact that the defacto complainant after filing the
private complaint got the matter referred to the jurisdictional
police who inturn after thorough investigation filed 'B' final
report.
15. A protest petition came to be filed by the defacto
complainant and the same was considered by the learned Trial
Magistrate and permitted the defacto complainant to have his
CRL.P No. 200339 of 2022
sworn statement recorded and also documents that were
placed before the Court were marked.
16. On consideration of the sworn statement material in
the form of sworn statement and documentary evidence on
record, the learned Trial Magistrate was not satisfied that a
case is made out for the alleged offences to summon the
petitioners before the learned Trial Magistrate for further
proceedings and therefore, dismissed the protest petition.
17. Being aggrieved by the same, the defacto
complainant filed the Revision Petition in Criminal Revision
Petition No.87/2021.
18. Once the Criminal Revision Petition came to be filed
before the learned District Court, the learned District Judge did
not choose to issue notice to the petitioners who are the
proposed accused before the disposal of the said Revision
Petition on merits.
19. On the contrary, he decided the Revision Petition in
the absence of the petitioners and allowed the Revision
Petition. The said action on the part of the learned District
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CRL.P No. 200339 of 2022
Judge in the Revision Petition is opposed to the principles of
natural justice besides being acting as prejudicial to the interest
of the Revision Petitioners.
20. It is settled principles of law that no lis can be
decided in the absence of a party. It is one thing that if a party
is notified about the lis; still he does not choose to appear and
offer his say in the matter. But, notifying a party about the
case pending against him is a must. This is the bedrock of
principles of natural justice.
21. In the case on hand, if the revisional Court had
issued the notice to the petitioners and heard them before the
revision could be decided on merits, the revisional Court could
have had the benefit of the explanation that would have been
offered by the petitioners in respect of the revisional grounds
and the revisional Court could have passed a judicious order.
22. Suffice to say, that the learned District Judge in the
Revision Petition did not adopt the said procedure and thereby
the order passed by the learned District Judge which is
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CRL.P No. 200339 of 2022
impugned in the present petition has resulted in miscarriage of
justice.
23. Therefore, this Court has no hesitation whatsoever
in setting aside the impugned order and remit the matter to the
learned District Judge for fresh disposal after hearing the
petitioners. Accordingly, this Court pass the following:
ORDER
(i) The Criminal Petition is allowed and remanded the
matter for fresh disposal in accordance with law.
(ii) Since the Revision Petition is of the year 2021, the
petitioners herein and the defacto complainant who is the
second respondent herein, are directed to appear before the
Revisional Court on 06.03.2023 without further notice.
(iii) Thereafter, the learned Sessions Judge hear the
parties afresh after affording reasonable opportunity in
accordance with law especially in the light of the principles of
law enunciated in the case cited supra.
(iv) Order accordingly.
Sd/-
JUDGE
PL
