Karnataka High Court
Sri A Nagaraja Naidu vs Sri Mani Naidu on 7 June, 2023
Bench: J.M.Khazi
-1-
NC: 2023:KHC:19249
CRL.A No. 339 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.339 OF 2018
BETWEEN:
SRI. A NAGARAJA NAIDU
S/O LATE SRINIVASALU NAIDU
R/AT NO.189, 7TH MAIN,
BSK 1ST STAGE,
SRINIVASANAGAR
BENGALURU - 560 050
...APPELLANT
(BY SRI. A MAHESH CHOWDHARY, ADVOCATE)
AND:
1. SRI MANI NAIDU
S/O LATE MUNISWAMY
AGED ABOUT 48 YEARS,
Digitally signed 2. SMT GEETHAMANI
by REKHA R
Location: High W/O MANI NAIDU
Court of AGED ABOUT 43 YEARS
Karnataka
3. SRI PRAKASH
S/O LATE MUNISWAMY
AGED ABOUT 42 YEARS
4. SRI RAMESH
S/O MUNISWAMY
AGED ABOUT 39 YEARS
5. SRI BABU
S/O SHANTHAMMA
AGED MAJOR
-2-
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CRL.A No. 339 of 2018
ALL 1 TO 5 ARE RESIDING AT
NO.314, SRINIVASA NAGAR
BANASHANKARI 2ND STAGE
BENGALURU
6. STATE OF KARNATAKA BY
VILSON GARDEN P S BENGALURU
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
...RESPONDENTS
(BY SRI. SHIVASHANKARAPPA, ADVOCATE FOR R1-R5;
SRI. K.K.KRISHNA KUMAR, HCGP FOR R-6)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO CALL FOR RECORDS OF CC
NO.14216/2013 ON THE FILE OF VI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU AND SET ASIDE
THE IMPUGNED JUDGMENT DATED 30.12.2017 BY REMANDING
BACK THE MATTER TO THE COURT BELOW AND DIRECT THE
LEARNED MAGISTRATE TO CONSIDER THE PENDING
APPLICATIONS FILED ON 30.12.2017 AGAINST THE OFFENCES
UNDER SECTIONS 341, 323, 427, 504, 506 R/W 34 OF IPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is posted for admission, with the
consent of learned counsel for the parties the same is
taken up for final disposal.
2. For the sake of convenience the parties are
referred to by their rank before the trial Court.
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CRL.A No. 339 of 2018
3. This appeal is by the complainant, challenging
the dismissal of the case registered against
respondents/accused Nos.1 to 5 for the offences
punishable under Section 341, 323, 427, 504, 506 r/w
Section 34 I.P.C.
4. After due service of notice,
respondents/accused have appeared through counsel.
5. Heard and perused the record.
6. Based on the complaint filed by
appellant/complainant and after conducting detailed
investigation, a charge sheet came to be filed by Wilson
Garden Police, Bengaluru against accused Nos.1 to 5
alleging that on 25.08.2011, at 5.00 p.m accused persons
picked up quarrel with complainant, in connection with
death of his brother-in-law in a road accident, assaulted
him with hands and also broke the glass windows of the
house of his father-in-law. They also abused complainant
and CW-2 and gave threat to their life.
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7. After due service of summons, accused Nos.1 to
5 appeared before the trial Court. They pleaded not guilty
to the charges leveled against them.
8. On the ground that despite issue of NBW and
proclamation, the concerned police have failed to secure
the presence of witnesses, the trial Court has closed the
prosecution evidence, dispensed with the recording of
statement under Section 313 Cr.P.C. and proceeded to
pass judgment of acquittal.
9. Contending that even though complainant filed
application under Section 301 (2) Cr.P.C, with a prayer to
permit him to assist the Public Prosecutor, without
considering the same and also ignoring the application
filed under Section 311 Cr.P.C. by the learned Prosecutor
to recall the witnesses for their examination, the trial
Court has hurriedly passed the order acquitting the
accused persons, complainant has come up with this
appeal.
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CRL.A No. 339 of 2018
10. As evident from the trial Court records, more
particularly the charge sheet, 8 witnesses are cited for the
prosecution. On 17.08.2015, the Court has issued
summons to CWs-1 to 4. Since the witnesses were not
kept present, it was re-issued. On 24.09.2016, it is noted
that CW-1 is served. The Prosecutor has undertaken to
produce him on the next date. When he failed to appear
on 21.11.2016, Non-bailable Warrant is issued and re-
issued against him. Summons was issued against CWS-2
to 8. After providing few opportunities, on 08.11.2017, the
trial Court has also ordered for issue of proclamation.
11. However, the order sheet does not state what
were the steps taken by the concerned police to secure the
presence of witnesses including the Medical Officer and
Investigating Officers. It is not clear why the concerned
police were not able to secure the presence of Medical
Officer and the Investigating Officers who are official
witnesses and it may not be difficult for the police to
secure their presence. The trial Court has also not noted
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CRL.A No. 339 of 2018
whether proclamation was executed. After noting that the
concerned police have failed to secure the presence of
witnesses, the trial Court has proceeded to close the
evidence and ultimately, acquitted the accused persons.
12. From the manner in which the trial Court has
hurried to dispose of the case, it is evident that proper
opportunity was not given to the concerned police to
secure the presence of witnesses. On 30.12.2012, after
passing the impugned order, the trial Court has noted the
fact that in the morning session itself, complainant has
engaged the services of an advocate and filed application
under Section 301 Cr.P.C. to permit him to assist the
prosecution and the Prosecutor has also filed application
under Section 311 Cr.P.C and even though the Court has
ordered to put up those applications, on the ground that
when the case was called, there was no representation on
behalf of the complainant and the bench clerk has not put
up the application. By observing that already judgment is
pronounced, the trial Court has failed to consider the said
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CRL.A No. 339 of 2018
applications. When the Court has directed to put up the
applications filed by the complainant as well as the
Prosecutor, the said fact has come to the notice of the
Court and therefore, it cannot put the blame on the bench
clerk.
13. The sum and substance of the above discussion
is that without providing reasonable opportunity, that too
when complainant has come up with an application under
Section 301 Cr.P.C, the trial Court is not justified in
disposing of the case without considering the pending
applications. Consequently, the impugned order is liable to
be set aside and matter requires remand for
reconsideration by the trial Court and accordingly, I
proceed to pass the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and order dated
30.12.2017 is set aside.
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CRL.A No. 339 of 2018
(ii) The complainant and respondents/accused are
directed to appear before the trial Court on
27.06.2023 without waiting for further notice
from the trial Court.
(iii) The trial Court is directed to decide the case in
accordance with law, after providing reasonable
opportunity to prosecution to examine its
witnesses.
(iv) Of course, if on 27.06.2023,
respondents/accused fails to appear before the
Court, the trial Court is at liberty to take
coercive steps against them for securing their
presence.
Sd/-
JUDGE
RR
