Karnataka High Court
Chaithra G K vs State By Dandina Shivara Police Station on 5 April, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC:14335
CRL.A No. 1324 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 1324 OF 2022
BETWEEN:
CHAITHRA G. K.
AGED ABOUT 32 YEARS,
D/O LATE KEMPAIAH,
R/O GIRIYANAHALLI,
DANDINASHIVARA HO TURUVEKERE TQ,
TUMAKURU 572215.
...APPELLANT
(BY SRI. SIVAMANITHAN S.,ADVOCATE)
AND:
1. STATE BY DANDINA SHIVARA POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
Digitally signed 2. MAHESH
by GAYATHRI S/O HENJAIAH,
PG
AGED NOT KNOWN,
Location: High
Court of R/O GIRIYANAHALLI,
Karnataka DANDINASHIVARA HOBLI,
TURUVKERE TQ,
TUMKUR 572215.
3. MANJUNATH
S/O MUDDAIAH,
AGE NOT KNOWN,
GIRIYANAHALLI DANDI,
NASHIVARA HOBLI,
TURUVEKRE TQ,
TUMKUR 572215.
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NC: 2024:KHC:14335
CRL.A No. 1324 of 2022
4. DARSHAN KUMAR
FATHER NAME NOT KNOWN,
AGE NOT KNOWN,
R/O GIRIYANAHALLI DANDI NASHIVAR HOBLI,
TURUVEKERE TQ,
TUMKUR 572215.
...RESPONDENTS
(BY SRI. RAHUL RAI K., HCGP;
SRI. KEERTHANA NAGARAJ., ADV. FOR R2)
THIS CRL.A. IS FILED U/S.378(4) OF CRPC PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 13.04.2022 IN
CR.NO.17/2020 ON THE FILE OF THE III ADDL. DISTRICT AND
SESSIONS JUDGE, TUMKURU, DISMISSING THE COMPLAINT
FOR NON-PROSECUTION. AND C. REOPEN AND REMAND THE
CR.NO.17/2020 ON THE FILE OF THE III ADDL. DISTRICT AND
SESSIONS JUDGE, TUMKURU AND DIRECT THE LEARNED TRIAL
JUDGE TO CONTINUE WITH THE PROCEEDINGS.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the complainant,
aggrieved by the order dated 13.04.2022 passed by the III
Additional District and Sessions Judge, Tumakuru, calling
in question the dismissal of his complaint for Non
prosecution
2. Heard both the sides and perused the material
on record.
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3. Brief facts leading to filing of this appeal, as per
the averments in the appeal are that, appellant's father by
name Kempanna was mysteriously found dead near the
water tank in his residential village Giriyanahalli,
Turuvekere taluk, Tumakuru, on 14.04.2020. Initially a
UDR was registered, aggrieved by which the complainant,
daughter of the deceased submitted a representation to
the police. Based on the complaint given by her, FIR was
registered in Crime No.17/2020 at Dandina Shivara Police
station, Tumakuru on 16.05.2020 against accused Nos.1
to 3 and others for the offences punishable under Section
504, 506, 302 read with Section 34 of IPC and under
Section 3(1)(r), 3(1)(s), 3(2)(v) of the SC/ST(POA)
Amendment Act, 1989. On conducting investigation, a
B-report was filed. The said report was challenged by the
complainant by filing a protest petition.
4. The matter was listed for recording the sworn
statements and subsequently on 13.04.2022, since the
complainant and her counsel were absent, complaint came
to be dismissed.
NC: 2024:KHC:14335
5. It is contended by the learned counsel for the
appellant that the learned Judge was pleased to order for
the sworn statements of the complainant and the
witnesses and the matter was posted on 21.10.2021 on
which date the complainant could not be present and
subsequently, due to Covid-19 restrictions, there was no
representation and therefore, the non appearance of the
complainant or her counsel was un-intentional. He
contended that in view of the gravity of the offence
committed, an opportunity may be given to the
complainant to prosecute her case before the Trial Court.
6. The learned counsel appearing for
respondents/accused has vehemently opposed the prayer
for restoration of the complaint, contending that sufficient
opportunities were given to the complainant but she failed
to appear before the Court below and therefore, the
learned Sessions Judge has rightly dismissed the
complaint for non prosecution. She relied on two
judgments, one reported in 2022 SCC OnLine Cal 2498 in
the case of 'Basu Pumps & Projects Private Limited
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V/s. State of West Bengal and others' and another in
the case of 'M/s. Kothari Enterprises, v.
M/s. Dharendra Agro Food Industries'
(Crl.A.No.450/2003, High Court Judicature at Bombay
dated 27.11.2019).
7. It is contended by the learned counsel for the
respondents relying on the above decisions that if the
complainant does not remain present on the appointed
date after the summons are issued and unless the
attendance of the complainant has been dispensed with,
the Court shall acquit the accused. She would also contend
that, the conduct of the complainant on repeated
occasions having been remained absent, does not entitle
for grant of any relief.
8. The judgments relied by the learned counsel for
the respondents are not applicable to the facts of the
present case. In those decisions, reference were made to
Section 256 of Cr.P.C. which deals with trial of summons
cases by the Magistrate.
NC: 2024:KHC:14335
9. In the case on hand, the police have registered
the FIR against respondent/accused, for a serious offence
like murder. Filing of B-report was challenged by the
complainant. One of the grounds urged by the learned
counsel for appellant is that, due to Covid-19 restrictions,
the complainant and her counsel were unable to attend
the Court on the date of hearing. The order sheet of the
Trial Court would disclose that the matter was posted for
recording the sworn statements of the complainant and
witnesses and subsequently, on two occasions
complainant, her counsel were absent. On one date
Presiding Officer was on leave. On 03.03.2022 matter was
adjourned to 13.04.2022 on which date the complaint
came to be dismissed for non prosecution.
10. It is contended by the learned counsel for the
respondents that the complainant cannot allow a case to
remain pending indefinitely as speedy Trial is a
fundamental right of the accused. Admittedly in this case,
summons are yet to be issued to the
respondents/accused. Having regard to the entire facts
NC: 2024:KHC:14335
and circumstances of the case, it is just and proper to
permit the complainant to prosecute her complaint, to
meet the ends of justice. Hence, the following:
ORDER
i) Appeal is allowed.
ii) The order dated 13.04.2022 passed by the III
Additional District and Sessions Judge, Tumakuru in Crime
No.17/2020, dismissing the complaint for non-prosecution
is hereby set aside.
iii) The complaint shall be restored to its file and
the learned Sessions Judge shall proceed with the case in
accordance with law.
iv) The complainant shall appear before the
sessions Court, on 29.04.2024 or any other date fixed by
the learned Sessions Judge.
Sd/-
JUDGE
LDC
