Karnataka High Court
Manjunatha vs The State Of Karnataka on 10 January, 2024
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CRL.RP No. 941 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 941 OF 2014
BETWEEN:
1. MANJUNATHA,
NOW AGED ABOUT 34 YEARS,
S/O LATE VEERAIAH,
RESIDING AT KEMPANNA HALLI VILLAGE,
(BIDADI HOBLI),
BUT IN KASABA HOBLI,
RAMANAGARA TALUK - 562 129,
RAMANAGARA DISTRICT.
2. SUBRAMANI,
NOW AGED ABOUT 30 YEARS,
S/O RAMULU,
RESIDING AT HEJJALA VILLAGE,
BIDADI HOBLI,
Digitally signed
by SANDHYA S RAMANAGARAM TALUK - 562 129,
Location: High RAMANAGARA DISTRICT.
Court of
Karnataka ...PETITIONERS
(BY SMT. M. GAYATHRI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY K.R. PET
TOWN POLICE STATION,
BY ITS
STATION HOUSE OFFICER,
REP. BY STATE PUBLIC PROSECUTOR,
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CRL.RP No. 941 of 2014
GOVERNMENT OF KARNATAKA,
K.R. PET,
MANDYA DISTRICT - 571 426.
...RESPONDENT
(BY SRI. M.R. PATIL, HCGP)
THIS CRL.RP IS FILED U/S.397 & 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER DATED:29.5.2014 IN CRL.A.NO.75/2013 ON THE FILE
OF THE III-ADDL.DIST.AND S.J., MANDYA (SITTING AT
SRIRANGAPATNA), WHERE IN CONFIRMING THE JUDGMENT
AND ORDER OF SENTENCE OF CONVICTION AND FINE
DATED:10.4.2013 IN C.C.NO.323/2007 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, KRISHNARAJPET, MANDYA DISTRICT,
BY ALLOWING THIS CRL.R.P. AND FURTHER PRAYS TO ACQUIT
THE PETITIONERS BEFORE THE TRIAL COURT FOR THE
CHARGES U/S. 188, 379 AND U/S. 41(A) AND 21 OF THE
MMRD ACT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Revision petitioner/accused Nos.1 and 2 have
preferred this revision petition against the Judgment of
conviction and order on sentence passed by the Civil Judge
and JMFC, K.R.Pet in C.C.No.323/2007 dated 16.04.2013
(hereinafter referred to as 'Trial Court', which is confirmed
by the III Addl. District and Sessions Judge, Mandya
(sitting at Srirangapatna) in Criminal Appeal No.75/2013
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dated 29.05.2014 (hereinafter referred to as 'Appellate
Court').
2. Parties are referred to as per the rankings before
the Trial Court.
3. The brief facts of the prosecution case is that on
16.01.2017 at 4.20 p.m., within the jurisdiction of K.R.Pet
Police Station at Rayasamudra village, the accused without
having any valid licence or permit, were transporting sand
worth of Rs.2,000/- through lorry bearing Registration
No.KA-05/AF-936 and another lorry bearing No.
KA-05/8698 by committing theft. During that period,
there was prohibition to transport sand. Thus, the
accused have committed the offence under Sections 379
and 188 of IPC. After filing charge sheet, case was
registered against the accused in C.C.No.323/2007 and
summons were issued to the accused. In response to
summons, the accused appeared. Trial Court framed
charges against the accused for the commission of offence
under Sections 379 and 188 of IPC. Same was read over
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and explained to the accused. Accused having understood
the same, pleaded not guilty and claimed to be tried.
After framing charge under Section 379 and 188 of Indian
Penal Code, the application was filed under Section 216
Cr.P.C., to alter the charge. Same was allowed by Trial
Court and additional charge was framed for the
commission of offence under Section 21 of the Mines and
Minerals (Development and Regulation) Act, 1957 (in short
'MMDR Act'). Same was read over and explained to the
accused. Accused having understood the same, claimed to
be tried and to prove the guilt of accused.
4. To prove the guilt of the accused, prosecution
has examined seven witnesses as PWs 1 to 7 and
produced six documents as Exs.P1 to P6. Thereafter,
Statement of accused under Section 313 of Code of
Criminal Procedure was recorded. The accused has totally
denied the evidence of prosecution witnesses appearing
against them and have not chosen to lead any defence
evidence on their behalf. Having heard the arguments on
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both sides, the Trial Court has convicted the accused for
the commission of offence under Section 379 and 188 of
IPC and also Section 4(1)(A) read with Section 21(1) of
the MMDR Act. The accused was also sentenced for a
period of one year for the commission of offence under
Section 379 of Indian Penal Code and fine of Rs.1,000/-
each. In default of payment of fine, they shall undergo S.I
for two months. Accused are also convicted for the
commission of offence under Section 188 of Indian Penal
Code and sentenced to simple imprisonment for ten days.
Further, the accused were sentenced for a period of six
months for the commission of offence punishable under
Section 21(1) of MMDR Act.
5. Being aggrieved by this Judgment of conviction
and order of sentence, the accused have preferred appeal
in Criminal Appeal No.75/2011 on the file of the III Addl.
District and Sessions Judge, Mandya (sitting at
Srirangapatna) and the said appeal came to be dismissed
on 29.05.2014. Being aggrieved by the Judgment passed
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by both the Courts below, the revision petitioner has
preferred this revision petition.
6. Smt M.Gayathri, learned counsel appearing on
behalf of the revision petitioner submitted that the
concerned Police have no right to file charge sheet against
the accused for the commission of offence under Section
188 of IPC. However, the Trial Court has ignored the
provisions of Section 195 of Cr.P.C., and took cognizance
against the accused for the commission of offence
punishable under Section 188 of IPC which is not
sustainable in law. Further, she submits that the Trial
Court has ignored the provisions of Section 22 of MMDR
Act and allowed the application filed by the prosecution
under Section 216 of Cr.P.C., and framed the charges
against the accused for the commission of offence under
Section 21 of MMDR Act, which is not sustainable under
law. Further, she submits that with regard to the offence
punishable under Section 379 of IPC is concerned,
absolutely there are no evidence against the accused to
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attract the provisions punishable under Section 379 of IPC.
The owner of the lorry is not implicated as accused in this
case. Though there is no nexus between the accused and
this seized lorry at the relevant point of time, the
prosecution has not placed any material to show that the
accused has committed theft of sand and transported in
lorry bearing No.KA-05/C-8697 and another lorry bearing
No.KA-05/AF-936. The Trial Court has failed to appreciate
the evidence in accordance with law and facts and
convicted the accused for the commission of offence
punishable under Section 379 of IPC which is confirmed by
the appellate Court without proper appreciation of
evidence on record. On all these grounds, sought for
allowing the revision petition.
7. On the other hand, learned High Court
Government Pleader submitted that both the Courts have
appreciated the evidence on record in accordance with law
and facts and order of sentence passed by the Trial Court
which is confirmed by the Trial Court, is in accordance with
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law. On these grounds, sought for dismissal of revision
petition.
8. Having heard the arguments on both sides, the
following points would arise for my consideration:
i) Whether the Trial Court has committed an
error in taking cognizance against the accused
for the commission of offence under Section
188 of IPC and also Section 4(1)(A) read with
Section 21(1) of the MMRD Act, ignoring the
provisions of Section 195 of the Code of
Criminal Procedure, 1973 and Section 22 of
MMRD Act?
ii) Whether the revision petitioner has made
out ground to interfere with the impugned
Judgment of conviction and order of sentence
passed in respect of Section 379 of IPC which
is confirmed by the Appellate Court?
iii) What order?
9. My answer to the above points are as under:
Point No.(i): Affirmative
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Point No.(ii): Affirmative
Point No.(iii): As per final order
Regarding Point No.1:
10. I have carefully examined materials placed
before this Court.
11. On the basis of the complaint filed by Nooruddin
Shariff, Tahasildar, K.R.Pet Taluk, the Sub-Inspector of
Town Police Station, K.R.Pet have registered the case in
Crime No.6/2007 against the Accused Nos.1 and 2, who
are the drivers of lorry bearing No.KA-05/AF-936 and KA-
05/C-8697 for the commission of offence punishable under
Sections 379 and 188 of IPC and submitted the F.I.R to
the Court. That on 17.01.2007, the Investigating Officer
has conducted spot mahazar as per Ex.P6 and recorded
statement of witnesses and after completion of the
investigation, the Investigating Officer has submitted the
charge sheet against the accused for the offence
punishable under Sections 188 and 379 of IPC. After filing
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the charge sheet, the Trial Court has blindly and
mechanically taken cognizance against the accused for the
commission of offence punishable under Section 188 of
IPC ignoring provisions of Section 195 of Cr.P.C.
12. In this regard, it is appropriate to mention here
as to the provisions of Section 195 of Cr.P.C:
"195. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and
for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to
188 (both inclusive) of the Indian Penal Code (45 of
1860 ), or
(ii) of any abetment of, or attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he
is administratively subordinate;
(b) (i) of any offence punishable under any of the
following sections of the Indian Penal Code (45 of
1860), namely, sections 193 to 196 (both inclusive),
199, 200, 205 to 211 (both inclusive) and 228, when
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such offence is alleged to have been committed in, or
in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or
punishable under section 471, section 475 or section
476, of the said Code, when such offence is alleged to
have been committed in respect of a document
produced or given in evidence in a proceeding in any
Court, or
(iii) of any criminal conspiracy to commit, or attempt to
commit, or the abetment of, any offence specified in
sub- clause (i) or sub- clause (ii), except on the
complaint in writing of that Court, or of some other
Court to which that Court is subordinate.
(2) Where a complaint has been made by a public
servant under clause (a) of sub- section (1) any
authority to which he is administratively subordinate
may order the withdrawal of the complaint and send a
copy of such order to the Court; and upon its receipt by
the Court, no further proceedings shall be taken on the
complaint: Provided that no such withdrawal shall be
ordered if the trial in the Court of first instance has
been concluded.
(3) In clause (b) of sub- section (1), the term" Court"
means a Civil, Revenue or Criminal Court, and includes
a tribunal constituted by or under a Central, Provincial
or State Act if declared by that Act to be a Court for the
purposes of this section.
(4) For the purposes of clause (b) of sub- section (1), a
Court shall be deemed to be subordinate to the Court
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to which appeals ordinarily lie from the appealable
decrees or sentences of such former Court, or in the
case of a Civil Court from whose decrees no appeal
ordinarily lies, to the principal Court having ordinary
original civil jurisdiction within whose local jurisdiction
such Civil Court in situate: Provided that-
(a) where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be the
Court to which such Court shall be deemed to be
subordinate;
(b) where appeals lie to a Civil and also to a Revenue
Court, such Court shall be deemed to be subordinate to
the Civil or Revenue Court according to the nature of
the case or proceeding in connection with which the
offence is alleged to have been committed.
13. On a perusal of the material placed before this
Court, absolutely there are no materials to prove that the
accused have committed the offence punishable under
Section 188 of IPC.
14. There is a bar to take cognizance against the
accused for the offence under Section 188 of IPC except
on the complaint in writing to the Court as required under
Section 195 of Cr.P.C. In the case on hand, the Trial
Court took cognizance against the accused not on the
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complaint filed by the concerned officer as defined under
Section 2(d) of Cr.P.C., but on the basis of police report
which is not sustainable under law. Both Courts have
committed an error as to the non-compliance of
mandatory provisions of Section 195 of Cr.P.C. Hence, the
Judgment of conviction and order of sentence passed by
the Trial Court in respect of offence under Section 188 of
IPC which is confirmed by the Appellate Court is not
sustainable in law.
15. With regard to the offence punishable under
Section 4(1)(A) read with Section 21(1) of Mines and
Minerals (Development and Regulation) Act, 1957
(hereinafter referred to as 'MMDR' Act for short) is
concerned, the Investigating Officer has not filed the
charge sheet or complaint for the alleged commission of
offence under Section 21(1) of MMDR Act. But only on the
application filed by the prosecution under Section 216 of
Cr.P.C., the Trial Court has framed the charges against the
accused for the commission of offence punishable under
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Section 21(1) of MMDR Act ignoring the provisions of
Section 22 of MMDR Act.
16. It is appropriate to mention here as to the
provisions of Section 22 of the MMDR Act, which reads as
under:
22. Cognizance of offences.--No court shall take
cognizance of any offence punishable under this Act or
any rules made thereunder except upon complaint in
writing made by a person authorised in this behalf by the
Central Government or the State Government.
17. Both the Courts have ignored the provisions of
Section 22 of MMDR Act. Hence, the Judgment of
conviction and order on sentence passed by the Trial Court
for the commission of offence punishable under Section
4(1)(A) read with Section 21(1) of MMDR Act, is not
sustainable under law. Accordingly, the order of
conviction and sentence passed pertaining to the offence
under Section 21(1) of MMDR Act is liable to be set aside.
18. Accordingly, I answer Point No.1 in the
affirmative.
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Regarding Point No.2:
19. With regard to the offence punishable under
Section 379 of IPC is concerned, it is the case of the
prosecution that the Accused Nos.1 and 2 being the driver
of lorry bearing No.KA-05/AF-936 and lorry bearing
No.KA-05-C-8697, have committed theft of sand worth
about Rs.2,000/-, thereby, committed the offence
punishable under Section 379 of IPC. The complainant-
Nooruddin Shariff who is the Tahasildar, K.R.Pet has
deposed in his evidence as to the contents of the
complaint-Ex.P1 and also the order passed by the
Tahasildar as per Ex.P4 as to transportation of sand. The
owner of the lorries have not been cited as witnesses in
the charge sheet. Even the Investigating Officer has not
examined the owner of the lorry before this Court. The
registration of certificate of the above said lorries are also
not placed before this Court. The investigating officer has
not collected any material to prove that the Accused Nos.1
and 2 were the drivers of the lorries at the relevant point
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of time. The Investigating Officer has not explained
anything as to non-production of driving licence and
registration of certificate of the above said lorries.
20. P.W.2-Lakshmikanth, Revenue Inspector, P.W.3-
Gopalakrishna, Revenue Inspector, P.W.4-R.K.Nagaraju,
P.W.6-Ravikumar and P.W.7-Manjesha have also deposed
as to the seizure of lorry.
21. PW.1-Nooruddin Shariff, the complainant has
not deposed in his evidence that he has apprehended
accused No.1 while loading the sand to the lorries. First of
all, the investigating officer has not collected the materials
to show the owner of the lorries who has entrusted these
accused for transportation of sand and that are no
sufficient cogent, convincing, clinching and believable
evidence to convict the accused for the offence punishable
under Section 379 r/w 34 of Indian Penal Code.
22. Both the Courts have not properly appreciated
the evidence on record in accordance with law and facts.
Accordingly, the revision petitioner/accused Nos.1 and 2
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have made out a ground to interfere with the judgment of
conviction and order of sentence passed by the Trial Court
under Section 379 of IPC which is confirmed by the
Appellate Court. Hence, I answer point No.2 in
affirmative.
Regarding Point No.3:
23. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
i. Criminal revision petition is allowed.
ii. Judgment of conviction and order of
sentence dated 10.04.2013 passed in
C.C.No.323/2007 by the Court of the Civil
Judge and JMFC, Krishnarajpet, which is
confirmed by the judgment dated
28.05.2014 passed in Crl.Appeal
No.75/2013 by the Court of the III Addl.
District & Sessions Judge, Mandya (Sitting
at Srirangapatna) are set aside.
are acquitted for the offence punishable
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under Section 379 and 188 of Indian
Penal Code and Section 4(1)(A) read with
Section 21(1) of MMDR Act.
iv. If any fine amount is paid by the accused,
the same shall be paid to them.
v. Registry is directed to send copy of this
order along with records to the concerned
Courts.
Sd/-
JUDGE
BNV,SSD
CT:SNN
