Dismissed

The State of Karnataka v. Ramesh R/O Mahadevappa Ajjodi

Karnataka HC9 Dec 2020CRL.A/2682/2011

Case brief

AI extract

What is this about?

In Criminal Appeal No.2682/2011, the High Court of Karnataka dismissed the appellants appeal as not maintainable. The court held that Section 341 of Cr.P.C. does not apply to an order closing a case in a subsequent Criminal Miscellaneous proceeding, especially after the original Section 340 application was allowed.

What did the court decide?

The appeal is dismissed as not maintainable. No order as to costs.

The State of Karnataka Vs Ramesh R/O Mahadevappa… — Writ and Judicial Review | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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VISHAL NPATTIHAL Digitallysigned byVISHAL NPATTIHALDate:2020.12.1515:36:11+0530 DATED THIS THE 9^{T H} DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL APPEAL NO.2682/2011

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BETWEEN:

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THE STATE OF KARNATAKA REPRESENTED BY SPECIAL PUBLIC PROSECUTOR KARNATAKA LOKAYUKTA HIGH COURT OF KARNATAKA CIRCUIT BENCH, DHARWAD.

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….APPELLANT.

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(BY SHRI G.I.GACHCHINAMATH, ADVOCATE.)

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AND:

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RAMESH S/O.MAHADEVAPPA AJJODI AGE: 42 YEARS, OCC: TECHNICIAN, UNIVERSITY OF AGRICULTURAL SCIENCES, DHARWAD.

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….RESPONDENT.

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(BY SHRI NEELENDRA GUNDE, ADVOCATE.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 341 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 25.2.2010, PASSED BY III ADDL. DISTRICT AND SESSIONS AND SPECIAL JUDGE, DHARWAD, IN CRL.MISC.NO.366/2010, ETC.,.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by complainant against the order of closure of case dated 25.8.2010, passed by III Addl. District and Sessions and Special Judge, Dharwad, in Crl.Misc.No.366/2010, for the offence punishable under section 193 of IPC.

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Brief facts leading to filing of this case are as under:

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Prosecution has initiated a case against respondent/accused alleging that he has committed an offence punishable under section 7 and 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988. In the said case PW.1 Ramesh Mahadevappa Ajjodi, resident of Dharwad was complainant, who set the law in motion. The said case was initiated in Spl.KLA.C.C.No.1/2007. It is stated that in the said case PW.1 adduced his evidence but later

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retracted the statement and thereby he turned hostile to the case of prosecution. Since the said Ramesh retracted on his statement and gave a false evidence before the Court, learned District and Sessions Judge/Special Judge, Dharwad, passed an order directing the registration of case against said Ramesh Mahadevappa Ajjodi for the offence punishable under section 193 of IPC. Application filed by Spl. P.P. under section 340 of Cr.P.C., came to be allowed. Thereafter based on the said order, criminal miscellaneous came to be registered in Crl.Misc.No.366/2010 against said Ramesh Mahadevappa Ajjodi. After initiation of the case against appellant herein on a complaint under section 340 read with section 195(b) of Cr.P.C., notice was issued to accused and after his appearance before the Court, learned III Addl.

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District and Sessions Judge, Dharwad, passed an order on 25.8.2010 which reads as under:

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“The Respondent is present. Heard him and perused his explanation.

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Satisfied. Explanation is accepted and case is closed.”

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Being aggrieved by this order passed by III Addl. District and Sessions Judge and Special Judge, Dharwad, appeal is preferred before this Court challenging the correctness and legality of the said order.

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It is contended by learned counsel for appellant that the order which is in the nature of acquittal is contrary to material available on record and it is against principles of natural justice and the same deserves to be set aside. Learned counsel further contends that the evidence given by PW.1/accused herein clearly discloses ingredients of offence punishable under section 193 of IPC, which is ignored by trial Court and thereby the order of closure in the form of acquittal is perverse and illegal order. Learned counsel also contends that trial Court has not applied its mind, therefore has passed a cryptic order without there being any proper reason with

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regard to explanation given by accused and the allegations made against him. Learned counsel further contends that the order is liable to be set aside even on the ground of there being no proper reasoning and explanation for closure of the case. He further contends that viewed from any angle, dropping of present case against accused in Crl.Misc.No.366/2010 is not legally sustainable and the same deserves to be set aside. On these submissions he seeks to allow the appeal and set aside the order passed by trial Court.

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Per contra, learned counsel for accused contends that the order passed by trial Court is in accordance with law and the same is passed accepting the explanation provided by accused and therefore since there was no material to proceed further in the matter, trial Court has rightfully accepted the explanation of accused and closed the case. Learned counsel for respondent/accused contended that the appeal as filed herein under section 341 of Cr.P.C. is not

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maintainable on the facts and circumstances of the present case and hence on this ground itself appeal is liable to be rejected.

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Though both learned counsels have vehemently argued on merits of the matter, I deem it proper to consider primarily whether appeal is maintainable and the present provisions as filed by the appellant. In view of the same, the point that arises for consideration before this Court is:

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Whether the appeal as filed by appellant under section 341 of Cr.P.C. is maintainable on the facts and circumstances of the present case?

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I would like to deal with this issue of maintainability of appeal, without going into merits of the matter as the same may prejudice the interest of both parties. In order to consider the same, it is essential to have a look at the

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provisions of section 340 of Cr.P.C., which reads as under:

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340. Procedure in cases

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mentioned in section 195. —(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,—

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(a) record a finding to that effect;

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(b) make a complaint thereof in writing;

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(d) take sufficient security for the appearance of the accused before such

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Magistrate, or if the alleged offence is nonbailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

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(e) bind over any person to appear and give evidence before such Magistrate.

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(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.

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(3) A complaint made under this section shall be signed,—

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(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

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(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.

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(4) In this section, “Court” has the same meaning as in section 195.

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The present appeal is filed by appellant under section 341 of Cr.P.C., which reads as under:

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341. Appeal. —(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or subsection (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of subsection (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the

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complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.

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(2) An order under this section and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision.

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On a careful perusal of the above provision of filing an appeal under section 341 of Cr.P.C., it is seen that any person on whose application the Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340 of Cr.P.C. or against whom such a complaint has been made by such Court made an appeal to the Court to which such former Court is subordinate within the meaning of sub-section 4 of section 195 and thereafter a superior Court

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may thereupon after notice to parties direct withdrawal of complaint as the case may be. Making of complaint, such former Court might

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have made under section 340 of Cr.P.C. and if it makes such complaint, the provisions of that section would apply to it.

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On a bare reading of this above provision of filing an appeal, it is seen that there are two contingencies forthcoming under Section 341 of Cr.P.C. The first one being, if an application is made to the Court which has refused to make a complaint under Section 340 (1) (2) of Cr.P.C. then the cause of action arises for filing of an appeal by such party whose application has been refused by the said Court. The second contingency would be that when such a complaint has been made against accused by the Court, such aggrieved person, the accused, may appeal under this Section. Therefore, under these two contingencies an appeal is maintainable under Section 341 of Cr.P.C.

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In the present case on hand, both these contingencies do not arise for filing an appeal under this Section as the Court of first instance by

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virtue of an order allowed the application filed under Section 340 of Cr.P.C. filed before it and directed the registration of a Criminal Miscellaneous case against accused herein and also directed to issue show cause notice calling upon him as to why this Court should not file a complaint against him under Section 340 r/w 195 (b) of Cr.P.C. for having committed an offence punishable under Section 193 of IPC.

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It is pertinent to note here that pursuant to the said order a criminal miscellaneous case came to be registered in case No.366/2010 before the Principal Sessions Judge, Dharwad and on initiation of said case, a separate order is passed which is impugned herein. Therefore, proceedings under Section 340 of Cr.P.C. initiated by the Court of first instance has already come to an end and a separate miscellaneous case has been initiated in which the impugned order is passed closing the case after accepting explanation given by accused-

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respondent herein. The appellant has filed present appeal being aggrieved by the said order of closure of case in Criminal Miscellaneous No.366/2010. In my considered opinion, the present appeal filed under the provisions of Section 341 of Cr.P.C. is not maintainable as the appellant will have to take recourse to other remedies in law. Hence, without going into merits of the matter, this appeal is disposed of on the ground of maintainability. It is made clear that this Court has not expressed any opinion or observation on the merits of the matter.

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Accordingly, I pass the following:

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ORDER

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Appeal is dismissed as not maintainable.

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Sd/JUDGE

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Mrk/msr

The State of Karnataka v. Ramesh R/O Mahadevappa Ajjodi

Case brief

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The State of Karnataka v. Ramesh R/O Mahadevappa Ajjodi

Case brief

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