Partly allowed

Shri. Sudir v. the State of Karnataka

Karnataka HC24 Feb 2021CRL.RP/100010/2021

Case brief

AI extract

What is this about?

This judgment allows criminal revision petitions and sets aside the dismissal of criminal appeals filed by accused persons. The High Court held that the first appellate court erred in dismissing appeals for non-prosecution merely due to the absence of counsel. The matter was remanded to allow disposal on merits via evidence re-appreciation. Principles from Bani Singh Vs. State of U.P. were applied

What did the court decide?

Order of dismissal of appeals set aside; matter remanded to First Appellate Court for disposal on merits within three months.

Shri. Sudir Vs the State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 24^th DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO. 100008/2021 c/w CRIMINAL REVISION PETITION NOs.100010/2021, 100011/2021, 100012/2021, 100013/2021

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IN CRL.RP NO.100008 OF 2021

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BETWEEN

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1 . SHRI. RUDRAPPA S/O. YALLAPPA TEGUR, AGE. 47 YEARS, OCC. COOLIE, R/O. PALMBHAVI, TQ. JAMAKHANDI, DIST. BAGALKOT-587110

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2 . SHRI. SUDIR S/O. SHIVAPPA DEVANNAVAR @ HANAGANDI AGE. 31 YEARS, OCC. COOLIE, R/O. MUGALKHOD, TQ. RAIBAGH, DIST. BELAGAVI-587110

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...PETITIONER

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(BY SRI. HEMANTHKUMAR L HAVARAGI, ADV,)

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AND

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THE STATE OF KARNATAKA TERDAL POLICE STATION, TERDAL, R/BY STATE PUBLIC PROSECUTOR

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RESPONDENT

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HIGH COURT OF KARNATAKA DHARWAD BENCH AT DHARWAD-580001

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(BY SMT. SEEMA SHIVA NAIK, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND SET ASIDE ORDER OF DISMISSED FOR NON-PROSECUTION ORDER DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A. NO.40/2015 AND JUDGMENT DATED 10/04/2015, PASSED BY CIVIL JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.196/2009, FOR OFFENCES PUNISHABLE U/S 379 R/W 34 OF IPC. IN SO FAR AS PETITIONERS ARE CONCERNED.

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IN CRL.RP NO.100010 OF 2021

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BETWEEN

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SHRI. SUDIR S/O. SHIVAPPA DEVANNAVAR @ HANAGANDI AGE. 31 YEARS, OCC. COOLIE, R/O. MUGALKHOD, TQ. RAIBAGH, DIST. BELAGAVI-587110

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...PETITIONER

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(BY SRI. HEMANTHKUMAR L HAVARAGI, ADVOCATE)

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AND

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THE STATE OF KARNATAKA TERDAL POLICE STATION, TERDAL, R/BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH AT DHARWAD-587110

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RESPONDENT

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(BY SMT. SEEMA SHIVA NAIK, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND SET ASIDE ORDER OF DISMISSED FOR NON-PROSECUTION ORDER DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A. NO.42/2015 AND JUDGMENT DATED 10/04/2015, PASSED BY CIVIL JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.198/2009, FOR OFFENCES PUNISHABLE U/S 379 R/W 34 OF IPC. IN SO FAR AS PETITIONER IS CONCERNED.

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IN CRL.RP NO.100011 OF 2021

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BETWEEN

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SHRI. GIRIMALLA S/O. LAXMAN DEVANNAVAR @ HANAGANDI AGE. 29 YEARS, OCC. AGRICULTURE, R/O. MUGALKHOD, TQ. RAIBAGH, DIST. BELAGAVI-587110

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...PETITIONER

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(BY SRI. HEMANTHKUMAR L HAVARAGI, ADV.)

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AND

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THE STATE OF KARNATAKA TERDAL POLICE STATION, TERDAL, R/BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH AT DHARWAD-587110

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RESPONDENT

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(BY SMT. SEEMA SHIVA NAIK, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND SET ASIDE THE DISMISSED FOR NON-PROSECUTION ORDER DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND

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SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A. NO.36/2015 AND JUDGMENT DATED 10/04/2015, PASSED BY CIVIL JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.199/2009 FOR OFFENCES U/S 379 R/W 34 OF IPC.

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IN CRL.RP NO.100012 OF 2021

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BETWEEN

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SHRI.GIRIMALLA S/O. LAXMAN DEVANNAVAR @ HANAGANDI AGE. 29 YEARS, OCC. AGRICULTURE, R/O. MUGALKHOD, TQ. RAIBAGH, DIST. BELAGAVI-587110

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...PETITIONER

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(BY SRI. HEMANTHKUMAR L HAVARAGI, ADV.)

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AND

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THE STATE OF KARNATAKA TERDAL POLICE STATION, TERDAL, R/BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH AT DHARWAD-580001

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RESPONDENT

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(BY SMT. SEEMA SHIVA NAIK, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND SET ASIDE ORDER OF DISMISSED FOR NON-PROSECUTION ORDER DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A. NO.39/2015 AND JUDGMENT DATED 10/04/2015, PASSED BY CIVIL JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.198/2009, O/P/U/S.379 R/W 34 OF IPC, IN SO FAR AS PETITIONER IS CONCERNED.

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IN CRL.RP NO.100013 OF 2021

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BETWEEN

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SHRI. GIRIMALLA S/O. LAXMAN DEVANNAVAR @ HANAGANDI AGE. 29 YEARS, OCC. AGRICULTURE, R/O. MUGALKHOD, TQ. RAIBAGH, DIST. BELAGAVI-587110

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...PETITIONER

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(BY SRI.HEMANTHKUMAR L HAVARAGI, ADV.)

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AND

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THE STATE OF KARNATAKA TERDAL POLICE STATION, TERDAL, R/BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH AT DHARWAD-587110.

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RESPONDENT

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(BY SMT. SEEMA SHIVA NAIK, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND SET ASIDE ORDER OF DISMISSED FOR NON-PROSECUTION ORDER DATED 18/06/2018, PASSED BY THE I ADDL. DISTRICT AND SESSION JUDGE, BAGALKOT, SITTING AT JAMAKHANDI, IN CRL.A. NO.38/2015 AND JUDGMENT DATED 10/04/2015,O/P/U/S.379 R/W 34 OF IPC PASSED BY CIVIL JUDGE AND JMFC COURT, BANAHATTI IN C.C.NO.196/2009.

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THESE PETITIONS COMING ON FOR ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Though these matters came up for suspension of sentence, with the consent of both the counsel appearing for the petitioners and the learned High Court Government Pleader, the cases were heard finally.

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Accused No.2(Sri.Girimalla) filed Criminal Revisions Petition Nos.100008/2021, 100012/2021 and 100013/2021, accused Nos.1 and 4 (Sri.Rudrappa and Sri Sudir) filed and Criminal Revision Petition No.100008/2021 and accused No.3 (Sudir) filed Criminal Revision Petition No.100010/2021 against the order of dismissal of the appeals filed by the petitioners for non-prosecution by the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in Criminal Appeal Nos.40/2015, 38/2015, 36/2015, 39/2015 and 42/2015 vide order dated 10/04/2015 (hereinafter referred as the ‘first appellate Court’) on the judgment passed in CC Nos.196/2009, 199/2009, 198/2009 vide order dated 18.06.2018 by the learned Civil Judge and JMFC, Banahatti (hereinafter referred as the ‘trial Court’).

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Heard the argument of the learned counsel for the petitioner and the learned High Court Government Pleader and perused the records.

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The case of the petitioners before the trial Court is that the Terdal Police filed charge sheet against the accused persons 1 to 4 for the offence punishable under Sections 379, 357 read with Section 34 of the Indian Penal Code and three cases were registered in CC Nos.196/2009, 199/2009 and 198/2009. After trial, the trial Court convicted the accused persons and sentenced them to undergo imprisonment for six months for the offence under Section 379 read with Section 34 of IPC in all the cases. Assailing the same, the accused filed appeals before the first appellate Court in Criminal Appeal Nos.40/2015, 38/2015, 36/2015, 39/2015 and 42/2015 which were dismissed for non-prosecution for the absence of the appellant’s counsel. Assailing the same, the petitioners/accused have preferred these revision petitions.

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Learned counsel for the petitioner contended that the first appellate Court committed an error in dismissing the appeals filed by the petitioners for non-prosecution. The first appellate

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Court was required to re-appreciate the evidence on record and could have disposed of the appeals on merits. Dismissal of the appeal for non-prosecution is bad in law. At least the first appellate Court could have appointed an Amicus Curiae to represent the accused and later could have disposed of the matter on merits. Therefore, the first appellate Court committed an error in dismissing the appeals for non-prosecution. Hence, prayed for setting aside the order of dismissal and sought for remanding the matters.

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Per contra, learned High Court Government Pleader submits that the matter could be remanded to the first appellate Court for disposal on merits.

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Upon hearing the arguments addressed by the learned counsels for the petitioners and the learned Government Pleader and on perusal of the records, the point that arises for my consideration is

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Whether the first appellate Court committed error in dismissing the appeals for non-prosecution and calls for interference?

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It is not in dispute that the accused persons faced trial before the JMFC, Banahatti, and they have been charge sheeted for the above said offence and the trial Court has convicted the accused and assailing the same, the accused preferred appeals before the first appellate Court which came to be dismissed for nonprosecution due to the absence of the counsel which is against the provisions of Cr.P.C. as well as the liberty granted to the accused persons under the Constitution of India. As already stated, learned Government Pleader fairly admitted that dismissal of the appeals for non-prosecution could not have been passed by the first appellate Court, as it has to re-appreciate the evidence on record and dispose of the appeals on merit.

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On perusal of the order sheet of the first appellate Court which is produced by the petitioners’ counsel it reveals that the first appellate Court took up the matter on 18.06.2018 and held that there was no representation since from one year and the appeal is of the year 2015 and the learned counsel for the appellants failed to address arguments in spite of sufficient opportunities given and accordingly, dismissed the appeal for non-prosecution.

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On perusal of the order under revision, I am on the considered opinion that the first appellate Court committed an error in dismissing the appeals for non-prosecution. The first appellate Court was required to re-appreciate the evidence on record and disposed of the matter on merits. But it cannot be dismissed for non-prosecution merely because the counsel was not present and at least the first appellate Court ought to have issued notice to the accused intimating non-appearance of the counsel in the matter or could have appointed an Amicus Curiae to represent the accused and thereafter could have heard the appeals and disposed of the matter on merits. The dismissal of the appeals by the first appellate Court for non-prosecution is illegal and against the principles laid down by the Hon’ble Supreme Court in the case of Bani Singh Vs. State of U.P . reported in 1996(5) Supreme 455 wherein the Hon’ble Supreme Court has held as under:

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“ Held: the plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of

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Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of t he appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by t he trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record.

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Further Held: The law excepts the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be

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given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so.”

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In view of the principles laid down by the Hon’ble Supreme Court and even on perusal of Sections 303 and 304 of Cr.P.C., the first appellate Court has not chosen either to issue notice to the accused or appointed any Amicus Curiae for disposing of the matter on merits. But committed an error and illegality in dismissing the appeals for non-prosecution which is against the law

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and the same is liable to be set aside. Accordingly, the matter require to be remanded back to the first appellate Court for disposing of the matter on merits.

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Accordingly, I pass the following order:

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The Criminal Revision Petitions are allowed. The order of dismissal passed by the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in Criminal Appeal Nos.40/2015, 38/2015, 36/2015, 39/2015 and 42/2015 vide order dated 10/04/2015 set aside. The matter is remanded back to the first appellate Court for disposing of the case on merits.

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The petitioners shall appear before the first appellate Court without expecting any notice being issued by the first appellate Court. The parties are directed to appear before the first appellate Court on 22.03.2021 and the first appellate Court is required to dispose of the case on merits within three months from the date of receipt of a copy of this order. The counsel for the petitioners shall co-operate with the first appellate Court for disposal of the case.

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Registry is directed to send back the trial court records forthwith to the first appellate Court.

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In view of disposal of the revision petitions, I.A.2/2021 filed in these revision petitions does not survive for consideration and the same are dismissed.

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Sd/JUDGE

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kmv

Shri. Sudir v. the State of Karnataka

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Shri. Sudir v. the State of Karnataka

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