Dismissed

Manju S/O Armugam v. the State of Karnataka

Karnataka HC19 Jul 2021CRL.RP/228/2012

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed a criminal revision petition challenging an appellate order remanding a conviction for forest offences for retrial due to insufficient evidence. The Court upheld the remand order, noting the First Appellate Court correctly found evidence inadequate and exercised discretion to ensure a fair trial.

What did the court decide?

Revision petition dismissed; trial records returned to be disposed of by Magistrate by 31.01.2022.

Manju S/O Armugam Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE V.SRISHANANDA

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CRIMINAL REVISION PETITION NO.228 OF 2012

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BETWEEN :

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MANJU, S/O ARMUGAM, AGED ABOUT 36 YEARS, OCC: COOLIE, R/AT SIDDARAMATTI VILLAGE, DEVARAHALLI POST, BHADRAVATHI TALUK, DISTRICT SHIMOGA.

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…PETITIONER

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AND :

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THE STATE OF KARNATAKA, BY RANGE FOREST OFFICER, BHADRAVATHI RANGE, BHADRAVATHI.

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…RESPONDENT

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(BY SRI SHOWRI H.R., HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 OF CR.P.C. PRAYING TO SET – ASIDE THE JUDGMENT AND ORDER DATED 04.02.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, BHADRAVATHI IN CRL.A.NO.65/2011 IN REMANDING THE MATTER TO THE COURT OF CIVIL JUDGE ADDL. JMFC, BHADRAVATHI IN C.C.NO.4808/2006.

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THIS CRIMINAL REVISION PETITION COMING ON OR HEARING THIS DAY THROUGH VIDEO CONFERENCING, THE COURT MADE THE FOLLOWING:-

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ORDER

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Accused No.1 who was convicted in

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C.C.No.4808/2006 on the file of Prl. Civil Judge and J.M.F.C., Bhadravathi by order dated 18.03.2011 challenged the said order whereby accused No.1 is convicted for the offences under Sections 86 and 87 of the Karnataka Forest Act, 1963 (hereinafter referred to as ‘the Act’ for short) and sentencing him to undergo Simple Imprisonment of two years for each of the offences and ordered to pay fine of Rs.2,500/- for each of the offences and confirmed by the Fast track Court, Bhadravathi in Crl.A.No.65/2011. Against the same judgment, State has also preferred an appeal in Crl.A.No.71/2011 seeking enhancement of the sentence. The learned Judge in the First Appellate Court, after hearing the parties, has set

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aside the judgment and order of conviction and remitted the matter to the trial Court and directed the trial Court to afford sufficient opportunity for the prosecution to examine the already cited remaining charge sheet witnesses and dismissed the appeal of the State.

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Being aggrieved by the said order of remand, accused No.1 is before this Court in this revision petition.

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Brief facts which are necessary for disposal of the case are as under:

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The Forest Officials at Aralihalli Section along with their staff members on credible information on 02.07.1999 kept a watch for the persons who were indulged in illegally transporting wood pieces on their shoulder. When they were so watching, they spotted three persons near Antharagange Ajjigudda foot track

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at about 06.00 A.M. and caught hold of three persons along with the wood pieces they were carrying on their shoulder and drew a panchnama and ultimately, they were arrested and a case came to be filed in Crime No.94/1999-2000 for the offences punishable under Sections 86 and 87 of the Act.

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After thorough investigation, charge sheet was filed by the Range Forest Officer before the Jurisdictional Magistrate for the aforesaid offences.

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Learned Magistrate took cognizance of the aforesaid offences and recorded the plea. Since, accused persons did not plead guilty, trial was held. In order to substantiate the case of the prosecution, prosecution examined only four witnesses as PW.1 to PW.4, who are the forest guards.

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The prosecution also relied on four documentary evidence namely, two panchanama and

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a photograph and FIR. No material objects were marked. Learned trial Magistrate after conclusion of the prosecution evidence, recorded the accused statement as contemplated under Section 313 Cr.P.C., wherein, accused No.1/revision petitioner denied all incriminating circumstances. During the trial, accused Nos.2 and 3 absconded themselves and therefore, learned trial Magistrate directed the Investigation Agency to file a split up charge sheet against them and the trial was progressed only against accused No.1.

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After hearing the arguments in detail of prosecution and the defense , the learned trial Magistrate convicted the accused No.1 as aforesaid.

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Being aggrieved by the same, the accused No.1 preferred an appeal before Hon’ble Fast Track Court, Shivamogga (Sitting at Bhadravathi). The State

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also filed an appeal seeking enhancement of the sentence.

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The learned Judge in the First Appellate Court, heard the State as well as the accused and by order dated 04.02.2012, allowed the appeal of the accused and remitted the matter with a direction to the trial Magistrate to afford suitable opportunity to examine all the cited witnesses by the prosecution and consequently, dismissed the appeal of the State.

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Against the said order of remitting the matter for further trial, accused No.1 is before this Court in revision petition.

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Learned counsel for the revision petitioner Sri Umesh P. B. vehemently contended that the approach of the First Appellate Court allowing the prosecution to examine additional witnesses is incorrect. He further argued that before remitting the

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matter for further trial by the impugned judgment, the learned Judge in the First Appellate Court must have recorded the satisfaction that the available evidence on record is hardly sufficient to arrive at a just conclusion in the case and such a finding is missing in the impugned judgment and therefore, the impugned judgment is bad in law.

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He further contended that allowing the prosecution to examine the further witnesses is giving a second chance for the prosecution to prove the case which is incorrect and thus, sought for allowing the revision petition.

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13 . Per contra , Sri Showri H.R., learned HCGP supported the impugned judgment and drew the attention of this Court to the paragraph No.13 of the impugned judgment wherein, the learned Judge of the First Appellate Court has recorded a categorical

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finding that the material evidence available on record is hardly sufficient to arrive at a just conclusion and therefore, sought for dismissal of the revision petition.

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In view of the rival contentions, the sole

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point that would arise for consideration is –

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“Whether the revision petitioner has made out a case to interfere with the order of the learned Judge in the First Appellate Court passed in Crl.A.No.65/2011 whereby, the matter is remitted to the learned trial Magistrate for fresh disposal in accordance with law?.”

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This Court having heard the arguments of both the parties in detail, perused the records including the original records.

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The material available on record clearly shows that on behalf of the prosecution, four

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witnesses have been examined as PWs.1 to 4 and all the four persons are Forest Officials.

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Likewise, the documentary evidence

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available on record are two panchanamas which are exhibited and marked as Exs.P.1 and P.2 and Ex.P.3 is the photograph of the allegedly seized wood from the custody of the accused persons. Ex.P.4 is the FIR.

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It is pertinent to note that the Investigation Officer is not examined in the case and the seized wood is also not marked as a material object. So also, there is dispute as to whether the seized wood is Sandal Wood or not is report given by the expert is also not properly exhibited and marked and the author of the report is also not examined before the Court.

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Despite all these lacune on record, the trial Magistrate proceeded to convict the accused for the

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offences punishable under Sections 86 and 87 of the Act.

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These aspects of the matter have been rightly appreciated by the learned Judge in the First Appellate Court and came to the conclusion that in the absence of proper evidence placed by the prosecution, conviction passed by the trial Magistrate was incorrect and has resulted in miscarriage of justice and thus rightly set aside the judgment.

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While doing so, the learned judge in the First Appellate Court looking into the fact that the sandal wood smuggling is a menace, which should not be allowed to rigors of law merely on technicalities, has allowed the prosecution to place the additional evidence, if any, and so as to reach a just conclusion in the case.

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It is pertinent to note that the matter before the First Appellate Court was an appeal and the learned judge in the First Appellate Court was entitled to re-appreciate both facts and law on record and arrived at a just conclusion. While so doing, the material available on record placed by the prosecution recorded a finding that materials on record was hardly sufficient to reach just conclusion in the case and therefore, the learned judge in the First Appellate Court has rightly used its discretion in sound manner and ordered for retrial noting that there was no fair trial conducted.

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It is settled law that the concept of fair trial is not only applicable to the accused but also to the prosecution as well. Therefore, even though the learned judge in the First Appellate Court has not stated in so many words that material on record is hardly sufficient to order for retrial, this Court while

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appreciating the impugned judgment in a cumulative manner is of the opinion that the material available on record before the First Appellate Court was hardly sufficient to arrive at a just decision and therefore, has rightly exercised its discretion in ordering for retrial as contemplated under the provisions of Sections 374 and 372 of Cr.P.C.

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This Court does not find any legal infirmity or error of jurisdiction in the First Appellate Court recording such a finding. Moreover, accused will have full opportunity to cross examine. Accordingly, this Court is of the considered opinion that the grounds urged by the revision petitioner are hardly sufficient to interfere with just order of the First Appellate Court and accordingly point is answered in negative and following order is passed:

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ORDER

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Revision petition sans merit and hereby

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dismissed .

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The office is directed to return the trial Court records with the copy of this order, forthwith.

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The trial Magistrate thereafter shall secure the presence of the revision petitioner and proceed with case in accordance with law. Having regard to the age of the matter, the trial Magistrate is directed to dispose of the matter as early as possible but not later than 31.01.2022.

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Sd/JUDGE

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HA/-

Manju S/O Armugam v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Manju S/O Armugam v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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