Allowed

A. S. Shankaranayana Setty v. State by Thalaghattapura

Karnataka HC15 Feb 2021CRL.RP/339/2018

Case brief

AI extract

What is this about?

Revision petition challenging acquittal of accused who assaulted petitioner. Court allowed petition holding first appellate court erred in disposing appeal on merits without hearing petitioner on interlocutory application regarding condonation of delay.

What did the court decide?

Impugned order of 27.12.2017 set aside and matter remanded to VII Addl. District & Sessions Judge for disposal after giving opportunity to both parties.

A. S. Shankaranayana Setty Vs State by… — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF FEBRUARY, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR

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CRIMINAL REVISION PETITION NO.339 OF 2018

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BETWEEN:

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A. S. SHANKARANAYANA SETTY, S/O SUBBAIAH SHETTY AGED ABOUT 70 YEARS, RESIDING AT NO.A6, GURUPIYA APARTMENT, NO.58, 6TH CROSS, CHAMARAJPET BENGALURU - 560 018. ...PETITIONER

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(BY SRI RAJASUBRAHMANYA BHAT B, ADVOCATE)

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AND:

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STATE BY THALAGHATTAPURA POLICE STATION, BENGALURU RURAL DISTRICT COURT COMPLEX, BENGALURU – 560 104.

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MUNIRAJU, S/O LATE HANUMANTHAPPA, R/AT THALAGHATAPURA, UTTARAHALLI HOBLI, BENGALURU – 560 061. …RESPONDENTS

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(BY SRI K NAGAENDRAPPA, HCGP FOR R1,

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SRI RAJANNA, ADVOCATE FOR R2)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO i) SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 03.07.2015 PASSED BY THE II ADDITIONAL C.J.M., BENGALURU RURAL DISTRICT, BENGALURU IN C.C.NO.1865/2012 AND JUDGMENT DATED 27.12.2017 PASSED BY THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN CRL.A.NO.12/2016 AND CONVICT AND SENTENCE THE RESPONDENT NO.2 FOR THE OFFENCE WITH WHICH HE HAS BEEN CHARGED IN ACCORDANCE WITH LAW.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING THROUGH PHYSICAL HEARING:

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ORDER

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Even though this revision petition is at the stage of admission, with the consent of learned counsel for the petitioner, learned HCGP and learned counsel for respondent No.2, heard arguments for final disposal.

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This revision petition is filed for setting aside the order dated 27.12.2017 passed in Criminal Appeal No.12/2016 by VII Addl. District & Sessions Judge, Bengaluru Rural District, Bengaluru.

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The case of the prosecution is that on the complaint filed by Sri.A.S.Shankarnarayana Setty, SHO of Thalaghattapura Police Station registered a complaint on 28.11.2011. The allegations are that the when petitioner-complainant was supervising the compound wall in his property bearing Sy.No.61/4 of Vijirahali Village, Uttarahalli Hobli, Kanakapura, at about 1:30 p.m., respondent No.2-accused (Muniraju) and his associates and his family members came to the said place and assaulted with stone on his neck and nose. After completion of investigation, Police submitted the charge sheet for the offence punishable under Sections 326 and 506 IPC. On filing of the charge sheet, learned Magistrate took cognizance of the offence punishable under Section 326 and 506 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution examined seven witnesses as P.Ws.1 to 7 and the documents are marked as Exs.P-1 to P-5. The material object is marked as M.O.1. After recording Section 313 statement, no defence evidence was adduced by the respondent-accused. On analyzing oral and documentary evidence, the trial Court came to the conclusion that there is no convincing evidence to prove the guilt and the accused was acquitted for the offence punishable

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under Section 326 and 506 IPC. Being aggrieved by the said order of acquittal, the victim-complainant has preferred the appeal. Since there was delay in filing the criminal appeal, the complainant had filed interlocutory application for condonation of delay. The said I.A. was heard, but instead of passing orders on I.A., the order was passed on merits and the appeal was dismissed confirming the order of acquittal passed by the trial Court.

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Learned counsel for the petitioner-complainant would

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contend that the first appellate Court had heard the arguments of respondent No.2-accused on I.A.No.I alone. Instead of passing the orders on I.A. for condonation of delay, the first appellate Court passed the orders on merits without affording an opportunity to the complainant. Thus, it has resulted in miscarriage of justice.

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Per contra, learned counsel for respondent No.2accused submits that the accused had filed the written arguments before the first appellate Court. Hence, order passed was on merits of the case. There are no valid grounds to interfere with the said order.

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During the course of arguments, learned counsel for the petitioner-complainant has produced the order sheet in Crl.A.12/2016 on the file of VII Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru. A perusal of the said order sheet disclose that on 05.08.2017 the submission of learned counsel for the appellant was heard on I.A.I and it was adjourned to 17.08.2017 to hear the counsel for the respondent-accused. On the next date of hearing i.e., on 17.08.2017 counsel for the respondent filed written arguments and the first appellate Court posted the criminal appeal for judgment instead of orders on I.A. Thereafter, it was adjourned for more than ten times and order was passed on 27.12.2017 on merits. Appeal preferred by the complainant was dismissed and the judgment of acquittal passed by the trial Court was confirmed.

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On hearing the contentions urged by the learned counsel for the petitioner-complainant and respondent-accused, the only point that arises for consideration is :

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“Whether the first appellate Court was justified in passing the orders on merits without affording opportunity to the petitioner-complainant?”

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As already stated above, the order sheet produced by the revision petitioner-complainant disclose that on 05.08.2017 I.A. was heard and it was adjourned to 17.08.2017 for submission of learned counsel for the respondent-accused on I.A. The counsel for respondent filed the written arguments and the first appellate Court posted the matter for judgment without affording opportunity to the counsel for petitioner-complainant. Thus, it is evident that the revision petitioner-complainant has been deprived of an opportunity to submit arguments in the criminal appeal. Under these circumstances, the order passed without giving opportunity to the counsel for revision petitioner is not justified. Hence, there are valid grounds to set-aside the order passed by the first appellate Court. Accordingly, I pass the following:

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ORDER

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i. Petition is allowed.

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ii. The impugned order dated 27.12.2017 passed in Criminal Appeal No.12/2016 by VII Addl. District & Sessions Judge, Bengaluru Rural District, Bengaluru is set-aside and the matter is remanded to the said Court for disposal after giving opportunity both parties.

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Sd/JUDGE

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BSR

A. S. Shankaranayana Setty v. State by Thalaghattapura

Case brief

What is this about?

What did the court decide?

A. S. Shankaranayana Setty v. State by Thalaghattapura

Case brief

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What did the court decide?

What the court decided

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