Salimahammad Alias Nannemiya Vs the State of Karnataka

THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. (528 OF BNSS), SEEKING TO SET ASIDE THE IMPUGNED ORDER PASSED BY CIVIL JUDGE AND JMFC SAVANUR IN C.C.NO. 297/2016 DATED 27.02.2023 ACCORDINGLY ALLOW THE APPLICATION FILED BY PETITIONER UNDER SECTIONS 311 OF CRIMINAL PROCEDURE CODE, 1973, R/W SECTION 165 OF INDIAN EVIDENCE ACT, 1872 TO MEET THE ENDS JUSTICE.

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THIS CRIMINAL PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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NC: 2025:KHC-D:4397 CRL.P No. 100698 of 2023

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ORAL ORDER

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This petition is filed by the sole accused under Section 482 of the Code of Criminal Procedure praying to set aside the order dated 27.02.2023 passed in C.C. No.297/2016 by the learned Civil Judge and JMFC, Savanur, whereunder the application filed by the petitioner under Section 311 of the Code of Criminal Procedure read with Section 165 of the Indian Evidence Act, 1872, came to be rejected.

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The petitioner is facing trial for the offences punishable under Sections 417 and 420 of the Indian Penal Code and Sections 38 and 40(2) of the Karnataka Ayurvedic and Unani Practitioners’ Registration and Medical Practitioners Miscellaneous Provision Act, 1961. As per column 17 of the charge-sheet, the accusation against the petitioner is that, the petitioner is found practicing as a Doctor in his clinic on 09.07.2015 at 12:00noon and he did not possess permission from the authorized Authorities. FIR came to be registered on

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receipt of mahazar Ex.P-1 signed by the Doctor Bhagirathi Medleeri, incharge DHO, Dr. Chandrakala, Incharge Taluka Health Officer, Savanur and another. In the FIR, the name of the first informant is stated as Dr. Bhagarathi Medleeri, incharge DHO. After completion of prosecution evidence, the petitioner filed an application under Section 311 of Cr.P.C. read with Section 165 of the Indian Evidence Act seeking issuance of witness summons to the DHO, Haveri, with a direction to produce the documents and information contained in the application. The learned APP has filed objections to the said application. The learned Magistrate has rejected the said application by the impugned order dated 27.02.2023. The said order has been challenged by the accused in this petition.

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Heard the learned counsel for the petitioner and the learned AGA for the respondent-State.

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Learned counsel for the petitioner would contend that he has produced Ex.D-1-Certificate of Registration of the hospital by name Saleem Clinical

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Centre and the said certificate has been issued by the DHO. He further submits that, prior to filing of the said application, the counsel for accused No.1 has filed an application dated 29.12.2022 to the DHO, Haveri, for furnishing information and the said information has not been furnished. He further submits that, the petitioner has received an endorsement dated 01.02.2023 signed by DHO, Haveri, that the said information will be furnished to the Court directly. He submits that, therefore, the petitioner has filed an application under Section 311 of Cr.P.C. seeking production of documents and information sought in the application. He submits that the learned Magistrate has swayed away by the evidence of PW.1 stating that PW.1 is the Incharge DHO and the petitioner ought to have questioned in her cross-examination seeking the information and he has not done so. Therefore, he submits that, PW.1 is not the DHO and she

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is Incharge Taluka Health Officer, Savanur. He submits that the information sought for in the application is necessary in order to establish the defense of the

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petitioner/accused. With this, he prayed to allow the petition.

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Learned Additional Government Advocate would

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contend that the learned Magistrate considering the evidence on record and documents produced, has rightly passed the impugned order rejecting the application of the petitioner.

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Having heard the learned counsel for the parties, the Court has perused the impugned order and other material placed on record.

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Prior to filing of the application under Section 311 of Cr.P.C., the counsel for the petitioner made an application to the DHO, Haveri, seeking documents and information and the DHO gave an endorsement dated 01.02.2023 that the said information and the documents will be furnished to the Court directly. As he did not get the information and the documents from the concerned DHO, the petitioner made an application under Section 311 of Cr.P.C. for issuance of witness summons to the

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NC: 2025:KHC-D:4397 CRL.P No. 100698 of 2023

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DHO, Haveri, with a direction to produce the documents and information as sought in the application. In the said application, the petitioner has sought for the names and registration numbers of Registered Karnataka Private Medical Establishments in Savanur taluk between the period from 01.01.2012 to 20.12.2022 and other documents. It is the defense of the petitioner/accused that he has got registered under the doctor practicing in the said clinic as Dr. Savitha S. Hombali and he has not committed any offence as alleged. In order to establish the said defense, the information and the documents sought for by the petitioner in his application are necessary. The petitioner had made efforts to get the documents and information from the DHO, Haveri, and as he was not furnished with the documents and information, he made an application under Section 311 of Cr.P.C. The learned Magistrate has rejected the application on the ground that PW.1 is the DHO and the petitioner ought to have asked questions and obtained information in her crossexamination. PW.1 is the Medical Officer in Yelavigi

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Primary Health Centre and she is incharge of Taluka Health Officer

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Considering the said aspect, it is clear that the learned Magistrate has erred in rejecting the application filed by the petitioner.

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9. In the result, the following

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ORDER

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The petition is allowed. The impugned order dated 27.02.2023 passed in C.C. No.297/2016 by the learned Civil Judge and JMFC, Savanur, is set aside. The application filed by the petitioner under Section 311 of Cr.P.C. read with Section 165 of the Indian Evidence Act, stands allowed.

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Learned Magistrate is directed to issue witness summons as sought in the said application.

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Sd/-

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(SHIVASHANKAR AMARANNAVAR) JUDGE

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kmv

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CT-ASC

Salimahammad Alias Nannemiya v. the State of Karnataka

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Salimahammad Alias Nannemiya v. the State of Karnataka

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