Sri. K S Raghu Vs State of Karnataka

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.PC PRAYING TO SET ASIDE THE ORDER DATED 18.04.2023, PASSED BY THE LEARNED V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA ON THE APPLICATION FILED BY THE PROSECUTION UNDER

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SECTION 311 OF CR.PC IN SPL.C.NO.185/2016 FOR THE OFFENCE PUNISHABLE UNDER SECTION 504, 506, 324, 448 OF IPC AND SECTION 4(i)(s), 4(1)(g)(t) OF SC/ST (POA) ACT NOW PENDING ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA.

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IN CRL.P.NO.8400 of 2023

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BETWEEN:

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SRI.K.S. RAGHU, S/O K C SHANKAREGOWDA, AGED ABOUT 59 YEARS, R/AT NO 454, MARIGOWDA LAYOUT, MANDYA - 571 401.

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...PETITIONER

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(BY SMT. ABHINAYA K. AND K.V.MANOJ, ADVOCATES)

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AND:

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STATE OF KARNATAKA BY MANDYA WEST P S (REPRESENTED BY STATE PUBLIC PROSECUTOR) HIGH COURT BUILDING BANGALORE - 560001

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MR SUBRAMANYAM M., S/O MANJUNATH M R, AGED ABOUT 52 YEARS R/ATNO 1080, RAMAKRISHNA NAGARA, E AND H BLOCK

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MYSURU - 571602

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...RESPONDENTS

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(BY SMT. M.M.WAHEEDA, HCGP FOR R1)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.PC PRAYING TO SET ASIDE THE ORDER DATED 18.04.2023, PASSED BY THE LEARNED V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA ON THE APPLICATION FILED BY THE PROSECUTION UNDER SEC.231(1) CR.PC IN SPL.C.NO.185/2016 FOR THE OFFENCE PUNISHABLE UNDER SECTION 504, 506, 324, 448 OF IPC AND UNDER SECTION 4(i)(s), 4(1)(g)(t) OF SC/ST (POA) ACT NOW PENDING ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA.

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THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In Crl.P.No.8398/2023, the petitioner seeks the following

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reliefs:

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"Wherefore, the Petitioner most humbly prays this Hon'ble Court be pleased to set aside the order dated 18.04.2023, passed by the Learned V Additional District and Sessions Judge, Mandya, on the application filed by the Prosecution under section 311 Cr.P.C., in Spl.C.No.185/2016, for the offences punishable under Sections 504, 506, 324, 448 of IPC and under sections 4(i)(s), 4(1)(g)(t) of the SC & ST (POA) Act, 2015, now pending on the file of the V Additional District and Sessions Judge, Mandya, in the ends of justice."

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In Crl.P.No.8400/2023, the petitioner seeks the following

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reliefs:

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"Wherefore, the Petitioner most humbly prays this Hon'ble Court be pleased to set aside the order dated 18.04.2023, passed by the Learned V Additional District and Sessions Judge, Mandya, on the application filed by the Prosecution under section 231(1) of Cr.P.C., in Spl.C.185/2016, for the offences punishable under Sections 504, 506, 324, 448 IPC and under sections 4(i)(s), 4(1)(g)(t) of the SC & ST (POA) Act, 2015, now pending on the file of V Addl. District and Sessions Judge, Mandya, in the ends of justice."

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Both these petitions by the accused in Spl.C.No.185/2016 on the file of the V Additional District and Sessions Judge, Mandya (for short "the Trial Court") for the offences punishable under Sections 504, 506, 324 and 448 of IPC and Section 4(i)(s), 4(1)(g)(t) of SC and ST (POA) Amendment Act, 2015 (for short "the said Act of 2015") is directed against the impugned orders dated 18.04.2023 passed by the Trial Court, whereby the applications filed by the respondent-prosecution under Section 231(1) and Section 311 Cr.P.C., were allowed by the Trial Court.

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Heard learned counsel for the petitioner, learned HCGP for respondent No.1 and learned counsel for respondent No.2 and perused the material on record.

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A perusal of the material on record will indicate that in the aforesaid proceedings instituted by the respondents against the petitioner-accused, the respondents adduce both oral and documentary evidence and were cross-examined by the petitioner. When the matter was to be posted for recording the statement of the petitioner under Section 313 of Cr.P.C., respondent No.1 - prosecution filed two applications viz., under Sections 231(1) of

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Cr.P.C. for permission to produce additional documents and under Section 311 of Cr.P.C., to recall PW.1 for the purpose of adducing further evidence. The said applications having been opposed by the petitioner, the Trial Court proceeded to pass the impugned orders dated 18.04.2023 allowing the applications by holding as

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under:

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" ORDERS ON APPLICATION UNDER SECTION 231(1) OF CR.P.C.

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Learned Public Prosecutor submit that evidence of PW1 to PW7 is completed and the Investigating Officer is yet to be examined. During the cross-examination of PW1. questions was asked regarding rent agreement and how the rent amount was asked. In this regard, there was mobile SMS and phone call between accused and the PW1 and the document was produced before the police, but Investigating Officer has not produced any such documents. Those documents are very much necessary for the present case. Further during the cross-examination, counsel for the accused asked questions regarding the previous history and conduct of complainant. Several cases were filed even against the accused. This fact came to the knowledge of complainant subsequently. Therefore, it is necessary to produce those documents for just determination of the case. PW1 has filed O.S.No.320/2019 against the accused and it is pending. In that case, the rent agreement and mobile messages are produced which are marked as Ex.P4. Similarly, Cr.No.148/2017, 154/2017 and 382/2017 are registered against the accused in Mandya West police

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station. Therefore, he wanted to produce the complaint, written statement, exhibits and order-sheet along with FIR copies of above crime numbers in the interest of equity and justice.

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2. On the other hand, learned counsel for accused filed objections contending that due to procedure contemplated under Section criminal procedure code are not followed because after all the material witnesses are examined only to harass the accused. With an ulterior motive, the application is filed which is liable to be rejected. The application amounts to abuse of process of law. In O.S.No.320/2019, PW1 is not cross-examined. Hence, the document which the prosecution relies upon cannot be appreciated by this court. No credibility attached to those documents. Moreover, they fall under embargo of section 65(b) of Evidence Act. Investigating Officer has already filed the charge-sheet and he has not sought any permission to produce the additional documents. The telephone messages are categorically denied by accused and prosecution is trying to improvise their case. The application filed by prosecution is not at all maintainable and is liable to be rejected.

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3. Heard both sides.

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4. The point that would arise for my consideration is:-

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"Whether the Learned Public prosecutor has made out sufficient grounds to allow the application?"

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5. My finding to the above point is in the affirmative for the following:-

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REASONS

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6. On perusal of records, it is seen that accused is charge-sheeted by Mandya West police station against the accused for the offence punishable under Section 324, 504, 506, 448 of IPC and Sections 3(1)(s)(g) of SC & ST (POA) Act. Order-sheet reveals that, already PW1 to PW7 are examined and Ex.P1 to Ex.P16 are marked. Almost all the charge-sheet witnesses are examined. At that stage, Learned Public Prosecutor filed the present application.

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7. Further he submit that, in view of the questions put to PW1 during his cross-examination. it is necessary for him to produce certain relevant documents which are necessary for deciding the present case. On the other hand, learned counsel for accused objects by saying that. Ex.P4 and the evidence of PW1 in O.S.No.320/2019 is not subjected for cross-examination. Only to improvise the case of prosecution in order to harass the accused with an ulterior motive, the said application is filed without seeking any permission under Section 173(8) of Cr.P.C.

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8. On perusal of cross-examination of PW1, it is seen that questions were put to him regarding the character and conduct of PW1 and regarding the rent. In this regard, prosecution wanted to produce certain documents to show that O.S.No.320/2019 was filed by complainant against the accused wherein it was contested by filing objections. Similarly HRC case was filed by complainant against the accused for eviction. Since PW1 is cross-examined on all these aspects, now to bring more clarity, the prosecution wanted to produce complaint, witnesses, the order-sheet,

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IA's filed in civil cases, I am of the opinion that an opportunity can be given to produce those documents. With regard to FIRs are concerned, since some cases are filed against the accused in order to show about the conduct of accused, the prosecution wanted to produce those documents. As per Evidence Act, the character and conduct becomes a relevant fact. Therefore, I am of the opinion that those documents can be permitted to produce by the prosecution.

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9. With regard to the mobile SMS and CD is concerned, it is marked as Ex.P4 and Ex.P6 respectively. Undoubtedly, this amounts to electronic evidence. Therefore, the authenticity and proof of those documents depends upon compliance of section 65(B) of Evidence Act. Though permission can be given for producing these documents before the court, but the same can be permitted to be marked only if legal formalities are complied.

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10. Therefore, taking into consideration the fact and circumstances of the case. I am of the opinion that the documents purporting to be filed by prosecution, surely throws light upon the dispute. These documents are relevant documents. By allowing the said application, no hardship would be caused to the accused, because he gets an opportunity to cross-examine PW1. Therefore, the objection of counsel for accused that the application is nothing but abuse of process of law, cannot be accepted. Hence, I am of the opinion that no sufficient grounds are made out for allowing the said application. Therefore, I answered the above in the Affirmative and proceed to pass the following;

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ORDER

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The application filed by the Learned Public Prosecutor under Section 231(1) of Cr.P.C. is hereby allowed.

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ORDERS ON APPLICATION UNDER SECTION 311 OF CR.P.C.

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This is an application filed by the prosecution submitting that some of the relevant documents pertaining to rent agreement, payment of rent, mobile SMS and phone calls has to be produced. Investigating Officer has not at all produced those documents. Therefore, they become very much important. Similarly several cases are registered against the accused and complainant came to know about it belatedly. Already PW1 is examined. Therefore, it is necessary to recall PW1 to get those documents marked.

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2. On the other hand, the learned counsel for accused has filed objections reiterating the objections filed to application under Section 231(1) of Cr.P.C.

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3. Heard both sides.

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4. The point that would arise for my consideration is:-

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"Whether the Learned Public Prosecutor has made out sufficient grounds to allow the application?"

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5. My finding to the above point is in the Affirmative for the following:-

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REASONS

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6. The documents sought to be produced by prosecution was not produced by Investigative Officer in spite, he knew about the pendency of civil cases. The dispute between the parties lies upon rent agreement. It has come out in the evidence regarding the rent agreement, pendency of civil cases. When such being the case, when already permission is granted for the prosecution for producing the relevant documents, wherein PW1 has to be recalled. It is a known fact that fullest opportunity has to be given to the parties to contest the case on merits. If the said application is rejected prosecution will be deprived of producing the relevant documents. Court should not only see that, accused should not be prejudiced, but at the same time, the interest of prosecution should also be protected. Therefore, in the interest of equity and justice, taking into account the principle of natural justice, I am of the opinion that application deserves to be allowed. Therefore, I answered the above in the Affirmative and proceed to pass the following order;

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ORDER

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The application filed by the Learned Public Prosecutor under Section 311 of Cr.P.C. is hereby allowed.

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PW1 is recalled for leading further

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evidence.

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Issue SS to PW1. R/by 28.06.2023."

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A perusal of the material on record including the impugned orders will clearly indicate that in the facts and circumstances of the instant case, the Trial Court was fully justified in permitting respondent No.1 - prosecution to adduce further oral and documentary evidence as sought for in the instant applications by noticing that the said further evidence was relevant, necessary and essential for the purpose of adjudication of the matter. Suffice it to state that apart from the fact that the petitioner would have an opportunity to cross-examine PW.1 with reference to additional documents in the light of the judgment of the Apex Court in the case of Bipin Shantilal Panchal Vs State of Gujarat and Another (2001) 3 SCC 1 , all rival contentions between the parties as regards admissibility, proof, relevance, probative value of the additional evidence to be adduced by respondent No.1 would necessarily have to be decided at the time of final disposal by the Trial Court, by leaving/keeping open the objections put forth by the petitioner, I am of the considered opinion that the impugned orders passed by the Trial Court allowing the applications for permission to adduce further oral and documentary evidence by respondent No.1 cannot be said to be suffer from any illegality, infirmity nor can

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the same be said to be capricious or perverse, occasioning failure

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of justice and warranting interference in the present petitions.

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In the result, I pass the following:

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ORDER

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(i) Both petitions are hereby disposed of without interfering with the impugned orders passed by the Trial Court.

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(ii) All rival contentions on all aspects of the matter including the contentions as regards admissibility, proof, relevance, probative value of the additional evidence to be adduced by respondent No.1 are hereby kept/left open to be decided by the Trial Court at the time of final disposal of the proceedings and no opinion is expressed on the same.

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Sd/-

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(S.R.KRISHNA KUMAR) JUDGE

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BMC: List No.: 1 Sl No.: 54

Sri. K S Raghu v. State of Karnataka

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Sri. K S Raghu v. State of Karnataka

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