IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.1103 OF 2016 BETWEEN:
Ramesh S/o. Late Huchappa, Aged about 42 years, Occ: Law Practitioner, R/o. Village Marasa, Sagar Taluk-577202.
(By Sri. Prasad B.S., Advocate) AND:
State of Karnataka, Rep. by Inspector, By Sagar Rural Police Station Sagar.
Rep by SPP., High Court Building, Bengaluru-560001.
(By Sri. Thejesh P. HCGP) …Petitioner …Respondent This Criminal Revision Petition is filed under Section 397 read with 401 Cr.P.C. praying to set aside the order dated 23.01.2016 passed by the V Additional District and Session Judge, Shimoga sitting at Sagar in S.C.No.138/2015 and set aside the order dated 06.08.2016 passed by the V Additional District and Session Judge, Shimoga, sitting at Sagar in S.C.No.138/2015.
This Criminal Revision Petition coming on for admission this day, the Court made the following:
ORDER This criminal revision petition has been filed by the accused, Ramesh in S.C.No.138/15 challenging the order passed by the court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar who allowed the application filed by accused no.1 to 7 under Section 172 of Cr.P.C.
2. It is stated in the application that on 02.01.2015 at around 11 p.m. one Manjappa and others said to have assaulted the complainant / petitioner herein has lodged a complaint before the Sagar Rural Police Station on 03.01.2015 and based upon his complaint a case in Cr.No.6/15 came to be registered for the offences punishable under Sections 143, 147, 148, 323, 324, 504, 354, 506, 307 r/w 149 of IPC.
3. The 1st accused in the above said crime viz., Manjappa, s/o Eswarappa has filed a complaint before the Sagar Rural Police Station on 4.1.2015 and based upon his complaint a case in Cr.No.9/15 came to be registered for the offences punishable under Sections 504, 323 r/w 34 of IPC. In this complaint, it is stated that on 02.01.2015 at around 8.30 p.m., the petitioner viz., Ramesh, who is arrayed as accused and others said to have assaulted and scolded the complainant in filthy language and pushed him at Marasa Village, Sagar Taluk, as a result of which the complainant sustained injuries.
4. The investigating Officer has taken the case for investigation in Cr.No.9/15 and laid the charge sheet against the accused in C.C.No.265/2015 on the file of the Court of Addl. JMFC, Sagar. The investigation Officer has investigated the case, thoroughly by recording the statement of the witness and so also draw the mahazer in the presence of panch witnesses.
5. In Crime No.6/15 for the offences stated supra, charge sheet is filed against the accused in C.C.No.197/15 and the committal court has committed the case to the court of Sessions for trial and numbered as S.C.No.138/2015. In S.C.No.138/2015, the accused has filed a memo stating that there is counter case in C.C.No.265/2015 which is pending before the court of Addl. JMFC, Sagar. Therefore the learned V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar has passed the order on 23.01.2016 and directed the court of Addl. JMFC, Sagar, to commit the case in C.C.No.265/2015 to the Sessions Court for trial. In pursuance of the order passed by the V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar the case in C.C.No.265/2015 has been committed and it numbered as S.C.No.10008/2016.
6. The petitioner, Ramesh who is accused in C.C.No.265/2015 has filed an application for revival of the order passed by the court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar. Similarly the accused in S.C.No.138/2015 and also filed an application under Section 172 Cr.P.C. stating that the case in S.C.No.138/15 relates to the case in C.C.No.197/2015 and case in S.C.No.10008/2016 relates to the case in C.C.No.265/2015 arising out of the same incident. Therefore both the cases are required to be tried together for the purpose of convenience.
7. Whereas the learned counsel for the petitioner B.S.Prasad who has taken me through the order passed by the V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar in S.C.No.138/2015, but failed to appreciate the facts relating to the involvement of the accused in S.C.No.138/2015 to consider the application. It is only to protract the proceedings. Therefore the accused has filed an application under Section 172 Cr.P.C. for securing the case diary which was maintained by the Investigation Officer and also seeking for committal of the case in C.C.No.265/2015. The Court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar had come to the conclusion that both the cases are not a case and a counter case. Despite of it, has passed an order allowing the application filed by the accused stating that both the cases require to be tried together. Therefore in this criminal revision petition is required to be interfered with and set aside. Otherwise there shall be a miscarriage of justice to the accused concerned.
8. The entire approach made by the V Addl.
District and Sessions Judge, Shivamogga, sitting at Sagar relate to consideration of application under Section 172 of Cr.P.C. for securing the case in C.C.No.265/2015 which is patently illegal and the case has to be secured and tried together in S.C.No.138/2015. These are all the contentions taken by the learned counsel for the petitioner and seeking for setting aside the impugned order passed by the trial court in S.C.No.138/2015.
9. The learned HCGP for the State who has taken me through the FIR said to be recorded by the police in Cr.No.6/2015 relating to the case in C.C.No.197/2015 is the accused facing trail in S.C.No.138/2015, but the case in S.C.No.10008/2016 relate to the case in C.C.No.265/2015 arising out of Cr.No.9/2015. The FIR said to be recorded by the police and so also the complaint as filed by the complainant in both the cases in C.C.No.197/2015 and C.C.No.265/2015 and the mahazar said to have been conducted by the investigation officer in both the crimes in presence of panch witnesses, it is found that there are variations with regard to the time of the offence and the scene of crime. Therefore the court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar considered that both the cases are of the nature of “a case and counter case”, but on prima facie both the cases arise out of a different set of facts and also the allegations made in the complaint and so also the scene of crime revealed in the mahazar and so also the time of offence is altogether different. Therefore both the cases may not be a case of case and counter case, but the court below has considered the application filed under Section 172 of Cr.P.C. It is against the basic principles of case and a counter case. Therefore the application is not tenable, but Section 172 Cr.P.C. relates to the power vested with either committal court or the court of trial to see the police diary and also the case diary maintained by the investigating officer. But the case diary has been secured only for perusal by the court to satisfy investigation done by I.O. and it does not arise for filing of application under section 172 of Cr.P.C. by the accused, the case is pending before the concerned court of law as in C.C.No.265/2015, for the offence under Section 504 and 324 r/w 34 of IPC and laid the charge sheet against the accused on 21.01.2015 and the case in Cr.No.9/15 came to be registered on 4.1.2015. Therefore this case is not a case and counter case relating to the case in C.C.No.197/2015. Therefore the learned HCGP for the State in this petition seeks to consider the petition filed by the one of the accused by intervention of the impugned order passed by the court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar by accepting the application filed under Section 172 of Cr.P.C. However the application has been filed by one of the applicant/accused in S.C.No.138/2015 and S.C.No.10008/2016, both the cases arise out of a different time of offence and scene of crime.
10. It is in this context, the contention taken by the learned counsel and so also that contention has been supported by the HCGP for the State as reiterated the objection filed by the prosecution relates to the application filed by one of the applicant/accused under Section 172 of Cr.P.C. The case diary is maintained by the investigating officer in both the cases, but the court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar even though have gone through the entire contents in the case diary there is no doubt, true that the place of occurrence, time of incident and witnesses to the incidents are different. The entire materials are secured by the investigating officer and also made the charge sheet in C.C.No.197/2015 relating to the Cr.No.6/2015 and the case in C.C.No.265/2015 relating to the case in Cr.No.9/2015. But both the cases cannot be treated as a case and counter case. There are variations in the incident which is narrated in the case diary and also the time factor and does not indicate the circumstances of the case as recorded by the Investigating Officer in the chargesheet. Therefore the case in S.C.No.138/2015 relates to the case in C.C.No.197/2015 arising out of Cr.No.6/15. In this case the accused are facing trial. But the place of occurrence, time of incident and witnesses to the incident said to be narrated and also occurred are found to be different. Therefore it cannot be said that both the cases are to be tried together. If both the cases are tried together certainly there shall be miscarriage of justice. Therefore it needs to be interfered in this criminal revision petition, as the court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar has committed an error in considering the application filed under Section 172 of Cr.P.C. and seeking committing the case of C.C.No.265/2015 and assigning the case in S.C.No.10008/2016 relating to trying the cases together, even though the cases are not a case and counter case.
11. If the cases have to be tried together certainly there shall be miscarriage of justice in respect of the accused in both the cases. Therefore in terms of the aforesaid reason, I am of the considered opinion that the criminal revision petition filed by the petitioner is hereby allowed. Accordingly I have to proceed to pass the following:
ORDER The criminal revision petition No.1103/2016 filed under Section 397 and 401 of Cr.P.C. is hereby allowed. Consequently the order passed by the V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar in S.C.No.138/2015 dated 6.8.2016 is hereby set aside, consequently the application filed by the accused under Section 172 of Cr.P.C. stands rejected.
The court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar shall proceed with the case in S.C.No.138/2015 where the accused is facing trial for the offences leveled against him in accordance with law.
Sd/- JUDGE sd