IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.1001 OF 2018 C/W.
CRIMINAL REVISION PETITION NO.1002 OF 2018 CRL.R.P. NO.1001 OF 2018: BETWEEN 1. S.M. Tippeswamy S/o Mariswamy Age 48 years R/o Infront of Vinayaka Park Basavanagudi Shivamogga-577 201.
2. T.M. Nagendra S/o Manappagowda Age 48 years Share holder in Saptagiri Bar and Restaurant, Kattehaklu R/o 8th Cross, “A” Block Sharavathi Nagar Shivamogga-577 201.
(By Sri B.S. Prasad, Advocate) … Petitioners AND The State of Karnataka By its PSI, Shivamogga-577 201.
(By Sri K.P. Yoganna, HCGP) Respondent This Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr.P.C., praying to set aside the order dated 28.7.2018 passed by the IV Additional Civil Judge and JMFC, Shivamogga in C.C.No.234/2014.
CRL.R.P. NO.1002 OF 2018: BETWEEN 1. D.N. Jagadeesh S/o Narayanappa Age 54 years Owner of Parashurama Bar and Restaurant R/o Doddattinahalli Village-577 217 Honnali Taluk Davangere District.
2. S.M. Tippeswamy S/o Mariswamy Age 48 years R/o in front of Vinayaka Park Basavanagudi Shivamogga-577 201.
3. H.S. Chandrashekhara S/o Subbaiah Gowda Age 54 years R/o Srinidhi Bar and Restaurant R/o Shantamma layout Siddeshwara Nagara Shivamogga-577 201.
4. S.M. Venkatesh S/o Mariswamy Age 49 years R/o Srinidhi Bar and Restaurant R/o Jayanagara, 2nd Cross Shivamogga-577 201.
(By Sri B.S. Prasad, Advocate) AND The State of Karnataka By its PSI, Shivamogga-577 201.
(By Sri K.P. Yoganna, HCGP) Petitioners Respondent This Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr.P.C., praying to set aside the order dated 28.7.2018, passed by the IV Additional Civil Judge and JMFC, Shivamogga in C.C.No.235/2014.
These Petitions coming on for Admission on this day, the Court made the following:
ORDER These two criminal revision petitions are filed by the petitioners-accused under Section 397 of Cr.P.C., challenging the order of dismissal of the applications filed by the respective petitioners in C.C.Nos.234 and 235 of 2014 under Section 239 of Cr.P.C., by IV Additional Civil Judge and JMFC, Shivamogga on 28.7.2018.
2. The petitioners in Crl.R.P.No.1001/2018 are accused Nos. 2 and 3 in C.C.No.234/2014 and the petitioners in Crl.R.P.No.1002/2018 are accused Nos. 1 to 4 in C.C.No.235/2014.
3. Heard the learned counsel for petitioners as well as the learned HCGP for the respondent.
4. The factual matrix of the case of the petitioners before the trial Court is that the petitioners have been charge-sheeted by the respondent Police for the offences punishable under Sections 471, 465, 420, 409, 201, 120(B) of IPC and Section 36(1)(b)(c) of Karnataka Excise Act. After filing of the charge-sheet, the petitioners moved application under Section 239 of Cr.P.C., for discharging them from the alleged charges on the ground that they have already remitted the amount to the concerned Department in respect of getting the Bar License and as such, no case is to be made out against them for framing of charges in respect of either creating documents or cheating the complainant. Therefore, taking various grounds, the petitioners have filed the applications for discharging them of the charges.
5. The trial Court after receipt of objections from the Assistant Public Prosecutor, heard the arguments addressed by the parties and passed the impugned orders dated 28.07.2018 by dismissing the applications filed by the petitioners.
6. The learned counsel for the petitioners contended that though the petitioners have made out sufficient material before the trial court in respect of the case on hand, but the trial Court without considering documents and grounds passed the orders without assigning any reasons or findings for dismissal of the I.A.. The order of the trial Court is cryptic. It is stated that, it has perused the charge-sheet material carefully in respect of the order of the appellate Tribunal and observed that the accused cannot be presumed that they have not committed any offence, which is erroneous. In spite of the direction issued by this Court in catena of judgments, the trial Court without application of mind had framed charges and without giving any findings rejected the applications, which is erroneous. Hence, he called for interference by this Court and prayed to allow the petitions.
7. Per contra, the learned HCGP for the respondent contended that the trial Court has explained the facts of the case in its order and assigned the reasons and clearly observed the offence committed by the petitioners. Based on the appeal filed by the petitioners before the Karnataka Appellate Tribunal and as per the order of the High Court for payment of the difference amount to the Government, the trial Court has rightly rejected the respective applications filed in C.C. Nos.234/2014 and 235/2014. It is also contended that the Court cannot reappreciate the documents and records while framing charge, hence, he prayed for dismissal of the revision petitions.
8. After hearing the arguments of the learned counsel for both the parties and on perusal of the order, it is worth to mention the decision of this Court in Criminal Revision Petition No.1133/2017 in the case of Ashwath & Another vs. State of Karnataka by Thirumalashettyhalli Police Station, dated 05.01.2018 wherein this Court by considering the application filed under Section 227 of Cr.P.C., by the petitioners before the trial Court has been dismissed and while considering the revision petition, this Court relied upon the decision reported in ILR 2012 KAR 4497 in the case of Venkatesh vs. State by Siddapura Police and remitting the matter back to the trial Court with a direction to give findings with respect of the charges which required to be framed against each of the accused. Further, it is worth to mention the observation made in Para No.10 of the order state supra for the purpose of this case, wherein it has held as follows:
“At the time of framing of charge, probative value of the material on record cannot be gone into but, before framing a charge, the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. At the stage of Sections 227 and 228 of Cr.P.C., the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.”
9. By relying upon the principle laid down by this Court in the said case, while remitting the matter back to the trial Court, at Para No.11 this Court has held as under:
“It casts a burden on the Court to consider the entire records of the case and the documents produced therewith and after hearing the submission of the accused and prosecution, the Judge has to consider whether there is any sufficient ground to proceed against the accused. Otherwise, he shall discharge the accused recording his reasons for doing so. These fundamental and basic principles have not been adhered to by the trial Court while passing the orders impugned though there is a specific direction to reconsider the material on record that existed. What emerges from the documents has not been discussed by the trial Court. As above principles have to be looked into and also, as to whether any prima facie case is made out, what exactly the material available on record, what are the allegations made, what are the relevant materials which are borne out from the record to support the said allegations relate to materials collected and the same are compared to the provision of law under which the Court wants to frame charge constituting any specific offence against the accused persons, specifically noting which provisions actually attracted to frame charge, has to be found out from the factual allegations and thereafter only proceed to frame the charge”.
10. Now on perusal of the case on hand, the trial Court though has stated as carefully perused the copy of the order passed by the Appellate Tribunal, but it has held that the appellate Tribunal has not discussed about whether petitioners have committed the alleged offences under Sections 471, 420, 409, 465, 201, 120(B) of IPC and Section 36(1)(b)(c) of Karnataka Excise Act or not and it has held at Para No.9 of its order as follows:
“In this case evidence is not yet commenced. Before recording evidence it cannot come to the conclusion that, accused No.1 to 4 are not committed the alleged offences. Hence, I answer the above point in the ‘Negative’ and I proceed to pass the following:
ORDER Application filed under Section 239 of Cr.P.C is hereby rejected.”
11. On bare reading of the order passed by the trial Court, it is clear that the trial Court has not at all applied its mind with regard to the materials to be considered for the purpose of framing of charges in the case and the prima-facie material placed on record by the prosecution. A careful perusal of the order passed by the trial Court in respect of not discussing the offences committed by the accused in respect of offences punishable under Indian Penal Code and Karnataka Excise Act. The very observation stating that the Court cannot say that the accused have not committed the offence without evidence, is itself erroneous, since the JMFC is empowered to try the offences under the Karnataka Excise Act as well as the Indian Penal Code. Therefore, the trial Court cannot expect any findings from the appellate Tribunal in respect of offences committed by the appellants, since, it was the Tribunal to give findings in respect of administrative orders of the executive, but not on judicial orders. In para No.9 of the order of the trial Court that it has never says what materials are considered by the Court below in respect of materials placed by prosecution in the charge sheet.
The trial Court required to verify the charge-sheet material filed by the prosecution in order to find out is there is any prima-facie case is made out for framing of charges against each of the accused. The Court cannot depend upon the findings of the some other forum in respect of the facts of the case. Therefore, as rightly contended by the learned counsel for the petitioners, the order under revision is cryptic order and does not satisfy the provisions of Sections 239 or 227 of Cr.P.C. It is not acceptable that the Court cannot presume that the accused have not committed the offences at this stage. Hence, at this stage it cannot be acceptable that the Court cannot presume that the accused have not committed any offence. The Court is required to find out what are the material placed on record to presume that accused has committed any offence to frame the charge, though not for the conviction or acquittal on merits of the case. It is well settled principle of law by the Hon’ble Apex Court in catena of decisions in respect of Sections 239 and 227 of Cr.P.C., that the material is to be considered by the Court while framing of charges. Therefore, without expressing any opinion on merits of the case, the impugned order requires to be set aside and the matter shall be remitted back to the trial Court with a direction to pass appropriate orders and give findings in respect of documents and materials placed on record for the purpose of framing of charges against each offence committed by each of the accused persons and then proceed to pass the orders under Section 239 of Cr.P.C. and give findings in respect of the charges leveled against the accused persons. However, it does not reappreciate the documents at this stage. With these observations, I pass the following:
ORDER The revision petitions are allowed.
The impugned orders dated 28.7.2018 passed in respective C.C.Nos.234 and 235 of 2014 by the IV Additional Civil Judge and JMFC, Shivamogga is hereby set aside.
The matter is remitted back to the trial Court to consider the applications afresh by observing the principles laid down by this Court in the aforesaid cases.
Sd/- JUDGE Sbs*/SSD