IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA Criminal Appeal No. 1521 of 2016 BETWEEN:
STATE BY SUPERINTENDENT OF POLICE, MUDABIDRE POLICE STATION, MUDABIDRE REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001 ... APPELLANT (BY SRI HONNAPPA, HCGP) AND:
PAVITHRA SEN AGED ABOUT 45 YEARS R/O PUTHIGE PADAVU HOUSE PUTHIGE VILLAGE MANGALURU TALUK-575 001 ... RESPONDENT (RESPONDENT SERVED BUT UN-REPRESENTED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 28.05.2016 IN C.C.No.259/2012 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC, MUDABIDRI, ACQUITTING THE RESPONDENT FOR THE OFFENCES P/U/Ss.323, 341, 427, 504 & 506 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned High Court Government Pleader appearing for the appellant-State and perused the records.
Respondent though served, remained absent.
2. The appellant-Police have registered a case against the respondent herein for the offences punishable under Sections 323, 341, 427, 504 & 506 of IPC. The said offences are triable as summons case before the jurisdictional Magistrate. After recording of the plea in the said case, the case was set down for recording of evidence on the prosecution side. On 15.09.2014, for the first time, summons were ordered to be issued to the prosecution witnesses. In spite of best efforts by the learned Magistrate, the summons issued and warrants issued against the witnesses were not served. The records also show that once the matter was referred to Lok Adalath; perhaps on the ground that the parties may compromise the matter in spite of that the matter proceeded before the Court and in fact the Court has made all its efforts to secure the presence of the witnesses but it could not secure the presence in spite of issuing NBWs and summons to CWs.1 to 7 through the Commissioner of Police, Mangaluru. Ultimately, on 28.05.2016, learned APP prayed time for further issuance of NBWs to the witnesses but the Court recording that sufficient time was given and in spite of granting long time, the prosecution could not secure the witnesses. Hence, the proceedings were dropped and the accused were acquitted.
3. On careful perusal of Section 258 of Cr.P.C., it empowers the Magistrate to stop the proceedings for the reasons to be recorded. The said provision reads thus:-
“258. Power to stop proceedings in certain cases.- In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.”
4. The Magistrate has committed a small mistake in recording the acquittal Judgment instead of discharging the accused. The above said provision specifically mentions that the reasons to be recorded by the Magistrate, to stop the proceedings at any stage without passing any judgment. However, the rider is there in the said provision that, what was the reason for stoppage of proceedings are made after the proceedings of the principal witnesses, the accused shall be acquitted. In other case, the accused shall be released and the said release shall have the effect of discharge. Therefore, under the above said circumstances, though the learned Magistrate has stated that the accused were acquitted, it virtually amounts to discharge of the accused persons.
5. On careful perusal of the entire materials on record as the matter is of the year 2012 and much water has been flown before the Trial Court and all the offences are summons triable cases. Therefore, on the above said circumstances, I do not find any good reason to interfere with the order passed by the learned Magistrate. Hence, the appeal is devoid of merits and it is accordingly dismissed.
cp* Sd/- JUDGE