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Judgment
Though matter is listed for admission, heard the
learned High Court Government Pleader for final
adjudication.
The State is challenging the order of the Sessions
Court whereby the case of the respondent/A4 is disposed
of as closed vide order dated 15.12.2015.
Facts relevant for the adjudication of this
petition is the petitioner police charge sheeted
respondent (absconding accused No.4) and 4 others in
respect of the offence punishable under sections 399 and
402 of IPC. Since three of the accused absconded, their
case was split up and the court proceeded with trial of A-
1 and A-5, and they were acquitted vide judgment dated
15.6.2015. Subsequently, A-2 and A-3 were tried and
acquitted of the charges vide judgment dated 16.2.2012.
Thus, the case of the respondent-sole accused was split
up and NBW was ordered, but he could not be traced. On
15.12.2015 after hearing the public prosecutor, the
concerned Court passed the impugned order. The last
para of the order reads thus:
"In the light of the above decisions of our Hon''ble High Court of Karnataka, case on hand to be closed instead of persuading to secure the appearance of A-4 as it is impossible to convict present accused for the offences for which above noted accused has been already acquitted. In the circumstances, present case to be disposed off as it is closed. Accordingly, this case is disposed off as closed."
The learned Trial Court to reach the above
conclusion has placed reliance on the following decisions:
1) Hyder Vs. State of Karnataka, represented by Police Circle Inspector, Udupi (ILR 2015 Kar 970);
2) Deepak Rajak Vs. State of West Bengal (2007(15) SCC 305);
3) State of Karnataka Vs. K.C.Narasegowda (ILR 2005 KAR 1822);
4) State of Karnataka, by Sub-Inspector of Police, Bagepally Police Vs. Vadde Yerra Venkataramana @ Raju & others (ILR 2003 Kar 3958).
Before testing the legality of the order impugned,
let us have a sojourn over the above judgments.
The case in Hyder (supra) was filed under
Section 482 of the Code of Criminal Procedure (''the Code''
for brevity) whereby the accused persons of a split up
charge sheet sought to quash the criminal proceedings
against him since the main case against co-accused had
ended in acquittal. Though the Co-ordinate Bench of
this Court observed that " the benefit of acquittal in the
case of co-accused can be extended to co-accused if he
surrenders before the court ", directed the petitioner-
accused therein to first surrender before the concerned
court and then move petition under Section 482 of the
Code.
In Deepak Rajak''s case (supra), the convicted
accused was in appeal before the Apex Court while
similarly placed co-accused were acquitted. Appreciating
the position of law that as to what happens in case of
acquittal of similarly placed co-accused on the same set
of facts and on similar accusation, the benefit of acquittal
of the co-accused on similar accusation was extended to
the appellant/accused before the court.
In K.C.Narase Gowda ''s case (supra), the matter
that fell consideration for the Apex Court was, the
accused who was on bail escaped after conviction was
pronounced by the Sessions Court. Despite steps being
taken, he could not be traced. The appeal against the
judgment of conviction thereon by the convicted co-
accused was allowed and they were acquitted. The
Sessions Judge sought indulgence of this Court by way of
reference under Section 395 of the Code. The Division
Bench gave its due consideration to the predicament of
the Sessions Judge to keep the file, waiting for the
convicted absconding accused to impose sentence, and
though reference was held not maintainable, in exercise
of its jurisdiction under Section 482 of Code, set aside
the judgment of conviction, since co-accused, who were
convicted by Trial Court, were acquitted by this Court.
In the matter of Vadde Yerra Venkataramana
(supra), the Trial Court acquitted two accused persons,
since they could not be secured and witnesses were also
not available. Other two accused were discharged. The
Division Bench declined to interfere on noticing that all
necessary measures were taken to trace the accused. In
that context, it was observed ".....it is neither desirable nor
permissible to retain on record old cases where neither the
accused nor witness are available".
It is clear from the above that, in none of the
above four cases, which impressed the lower court to
close the case, the absconding accused person of a split
up charge sheet was the subject matter for consideration.
The court below misread the judgments for its
convenience to smoothly dispose of a docket from its file.
The Code nowhere contemplates procedure " disposal of a
case as closed ". Such concept is unknown to law.
Section 258 of the Code contemplates stoppage of
proceedings by the Magistrate for the reasons to be
recorded by the Magistrate in a summons case instituted
otherwise than on a complaint. Other than that, the
circumstances in which an end can be brought to the
criminal case are the below.
The first circumstance is, while the Court takes
cognizance of an offence on a complaint/Police report or
on the information received by it directly, under Section
190 of the Code. The Magistrate taking the cognizance is
required to apply his mind, as to in respect of which
offence he is issuing summons and the materials before
him, whether or not make out a prima facie case of
criminal offence of which he can decline to take
cognizance (Reference (1) Pepsi Food Limited Vs. Judicial
Magistrate reported in 1998(5) SCC 749; (2) M/s.GHCL
Employees Stock Option Trust -vs- M/s.India Infoline
Limited ((2013) 4 SCC 505); (3) Sunil Bharti Mittal -vs-
Central Bureau of Investigation reported in (2015) 4 SCC
609 and (4) Mehmood Ul Rehman vs. Khazir Mohammad
Tunda and Others reported in (2015) 12 SCC 420)).
Another circumstance is, when a Magistrate on
receiving complaint under Section 200 of the Code holds
enquiry under sub-section (2) of Section 202 and records
evidence of the complainant and witnesses, thereafter
finds that there is no sufficient ground for proceeding
with issue of summons to the accused. Then he will
dismiss the complaint under Section 303 of the Code.
This is prior to commencement of the trial.
In a warrant case, Magistrate would discharge a
person before framing the charges after giving audience
to the defence and the prosecution, if charge is found to
be groundless. This is under Section 239 of the Code.
Next stage is, after recording the prosecution
evidence, if no case is made out by the prosecution,
acting under Section 245 of the Code after giving
audience to both parties, he will dismiss the case.
In a sessions trial before framing the charge if
there is no sufficient ground to proceed with the case, the
accused will be discharged under Section 227 of the Code
and after recording the statement of the prosecution
case, if no case is made out by the prosecution, the
accused will be acquitted under Section 232 of the Code.
Excepting the above, the Code does not contemplate any
other mode to close a criminal trial. The judgment of
acquittal or conviction will be returned after calling upon
accused to enter upon defence and after hearing both
parties under Section 234 of the Code.
Now coming to the question of an absconding
accused, Section 299 of the Code is of relevance, which
reads thus:
"299. Record of evidence in absence of accused - (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try (or commit for trial) such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India."
The procedure to be followed in respect of an
accused, who remains absconding for six months, is
enumerated in Chapter-IV of the Karnataka Criminal
Rules of Practice, 1968. The Sessions Court with the
previous permission of High Court, the Magistrate with
the previous permission of Sessions Judge, shall direct
that the case against absentee accused be removed to the
Register of Long Pending Cases (Register XIII). Prior to
that, action under Sections 82 and 83 (Proclamation for
person absconding and attachment of property of person
absconding) shall have been exhausted and Bond
executed by surety must have been enforced. If required,
procedure contemplated by Section 446 of the Code, for
recovery of Bond amount must be invoked.
The Apex Court in Chief Information
Commissioner and Another -vs- State of Manipur and
Another [(2011) 15 SCC 1) observed thus:
"When a procedure is laid down statutorily
and there is no challenge to the said statutory
procedure, the Court should not, in the name
of interpretation, lay down a procedure which
is contrary to the express statutory provision.
Where a statute provides for something to be
done in a particular manner it can be done in
that manner alone and all other modes of
performance are necessarily forbidden."
It is not a straightjacket formula that the result
of split up charge sheet shall follow the result of the main
case. There may be circumstances that even after
acquitting the accused in the main case, still there is
incriminating evidence against the accused person of a
split up charge sheet. The facts and circumstances in
each case differ and the result of the main case cannot
be applied to a split up charge sheet unmindful of the
quality of evidence brought in the main case. There is no
discussion by the trial court how the evidence recorded
in the main case is sufficient to bail out the accused
person of the split up charge sheet.
In view of the discussion made supra, the order
of the court below cannot be sustained.
The revision petition is allowed. The order dated
15.12.2015 passed in S.C.No.94/2013 by the LVI
Addl.City Civil and Sessions Judge, Bengaluru City, is
set aside. The Trial Court shall restore the case on its
file and proceed in accordance with the procedure
contemplated in the Code in respect of the absconding
accused and also in the light of the discussion supra.
In the last two months, this Revision Petition is
third of its kind preferred by prosecution. That explains
the casual approach some of our Courts are adopting in
their hurry to wind up cases before them.
Mark a copy of this order to the Director,
Karnataka Judicial Academy.