G. Nanjegowda Vs. State of Karnataka - Court Judgment

Excerpt:
(a) indian penal code, 1860 - section 326 - criminal procedure code, 1973 (central act no. 2 of 1974) -- sections 240(2), 397 & 401 -- framing of charge - section 240 - procedure under - held - charge shall be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. any irregularity of the proceedings amounts to an illegality-whenever a statute prescribes that an act is to be performed in a particular manner, it has to be performed in that manner alone and there cannot be any deviation - if there is any deviation or shortcut it is an irregularity which amounts to illegality of the proceedings.;allowing the criminal revision, the court ;the provisions of section 240 cr.p.c. specifically lay down that the charge shall.....orderm.s. rajendra prasad, j.1. this revision petition by the accused filed under sections 397 and 401 cr.p.c. is directed against the judgment dated 30.10.2003 passed in crl.a.no. 11/2001 on the file of the prl. sessions judge, bangalore rural district, bangalore, wherein the learned sessions judge had partly allowed the appeal, confirming the finding of conviction of the accused for the offence under section 326 i.p.c. and remanding the case to the learned magistrate to hear the accused and the public prosecutor on the sentence and then pass appropriate orders, which appeal had been preferred against the judgment dated 19.4.2001 passed in c.c.no. 17/1996 on the file of the civil judge (jr.dn) & addl j.m.f.c., ramanagara, wherein the learned magistrate had recorded a finding of.....

Judgment:
ORDER

M.S. Rajendra Prasad, J.

1. This revision petition by the accused filed under Sections 397 and 401 Cr.P.C. is directed against the judgment dated 30.10.2003 passed in Crl.A.No. 11/2001 on the file of the Prl. Sessions Judge, Bangalore Rural District, Bangalore, wherein the learned Sessions Judge had partly allowed the appeal, confirming the finding of conviction of the accused for the offence under Section 326 I.P.C. and remanding the case to the learned Magistrate to hear the accused and the public prosecutor on the sentence and then pass appropriate orders, which appeal had been preferred against the judgment dated 19.4.2001 passed in C.C.No. 17/1996 on the file of the Civil Judge (Jr.Dn) & Addl J.M.F.C., Ramanagara, wherein the learned Magistrate had recorded a finding of conviction of the accused for the said offence and had sentenced him to imprisonment for a period of six months for the said offence, challenging the legality and propriety of the judgments impugned.

2. The Court has heard the arguments of Sri C.V. Nagesh, learned Counsel on behalf of the revision petitioner-accused, and Sri B.A. Belliappa, learned Government Pleader on behalf of the respondent-State.

3. The learned Counsel for revision petitioner strenuously contended that the material on record clearly shows that the judgments impugned are illegal and improper. The prosecution had utterly failed to bring home the guilt of the accused as required under law. The evidence placed on record is highly insufficient and unacceptable. The learned Counsel also contends that the learned Magistrate had committed a grave error while framing charge against the accused. The provisions of Section 240(2) Cr.P.C. had not been complied and the same vitiates the whole trial. The learned Counsel relied upon a decision of this Court, reported in 1980(2) Kar.L.J. Short notes No. 115, in support of his contentions. Placing reliance on the ratio laid down in the said decision, he prayed for allowing the revision petition.

4. On the contrary, the learned Government Pleader strenuously contended that the material on record clearly shows that the judgments impugned are legal and proper. The persecution had successfully proved the guilt of the accused for the said offence as required under law. The evidence placed on record is clear, cogent and convincing. He also contends that there is no irregularity or illegality committed by the learned Magistrate so as to vitiate the entire proceedings. Hence, the learned Government Pleader prayed for dismissal of the revision petition.

5. The Court has carefully perused the material on record and has given its anxious thoughts over the rival contentions raised.

6. Mentioning of few facts would be necessary for disposal of the case on hand. Ramanagara Rural Police had submitted a charge sheet against the accused for the offence under Section 326 I.P.C. particularly contending that, on 11.11.1995, at 4.15 p.m., the accused has assaulted Assistant Master Narayana with a ruler in the Government Junior College, Jalamangala, and the same resulted in said Narayana sustaining grievous injury. After full dressed trial, the learned Magistrate had recorded a finding of conviction of the accused for the said offence and had awarded the sentence as stated supra. The accused, feeling aggrieved, had carried an appeal before the learned Sessions Judge, who, after bearing both sides, had confirmed the judgment of conviction and had remanded the case with a direction to hear the accused and the State and then pass sentence. The accused again feeling aggrieved, has come up before this Court with the instant revision petition.

7. In view of the submissions made at the Bar, there is no need for going into the merits of the case at all and it would suffice if the following aspects are considered.

8. From the statutory provisions, it is clear that the offence under Section 326 I.P.C. is a warrant case and the case had been instituted upon a police report. The provisions of Section 240 Cr.P.C. specifically lay down that the charge shall be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. In the case on hand, the particular portion of the charge reads thus:

'Q.2 Do you plead guilty of the offence charged or not?

A Division Bench of this Court had occasion to deal with a similar case, but it was a summons case. This court has held that the provisions of Section 251 Cr.P.C. are mandatory provisions, and also held that the accused shall be asked whether he pleads guilty or has any defence to make. This Court, considering the facts and circumstances of the case, had held that the mandatory provisions of Section 251 Cr.P.C. had been violated and the case had been remanded for retrial having regard to the gravity of the offence. In the case on hand, the learned Magistrate has not incorporated the words as prescribed under the statute, which have been underlined by me. Having regard to the settled principles of law, it is needless to emphasise that whenever a statute prescribes that an act is to be performed in a particular manner, it has to be performed in that manner alone and there cannot be any deviation or shortcut for the same. Possibly, if the learned Magistrate had bestowed his attention, this irregularity amounting to an illegality would not have occurred at all. It is further needless to emphasis that performing judicial functions is a solemn act one cannot afford to take things in a lighter vein and any attempt in this regard would lead to an illegality, which goes to the root of the case. In view of the ratio laid down in the said decision, it is clear that there has been violation of mandatory provisions of law and this court has no option but to order for retrial of the accused, particularly having regard to the nature and gravity of the offence alleged against him.

9. Before parting with the case, it is also necessary to make a mention that the provisions of law will have to be followed in the strict sense of the term. Possibly, if the learned Magistrate had followed the mandatory provision of law while framing charge, there would not have been an occasion for this court to remand that case for fresh trial. It is unfortunate that this Court will have to pass an order for remand of the case though nine years have elapsed from the date of commission of the offence, particularly having regard to the nature and gravity of the offence alleged against the accused. It is needless to emphasise that the officers concerned are required to follow and comply the mandatory provisions of law and any failure on their part would lead to unwarranted situation.

10. For the foregoing reasons, the revision petition stands allowed. The judgment of conviction recorded by the Trial Court against the accused for the offence under Section 326 I.P.C. is hereby set aside. The matter is remanded to the Trial Court with a direction to frame charge against the accused, after hearing both sides, in accordance with law and dispose of the case as expeditiously as possible. The bail bond of the accused shall stand cancelled.