H.M. Revanna Vs. State of Karnataka - Court Judgment

Excerpt:
- industrial disputes act, 1947.[c.a. no. 14/1947]. section 33(3): [subhash b. adi, j] scope and ambit of enquiry under held, the scope of the enquiry by the authority under section 33(3) of the act is not to re-appreciate the evidence. whether the evidence is sufficient or not, is a matter which has to be adjudicated by the tribunal in a dispute and not by exercising power under section 33(3) of the act. the question of victimization or unfair labour practice can also be considered by the authority, however, in the present case, the authority re-appreciating the entire evidence has come to the conclusion that, necessary witnesses, who ought to have been examined, have not been examined and the evidence available on record is insufficient to grant permission. that is not a scope of the enquiry under section 33(3) of the act. the scope of enquiry under section 33 is to find out whether a prima facie case is made out against the workman or not and to consider whether prima facie it can go into the question as to whether there is total lack of evidence or no legal evidence particularly when the enquiry is held as fair and proper. while exercising power, the tribunal should have considered these aspects. since the approach of the tribunal in re-appreciating the evidence for the purpose of considering an application under section 33(3) (b) of the act being contrary to the scope of the enquiry under the said provision, the impugned order is liable to be quashed. - is properly executed and the presence of the accused persons are secured while passing the order under section 209. large number of accused persons have failed to appear before the court. as well as criminal rules of practice, 1968. 8a.order1. the petitioner herein has questioned the proceedings in s.c. no. 63/90 on the file of the addl. sessions judge, bangalore rural dist. for the offences under sections 143, 147, 148, 341, 342, 353, 506, 307 and 427 ipc in so far as it relates to the petitioner. 2. the brief facts of the case are that the circle inspector of police magadi police station submitted charge sheet against the accused for the offences punishable under sections referred to above in c.c. no. 224/1985 on the file of the j.m.f.c. at magadi. the learned magistrate passed an order on 4-8-1990 under section 209 committing the entire case to the court of sessions on the ground that offence under section 307 is exclusively triable by the court of sessions, as against the a-1 to a-106 as per the separate list enclosed to the order. this order is questioned by the petitioner herein. though petitioner has raised several contentions in this petition at the time of the arguments, it is restricted to only one question as to whether the committal order passed under section 209 is valid or not. 3. learned counsel for the petitioner submitted that from the perusal of the order it is clear that only accused nos. 2, 5, 6, 7, 8, 9, 11-13, 15, 17, 18, 20, 21, 22, 23, 24, 26, 27, 30, 33, 35, 38, 39, 40, 41, 47, 48, 50, 51, 55, 57, 59, 60, 61, 62, 63, 66, 70, 71, 73, 75, 76, 78, 79, 80, 81, 86, 94, 99, 100 were present and all other accused persons were absent including the petitioner. in view of this, learned counsel for the petitioner submitted that it is incumbent on the magistrate to secure the presence of all the accused persons before passing the committal order. to substantiate his argument, he has drawn my attention so section 209 of cr. p.c. which reads as follows :- '209. commitment of case to court of session when offence is triable exclusively by it.- when in a case instituted on a police report or otherwise, the accused appears or is brought before the magistrate and it appears to the magistrate that the offence is triable exclusively by the court of session, he shall - (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the court of session, and subject to the provisions of this code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that court the record of the case and the documents and articles, if any, which are to be produced in evidence. (d) notify the public prosecutor of the commitment of the case to the court of session.' 4. from the perusal of the impugned order passed by the learned magistrate, it is clear that he had followed all other conditions which are contemplated under section 209 except securing the presence of all the accused persons. in the similar circumstances patna high court in a decision reported in 1993 (2) crimes 538 held 'unless a particular accused appears or is brought before the committing magistrate his case cannot be committed to the court of session. it is a condition precedent for trial of an accused before sessions court that he should be present himself before magistrate - his appearance before sessions court as an accused in sessions case directly, by passing provisions of sections 207 & 209 cr. p.c. shall not be deemed to be his appearance before sessions court - impugned order of sessions court whereby opposite party was ordered as he appeared before sessions court as an absconding accused, is liable to be set aside.' 5. it is true that as many as 106 accused persons who are named in the charge sheet. it is also necessary to mention here that accused 13, accused 87, a-54, a-84, a-29, a-67 and a-32, a-102 are one and the same persons and their names are being repeated in the charge sheet. even this aspect was also brought to the notice and he has not taken any action. it also appears that a-72 is dead, but his name was also not deleted by calling for necessary reports. learned magistrate also has stated that n.b.w. was issued, but the police did not execute the same. that itself is not sufficient as it is the duty of the magistrate to see that n.b.w. is properly executed and the presence of the accused persons are secured while passing the order under section 209. large number of accused persons have failed to appear before the court. learned magistrate has also not taken any action as contemplated under chapter-6 of the code. it appears that learned magistrate has taken it very lightly and passed an order committing accused persons without securing the presence of all the accused persons. 6. it is also held by the andhra pradesh high court in a decision reported in 1977(1) cri lj 415 'sessions court not empowered to add any person as accused other than those shown in the case committed.' that being the case, even if the accused persons are secured, subsequently, unless there is an order committing the case by the magistrate, the court of sessions cannot include those persons. even if the presence of the accused persons are not secured and the case is committed to the court of sessions, entire time of the court of sessions would be wasted only for securing the presence of the accused, thereby the sessions trial will be delayed. therefore, it is incumbent on the magistrate to secure the presence of the accused persons first and thereafter to commit the case to the court of sessions. though it is discretionary the accused persons are entitled for copies of all the papers to be used by the prosecution as provided under section 207, cr. p.c. as the proceedings has been instituted on a police report. 7. it is also held by the allahabad high court in a decision reported in 1976 cri lj 1774 that the commitment order should not be passed when the accused is absconding. 8. if the accused persons could not be secured by issuing n.b.w. it was the duty of the court to follow the procedure as laid in chapter-4 of the karnataka criminal rules of practice, 1968. from the reading of the impugned order it is clear that the magistrate has not applied his mind but passed the order mechanically. therefore, viewed from any angle the order passed by the learned magistrate committing the accused persons to take up the trial without securing their presence requires interference of this court. however, it is also made clear that, if the magistrate cannot secure the presence of the accused persons, he is at liberty to spilt up the case against the persons who are present before the magistrate and to proceed with the case following the necessary procedure as contemplated under cr. p.c. as well as criminal rules of practice, 1968. 8a. in the result therefore, i proceed to pass the following :-

Judgment:
ORDER

1. The petitioner herein has questioned the proceedings in S.C. No. 63/90 on the file of the Addl. Sessions Judge, Bangalore Rural Dist. for the offences under Sections 143, 147, 148, 341, 342, 353, 506, 307 and 427 IPC in so far as it relates to the petitioner.

2. The brief facts of the case are that the Circle Inspector of Police Magadi Police Station submitted charge sheet against the accused for the offences punishable under Sections referred to above in C.C. No. 224/1985 on the file of the J.M.F.C. at Magadi. The learned Magistrate passed an order on 4-8-1990 under Section 209 committing the entire case to the Court of Sessions on the ground that offence under Section 307 is exclusively triable by the Court of Sessions, as against the A-1 to A-106 as per the separate list enclosed to the order. This order is questioned by the petitioner herein. Though petitioner has raised several contentions in this petition at the time of the arguments, it is restricted to only one question as to whether the committal order passed under Section 209 is valid or not.

3. Learned counsel for the petitioner submitted that from the perusal of the order it is clear that only accused Nos. 2, 5, 6, 7, 8, 9, 11-13, 15, 17, 18, 20, 21, 22, 23, 24, 26, 27, 30, 33, 35, 38, 39, 40, 41, 47, 48, 50, 51, 55, 57, 59, 60, 61, 62, 63, 66, 70, 71, 73, 75, 76, 78, 79, 80, 81, 86, 94, 99, 100 were present and all other accused persons were absent including the petitioner. In view of this, learned counsel for the petitioner submitted that it is incumbent on the Magistrate to secure the presence of all the accused persons before passing the committal order. To substantiate his argument, he has drawn my attention so Section 209 of Cr. P.C. which reads as follows :-

'209. Commitment of case to Court of Session when offence is triable exclusively by it.- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall -

(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence.

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.'

4. From the perusal of the impugned order passed by the learned Magistrate, it is clear that he had followed all other conditions which are contemplated under Section 209 except securing the presence of all the accused persons. In the similar circumstances Patna High Court in a decision reported in 1993 (2) Crimes 538 held 'unless a particular accused appears or is brought before the committing Magistrate his case cannot be committed to the Court of Session. It is a condition precedent for trial of an accused before Sessions Court that he should be present himself before Magistrate - His appearance before Sessions Court as an accused in Sessions Case directly, by passing provisions of Sections 207 & 209 Cr. P.C. shall not be deemed to be his appearance before sessions Court - Impugned order of Sessions Court whereby opposite party was ordered as he appeared before Sessions Court as an absconding accused, is liable to be set aside.'

5. It is true that as many as 106 accused persons who are named in the charge sheet. It is also necessary to mention here that Accused 13, Accused 87, A-54, A-84, A-29, A-67 and A-32, A-102 are one and the same persons and their names are being repeated in the charge sheet. Even this aspect was also brought to the notice and he has not taken any action. It also appears that A-72 is dead, but his name was also not deleted by calling for necessary reports. Learned Magistrate also has stated that N.B.W. was issued, but the police did not execute the same. That itself is not sufficient as it is the duty of the Magistrate to see that N.B.W. is properly executed and the presence of the accused persons are secured while passing the order under Section 209. Large number of accused persons have failed to appear before the Court. Learned Magistrate has also not taken any action as contemplated under Chapter-6 of the Code. It appears that learned Magistrate has taken it very lightly and passed an order committing accused persons without securing the presence of all the accused persons.

6. It is also held by the Andhra Pradesh High Court in a decision reported in 1977(1) Cri LJ 415 'Sessions Court not empowered to add any person as accused other than those shown in the case committed.' That being the case, even if the accused persons are secured, subsequently, unless there is an order committing the case by the Magistrate, the Court of Sessions cannot include those persons. Even if the presence of the accused persons are not secured and the case is committed to the Court of Sessions, entire time of the Court of Sessions would be wasted only for securing the presence of the accused, thereby the Sessions trial will be delayed. Therefore, it is incumbent on the Magistrate to secure the presence of the accused persons first and thereafter to commit the case to the Court of Sessions. Though it is discretionary the accused persons are entitled for copies of all the papers to be used by the prosecution as provided under Section 207, Cr. P.C. as the proceedings has been instituted on a police report.

7. It is also held by the Allahabad High Court in a decision reported in 1976 Cri LJ 1774 that the commitment order should not be passed when the accused is absconding.

8. If the accused persons could not be secured by issuing N.B.W. it was the duty of the Court to follow the procedure as laid in Chapter-4 of the Karnataka Criminal Rules of Practice, 1968. From the reading of the impugned order it is clear that the Magistrate has not applied his mind but passed the order mechanically. Therefore, viewed from any angle the order passed by the learned Magistrate committing the accused persons to take up the trial without securing their presence requires interference of this Court. However, it is also made clear that, if the Magistrate cannot secure the presence of the accused persons, he is at liberty to spilt up the case against the persons who are present before the Magistrate and to proceed with the case following the necessary procedure as contemplated under Cr. P.C. as well as Criminal Rules of Practice, 1968.

8A. In the result therefore, I proceed to pass the following :-