IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30"' DAY OF SEPTEMBER, 2008
BEFORE
THE HON'BLE MR. JUSTICE IAWAD RAHIM
CRL.R.P. N0. 1842 OF 2006
BETWEEN:
1 SRI B I TARALI S/O ISHWARAPPA
AGED ABOUT 61 YRS
R/AT CCB NO.291
BASAVA COLONY '
NEHRU NAGAR BELGAUM ~. .
,-';;,RETITIONER.
(BY SRI C.H.3ADHAV, I3§.E'j.'f{._.') I "
AND; 'A é %
1 STATE THROUGH SUYB'R._AVi%AANA'YA'_ ROL_ICE
jREI>.L BY» _STAT'E EUBLIC IAROSECUTOR
'HIGH COURT'BU'ILSD'I.N'G-S
BANGAL0_R'E..Ij=. "
* _ = _ RESPONDENT
1 _(SR1 'RA3A.S:FUR'BRAMANYA BHAT, HCGP)
>§l<
" THIS""RET.ITION IS FILED U/S.397 & 40: CR.P.C BY
«TH~EeADv.OCATE FOR THE PETITIONER PRAYING THAT THIS
HQN'BL.E TCOIURT MAY BE PLEASED TO SET ASIDE THE
ORDERIIN C.C.NO.E342/93 ON THE FILE OF THE JMFC.,
SULLIA_,I3~DT.8.8.03 AND JUDGMENT IN CRL.A.NO.56/03 ON
'THE FILE OF THE P.O., FTC~I, D.K., MANGALORE, ETC.,
I THIS PETITION IS COMING ON FOR ADMISSION THIS
_DAY THIS COURT MADE THE FOLLOwING:-
5': g'\
V
ORDER
Convicted accused is in revision against the
in Crl. A. No. 56/2003 dated 11-03-2000 on A’
Judge, Fast Track Court–I, D.K., Man’galo:re,.
finding of guilt against the accused
No. 342/1993 on the file of JMFCV,t’s:§ullia,V. sfor
the offences punishabie under Se.c’t_ioVn.,.5fi;iv8.__.,.4’23vaAnd’V’5O6(1)
IPC.
2. ITh_e–c0,nte§(t_uaijfac-ts arei}
Peti;tionle’r,Ai.ifav (§foverii:rnent_Vofficial, was posted as
Manager leaf’ = l{u*kVi{e’._f._:S’ree~.’«Subramanya Devasthana,
Sui:pramanya,_:’and.’– vv’asV””subsequently transferred to Hassan
(;Tieve~r.nme’nét”Order dated 14-07-1993. It was alleged
he was relieved of his duties, but he
lldeispitse. relieved from the post committed tress pass
into premises on 17-O9-1993 and gained entry into the
of the Manager by removing lock put to the door and
9′ édamaged other articles. After gaining entry, using force into
.%vl.>/
U
the chamber by the Manager, he kept control over the
belongings of the Manager in the chamber and prevented
the regular Manager from discharging his duties. Qn report
from the Executive Officer of the tempie af”ca”s.e”‘..,was
registered and on investigation charge
against him arraigning him for””‘th.e, p’uvnjishi’aolVei«
under Section 448, 427 and 506(1)
3. During trial eiiamijned
witnesses and produced 9 do’curfe’n”ts. Tihiouigh-tithe accused
resisted the charge trial judge found
the evidence a:cts’_:est’ablivshed of the accused
beyond :’easo’i:a:’b.|:ei (;lOu:Ij”t..antd it falls within the mischief of
Sections’*.<i§48,V Consequently, he was convicted
b\,r«}gt'he~ imptignied judgement in c.c. No.342/1993 and
»A ;sente,nced,:t'e. punishment. It was assailed by him in Cr}. A.
the First Appellate Court on reappraisal of
ev'i'der'i,ce""also found that the guilt of the accused was
"p*i<ozved'. But, he modified the sentence. Against the said
'AA'-ijiudgement this revision is filed.
U
4. The learned counsel Sri C.H. Jadhav, appearing
for the petitioner assailing the concurrent finding of the trial
court and First Appellate Court would contend that_.._c__>n close
scrutiny of the evidence it is noticed that the verv’–n”a.t’urAe of
the allegations made against the accusedj::did.::’n’o’t”i
within the ambit of the provisionsiwh.i.ch
invoked. In this regard he
accused is the Governmentlocffiicial A’a.s”‘ivianager”to
work in Kukke Sree vSubramianxv§i~.D’evasthanva., Gubramanya,
which post he held co'”rit’ifihcu<5usiiy,1 1' V G
5. iearliiiedl:co:unsAe:li”_:wVoVu|’d ivfurther submit that
the order’ of by the Government was the
subject matterVV’0f2uw.rii’t.petition in W.P. No. 23170/1992 and
Court interim order on 08-07-1993 staying
» the of the order passed by the Government with
‘transferring the petitioner to the new post.
Coiiseiquently, petitioner continued to serve in the said post
and had not handed over the charge. Later, the this Court
fldlisposed of the writ petition by an order dated 15-07-1993,
H pursuant to which the Government wanted to implement the
E”? _
f
1/
order of transfer. He submits that even though from the
nature of the order passed by the this Court it couldlzie seen
that the transfer of the petitioner was cha|iVe.n’g»ed’
Court, which was stayed for a period, theV__qi’ue.stiionVVl’is _to«._
whether the petitioner had in han..ded -:ovle”r’–tVhe”:cVha’i+ge7.__ it
as on the date the alleged inciden4t’.occ.urredfig ” ” V
6. In this regard would submit
that the records mai”r’itai.nedh’ passed by the
Deputy Commiss_ionel*”‘b’ea’r interim order
obtained “i7n:§*v.ord:e’r’V’dated 2o~o7-1993 by
the iwtigsgiiidirecting the Tahsildar, in
viewiiof th’eAV.inte’riVm’olrdlegrtlranted by this Court to hand over
charge accordingly that order was
ccrtinpiied. in: confirmation to the handing over the
» Vlc-h_a:ge’«an4ot~her correspondence was issued on 27-O2~1993
He drew my attention to the
reéépresventaition made by the petitioner on O7«O9–1993, in
C’ whgichfllthe petitioner has referred not only to the orders of
Court but to the order of cancellation whereby the
H petitioner because entitled to continue in the Office.
/
‘1
if
*2
/”
(3
7. Mr. Eadhav, would further submit that these
documents were not placed before the trial court yet in
order to know the factual position as on the date”i’é:Lf;~«_i”7j09-
1993, when the offence is alleged to have beienv
he has produced the same.
contentions is as on the date of
was lawful entitled to be in»théesaidihchambevrz b~glivVlmle of ill;
posting and hence ingredie-nts’fof”-Section~42.7’§ IPC is not
made out.
8. Iimite;d””ex’tent;x’Ihalve also permitted him
to which are undoubtedly the
corresporl-dence’olrltjln.aAte:d–‘ from the Office of the Deputy
Comm’issi4o*ner,V .D’:.–Kl’,*. Mangalore. The learned trial judge and
First “Appe|’lat’e”‘Judge have come to the conclusion that
thecraictofévthejpetitioner in removing the lock and damage to
the the door of the chamber was the act of tress
pass..V__Aand his Continuance in the chamber attracts
lvi.ngjj’.l”edients of offence punishable under Section 448 IPC and
damage caused by him attract the offence under Section
427 IPC.
9. The learned Government PEeadV.e._r_”~vw:i”ir}:..V”R.aja
Subramanya Bhat, in support of the impugried
contend that the conduct of the”petit.iéon.er:V’was’=o*ne”:of?’
defiance. He refused to comp|yA:’w;vit’hV_A.thethe”ordet””ofV”thVe
Government and soon after’=hi’sytransf.er had
taken charge. By virtue oyfi”t’tiej’interim ord’ei’i*”obtained by
him from this Court hetriedt-oi’evntperttftiieiffpcwhamber. But vide
Ex.P6 a Tahsildar to take
charge ore’ there can be no doubt as
on the .fwt.aiis’v—-..is5ued, the Tahsildar had taken
charge’fofcjthevvfpostfof»’t’h:e-fifanager and the petitioner had no
manner of rilg-htto he either in the Office as Manager or
it keep _controi~-.of the institution in any manner. He submits
removed the lock and gained entry in the
over which ciaim was last. Such act is the proof
“itse_if that he committed tress pass and was liable to be
fuipunished for that offence.
n ,
:in»=”z/
U
10. These facts undoubtedly are borne from the
records, but it is not in dispute that after suffering an order
of transfer of the post of Manager, the petitionenhad not
handed over the charge, as could be
endorsement issued by the Deputy
order of interim stay by this “”da’te’d–..:
passed after hearing both sirdes an’d._in’- pursuance_V’of
order the petitioner — accuseidiattemptedf. office as
Manager. The inciaiéflft hiavyefx accrued on
17:09:1993, Aywhich 10 days after
representation’ftgyvyagKygiyéfn petitioner to the
Government; _ “ff,
11′.,__4 iiTVhe’refoVre»’,.:’i’t~ cannot be said that as on 17~O9~
the petitionver yvas still in Office as Manager or that he
.:ha_d’_physiVca,E__ control over the premises as also other
much has been urged by the learned
Go”ver’n:me’nt Pieader in pointing to the criminal attitude of
“the petitioner, yet on close scrutiny of the material evidence
‘AA’–:ofr2’Afrecord I find though the evidence in the first look may
‘appear as indicting the accused but on closer examination
9
such evidence does not establish the charge beyond
reasonable doubt.
12. The whole prosecution case rests-V:._”on”.,’4the
statement given by Mr. C.H.Kochannaitnelwé
incumbent as Manager and employeeyof name;
Mr. Ganesha Achari. The accused it
C.H.Kochanna Rai (PW5) su_c:cessfuAl.l’y.__broVu’g.ht’:..:contr’adiction
in his testimony before thegi.Cogu’:rt”a.nd t’h’e’vstat»ement given
during investigation 163. Cr.P.C. The
relevant and D4. In Ex.D3,
the stated that on
the Office premises ‘to take
charge JtManager from the accused’.
his i*eq.uest&:’the accused refused to hand over the
b ‘A«and”wa|ked away without handing him the charge of
=t’h’erpostT’_’o.fMatnager. The witness further attempted to say
thhuatwhiletttthe accused was going he took away the keys of
“t;i*:–en chamber of the Manager. Nothing is stated about
ta’-Zailleged act of tampering with the lock or destroying the
properties.
are with the accused there is no question of tress passing
into the chamber and gaining entry into the chamber.
15. Lastfy, it could be observed that.-gall the
witnesses examined by the prosecution are those’-.ivh”o.,are
under the controi of Tahsildar and on whose’
was initiated. Their statements”‘are«.oni,y x:n’atur’e, of;
reaffirming each other’s statement’ abfout actuaI..
In the circumstances, the Vev.,i:d’ence iead’ b,y_’*_th’e:”o’r’0secuti’0’n
is not ciinching to esta.biish..st’he.’i_cha’rge agai’nsst-the accused
for the offence indicated _sa’b0vc-7;
offence under Section
506(1V1)»Ii>C th’e,_ai{_eg2ati.0h«is accused had threatened Ganesh
Achari, but no sacceptafbsle evidence is avaifable to establish
= the reasons discussed above, I am satisfied
that of the petitioner accused for the offences
punishabie under Section 448, 427 and 506(1) Mac, is not
‘j:,;s’t.ified and requires to be set aside. Accordingly, the
vijudgement in Crl. A. No. 56/2003 passed on 11-08-2006 by
E’.
i’: ‘=3 /
* vs
-/’Z/;
;
>
E