STATE OF KARNATAKA Vs. LAXMINARAYANA BHAT

JUDGEMENT

(1.) This is a Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure ('the Code' for short). It is directed against the order dated 27-1-1987 made by the Judicial Magistrate, First Class, Udupi, in C.C. No. 210/86 on his file. Under the order impugned in this Revision Petition, the learned Magistrate has stopped the proceedings under Section 258 of the Code and has discharged respondents Nos. 1 and 2 of the offences alleged against them.

(2.) The learned Additional State Public Prosecutor for the petitioner-State and the learned counsel for respondents Nos. 1 and 2 (accused Nos. 1 and 2) ate heard. The record of the matter and the record and proceedings of the Court below are perused and examined.

(3.) To decide the correctness, legality or propriety of the order assailed in this Revision Petition, it is necessary to refer to the facts leading to this Revision Petition. Briefly stated, the facts are as under : On 22-11-1982 at about 5 p.m., N. R. Nadumani, the Deputy Superintendent of Police, Udupi, conducted raid on the Tea Hotel owned and run by respondents Nos. 1 and 2 in Innanje village on the basis of a petition filed by one Gopala Krisina Rao, the Chairman of the Panchayat (Committee, Pangala village, in the presence of the said Gopala Krishna Rao and one Chinnappa. the resident of village Innanje, belonging to Harijn community. During the course of the raid, he found certain utensils having been kept in the hotel separately for the use of persons belonging to Scheduled Caste (Harijans). He noticed respondents Nos. 1 and 2 enforcing disability against Harijans on the ground of untouchability. On the basis of the complaint lodged by the said Gopala Krishna Rao, Raghunath Rao, the Head Constable bearing Buckle No.855, attached to Shirva Police Station, registered a case against respondents Nos. 1 and 2 in Crime No. 92 /82 under sub-sections (i) and (ii) of Section 4 of the Protection of Civil Rights Act, 1955 (hereinafter referred to as 'the Act' for short), issued F.I.R. and took-up investigation. The complaint was lodged on 22-11-1982 at about 4.30 p.m. and the case was registered at 5 p.m. on the same day. The allegations in the complaint are that Laxminarayana Bhat, respondent No. 1, and Shashikanth Bhat, respondent No. 2, who are father and son and who were accused Nos. l and 2 respectively in the Court below (hereinafter referred to as accused No. 1 and accused No.2 respectively) committed the offences specified in sub-sections (i) and (ii) of Section 4 of the Act punishable thereunder. Accused Nos. 1 and 2, as noticed earlier, are the owners of a Tea Hotel run by them in village Innanje within the limits of Pangala Panchayat Samithi. During the course of the raid, the Deputy Superintendent of Police, Udupi, seized a lower part of a coconut chip alleged to have been kept by accused Nos. 1 and 2 in their hotel for drinking tea by the members belonging to Scheduled Caste, sitting outside the hotel. The article was seized during the course of observation panchanama. It was produced before the Magistrate by Raghunath Rao, the Head Constable, seeking permission to retain it till the completion of investigation. During the course of investigation, Raghunath Rao, the Head Constable arrested accused No.2 on 22-11-1982 at about 6.30 p.m. in the village. Accused No. 2 was produced before the Magistrate the next day and was released on bail. It appears, H. L. Ravi Kumar, then working as Sub-Inspector of Police in Shirva Police Station, cited as CSW-5 in the chargesheet, took-over further investigation from Raghunath Rao. Later H.L. Ravi Kumar questioned and recorded the statements of Madhava Murthy, CSW-7 and Sunder, CSW-6, on 30-11-1982 and of Chinnappa, CSW-2 on 2-3-1983. H. L. Ravi Kumar, CSW 5, practically completed the investigation by 24-1-1983 and prepared the final report for being submitted to the jurisdictional Magistrate along with accused Nos. 1 and 2 for trial of the offences. But the final report was not laid in the Court since according to the prosecution, accused No. 1 had successfully gone beyond the arm of law. The efforts set afoot by the Police to reach him proved successful and they were able to arrest accused No. 1 on 20-11-1985. Accused No. 1 was produced before the Magistrate on the same day. He was released on bail. It appears from the record that B. V. Gururaj, the Sub-Inspector of Police, Shirva Police Station, who succeeded H. L. Ravi Kumar, placed charge-sheet against accused No. 1 and accused No. 2, prepared by H. L. Ravi Kumar, in the Court on 12-12-1985. Since the charge-sheet came to be filed beyond time, B. V. Gururaj presented an application under Section 473 of the Code with a prayer to condone the delay in filing the charge-sheet. He appended his affidavit to the application in support of the prayer for condonation of delay. In the affidavit, B. V. Gururaj swore that he was not able to file charge-sheet as accused No. 1 was evading arrest by absconding and that the delay was not intentional but bona fide. The Magistrate heard the officer in charge of the prosecution (Assistant Public Prosecutor) on the application filed by the prosecution to condone the delay and by the order dated 23-1-1986, allowed the application and condoned the delay. He took cognizance of the offences alleged against accused Nos. 1 and 2, directed the registration of a criminal case against accused Nos. 1 and 2 and issued summons to them making the same returnable by 11-3-1986. The order made by the Magistrate reads as under : "In the case on hand, a case was registered against the accused persons alleging that they have committed an offence punishable under Sec.4 (i) and (ii) of the Protection of Civil Rights Act on 22-11-1982 and as the said offence was punishable with imprisonment for a term exceeding one year, but not exceeding three years, charge-sheet should have been filed on or before 22-11-1985. In the case on hand, charge sheet has been laid on 13-12-1985 and thereby there is a delay of one month. In the instant case A-2 was arrested and produced before the Court on 23-11-1982. The application for condoning delay has been filed by the S.I. of Police of Shirva, who is the Investigating Officer in this case, on the ground that A-1 could not be arrested, as he was avoiding arrest. The said accused was arrested and produced before this Court on 20-11-1985. Hence, when the charge-sheet goes to show that the offence has been registered against two persons and one person has not been arrested, it is not proper to file charge sheet also against one accused only. Further, having regard to the nature of the offences alleged, viz., as it is a social offence, it is a fit case to condone the delay. Hence, the application filed under S. 473, Cr. P.C. is hereby allowed. Cognizance of the offence taken. Register a Criminal case against the accused persons and issue summons to the accused, returnable by 11-3-1986." In response to the summons, accused Nos. 1and 2 entered appearance and sought bail. They were granted bail. On 26-6-1986, both accused Nos. 1 and 2 presented an application under Section 468(2) of the Code seeking stoppage of further proceedings against them and their discharge on the ground that their prosecution was barred by time. The prosecution filed its objections contending, inter alia, that the application was not maintainable inasmuch as the Court had condoned the delay earlier on the request of the prosecution by application of its judicial mind to the facts stated in the application filed by the prosecution and the affidavit of B. V. Gururaj, Sub-Inspector of Police, filed in support of it, giving reasons for delay and on being satisfied that the delay had been properly explained and on the ground that condonation of delay was necessary in the interests of justice. It also contended that the Court had no jurisdiction to review its earlier order in view of the bar under Section 362 of the Code. The learned Magistrate heard both the sides on the application filed by accused Nos. 1 and 2 and by the order challenged in this Revision Petition, held that the reasons given by the prosecution for the delay were not convincing and acceptable; that the delay, therefore, could not be condoned and that accused Nos. 1 and 2 were entitled to the prayer made in the application. In that view of the matter, he stopped further proceedings and directed discharge of accused Nos.1 and 2.