VIRABASAYYA PRABHAYYA HALLUR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS reference arises under the following circumstances : these two Criminal Appeals viz. , Cri A. No. 319 of 1997 C/w Crl. A. 67 of 1997 arising out of the judgment of the I Additional Sessions Judge, Bijapur, in S. C. No. 78 of 1991 have been disposed of by the Bench vide judgment dt. 16-7-2002. The Division Bench allowed both the appeals filed by the accused and the State holding A1 guilty of the offence punishable under S. 304, Part II, IPC who is sentenced to undergo R. I. for five years and also to pay a fine of Rs. 500/- with default clause and A4 is acquitted of the said offence. In the same judgment, the Bench reversed the judgment of acquittal recorded by the trial Court and convicted A2 to A4 and A6 and A7 who are respondents in Crl. A. 319 of 1997 for an offence punishable under S. 324, IPC and sentenced them to undergo R. I. for six months and to pay a fine of Rs. 1000/- each with default clause. The benefit of S. 428, Cr. P. C. is also extended to the accused persons. After disposal of these two appeals, an application was made before the Bench for extending the benefit under S. 4 of the Probation of Offenders Act in respect of R3 on the ground that the Bench imposed a sentence of imprisonment without hearing him. The Bench has dismissed his application by its order dt. 25-7-2002. Another application under S. 389 (3) r/w 482, Cr. P. C. came to be filed on behalf of the accused persons to suspend the sentence imposed on the accused and enlarge them on bail as they intend to prefer an appeal before the Hon'ble Supreme Court by way of special leave against the judgment of the High Court. The Division Bench which heard this question at length was persuaded to accept the opinion expressed by the Kerala High Court in Mammooty v. Food Inspector AIR 1987 Kerala 270 : 1988 Cri LJ 139. However, in view of the opinion expressed by an earlier Division Bench of this Court in B. Subbaiah v. State of Karnataka (1992)1 Kant LJ 419 : (1992 Cri LJ 3740) (DB) which is binding on the Bench of coordinate jurisdiction, the Bench felt that the serious question of law of general importance is required to be decided by a larger Bench so as to clarify the doubt arising out of these two views, referred this question to the larger Bench. Therefore, acting under S. 8 of the Karnataka High Court Act, the matter was placed before the Hon'ble Chief Justice who referred this matter before us.

(2.) THE Bench has made the following specific point for our consideration :

(3.) WE have heard the arguments of Sri Venkat Reddy, Sri C. H. Jadhav for the accused and Sri B. C. Muddappa, learned ASPP for the State.