ANANTAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) In this Petition the judgment dated 4-12-1976 passed by the Sessions Judge, North Kanara, Karwar, in Criminal Appeal No.89 of 1976, directing re-trial of Criminal Case No.2245 of 1974 on the file of the Chief Judicial Magistrate, North Kanara, Karwar, is challenged. The few facts necessary may be started as follows : The petitioner A-1 was convicted by the Chief Judicial Magistrate, North Kanara, Karwar, in Criminal Case No.2245 of 1974 for the offence under S.408 of the Indian Penal Code and sentenced to undergo rigorous Imprisonment for nine months and to pay a fine of Rs.500/- and in default to undergo rigorous imprisonment for two months. The other accused viz., Nagesh Ramachandra Beleef (A.2) was acquitted by the Chief Judicial Magistrate. The petitioner-Al filed the said criminal appeal.

(2.) The learned Sessions Judge has set aside the conviction and sentence passed on the petitioner-A. 1 and ordered re-trial from the stage before the prosecution evidence was closed on 25-5-1976, and directed the Chief Judicial Magistrate to dispose of the case in accordance with law. The learned Sessions Judge has in the course of his judgment, narrated the cases of the prosecution and the defence, and the nature of the evidence adduced by the prosecution in support of the charge. He has also narrated the arguments advanced on both sides on merits. He has not recorded any finding on merits. He has found fault with the lower Court in not summoning and examining C.W.23 Salimath whose evidence, according to him, was essential for a just decision in the case. He has observed that on 25-5-1976, as disclosed in the order-sheet maintained by the Chief Judicial Magistrate, it is recorded as 'prosecution evidence closed'. In this regard, he has reasoned that there being no memo submitted by the prosecutor conducting the prosecution that he had given up the remaining witnesses cited in the charge-sheet and there being no other material to show that in fact the prosecution had really closed its case, it should be inferred that the prosecution had not really closed its case and it had some more witnesses to be examined and as such opportunity for examining C.W.23 had not been properly afforded by the Chief Judicial Magistrate. It is on the basis of this reasoning he has directed re-trial from the stage the prosecution case stood as on 25-5-1976.

(3.) Sri T.S.Ramachandra, the learned Advocate appearing on behalf of the petitioner-A.1, urged that such a power is not vested in an appellate Court and the learned appellate Judge has ignored the decision of the Supreme Court in Ukha Kolhe vs. State of Maharashtra , AIR 1963 SC 1531 The said decision deals with Ss.423 and 428 of the Code of Criminal Procedure, 1898 (to be hereinafter referred to as the 'Code of 1898').