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Amrithappa and anr. Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 577 of 1980
Judge
Reported in1982CriLJ1336; ILR1981KAR1135; 1981(2)KarLJ512
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 194, 326, 409, 409(1) and 409(2)
AppellantAmrithappa and anr.
RespondentState of Karnataka
Appellant AdvocateR.S. Hegde, Adv.
Respondent AdvocateM.V. Devaraju, Adv.
Excerpt:
- constitution of india article 226; [anand byrareddy, j] establishment of petrol bunk prescription of distance of 300 meters between two adjacent fuel stations held, the prescription is in respect of fuel filling stations situated adjacent to each other and not to stations which are on opposite sides of road. there is no minimum distance between such stations on opposite sides of road, prescribed. proposed fuel station of respondent and existing fuel station of petitioner were on either side of a high way. prohibition of distance between two adjoining stations would not apply. .....was registered in sessions court, dharwar, was made over by the principal sessions judge to second addl. sessions judge, dharwar, in exercise of his powers under section 194 of the cr.p.c. therefore, second addl. sessions judge, dharwar, got jurisdiction to try the said sessions case. in fact in exercise of that he tried the case and examined nine prosecution witnesses. it is made clear by the principal sessions judge. dharwar, in his judgment that the second addl. sessions judge expressed his inability - what was that inability is not known to us - to continue the trial and therefore, the principal sessions judge withdrew the case to his own file. the records show that the order of withdrawal is passed on 21-7-1980. it reads as follows : 'under the powers vested in me under section 409.....
Judgment:

Nesargi, J.

1. This appeal is directed against the conviction and sentence passed by the principal Sessions Judge, Dharwar, in Sessions Case No. 21 of 1980 dated 16-9-1980 convicting the appellants for having committed the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing each one of them to undergo imprisonment for life.

2. On perusing the records and hearing the learned counsel for the appellants and the learned State Public Prosecutor, it is our considered opinion that the facts of the case and the evidence in the case need not be gone into as the trial held and the conviction recorded by the principal Sessions Judge, cannot be considered as having been done in valid exercise of his jurisdiction and therefore, according to law, and requires to be quashed.

3. Sessions Case No. 21 of 1980 after it was registered in Sessions Court, Dharwar, was made over by the principal Sessions Judge to Second Addl. Sessions Judge, Dharwar, in exercise of his powers under Section 194 of the Cr.P.C. Therefore, Second Addl. Sessions Judge, Dharwar, got jurisdiction to try the said sessions case. In fact in exercise of that he tried the case and examined nine prosecution witnesses. It is made clear by the principal Sessions Judge. Dharwar, in his judgment that the Second Addl. Sessions Judge expressed his inability - what was that inability is not known to us - to continue the trial and therefore, the principal Sessions Judge withdrew the case to his own file. The records show that the order of withdrawal is passed on 21-7-1980. It reads as follows :

'Under the powers vested in me under Section 409 Cr.P.C. 1973, the sessions Case No. 21 of 1980, now pending on the file of II Addl. Sessions Judge, Dharwad, is hereby withdrawn from his file and taken to the file of principal Sessions Judge, Dharwad, for disposal according to law.' It is plain from the order that the principal Sessions Judge while passing this order has overlooked S. 409(2) of the Cr.P.C. which reads as follows :

'At any time before the trial of the case or the hearing of the appeal has commenced before the Addl. Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.' and has made use of the provisions in Section 409(1) of the Cr.P.C. S. 409(1) of the Cr.P.C. would have been applicable in case the Second Addl. Sessions Judge had not commenced the trial. What the principal Sessions Judge has done after passing the above order is to examine one more witness as P.W. 10 and five court witnesses. He had no jurisdiction to withdraw the case under Section 409(1) of the Cr.P.C. in view of Section 409(2) of the Cr.P.C. and proceed with the trial. Therefore, the trial held by the principal Sessions Judge is not in accordance with law and as such is without jurisdiction.

4. Section 326 of the Cr.P.C. as amended by act 45 of 1978 empowers a succeeding Session Judge to continue the trial. The second Addl. Sessions Judge who examined P.Ws. 1 to 9 is succeeded by another Sessions Judge as the matter stands to-day. That Second Additional Sessions Judge by virtue of amended provision in Section 326 of the Cr.P.C. can continue the trial as it stood prior to the examination of P.W. 10 by the principal Sessions Judge. In view of the aforementioned reasons, we have to quash the trial held by the principal Sessions Judge, Dharwad, from the stage at which it stood after the examination of P.W. 9 by the Second Addl. Sessions Judge, Dharwad, and set aside the judgment and order of conviction and sentence passed on the appellants. In view of this the original order made by the principal Sessions Judge under Section 194 of the Cr.P.C. remains and the sessions case reverts back to the file of Second Addl. Sessions Judge, Dharwad, who, in view of the amended provisions in Section 326 of the Cr.P.C. - as already stated - can continue the trial of the Sessions case from the stage at which it stood after the examination of P.W. 9.

5. In the result, we quash the trial held by the principal Sessions Judge Dharwad, from the stage at which it stood after the examination of P.W. 9 and set aside the judgment and order of conviction and sentence passed against the appellants. We direct the Second Addl. Sessions Judge, Dharwad to continue the trial of the Sessions case from the stage at which it stood after the examination of P.W. 9 and dispose of the same according to law.

6. Ordered accordingly.


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