SMT. GIRIJAMMA v. SRI. R. CHANDRAPPA

Heard learned counsel for petitioners and learned counsel for respondent.

2. The grievance of the petitioners is that without affording an opportunity to cross-examine the respondent/complainant, the trial court has proceeded with the matter which has caused great prejudice and miscarriage of justice and hence, the impugned proceedings are liable to be quashed.

3. Said Submissions are opposed by learned counsel for the respondent contending that adequate opportunity was given by the trial court to the petitioners to cross-examine the complainant. Petitioners/accused failed to avail the opportunity and hence having no other alternative, the trial court by order dated 26.02.2016, rejected the application filed by the petitioners/accused under Section 203 Cr.P.C. and proceeded with the matter and hence, there is no reason to interfere in the matter.

4. The outline facts of the case are that one Sri. R. Rudappa and Sri. Chandrappa filed a joint complaint under Section 200 Cr.P.C. seeking action against the accused including the petitioners herein for the alleged offences punishable under sections 141, 143, 147, 149, 463, 464, 465, 468 and 420 Indian Penal Code. Complaint was referred for investigation under section 156(3) Cr.P.C.. Upon investigation, the police submitted B summary report. The complainant submitted their protest petition. Learned magistrate rejected B summary report by order 24.02.2007 and proceeded to record evidence of the complainant and the witnesses. The order-sheet reveals that complainant No.1 was examined on 05.09.2009. Thereafter, the matter was posted for cross-examination of PW-1 from time to time and the complainants evidence was closed on 29.05.2010. During the pendency of the matter before the trial court, complainant No.1 died on 28.12.2012.

5. The contention of the learned counsel for the petitioners that in view of death of PW-1, the prayer sought for in the application has become infructuous, cannot be accepted. Whether the evidence of deceased witness is required to be eschewed from records or whether in the facts and circumstances of the case, the said evidence could be relied on by the prosecution has to be decided by the Court while appreciating the material on record. The same cannot be a ground to quash the proceedings. Likewise, the contention of the petitioners that joint complaint is not tenable under Section

200 Cr.P.C. also cannot be a reason to quash the proceedings. There cannot be any disagreement with the proposition of law laid down in the decision of this Court in PARIJANASHRAM SWAMIJI vs. KAILAJE reported in ILR 1986 PAGE 417, wherein it is held that joint complaint is not envisaged under the Code. In the instant cases, charges have already been framed against the accused and substantial evidence is recorded. Under the said circumstances without proof that the illegality in registration of the FIR has resulted in failure of justice and that the accused is prejudiced on that account, the proceedings cannot be quashed at this stage. Therefore, taking into consideration all the attendant facts and circumstances, it would sub-serve the ends of justice if an opportunity is afforded to the accused to cross- examine PW-2. For the said purpose, the trial court shall fix a date, on which date, petitioners/accused shall cross-examine PW-2 without taking any adjournment. In the event, accused fails to cross-examine PW-2 on the date fixed by the trial court, direction in this regard shall become inoperative and the trial court shall proceed in the matter in accordance with law. The parties are directed to appear before the trial court on 15.07.2019 without fail. With these observations, petitions stand disposed of. Sd/- JUDGE *mn/-