SUPREME COURT OF INDIA
State of Karnataka
Vs
Annegowda
Appeal (Crl.) 759 of 2006(Arising out of S.L.P. (Crl.) No. 5153 of 2004
(Ashok Bhan and Markandeya Katju, JJ)
13.07.2006
ASHOK BHAN, J.
Leave granted.
State of Karnataka has filed the present appeal against the order of learned
Single Judge of the High Court of Karnataka wherein and whereby the High Court
while setting aside the judgment and order of the courts below has directed the
Trial Court to record evidence in the eleven cases registered against the
accused-respondent under Sections 409, 467, 468, 471 (a) of Indian Penal Code
pertaining to different periods from 1993 to 2001.
During the first week of October, 1991, Karntaka State Co-operative Apex Bank
Limited (for short "the complainant") drew a programme of inspection
of branches of the Bank and directed the then Internal Auditor to inspect the
accounts of the branches. The Internal Auditor took up inspection of West of
Chord Road II stage Branch on 4.10.1991 and submitted three reports which
revealed that a total sum of Rs. 5, 13, 50, 629/- was misappropriated by the
Bank officials during the period from 1.7.1981 to 4.10.1991. Against
accused-respondent Annegowda 11 cases, namely, CC No. 8055/93, CC No. 8165/94,
CC No. 8195/2000, CC No. 8196/2000, CC No. 8197/2000, CC No. 8198/2000, CC No.
8097/2001, CC No. 8098/2001, CC No. 8099/2001, CC No. 8100/2001 and CC 8101/001
were registered. In all these cases accused-respondent is the main accused. Evidence
in each of these cases is voluminous and necessarily, the trial of each case
will be slow.
In CC No. 8055 of 1993, which is now at the stage of arguments, accused
Annegowda filed an application under Section 309 Cr.P.C. on 2.8.2002 requesting
the Court to defer the recording of his statement under Section 313 Cr.P.C.
till all the other 10 cases against him reach the stage of the statement of the
accused. Trial Court dismissed the said application, aggrieved against which
respondent filed Criminal Revision Petition No. 294 of 2002 before the
Revisional Court which was dismissed on 22.2.2003. Thereafter, Respondent filed
a petition under Section 482 Cr.P.C. in the High Court which has been allowed
by the learned Single Judge by the impugned order and a direction has been
issued to the Trial Court to hold trial and record evidence in all the
aforesaid cases simultaneously and dispose of the same simultaneously as far as
possible. Submission made on behalf of the respondent that he could not be
forced to reveal his defence as it would enable the prosecution to cover up the
lacunae in other cases which are pending in trial was accepted. This direction
has been issued in the purported exercise of power conferred under Section 242
Cr.P.C. which according to the learned Single Judge gives the jurisdiction to a
Court to defer cross examination of the material witnesses until all the
material witnesses are examined by the prosecution as part of fair trial.
Counsels for the parties have been heard.
Section 242 finds its place in Chapter XIX "Trial of warrant-cases by
Magistrates" of the Code of Criminal Procedure, 1973,
which reads:
"242. Evidence for prosecution.-
(1) If the accused refuses to plead or does not plead, or claims to be tried or
the Magistrate does not convict the accused under Section 241 the Magistrate
shall fix a date for the examination of witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a summons
to any of its witnesses directing him to attend or to produce any document or
other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such
evidence as may be produced in support of the prosecution;
Provided that the Magistrate may permit the cross-examination of any witness to
be deferred until any other witness or witnesses have been examined or recall
any witness for further cross-examination."
Section 242 of the Cr.P.C. deals with the recording of evidence of prosecution.
Clause (1) of the Section provides that if the accused refuses to plead or does
not plead, or claims to be tried or the Magistrate does not convict the accused
under Section 241 the Magistrate shall fix a date for the examination of
witnesses. The Magistrate is authorised under Clause (2) to issue a summons to
any of the witnesses directing him to attend or to produce any document or
other thing and under Clause (3) on the date fixed the Magistrate is enjoyed
upon to take all such evidence as may be produced in its support by the
prosecution. Proviso permits the cross-examination of any witness to be
deferred until any other witness or witnesses have been examined or recall any
witness for further cross-examination. It does not deal with either the
clubbing of cases registered against the accused or simultaneous trial of different
cases registered against an accused. On an earlier occasion the respondent had
filed an application under Section 312 read with Section 219 Cr.P.C. in this
case seeking a direction to club CC No. 8165 of 1994 with this case and to hold
a common trial. The said application came to be rejected by the Magistrate on
4.7.1994. Against the said order the respondent filed a Criminal Revision
Petition No. 75 of 1995 before the XXIII, Addl. City Civil and Sessions Judge,
who heard the matter and dismissed the same by its judgment and order dated
15.7.1995. It was held that there was no reason to club the matter and to hold
a common trial. However, a direction was given to expedite the trial of CC No.
8165 of 1994 and if possible dispose it off simultaneously with the present
case.
There is no dispute that as many as 11 charge sheets pertaining to different
periods have been filed against the respondent. It is only in one case the
trial has been completed and has reached the stage of examination of the
accused under Section 313 Cr.P.C.. There is no provision in the Code of
Criminal Procedure which enables the Court to postpone the examination of the
accused under Section 313 Cr.P.C. till the completion of the trial in other
cases. Merely because certain other charge sheets have been filed against the
same accused for similar offences cannot be a ground to postpone the
examination of the accused under Section 313 of Cr.P.C. The apprehension of the
respondent-accused that if his statement is recorded under Section 313 Cr.P.C.
he would be required to divulge his defence and in that event he would be
prejudiced in the trial of other cases filed against him is without any basis
and foundation. It may be taken note of that in as many as 25 witnesses have
already been examined and the witnesses have already been cross-examined by the
advocate for the accused. It is reasonable to infer that during the course of
his cross- examination the accused-respondent must have disclosed his defence.
The statement on behalf of the accused that he is required to divulge his
defence only during his examination under Section 313 Cr.P.C. cannot be
accepted. The charges in other cases against the accused may be under the same
provisions of Indian Penal Code and may also be similar but documentary or oral
evidence may be different which ultimately has to be appreciated and evaluated
by the Court separately in each case. It can be taken judicial note and
kept in mind that completion of trial in other ten charge sheets may take some
more time. The High Court has materially erred in coming to the conclusion that
under the provisions of Section 242 Cr.P.C. recording of statement of
accused-respondent under Section 313 could be deferred till the trial in other
cases involving similar transactions against the accused is completed.
For the reasons stated above, the appeal is allowed. The judgment and order of
the learned Single Judge of the High Court of Karnataka is set aside and those
of courts below are restored.
Trial Court may now proceed in accordance with law.