Karnataka High CourtD M Nagaraja Setty vs Smt. Vasundara Radhakrishna on 5 October, 2010Author:C.R.KumaraswamyBench:C.R.Kumaraswamy'W39'

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE DST" DAY OF OCTOBER 2010

BEFORE

THE HON'BLE MR. JUSTICE C.R. KUMARASWAME:  

CRIMINAL PETITION NO.133E-. (5VF"'2~G;Q  V
BETWEEN:    

D M NAGARA}A SETTY

S/O LATE MUDDUNAGAIAH SHETTY
AGED ABOUT 58 YEARS

R/A NO.12O, 80 FEET MAIN ROAD  " «.    
S B M COLONY, BANGALORE. ' _ ';.--«..RETITIONER

(BY SR1: H S CHANDRASHEKAR, 'F'\D\r'O"CATE)_=._  

AND:

SMT. VASUNDARA RA.'D?1}'X%<F<£ISi?1f~l;f.X  
W/O RADHAKRISHNA,.MA3O.R "  I

No.61, CHAMUN_DE.SHwA_R'I'LAYOL:T"  "
VIDYARANYAPURA '  '  '-
BANGALORE. ' ...RESPONDENT

(BY SR1: R';2RABHA;<.ER,-ADVOCATE)

_ _ THIg__iCRININAL "PETITION" IS FILED UNDER SECTION 482 OF
C:ODE"*OF C*RIMI.N.AL"I«RROCEDURE PRAYING TO SET ASIDE/QUASH THE
ORDER D'A'T--ED ~v34§;a:,'2'O.1"'I'; PASSED BY THE PRESIDING OFFICER, FTC--II,
V BANGA'LOR"E_,%.A I'TI:""~«.§_:RL}R;~R.NO.226/2008 AND THE ORDER DATED
 '27.S.2008.l?ASSE,D'E5"{_1'T-1E ><vIII ADDL. CMM, AND xx ASCJ, BANGALORE
KIN C,C.NO.3 eI.2)'2AVOO;3?.

' 'gr.TH'IS_CRININAL PETITION COMING ON FOR ADMISSION BEFORE

 . "TH'E.COU'RT.THIS DAY, THE COURT MADE THE FOLLOWING:--

'-*3



W'

ORDERThis Criminal Petition is filed under Section 482 of Cod,e"~--_,,
of Criminal Procedure praying to set aside/quash 
dated 3.2.2010 passed by the Presiding Officer,  
Bangalore, in Cr|.R.P.No.226/2008 andJmthe« ,_o'rde.;r' 

27.5.2008 passed by ><\/111 Addl. _CMiViw,_ "a_nd >o§--i.l,AscJ",--.""'--.

Bangalore in C.C.No.3612/2003.2. 1 have heard the lea"i'.n5'e,d, Cou.jnse'l"~--.f;or:the petitioner

as well as the learned couhnsei."fo'.*.--ti':'eV3. The  Vltteiolw has filed an
application  Codheoflzcriminal Procedure.
It is narratedliat'-paraefiuf'.of_l'the"'iiaoplhication that the cheque
bearing   were issued blank to
«Mr';'iVi.N.Netra Murthy and it is the

conspira.tio'na:lf.,act'aiof. Mr.P.Vishwanath Herle. That on

 imniediately thereafter when Mr.G.Ramesh and
"-if-Tis{i'i<._lVi~»..l\i.Netra,V__li?iurthy had turned hostile, the accused filed a
Q?!"--.Vip'r'§\,/uaV*.li,e'w.co'r'nplaint in PCR i\lo.256S/2003 against the above

"r.VisaEd_Mp_érsons, explaining how they conspired to cheat her.

./

{W/,



The accused states that the complainant is in iiiegai

possession of the disputed instrument. Hence, the accused 

fiiing the appiication seeking the permission of the Cou.r_t

examine the witnesses mentioned therein regard'i"n.'g ﬁre"transactions between the accused and wi't;nes"s'es_ with 

to the disputed cheque and Ex.D.7g.which'~._wa.s. executed 

Mr.G.Ramesh in favour of the accuised'-i.in the--.aE3o§1eV'case.

Therefore, she filed this appii.ca't.ion seiekinig permissiion  the
Court to examine Mr.M.N.Netra  and:.iiiV1.Ar5~¢}Ramesh as

witnesses in defence;~'oi""«hger case,4.   rfoihjection to this
application.  is  »t'ii.e"'o__bje{.tion that accused fiied
two appiication  diffe*rerit'  ﬁurider the same provision
of___iaw, tha5t"isA.unde'i 311 read with 91 of Code of
 summoning of two witnesses by
':g_Aname'" and Mr.Ramesh, who have nothing

V7?'_.to do with" the: case and are third parties to the proceedings

;b_.y the compiainant. Both the appiications came to

/' by the triai Court. The accused preferred two



revision petitions and both the revision petitions came to be

dismissed by the Court of Fast Tracl<~Ii, Bangalore. Having

failed in her attempt to protract the proceeding the accused.»

has now come up with this application again to 

proceedings.The complainant further states that theaboive  

of the year 2003. By this timefV_ca_se viiotildw vbeeriii

coriciuded but for the frivolous the
accused to proiorig the proc'ee'dings,s.:_yt:he'~-niotive being to
deny the complainant an early-deciisioyniggoyfg  She has
aided and supporteq§~.'iip'y:_ri:e»r avdvocaiteﬁr'iv,'Ft.Vi§ra't)hakara to file
frivolous  moreover is instigated by
Sri.R.Prabhai<ara-up   against three
ad'vVocates,,.}inciuding"'theradvocate of the complainant. The

Ba'ri__CoL:mcii  the complaint against the advocate for

 the  failed there also, the accused and

V7Z3her--Vadvoc"ate'rnaking hectic efforts to delay the decision

or  case. V

3/



The compiainant further states that in the case

Emmediateiy after the statement of the accused wa.s"w_

recorded, no list of witnesses has been fiied by the 

It is oniy after the cross-examination of DWI 

accused has fiied two applications with theﬁisanie pro:.iisii:oin_of~--i'i»

law on two different dates and both the'~ai5'p_|.icatioVi_iis"'were*::"'~.,

dismissed.The compiainant  cross~
examination of accuysed ciea'riy--'her entire
defence put forth.»  have any
foundation a_n.d_,_ No prudent
person couIdlbe|.ieye'iisu;hi:'aystory___n-arrated by the accused in

her defence. Therefore;  dismiss the application.

  ;_s:um_Aand'" substance of the finding of the triai

Couii is SS' Lm'd._éTr..i  

The"-tria'i 'Court perused the contentions raised by the

 objections fiied by the compiainant. The cheque

'V"Vi.v."i..':Istadniiiitted and the signature on the cheque is admitted by

as.»-the accused but the issuance of the cheque is not admitted

and the transaction is also not admitted. To rebut the'"--._

presumption, above said witnesses are necessary 

accused. Therefore, the trial Court came to the co'nciuvsiiion"R

that the application fiied under Secticiniiiiiziiﬁ-<3-._   

Criminai Procedure deserves to be aiiowed".and sui*n'nmn's..\"--~ V"were issued to the said witnesses.6. The sum and Lt f.t'i"'i~».;;=L'V».CAfinding of the
revisionai Court is as uh-dyer:  it C C C it C

The     the case in
C.C.No.3612:/Vétiwosdiagaiiiifst  a¢i¢'use§d for the offence
punishabie  Instruments Act.During the stageiéof t'riaViV,'V-.th'esaccused has filed an application
  of  Criminal Procedure which came

to be trial Court. The said order was

 Track Court--VII, Bangaiore. Against the

~ifs-ai.i_d'-order, "(:ri1minai Petition 484/2005 was fiied before this

4:'~'.V.VCou'rt.  said petition was disposed of on 19.4.2006 with

'i7a*n,'oioservation that 'for the present, the petitioner shaii go

'W§Hdf_/



with the evidence before the trial Court and thereafter, when

the stage of the defence evidence comes, the respondent,

could make an appiication for summoning the same. 

learned Magistrate feels necessary to summon {the S

documents, he can pass orders in acJcord'a'nc_e-«,w;i'th,:"iawv."7

Entertaining such appiication at the thres_ho*i.g_l. itseg'if_lAAi's'» notJ"--~ 

proper'. Thereafter the complainant"l~ed'-lthe ev--ide'nc_?s:the triai Court. The aCCuS§ifd   Dilvl.Thereafter the accused filed an 'Section 91
of Code of Criminal by the
trial Court. Again appiication under
Section 91 anid"3V1ojiijriirniiniavi"Procedure which was
aiso dismissed'«.b'y'.'_  aggrieved by the said
orders, the a_ccuset:..fliedeCriArni'n'aiV Revision Petition S86/2007
an,_d'V"Crimivn_jai'i ;iA?.:evi.sAionAAx?et--ition 628/2007. These Revision

PetitVi'ons" on 6.2.2008 with an observation

 accused has'e7ev:ery right to examine any witness as

__.i_d'_e_fen'c_e witn~ess;. under Section 254 of Code of Criminai

 ':P_roce'dUre and even after closure of the case, the Court can

power under Section 311 of Code of Criminal

1?»/"Procedure. Thereafter the accused filed an application underSection 254of Code of Criminal Procedure which was allowed

by the trial Court on 27.5.2008. Looking into the defenceyy

put forth by the accused the witnesses cited 

application filed underSection 254of Code of 

Procedure are relevant. It is open to theV"accu'se_d"«.to-;e:<am_inVe'7'

the necessary witnesses to rebut the presu_m'p,tion.  "witnesses are relevant, an opportunitifrias to be ptovidedllto

the accused to defend his case;~~.__

The revisionai 'C-ovurt  filing the
application by the  of Code of
Criminal   the order passed in
Criminal Revision and Criminal Revision
Petition  buti'also'  observed by this Court in
 Based on the material on

recordp passed the impugned order dated

inf/._S.200'8._. T__herei'ore, the revisional Court held that there is

 inlthe said order and the revision petition was

Q"/.dismissed. The impugned order passed in C.C.3612/2003

dated 27.5.2008 was confirmed.7. Feeling aggrieved by the same, this Criminal Pet_it.ion.4'_:'i~.a_

is filed by the complainant challenging the order of -2 

Court as well as the revisional Court.8. It is the contention of the learned"r;ounseVl-v_iA.fo»r 

petitioner that summoning of witnesses M;N~;!§etré.= 

and Ramesh serves no purpose as"it'he:r;ro'!e._ in the"case is
waived by the learned Magistrater Ttjis:'the:.ilco_n.t'e'ntion of the

learned counsel for :lZ'!'l'L'?«.;p:Vét§tl¢'l'1e::!' t.i'iat.,i5'oth,if?!.lVjl.l\letra Murthy

and Ramesiifwéreaaeccusaa i:n'.V,§;rimi«n'aE"'éase No.21637/2007
on the flie    ivietropolitan Magistrate,
Bangalore._ _ It istrieV_'cont--enAt,i_on~~-"'of the learned counsel for the
p'eVtiti0nerftha--t: s»i.nce'Athe*-y--«are accused in C.C.21637/2007,

thelseg Dfe_rson's»._sno'ugld"--.not be summoned as witnesses in this

 i',gc.c.21'a3V7}2oo7 emanates from C.C.3612/2003.-..,l'_j'Leai*ned counsel for the petitioner relies on the decisions in

'1._i_'4'catsg'g'af"'sTATE or BOMBAY v/s. KATHI KALU OGHAD

i 'VF-eplorteéd in AIR 1961 sc 1808, in case ofJODH1 YADAV v/s.10KASHI YADAV & ORS reported in 2003 Cr.L.J. 1385, and also

in case of P J FRANCIS 'W8. A PRADEEP & ANR reported iii'-._

2004 Cr.L.3. 3827.9. In case of STATE or BOMBAY v/s. KATi«i_I:'_f'i< 5i.fu--{,__f'

oomp reported in AIR 1961 sc 1808,mthe Beimffjjof"jlji-_ 

Judges of Hon'bIe Apex Court has held as:=.pnd_er;fi' 

"16. In View of these consicl__eratior:_s,' we :ha"-.?_e__,_

come to the following cohclusionszi-"'a_ 

(1) An accused pers.oh«« ca-'jno--t.sai'd, to have
been compekied to be a wEtnes.s'Va:_ia'i'nst h,imse!f'simply
because he made aistaterrieint 'whiie=i.n-_po!ice. Eustody,

without anything§--_moj}'é.._. Inother writes', th'e"'mere fact

of beingjin poilice _,cuisto-dj/"~«..atthe time when the
statementxin «question.»was«..m'ade would not, by itself,
as a propositVi'o«n_Vhhof law,4VE'e_n"d.:it'self to the inference that
the accused wasicomipelied to make the statement,
t'hougVh-- that'..&fact,h""in«V conjunction with other
.vc.ircuVmstaI'2.ces_"disciosed in evidence in a particular
case,"wouv'|'d'\'bve__ agreilevant consideration in an enquiry

 whether or the accused person had been

T"-..«,_Co,mpe|!ed_to make the impugned statement.it '(.2) "The mere questioning of an accused person

  "poiice officer, resuiting in a voluntary statement,11which may uitimateiy turn out to be incriminatory, is

not 'compuision'.(3) 'To be a witness' is not equivalent to 

'furnishing evidence' in its widest significance; that it

to say, as including not rnereiy making of oraljior  ii"written statements but also productionmof docI;rr'ien':ts>"'~V.

or giving materials which may be relevantat «atria!  '-

determine the guilt or innocence of theiaaccuseid.

(4) Giving thumb impressio_ns._or Empressioinrisii

foot or palm or fingers or speci..r_n'en wi;i'tinigis':or':§

showings parts of the body" by waiyiiof' iﬂdienitifgicationvCare"not inciuded in the expression v'to'ibefaiiwit'nVess'i;» _
(5) 'To be, a WivtF--'.ESS' V.rn,ea'n"s. V"i'-rnipiarting
knowiedge in res,tj'c--:ri_E'of*__rel§evant'= an oral

statement or a"sita~tei'ne'ntV in_V'-w'r'i~tiVn'g_, "made or given in

Court or otherwise. .(6)7.fTo._ be Va'-"wi«tn'ess" ordinary grammaticai
sense means giving._ora;ltestirnony in Court. Case iaw

has gone beyond 'thVis'vstri,ct'l~iterai interpretation of the

....express.ion'which"may now bear a wider meaning,

:"._Vna'meV'|Vv, bEearing.g_testimony in Court or out of Court by

'a _perso'n. a'ccu:ed._ of an offence, oraliy or in writing.

 (7)  the statement in question within

V the prohib-i'tio'n"ofArt.20(3), the person accused must

 stoiocfdin the character of an accused person at

  t:h'e.Vtiim«e he made the statement. it is not enough12that he shouid become an accused, any time after the

statement has been made."10. In case of DHARMAPAL & ORS. V/S. SMT.RAMSHRIr._»

& oas. reported in 1993 CRL..L.}. 1049 (sc), the i-i.Q_nd'i5Vi'e44of'»r2.

Supreme Court has held thus:"(#0 Criminai r>.c. (2 of 1974), S.S:"4V8'2;"j"9.7_('g:§V'V:V:I:.uT'V:Revision -~ Scope ~---- Order by Magis'trat.e'=? Rie.vi"si_on«V  

against ---- Dismissal by Sessions'? Ccmrt" 5 Sec-on.d_"revision against, before High  Vtariruo-t 
entertained in exercise of~..i_ts irrnereritVV'pe_wers"underS.482."  it11. Learned  fdr theyresf3o'_nde'nt'submits that

C.C.21637/ZQCWVT' whereas the
present casedﬂperrtairisigitloii:ch<§§i'ii§_.'bounce. It is also the
contention of th'e""..iearned Aicounsei for the respondent that
theymagteriai'rvwitrnesses to rebut the statutory

presurrsrptgiono."-.j'h.é*fwtnesses which the accused--respondent

 Vi'~rr.hverein vvants togekarnine are not strangers to this case.

 ,Section 132of Indian Evidence Act reads as under:_'  "witness shaii not be excused from answering any

"fd"'~..Vqt_:_e§stion as to any matter relevant to the matter in

F}

is»?13issue in any suit or in any civil or criminai proceeding,

upon the ground that the answer to such question will 

criminate, or may tend directly or indirectly to.

criminate, such witness, or that it wiil expose, or  

directly or indirectly to expose. such witness-jtio  

penalty or forfeiture of any kind:provided that no such answer,  aii'wit'ness  

shalt be compelled to give, s%1aii.._vsubj'e-ct'him 
arrest or prosecution or be provvedxagainst' ~h_irh -in any

criminal proceedings, except a.il'p'ro-secutiipn fo«r"'g.iviv'ng

false evidence by such an"s~.ve--r."'--13. in this caséigoin  this Court,
an application   liofCode of Criminal
Proceduretheiltri-all «C0ur.tv"thought it fit to ailow
the said app'l_icat_loii the said application was

ailowed, againstwvriich  Revision Petitions were filed

_a"r'i~d,_'the_y'3'«iNe.re also ud'ism..i_s.sed. The application was filed on

an'-~.obse'rvati.onl jineae in Criminal Revision Petition S86/2007

 'crin?iina'i7i'iaei}i'sion Petition 628/2007. But these

_,_f--._'_observatlons2;remain intact as the same has not been

atta'cl:<ed'-..,by the complainant challenging the same in the

C"  ._highei;' Court.1414. Section 254(2) of Code of Criminai Procedure reads

as under:"The Magistrate may, if he thinks fit, on the

apﬁiication of the prosecution or the accused, issue 

summons to any witness directing him to attend 'V' 

to produce any document or other thing."15. If the Magistrate thinks fit that t_he..:'do'cu:ne'ntsor' 

the witnesses are required for justdecision-..ohf' the
the Magistrate can pass '_ an   an
application. in this case, iea'r.n-"ed  aiiowed the
appiication on the ground  materiai

witnesses to arrix/e,at§i'j'Li~st..decisionpofhtnecase. It is the

contention   petitioner that the
persons whoiiare' soug_ht--i:.'to:_'Eie:"suh"imoned by the accused-
respondent 'herein  in some other case. Articie
  ofiinidiiva says that no person accused of

any:ofi°en¢'ev.:s:ha"iiiVft;e.1~'compeiied to witness against himseif.

A'"T"i":is pro'tecti__ori.h'i§sgiven only to a person accused of an

""'::o'i'FeVn*ceganciuhias not been extended to a witness. In the

p'rese.nt-».ca'se accused wants to examine M.N.Netra Murthy15and Ramesh as witnesses. These persons are not accused in

the present case. Only the accused in a case will have

benefit of Articie 20(3) of Constitution of India and 

would be cited as witnesses and not as accused.   

it is difficult to accept the contention of the learned"'cou5.S.gii_ it

for the petitioner that protection uncizheirni/'_3:i'i'*tici};=«._T 

Constitution of India extends to, the 4'witnesses..':Lna'm'ely*:M.N.Netra Murthy and Ramesh. ""'i4.F{yenthou'g_h"'it.i?iey",are
accused in some other case.,"in__ thi«sV"'casey.tVhie..y are cited as
witnesses and not as accused.Section  Indian

Evidence Act, 1872,§.n*.eVnyi:--ions'  not excused

from answering'on;theC1':§irou:'r;'t;iV:'-thatiiansfwer wiii criminate.
Immunity under  is appiicabie
only to the accused and'v.nVot_:t'o--""nthe witness. In case if no
opp'o~r.tunity§¥.isE>_tjimen to"'th-e-«taccused to put forth her case,

there--.Awi.i.l'bet.riai insofar as the accused is concerned.

If:;jifierefoi9eA.»"ain oppVo'jrt.t3nity shouid be given to the accused to

jputé "forth he..rtc;_ase and to establish her defence. It is

 «iu'nd_isvputed'"pfact that the triai Court has ailowed the

 ajp_o__|'i'c'ation and aggrieved by the same, the complainant has33Z{_/'' I16preferred revision petition before the Court of Sessions. The

Court of Sessions has affirmed the order of the trial Cot;rt.__

Now by way of second revision petition, the petitioner':Vhas:'--,:V.

filed this Criminal Petition. Applying the principie   

by the Hon'ble Supreme Court in case Of'DAHﬁ¥RMfﬂPAVL' 

v/s. SMT.RAiViSHRI & ORS. reported in.»':1l49:9.-3"CRi;;{_iJ;.

(SC), in my view, against the ordVer.:'Of._disriiis_saE,_olf._:rVe«y'i'si'on:by the Revisionai Court, a second reviision tinder Siec-tio.-rig 482
ofCode of Criminal Procedureby this
Court. This being t_he-iiliegal  Petition is
devoid of merits   lbgedismissed.16. In the__relsuit,V--i__:pass«ithe.foilowing:Thisfﬁriininatl   dismissed.Sdl '-]UDGE

it .V "'~i<i1