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CASE NO.: Appeal (crl.)  759 of 2006

PETITIONER: State of Karnataka

RESPONDENT: Annegowda

DATE OF JUDGMENT: 13/07/2006

BENCH: ASHOK BHAN & MARKANDEY KATJU

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No. 5153 of 2004

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

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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

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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

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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.