Karnataka High Court
Smt. Sulochana W/O. Siddhalingappa ... vs Smt. Bharati W/O. Ishwarappa Manvi on 1 October, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 S T DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No .102035 OF 2017
BETWEEN:
1. SMT. SULOCHANA W/O. SIDDHALINGAPPA MANVI
AGE:79 YEARS,
OCC:HOUSEWIFE
R/O. STATION ROAD,
GADAG.
2. SMT JYOTI W/O. PRAMOD DESAI
AGE:52 YEAS,
OCC:ADVOCATE
R/O. SHIRUR PARK,
NEAR CHETANA COLLEGE
HUBBALLI
DIST:DHARWAD
3. ARATI W/O RAJESH NAVAR
AGE:45 YEARS,
OCC:HOUSEWIFE
R/O. ADARSH PALM,
OTER RING ROAD,
DEVARBISANAHALLI
VILLA NO.445,
BENGALURU-560103
4. KEERTHI W/O. ARUNKUMAR KODLI
AGE:47 YEARS,
OCC:HOUSEWIFE
R/O. PLOT NO.29, KIRAN BUILDING
BASAVANAGAR
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ILKAL
TQ:HUNAGUND
DIST:BAGALKOT.
... PETITIONERS
(BY SRI M B GUNDAWADE, ADV.)
AND
1. SMT. BHARATI W/O. ISHWARAPPA MANVI
AGE:39 YEARS,
OCC:HOUEWIFE
R/O. STATION ROAD,
GADAG
2. STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD
TROUGH BETAGERI TOWN EXTENSION POLICE
STATION
GADAG.
... RESPONDENTS
(BY SRI ASHOK R.KALYANASHETTY, ADV. FOR R1
BY SRI. PRAVEEN K.UPPAR, HCGP FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS
PERTAINING TO P.C.NO. 20 OF 2016 ON THE FILE OF I
ADDL. CIVIL JUDGE AND JMFC-I COURT, GADAG AND TO
QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETITIONERS IN RESPECT OF THE P.C.NO. 20 OF 2016 ON
THE FILE OF I ADDL. CIVIL JUDGE AND JMFC -I COURT,
GADAG FOR THE ALLEGED OFFENCES UNDER SECTION 498-
A, 323, 341, 343, 354, 504, 506 READ WITH SEC. 149 OF
IPC.
This Petition coming on for Admission, this day the
Court made the following:
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ORDER
Though the matter is listed for admission, with the consent of the learned counsel for the p arties, it is taken up for final disposal.
2. The petitioner is accused Nos.1, 2, 4 and 5 in CC No.2508/2017 before the J.M.F.C. I Court Gad ag . Second respondent is the complainant in the case.
3. Petitioner No.1 is the mother-in-law. Petitioner Nos.2 to 4 are the sisters-in-law of the second respondent. Marriag e of the first respond ent was solemnized with Ishwarappa the son of the first petitioner on 2/2/2004. He died on 25/3/2014.
4. The first respond ent filed complaint as per Annexure-H in PCR No.20/2016 before the J.M.F.C., I Court, Gadag , ag ainst the petitioners and two others (sisters-in-law) alleg ing that the petitioners subjected her to physical and mental cruelty in connection with their demand for dowry. She :4: Crl. P.No.102035/2017 further alleged that after the death of her husb and, petitioners tried to throw her out of matrimonial home and on 12/12/2015 in their house they assaulted her, criminally intimid ated her and caused simple injuries. The Magistrate acting under Section 156(3) Cr.P.C. referred the complaint to the Betgeri extension police for investig ation.
5. The Betgeri extension police filed final report as per Annexure-L on 30/4/2016 stating that no offence is made out. On issuance of notice of 'B' summary report the first respondent filed her protest petition. The learned Magistrate examined the first respondent and two witnesses on her behalf.
6. By the ord er d ated 11/8/2017 learned Magistrate rejected the 'B' summary report, took cognizance for the offences punishable under Sections 498A, 323, 341, 343, 354, 504 and 506 r/w Section 149 of I PC and issued process against the petitioners.
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7. Sri M.B.Gund awad e, learned counsel for the petitioners seeks quashing of the imp ugned proceedings on the following g rounds:-
i) The comp laint is the out come of the malafid es and civil litig ation pending between the parties;
ii) Complainant's Advocate led the sworn statement of complainant's witness which is violative of Section 202 of Cr.P.C.
8. In support of his arg uments he relies upon the judgment of the Davison Bench of this Court in Naganagouda Veeranagouda Patil Vs. Malatesh H.Kulkarni, 1998 Crl.J.1707.
9. Per contra, the learned counsel for the first respond ent seeks to support the imp ugned proceedings on the following g rounds:-
i) The Mag istrate has examined the complainant and only the witnesses evid ence was led by counsel.:6: Crl. P.No.102035/2017
Therefore, the entire order is not vitiated.
ii) The Magistrate was satisfied by the statement of the complainant and the material p roduced by her. Therefore, the ord er of taking cognizance is not questionab le.
10. He denies the allegations mad e ag ainst the first respond ent in this petition.
11. The question in this case is whether the ord er of taking cognizance in the case is sustainab le.
12. Admitted ly, the complaint was filed under Section 200 Cr.P.C. On reference of the same to the police, they had field 'B' summary report. On service of notice on B summary report the first respondent filed her objection to the B summary report. Said objections assume the character of the complaint under Section 200 ag ain. :7: Crl. P.No.102035/2017
13. Section 200 Cr.P.C prescribes proced ure for examination of the comp laint and her witness. In this case, the Magistrate examined the complainant. However, the statements of the complainant's witnesses, namely, CWs.2 and 3 were led by the counsel rep resenting the comp lainant.
14. The Division Bench of this Court in Naganagouda Veeranagouda Patil Vs. Malatesh H.Kulkarni, referred to supra, on reference on the question whether the examination of the compliant and witness und er Section 200 Cr.P.C. should be by the Magistrate or counsel representing the complainant can lead the statements of the witnesses held as follows:-
"10. In the aforesaid situation, the reference is answered in the affirmative in so far as we uphold the position that Section 200, Cr.P.C. requires that the verification process shall be conducted by the court and not by the :8: Crl. P.No.102035/2017 complainant's learned Advocate. We also reiterate the position in law that a breach of this procedure would not necessarily be fatal to the proceeding and that it is curable. In the view that we have taken, it will be necessary to formally set asid e the order issuing process in these petitions and to remand the petitions b ack to the trial Court with the d irection that the verification process be carried out by the Court and fresh orders be p assed accord ing to law. We need to reiterate in this reg ard that it was pointed out in the course of the arguments that this procedure has been taking an abnormally long period of time b efore the trial Courts causing undue burd en to the complainants. The learned Mag istrate shall according ly ensure that this proced ure is simply, effectively and exp editiously carried out." (Emphasis supplied) :9: Crl. P.No.102035/2017
15. Thus, it is clear that lead ing of the statement of the witnesses when Magistrate records the same und er Section 200 Cr.P.C., their advocate is not permitted. The Mag istrate has to record the statement on himself/herself. However, such lapse is curable one. Since the b asic procedure followed itself is erroneous, this Court does not find it necessary to delve into the other contentions raised by the p arties.
16. In the light of the observations mad e above the impugned ord er issuing process ag ainst petitioners is herby quashed . The matter is remanded to the trial Court. The Mag istrate shall examine the complainant/ witnesses in accord ance with Section 200 Cr.P.C. and observations made above and to p roceed in accord ance with law.
SD/-
JUDGE Vmb