Karnataka High Court
Sri. Babu Rao S/O Gundaji Raojagtap And ... vs The State Through Hulsoor P.S.& Anr on 21 August, 2019
1 CRL.P.No.15667/2013
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No.15667/2013
BETWEEN:
1. Babu Rao
S/o Gundaji Rao Jagtap
Aged about 55 years
Occ: Agriculture
R/o Inchur Village
Tq. Bhalki, Dist. Bidar
2. Madhav Rao
S/o Ganpath Rao Jagtap
Aged Major, Occ: Agriculture
R/o Inchur Village
Tq. Bhalki, Dist. Bidar
3. Vijaykumar
S/o Babu Rao Jagtap
Aged Major, Occ: Agriculture
R/o Inchur Village
Tq. Bhalki, Dist. Bidar
4. Bharath
S/o Baji Rao Patil
Aged about 40 years
Occ: Agriculture
R/o Inchur Village
Tq. Bhalki, Dist. Bidar
2 CRL.P.No.15667/2013
5. Ram S/o Baji Rao Patil
Aged about 46 years
Occ: Agriculture
R/o Inchur Village
Tq. Bhalki, Dist. Bidar
6. Ram Ratan
S/o Kishan Rao Patil
Aged Major, Occ: Agriculture
R/o Inchur Village
Tq. Bhalki, Dist. Bidar
... Petitioners
(By Sri Ravi B. Patil, Advocate)
AND:
1. The State of Karnataka
Hulsoor P.S.
Tq. Basavakalyan
Dist. Bidar
2. Navanath
S/o Dayanand Rao Patil
Aged about 24 years
Occ: Agriculture
R/o Inchur Village
Tq. Bhalki, Dist. Bidar
... Respondents
(By Sri P.S.Patil, HCGP for R1;
Sri Mahantesh H. Desai, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to allow the petition and quash the FIR and
all further proceedings in Crime No.35/2011 arising out of
complaint dated 16.04.2011 culminating in
3 CRL.P.No.15667/2013
C.C.No.353/2011 on the file of Civil Judge and JMFC,
Bhalki and quash the impugned order dated 26.02.2013 as
at Annexure-D passed by Civil Judge and JMFC, Bhalki,
taking cognizance against the petitioners under Sections
504, 506, 324, 307 r/w Section 149 of IPC based on protest
petition filed by the respondent No.2 thereby confirm the 'B'
Report of respondent No.1.
This petition is coming on for Hearing this day, the
Court made the following:
ORDER
"Whether the order of the Civil Judge and JMFC, Bhalki, dated 26.02.2013 passed in C.C.No.353/2011 taking cognizance of the offences against the petitioners amount to abuse of process of Court and lead to failure of justice?" is the question involved in this case.
2. Respondent No.2 filed complaint in Crime No.35/2011 of Hulsoor Police Station of Basavakalyan Taluk against the petitioners and second accused-Raju alleging that on 15.04.2011 at 7.30 p.m., near the circle of their village, when the complainant and Namdev 4 CRL.P.No.15667/2013 Jagtap were talking to each other, the accused forming themselves into an unlawful assembly, armed with axes, clubs and stones, due to previous ill-will, assaulted him with the said weapons, caused him grievous injuries and attempted to murder him.
3. Regarding the same incident, on the complaint of petitioner's party, case against the complainant party was registered in Crime No.34/2011. Raju who is second accused in this case was an injured in that case and he succumbed to those injuries. Therefore, in Crime No.34/2011 the offence punishable under Section 302 IPC was included.
4. The first respondent-Police conducted investigation in Crime No.35/2011 and filed charge sheet as per Annexure-B on 26.05.2011. In the charge sheet, the case against the petitioners was dropped on the ground that no case was made out against them. So far as second accused Raju, he was chargesheeted 5 CRL.P.No.15667/2013 for the offences punishable under Sections 504 and 307 IPC but it was reported that due to his death, case against him was abated.
5. On receiving the said charge sheet, the learned Magistrate vide order dated 07.12.2012 as per Annexure-C passed the following order:
"The case as against accused No.2 stands abated since he is reported dead. Since the case against the other accused has not been established, they are not sent up for trial. Hence, this case stands abated on death of sole accused.
File be closed.
Sd/-"
6. On 22.01.2013, the complainant filed a protest petition along with an application before the Magistrate to take up the case on board. The learned Magistrate entertained the protest petition, recorded sworn 6 CRL.P.No.15667/2013 statements of the complainant and his witnesses. Vide order dated 26.02.2013, the learned Magistrate recalled his own order dated 07.12.2012, accepted the protest petition, took cognizance against the petitioners for the offences punishable under Sections 504, 506, 324, 307 r/w Section 149 IPC and ordered to issue process.
7. The petitioners challenged the said order before the learned Additional District and Sessions Judge, Bidar, in Criminal Revision Petition No.11/2013. The learned Sessions Judge vide order dated 25.07.2013 Annexure-E dismissed the revision petition. The petitioners have challenged those orders and have sought quashing of the FIR and the proceedings in C.C.No.353/2011 on the ground that once the case was closed, the Magistrate was not competent to reopen the same.
8. In support of their contentions petitioners rely upon the judgment of the Hon'ble Supreme Court in 7 CRL.P.No.15667/2013 Mohammed Zakir V/s Smt. Shabana and others, 2018 AIAR (Criminal) 962 Supreme Court of India.
9. Shri. P.S.Patil, the learned High Court Government Pleader submits that in view of the judgment of the Supreme Court in Mohammed Zakir's case, the remedy of the complainant was to file revision petition challenging the order dated 07.12.2012 and should not have reagitated the matter before the Magistrate himself.
10. This Court in G.Krishnaprakash V/s The State of Karnataka By S.P.P., ILR 2008 KAR 3569 with regard to the procedure to be followed by the Court when a B-summary report is filed has held as follows:
"3. It is just and necessary to note that on filing of 'B' report, the original complainant will have to be notified with regard to filing of 'B' report, giving sufficient opportunity to appear before the Court and have his say in the matter. If 8 CRL.P.No.15667/2013 the original complainant does not make out any justifiable ground for accepting 'B' report and if he does not appear before the Court within the time prescribed for his appearance, the Court would be justified in accepting 'B' report, looking to the contents of the same. ..."
(Emphasis supplied)
11. Thus, the reading of the above judgment makes it clear that on filing of 'B' report, the Court has mandatory duty to notify the complainant about B-summary report and seek his response to the same and then only to proceed with the matter for next stage. But in this case, the learned Magistrate without following such procedure closed the case accepting the B-summary report. Therefore, the order of closure dated 07.12.2012 was patently erroneous one.
12. Then next question is whether the Magistrate could recall or review his own order dated 9 CRL.P.No.15667/2013 07.12.2012 at the instance of the complaint. Under the Criminal Procedure Code, the only provision that enables the Court to correct its order is Section 362 which reads as follows:
"362. Court not to alter judgment. - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
13. From the reading of the above provision, it becomes clear that the Court can alter it's final order disposing a case or review the same only for the purpose of correcting a clerical or arithmetical error. The error in the order dated 07.12.2012 was neither clerical nor arithmetical one. The learned Magistrate had closed the case assigning the reasons.
14. In Mohammed Zakir V/s Smt. Shabana and others, 2018 AIAR (Criminal) 962 in the similar 10 CRL.P.No.15667/2013 circumstance Hon'ble Supreme Court held that the Court cannot recall its own order invoking Section 362 Cr.P.C. on the ground that the order is patently erroneous. Para 4 of the said judgment reads as follows:
4. The High Court should not have exercised the power under Section 362 Cr.P.C.
for a correction on merits. However patently erroneous the earlier order be, it can only be corrected in the process known to law and not under Section 362 Cr.P.C. The whole purpose of Section 362 Cr.P.C. is only to correct a clerical or arithmetical error. What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error, it sought to rehear the matter on merits, since, according to the learned Judge, the earlier order was patently erroneous. That is impermissible under law. Accordingly, we set aside the impugned order dated 28.04.2017.
(Emphasis supplied) 11 CRL.P.No.15667/2013
15. In view of the aforesaid judgment and the facts and circumstances of the case, the order of the learned Magistrate dated 22.01.2013 entertaining the protest petition after closer of the case and order dated 26.02.2013 taking cognizance of the offences under the protest petition and further proceedings pursuant to that are apparently unsustainable. Therefore, it is necessary to set aside those orders to secure the ends of justice.
16. The FIR itself cannot be quashed as sought by the petitioner. The complainant's remedy is to challenge the order dated 07.12.2012 in appropriate proceedings. With these observations, the petition is partly allowed.
17. The impugned order dated 22.01.2013 entertaining the protest petition after the closer of the case and order dated 26.02.2013 taking cognizance are hereby quashed. Liberty is reserved to the complainant 12 CRL.P.No.15667/2013 to seek appropriate remedy against the order of the Magistrate dated 07.12.2012.
Sd/-
JUDGE NB*/SMP