Karnataka High Court
Smt J Umadevi vs State Of Karnataka on 30 July, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30th DAY OF JULY 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
CRL. R.P. NO.1262/2008
BETWEEN:
1. SMT J.UMADEVI,
W/O N.RATHNAKAR BABU,
AGED ABOUT 31 YEARS,
RESIDING AT NO.758, 8TH CROSS,
5TH MAIN, R.T.NAGAR,
BANGALORE
2. SMT.J.USHA,
W/O RAVISHANKAR RAJU,
AGED ABOUT 29 YEARS,
RESIDING AT NO.107,
"PRIYADARSHINI APARTMENT",
1ST FLOOR, 1ST STAGE,
INDIRANAGAR,
BANGALORE
... PETITIONERS
(BY SRI M.S.RAJENDRAPRASAD, ADV.,)
AND:
STATE OF KARNATAKA
BY INDIRANAGAR POLICE,
BANGALORE
... RESPONDENT
(BY SRI RAJA SUBRAMANYA BHAT, HCGP.,)
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THIS CRL.RP FILED UNDER SECTION 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 13.08.2008
PASSED BY THE X ADDL. CMM., MAYO HALL, BANGALORE
IN C.C.NO.22101/2007, SO FAR AS THE PETITIONERS ARE
CONCERNED AND CONSEQUENTLY DISCHARGE THE
PETITIONERS.
THIS REVISION PETITION COMING ON FOR
DICTATING ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This revision petition has gained access to this court under Section 397, Cr.P.C. by which petitioners who are arraigned as accused in C.C.22101/07 seek an order of discharge.
2. When the matter is taken up for admission, preliminary objection is raised by the respondent-State that the revision before this court is not maintainable as the order impugned is passed by the Additional Chief Judicial Magistrate (CJM) relating to prosecution for the offences punishable under Sections 498-A and 506 read with Section 34, I.P.C. Any order passed by such court is amenable to revision under Section 397, Cr.P.C., before the court of session / District Judge.
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3. Consequent to such preliminary objection raised by the State, I have allowed learned counsel on both sides to address arguments for and against.
4. Sri Rajendra Prasad, learned senior counsel for the petitioner reiterates that the High Court and sessions court enjoy concurrent jurisdiction under Section 397, Cr.P.C. and therefore, petitioners have the option to choose either of the courts. Technically they cannot be non-suited only on the ground that the sessions court has revisional power.
5. On behalf of the State, it is urged, concurrent jurisdiction conferred by the statute does not give right to a party to by-pass the court to which appeal or revision would lie, to approach the court in hierarchy. It is contended, if it is allowed, we will be opening the floodgates to approach the High Court, by-passing the sessions court, and if that is done, it will against the Forum provided in the Code of Criminal Procedure.
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6. I have bestowed attention to the grounds urged by learned counsel on both sides in support of their respective contentions.
7. At the outset, it needs to be mentioned that the power under Section 397, Cr.P.C. cannot be read in isolation but with the provision of Section 401, Cr.P.C. The said provisions are extracted hereunder:
"397. Calling for records to exercise powers of revision- (1) The High Court or any sessions Judge may call for an examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be 5 inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-
section(1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
401. High Court's powers of revision - (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice, of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
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(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
Thus, it is clear, under the Code of Criminal Procedure, the sessions court/district court come within the meaning of 'inferior criminal court' in relation to High Court, but so far as other the criminal court established under the Code is concerned, it would be the court inferior to the sessions court.
8. Conferment of revisional jurisdiction is explicit. There can be no two opinions on it. However, the language of 7 Section 401, Cr.P.C. is quite clear. In that, the power exercisable by the High Court is virtually equivalent to the power conferred on the appellate court, whereas Section 397 refers to revisional power only for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order passed by the inferior court.
9. When we compare the power conferred under Section 397 with the power under Section 401, Cr.P.C., it is clear the provision spells out the latter provision confers enlarged or amplified power. It is for this reason such power is not conferred on the sessions court. Hence, it can be said revisional power exercisable by the sessions court comes within defined limit.
10. With this distinction, if we now read Section 397, Cr.P.C. with reference to conferment of concurrent revisional jurisdiction upon the sessions court and High Court, if revision is filed in the High Court and records are called for, High Court may, apart from considering the issues referred 8 to power in Section 397, can consider all other aspects like a court of appeal, exercising power under Section 401, Cr.P.C. This benefit is lacking before the sessions court. In this view, when a person feels that the order impugned suffers not only from infirmities enumerated in Section 397, Cr.P.C., but needs to be considered within a wider sphere, then despite the right of revision being available before the sessions, he will be justified in approaching the High Court under Section 397, Cr.P.C. to avail the benefit of wider power conferred under Section 401, Cr.P.C.
11. This aspect has not been considered as could be seen in any of the case laws cited. All that has been considered in the decisions cited is only with regard to Section 397,Cr.P.C. which spells out concurrent jurisdiction. In fact, the decision of the learned single Judge of this court reported in ILR 2003 KAR 883 in the case of S.SATHYANARAYANA .vs. STATE OF KARNATAKA BY INSPECTOR OF POLICE, BANGALORE refers to criminal rules of practice and statutory right. But we are concerned 9 with the statutory right and thus rules of practice cannot be equated to substantive law.
12. Be that as it may, the ultimate opinion formed by the learned single Judge is, there is no bar for the litigant to approach the sessions court or the High Court. The question, however, is, whether this view could be taken as a binding precedent.
13. The decision in the case of CENTRAL BUREAU OF INVESTIGATION .vs. STATE OF GUJARATH reported in AIR 2007 SC 2522 may be of relevance. That is the decision rendered by the apex court in the following circumstances:
• In Spl.Case ACB.2/96, evidence had to be recorded. It came for hearing on 7.1.1999 before the sessions judge, Noida, the Bench Clerk of the court called for Muddamal from the office of Nazir which was given to the clerk, Sri Shukla, and in turn given to Sri Kiran Joshi, senior clerk.
• During recording of evidence of witnesses, when Muddamal was required to be identified, in ai bag containing Muddamal article no.2 10 (Rs.35,000/- i.e. 70 notes of Rs.500/- denomination), nothing was found.
• A rigorous search was launched which was of no avail. Cash kept in the bag was missing. Thus, a complaint was filed in Noida Town police station which was registered in ICR.22/99 for the offence punishable under Section 381, I.P.C. by the court officer. • The IO could not get any fruitful result in the matter for 9 months.
• The Nazir of the district court of Kheda at Nadiad wrote a letter dated 29.9.1999 to the Chief Judicial Magistrate requesting him to hand over investigation to CBI.
• The CJM passed order on 29.9.1999 directing CBI to investigate the case and report to him at the earliest. CBI felt such order was improper and filed an application for recalling it. • CJM rejected the application by order dated 29.9.1999 against which CBI approached the High Court.
• The High Court declined to entertain the application being of the opinion that CBI is a litigant like any other individual. It cannot claim any preferential right or position. Therefore, it had to appear first before the sessions court in revision under Section 397,Cr.P.C. and then come to the High Court to get the order revised.
11• Rejection of the revision by the High Court on the question of concurrent jurisdiction was assailed in the Hon'ble Supreme Court.
14. The apex court considering the rival contentions opined thus:
We find that the High Court was not right in its approach. This Court in Central Bureau of Investigation through S.P.Jaipur v. State of Rajasthan and another (2001) 3 SCC 333 has laid down the principles as to whether direction can be given to the CBI under Section 156(3) Cr.P.C. It was held that magisterial power cannot be stretched under the said provision beyond directing the officer incharge of a police station to conduct the investigation and no such direction can be given to the CBI. In the instant case, the first information report was already registered and in that sense Section 156(3) Cr.P.C had no application. There is substance in the plea of learned counsel for the CBI tht routine matters should not be entrusted to the CBI as the investigating agencies of various States can effectively investigate such matters.
Of course, where it is shown that the
investigating agency is not doing proper
investigation and/or that there is reason to believe that there is laxity in the investigation, a direction may be given to the CBI to investigate 12 the matter in appropriate cases. This case is not one where any complexity was involved. It was a routine case of theft of Muddamal property. The learned Sessions Judge, therefore, rightly appears to have set aside the orders passed by the learned Chief Judicial Magistrate. The High Court had no basis to doubt the bonafides of the CBI in moving the application before it under Section 397 Cr.P.C. There was no bar for the High Court to entertain the said petition. The criticism levelled against the CBI and its officers and cost imposed do not have any legal sanction. They are accordingly set aside.
From this, it is evident, what had happened was, the intervening court of session was overstepped or by-passed.
The order passed by the magistrate was questioned by the CBI before the High Court. In this view, the apex court observed that CBI could not be faulted for having approached the High Court in a revision as already the issue was considered by the sessions court.
15. Be that as it may, as we have seen from the conspectus of both the provisions, as there is no bar engrafted in Section 397, it cannot be read. There is no bar in the provision prohibiting invoking the power of the High 13 Court without approaching the sessions court. But it must be kept in mind that under Section 397, Cr.P.C., there are two more restrictions: (i) there is no second revision permissible, meaning thereby that if a person has availed the right of revision by approaching the sessions court, against such order of the sessions court, no second revision would lie to the High Court by the same person. (ii) The right to approach the High Court is not restricted. Propriety has played the same role.
16. Though there is legal permissibility of a litigant approaching either the sessions court of the High Court for the relief provided by this section, we are contemplating a situation where an efficacious remedy could be availed. Conferment of concurrent jurisdiction undoubtedly appears to be decentralized power of revision which is accessible to the litigant. We cannot expect the litigant to travel from extreme areas of the state to the High Court at a cost which he cannot bear. Therefore, in this context, the power of revision is conferred on the sessions court also to exercise power on the 'inferior criminal court'. But at the same time, 14 the High Court's power not restricted but is more enlarged. Besides, it also depends on the relief a person seeks. Under Section 401, Cr.P.C., if the impugned order is questioned on other grounds apart from the grounds permissible under Section 397, Cr.P.C., then in all fairness, it will be right action before the High Court, as otherwise, such grounds will not be available before the sessions court under Section 397. Being of this view, I am constrained to over-rule the objections of the State that revision under Section 397, Cr.P.C. is not maintainable. But propriety demands that a litigant must avail the benefit of such revision in the court lower in hierarchy rather than opening the floodgates of the High Court.
17. With this conclusion on the preliminary objection raised, I have examined the impugned order passed by the CJM.
18. The order passed is on an application under Section 239, Cr.P.C. The factual matrix on the basis of which 15 petitioners were arraigned for the offences punishable under Sections 498-A, 506 read with Section 34, I.P.C. are:
a) Mallika lodged report alleging she married the 1st petitioner according to Hindu rites on 23.1.2004 and tied the nuptial knot in TTD choultry. She commenced matrimony with him in the house occupied by his father-Jairam and mother-Gangamma.
b) It is alleged accused nos.4 and 5-Umadevi and Usharani indulged in several acts of torture. It is alleged, before and after marriage, accused demanded and received dowry in cash and kind. They demanded Rs.5,00,000/-
within 2 months after marriage, whereupon part of the amount was given. They were not satisfied, and on 23.4.2004, 1st accused-her husband subjected her to physical torture. Accused nos.2 to 5 joined him in beating and pulling her out of the house and thereafter criminally intimidated her. They threatened to kill her using kerosene or gas. However, on 25.4.2000, 1st accused brought and let her in her parents' house with no sign or remorse on him. 16 Consequently, she had no choice but to seek police help on the basis of which case was registered for the offences indicated above in NCR.49/05 which was later translated into Crime No.32/06. She further brought out that during this period, a case for divorce was filed in M.C.789/05 against her with mala fide intention.
c) The SHO accepted her report and on the basis of investigation, has filed final report raising charges for the offences indicated above.
d) The jurisdictional magistrate has taken cognizance and issued process in response to which petitioners who are accused nos.4 and 5 sought discharge.
e) The magistrate did allow them opportunity, but by the impugned order, rejected it, compelling them to face charge with the other accused. That order is questioned here.
19. I have already referred to the allegations in the report which became the basis for arraigning therein. The complaint spells out her grievance towards her husband. 17 Incidents of violence are quoted, but the overt acts to perpetrate cruelty is attributed only to her husband. There is an omnibus statement made against them that they were involved in the assault, they beat and pulled her. If we accept it as prima facie case, it refers only to one incident. Besides, there is no categoric statement in the complaint that the house in which she entered matrimony was occupied by accused nos.4 and 5-petitioners herein. When they were not living there, then the circumstances under which they could torture her, are not spelled out.
20. Undoubtedly, the case is triable as a warrant case. Therefore, the provisions of Sections 238 to 242, Cr.P.C. would apply, for which the legislative intent is to carve out a stage to enable the Magistrate to decide whether prima facie case is made out. This is found in Section 239, Cr.P.C. which postulates 'When accused shall be discharged - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity 18 of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.' We shall now examine the scope of such exercise by the Sessions Judge under Section 227, Cr.P.C.
21. Section 227, Cr.P.C. is part of Chapter 18 which applies to trial before the sessions court. It reads thus:
'Discharge - If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.' The language of Sections 239 and 227 are different. The scope of power exercisable to grant discharge under Section 227 is less compared to the power of discharge conferred on the Magistrate under Section 239. It is for this reason Sessions Judge is required to examine only the record of the case and documents submitted therewith for ascertainment 19 as to whether a case is made out for framing charge or discharge. For doing so, the Sessions Judge can only 'hear' the submission of the prosecution and the accused. But under Section 239, the requirement is different. It envisages ' If upon consideration the police report and the documents sent with it under section 173 and making such exmianation, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.'
22. Therefore, examination of the accused is permissible under Section 239, undoubtedly, for ascertainment about the truth or otherwise of the allegations made, which is not contemplated in Section 227. Therefore, it implies that the magistrate cannot merely on the basis of reference to the charge sheet, reject the request of the accused to discharge only because prima facie case is made out. He is required not only to examine the records submitted along with the 20 final report under Section 173, Cr.P.C., but also to examine the accused for ascertainment as to whether a case is made out for framing charge. All the contentions of the accused need to be taken into consideration.
23. The order impugned passed by the magistrate in this case is a truncated order. He has rejected the grounds urged by the accused only on the basis of written arguments. The relevant portion is at paragraph 4 of the impugned order which reads thus:
'....The arguments canvassed in written arguments are touching the merits of the case and at this stage of the case the court is only to look into whether there are any material on record to frame charge against the accused. The scrutiny of entire chargesheet clearly goes to indicate that there are sufficient and satisfactory material to direct the accused to answer the charge for the offences punishable u/s 498-A, 506(B) r/w 34 of IPC and also Section 3 and 4 of the D.P Act. The grounds urged by the accused are touching the merits of the case and at this stage of the case, merit of the case cannot be discussed. Hence, court is satisfied as to the materials placed on the record to direct the 21 accused to answer the charges. There are no grounds to discharge the accused at this stage of the case. In the result, I pass the following:
ORDER The application filed by the accused 1 to 5 u/S 239 of Cr.P.C is hereby rejected. A1 to A5 are hereby directed to answer the charges for the offences punishable u/S 498-A, 506(B) r/w 34 of IPC and Section 3 and 4 of the D.P Act.' This approach appears to be irrational, and against the mandate of Section 239, Cr.P.C. which requires the magistrate to examine the accused and ascertain to what extent prosecution would succeed in proving charge. Merely because the allegations are of serious nature, it does not warrant framing of charge, specially under Section 239, Cr.P.C. Hence, the very approach and the reason for rejecting the request of the petitioners is unsustainable. It is accordingly set aside.
24. The question is, whether remand is necessary, or finality has to be given. As could be seen from the impugned order, the learned trial judge has extracted the nature of allegations made against the petitioners who are 22 shown as accomplices in the crime with their parents and brother. The allegation so extracted itself does not make out any case for trial against them. In this view, I am satisfied they are entitled for discharge.
25. Hence, the revision succeeds in entirety. Petitioners herein who are arraigned as accused nos.4 and 5 are discharged. However, any observation made during the course of this order on the allegations made in the complaint shall not prejudice the prosecution or accused in any manner during trial of other accused.
SD/-
JUDGE vgh*