Karnataka High Court
Shantinath S/O Mallappa Gubachi vs Yallavva W/O Ningappa Kavatekar on 11 November, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
CRL.P.No.101809/2017
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.101809/2017
BETWEEN:
1. SHANTINATH, S/O. MALLAPPA GUBACHI
AGE: 43 YEARS, OCC: AGRICULTURE
R/O. KUNCHANUR, TQ: JAMAKHANDI
DIST: BAGALKOT.
2. KUNTINATH, S/O. MALLAPPA GUBACHI
AGE: 39 YEARS, OCC: AGRICULTURE
R/O. KUNCHANUR, TQ: JAMAKHANDI
DIST: BAGALKOT
SHOWN AS ACCUSED NOS. 1 AND 2
... PETITIONERS
(BY SRI. P. N. HOSAMANE, ADVOCATE)
AND:
1. YALLAVVA, W/O. NINGAPPA KAVATEKAR
AGE: 33 YEARS, OCC: HOUSEHOLD WORK
R/O. GADYAL, TQ: JAMKHANDI
DIST. BAGALKOT.
2. STATE OF KARNATAKA
REPRESENTED BY SAVALAGI POLICE STATION
BY SPP HIGH COURT OF KARNATAKA
DHARWAD BENCH.
... RESPONDENTS
(BY SRI. VISHWANATH HEGDE, AMICUS CURIAE FOR R1;
SRI.KIRAN KUMVAR, HCGP FOR R2)
CRL.P.No.101809/2017
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THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C. PRAYING TO QUASH THE ORDER DATED
14.07.2017 PASSED BY PRINCIPAL CIVIL JUDGE AND JMFC,
JAMAKHANDI IN C.C.NO.194/2014 AND ENTIRE
PROCEEDINGS PENDING FOR THE OFFENCE UNDER SECTION
323, 354, 447, 504 AND 506 R/W. SECTION 34 OF IPC.
THIS PETITION COMING ON FOR ADMISSON
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present respondent No.1, as a complainant, had instituted a private complaint under Section 200 Cr.P.C. against the present petitioners in the Court of the Principal Civil Judge and JMFC, Jamkhandi (hereinafter referred to as 'the trial Court', for brevity), in PCR No.57/2012.
2. The summary of the said complaint was that, on 07.11.2012 at about 9.00 am, when the complainant joined by her sister-in-law was attending to the agricultural work in their land bearing Re-survey No.42/2 in the Gadyal village within the limits of respondent No.2 - Police Station, the present petitioners CRL.P.No.101809/2017 :3: criminally tress-passed into their land and objecting for the complainant in cultivating the said land and stating that the complainant's family is no more the owners of the land, physically assaulted them and behaved in a objectionable manner with the complainant and her sister-in-law, insulted them by abusing them in filthy language and also threatened them with dire consequences. With this the complainant has alleged that the accused may be criminally prosecuted for the offences punishable under Sections 323, 324, 354, 447, 504 and 506 of the IPC.
The sworn statement was recorded. Thereafter the Magistrate referred the matter for investigation under Section 156(3) Cr.P.C. to the jurisdictional Police, who after their investigation filed 'B' false report. The complainant objected to the same by filing protest petition. It is thereafter stating that an evidence before charge was recorded, the Magistrate proceeded in the matter, which by then was registered in CRL.P.No.101809/2017 :4: C.C.No.194/2014 for the offense punishable under Sections 323, 354, 447, 504 and 506 R/w. Section 34 of the IPC. It is the said criminal case, the accused in the said case have challenged in this petition seeking its quashing.
3. Respondent No.1, who is the complainant in the case, though was served, since has remained unrepresented, this Court by its order dated 04.11.2020 appointed an Amicus Curiae for her. Respondent No.2 - State is being represented by the learned HCGP.
4. Though this matter is listed for admission, with the consent of learned counsel for both side, the same is taken up for final disposal.
5. Heard the arguments from both side and perused the materials placed before this Court.
6. Learned counsel for the petitioners in his argument submitted that the procedure followed by the CRL.P.No.101809/2017 :5: Magistrate is totally unknown to law and that he ought to have recorded the evidence of the complainant and the witnesses from the prosecution side afresh under Section 244 Cr.P.C., as such, the Magistrate ought not to have recorded the sworn statement and proceeded further.
In his support, he relied upon the judgment of the Hon'ble Apex Court in the case of Sunil Mehta & Anr. Vs. State of Gujarat & Anr. Reported in (2013) 9 SCC 209.
7. Learned Amicus Curiae for respondent No.1/complainant in his argument submitted that, the complainant had filed a memo in the trial Court requesting the Court to consider the sworn statement recorded from the complainant side as the evidence before charge. The same was not objected to by the accused in the trial Court as such, they are estopped from now contending that the same cannot be acted CRL.P.No.101809/2017 :6: upon by the Magistrate. He further submits that the Magistrate, apart from accepting the said memo, has also proceeded to record the further evidence of the prosecution side including the complainant and PW2 and got the documents marked. The accused were also given fair opportunity to cross-examine the witnesses, however, they did not make use of the same. As such, the principle laid down by the Hon'ble Apex Court in Sunil Mehta's case (supra) is not applicable in the case on hand.
8. Learned HCGP for respondent No.2, apart from submitting that there is no procedural irregularity in the matter, submits that there is no substantial injustice caused to the accused in any manner, as such, he cannot maintain the present petition.
9. It is not in dispute that, after filing the private complaint, the complainant had given sworn statement by examining herself as CW1 and examining CRL.P.No.101809/2017 :7: one Smt. Gouravva as CW2 on 15.03.2014. Subsequently, when the matter was slated for recording the evidence before charge, the complainant filed a memo requesting the trial Court to adopt their sworn statement itself as their evidence as PW1 and PW2 and got marked documents from Exs. P1 to P4. It is also not in dispute that the accused did not object to the said memo. It is further not in dispute that the accused were given an opportunity to cross-examine both PW1 and PW2, but they did not cross-examine either PW1 or PW2, on the other hand, they submitted in the trial Court that they would cross-examine the prosecution witnesses during the trial when their evidence on the main case would be recorded. This fact that the accused had an opportunity and they did not make use of the same was clearly recorded in the impugned order.
10. Now coming to the Sunil Mehta's case referred to by the learned counsel for the petitioner in CRL.P.No.101809/2017 :8: this matter, in the said Sunil Mehta's case, no doubt the Hon'ble Apex Court has held that the stages of sworn statement and recording the evidence under Section 244 Cr.P.C. are two different stages and they cannot be read as one and the same, but it has given more emphasis on the aspect giving an opportunity to the accused under Section 244 of Cr.P.C. to cross- examine the prosecution witnesses, which opportunity he would not be having at the stage of recording the sworn statement.
It is as one among the various reasons, the Hon'ble Apex Court has held that the sworn statement and the evidence under Section 244 Cr.P.C. are two different and accused cannot be deprived of an opportunity to cross-examine the prosecution witnesses.
11. In the case on hand, as already observed, in the trial Court the complainant had moved a memo requesting the Court to adopt their sworn statement as CRL.P.No.101809/2017 :9: their evidence before charge, which was not objected to from the accused's side.
Secondly, apart from the stage of adopting of the sworn statement as the prosecution evidence before charge, both CW1 and CW2 were further examined in chief, wherein the documents at Exs. P1 to P4 were marked. Thus, it was not a mere adopting of the sworn statement, but something more in the form of actual recording of evidence was also undertaken by the trial Court.
Thirdly, the accused were given an option to cross- examine both PW1 and PW2, which the accused expressly stated that they would not be willing to make use of, as such, the accused were given a fair opportunity to cross-examine PW1 and PW2, in which event they had every opportunity to cross-examine both PW1 and PW2 with respect to their evidence including the sworn statement in its entirety.
CRL.P.No.101809/2017: 10 :
Thus, it cannot be said that non-recording of the entire evidence before charge afresh has in any manner deprived the right of the accused to cross-examine the prosecution witnesses or it has caused any prejudice to the interest of the accused. On the other hand, it has saved time of the Court as well of the parties and might have helped in augmenting the speed of the case without causing any prejudice to the interest of the either side.
Lastly, it also can be noticed that Section 244 Cr.P.C. speaks about recording of the evidence in a warrant case instituted otherwise than on a police report. Section 244 of Cr.P.C. reads as under:
"244. Evidence for prosecution: (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.CRL.P.No.101809/2017 : 11 :
(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."
The offence alleged in the instant case, as fairly conceded even by the petitioners would not fall under the category of warrant case.
For all these reasons, the first argument of the learned counsel for the petitioner that the procedure adopted by the learned Magistrate was totally strange and unknown to law was not acceptable.
12. On the merit of the case, the contention of the learned counsel for the petitioners is that, there is no prima facie evidence to proceed further in the criminal case. The name of PW2 is not reflected in the complaint and as such, her evidence does not inspire any confidence to believe. He also submits that, if at all any dispute has taken place between the parties, it is a civil dispute to be adjudicated in a competent Civil CRL.P.No.101809/2017 : 12 : Court, as such, the criminal case deserves to be quashed.
The said argument is also opposed by the learned Amicus curiae and learned HCGP stating that the offence alleged since are punishable under Sections 323, 354, 447, 504 and 506 of the IPC, it cannot be called that the acts alleged are civil in nature. All the offences are the criminal acts practiced against the complainant.
13. I find more force in the arguments of the learned Amicus Curiae and the learned HCGP. Furthermore, the evidence of PW1 and PW2 would go to show that, PW1 has claimed that she is the victim in the alleged incident and the present petitioners at the very criminally trespassing into the alleged land have also manhandled her physically, beaten her and behaved in a indecent manner and abused her in filthy language. Thus, when she has alleged specific overt acts against the accused/petitioners, which has been further CRL.P.No.101809/2017 : 13 : corroborated in the evidence of PW2, who claimed that she was an eyewitness to the incident and has rushed to the rescue of the complainant, it cannot be said that there are no prima facie case for proceeding in the criminal case against the petitioners.
Further, Exs. P1 to P4 marked form the prosecution side would also go to show at this stage that, immediately after the incident the complainant made an attempt to lodge a complaint with the jurisdictional police, which according to the complainant was not entertained by them. Subsequently she also made an attempt in bringing the knowledge about the alleged incident to the jurisdictional Superintendent of Police as well to the Deputy Inspector General of Police at Belagavi. The telegram copies have been marked as Exhibits.
14. All these matters further substantiate the contention of the prosecution witnesses to make out a CRL.P.No.101809/2017 : 14 : prima facie case against the petitioner to proceed against them in the criminal case. As such, I do not find it as a fit case where the court can exercise its power under Section 482 Cr.P.C. and quash the proceedings.
15. Hence I proceed to pass the following:
ORDER The petition is dismissed.
The Court while acknowledging the services rendered by the learned Amicus Curiae, for the respondent No.1 Sri. Vishwanath Hegde, recommends to pay him an honorarium of a sum of not less than `3,000/- payable by the Registry, at the earliest.
Sd/-
JUDGE gab