Karnataka High Court
D C Thammanna vs State Of Karnataka on 25 June, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
CRIMINAL PETITION NO.1727 OF 2012
BETWEEN:
D C THAMMANNA
EX.MLA MADDUR CONSTITUENCY
AGE: 69 YEARS
S/O LATE CHIKKAMARI GOWDA
R/O DODDARASINAKERE
MADDUR TALUK,
MANDYA DISTRICT. ...PETITIONER
(BY SRI. H C HANUMAIAH, ADV.)
AND:
1. STATE OF KARNATAKA
BY MANDYA WEST POLICE STATION,
BY STATE PUBLIC PROSECUTOR
HIGH COURT BUIDLING,S
BANGALORE 1
2. B BASAVARAJU S/O VEEREGOWDA
AGE: 56 YEARS
R/AT 2341, 3RD CROSS,
GANDHINAGARA, MANDYA TOWN. ...RESPONDENTS
(SRI.G.M.ANANDA, ADV. FOR K.S.DORESWAMY, ADV. FOR R2
SRI.VIJAYAKUMAR MAJAGE, HCGP FOR R1)
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This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to set aside the order dated 21.3.2012
pending in C.C.No.380/09 on the file of Addl. C.J. (Jr. Dn.) and
JMFC at Mandya.
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This petition coming on for Admission this day, the
Court made the following:
ORDER
This petition is by the proposed accused No.17 in C.C.No.380/2009 now pending on the file of JMFC, Mandya and for setting aside of the order dated 21.3.2012.
2. Mandya west police registered a case in Crime No.255/2008 for the offence punishable under Sections 143, 144, 146, 147, 148, 323, 324, 427, 448, 114, 307, 108 read with Section 149 of IPC. Petitioner was shown as accused No.17 in the said complaint. The police, on investigation, filed the charge sheet before the Addl. JMFC, Mandya. However, the accused No.17 was given up in the charge- sheet along with some other accused, in the charge-sheet the offence punishable under Section 307 and 114 of IPC were also deleted. Since accused No.17 was given up in the charge sheet, the complainant filed an affidavit protesting the deletion of accused No.17.
3. On the basis of the protest affidavit, the learned JMFC took cognizance against the accused No.17. As against the 3 said order, the accused No.17-petitioner herein filed Crl.P.No.1610/2010 before this court. This court by order dated 12.09.2011 allowed the criminal petition, set aside the order of taking cognizance against the petitioner and remitted the matter to the learned JMFC to record sworn statement and if the case is made out against the accused No.17, it may proceed against him.
4. After the remand, the sworn statement of CWs1 to 5 were recorded and on the basis of the sworn statement of the witnesses and the complainant, the learned JMFC took the cognizance and directed the office to register the case for the offences punishable under Sections 143, 145, 146, 147, 323, 427, 448, 114, 188 r/w Section 149 of IPC and Section 2(b) of Prevention of Destruction and Loss of Property Act, 1981. It is against the said order, the petitioner is before this court.
5. Sri. H.C. Hanumaiah, learned counsel for the petitioner submitted that, when the police filed the charge- sheet, it had recorded the statement of CWs1, 2, 3 and 4 who were the material witnesses and on the basis of the said statement, the police found that there is no prima facie case 4 against the accused No.17 to proceed with the trial and had deleted the name of the accused No.17. He referred to the complaint filed by CW2, and submitted that though the complainant has made allegations of abatement to commit offence, but the same is not supported by any material evidence. CW2 is injured, even in his statement he has stated that the incident occurred on account of the instigation by the petitioner herein but he is not the person who has seen, his statement does prove that the petitioner has abated the crime. CW3-H.S.Avinash also states that the incident occurred on account of instigation by the petitioner, however, CW4 does not speak as to the abatement. CW3, whose statement was recorded by the police, he has not stated the overt act against the accused No.17, but in the sworn statement he makes the improvement in his statement interalia stating that the incident occurred at the instance of the petitioner and the accused No.17 informed to his followers to go and assault Madegowda, does not matter whatever be the cost. However, before the police he has not made such a statement.
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6. He also submitted that, the protest memo must be in the form of complaint and not in the form of affidavit. Affidavit is in the form of objection statement to the charge- sheet and it does not constitute as a protest memo. He further, submitted that under Section 107 of IPC to constitute an abatement there must be specific averments that the person who has abated must have stated, that he himself heard that the accused No.17 abated and instigated, however, none of the witnesses have spoken as to who abated by speaking to whom and where. In the absence of this, petitioner should not be made to appear before the criminal court and much less when the entire material does not even prima facie constitute an offence of abatement. In support of his contention he relied on the judgment reported in AIR 2009 II SCC (Cri) 1113 in the matter of Keki Hormusji Gharda and others vs Mehervan Rustom Irani and another, and AIR 1975 SUPREME COURT 175 in the matter of Shri. Ram vs. The State of U.P.
7. Learned counsel appearing for the respondent submits that, in the complaint and in the statement before the police the specific allegation is made against the 6 petitioner herein that he had abated the crime. The statement of other witnesses recorded by police during the course of the investigation also corroborated with the statement of CWs2, 3 and 4 particularly that they came shouting that the petitioner was defeated because of Madegowda-CW2. As such, there is prima-facie material to proceed against the petitioner. He also relied on the judgment reported in 1997 KAR L.J. 52 and AIR 1978 SC 1568 in the matter of Hareram Satpathy vs. Tikaram Agarwal and others and submitted that scope of the interference by this court under Section 482 Cr.P.C., is limited and this court cannot make enquiry, it can only look into the complaint for the purpose of finding whether there is prima facie case made out or not.
8. In the light of the submission made by the learned counsel on both side the only question that arise for my consideration is that "whether the material is sufficient to proceed against the petitioner or not?"
9. It is not in dispute that in the complaint, the complainant at the inception he makes specific allegation that other accused came to the spot assaulted CW2 and they 7 assaulted at the instance of the petitioner herein and on the basis of which the criminal law was set in motion and on the basis of the said complaint crime was also registered under Section 114 of IPC as the abatement took place in the absence of the petitioner at the place of incident. During the course of the investigation, the statement of CW2-injured was recorded and in his statement, he has stated that the enemity started on account of the feeling of the petitioner that the CW2 did not support him and as a result he lost the election, his supporters came and assaulted Madegowda and he specifically alleges that the supporters of accused No.17 could not have assaulted CW2 but for instigation by the petitioner herein. CW3 also alleges that the petitioner instigated the supporters to assault CW2. These statements were recorded by the police during the course of investigation for the reasons best known to the police they given up the petitioner in the charge-sheet, though his name was referred in the complaint and in the statement of CW2 and 3 as an abettor.
10. When the name of accused No.17 was given up in the charge-sheet, a protest memo by way of affidavit was 8 filed. No doubt, the affidavit is not in the nature of compliant but it contains that the police has ignored the material statement while filing the charge-sheet. It is, in this regard, the witnesses' sworn statements were recorded by the learned Magistrate. In the sworn in statement of three witnesses have specifically stated that, the petitioner instigated his supporters to assault the CW2.
11. Now the question arises as to whether at the stage of considering for quashing of the proceedings under 482 Cr.P.C., can this court evaluate the entire material to find out whether the proceedings could go on against the accused No.17. The fact that there is allegation in the complaint that the petitioner instigated his supporters to assault the CW2, is supported by the statement of CW2 and 3 further when the name of the petitioner was deleted in the charge-sheet, before the learned magistrate CWs 1, 2 and 3 have stated in their sworn statement specifically alleging that, instigation was made by the petitioner.
12. Learned counsel for the petitioner had submitted that none of the witnesses stated whether the petitioner had instigated and they have not stated that any instigation was 9 made before them, and submitted that the statement is only in the nature of assumption and it is not in the form of statement supporting the complaint.
13. Whether it supports the prosecution case or is sufficient for the purpose of conviction is not a matter to considered at this stage. However, the allegations are sufficient to proceed against the accused No.17.
14. The trial court has rightly held that it can proceed against the petitioner also and accordingly it has registered case. In my opinion, the learned JMFC has properly appreciated the material and statement on record and passed the order by taking cognizance and ordering for registration of the criminal case. The amount of consideration that is required to be considered at this stage has been properly considered by the learned magistrate, I do not find there is any error in the impugned order.
Hence, the petition fails and same is dismissed. However, the observation made during the course of this order are only for the purpose of disposal of the petition, it should not be treated as any findings. Petitioner is at 10 liberty to seek discharge before the learned magistrate.
Sd/-
JUDGE RV/PMR