Karnataka High Court
Shivanand vs Shashidhar M on 15 November, 2018
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2018
BEFORE:
THE HON'BLE MR.JUSTICE P.S.DINESH KUMAR
CRIMINAL PETITION No.1397/2013
BETWEEN:
SHIVANAND
S/O SRI BASAPPA @ BASAVAIAH
AGED ABOUT 40 YEARS
MAHESH ENTERPRISES
2ND CROSS, 2ND MAIN
BTM LAYOUT, BANGALORE - 560 076.
..PETITIONER
(BY SRI K NAGABHUSHANA REDDY, ADVOCATE)
AND:
1. SHASHIDHAR M
S/O MUNIKRISHNAIAH
AGED ABOUT 31 YEARS
No.54, 1ST MAIN ROAD
MARUTHI EXTENSION
BANGALORE - 560 021.
2. STATE OF KARNATAKA BY
SUBRAMANYA NAGARA POLICE
BANGALORE - 560 021.
..RESPONDENTS
(BY SRI S G RAJENDRA REDDY, ADVOCATE FOR R1
SRI S RACHAIAH, HCGP FOR R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.No.16510/12 PENDING ON THE FILE
OF VII ACMM, BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard Sri K Nagabhushana Reddy, learned advocate for petitioner, Sri S G Rajendra Reddy, learned advocate for respondent No.1 and Sri S Rachaiah, learned HCGP for the State.
2. Complainant-respondent No.1 filed a private complaint No.9958/2012 before the VII Additional Chief Metropolitan Magistrate, Bengaluru, contending interalia that the petitioner-accused No.6 introduced him to the family of accused No.1 to 5. After negotiations, complainant married the first accused. Subsequently, he learnt that she was earlier married with accused No.7. On these among other allegations, 3 petitioner filed the instant complaint alleging commission of offences under Sections 420, 495 and 120B read with Section 34 of IPC.
3. Learned Magistrate referred the complaint under Section 156(3) of Code of Criminal Procedure. Pursuant thereto FIR in Crime No.160/2012 was registered in Subramanyanagar Police Station on 01.06.2012. After investigation, police have filed charge-sheet for offences punishable under Sections 420, 495, 120B read with Section 34 of IPC against all the seven accused.
4. Shri K Nagabhushana Reddy, learned Advocate for the petitioner urged following contentions:
that the private complaint could not have been filed alleging offences under Sections 420, 120B 4 as the complaint averment attracts offence under Section 495 of IPC.
that Section 198 of Code of Criminal Procedure mandates that no court shall take cognizance of an offence under Chapter 20 of IPC except upon a complaint made by aggrieved party. Learned Magistrate could not have referred private complaint for investigation under Section 156(3) of Code of Criminal Procedure. when the charge-sheet is read in its entirety, no offence can be made out so far as petitioner is concerned.
With the above grounds, learned advocate for the petitioner prayed for quashing the criminal proceedings against the petitioner before the trial court.5
5. Shri S.Rachaiah, learned HCGP adverting to authority in Ushaben Vs Kishorbhai Chunilal Talpada and Ors1 submitted that complaint can be referred by Magistrate and Magistrate can take cognizance of the offence either made in a private complaint or based on a police report. Shri S G Rajendra Reddy, learned Advocate for respondent No.1 also argued on similar lines.
6. In the conspectus of the facts of the case, the point that arises for consideration is `Whether the Magistrate can refer the matter for investigation under Section 156(3) of Code of Criminal Procedure' when complaint averments allege commission of offences punishable under Sections 420, 495 and 120B of IPC.
7. It is the contention of learned advocate for the petitioner that if the averments in a private complaint discloses offence under section 495 IPC, the same 1 2012 Crl.L.J.2234 6 cannot be referred to the police in view of the bar contained in Section 198 of Code of Criminal Procedure. Admittedly, complainant has filed a private complaint before the learned Magistrate and he has referred the case to the jurisdictional police to investigate.
8. Supreme Court of India in the case of Ushaben (supra) has summarized as follows:
"Upshot of the above discussion is that, no fetters can be put on the police preventing them from investigating the complaint which alleges offence under Section 498A of the IPC and also offence under Section 494 of the IPC. In the circumstances, the appeal must succeed. The impugned order is set aside. Obviously, therefore, the direction to delete Section 494 of the IPC is set aside. The police shall investigate the complaint in accordance with law."
9. Thus, in the light of the above judicial pronouncement, the ground that reference could not 7 have been made to the police under Section 156(3) of Code of Criminal Procedure is not tenable. So far as inclusion of other Sections are concerned, police after investigation have filed charge-sheet. To a query made by this court, it is submitted by Sri S G Rajendra Reddy, learned advocate for respondent No.1 that the stage before the trial Court is for addressing arguments before charge. The alleged offences in the charge-sheet require full- fledged trial. In the circumstances, in my view no ground is made out to interfere under Section 482 of Code of Criminal Procedure.
9. Resultantly, the petition is dismissed.
No costs.
Sd/-
JUDGE SBN