Karnataka High Court
Mukesh Chandu @ Mukku S/O Subhodh Chandu vs Nazir Kutty Machingal on 7 March, 2012
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE Q7TI{ DAY OF MARCH 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No.10728/2011
BETWEEN:
Mukesh Chandu i Mukku,
Sb. Subhodh Chandu, Age: 31 years,
0cc.: Sales Personnel & Teacher,
R/o. D.No. 14. Lafarge Colony,
Gopal Nagar, Dist.: Jangir/Champa,
State of Chattisgarh. . . . Petitioner
[By Shri F,V.Patil and
Shri Vijayendra Bhimakkanavar, Advs. absent]
AND:
1, Nazir Kutty Machingal,
Age: 59 years,
0cc,: Manager, Sonadih Cement Plant,
R/o. Raseda, via Balodabazar,
District: Raipur (Chattisgarh),
Now residing at H.No.68/69,
Santosh Nagar, Hubli.
2. The State of Karnataka,
Rep. by its State Public Prosecutor,
Hon'ble High Court of Karnataka,
Circuit Bench, Dharwad. .. . Respondents
[By Shri Anand K. Navalgimath, H.C.G.P.]
4
This criminal petition is filed under Section 482 of
the Code of Criminal Procedure seeking to quash the
impugned order of framing of charge vide Annexure-E
dated 28.04.2011 in S.C.no.14/2008 passed by the
Principal District and Sessions Judge, Dharwad and
quash the impugned entire criminal proceedings in
C.C.No.873/2007 (P,C,No.400/2004) pending on the file
of the Principal District and Sessions Judge, Hubli, and
quash the impugned order of taking cognizance vide
Annexure-B, dated 31,105/2004 passed by the J.M.F.C.
Ill-Court, Hubli, in C.C. No.873/2007 (P.C.
No.400/2004).
This criminal petition coming on for orders, this
day, the Court made the following: -
ORDER
None appears for the petitioner.
2. It is noticed that for the last two days, the Members of the Bar have abstained from Courts and such act on their part is contrary to the decision of the Apex Court. Therefore, in the absence of the learned counsel for the petitioner, I have gone through the papers produced along with this petition and also heard the learned Government Pleader.
3. Notice of this petition to the respondent No. 1 who was the complainant before the learned Magistrate.
:3:is returned with a report that he is presently working in a Cement Factory in Angola, Africa. As, the prosecution launched against the petitioner is based on the Police report and the order impugned in this petition is the one passed by the learned Sessions Judge refusing to discharge the petitioner -- accused, presence of respondent No.1 is not necessary for disposal of this petition. Therefore, the petition is being disposed of on merits.
4. One Miss Saba, the daughter of respondent No.1 committed suicide in her paternal aunt's house at Hubli on 19.02.2004. In respect of the said death, the Jurisdictional Police registered an unnatural death report case. Later respondent No.1 filed Private Complaint under Section 200 of the Code of Criminal Procedure before the Jurisdictional Magistrate at Hubli, alleging the offences punishable under Sections 304 and 306 of the Indian Penal Code against the petitioner herein, inter alia alleging that the complainant along with his wife and children has been residing in Raseda, Raipur District of Chattisgarh, where he was working as a Personnel Manager in Sonadih Cement Plant; that the father of the accused was also working in the said Cement Factory, as such they were also residing in the Company Quarters; that the eldest daughter of the complainant by name Saba, a student of 3rd year B.Com was visiting the house of the accused frequently and was also taking tuition with him and in process, they fell in love with each other and ultimately they decided to marry; for which purpose, they filed application before the Register of Marriages on 11.11.2003; that after coming to know of filing such application on service of notice from the Register of Marriages, the complainant tried to convince both of them not to marry on account of the difference of religion to which they belonged, however his daughter did not heed to his request, therefore he agreed for the marriage, but sent his daughter to his sister's house in Hubli for change of environment in the month of December 2003; that thereafter, his daughter Saba and accused were talking to each other over phone and on 16.02.2004, when Saba had a talk with the accused over phon e, he refused to marry her and again when she talked to him on 19.02.2004. the accused refused to marry her, therefore, she committed suicide. It is also alleg ed in complaint that the deceased had left a type writt en letter dated 17.02.2004, wherein she has clear ly stated that on account of refusal by the accused to marr y her, she committed suicide and the accused is respo nsible for her death. It is also alleged in the complaint that on 19.02.2004, she committed suicide by hanging and she had left behind a death note.
5. Therefore, the complainant sought the Court to take cognizance of the offences and to deal with the accused in accordance with law. ft appears that the learned Magistrate referred the complaint for investigation under Section 156(3) to the Polic e. After investigation, the Police filed the charge sheet for the offence punishable under Section 306 of the Indian Penal Code. Upon committal of the case, the petit ioner :6: appeared before the learned Sessions Judge at Hubli and filed application under Section 227 of the Code of Criminal Procedure seeking discharge, inter alia contending that even if the entire materials placed on record along with the charge sheet are considered at its face value, it would not make out any case against him, therefore, there are no grounds for proceeding against him. The said application was opposed by the prosecution. Learned Sessions Judge by the order impugned in this petition, rejected the said application holding that there are sufficient materials to frame charge against the accused for the offence punishable under Section 306 of the Indian Penal Code. The said order is impugned in this petition.
6. After perusing the impugned order, I am of the considered opinion, without going into the merits of the contention raised, the order impugned is liable to be quashed and learned Sessions Judge is required to be directed to hear the application afresh and pass appropriate orders, since the order impugned is not a :7: speaking order. inasmuch as not even the contentions of the accused raised in the applica tion have been noticed nor dealt with. The order im pugned does not indicate as to whether the learned Ses sions Judge has applied his mind to the materials pla ced before the Court along with the charge sheet to find out as to whether or not there are sufficient rounds to proceed against the petitioner accused by framing charge
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against him for the offence under Sec tion 306 of the Indian Penal Code.
7. Section 227 of the Code of Criminal Procedure directs that if, upon consid eration of the record of the case and the document s submitted there with, and after hearing the submissi ons of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient round for proceeding against the accused, he shall discharge the accused and of course for doing so, he should rec ord his reasons.
Thus Section 227 of the Code of Cri minal Procedure makes ft mandatory on the part of the learned Sessions & :8: Judge to look in to the record as well as the documents submitted there with and to he ar the submissions of both the accused and the prosecuti on and then form an opinion as to whether or not the re is sufficient ground for proceeding against the accuse d.
8. No doubt at that stage, the learne d Sessions Judge is not required to pa ss an elaborate and considered order. Nevertheless, when the accused person sought for discharge by pointing out the materials placed by the Police alo ng with the report and contends that even those mater ials considered at its face values, does not make out a case against him, the learned Sessions Judge is un der an obligation to consider them and pass app ropriate order, which indicates the application of mi nd to the materials on record and also to the contentio ns urged I am of the considered opinion, the impug ned order does not answer any of these requirements.
Therefore, I am of the considered opinion, the order im pugned in this petition cannot be sustained, as such it is liable to the quashed A-
and set aside. However, since there is no proper consideration of application file d by the petitioner, it is just and necessary to direct the learned Sessions Judge to consider the application afr esh and pass appropriate orders.
9. In view of the above, the pet ition is allowed inpart. The order impugned dated 28.04.2011, passed by the learned Sessions Jud ge Dharwad, sitting at Hubli, in Sessions Case No.14/2008, rejecting the application filed for discharging, is hereby quashed.
10. The learned Sessions Judge is directed to consider the application afr esh and pass appropriate orders.
Sd/ JUDGE Rsh