Karnataka High Court
Kumari Jayashree Dhondiba Sherkhan vs Shri Shivaji Sakaram Sherkhane on 28 March, 2014
Author: A.V.Chandrashekara
Bench: A.V. Chandrashekara
R
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28th DAY OF MARCH, 2014
BEFORE
THE HONOURABLE MR. JUSTICE A.V. CHANDRASHEKARA
CRIMINAL REVISION PETITION NO. 957/2013
BETWEEN:
KUMARI JAYASHREE DHONDIBA
SHERKHAN, AGE: 22 YEARS,
OCC.: STUDENT, R/O NAVALIHAL
(KIDAGEDI), TQ.: ATHANI,
DIST.: BELGAUM.
- PETITIONER
(BY SRI DEVDAS D. SHERKHAN, ADVOCATE)
AND :
1. SHRI SHIVAJI SAKARAM SHERKHANE,
AGE: 42 YEARS, OCC.: AGRICULTURE,
R/O CHINCHALI, TQ.: RAIBAG, DIST.: BELGAUM.
2. SHRI PANDURANG GUNDU SHERKHANE,
AGE: 32 YEARS, OCC.: AGRICULTURE,
R/O CHINCHALI, TQ.: RAIBAG, DIST.: BELGAUM.
3. SHRI KRISHNA GUNDU SHERKHANE,
AGE: 30 YEARS, OCC.: AGRICULTURE,
R/O CHINCHALI, TQ.: RAIBAG, DIST.: BELGAUM.
4. SHRI DEEPAK BABU KAMBLE,
AGE: 42 YEARS, OCC.: AGRICULTURE,
R/O NAVALIHAL, TQ.: RAIBAG, DIST.: BELGAUM.
5. SHRI CHANDRAKANT GANPATI RAJMANE,
AGE: 31 YEARS, OCC.: AGRICULTURE,
R/O KEMPAWAD, TQ.: ATHANI, DIST.: BELGAUM.
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6. SHRI RAJU JADHAV,
AGE: 42 YEARS, OCC.: AGRICULTURE,
R/O LAL NAGAR HOUSING SOCIETY,
ICHALKARANAJI, TQ.: HATKANAGALA,
DIST.: KOLHAPUR..
7. SMT. LALITA RAJU JADHAV,
AGE: 37 YEARS, OCC.: HOUSEHOLD WORK,
R/O LAL NAGAR HOUSING SOCIETY,
ICHALKARANJI, TQ.: HATKANAGALA,
DIST.: KOLHAPUR.
8. SMT. GANGUBAI GUNDU SHERKHANE,
AGE: 49 YEARS, OCC.: HOUSEHOLD WORK,
R/O CHINCHALI, TQ.: RAIBAG, DIST.: BELGAUM.
9. SMT. PUTALABAI SHERKHANE,
AGE: 30 YEARS, OCC.: HOUSEHOLD WORK,
R/O CHINCHALI, TQ.: RAIBAG, DIST.: BELGAUM.
10. SHRI GANAA KAKASAHEB JADHAV,
AGE: 39 YEARS, OCC.: AGRICULTURE,
R/O NAVALIHAL (KIDEGEDI),
TQ.: ATHANI, DIST.: BELGAUM.
11. THE STATE OF KARNATAKA
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
S.P.P. OFFICE, BANGALORE.
- RESPONDENTS
(BY SRI HARISH S. MAIGUR, ADVOCATE FOR R2-10,
SRI ANAND K. NAVALGIMATH, ADDL. S.P.P. FOR R11)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1)/ 402 OF CR.P.C. PRAYING TO SET ASIDE THE
ORDER DATED 05.10.2013 PASSED BY THE VII ADDL. DIST.
AND S.J., BELGAUM AT CHIKKODI IN CRL. R.P. NO. 298/2013
BY CONFIRMING THE ORDER PASSED BY THE JMFC COURT,
ATHANI IN C.C. NO. 2/13 & ETC.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Orders passed by the learned Addl. Sessions Judge, Belgaum, sitting at Chikkodi in Crl. R.P. No. 298/2013 dated 05.10.2013 is called in question before this Court by filing a revision petition u/S 397(1) of Cr.P.C.
2. Petitioner herein Smt.Jayashri is the first respondent in the said case. State of Karnataka represented by Public Prosecutor is Respondent no.2 in the said order dated 05.10.2013. By virtue of an order dated 05.10.2013, learned VII Addl. Dist. Judge, Belgaum sitting at Chikodi, has set aside the order passed by the Learned JMFC, Athani in C.C. No. 2/2013 arising out of P.C. No. 207/2011. The order of the learned JMFC passed u/S 204 Cr.P.C. registering a case against the respondents 1 to 10 herein on 01.01.2013 has been set aside and matter is remanded to the trial Court in respect of taking cognizance on all the counts of offences. Direction is given to the learned JMFC by the 7th Addl. Dist. Judge for considering the factual aspects and the circumstances about the allegations made against them and 4 to pass appropriate orders. This order is called in question on various grounds as set out in the appeal memo.
3. On the basis of a complaint filed u/S 2(d) of Cr.P.C. by the first respondent Smt. Jayashree, cognizance was taken by the learned JMFC, Athani and matter was posted to 07.09.2011 for recording the sworn statement. A complaint was lodged by Smt.Jayashree against 15 persons inclusive of Sri S.N. Gali, P.S.I. Kagawad Police Station and Sri Gasti, P.C. working in Kagwad Police Station who are A14 and A15, for offences punishable u/S 143, 147, 148, 323, 324, 326, 354, 448, 504, 506, 307 & 149 of IPC. According to the complaint, she has filed a civil suit in O.S. No. 1425/2009 against few accused herein in respect of land bearing Sy. No. 99/1B and 99/1A for the reliefs of partition and separate possession. Such being the case, her elder brother Prakash had threatened her with dire consequences to her life it she did not withdraw the suit. In this regard she has lodged a separate complaint to Kagawad Police Station and Police have not taken any action. 5
4. On 22.08.2011 at about 4.00 p.m. when she was in her house along with her children accused nos.1 to 13, i.e., respondents 1 to 13 herein came near her house by forming an unlawful assembly and had held deadly weapons. They started abusing her by using filthy language and thus they committed riot. Her son suddenly came out to see as to what was happening outside the house. At that time he saw first accused holding wooden club and other accused holding sickles and choppers. Afraid of the same, he asked them as to what they were doing. Then A1 scolded him by using un-parliamentary words and threatened him with dire consequences to his life and assaulted him on his head with the club. On hearing the screaming sound, complainant came out of the house along with her children Babasab, Anil, Jayashri and Manjula and asked the accused as to why they were doing so. Then Sivaji threw a club on her son Babasab and tried to assault Babasab with a chopper, which had been concealed by him. Later on Babasab ran away 6 from the place and hid himself in the sugarcane land. Accused Panduranga caught hold of Manjula and dragged her. When Hemant asked them as to why they were assaulting her, the accused assaulted with a sickle on Prakash and accused Ganapa Jadhav threatened that they would finish them off since they have not withdrawn the suit. Then accused no.8 Smt. Lalitha told them that her husband was a supari killer and he would kill all of them one by one. On seeing neighbourers coming there, all the accused ran away from that place holding the deadly weapons.
5. The case of the complainant is that all these offences were done to pressurize her to withdraw the suit O.S. No. 1423/2009 and the assault was made with a clear intention of murdering her and her family members. At about 1.00 p.m. on 23.08.2011 she went to Kagawad Police Station and lodged a report in this regard and they did not receive her complaint. Accused no.15 is stated to have scolded her and A14 also threatened her. It is in the light of 7 these facts, a complaint came to be filed u/S 2(d) of Cr.P.C. before the learned JMFC, Athani. Sworn statement of complainant Jayashree, witnesses Manjula, Raju, Prakash and Babusab came to be recorded. On the basis of the sworn statement of the complainant filed u/S 2(d) of Cr.P.C. learned JMFC has chosen to issue process against all the 15 accused for offences punishable u/S 143, 147, 148, 323, 324, 326, 354, 448, 504, 506 and 307 r/w Sec. 149 IPC vide order found in the order sheet dated 1.1.2013 maintained in C.C. No. 2/2012 arising out of P.C. No. 207/2011.
6. Order of the learned Sessions Judge remanding the matter to the JMFC is called in question on the ground that Magistrate need not hold a roving enquiry in the matter of issuing process against the accused for summoning them to the Court, u/S 204 Cr.P.C. Learned counsel for the respondents 1 to 10 is present and has supported the impugned order on the ground that learned Sessions Judge has rightly remanded the matter giving opportunity to the complainant to give out details of the various offences for 8 which complaint has been filed. It is argued that the discretion exercised by the learned Sessions Judge cannot be called in question before this revisional Court.
7. After hearing learned counsel for the parties following points have arisen for consideration in this Court:
Whether the learned Addl. Sessions Judge, Belgaum sitting at Chikodi is justified in remanding the matter to the Court of learned JMFC at Chikodi for reconsidering all the factual aspects and statement of the witnesses about the allegations made against the accused and thereafter to pass appropriate orders?
Reasons
8. Sec. 204 Cr.P.C. enables the learned Magistrate to take cognizance of offences provided there is sufficient grounds for proceeding further. After taking cognizance and recording the sworn statement, if the learned JMFC is satisfied that there exists a prima facie case for issuing summons he can do so. Learned JMFC is not expected to make a roving enquiry and pass a detailed order. This has been eloquently dealt with by the Hon'ble Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa 9 Ronjalgi and Others reported in (1976) 3 SCC 736 equivalent to 1976 CriLJ SC 1533. Explaining the scope of Sec. 204, Hon'ble Apex Court has held that, at the stage of issuing process after taking cognizance learned JMFC is only required to be prima facie satisfied on the basis of allegations made in the complaint. Entering into detailed discussion on merits and demerits at this stage is not permissible and it is also held that, non consideration of documents produced by accused at that stage would be a proper procedure. It is held that an order passed u/S 204 Cr.P.C. by the learned JMFC can be quashed or set aside if the following four grounds are made out and they are found in para 5 of the said decision.
1. Where the allegations made in complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
2. Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
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3. Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant and inadmissible; and
4. Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
9. It is better to peruse the impugned order passed on 01.01.2013 passed by the learned JMFC in regard to issuing of process u/S 204 Cr.P.C. Order dated 01.01.2013 found in the order sheet dated 01.01.2013 of C.C. no. 2/13 arising out of P.C. No. 207/2011 is as follows:
ORDER That the complainant has filed the private complaint against the accused for the offences punishable u/sec. 143, 147, 148, 323, 324, 326, 354, 448, 504, 506, 307 r/w sec. 149 of IPC.
That, the complainant in order to prove her justification has deposed herself as P.W.1 got examined as P.W.2 to 5.
That, on perusal of averments of complaint and the oral evidence of P.W.1 to 5 it prima facie appears that, the accused No.1 to 15 have committed the said offences against the complainant. The accused No.14 and 15 have acted in derogatory to their duties.11
Hence office is to register the case against the accused and issue process to them if P.F. is paid by 30.3.2013.
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10. Learned Sessions Judge has come to the conclusion that overt act of each accused is not made out in the complaint and the sworn statements. It is further held that the person who actually outraged the modesty of the woman to be punishable u/S 354 of IPC is not forthcoming.
It is stated that order dated 01.01.2013 is not a speaking order and that the order only speaks of the various provisions of IPC and registering a case. According to the learned Sessions Judge, learned JMFC has not applied his mind judiciously. The decision reported in AIR 2004 SC 4711 had been relied by the learned counsel for the petitioners stating that they cannot approach the learned JMFC to recall the order on the ground that Magistrate, once having taken a decision to issue process, cannot reconsider his decision.
11. On reading the entire order dated 05.10.2013 passed by the learned JMFC, it appears that the learned 12 Sessions Judge is of the opinion that the Magistrate should have discussed the facts of the case and the role of each accused with reference to the offences alleged. Looking to the principles enunciated by the Hon'ble Supreme Court in Nagawwa's case, the approach of the learned Sessions Judge appears to be incorrect and improper. No roving enquiry or detailed order is required to issue summons u/S 204 of Cr.P.C. What is expected of a Magistrate is to record the sworn statement of all the witnesses and then to pass an order and that order must reflect the application of judicial mind. In this view of the matter, the order passed by the learned Sessions Judge on 05.10.2013 in C.C. no. 298/13 is not proper and hence the matter is to be remitted to the learned Sessions Judge to reconsider the same in the light of the principles enunciated in Nagawwa's case.
12. Even otherwise, it is to be seen that in a criminal case initiated otherwise than on a Police report and if the offences in respect of which process is issued, are cognizable offences requiring a warrant trial, the trial before charge will 13 be invariably held and that will be the appropriate stage whereby the accused will also get an opportunity to say as to whether a case made out for the offences for which process has been issued against them. Even on this ground also, the order of remanding the matter to the learned JMFC, Athani has to be set aside. Accordingly, point is answered in the negative.
ORDER Petition is allowed. Order dated 05.10.2013 passed by the learned Addl. Sessions Judge, Belgaum, sitting at Chikodi passed in C.C.No.298/2013 is set aside. Matter is remitted to the Court of Addl. Sessions Judge, Belgaum, sitting at Chikodi to take holistic view keeping in mind the principles enunciated by the Hon'ble Apex Court in Nagawwa Vs. Veeranna Shivalingappa Ronjalgi's case reported in 1976 (3) SCC 736. Respondents 2 to 10 herein, i.e., petitioners 2 to 10 in Crl.P No.298/2013 shall appear before the learned Sessions Judge on 29th April 2014 without fail.
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Office to send the records to the Court of Addl. Sessions Judge, Belgaum, sitting at Chikodi, forthwith.
Sd/-
JUDGE BVV