Karnataka High Court
Dr.Girish S/O Gurunath Patil vs Dr.Gangambika W/O Girish Patil on 4 July, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION NO.201298/2016
Between:
Dr. Girish S/o Gurunath Patil,
Aged about : 42 years,
Occ : Medical Practice,
R/o Akki Colony,
Ashram Road,
Vijayapur.
... Petitioner
(By Sri Ameet Kumar Deshpande, Advocate)
And:
Dr. Gangambika W/o Girish Patil,
Age about: Major,
Occ : Medical Practitioner,
R/o Tamadaddi, Tq.Muddebihal,
Dist.Vijayapur-585101.
... Respondent
(By Sri Shivanand V. Pattanshetty, Advocate)
2
This Criminal Petition is filed under Section 482
of Cr.P.C., praying to allow this petition and quash the
order dated: 28.09.2016 passed in C.C.No.62/2007
(Arising out of P.C.No.31/2007) on the file of the Prl.
JMFC at Muddebihal, and to pass any other
appropriate orders as deem fit in the circumstances of
the case.
This petition coming on for admission this day,
the Court made the following:-
ORDER
The present petition is filed by the petitioner- accused under Section 482 of Cr.P.C., being aggrieved by the order dated 28.09.2016, passed in C.C. No.62/2007 (arising out of P.C.No.31/2007) on the file of Prl. JMFC, at Muddebihal.
2. The facts leading to the complaint are that the respondent-complainant filed private complaint under Section 200 of Cr.P.C., alleging that the respondent is the legally wedded wife of accused- petitioner and still her marriage is in subsistence but the accused-petitioner has got married with accused 3 No.2 on 18.03.2007 at about 11 A.M. in Ghanamatheshwar Chowki temple and thereby he has committed the offence punishable under Section 494 R/w Section 109 of I.P.C. The Court below after recording sworn statement of the complainant and the witnesses, summons were issued and thereafter, the petitioner-accused appeared and charges were framed and thereafter witnesses have been examined and thereafter, some applications were filed and the Court below considered those applications on 28.09.2016 the case was posted for hearing before charge and on that day after hearing about the charge, the charge was framed, the accused pleaded not guilty and the case was posted for the complainant's evidence.
3. Being aggrieved by the said order, the present petitioner-accused is before this Court. The main grounds urged by the learned counsel for the petitioner are that the impugned order dated 4 28.09.2016 is erroneous and without following the provisions of the Criminal Procedure Code, the same is liable to be set aside. He would further contend that, the procedure adopted by the Trial Court is erroneous. He would further contend by bringing to my notice that the provisions of Section 244 and 246 of Cr.P.C., that the witnesses have been cross-examined and thereafter, the charge has been framed, then as per the Section 246 (5) Cr.P.C., if accused wishes then under such circumstances, he can recall the witnesses for cross examination or re-examination. But the Trial Court has not followed the said procedure. If the complainant again is recalled and asked to lead his evidence then under such circumstances, the complainant may fill up gap or and lacunas and cover the admission in the case and in that event it will prejudice the accused-petitioner, on these grounds he prayed for allowing the said petition. 5
4. Learned counsel appearing on behalf of the respondent No.2, vehemently argued and contended that, though order dated 28.09.2016 says that the case is posted for complainant's evidence, this indicates that, it is only for the purpose of cross- examination of the complainant and nothing more than that. He would also further contend that, he was ready to examine the complainant and he can further lead the evidence as directed by the Court. He further contended that the accused-petitioner has not made out any grounds so as to interfere with the order of the Trial Court and he request for dismissal of the petition.
5. I have consciously gone through the record and also the impugned order and provision of law. It is admitted fact that the petitioner-accused and the respondent-complainant are the husband and wife and the complaint came to be filed under Section 200 of 6 Cr.P.C., Petitioner-accused for having got married to accused No.2 and the said matter is under adjudication and that being the case, the impugned order dated 28.09.2016 came to be passed. Only question which remains for the consideration of this Court is, whether the impugned order is in accordance with law. For the purpose of brevity I quote Section 244 and 246 of Cr.P.C., which 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.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to 7 attend or to produce any document or other thing.
246. Procedure where accused is not discharged.
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused had committed an office triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained tot he accused, and he shall be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the 8 Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken.
(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-
examination and re-examination (if any), they shall also be discharged".
6. By combined reading of Section 244 and 246 of Cr.P.C., when a case has been instituted otherwise than on a police report i.e., the private complaint and if the accused has appeared before the Court after receipt of summons and thereafter the Magistrate has to satisfy under Section 246 of Cr.P.C., whether the accused has committed an offence triable under the said Chapter and the Magistrate is 9 competent to try then he shall consider the case and if he opines that there are grounds and thereafter adequate to frame charges then charge has to be framed as per Section 246 (2) of Cr.P.C., and if accused pleads guilty, then he has to be convicted thereunder. If accused does not plead guilty, then under such circumstances, the Magistrate has to follow the provisions of Section 246 (5) and (6). The provisions under Section 246 (5) and (6), it would indicate that, if the accused wishes, he shall call and cross-examine and re-examine and then thereafter they should be discharged. Under such circumstances, posting of the case for the purpose of complainant's evidence by the trial Court appears to be not in accordance with law, as per procedure laid down under Section 246 of Cr.P.C. In the light of the above discussion, the impugned order appears to be perverse and same is not sustainable in law. In that 10 view of the matter the impugned order dated 28.09.2016 requires to be set aside as such, it is set aside and the Court below is directed to follow the mandatory provisions during the trial as stated under Section 244 and 246 of the Cr.P.C., and proceed further. Accordingly, the petition is allowed. The impugned order dated 28.09.2016 is set aside to the extent of posting the case for the complainant's evidence.
As could be seen from the records, the matter is of the year 2007 and as such the Trial Court is directed expedite the case.
Sd/-
Judge RSP