Karnataka High Court
Maheshappa S/O Nagappa Kottur vs Manjula W/O Basaraj Kottur on 21 October, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21st DAY OF OCTOBER 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.101544/2015
BETWEEN:
1. MAHESHAPPA,
S/O NAGAPPA KOTTUR
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/O SUTTAKOTI VILLAGE,
HIREKERUR TALUK,HAVERI DISTRICT
2. GOURAMMA, W/O NAGAPPA KOTTUR
AGED ABOUT 75 YEARS,
OCC: HOUSEMAKER
R/O SUTTAKOTI VILLAGE,
HIREKERUR TALUK, HAVERI DISTRICT.
3. HAMPAVVA, W/O MALLESHAPPA BANAKAR,
AGED ABOUT 55 YEARS, OCC: SERVICE
R/O MRUTUNJAYA NAGAR, RANEBENNUR,
HAVERI DISTRICT.
4. SUSHEELAVVA,
W/O MAHADEVAPPA CHIKKONATI,
AGED ABOUT 36 YEARS,
OCC: HOUSEMAKER
R/O SUTTAKOTI VILLAGE,
HIREKERUR TALUK, HAVERI DISTRICT.
Crl.P. No.101544/2015
2
5. HARISH, S/O KARABASAPPA KOTTUR,
AGED ABOUT 22 YEARS,
OCC: AGRICULTURE
R/O SUTTAKOTI VILLAGE,
HIREKERUR TALUK, HAVERI DISTRICT.
6. KOTRESH, S/O NAGAPPA KOTTUR,
AGED ABOUT 25 YEARS,
OCC: AGRICULTURE
R/O SUTTAKOTI VILLAGE,
HIREKERUR TALUK, HAVERI DISTRICT.
... PETITIONERS
(BY SRI. S.G. KADADAKATTI, ADV.)
AND:
SMT. MANJULA, W/O BASAVARAJ KOTTUR,
AGED ABOUT 35 YEARS, OCC: HOUSEMAKER
R/O SUTTAKOTI VILLAGE, HIREKERUR TALUK,
HAVERI DISTRICT.
.. RESPONDENT
(RESPONDENT SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
CALL FOR THE RECORDS FROM THE LEARNED CIVIL JUDGE
(JUNIOR DIVISION) AND JMFC, HIREKERUR, IN
C.C.NO.22/2015 AND QUASH THE IMPUGNED ORDER DATED
28.01.2015 PASSED BY THE LEARNED CIVIL JUDGE(JUNIOR
DIVISION), AND JMFC HIREKERUR, IN C.C. NO.22/2015 AND
PASS SUCH OTHER SUITABLE ORDER/S AS THIS HON'BLE
COURT MAY DEEM FIT AND PROPER IN THE FACTS AND
CIRCUMSTANCES OF THE CASE.
THIS CRIMINAL PETITION COMING ON FOR HEARING
THROUGH PHYSICAL HEARNG/VIDEO CONFERENCING
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
Crl.P. No.101544/2015
3
ORDER
The petitioners herein, who are accused Nos.1 to 6 in C.C. No.22/2015 pending in the Court of Civil Judge(Junior Division) and JMFC, Hirekerur (hereinafter for brevity referred to as 'trial Court'), have sought for quashing the order dated 28.01.2015 passed by the trial Court in C.C. No.22/2015. In the said order, showing it as an order under Section 204 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.'), the learned Magistrate has directed the office to register a criminal case in C.C. register against the accused persons for an offence punishable under Section 380 of the Indian Penal Code (hereinafter for brevity referred to as 'IPC') and also has directed for issuance of summons to the accused persons after compliance of Section 304 of Cr.P.C., if proper P.F. is paid by the complainant.
Crl.P. No.101544/20154
2. The said order came to be passed by the trial Court in a private complaint lodged by the present respondent herein under Section 200 of Cr.P.C. before the said Court alleging commission of the offence punishable under Sections 143, 340, 342, 343 and 504 read with Section 149 of IPC by the present petitioners herein, who were arraigned as accused Nos.1 to 6 in the said private complaint.
3. The summary of the said private complaint is that the complainant-Smt. Manjula is the wife of one Sri.Basavaraj Kottur. Accused No.1 is the brother, accused No.2 is the mother, accused Nos.3 and 4 are the sisters of the husband of the complainant and accused Nos.5 and 6 are the relatives of the other accused. According to the complainant, her husband-Basavaraj Kottur is an innocent soft person, whereas, accused No.1, i.e., the brother of her husband, is a politically influential person and also an active member of Crl.P. No.101544/2015 5 Farmers' Association. After partition in a residential property bearing No.454, the complainant and her husband were residing separately in one of the rooms on the western side of the said property. That being the case, on 14.04.2014, when the complainant had been to agricultural land and her husband was alone at home, all the accused, taking undue advantage of the situation, wrongfully confined her husband in the room where he was residing and locked the door of the said room from outside and before wrongfully confining the husband of the complainant inside the room, they also threw all the utensils and articles in the house outside and wrongfully confined the husband of the complainant alone in that house. The complainant, after her return from the field, when attempted to release her husband and rescue him, the accused obstructed her and abused her in filthy language. This made her to approach the jurisdictional Hamsabhavi Police Station. However, noticing that Crl.P. No.101544/2015 6 accused No.1 was a politically influential person, they did not take any action. Stating that since three days her husband was wrongfully confined, she approached the trial Court through a private complaint.
4. The material placed before the Court also would go to show that during the pendency of the proceedings, the complainant also appears to have filed an application under Section 97 of Cr.P.C. for a search warrant and which application is also said to have been allowed by the trial Court by its order dated 16.04.2014. Subsequently, thereafter, on 09.05.2014, it recorded the sworn statement of the complainant and also recorded the evidence of her husband-Basavaraj Kottur and on 14.05.2014, it recorded the evidence of one Sri.Muradana Gouda. On 28.01.2015, it proceeded to pass the impugned order directing the registry/office to register a criminal case in C.C. Register against the Crl.P. No.101544/2015 7 accused for an offence punishable under Section 380 of IPC.
5. Notice was ordered on the respondent, who, though served, has remained absent.
6. Heard the arguments of the learned counsel for the petitioners, who is physically present in the Court.
7. The learned counsel in his brief argument submitted that, when the alleged offence are the one punishable under Sections 143, 340, 342, 343 and 504 read with Section 149 of IPC, the trial Court has taken cognizance for a different, unconnected and totally not an alleged offence which is under Section 380 of IPC, that too, without giving any reasons as to how come the alleged Section 380 is attracted in the alleged facts and circumstances of the case.
8. A perusal of the certified copy of the sworn statement of the complainant, who was examined as Crl.P. No.101544/2015 8 CW-1 and the evidence of her husband as CW-2 and one Muradana Gouda as CW-3, would go to show that, all these 3 witnesses have spoken about the accused wrongfully confining CW-2-Basavaraj Kottur in his house and locking it from outside. CWs.1 and 2 have also stated that it is only after the matter was revealed to Media people (television) and at their interference, the Circle Police Inspector of Hirekerur, visited their house in the midnight at 12.00 and released the confined person. Thus, prima facie, a perusal of the statement given by these witnesses would only speak about the alleged throwing away of the articles from the house and more particularly, the alleged wrongful confinement of Basavaraj Kottur in his house by the accused. Further, even according to the complainant, the offences alleged were the one under Sections 143, 340, 342, 343 and 504 read with Section 149 of IPC. However, the trial Court, though has passed a detailed reasoned order and Crl.P. No.101544/2015 9 discussed in its reasoning about the alleged attraction of Section 343 of IPC but observed that there were no materials prima facie to arrive at a conclusion that the alleged confined person-Basavaraj Kottur, was wrongfully confined for 3 days or more. With this it observed that Section 343 is not attracted.
9. A perusal of the sworn statement of CW.1 and statement of CW.2 would go to show that the alleged incident of wrongful confinement of CW-2-Basavaraj Kottur is said to have taken place on Monday i.e., 14.04.2014. It was about 5'O clock, after the return of the complainant from the field to her house, she came to know about the alleged wrongful confinement of her husband said to have been committed by the accused. The sworn statement of CW-1 and the statement of CW-2 further go to show that the complainant made futile attempts in getting her husband-CW-2 released from the said wrongful confinement for subsequent two days i.e., Crl.P. No.101544/2015 10 Tuesday and Wednesday also and it was only in the Wednesday night, at the intervention of Media and the police, wrongfully confined person i.e., Basavaraj Kottur is said to have been released. Thus, from Monday till Wednesday night, he appears to have been in the alleged wrongful confinement in his own house. The Magistrate has not noticed the said aspect.
Secondly, when the allegations made in the complaint are under Sections 143, 340, 342, 343 and 504 read with Section 149 of IPC and the complainant, as CW-1, has specifically sated that when she attempted to release her husband, she was not only obstructed by the accused but she was also abused in filthy language by them. A similar evidence has also come from CW-3 but the trial Court did not notice the same. However, the trial Court in the last paragraph of its reasoning has observed as below:
"Further the complainant has stated before the Court that, when she tried to open the lock of her house, the Crl.P. No.101544/2015 11 accused persons abused her in filthy language and stopped her from rescuing her husband. Even the witnesses who have been examined before the Court on behalf of the complainant have also deposed to the fact that, the accused persons abused the complainant and her husband in filthy language. Therefore, it is made clear before the Court that, the accused persons being the members of unlawfully confined the husband of the complainant in the house by locking the doors and without giving him any food and water. They have also abused the complainant and her husband in filthy language and did not allow the complainant to open the locks put up to their house in order to save her husband. Therefore, this aspect of the matter clearly shows that, the complainant has made a ground for provide against the accused persons for the above mentioned offences. Hence, in view of this, I answer point No.1 in the affirmative and proceed to pass the following order."
10. In the said reasoning, the trial Court has clearly stated that the complainant has made out a prima facie case that she was abused in filthy language and the trial Court has opined that 'it was made clear to it, that the accused persons, being the members of Crl.P. No.101544/2015 12 unlawful assembly, confined the husband of the complainant in the house by locking the doors and without giving him any food and water. They have also abused the complainant and her husband in filthy language and did not allow the complainant to open the locks put to their house, in order to save her husband.' It is further observed that 'the said aspect of the matter has clearly shown that, the complainant has made a ground for proceeding against the accused persons for the above mentioned offences.' Which means, after noticing that prima facie material has been placed and grounds are made to proceed for the offence punishable under Sections 143, 340, 342, 343 and 504 read with Section 149 of IPC, still the trial Court has proceed to pass the order as below:
"ORDER The office is hereby directed register a criminal case in C.C. register against the accused persons for the offences punishable u/s. 380 of IPC and issue summons Crl.P. No.101544/2015 13 to the accused persons after compliance of Section 304 of Cr.P.C., if proper P.F. is paid by the complainant.
Call on 18/2 "
11. Thus, the operative portion is totally unconnected with the reasoning given by the trial Court. Its own reasoning given by the trial Court, though, would not lead to connect the order with the operative portion, directed the registry to register a criminal case for the offence punishable under Section 380 of IPC. The trial Court, without even noticing that its reasoning and conclusion are totally different and cannot go together in the alleged circumstances of the case, has proceeded to direct the registry to register a case for totally an unalleged and uncalled offence punishable under Section 380 of IPC.
12. The above act of the trial Court would further go to show that the Magistrate has not at all bothered to know as to what reasons he has given and as to what conclusion he is coming. Thus, not, even, in a Crl.P. No.101544/2015 14 mechanical manner but in a very careless manner (if it could be called so) proceeded to pass the impugned order.
13. Thus, it is a fit case where the impugned order under challenge deserves to be set aside and the matter requires to be remanded with a direction to the trial Court to proceed further in the matter from the stage where it was due as on 28.01.2015 and to pass appropriate orders regarding taking cognizance of the offence and in accordance with law.
Accordingly, I proceed to pass the following order.
ORDER The Criminal Petition is allowed in part. The order dated 28.01.2015 passed by the learned Civil Judge (Junior Division) and JMFC, Hirekerur, in C.C. No.22/2015 is quashed. The matter is remanded with a direction to the trial Court to proceed further in the matter from the stage where it was due as on Crl.P. No.101544/2015 15 28.01.2015 and to pass appropriate order regarding taking cognizance of the offence and in accordance with law.
Registry to transmit a copy of this order to the trial Court forthwith.
Sd/-
JUDGE Kmv