Karnataka High Court
Prabhuraj S/O Virupaxshappap ... vs Smt. Iramma W/O Prabhuraj ... on 27 July, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27 T H DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.101797/2017
BETWEEN:
1. PRABHURAJ S/ O. V IRUPAXHA PPA
MOTTAMMANAVAR,
AGE 37 YEARS, OCC: BUSINESS,
R/O. ADURU, TQ. YELBURGA,
DIST. KOPPAL.
2. LAXMI D/O. VENKARADDY ACHHIHALLI,
AGE 27 YEARS, OCC: HOUSEHOLD WORK,
R/O. BALAGANOOR, TQ. SHINDHANOOR,
DIST. RAICHUR.
(SHE IS WRONGLY SHOWN AS LAXMI
W/O. PRABHURAJ MOTTEMMANAVAR
IN THE LOWER COURT BY THE COMPLAINANT
IN THE COMPLAINT)
...PETITIONERS
(SMT. NANDINI SOMAPUR, ADVOCAT E
FOR SRI . B.V .SOM APUR, ADV OCATE FOR PETITIONERS )
AND:
1. SMT. IRAMMA W/O. PRABHURAJ
MOTTAMMANAVAR, AGE 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O. ADURU, TQ. YELBURGA,
DIST. KOPPAL.
2
2. THE STATE OF KARNATAKA,
REP. BY S.P.P.
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH, DHARWAD.
... RES PONDENTS
(BY SRI.V .M.BANA KAR, ADDL. SPP F OR R2;
R1 - SERVED)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C., SEEKING THAT THE
IMPUGNED ORD ER PASSED BY THE CIVIL JUDGE AND
JMFC YELBURGA S OFAR AS IT RELAT ES TO TAKING OF
COGNIZANCE OF OFFENCES AGAI NST PETITIONERS
UNDER SECTION 494 READ WITH S ECTION 34 OF I PC
IS CONCERN AND ALSO ENTIRE PROCEEDINGS IN
C.C.NO.243/ 2017 MAY PLEASE BE SET ASIDE.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned Addl. SPP for the respondent No.2-State. Notice issued to respondent No.1 is served and she remained un-represented.
2. This petition is filed for setting aside taking of cognizance of the offence against the 3 petitioners under Section 494 read with Section 34 of Indian Penal Code (for brevity, hereinafter referred to as 'IPC') and entire proceedings in C.C.No.243/2017. The respondent No.1 is the wife of the petitioner No.1. It is the case of the respondent No.2 that, the petitioner No.1 started to ill-treat her and drew her and her daughter out of the house. The petitioner No.1 contracted second marriage with petitioner No.2 and their marriage was taken place on 12.03.2013 in Markhandeshwar Temple, Shivapur and a female child is born to the petitioners out of their marriage. Respondent No.2 filed complaint under Section 200 of Cr.P.C. The learned Civil Judge and JMFC Court, recorded sworn statement of respondent No.1 and marked Ex.P.1 to Ex.P.5 and by order dated 4 07.07.2017 took cognizance against the petitioner Nos.1 and 2 for the offence punishable under Section 494 of IPC and ordered to register a criminal case for the said offence against them and issued summons. The petitioners have challenged the said order.
3. The learned counsel for the petitioners contended that, the petitioner No.1 has not married petitioner No.2 and it is false allegation. Respondent No.1 in her sworn statement has stated that, the petitioner No.1 married petitioner No.2 on 12.03.2013 in Markhandeshwar Temple, Shivapur and out of their wedlock a female child is born. Ex.P.5 is Bhagyalakshmi Bond in respect of a child by name Shreeraksha and her date of birth is 27.05.2013, wherein, the name of the father is shown as Prabhu Motammanavar (petitioner 5 No.1) and name of the mother is shown as Laxmi (petitioner No.2). The said Ex.P.5 has been issued by Child Development Officer, Yalburga. The said document i.e. Ex.P.5 has been filed in support of the contention of the respondent No.1, that the petitioner No.1 has married petitioner No.2 and a female child is born to them out of their marriage. This Court is not a fact finding Court. The said fact alleged by one party and denied by the other can only be established at trial.
4. Learned Addl. SPP for the respondent No.2-State has contended that, the offence under Section 494 of IPC is an offence punishable with imprisonment for a term which may extend up to 7 years and the trial of the said offence is a warrant trial on the case instituted otherwise than a police report. He 6 further contended that, Section 244 of Code of Criminal Procedure, 1973 (for brevity, hereinafter referred to as 'Cr.P.C.') deals with recording of evidence of the prosecution in such cases and Section 245 of Cr.P.C. deals with discharge of the accused, if no case against the accused has been made out. He contends that, the petitioners after recording of the evidence of the prosecution as required under Section 244 of Cr.P.C., are at liberty to seek their discharge under Section 245 of Cr.P.C. Sections 244 & 245 of the Cr.P.C, are extracted hereunder for easy reference:
"244. Evidence fo r pro secutio n :- (1) When, in any warrant-case instituted otherwise than on a po lice repo rt, the accused appears or is brought before a Magistrate, the M agistrate shall pro ceed to hear the prosecution and take all such 7 evide nce as may be pro duced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecutio n, issue a summons to any of its witnesses directing him to attend or to pro duce any do cument or other thing.
245. When accuse d shall be discharged. - (1) If, upo n taking all the evide nce re ferred to in Se ctio n 244, the Magistrate considers, for re asons to be recorde d, that no case against the accused has been made out which, if unre butted, would warrant his convictio n, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage o f the case if, for re asons to be recorde d by such Magistrate, he conside rs the charge to be groundless."
5. As the offence alleged against the petitioners is a warrant case instituted otherwise than on a police report, the 8 prosecution has to lead its evidence as required under Section 244 of Cr.P.C. After recording the said evidence, the Magistrate has to consider the same and if no case is made out against the accused, he shall discharge him. This Court is not a fact finding Court and therefore, it cannot entertain this petition under Section 482 of Cr.P.C. Hence, the petition is dismissed.
Sd/-
JUDGE * S vh / -