Karnataka High Court
Smt. Jadiyamma @ Jaya W/O. Basanagouda vs Basavanagouda S/O. Amaregouda Police ... on 4 February, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 04TH DAY OF FEBRUARY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL REVISION PETITION NO. 100018/2014
BETWEEN:
1. Smt. Jadiyamma @ Jaya
W/o Basanagouda,
Age: 36 years, Occ: Household work,
R/o 1st Cross, Kumararam
Badavane, Gangavathi,
District : Koppal.
2. Veeranna
S/o Rayappa Halapur,
Aged about 56 years,
Occ: Agriculture,
R/o Kumararam Badavane,
Gangavathi.
3. Smt. Shivakantamma
W/o Veeranna Halapur,
Aged about 51 years,
Occ: Household work,
R/o Kumararam Badavane,
Gangavathi.
4. Annadanappa
S/o Veeranna Halapur,
2
Aged about 34 years,
Occ: Advocate & Actor,
R/o Kumararam Badavane,
Gangavathi.
5. Sindhu W/o Annadanappa
Halapur, Aged about 31 years,
Occ: Household work,
R/o Kumararam Badavane,
Gangavathi.
6. Jaganmata
W/o Basavaraj,
Aged about 33 years,
Occ: Household work,
Tq. Hospet, Dist. Bellary.
7. Smt. Sakalamma
W/o Pampanna,
Aged about 46 years,
Occ: Household work,
R/o Muddatanur,
Tq. Hospet, Dist.Bellary. ... Petitioners
(By Sri. F.V. Patil, Adv.)
AND:
Basavanagouda
S/o Amaregouda Police Patil,
Aged about 37 years,
Occ: Social Service,
R/o Shriram Nagar,
Gangavathi. ... Respondent.
(By Sri. Aravind D. Kulkarni, Adv.)
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This Criminal Revision Petition is filed under
Section 397 r/w 401 of Cr.P.C., praying that the order
of registering the case against the petitioners and
issuing process for an offence punishable under Section
494 of I.P.C. in C.C. No.918/2013 (P.C. No.219/2012)
pending on the file of Addl. Civil Judge, Gangavati may
kindly be set aside.
This Criminal Revision Petition coming on for
Admission, this day the Court passed the following:
ORDER
The petitioner approached this Court requesting this Court to set aside or quash the entire proceedings in C.C. No.918/2013 on the file of the Additional Civil Judge, Gangavathi. After filing of the petition, notice was ordered and in fact the respondent appeared through his Counsel. At the stage of Admission itself with the consent of both the Counsels, the matter is heard on merits of the case.
2. It is seen from the records that the respondent herein Sri. Basavanagouda lodged a complaint in P.C.R. No. 219/2012 before the learned JMFC against the 4 petitioners herein for the offence punishable under Section 494 of Indian Penal Code. On the allegations that the 1st petitioner has married second time with a person by name Doddappa Desai S/o Lakshman Rao arrayed as accused No.2 before the Trial Court. The learned Magistrate after examining the complaint and after going through the contents of the complaint and sworn statement of the complainant took cognizance and issued summons against the petitioners against which the petitioners are challenging the said order, the present petition is filed.
3. The learned Counsel for the petitioner strenuously contends that though there are some allegations made in the complaint but in the sworn statement of the complainant those things have not been translated into evidence. Further, he contended that accordingly to PW-1 (complainant Basavanagouda) he came to know about the second marriage between the 1st accused and 5 the 2nd accused through one Eshappa and Doddabasappa. Those witnesses have not been examined, only on the basis of hearsay materials the complainant has stated that the marriage between 1st and 2nd accused took place. Therefore, the contents of the complaint has not been reiterated and translated into evidence in the sworn statement of the complainant. In the absence of examination of Eshappa and Doddabasappa, the learned Magistrate is not right in taking cognizance and issuing summons against the petitioners.
4. The Learned Counsel for the respondent contends that it is only an irregularity it cannot be said to be an illegality committed by the learned Magistrate. The question of taking cognizance arises only the learned Magistrate after going through the contents of the complaint proceeded to record the sworn statement of the complainant. The issuance of process to the 6 witnesses may be irregular and it cannot be an illegal process. Therefore, he contends, if Court comes to the conclusion that there is irregularity committed by the learned Magistrate, the same may be cured by means of remitting the matter to the learned Magistrate with a direction to proceed with the stage of recording of the sworn statement of the complainant.
5. Looking to the above circumstances, whether the non-examination or improper examination of the complainant amounts to an illegality or irregularity is only the point that should be looked into by the Court. It is seen from Section 200 of Cr.P.C. the learned Magistrate on taking cognizance has to examine the complainant for the alleged offences i.e. to say that unless the learned Magistrate on going through the complaint averments takes cognizance has no jurisdiction to proceed and examine the complaint and record the sworn statements. Therefore, I don't find any 7 fault committed by the learned Magistrate in taking the cognizance on the basis of the allegations made in the complaint, where the allegations in the complaint clearly make out the offence, the non-examination of the complainant or irregular examination of the complainant would not totally vitiate the cognizance taken by the learned Magistrate. The defect, in my opinion, is curable under Section 464 of Cr.P.C., where the accused is not prejudiced the omission to examine the complainant or improper examination of the complainant may be treated as an error of procedure falling within the purview of Section 464 of Cr.P.C. The said course is only an irregularity but does not vitiate the entire proceedings. Failure to examine the complainant or irregular examination before issuing process is not an irregularity which is totally incurable under Section 461 of Cr.P.C., which could make the proceedings null and void. Such a breach does not 8 affect the jurisdiction of the Magistrate, but only affects the subsequent proceedings only. In this case when the learned Magistrate has taken the cognizance, recorded the sworn statement of the complainant, to that extent the procedure is legal but when the learned Magistrate after going through the contents of the complaint and also the sworn statement of the complainant decides to issue process then the learned Magistrate has look into whether a perusal of the sworn statement which is in turn should be almost a reiteration of the complaint averments constitute any offence so as to proceed to issue process against the accused. If the process is issued against the accused then the question of prejudice against the accused will come into picture. The learned Magistrate in the absence of the sworn statement of the complainant or the sworn statement of the complainant does not disclose or constitute any offence against the accused, issuing process against the 9 accused, amounts to prejudicial to the accused. However, I have noted above, it is only irregularity committed by the learned Magistrate not an illegality in so far as issuance of process against accused persons. But the observation of the learned Magistrate that he has gone through the complaint averments and taken cognizance based on recording of sworn statement of the complainant is not illegal. The irregularity adverted to above can be cured by remitting the matter to the learned Magistrate with a direction to provide an opportunity to the complainant to proceed for further sworn statement and to examine any of the witnesses on his side, then the learned Magistrate has to proceed, if necessary against the accused persons in accordance with law.
6. With these observations, I proceed to pass the following Order :
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The Order passed by the learned Magistrate in issuing process against the accused persons in C.C. No.918/2013 for the offence under Section 494 of I.P.C. is hereby set aside. Consequently, in view of the observations made in the body of this order, the matter stands remitted to the Trial Court for further proceedings.
Accordingly, this Criminal Revision Petition is disposed of.
SD/-
JUDGE Rbv