Karnataka High Court
Smt Ranjitha vs Sri K Lenin on 14 November, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.763 OF 2011
c/w.
CRIMINAL PETITION No.6009 OF 2017
AND
CRIMINAL PETITION No.6010 OF 2017
CRIMINAL REVISION PETITION No.763 OF 2011
BETWEEN:
Smt. Ranjitha,
Aged about 37 years,
D/o. Sri. P. Ashok Kumar,
No.5-F, Pearl Pranav Apartment,
T. Nagar, Chennai - 600 017.
..Petitioner
(By Smt. K.M. Archana, Amicus Curiae)
AND:
1. Sri. K. Lenin,
Who was formerly known and called as
Nithya Dharmananda,
Aged about 35 years,
S/o. Sri. L. Karuppannan,
Presently said to be available
At Veppampoondi Village,
Athur Taluk,
Salem District,
Tamil Nadu.
2
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
2. Smt. Aarthi Rao,
Aged about 40 years,
W/o. Sri. Manickkam Narayan,
C/o. Sri. K. Suman,
House No.20, 1st Floor,
P.S. Kolam Shivasamy Salai,
Mylapore,
Chennai - 600 004.
Also said to be available at
No.3118, Village Circle,
Ann Arbor, Detroit,
Michigan - 48108,
United States of America.
3. Sri. M. Sridhar,
Advocate,
Fountain Plaza Building,
5th Floor, Egmore,
Chennai - 600 008.
.. Respondents
(By Sri. Ashwin Vaish, Advocate for R-1 and R-2;
Sri. Javeed S., Amicus Curiae for R-3)
****
This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
praying to call for the records in PCR No.183/2010 which is
presently numbered as C.C.No.599/2011 and which case is
pending on the file of the Principal Civil Judge (Jr.Divn.,) and
J.M.F.C., Ramanagara and further be pleased to reverse and set
aside the order dated 04.06.2011 passed in the case insofar as
it relate to the non-registration of a case against the respondents
for an offence which is made penal under Section 376 read with
Section 511 and 120-B of the Indian Penal code and further be
pleased to issue a direction to the Magistrate to register a case
for the said offence also and thereafter to proceed with the case
in accordance with law, in the ends of justice.
3
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
CRIMINAL PETITION No.6009 OF 2017
BETWEEN:
Ms. Aarthi Rao,
Age: 42 years,
D/o. Shri Sethumadhavan
R/o. PHA Grace Garden Apartments,
Hennur Main Road,
Bengaluru - 560 043.
..Petitioner
(By Sri. Ashwin Vaish, Advocate)
AND:
Smt. Ranjitha
Age - 44 years
D/o. Ashok Kumar,
R/o. No.119, State Bank Colony Road,
Virugambakkam, Chennaia,
Tamil Nadu.
And also:
No.5F, Pearl Pranav Apartments
T. Nagar, Chennai - 60018
.. Respondent
(By Smt. K.M. Archana, Amicus Curiae)
****
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to set aside the order
dated 25.05.2017 passed in Criminal Revision Petition
No.39/2015 by the Court of the Principal District and Sessions
Judge, Ramanagara and consequently issue an appropriate order
directing quashing of order dated 31-12-2010 taking cognizance
and order dated 04-06-2011 issuing summons in complaint
bearing C.C.No.599/2011, in case titled, Smt. Ranjitha V.Nithya
Dharmananda and others, pending before the Court of Principle
4
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Civil Judge & Judicial Magistrate First Class, Ramanagara District;
and Call for the records in C.C.No.599/2011 pending on the file
of Civil Judge and Chief Judicial Magistrate, Ramanagara
District; and to pass any other order in the interest of justice.
CRIMINAL PETITION No.6010 OF 2017
BETWEEN:
Sri. Nithya Dharmananda
@ K. Lenin
Age - 40 years
S/o. Late Sri. L. Karuppanan
Old No.94, Odaikadu
Veppampoondi Village
Gangavalli Tq.
Salem District
Tamil Nadu - 600 008.
..Petitioner
(By Sri. Ashwin Vaish, Advocate)
AND:
Smt. Ranjitha
Age - 44 years
D/o. Ashok Kumar,
R/o. No.119, State Bank Colony Road,
Virugambakkam, Chennaia,
Tamil Nadu - 600017.
And also:
No.5F, Pearl Pranav Apartments
T. Nagar, Chennai - 600017
.. Respondent
(By Smt. K.M. Archana, Amicus Curiae)
****
5
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to set aside the order
dated 25.05.2017 passed in Criminal Revision Petition
No.40/2015 by the Court of the Principal District and Sessions
Judge, Ramanagara and consequently issue an appropriate order
directing quashing of order dated 31-12-2010 taking cognizance
and order dated 04-06-2011 issuing summons in complaint
bearing C.C.No.599/2011, in case titled, Smt. Ranjitha V.Nithya
Dharmananda and others, pending before the Court of Principle
Civil Judge & Judicial Magistrate First class, Ramanagara District;
and Call for records in C.C.No.599/2011 pending on the file of
Civil Judge and Chief Judicial Magistrate, Ramanagara District;
and pass any other order in the interest of justice.
This Criminal Revision Petition and the Criminal Petitions
having been heard through Physical Hearing/Video Conferencing
Hearing and reserved on 02-11-2022, coming on for
pronouncement of Orders, this day, the Court made the
following:
ORDER
The petitioner in Criminal Revision Petition No.763/2011 (henceforth referred to as "the complainant") is the complainant in C.C.No.599/2011, which is pending in the Court of the learned Principal Civil Judge (Jr.Dn.) & Judicial Magistrate First Class, Ramanagara (hereinafter for brevity referred to as "the Trial Court").
The petitioner in Criminal Petition No.6010/2017 (henceforth referred to as "accused No.1"), the petitioner in 6 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 Criminal Petition No.6009/2017 (henceforth referred to as "accused No.2") and one Sri.M. Sridhar are accused No.1, accused No.2 and accused No.3 respectively in the said C.C.No.599/2011. Being aggrieved by the order dated 04-06-2011 passed by the Trial Court, in P.C.R.No.183/2010, instituted by the complainant and which is presently numbered as and pending in C.C.No.599/2011, insofar as it relating to the Trial Court registering a criminal case against accused No.1 to accused No.3, only for the offences punishable under Sections 354, 506, 384, 509 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and observing that, there are no materials regarding the commission of the offences punishable under Sections 376 and Section 120B of the IPC, the complainant has filed the present Criminal Revision Petition No.763/2011 under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "Cr.P.C."). 7
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 The accused No.1 and accused No.2 had challenged the very same impugned order of the Trial Court dated 04-06-2011, under Section 397 of the Cr.P.C. by filing Criminal Revision Petition No.40/2015 and Criminal Revision Petition No.39/2015 respectively in the Court of the Principal District and Sessions Judge, Ramanagara (hereinafter for brevity referred to as "the Sessions Judge's Court"). The said Court, by its common order dated 25-05-2017 dismissed both the revision petitions. Still, aggrieved by the complaint filed by the complainant and the order for issuance of summons passed by the Trial Court and the proceedings emanating there from, the accused No.1 and accused No.2 have filed the present Criminal Petition No.6010/2017 and Criminal Petition No.6009/2017 respectively before this Court under Section 482 of the Cr.P.C. and have sought the setting aside of the common order dated 25-05-2017, passed in Criminal Revision Petition No.39/2015 and Criminal Revision Petition No.40/2015, by the learned Sessions Judge's Court and 8 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 seeking quashing of the order dated 31-12-2010, taking cognizance and order dated 04-06-2011 issuing summons in C.C.No.599/2011, pending in the Trial Court.
Since all these matters are emanating from a private complaint filed by the complainant in PCR No.183/2010 (later numbered as C.C.No.599/2011), in the Trial Court and between the same parties, all these three matters are treated as connected matters and taken up together for their disposal under a common order.
2. Respondent No.1 and respondent No.2 in Criminal Revision Petition No.763/2011 are being represented by their learned counsel.
3. In spite of the service of notice, since the accused No.3 (respondent No.3 in the Criminal Revision Petition No.763/2011), who himself is a practicing Advocate, chose to remain absent, as such, remained un-represented, learned counsel - Sri. S. Javeed was appointed as an 9 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 Amicus Curiae for the accused No.3 (respondent No.3 in Criminal Revision Petition No.763/2011) by the order of this Court dated 21-06-2022.
4. Similarly, since the learned counsel for the petitioner in Criminal Revision Petition No.763/2011, which complainant/petitioner was the sole respondent in Criminal Petition No.6009/2017 and Criminal Petition No.6010/2017 also remained absent on several dates of hearing, this Court, by its order dated 26-05-2022, appointed learned counsel - Smt. K.M. Archana, as an Amicus Curiae for the petitioner (complainant) in Criminal Revision Petition No.763/2011 and for the sole respondent in Criminal Petition No.6009/2017 and Criminal Petition No.6010/2017.
5. The Trial Court records were called for and the same are placed before me.
6. Heard the arguments from both side. Perused the materials placed before me including the impugned order 10 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 and annexures to all the three petitions and the Trial Court records, carefully.
7. After hearing the learned counsels from both side, the points that arise for my consideration in these matters are:
[i] Whether the order dated 04-06-2011 passed by the Principal Civil Judge (Jr.Dn.) and J.M.F.C. Ramanagara, in C.C.No.599/2011 is erroneous and perverse to the extent of not registering the case against accused No.1 therein for the offence punishable under Section 376 read with Section 511 and Section 120B read with Section 34 of the IPC?
[ii] Whether the order dated 04-06-2011 passed by the Principal Civil Judge (Jr.Dn.) and J.M.F.C. Ramanagara, in C.C.No.599/2011 registering the case against the accused No.1 and accused No.2, only for the offences punishable under Sections 354, 506, 384 and 509 of the IPC and issuing summons to the accused No.1 and accused No.2 and the common 11 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 order of the Principal District and Sessions Judge, Ramanagara, passed in Criminal Revision Petition No.39/2015 and Criminal Revision Petition No.40/2015 dated 25-05-2017, dismissing those two revision petitions filed by the accused No.1 and 2 before it, are erroneous and perverse?
[iii] Whether the impugned order dated 04-06-2011 passed by the Principal Civil Judge (Jr.Dn.) and J.M.F.C. Ramanagara, in C.C.No.599/2011 and common order dated 25-05-2017, passed by the Principal District and Sessions Judge, Ramanagara, in Criminal Revision Petition No.39/2015 and Criminal Revision Petition No.40/2015 warrants any interference at the hands of this Court?
[iv] Whether the order dated 31-12-2010
taking cognizance and the order dated
04-06-2011, passed by the Principal Civil Judge (Jr.Dn.) and J.M.F.C. Ramanagara, for issuance of summons in C.C.No.599/2011 against the accused No.1 and accused No.2 deserves to be quashed by setting aside the common order 12 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 dated 25-05-2017 passed in Criminal Revision Petition No.39/2015 and Criminal Revision Petition No.40/2015 by the Court of the Principal District and Sessions Judge, Ramanagara?
8. The complainant has instituted a criminal case by filing a private complaint in P.C.R.No.183/2010, under Section 200 of the Cr.P.C., against the accused No.1, accused No.2 and accused No.3 in the Trial Court for the offences punishable under Sections 354, 384, 506, 509, 120B, 376 read with Section 511 read with Section 34 of the IPC.
9. The summary of the complaint of the complainant in the Trial Court was that, the complainant was a cine actress by profession, having acted in large number of movies in all the South Indian languages. She has always been interested in religion and spirituality from her very young age. She attended the discourses of Shree Nityananda Swami and realised that his discourses 13 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 and training methods were profoundly reformative and took greater interest in the teachings of Shree Nityananda Swami. As a devotee of Shree Nityananda Swami, she was attending his Ashrama at Nityananda Dhyana Peetam, situated at Ramanagara District, Karnataka State. She became a disciple of Shree Nityananda Swami.
The first accused was one of the Ashramites, amongst several hundred permanent and full-time volunteers at Nityananda Dhyana peetam. The second accused, who is a resident of Detroit, State of Michigan, United States of America, projected herself to be a disciple of Shree Nityananda Swami, became a volunteer of Nityananda Dhyana peetam. The third accused is an Advocate by profession, having friendship and strong contact with the first accused.
It is the specific contention of the complainant in the complaint that, the accused No.1 introduced himself to her as a close person to Swami Nityananda. The other 14 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 Ashramites, particularly, brahmacharinis (resident female religious practitioners of Nityananda Dhyana Peetam) were suspicious about accused No.1 and had warned the complainant that, accused No.1 was not a person to be believed.
That being the case, on the date 13-02-2010, in the morning, while the complainant was moving towards a Restaurant at the Ashrama, the accused No.1 called her, later, took her to his room on the pretext of showing her something in his laptop, pushed her on the floor, sat on the top of her, and wanted to have a forcible physical relationship with her at any rate. However, at some body coming near the room and knocking the door, the complainant, who was resisting the act of the accused No.1, overpowered him and pushed him aside and went towards the other side of the room.
It is further the complaint of the complainant that, the accused No.1 used to do the morphing of the photographs 15 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 including the photograph of Shree Swami Nityananada and the complainant in their private postures with the conspiracy and help of accused No.2 - Smt. Aarti Rao, and in that connection, had demanded for a sum of `20.00 Crores, through accused No.3 and thus has extorted.
10. The Trial Court, after receipt of the complaint lodged by the complainant, recorded the sworn statements of the complainant and one Smt. Manithya Bakthikananda and another person Sri. Nithya Brahma Swaroopananda and one more person Sri. Nithya Pranananda and thereafter proceeded to pass the impugned order dated 04-06-2011, opining that the statements of CW-1 to CW-4 do not disclose the commission of the offences under Section 376 and 120B of the IPC and that there are prima facie material to register a case against Accused No.1 to accused No.3 under Sections 354, 506, 384, 509 of the IPC. It observed that there are no material regarding commission of the offence under Section 376 read with Section 511 and 16 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 Section 120B of the IPC. Accordingly, the registry of the Trial Court was directed to register a criminal case against accused Nos.1 to 3, only for the offences punishable under Sections 354, 506, 384 and 509 of the IPC and to issue summons.
11. The learned Amicus Curiae for the complainant, in her argument submitted that, the Trial Court ought to have taken cognizance of the offence punishable under Section 376 read with Section 511 and under Section 120B of the IPC also, since the allegations were very clear and sworn statements of CW-1 to CW-4 also have revealed the commission of those offences.
Learned Amicus Curiae further submitted that, the Trial Court ought to have considered what is stated in the complaint of the complainant and should have expected no further material at the stage of registration of the crime and taking cognizance of the alleged offences. 17
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 In her support, the learned Amicus Curiae relied upon two judgments of the Hon'ble Apex Court, which would be referred to at an appropriate stage herein afterwards.
12. Learned counsel for the accused No.1 and accused No.2, in his argument contended that, admittedly, accused No.2 was not in India at the time of the commission of the alleged offence or during the nearby dates, as such, the question of she involving in the alleged conspiracy does not arise.
Learned counsel further submitted that, there are no materials to show that, there was any conspiracy among the accused persons, including accused No.2. When the complainant has chosen not to go the Police and file a complaint under Sections 155 and 156 of the Cr.P.C., but has chosen to file a private complaint under Section 200 of the Cr.P.C., it was required of her to produce sufficient materials to make out a prima facie case to take cognizance against the accused persons for the alleged offences. In the 18 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 absence of any primary materials, more particularly, to show a prima facie case for the alleged conspiracy, the mere self-serving statement of the complainant was not sufficient to take cognizance for the alleged offences, more particularly, against accused No.2, against whom no specific averments are made in the complaint.
Learned counsel further submitted that Section 202 of the Cr.P.C. requires postponement of issuance of process when the accused are residing outside the territorial jurisdiction of the Court and the Court is required to hold an inquiry by himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
However, the Trial Court Judge, without application of mind and without waiting for such inquiry, has jumped to the conclusion that the complainant has made out a prima facie case for the offences, for which, she has ordered for 19 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 registration of the criminal case and issuance of the summons.
Learned counsel further submitted that, the said order of the Trial Court was not considered by the learned Sessions Judge's Court also, which rejected the revision petition of accused No.1 and accused No.2.
Taking the support of several of the judgments of the Hon'ble Apex Court which would be referred to herein afterwards, at an appropriate stage, the learned counsel submitted that the impugned orders passed by the Trial Court as well the Sessions Judge's Court deserve to be set aside and the criminal proceedings against accused No.1 and accused No.2 deserve to be quashed.
13. Learned Amicus Curiae for accused No.3 (respondent No.3 in Criminal Revision Petition No.763/2011) in his very brief argument submitted that, no specific allegations are made against accused No.3. There is no role of accused No.3 in the alleged offences. As such, 20 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 taking cognizance of the offences against accused No.3 and ordering for issuance of summons against accused No.3 was also erroneous.
14. Section 202 of the Code of Criminal Procedure, 1973, reads as follows:
"202. Postponement of issue of process.-(1) any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or 21 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate, may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is tirable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
A bare reading of the above Section would got o show that, in the case of the accused, who are within his territorial jurisdiction, the Magistrate, may if he things fit, postpone the issuance of process against the accused and either inquire into the case himself or direct an investigation 22 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 to be made by a Police Officer or by such other person as he thinks fit for the propose of deciding whether or not there is sufficient ground for proceeding.
However, where the accused is/are residing at a place beyond the area in which he exercises his jurisdiction, the Magistrate shall postpone the issuance of process against those accused and proceed to either enquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding further against the accused persons.
15. Learned counsel for accused No.1 and accused No.2, while bringing to the notice of the Court the description of the residence of accused No.1 and accused No.2 in the cause title in Criminal Revision Petition No.763/2011, submitted that even according to the complainant, accused No.1 and accused No.2 were residing not within the territorial jurisdiction of the Trial Court, 23 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 inasmuch as, among them, accused No.2 is a resident of the United States of America, as such, the Trial Court ought to have conducted an appropriate inquiry before proceeding to issue summons upon accused No.1 and accused No.2, more particularly, accused No.2.
According to learned counsel for accused No.1 and accused No.2, the Trial Court ought not to have ordered for registration of a criminal case against accused No.1 and accused No.2 and ordered for issuance of summons until it had inquired into the matter by itself or referred the matter for investigation.
It was also further the argument of the learned counsel for the accused No.1 and accused No.2 that, since the complainant had chosen to prefer a private complaint under Section 200 of the Cr.P.C., than a complaint before the Police under Sections 155 and 156 of the Cr.P.C., the learned Magistrate should have expected the production of corroborate evidence, including the documentary evidence, 24 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 if any, to get convinced herself for a prima facie case in the complaint against the accused persons, more particularly, accused No.2.
In his support, he relied upon the following judgments of the Hon'ble Apex Court:
[a] In the case of PEPSI FOODS LTD. AND ANOTHER Vs. SPECIAL JUDICIAL MAGISTRATE AND OTHERS reported in (1998) 5 Supreme Court Cases 749, at paragraph 28 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the 25 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
The above principle laid down by the Hon'ble Apex Court would go to show that, the Magistrate should carefully scrutinize the evidence brought on record to satisfy himself that there is a prima facie case to proceed with and in summoning the accused. In the said process the Magistrate can even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations. Thus, it is only after the Magistrate satisfies himself about the prima facie truthfulness in the allegations 26 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 made against the accused, he can proceed to issue summons against them.
[b] In the case of NATIONAL BANK OF OMAN Vs. BARAKARA ABDUL AZIZ AND ANOTHER reported in (2013) 2 Supreme Court Cases 488, in paragraph 9 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
9. The duty of a Magistrate receiving a complaint is set out in section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not.
Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment 27 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 of truth or falsehood of the allegations made in the complaint:
(i) on the materials placed by the
complainant before the court;
(ii) for the limited purpose of
finding out whether a prima facie case for issue of process has been made out; and
(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have."
[c] In the case of K.S. JOSEPH Vs. PHILIPS CARBON BLACK LIMITED AND ANOTHER reported in (2016) 11 Supreme Court Cases 105, while analysing the purpose of postponing the issuance of process by the Magistrate under Section 202 of the Cr.P.C., the Hon'ble Apex Court was pleased to hold that, the purpose of postponing of issuance of process by the Magistrate is to avoid unnecessary harassment to the proposed accused.
[d] In the case of ABHIJIT PAWAR Vs. HEMANT MADHUKAR NIMBALKAR AND ANOTHER reported in (2017) 28 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 3 Supreme Court Cases 528, the Hon'ble Apex Court had an occasion to re-visit Section 202 of the Cr.P.C. and analyse as to, for what purpose the said Section was brought into. In the said process, the Hon'ble Apex Court in paragraph 23 of its judgment was pleased to observe as follows:
"23. Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 CrPC was amended in the year 2005 by the Code of Criminal procedure (amendment) Act, 2005, with effect from 22-6-2006 by adding the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercise his jurisdiction". There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints 29 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the bill proposing the said amendment."
[e] In the case of BIRLA CORPORATION LIMITED Vs. ADVENTZ INVESTMENTS AND HOLDINGS LIMITED AND OTHERS reported in (2019) 16 Supreme Court Cases 610, the Hon'ble Apex Court once again had an occasion to anlayse the provisions of Sections 200 to 204 of the Cr.P.C. including the amendment of the year 2005. It was pleased to observe that, the object of amendment to Section 202 of the Cr.P.C. was to ensure that the persons residing at far- off places are not harassed by filing false complaints, making it obligatory for the Magistrate to enquire. Use of the expression "shall" makes it mandatory to have an inquiry or investigation, as the case may be. In such cases, the intention of the Legislature is aimed to prevent the innocent persons from harassment by unscrupulous persons from false complaints.
30
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 In the process, the Hon'ble Apex Court, considering several of its previous judgments including its judgments in the case of NATIONAL BANK OF OMAN Vs. BARAKARA ABDUL AZIZ AND ANOTHER (supra) and PEPSI FOODS LTD. AND ANOTHER VS. SPECIAL JUDICIAL MAGISTRATE AND OTHERS (supra), was pleased to observe that, to be summoned or to appear before the criminal court as an accused is a serious matter affecting one's dignity and reputation in the society. Thus, the criminal case against the person cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect application of his mind to the facts of case and the law applicable thereto. There must be sufficient indications to show that, the Magistrate has applied his mind and that he is satisfied that the allegations in the complaint constitute an offence. At this stage, for issuance of process to the accused, the Magistrate is not required to record the detailed orders, however, he must be prima facie satisfied that there are sufficient grounds for proceeding against the 31 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 accused based on the allegations made in the complaint lodged with evidence led in support of the same.
16. The learned Amicus Curiae for the complainant though fairly conceded that, for an accused who is not a resident within the jurisdiction of the Magistrate who takes the cognizance of the offence and orders for issuance of summons, there should be an inquiry before ordering for such issuance of summons, however, submitted that, in the case on hand, the learned Magistrate has applied her mind by recording the evidence of CW-1 to CW-4. In the said process, the learned Magistrate is required to consider only the allegations made in the complaint or the evidence led in support of the same and nothing more.
In support of her above argument, she relied upon a judgment of the Hon'ble Apex Court in the case of NAGAWWA Vs. VEERANNA SHIVALINGAPPA KONJALGI AND ORS. Reported in MANU/SC/0173/1976 = (1976) 3 Supreme Court Cases 736, wherein, in paragraph 2 of its 32 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 judgment, the Hon'ble Apex Court was pleased to observe as below:
2. xxx xxx xxx xxx xxx xxx xxx It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."
Learned Amicus Curiae for the complainant also submitted that in the case on hand, the Magistrate has held an enquiry wherein he examined CW-1 to CW-4 and thereafter has proceeded to issue summons.
In her support, she relied upon a judgment of the Hon'ble Apex Court in the case of VIJAY DHANUKA AND ORS. Vs. NAJIMA MAMTAJ AND ORS. reported in MANU/SC/0251/2014 = (2014) 14 Supreme Court Cases 33 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 638 wherein the Hon'ble Apex Court in para-10 of its judgment was pleased to observe as below:
"10. Under Section 200 of the code, on presentation of the complaint by an individual, other than public servant in certain contingency, the Magistrate is required to examine the complainant on solemn affirmation and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, if any, various options are available to him. If he is satisfied that the allegations made in the complaint and statements of the complainant on oath and the witnesses constitute an offence, he may direct for issuance of process as contemplated under Section 204 of the Code. In case, the Magistrate is of the opinion that there is no sufficient ground for proceeding, the option available to him is to dismiss the complaint under Section 203 of the code. If on examination of the allegations made in the complaint and the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate is of the opinion that there is no sufficient ground for proceeding, the option available to him is to postpone the issue of process and either inquire 34 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 the case himself or direct the investigation to be made by a police officer or by any other person as he thinks fit. ......"
In paragraph 14 of the very same judgment, the Hon'ble Apex Court was pleased to observe as follows:
"14... every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the code. In the inquiry envisaged under Section 202 of the code, the witnesses are examined whereas under Section 200 of the code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the code. In the present case, as we have stated earlier, the Magistrate has examined the complainant on solemn affirmation and the two witnesses and only thereafter he had directed for issuance of process."35
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017
17. It is keeping the above principle laid down by the Hon'ble Apex Court in its various judgments, the present case is required to be analysed.
18. A careful and thorough reading of the complaint would go to show that, though the complaint runs into eighteen pages, but the allegation against accused No.2 - Smt. Aarthi Rao hardly finds its place at three or four places only.
In para-13 of the complaint, the complainant has stated the act of the accused No.1 in forcibly putting her down on the floor and sitting on her and attempting to disrobe her, was a pre-plan by accused No.1 and accused No.2, as revealed to her by accused No.1.
Further, in para.17 of her complaint, while making the allegation against accused No.3, the complainant has stated that, the said accused No.3 informed her that few others were involved in that issue and named them as the first and 36 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 second accused and a prominent Christian Missionary and another person whose identity was kept secret.
The complainant, in para-30 of her complaint has stated that, from the course of their conduct, the accused No.1 to 3 have entered into a criminal conspiracy to create a morphed video and to blackmail and extract monies from the complainant and others.
Except the above allegations, there are no other allegations made against accused No.2 - Smt. Aarthi Rao, in the entire complaint. Nowhere in the complaint, the complainant has explained as to what was that conspiracy said to have taken place among the accused with the involvement of accused No.2 - Smt. Aarthi Rao, more particularly, the specific role of accused No.2 - Smt. Aarthi Rao in the alleged conspiracy. Further, no where the complainant says that, the complainant had any independent source of knowledge or independent 37 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 information about the alleged conspiracy of accused No.2 - Smt. Aarthi Rao in the alleged commission of the crime.
On the contrary, even according to the complaint, the entire information about the alleged conspiracy involving the accused No.2 is only based upon the information said to have been either given to her (complainant) or revealed to her either by accused No.1 or by accused No.3.
In addition to the above, no where the complainant has whispered as to the nature of conspiracy said to have been committed by accused No.2 -Smt. Aarthi Rao and about the alleged active role, if any, of accused No.2, in the said conspiracy.
The sworn statement of complainant, as CW-1, recorded by the Magistrate in the Trial Court is nothing but a summary of her complaint under Section 200 of the Cr.P.C. Even in her sworn statement, about the alleged role of accused No.2 - Smt. Aarthi Rao, no specific averment is made by the complainant. The entire 38 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 allegations made in her sworn statement are revolving around only accused No.1 and accused No.3 and she has not stated the alleged involvement of accused No.2 and the role of accused No.2 in the alleged commission of the crime.
Similarly, the sworn statement of the remaining three witnesses i.e. Smt. Manithya Bakthikananda, Sri. Nithya Brahma Swaroopananda, and Sri. Nithya Pranananda before the Magistrate in the Trial Court also do not allege any specific averment, much less, the overt act against accused No.2 - Smt. Aarthi Rao. All these three witnesses, though have stated that, the accused No.2 was known to them and she was a devotee of their Ashrama, but simultaneously, they have stated that she was a resident of the United States of America. Their statements are only about the incident of the date 13-02-2010, wherein the accused No.1 was said to have attempted to commit rape on the complainant and about the complainant giving her gold jewellery to pledge the same to pay the monies to the accused No.3 at his 39 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 demand on the date 24-02-2010 through CW-4 - Nithya Pranananda. However, none of those three witnesses, any where in their statements, have whispered as to what was the role of accused No.2 in the alleged criminal acts against the complainant. These aspects clearly go to show that, the Magistrate, before ordering for the registration of the criminal case against the accused and ordering for issuance of summons had not just recorded the sworn statement of the complainant, but also recorded the sworn statements of three more witnesses and thus has held an inquiry by herself and only thereafter, she has proceeded to order for issuance of summons. As such, the argument of the learned counsel for the accused No.1 and accused No.2 that, there is non-compliance of mandate of Section 202 of the Cr.P.C., is not acceptable.
However, in the said process, the Magistrate did not notice about the alleged absence of any specific allegations against accused No.2 - Smt. Aarthi Rao and did not notice 40 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 the absence of the materials enabling her to order for issuance of notice against accused No.2 - Smt. Aarthi Rao also along with other two accused persons.
In the said process, the learned Magistrate did not even notice that, accused No.2 -Smt. Aarthi Rao was a resident of United States of America. She did not even give her thought as to, how come accused No.2, being in America, who was said to be occasionally visiting the Ashrama at Ramanagara, can hatch a conspiracy with accused No.1 and accused No.3. Had there been mentioning of any one instance of either anybody seeing accused No.2 hatching the conspiracy with the other accused persons or any correspondence between the accused persons including accused No.2, through which a conspiracy can be inferred, or at least any exchange of messages/instructions or thoughts or ideas among the accused persons including the accused No.2, by which an alleged conspiracy by the accused No.2 with the remaining 41 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 accused can be inferred, the act of the Trial Court in ordering issuance of the summons even for accused No.2 would have been justified.
Furthermore, admittedly, the said Magistrate, before ordering issuance of summons, did not pose any questions to the complainant or CW-2 or CW-3 or CW-4, while recording their sworn statements about any of the information about any details of the alleged conspiracy by accused No.2, on the other hand, merely because a word conspiracy was used at one place in the complaint and accused No.2 was also arraigned as one among the accused persons, the Magistrate appears to have jumped to a conclusion holding that, there was a prima facie material to issue summons even as against accused No.2 also and proceeded to order accordingly.
The said act of the Magistrate would be nothing but not considering the seriousness of the issuance of summons to the accused in a criminal case and nothing but 42 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 non-application of her mind with respect to ordering summons as against accused No.2.
19. Needless to say that, when the allegations made in the complaint or the statements of the witnesses recorded in support of the same are taken at their face value, there is absolutely no case made out against the accused No.2 or that the complaint does not disclose the essential ingredients of the offences which are alleged against the accused No.2. The continuation of the case against such an accused by issuing summons to the said accused person and compelling him/her to face the trial would be nothing but an abuse of the process of the Court, which would not secure the ends of justice. As such, the very complaint is bereft of any specific allegations as against accused No.2 to show that prima facie, there is a case to proceed against the accused No.2. Thus the inherent power of the Court under Section 482 of the Cr.P.C. requires to be used in favour of the petitioner in 43 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 Criminal Petition No.6009/2017 and the criminal proceedings initiated against her (accused No.2 - Smt. Aarthi Rao) by the complainant deserves to be quashed.
20. The complainant, in her complaint as well in her sworn statement as CW-1, has made several specific allegations against accused No.1. The complainant herself has claimed that, she is a victim at the hands of accused No.1 and physically she had come in contact with accused No.1 at his instance, where she was attempted to be sexually abused by him. The complainant, both in her complaint and in her evidence as CW-1, not just stated that on the date 13-02-2010, the accused No.1 shown in his laptop certain morphed obscene pictures to her, but also held the complainant by her hands and hugged her, and even before she could react she was forcibly put down on the floor by him and he (accused No.1) sat on her. The complainant has further stated that though she tried her 44 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 best to prevent him from proceeding further and resisted and screamed and yelled and also begged, still, the accused No.1 attempted to disrobe her stating that he would at any cost have sexual intercourse with her. However, due to someone knocking the door from outside, the accused No.1 became panic and let loose his grip on the complainant, at which time, the complainant pushed him aside and ran to the corner of the room. The complainant has also stated that, at the knock of the door from outside and banging louder from outside, the accused closed his laptop and putting the complainant into threat that he would release her pictures to media, opened the door and vanished immediately. The complainant has also explained in her complaint itself as to why delay of few months was caused in she lodging the complaint in December 2010, though the incident is said to have taken place in the month of February 2010.
21. The sworn statements of CW-2, CW-3, and CW-4 also supports the contention of the complainant regarding 45 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 the allegations made by her against accused No.1 including the alleged attempt to rape.
22. CW-2 - Smt. Manithya Bakthikananda has alleged against the accused No.1 and stated that, she had warned the complainant to keep distance from accused No.1 and had made her to know about the accused No.1 taking the photographs from his cell phone and morphing the same. She specifically stated that the accused No.1 was in the habit of taking the photographs of the brahmacharinis at the Ashrama through his Cell phone and used to morph the same with the half nude photographs of some other persons and celebrities by pasting the face of brahmacharinis.
23. CW-3 - Sri. Nithya Brahmaswaroopananda has given a direct account of the alleged incident dated 13-02-2010, by stating that, on the said date, it was him who after noticing the complainant's screaming and hearing the screaming, rushed there and tried to push the door and noticed that the door was locked from inside. In between 46 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 the gap of the door, he saw a woman lying on the floor and a man lying on her and trying to rape her and she was resisting. He further stated that the man inside the room was accused No.1. This witness has given a detailed account as to what all he saw directly through the gap in the door and how he got the door opened after knocking the door. Thus, he has given a clear and detailed account of the alleged attempt of rape by accused No.1 against the complainant. He specifically stated that he saw that, a woman was lying on the floor and accused No.1 was lying on her and trying to rape her, though she was resisting. This aspect, the learned Magistrate has failed to notice.
24. Though there were sufficient material to proceed against the accused No.1 but the same were not just confined to the offences punishable under Sections 354, 506, 384 and 509 of the IPC, but there was also material to attract offence punishable under Section 376 read with Section 511 of the IPC also, as such, the argument of the 47 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 learned counsel for the accused No.1 that, there were no sufficient material to proceed against accused No.1, as such, his petition in Criminal Petition No.6010/2017 deserves to be allowed, is not acceptable, on the contrary, the argument of the learned Amicus Curiae for the complainant that, there were sufficient material prima facie to take cognizance and issue summons to the accused No.1 even for the offence punishable under Section 376 read with Section 511 of the IPC, is acceptable.
25. The Trial Court has also not taken cognizance of the offence under Section 120B of the IPC. No doubt, as observed above, there was no material to show the involvement of accused No.2 in the alleged conspiracy, however, it does not mean that there was no conspiracy at all between accused No.1 and accused No.3. The alleged conspiracy between the accused No.1 and accused No.3 has been stated by the complainant in her complaint itself. As observed above, on more than one occasion, she has 48 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 come in physical presence of accused No.1 and accused No.3, when also, she has gathered the knowledge and information that there was a conspiracy between accused No.1 and accused No.3.
The said act of alleged blackmailing by accused No.3 for a sum of `20.00 Crores has been specifically stated by the complainant in her complaint itself with the date and the manner in which the extortion was practiced upon her by accused No.3. She has stated that it was an act of accused No.1 and accused No.3 together.
26. More over, CW-4 - Sri. Nithya Pranananda, in his sworn statement, has also stated that, while he was speaking to the complainant over phone, the accused No.3 took over the phone and demanded `20.00 Crores from the complainant to restrain him and other accused from releasing the photographs to the media. He also stated that, further the accused No.3 threatened her (complainant) 49 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 that if she does not pay the money, he will release the photographs to the media and destroy her.
The witness further stated that, to enable the complainant to pay the advance amount of a sum of `25,00,000/- to accused No.3, as demanded by him, he (CW-4) pledged the jewellery given to him by the complainant with a Jeweller and collected `5,00,000/- and paid the same to the accused No.3 on 28-02-2010, as requested by the complainant.
Thus, throughout, the case of the complainant was that, the accused No.1 was morphing the pictures of the brahmacharinis and lady devotees in the Ashrama with the other semi-nude photographs of the celebrities and was threatening to expose those photographs or publish those photographs to media. The same is the evidence of CW-2 also. According to the complainant and CW-4, accused No.3 was made use of in the said process of extortion. Thus, unless the morphed photographs which were said to be 50 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 created by the accused No.1 are given to accused No.3, he probably cannot publish them or release them, as such, when accused No.3 is accused of extortion, threatening the complainant that he would release the morphed photographs to media, the same is possible, provided there is conspiracy between accused No.1 and accused No.3.
27. This aspect, the learned Magistrate did not take into consideration while passing her cryptic order, directing the registration of the PCR as a criminal case and ordering for issuance of summons. The said order was confirmed by the learned Sessions Judge's Court in Criminal Revision Petition No.39/2015 and Criminal Revision Petition No.40/2015. Since now it is clear that, the criminal case has to be registered against the accused No.1 even for the offence punishable under Section 376 read with Section 511 of the IPC also and that both accused No.1 and accused No.3 are to be proceeded with under Section 120B read with Section 34 of the IPC also, the impugned order of the 51 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 Trial Court warrants an interference at the hands of this Court.
On the other hand, the criminal petition filed by the accused No.1 in Criminal Petition No.6010/2017 deserves to be rejected as devoid of merit.
28. Lastly, though the learned counsel for the accused No.1 and accused No.2 contended that, unless the complainant amended her prayer in the Criminal Revision Petition No.763/2011, seeking quashing of the order dated 25-05-2017, passed by the Sessions Judge's Court in Criminal Revision petition No.39/2015 and Criminal Revision Petition No.40/2015, the present Criminal Revision Petition No.763/2011 is not maintainable, however, the same is too technical an issue and would not serve the purpose of justice.
Admittedly, aggrieved by the order dated 04-06-2011, the complainant directly approached this Court through Criminal Revision Petition No.763/2011, however, accused 52 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 No.1 and accused No.2 approached the Sessions Judge's Court through Criminal Revision Petition No.40/2015 and Criminal Revision Petition No.39/2015 respectively. The Sessions Judge's Court vide its order dated 25-05-2017, dismissed both the criminal revision petitions, however, in its operative portion, it did not say expressly that, summons may be issued against the petitioners before it (accused No.1 and accused No.2) only for the offences punishable under Sections 354, 506, 384 and 509 of the IPC. Merely because in its observation, the Sessions Judge's Court at one place has stated that the learned Magistrate was satisfied that the allegation in the complaint did not constitute an offence when considered along with the statements recorded, for the offences punishable under Sections 376 and 120B of the IPC, by that itself, it cannot be inferred that, the Sessions Judge's Court has confirmed that there was no case made out against the accused No.1 for the offence under Section 376 r/w Sec.511 of the IPC and against the accused No.1 and accused No.3 for the offence 53 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 punishable under Section 120B of the IPC. As such, since the finding of the truth is of paramount interest and more importantly, the complainant, aggrieved by the order of the Trial Court dated 04-06-2011 had already approached this Court through the present Criminal Revision Petition No.763/2011 and also when admittedly, she was only a respondent in Criminal Revision Petition No.39/2015 and Criminal Revision Petition No.40/2015 before the Sessions Judge's Court, the complainant not seeking amendment of the prayer in the present Criminal Revision Petition No.763/2011 would not be fatal to her case. For these reasons, I do not find any error in the orders passed by the Trial Court and the Sessions Judge's Court, ordering issuance of summons to accused No.1. However, the Trial Court ought to have taken cognizance and registered the case against accused No.1 for the offence punishable under Section 376 read with Section 511 of the IPC, and as against both accused No.1 and accused No.3 for the offence punishable under Section 120B of the IPC also. In 54 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 that regard, both the Trial Court and the Sessions Judge's Court have erred in passing the impugned orders.
29. Further, the Trial Court and Sessions Judge's Court have erred by ignoring the absence of prima facie material to proceed against accused No.2 - Smt. Aarthi Rao and in ordering issuance of summons against her in the criminal case. It is to that extent, interference in the impugned orders is warranted by this Court.
Accordingly, I proceed to pass the following:
ORDER [i] The Criminal Revision Petition No.763/2011 is allowed-in-part;
The order dated 04-06-2011 passed in C.C.No.599/2011 (PCR No.183/2010) by the learned Principal Civil Judge (Jr.Dvn.) and J.M.F.C. Ramanagara, insofar as it relates to the non-registration of a case against accused No.1 for the offence punishable under Section 376 55 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 read with section 511 of the IPC and against both accused No.1 and accused No.3 for the offence punishable under Section 120B read with Section 34 of the Indian Penal Code, 1860 stands set aside.
Thus, the said impugned order dated 04-06-2011 of the Trial Court is modified, ordering the registration of case against accused No.1 - Sri. K. Lenin, Who was formerly known and called as Nithya Dharmananda, for the offences punishable under Sections 354, 506, 384, 509, 376 read with Section 511 and Section 120 read with section 34 of the Indian Penal Code, 1860.
Further, the registration of the case as against Accused No.3 - Sri. M. Sridhar, is also modified and it shall be for the offences punishable under Sections 354, 506, 384, 509 56 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 and Section 120B read with Section 34 of the Indian Penal Code, 1860.
[ii] The Criminal Petition No.6009/2017 is allowed;
The common order dated 25-05-2017 passed in Criminal Revision petition No.39/2015 by the Court of the Principal District and Sessions Judge, Ramanagara, stands set aside as against accused No.2 - Smt. Aarthi Rao;
Consequently, the order dated 31-12-2010 taking cognizance and the order dated 04-06-2011 for issuance of summons in C.C.No.599./2011 to accused No.2 therein i.e. Smt. Aarthi Rao, stands quashed.
[iii] The Criminal Petition No.6010/2017 stands dismissed as devoid of merits.
The Court, while acknowledging the services rendered by Smt. K.M. Archana, the learned Amicus Curiae for the 57 Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 revision petitioner(complainant) in Criminal Revision Petition No.763/2011 and for the sole respondent in Criminal petition No.6009/2017 and Criminal Petition No.6010/2017 and also the services rendered by Sri. S. Javeed, learned Amicus Curiae for the respondent No.3 (accused No.3) in Criminal Revision Petition No.763/2011, recommends an honorarium of a sum of not less than `10,000/- to the learned Amicus Curiae - Smt. K.M. Archana and a sum of not less than `4,000/- to the learned Amicus Curiae - Sri. S. Javeed, payable by the Registry.
Considering the fact that the private complaint is of the year 2010, as such, twelve years' old matter, still, the said case has not been proceeded further, early disposal of the present criminal case including its trial by the competent Court at the earliest, but not later than six months from today is highly appreciated. 58
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 & Criminal Petition No.6010/2017 Registry to transmit a copy of this order to the Trial Court along with its records and also a copy of this order to the Sessions Judge's Court, immediately.
Sd/-
JUDGE BMV*