Karnataka High Court
Sri Raghunatha Rao vs Sri R Ramappa on 1 September, 2009
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF SEPTEMBER 2009
BEFORE
THE HONBLE MRJUSTECE SUBHASH B.AD.E_' L
CRIMINAL PETITION No.5213/20035.. 1' "'
BETWEEN:
1
Sri.Raghunatha Rao
S/o S.Nagesh Rao,
Aged 52 years,
L.I.C. Agent,
R/ 0.'I'yagaraj anagara,
Challakere Town, V ~
Chitraduraga Dist.
Sri.Vas1;:ieva_ '
S/o.Krishna:_Rwao."" *
Aged. 80 _years}'1--1§:Iotel. _Cwher,--. . .
New KI'ishria_V Bh'iaivan,'z,' .
R / op. 'I'y*aga.rajaf11.aga_ra',. " .. '
Challakere '1'0w'n,_"._ " _
Chitradaegrga Dist: ; =
.uRaghave11dVre Rae
'- SI' 0 ;»_KIishnamurii'Ly,
, ». "Aged 46. yers, BJP Worker,
" R/.oV.'iIfV'aga1jajanagara,
._ "_C_haL11sikere.fF0'wn,
' .Chitr;;duT1faga Dist.
S11'; hesh
' .. ,OS/ofiflfeerabhadrappa,
Aged 35 years,
* Agriculturist,
; R / 0.Tyagarajanagara,
Chaliakere Town,
Chitradurga Dist.
Sn'.Gundura0
Aged 70 years,
Reid. Shirastedara,
R/ 0. Tyagarajanagara,
Challakere Town,
Chitradurga Dist.
Sri.S.1\/I.Gangadhara
S / 0. Doddachannayya,
Aged 46 years, L.I.C. Agent,
R/ 0.Tyagaraj anagara,
Challakere Town,
Chitradurga Dist.
Sri. Muralidhara R210,
S/0. Gangadharayyar,
Aged 65 years, '~
Dhanalakshmi Hotel okx_§nei:._V }
R/o.'I'yagarajaI_1agara_... _ 2
Cha1IakereT.£)ist.0Vy*n, V
Chitradurga Dji;5I.V 1
Sri. Pren1_aki1:n*§1ar,'V" '
8/ 0,. -Late Niarasfi;mhafnui't1'a1y'*;----i . V
Aged 48 ye9;.rs,
R/--- i '
Challakere .
Chitradufirgav Dist. " .
Sifi.Y0~gesh I' "
"S]'0'Jenkatacha]a;"" 'V
,A ' 2 Pushpa 33a--kery Owner,
" sAged'i450~YCaf'=2
._ R/' 0§T§fagaraj anagara,
' ,Cha11a.ke1ie Town,
Chitradufga Dist.
, i_Sri.E5'u:bbar1r1a
S';'.0.Radhakrishnappa,
"Aged 38 years.
§ Businessman,
R/ 0. Tyagarajanagara,
Challakere Town,
Chitradurga Dist.
1 1 Sri.Thippurao
S/o.Kn'shna Rao,
Dy. Tahasildar,
Parashurarnapura.
Challakere Tq.
12 Sri. Bhanurnurthy
S/o. Subbarao,
Aged 50 years,
Village Accountant.
R/o. Tyagarajanagara,
Challakere Town.
Chitradurga Dist.
[By Sri.K.Sreedhar Associates. _
AND: ' in '
Sri. R.Rar£1appa.
S/o.Lakshmayya.
Aged 70 years, d
Tyagaraj anagara. * . ' ijx _ _ ._
Challakere Tovlm, _ '
Challakere, ____ H ' a 5l:,_ ..
Chitradurga I")1's£"..f'. V'
.. RESPONDENT
[By sri.Bit.saddap15e{;j_ij'.x&»v.. ~ . at
This Crifiiinal..Petiti_on""is filed under Section 482 Cr.P.C.
_Vpraying_§to set asidewthe order dt.20.l2.07 in CRLRP. No.15/07
patssei-fltfiy 2;/AC Addl. S.J';"'F"I'C. Chitradurga.
coming on for admission this day, the Court
made "the followingr"
ORDER
.. Petitioners have called in question the order dated 2031 Qeeeniber 2007 passed in Crl.R.P.N'o.15/2007 on the file of In- chasge Additional Sessions Judge. Fast Track Court, Chitradurga. L. o_rder;"'Lhe petitioners have filed this petition.
2. Respondent is the complainant. He had filed a private complaint under Section 200 of Cr.P.C. for an offence punishable under Sections 323, 141, 142, 447, 504, 506 read Wi'th;:'Se'etion 149 of IPC.
3. The learned Magistrate consideritng the averrnentsdrnatle 24 in the complaint and also the sworn staternent the examined by the "complainant the allegations made against the petitioriérjslul1ereintdo"11ot§ constitute a criminal offence and Stheigglbentire case of the complainant is dated 22.1.2007 had dismissec:i"ltheV the provisions of Section 2Q3--of "loeing aggrieved by the said order preferred before the Sessions Judge, Chitradurgai" "Sessions Judge by his order dated 2091 tDece1n'.:ier 2007 aiiowed the revision petition and remitted the _pto_the court to consider the allegation made in the __tiie"Vrnaterial placed on record to decide, whether pr'irnalji:I.cie.VcaseVl is made out for an offence alleged for the purpose tlissuinghof process against the petitioners. It is against this .%"*3
5.
4. The petitioners allege that, they are shown as accused in the private complaint and the learned Magistrate on consideration of the entire material has passed an order observing th_at,f_,f§h_ere is no prima facie case made out against the against them for an alleged offence nien,ti_oned--'in' . Having an order passed in favour'»__ of impleading the petitioners ase'f_pa_rtlesf the: ; impleading the State had filed a Revisional Court has passed an "then':revisionA petition and setting aside the order, vvhiC.'r1_ the petitioners. Learned Counse13__.forf:fthe on the provisions of Section 401 that, before an order is passed mpefrevisional court should hear the accused any who would be prejudiced by the order. in the""1sghtV,ef Section 401 of Cr.P.C., he relied on a fjudgrrient of the ApeXfCourt reported in (2009) 2 SCC 363 in the rrret?ter"eef RAJ SINGH ROUSHA -vs-- SHIVAM SUNDARALM S Paoivzorsarsfzirgzivars LIMITED AND ANOTHER. In the aforesaid S'~.«.,_case, theripex Court considering the fact that, after taking cognirzai7_ce, the learned Magistrate refused to refer the matter for [invegstigation by jurisdictional Police under Section 156(3) of _4_u;Cr.P.C. and against the refusal, the complainant had filed a 'gm;
criminal revision petition, the Revisional Court based on the consent given by the State, set aside the order and remitted the matter to the learned Magistrate and directed the to appear before the learned Magistrate on order Was called in question before; the Apex.' gf';!:eralid. alleging that, once an order is passed:-ign favour terms of Section 4:01 sub--sectio'r1'{g} of Section 401(2) shall be made to lvtheivvfaccused or other person unless he a;nA.vllop.portL1nity of being heard either personally or._by pleadér:--j_n.'lhispp Referring to the word "other 'the observed that, the other persons prejudiced by the order and held favour of the accused, has been set court without hearing him.
Under these cir"cuSmstanc'es,l."the Apex Court held that, hearing of a'ccus'ed'is.;nec'e.ssary. """
* .:Learne'd__i.C0unsel appearing for the respondent - compi»...ainant.'submitted that, the procedure prescribed in S3"-v._Chapter--§{X{;l?of the Code of Criminal Procedure confers power on Mpalgistrate to entertain a private complaint that Would be filed ,.._l'Vnlndl(i'r Section 200 of Cr.P.C. and after taking cognizance and after recording the sworn statement of the complainant and the ,9";
statement of the witnesses, if any, the learned Magistrate either he may postpone the issue of process and may refer the complaint for further investigation by the jurisdictional. if he finds that there is no prima facie case to proceed accused, he may reject the compiainthy ,invo1_~:i"n'g" proinisions' . Z of Section 203 of Cr.P.C. and subrn_itte'de the ;5i~[¢ee'e;.4:re contemplated in Chapter XV oi:?:_C.r.P.C".'-.is' purely ftéetween fthe"
learned Magistrate and the complainant. after the Magistrate satisfies himsel.f:'that, there.._'pis:'sufficient ground to proceed in the case,_he may. .1'n_vpoke--.V of Section 204 sub--section (2) and till then, the accused has noyvroilpe the taking cognizance or opposiiiglfthel' It is purely between the learned Magisti*ate He also submitted that, since the_,compiainti.is dismissed even before the summons is issueci; the-trevisional Vcolurt has rightly not issued summons to the acc_:{.isevd'.._ % ~ Se=c:tion"'19O of Cr.P.C. confers power on the Magistrate to cognizance of the offence. On the basis of the statement of _'1"acts, "which constitutes an offence, once the cognizance is taken .:'_4in-caise of a private complaint, learned Magistrate shail examine oath the complainant and the witnesses present. If the Magistrate finds that, the issue of process required to be postponed to enable the Magistrate to take the matter investigated, he can invoke the provisions of Section 202 of Cr.P.C. and refer the matter to the Police for further investiga'tion. However, either based on the report of the Police or of the averment in the complaint and the ..
the statement of the witnesses, if any by the complainant, if the Magistrate satisfiles is no prima facie case or sufficient:gi'»ounds'toll:in the matter, he can dismiss is self--
contained chapter. ffhe only from Chapter XVI of of the Magistrate after there is sufficient ground for proceeding" ii? he may issue summons for attendance of ._:acc.u'sed-. l.'l'i:E'iIl then, there is no provision by fwthich "the ?..j'accused could be summoned nor the case will co'm.menlce.V:"'<No'vdoizbt, in Chapter XV, there is no requirement of C v'».hearirig'of lac-prised at any stage. it The. Apex Court While interpreting the provisions of 401' of Cr.P.C., which confers revisional power on the .:lj*ligh"Court has observed that, although an accused has no right "to participate unless the process is issued, he may remain ,-saw' present either in person or through a Counsel or agent with a View to be informed of what is going on? The object behind the provisions of Section 202 is to enable the Magistrate to .«s'c.f_'uti'riize carefully the allegations made in the complaint with prevent a person named therein as an .accused_-- 'frofr1~:bveingV'_calledll " » upon to face an obviously frivolous con*:plaint.;fbut_that stage where defence of an accused can begone in':o'..1 'lt_is in the,"
light of this observation, the Apex has though the accused has no power to to contest the complaint at the threshold,-- can appear in person or througliial onlj}; of what is going on and to prosecuted against them. It process has to be issued or not, jurisdiction the exclusive domain of the Magistrate. so as to 'enable to arrive at a satisfaction that Vftlierep ise-sufficient grounldlllfor proceeding. Considering the nature and 'scope 401 sub~section (-2) of Cr.P.C. and also v'».consid€;iing word "other person" referred to therein, the Court held that, though not the accused is required to be "out he can appear to get the information. It is in this
-..blackground, the Apex Court held that the accused are required to ée'*' ./If .
be heard before revision is aiiowed, and not hearing the accused has prejudicially affected his interest.
8. In View of the interpretation given by the Ape§<VV:(3"c5"iJ,ftvv,t0 the provisions of Section 401 of Cr.P.C., though this case has been filed under Section 397 the if ' order, which was in favour of the pe:titio7rie1*s, naught without hearing them, ae fito beep, given.
Accordingly, this petition'i_s'a'1f'oive_dy" vx7£f:he'_'.order dated 20th December 2007 passed in::ACr1.E?tiP.I\Io}"i.i5,(2_Qt37 on the file of In~ charge Additional i{'as'tgA'£'rack Court, Chitradurga is set aside and to the Revisional Court with a direction to and pass appropriate order.
sdi.-3 Iu;déé'