Karnataka High Court
K M Anantharaju vs State Of Karnataka on 14 September, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. A. PATIL
CRIMINAL REVISION PETITION NO.139 OF 2014
BETWEEN
1. K.M.ANANTHARAJU
S/O MAHADEVAIAH
AGED 24 YEARS
2. MAHADEVAIAH
S/O GANGASHANAIAH
AGED ABOUT 50 YEARS
3. SHIVAMMA
W/O MAHADEVAIAH
AGED ABOUT 43 YEARS
4. SHANTHA @ SHANTHARAJU
S/O MAHADEVAIAH
AGED ABOUT 22 YEARS
5. DEVARAJU
S/O KARIYAPPA
AGED ABOUT 39 YEARS
6. RENUKAMMA
W/O SRINIVAS
AGED ABOUT 36 YEARS
ALL ARE R/O KENKERE,
HULIYURDURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT - 576 169 ...PETITIONERS
(BY SRI A.N.RADHA KRISHNA, ADV. FOR
SRI A.H.BHAGAVAN, ADV.)
2
AND
STATE OF KARNATAKA
BY HULIYURDURGA POLICE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001 ...RESPONDENT
(BY SRI M.DIWAKAR MADDUR, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIDE THE ORDER DATED 11.02.2014 PASSED BY THE I ADDL.
DISTRICT AND SESSION JUDGE, TUMKUR IN S.C.NO.256/10.
ALLOW THE APPLICATION FILED UNDER SECTION 227 CR.P.C.
AND CONSEQUENTIALLY DISCHARGE THE ACCUSED FOR
OFFENCES P/U/S 363 OF IPC.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present criminal revision petition has been preferred by the petitioner/accused Nos.1 to 6, challenging the order dated 11.02.2014 passed in S.C.No.256/2010 by the learned 1st Additional District & Sessions Judge, Tumkur. Where under an application filed under section 227 of Cr.P.C. by accused Nos.1 to 6 which came to be rejected. 3
2. I have heard the learned counsel for the petitioners and the learned High Court Government Pleader for the respondent-State.
3. The brief facts of the case are that a complaint came to be registered at the instance of K.T.Thimmaiah @ Puttaraju, alleging that his 2nd daughter was given in marriage with petitioner/accused No.1, as he was in love with deceased and six months after their marriage, petitioners/accused Nos.1 to 4 started harassing and ill- treating the deceased to bring dowry and in this behalf panchayath was also held several times and at that time, it was decided to give amount after selling Sugarcane. Further it is alleged in the complaint that on 06.08.2010, the deceased was ill-treated again for the same reason and the accused persons were advised and pacified the said quarrel and thereafter, his daughter (deceased) went to the house and she committed suicide by hanging with her saree in a room. On the basis of the said complaint, a case was registered under Section 498 (A), 304 (B) read with Section 34 of I.P.C. After investigation, charge sheet was laid as against accused 4 Nos.1 to 4. Thereafter, the prosecution has examined P.Ws.1 to 27 and statement of accused Nos.1 to 4 also came to be recorded under Section 313 of Cr.P.C and the case was posted for defense evidence of D.Ws.1 & 2 i.e., present petitioner Nos.5 & 6, came to be examined on behalf of accused and after the said evidence, the learned Public Prosecutor has filed an application under Section 319 Cr.P.C to arraign petitioner Nos.5 and 6 as accused Nos.5 and 6 and one more application also came to be filed under Section 216 of Cr.P.C. to add Section 363 of I.P.C. Subsequently, a memo was also filed to include the offence under Section 306 of I.P.C. as against accused Nos.1 to 4. and the said application also came to be allowed by the trial Court and at that time, accused Nos. 1 to 6 filed an application under Section 227 of Cr.P.C. to discharge them for the offence punishable under Section 363 and said application was seriously contested by the learned public prosecutor and after hearing the parties, Court below by order dated 11.02.2014, dismissed the said application. By assailing the same, the petitioners/accused are before this Court in this petition.
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4. It is the contention of the learned counsel for the petitioner that there is no any averments or ingredients of Section 363 of I.P.C. but the trial Court has wrongly allowed the petition and even when the application for discharge has been filed by the petitioners/accused, the said application was also erroneously dismissed without any application of mind. He further submitted that the said application was came to be filed after examination of D.Ws.1 & 2 that is present petitioners No.5 & 6 herein. He further submitted that the trial Court without considering the materials placed on record has wrongly dismissed the petition. He further referring to the complaint and other materials further submitted that though there is no materials to frame charge as against accused/petitioners under Section 363 of I.P.C, the Court below has wrongly dismissed the petition, on these grounds he prays to allow the petition and set aside the impugned order.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that there is 6 material to show that the accused persons have kidnapped the deceased without there being having any consent of parents of deceased and got her married with accused No.1 and their evidence also substantiate the same fact. Taking into consideration, the said aspects, application filed under Section 216 of Cr.P.C. has been allowed, the Court below has rightly included Section 363 of I.P.C. He further submitted that the impugned order of the trial Court is based upon the above facts and circumstances of the case and the petitioner has not made out any good grounds to allow the petition, on these grounds he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned counsels appearing for the parties, I have also gone though the evidence, complaint and other records secured from the trial court.
7. Before going to consider the said aspects, I feel it is just and proper to quote what is the text to consider the application under Section 227 of Cr.P.C. In this behalf, I want to refer to the decision which has been laid down by the Hon'ble Apex Court in the case of State of Bihar V/s. 7 Ramesh Singh reported in 1977 AIR 2018, wherein the Hon'ble Apex Court at para 4 has observed which read as under:
"4. Under S. 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under S.227 or S. 228 of the Code. If "the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by S.227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -
..... ..... ...... ...... .....
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in S.228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are 8 not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S.227 or S.228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce toe prove the 9 guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S.227 or S.228, then in such a situation ordinarily and generally the order which will have to be made will be one under S.228 and not under S.227."
8. On perusal of the entire material which has been produced by the prosecution, though the evidence of D.Ws.1 & 2, it indicates that without there being any knowledge of the parents of the deceased, she has been got married with accused No.1, but there is no specific averments either in the complaint or in the evidence of D.Ws.1 and 2 to satisfy the ingredients of kidnapping. Even there is no evidence produced in this behalf to show that the deceased was induced and she was taken away from the custody of her parents. Even on close perusal of the complaint, even after the 10 deceased committed suicide, no such allegations are made by the complainant. The said Section has been incorporated in the charge only when the evidence of DWs.1 and 2 has been led and then thereafter the application under Section 227 has been filed. By going through the materials which has been produced in this behalf it clearly indicates that there is no material as against the accused - petitioners to proceed under Section 363 of IPC. Though during the course of arguments, learned counsel for the petitioners
- accused draw my attention to the fact that the application which has been filed under Section 227 of Cr.P.C. was also including the offence punishable under Section 306 of IPC. But insofar as offence punishable under Section 306 of IPC as against accused Nos.1 to 4 are concerned it has been observed in the order of the trial Court that accused Nos.1 to 4 have not challenged the said order. In that light, I am also not going to disturb the particular observation made by the Court below.
9. Taking into consideration the facts and circumstances and after perusal of the record I find that there is material to set aside the impugned order insofar as Section 363 of IPC is concerned. Hence, the criminal revision petition is allowed in part and the impugned order dated 11.02.2014 11 passed by the I Additional District and Sessions Judge, Tumkuru, in S.C.No.256/2010 is modified. The accused - petitioner Nos.1 to 6 are discharged only in respect of the offence punishable under Section 363 of IPC. In so far as other aspect of the order is confirmed.
The trial Court is directed to proceed against accused Nos.1 to 4 as per the earlier order.
Sd/-
JUDGE HR/nvj