Karnataka High Court
Ajit S/O Venkatesh Kulkarni vs The State Of Karnataka on 5 July, 2023
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2023:KHC-D:6750
CRL.P No. 102631 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 102631 OF 2017
BETWEEN:
AJIT S/O. VASANTH KULKARNI,
AGE: 52 YEARS, OCC: RATION SHOP,
R/O: 981, 4TH BLOCK, RAJAJINAGAR,
BENGALURU-10.
...PETITIONER
(BY SRI. K.L. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY HUBBALLI SUB-URBAN P.S.,
REP. BY SPP,
HIGH COURT OF KARNATAKA,
CHANDRASHEKAR
BENCH AT DHARWAD.
LAXMAN
KATTIMANI
2. SHRIPADRAO S/O. NEELAKANTARAO KULKARNI,
Digitally signed by
AGE: 42 YEARS, OCC: TEACHER,
CHANDRASHEKAR
LAXMAN KATTIMANI
R/O: NEAR HANAMANT DEVAR TEMPLE,
Date: 2023.07.11 NOOLVI, TQ: HUBBALLI,
15:53:16 -0700
DIST: DHARWAD.
...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
SRI. M.L. VANTI, ADVOCATE FOR;
SRI. V.M. SHEELVANT, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE ORDER IN C.C.NO. 565
OF 2012 DATED 19.01.2017 PASSED BY PRL. CIVIL JUDGE,
AND JMFC HUBBALLI, THEREBY ALLOWING THE APPLICATION
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NC: 2023:KHC-D:6750
CRL.P No. 102631 of 2017
FILED UNDER SECTION 91 READ WITH SECTION 242 OF
CR.P.C.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri K.L.Patil, learned counsel for the petitioner, Smt.Girija S.Hiremath, learned High Court Government Pleader for respondent No.1 and Sri M.L.Vanti, learned counsel for respondent No.2.
2. The pres ent petition is filed under Section 482 of Cr.P.C. with the following prayer :-
"To quash the order in C.C.No.565 of 2012 dated 19.01.2017 passed by Prl. Civil Judge and JMFC Hubballi, thereby allowing the application filed under Section 91 read with Section 242 of Cr.P.C."
3. The brief facts of the case are as under :-
A complaint came to be lodged by Sri Sripadrao Kulkarni with Hubballi Sub-Urban Police Station on
22. 07.2011 w hich was registered in Crime -3- NC: 2023:KHC-D:6750 CRL.P No. 102631 of 2017 No.110/2011 for the offences punishable U/sec.420 and 511 IPC against the p etitioner herein.
3.1 Gist of the complaint averments reveal that the petitioner her ein has concocted a death certificate of the complainant and on the basis of the said concocted death certificate, the a ccused-
petitioner tried to have revenue entries transferred in his name in respect of the land bearing Sy.No.333 in Noolvi village to the extent of 7 acres 22 guntas. After registration of the case, police after thorough investigation filed a charge sheet.
3.2 When the trial was in progress, an applicati on came to be filed by respondent No.2 who is the defacto complainant U/sec.91 read with Section 242 of Cr.P.C. seeking issue of summons for production of certain documents. Details of the documents that have to be summoned are also not properly mentioned in the application. The said applicati on was opposed by the petitioner h erein by filing written objections.
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NC: 2023:KHC-D:6750 CRL.P No. 102631 of 2017 3.3 Learned Magistrate, a fter hearing the parties, wi thout even considering the relevant provision of law, allowed the application filed by the defacto complainant by order dated 19.01.2017. Th e said order is under challenge in this petition.
4. Sri K.L.Patil, learned counsel for the petitioner-accused reiterating the grounds urged in the p etition, vehemently contended that the applicati on filed by the defacto complainant coul d not have been entertained by the learned trial Magistrate in view of the fact that the case is con ducted by the State through Assistant Public Prosecutor and in the absence of any permission obtain ed by the second respondent to conduct the cas e by himself, participating in the trial and filing and application is incorrect and sought for allowing the petiti on.
5. Per contra, Sri M.L.Vanti, l earned c ounsel for the defacto complainant supports the impugned order.
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NC: 2023:KHC-D:6750 CRL.P No. 102631 of 2017
6. Learned High Court Govern ment Pleader fairly submits that suitable orders be passed in view of the relevant provision s of the Code of Criminal Procedure.
7. In view of the rival contentions of the parties, this Court perused the material on record meticulously.
8. On such perusal of the material on record, it is seen that the case is inv es tigated by the police and charge sh eet came to be filed. Thereafter, the trial Magistrate took cognizance of th e offences alleged against the petitioner herein and the trial has commenced.
9. Admi ttedly, the trial is con ducted by the Assistant Public Prosecutor. In the absence of any applicati on filed U/sec.301 Cr.P.C. and a nec es sary permission is obtained by the defacto complainant either to as sist the prosecution or to conduct the cas e by himself, defacto complainant filing an -6- NC: 2023:KHC-D:6750 CRL.P No. 102631 of 2017 applicati on independently that of the prosecution agency i s per se illegal and is against the scheme of the Cr.P.C. Learned trial Magistrate despite objections of the accused did not bestow his attention on to the relevant provisions of law and allowed the app lication resul ting in miscarriage of justice.
10. Accordingly, a case is made out by the petitioner for interference by this Court by exercising the p owers vested in this Court U/sec.482 Cr.P.C.
11. Hence, the following order is passed.
ORDE R The criminal petition is allowed.
Impugned order dated 19.01.2017
passed in C.C.No.565/2012 by the
Principal Civil Judge and J.M.F.C., Hubballi is hereby quashed.
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JUDGE CLK/List No.: 2 Sl No.: 81