Karnataka High Court
Prathap S/O Bapusaheb Chandanshiv vs The State Of Karnataka on 30 March, 2023
1 CRL.P.No.102446/2022
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 30TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL PETITION No.102446/2022
BETWEEN:
1. PRATHAP,
S/O BAPUSAHEB CHANDANSHIV,
AGE: 63 YEARS,
OCC: AGRICULTURE.
2. RAJENDRA,
S/O BAPUSAHEB CHANDANSHIV,
AGE: 58 YEARS,
OCC: AGRICULTURE.
3. PRUTHIVIRAJ,
S/O APPASAHEB CHANDANSHIV,
AGE: 63 YEARS,
OCC: ADVOCATE.
Digitally signed by
ALL ARE RESIDENTS OF ANAND NAGAR,
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
MUDHOL, DIST: BAGALAKOTE-587 313.
COURT OF
KARNATAKA
DHARWAD
...PETITIONERS
(BY SRI R.H.ANGADI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
(KARATAGI POLICE STATION)
REP.BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD-580 011.
2 CRL.P.No.102446/2022
2. BHEEMANNA,
S/O CHATRAPPA MEGURU,
AGE: 38 YEARS,
OCC: POLICE CONSTABLE (PC NO.270),
R/O MEGURU, TQ: KUSHTAGI,
DIST: KOPPAL-584 121.
3. VINOD S/O VENKAPPA MALALI,
AGE: 33 YEARS,
OCC: NIL,
R/O DOLLORS COLONY, MUDHOL,
DIST: BAGALKOTE.
...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1 AND 2;
SRI M.L.VANTI, ADVOCATE FOR R3)
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF
CR.P.C., SEEKING TO QUASH THE ENTIRE CRIMINAL
PROCEEDINGS IN S.C.NO.29/2022, PENDING ON THE FILE OF I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOPPAL,
SITTING AT GANGAVATHI, SITTING AT GANGAVATHI, AGAINST
THE PRESENT PETITIONERS WHO ARE ARRAYED AS ACCUSED
NOS.5 TO 7 IN KARATAGI P.S. CRIME NO.207/2020, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 302, 307, 109 R/W
SECTION 149 OF I.P.C.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
10.03.2023, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners who are arraigned as accused No.5 to 7 have filed this petition under Section 482 of Code of Criminal Procedure (for short, 'Cr.P.C.') to quash the criminal proceedings against them in C.C.No.29/2022 3 CRL.P.No.102446/2022 (Crime No.207/2020) for the offences punishable under Sections 302, 307, 109 r/w 149 Indian Penal Code (for short, 'I.P.C.')
2. Petitioners have contended that they are innocent and law abiding citizens. They are not at all involved in the alleged offences or have attributed any kind of abatement. Petitioners No.1 and 2 are aged. They are basically agriculturists having deep roots in the society. Petitioner No.3 is a practicing advocate at Mudhol and surrounding places. They are hailing from respectable family of Mudhol town.
2.1 Initially charge sheet was laid on 13.01.2021. Until then the names of petitioners were not at all whispered or alleged in the statement of anyone of the witnesses. The Investigating Officer has not produced any document regarding the status of the injured Vinod Malali. No records are produced regarding his condition. Very surprisingly on 23.01.2021 i.e. after ten days of 4 CRL.P.No.102446/2022 filing the charge sheet, he given a statement against the petitioners. Based on it, the concerned police have recoded the statement of some other witnesses. Further statement of some of the witnesses is recorded who have absolutely not whispered anything about the involvement of the petitioners.
2.2 The Investigating Officer has not taken permission from the trial Court to conduct further investigation and filed supplementary charge sheet. He has not followed the mandatory provisions of Section 41(1)(b)(i)(ii) Cr.P.C. which requires holding of preliminary enquiry. No notices were issued to the petitioners. The guidelines issued in Satender Kumar Antil V/s Central Bureau of Investigation and another1 are not followed. Prima facie there is no material to connect the petitioners with the alleged crime.
1 2022 SAR (Crl.) Page 774 5 CRL.P.No.102446/2022 2.3 The case of the petitioners squarely fall into the decision of the Hon'ble Apex Court in State of Haryana and others V/s Bhajanlal and others2 case and as such continuation of the criminal proceedings against them amounts to abuse of process of the Court. The Investigating Officer has falsely brought the petitioners into the umbrella of Section 109 IPC. Petitioners are not directly related to the deceased Triveni and her brother accused No.1. They are distant relative and there was no occasion for them to indulge in the family affair of the deceased and prays to allow the petition.
2.4 Learned counsel for accused No.5 to 7 has relied upon the following decision:
i. Vinay Tyagi V/s Irshad Ali alias
Deepak and others3
2
1992 Supp.(1) SCC 335
3
(2013) 5 SCC 762
6 CRL.P.No.102446/2022
3. Initially petitioners arraigned only the State as well as the first informant who happened to be a Police Constable who lodged the complaint on finding the dead body of Triveni and her husband Vinod Malali in an injured condition. Subsequently, the husband of the deceased namely Vinod Malali got himself impleaded as respondent No.3.
4. Learned High Court Government Pleader representing respondents No.1 and 2 as well as learned counsel representing respondent No.3 submitted that respondent No.3 and deceased Triveni were bank employees and they used to travel in the same bus to reach the place of work. They fell in love and on 12.05.2020, they got married before the Sub-Registrar, Gangavathi. Both the family members of deceased as well as respondent No.3 were not happy with their marriage as they belong to different caste. Accused No.1 Avinash Chandanshiv is the younger brother, accused No.3 Yuvaraj is the maternal uncle and accused No.5 7 CRL.P.No.102446/2022 Pratap Chandanshiv and accused No.6 Rajendra Chandanshiv are the paternal uncles and accused No.7 Pruthviraj Chandanshiv is the cousin of deceased Triveni. Accused No.1, 3 and 5 to 7 were not happy with the deceased Triveni marrying respondent No.3 Vinod Malali as they belong to different caste.
4.1 They would further submit that even though several times these accused persons requested, demanded and also gave threat to deceased Triveni to get a divorce from respondent No.3 or else to face the consequences, they did not agree to part their ways and in this background, accused No.1 contacted accused No.4 Baba @ Babu who in turn introduced accused No.2 Kumar @ Kumya to him and accused No.1 agreed to pay Rs.2,00,000/- after Triveni and Vinod Malali are killed.
4.2 It is further submitted that father of deceased Triveni and accused No.1 namely Shivajirao Chandanshiva was prosecuting a civil suit against 8 CRL.P.No.102446/2022 accused No.5 and 6. After his death, deceased Triveni was prosecuting the said suit. Since accused No.1 Avinash Chandanshiv was not in a position to resist accused No.5 and 6 in the said civil suit, they were interested in eliminating Triveni so that they may have no resistance to civil suit which involves highly valuable properties.
4.3 In this background, through accused No.2 and 4 deceased Triveni and Vinol Malali were attacked by accused No.1, 2 and 4 with iron rods on 17.10.2020 at around 6.45 p.m. Triveni died on the spot and respondent No.3 sustained grievous injuries and was fell unconscious. A police constable on beat duty, who came to know about the assault, went to the spot and as no one came forward to lodge the complaint, he filed a complaint disclosing the facts which were visible at the spot and the information which he received from the persons who had gathered. Based on the said complaint, investigation was commenced.
9 CRL.P.No.102446/2022
4.4 Accused No.1, 3 and 4 were arrested and as respondent No.3 was not in a position to give statement and since 90 days were about to lapse after the arrest of accused No.1, 3 and 4, the Investigating Officer filed the charge sheet against them intimating the Court that after respondent No.3 is in a position to give statement further investigation would be conducted and supplementary charge sheet would be filed. Subsequent to respondent No.3 gaining conscious and in a position to give statement, the Investigating Officer has conducted further investigation and came to know that present petitioners namely accused No.5 to 7 were interested in eliminating the deceased and respondent No.3 as she was instrumental in prosecuting the civil suit against them and they were abetting accused No.1 to eliminate them. After conducting detailed investigation, the Investigating Officer has filed supplementary charge sheet. The charge sheet and supplementary charge sheet makes out a strong prima 10 CRL.P.No.102446/2022 facie case against all the accused persons including the petitioners and prays to dismiss the petition.
5. Heard the arguments and perused the record.
6. The material placed on record prima facie indicates that deceased Triveni and respondent No.3 Vinod Malali belong to different caste. Accused No.1 is the real brother of Triveni. Accused No.3 Yuvaraj Nimbalkar is the maternal uncle, accused No.5 and 6 are the paternal uncles and accused No.7 Pruthviraj Chandanshiv is the cousin brother of deceased Triveni and accused No.1. All these persons were very much unhappy on account of the marriage between Triveni and respondent No.3 Vinod Malali and they were hell bent upon Triveni to take divorce from respondent No.3 Vinod Malali. The marriage between Triveni and respondent No.3 was taken as a honour issue by these persons.
11 CRL.P.No.102446/2022
6.1 So far as accused No.5 to 7 are concerned, it is the definite case of the prosecution that father of deceased Triveni and accused No.1 Anivash Chandanshiv were prosecuting a suit against accused No.5 to 7 in respect of valuable properties of the family and after the death of their father, deceased Triveni took it upon her to prosecute the said suit. Since accused No.1 Avinash is in a position to be manipulated accused No.5 to 7 instigated him to eliminate Triveni and Vinod Malali. Despite giving threats and ultimatum when deceased Triveni and respondent No.3 did not chose to part their ways, with the help of accused No.2 and 4, accused No.1 assaulted both of them fatally on 10.08.2019.
6.2 It is pertinent to note that in respect of the said incident, complaint came to be lodged by one Bhimanna, a Police Constable working at Karatagi Police Station. The complaint reveals that on that day, he was on beat duty at Karatagi and after coming to know about 12 CRL.P.No.102446/2022 the incident, immediately he rushed to the spot and found Triveni dead with severe injuries and respondent No.3 was attacked and not in a position to speak. Immediately he was shifted to the hospital and as none of the persons who had gathered at the spot, some of them being the eyewitnesses did not come forward to lodge the complaint, based on the information which he could gather from the spot, he lodged the complaint. Based on it, the investigation commenced.
6.3 Accused No.2 is still absconding. Accused No.1, 3 and 4 were arrested. On the basis of their voluntary statement, the Investigating Officer has recovered the incriminating articles through them. Since the statutory period for filing the charge sheet was fast approach, and as respondent No.3 Vinod Malali was not in a position to give statement, the Investigating Officer filed charge sheet against accused No.1 to 4 reserving his liberty to conduct further investigation after respondent No.3 is in a position to give statement. 13 CRL.P.No.102446/2022 Accordingly, after respondent No.3 regained conscious and also given a statement in writing about the motive for attempt on them and also the involvement of accused No.5 to 7 who are petitioners herein, he has conducted further investigation and filed supplementary charge sheet against all the accused persons including the petitioners.
6.4 The charge sheet and supplementary charge sheet makes out a strong prima facie case against all the accused persons including the petitioners. So far as contention of the petitioners that preliminary enquiry is not conducted before implicating them, the concept of conducting preliminary enquiry is to satisfy the Investigating Officer about the allegations made against the accused and to satisfy himself that his investigation is going on in the right direction. Conducting preliminary enquiry does not mean to give opportunity to the petitioners to have their say. It is only to see that innocent persons are not being proceeded against. 14 CRL.P.No.102446/2022 Having regard to the serious allegations made and the voluminous evidence collected, the Investigating Officer had never any doubt about involvement of the petitioners. Therefore, no question of conducting any preliminary enquiry and giving notices to the petitioners would arise.
6.5 So far as the decision in Vinay Tyagi's case is concerned, while discussing in detail as to how the investigation is required to be conducted, the power of the trial Court and higher Courts to order for investigation, further investigation etc., and also the power of the Investigating Officer to conduct further investigation, the Hon'ble Supreme Court has clearly held that under Section 173(8) Cr.P.C. the Investigating Officer is having statutory powers to conduct further investigation. The Hon'ble Supreme Court also observed that there is no specific requirement in the provisions of Section 173(8) Cr.P.C. to seek leave of the Court for the Investigating Officer to conduct further investigation. It 15 CRL.P.No.102446/2022 is a legal practice and a procedural of propriety which is followed by the Investigating Officers and the Courts. The requirement of seeking prior leave of the Court to conduct further investigation and/or to file a supplementary report will have to be read into and is a necessary implication of the provisions of Section 173(8) Cr.P.C.
6.6 In this judgment, the Hon'ble Supreme Court has clearly observed that the power to conduct further investigation whereby the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8) Cr.P.C. is vested with the executive. It is the continuation of previous investigation and therefore is understood and described as further investigation. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are 16 CRL.P.No.102446/2022 described at the subsequent stage of the preliminary investigation.
6.7 The Hon'ble Supreme Court further held that it is commonly described as a supplementary report. Supplementary report would be the correct expression as the subsequent investigation is meant and intended to supplement the preliminary investigation conducted by the empowered police officer. This is a kind of continuation of previous investigation. The base is discovery of fresh evidence and in continuation of the same offence and chain of events relating to some occurrence incidental thereto.
6.8 Thus, the Vinay Tyagi's case instead of aiding the petitioners is helpful to the case of the prosecution. The material placed on record through the charge sheet and supplementary charge sheet makes out a strong prima facie case against all the accused persons including the petitioners who are accused No.5 17 CRL.P.No.102446/2022 to 7. The allegations made against the petitioners and other accused are required to be established through a detailed trial. Having regard to these aspects, this Court is of the considered opinion that this is not a fit case to grant the relief under Section 482 Cr.P.C. to the petitioners and accordingly, I proceed to pass the following:
ORDER The petition filed under Section 482 Cr.P.C. by the petitioners/accused No.5 to 7 is hereby dismissed.
SD/-
JUDGE CLK