Karnataka High Court
Sahivanand S/O Basayya Rumalimath vs State Of Karnataka on 11 August, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11 t h DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.101702/2017
BETWEEN:
SHIVANAND S/O BASAYYA RUMALIMATH
AGE: 49 YEARS , OCC: BUSINESS ,
R/O: VIKAS NA GA R,
SIDDESHWARA COLONY,HUBLI .
... PETITIONER
(BY SRI. A.M . GUN DAWADE, ADV . FOR
SRI. M .B. GUNDA WADE, ADV OCATE)
AND:
1. STATE OF KARNATAKA
BY STATE PUBLIC PROSECUT OR,
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH, AT DHARWAD ,
THROUGH HAV ERI TOWN POLI CE STA TION.
2. SHIVAKUMAR
S/O VISHWANATH LAKSASHETTI,
AGE: 35 YEARS ,OCC: SERVI CE,
R/O: 12TH CROSS,
BASAVESHWAR NA GAR,
A-BLOCK , HAVERI- 581110.
... RES PONDENTS
(BY SRI. RAMESH B. CHIGARI , HCGP FOR R1
R2 S ERVED)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C., S EEKIN G TO QUASH THE
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ENTIRE PROCEED INGS OF THE CASE AGAINST THE
PETITIONER IN C.C.NO. 44 OF 2016 ON THE FILE OF
CIVIL JUD GE (SR.DN.) AND CJM, HAVERI, F OR THE
ALLEGED OFF ENCES UNDER S ECTI ON 109, 332, 353,
504 READ WITH S ECTION 34 OF I PC.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) by accused No.2 seeking to quash the entire proceedings initiated against the petitioner/accused No.2 in C.C. No.44/2016 pending on the file of the learned Civil Judge (Senior Division) and CJM, Haveri, registered for the offence punishable under Sections 109, 332, 353 and 504 read with Section 34 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity).
2. The factual matrix of the case are that on 09.03.2016, Haveri Town Police have registered a case against the petitioner and another in their P.S. Crime 3 No.114/2016 for the offences under Sections 109, 332, 353 and 504 read with Section 34 of IPC and the said case is registered on the basis of the complaint given by one Shivakumar s/o Vishwanath Laksashetti. The petitioner is shown as accused No.2. Accused No.1 is working in the Shivanand Enterprises of Haveri which has dealings in agriculture equipments. On 09.03.2016, the informant-Shivakumar, who was in the official duty at Krishi Kendra and agriculturists were approached Shivanand Enterprises who have made the payment to the said Shivanand Enterprises through bank with regard to supply of sprinkler etc. As the sprinkler sets were not supplied to them, the agriculturists namely CW-4-Manjappa, CW-5- Mallikarjun, CW-6-Prakash visited the Raita Samparka Kendra and contacted the informant/complainant Shivakumar, who in turn instructed that sprinkler sets were not supplied by Shivanand enterprises and asked them to go and contact the said enterprises. 4 Accordingly, agriculturists went to the said Shivanand Enterprises and enquired with accused No.1-Gadigayya Basavaraj Hiremath who was present at the shop and on enquiry he told that they have already supplied the same to the Agriculture Department. So the agriculturists secured the informant to the said enterprises at about 5.20 pm the informant enquired with accused No.1 who was present at the shop and accused No.1 has not given proper reply and questioned the informant and also told them to enquire with Shivanand Rumalimath on his arrival to the shop and abused. As the informant was not satisfied with the behaviour of accused No.1, he advised accused No.1 and in turn accused No.1 told that accused No.2 has instructed him to take them to task and assault him and he will take care. Accused No.1 obstructed the official duty of the informant by manhandling the informant and also assaulting him with hands. 5
3. Heard the arguments of the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State and perused the FIR, complaint and charge sheet papers.
4. It is the submission of the learned counsel for the petitioner that on the basis of the averments made in the first information, no offence is attracted against petitioner-accused No.2. It is his further submission that only on the strength of the oral statement of accused No.1, petitioner-accused No.2 has been falsely implicated and there is no legal evidence to establish the abetment by accused No.2. It is his further submission that petitioner No.2 was not present at the spot and there are no material to show that he had instigated accused No.1 to assault and abuse the public servant. It is his further submission that the VAT registration certificate of Shivanand Enterprises show that it is registered in the name of Veeresh 6 Subhashchandra Kambalimath and the petitioner- accused No.2 is in no way connection with the Shivanand Enterprises. It is further submission that charge sheet papers does not contain any document to show that the petitioner has connection with the Shivanand Enterprises. With these, the counsel prayed for allowing the petition
5. Per contra, the learned High Court Government Pleader submitted that the charge sheet has been filed and therefore the petitioner may be directed to appear before the jurisdictional Court and file an application seeking discharge. It is his further submission that the offence under Section 109 of IPC is attracted against the petitioner as he has abetted accused No.1 to abuse and assault the public servant. In the present case, the charge sheet has been filed and a case has been registered against the petitioner- accused No.2 and accused No.1 in CC No.44/2016 7 along with other offences under Sections 109, 332, 353 and 504 read with Section 34 of IPC. He further submitted that as the charge sheet has been filed, petition under Section 482 of Cr.P.C. is not maintainable and the petitioner has to be directed to approach the jurisdiction Court seeking his discharge. With this, he prayed for rejecting the petition.
6. The Hon'ble Apex Court in the case of Joseph Salvaraja v. State of Gujarat and Others reported in (2011) 7 Supreme Court Cases 59 held that even if the charge sheet is filed, power to quash still can be exercised.
7. On looking to the accusation made in the FIR, first information and the charge sheet, the offence alleged against the petitioner is under Section 109 of IPC. In the first information(complaint), Shivakumar son of Vishwanath Laksashetti, has stated that accused No.1-Gadigeyya Basavaraj Hiremath told him 8 that accused No.2 Shivananda Rumalimath has asked him to assault any public servants who visited his shop and he will take care. Looking to the entire charge sheet, there is no allegation that petitioner-accused No.2 was present at the spot at the time of the incident. CWs.4 to 6, who are the farmers, who were present with the first informant at the spot, have also stated similar to that of the statement made by the first informant in the first information(complaint). Therefore, the statement of the informant and CWs.4 to 6 are hear say. There is no legal evidence to attract the offence under Section 109 of IPC against the petitioner-accused No.2. The inherent power under Section 482 of Cr.P.C. has to be exercised to do right and to undo a wrong in the course of administration of justice and to prevent the abuse of the process of any Court.
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8. Considering the above said aspects, the proceedings initiated against the petitioner/accused No.2 in C.C.No.44/2016 requires to be quashed.
Hence, the petition is allowed. The proceedings initiated against the petitioner/accused No.2 in C.C. No.44/2016 pending on the file of the learned Senior Civil Judge and CJM, Haveri, are quashed.
Sd/-
JUDGE kmv