Dr. A. Ebenezer vs Smt. M. Mary on 18 April, 2002

[Cites 41, Cited by 1]

Karnataka High Court

Dr. A. Ebenezer vs Smt. M. Mary on 18 April, 2002

Equivalent citations: ILR2002KAR2606, 2002(5)KARLJ86, 2002 CRI LJ (NOC) 302, 2002 AIR - KANT. H. C. R. 1927, (2002) 3 CURCRIR 246, (2002) 5 KANT LJ 86, (2002) 3 ALLCRILR 603

Bench: Mohamed Anwar

ORDER

 

Mohamed Anwar, J.

1. Petitioner-Dr. A. Ebenezer, Principal, Bishop Cotton Boys' School, Bangalore, is the accused and respondent-Smt. M. Mary is the complainant in P.C.R. No. 450 of 1997 on the file of the learned Magistrate. "

2. This petition under Section 482 of the Cr. P.C. by the petitioner is filed praying:

". . . . that this Hon'ble Court be pleased to call for records in P.C.R. No. 450 of 1997, which is pending on the file of the learned 8th Additional Chief Metropolitan Magistrate and further be pleased to reverse and set aside the order dated 15-2-2001, passed in the case, ordering the registration of a case against the petitioner, for an offence, punishable under Sections 448, 313 and 506 of the Indian Penal Code and further directing issuance of process against the petitioner, for his appearance before the Court and further be pleased to quash the entire proceedings, in the said case, in the ends of justice".

The impugned order dated 15-2-2000 of the learned Magistrate is reproduced below:

ORDER The 'B' report filed by police in the case is rejected.

Register a criminal case against the accused for the offences punishable under Sections 448, 313 and 506 of the IPC and issue summons to accused returnable by 19-3-2001".

3. Certain material facts leading to filing of the petition may be stated as under:

On 24-3-1997, the respondent (hereinafter referred to as 'the complainant'} filed her private complaint under Section 200 of the Cr. P.C. before the learned Magistrate against her petitioner husband (hereinafter referred to as 'the accused') alleging commission of offences by him under Sections 448, 324, 313 and 506-B of the IPC. On 10-4-1997, as borne out by the proceedings recorded in the order sheet of the Court below, cognizance for the said offences was taken by the learned Magistrate and the case was adjourned to a future date for recording the statements on oath of the complainant and her witnesses. On 21-5-1998, on the basis of the material placed on record by complainant, the learned Magistrate passed an order to register a criminal case against accused for offences punishable under Sections 313, 324, 448 and 506-B of the IPC and directed issuance of process against him. That order was challenged by the accused under Section 482 of the Cr. P.C. before this Court in Criminal Petition No. 1769 of 1998. The said order impugned therein was found by the learned Judge bad in law. Therefore, the said Cri. P. No. 1769 of 1998 was disposed off by his order dated 31-3-1999 quashing the said order dated 21-5-1998 and remitting the matter to the learned Magstrate to proceed in accordance with law, in view of the alleged offence under Section 313 of the IPC being exclusively triable by the Sessions Court, and to pass the fresh appropriate order on consideration of the complainant's material on record.

4. Thereafter, the learned Magistrate proceeded to record the statements of the remaining witnesses for the complainant and collected all the documents on which the complainant proposed to rely in proof of the alleged offences against accused.

5. In support of her case against accused alleged in the complaint, the complainant examined herself before the learned Magistrate as P.W. 1. Besides, she also examined her 15 witnesses as P.Ws. 2 to 16 and brought on record the documentary material consisting of 41 exhibits marked as Exs. P. 1 to P. 41. On a detailed consideration of whole of this material on record, the learned Magistrate passed his considered said order dated 15-2-2001, which is impugned herein.

6. Mr. C.V. Nagesh, learned Counsel for the accused, vehemently argued assailing the legality and correctness of the impugned order, strenuously maintaining that the complainant's material brought on record before the learned Magistrate does not prima facie make out a case for alleged offences against accused but, on the other hand, it sufficiently damages her case against him. It was submitted that at any rate it does not provide sufficient ground justifying issuance of process against accused. He has relied on a catena of decisions in his attempt to substantiate this contention. A list of these decisions is also filed by him.

7. Mr. B.R. Nanjundaiah, learned Senior Counsel representing complainant, also argued at length taking the Court through whole of the complainant's material on record and vehemently submitted that the impugned order is a perfectly valid order and it does not warrant interference by this Court under Section 482 of the Cr. P.C. He also relied on a number of authorities in support of his contentions and a list thereof is filed by him.

8. The material point which now I am called upon to decide is: Whether in the light of the complaint averments and the complainant's material placed on record in support thereof, the impugned order of the learned Magistrate could be held sustainable in law?

9. Before straightaway dealing with this point considering the complaint allegations and the complainant's material, let me first advert to certain pronouncements of Supreme Court made in its various decisions which are relied on by both sides regarding the extent of the scope and limit of the power of this Court under Section 482 of the Cr. P.C. with particular reference to the nature of the power of the Magistrate to take cognizance of alleged offence/s and his power under Section 202 read with Section 204 of the Cr. P.C.

10. The Hon'ble Supreme Court has, in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., , which is cited for the petitioner, reiterated the test to be applied to quash a criminal proceeding at the initial stage by the High Court in exercise of its power under Section 482 of the Cr. P.C., laid down by it in Madhavrao Jiwaji Rao Scindia v. Sambhaji-rao Chandrojirao Angre, . The same is reproduced below:

"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage".

Further, at paragraph 103 of its judgment in Bhajan Lal's case, supra, the Hon'ble Supreme Court has quoted the well-settled principle in exercise of the power under Section 482 of the Cr. P.C. by the High Court and to quash a FIR or a complaint. That principle is stated thus:

it is well-settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 of the Cr. P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations".

(emphasis supplied) On a review of the case-law in the matter of quashing the criminal proceeding at the initial stage, initiated on the basis of a complaint or FIR, at paragraph 108 of its judgment, the Hon'ble Supreme Court has enunciated 7 guiding principles with the pertinent observations:

"108. . . we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised".

For our purpose, of the said seven categories of cases which are listed under the above quoted observation, those at categories 1, 3, 5 and 7 are material. They are, therefore, extracted below:

"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. xxxxx

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. xxxxx

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. xxxxx

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge".

11. The scheme of Sections 202 and 203 of the Cr. P.C. was the subject of consideration by Hon'bie Supreme Court in the case of S.N. Palanitkar and Ors. v. State of Bihar and Ors., , on which Mr. C.V. Nagesh, learned Counsel for petitioner, proposed to rely. At paragraph 14 of its judgment, the Supreme Court has explained as to how a Magistrate can proceed on a complaint under Section 200 of the Cr. P,C. It is said:

"14. In case of a complaint under Section 200 of the Cr. P.C. . . a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground' used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction".

(emphasis supplied) At paragraph 15, the Supreme Court proceeded to examine the scope of the proceedings under Sections 200 to 203 of the Cr. P.C. and the limitations thereof. It is said:

"15. This Court in the case of Nirmaljit Singh Hoon v. State of West Bengal and Anr., , referring to scheme of Sections 200 to 203 of the Cr. P.C. has explained that "the section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. In the case of Chandra Deo Singh v. Prokash Chandra Base alias Chabi Bose, , where dismissal of a complaint by the Magistrate at the stage of Section 202 inquiry was set aside. This Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (page 653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case".

(emphasis supplied) Further, at paragraph 16 of its judgment, Supreme Court has reiterated its exposition regarding the scope of Section 202 of the Cr. P.C. made in Smt. Nagawwa v. Veeranna Shivalingappa Koujalgi and Ors., , and said:

"16. In Smt. Nagawwa's case, supra, this Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the Court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. . . "Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused" ".

(emphasis supplied)

12. Mr. C.V. Nagesh contended that the complaint against accused is a vexatious complaint which was filed by the complainant with an oblique motive and, therefore, the same is liable to be quashed. Support for this submission was sought to be drawn by him from the observation of Hon'ble Supreme Court at paragraph 22 of its judgment in S.W. Palanitkar's case, supra, where it is said:

"22. Many a times, complaints are filed under Section 200 of the Cr. P.C. by the parties with an oblique motive or for collateral purposes to harass, to wreck vengeance, to pressurize the accused to bring them to their own terms or to enforce the obligations arising out of breach of contract touching commercial transactions instead of approaching Civil Courts with a view to realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on criminal side. . . May be parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but not to proceed against the accused in a criminal prosecution. Hence, before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Sections 200 to 203 of the Cr. P.C. keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in routine manner".

13. Besides the above authorities, Mr. C.V. Nagesh to buttress his argument, cited the authority of the Supreme Court in the case of State of Madhya Pradesh v. Mohan Lal Soni, ; of Delhi High Court in the case of Kanshi Ram v. State, 2001(1) All India Cri. L.R. 232 (Del.); and of this Court in the case of State by Sub-Inspector of Police, Kadaba Police Station v. Tulasidaran, 2000(4) Kar. LJ. 25 : 2000 Cri. L.J. 3115 (Kar.). In the cases of Kanshi Ram and Mohan Lal Soni, supra, the guiding factors which are to weigh with a Criminal Court in framing of a charge against or discharge of the accused under Sections 227 and 228 of the Cr. P.C. are discussed and set out. Since in the case on hand, we are not seized of any order of the Court below relating to framing of charge against petitioner-accused under Section 228 of the Cr. P.C. and that we are concerned with the order of the learned Magistrate passed under Section 204 of the Cr. P.C. directing issuance of process against him, I find that the guidelines enunciated in the cases of Mohan Lal Soni and Kanshi Ram, supra, are not of direct relevance to the petitioner's case. However, it augurs well to bear in mind the basic principles involved in framing of charge against an accused in a warrant case, particularly respecting an offence exclusively triable by the Sessions Court, since the rigour of judicial scrutiny to be made of the material on record at the little advanced stage of framing of charge or discharge of an accused in a criminal proceeding is certainly of much less rigour than to be made by a Magistrate at a prior stage of deciding whether the material placed on record by the complainant provides sufficient ground for issuing process against accused to secure the ends of justice. That principle is that the Trial Court should be satisfied on consideration of the prosecution material after hearing the prosecution and the accused that it provides sufficient ground to presume that the accused has committed the alleged offence and, therefore, he shall be proceeded against. This degree of satisfaction does not mean that the material on record, if accepted, unchallenged or unrebutted, would probably and in conviction of the accused.

In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and Anr., , the import of the words "sufficient ground" occurring in Section 227 was discussed at length by Supreme Court. It has said:

"14. . . . Section 227. . . provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. . .".

(emphasis supplied)

14. In Mohan Lal Soni's case, supra, the Hon'ble Supreme Court laid down:

"7. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused".

(emphasis supplied) At paragraph 9, referring to its decision in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Ors., , Supreme Court further said:

"9. . . at the time of framing charges having regard to Sections 227 and 228 of the Cr. P.C., the Court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose to sift the evidence, as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or broad probabilities of the case".

It has further said:

"11.... As is evident from the paragraph extracted above if the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that accused committed the particular offence then the charge can be quashed".

(See State of Delhi v. Gyan Devi and Ors., , The basic test is laid down by Supreme Court in State of Bihar v. Ra-mesh Singh, as under:

"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 had committed an offence, then it is not open to the Court to say that there is no sufficient ground to proceed against the accused".

15. Now, let me turn to the factual matrix of the complainant's case for determination of the material point in question in the light of the aforestated legal principles. The pith and substance of the complainant's case stated in the complaint is that, both parties are Christians. They are distantly related to each other. The complainant hails from Chamarajanagara Town in Mysore District. After completing her post-graduation in Mysore, she came to Bangalore in search of employment and was staying in Women's Hostel since 1988. Then, the accused was in Government service. He was working as Deputy Director of Collegiate Education. He assured the complainant that he would get her a job at Bangalore. He developed intimacy with her. Subsequently, in 1993, he took voluntary retirement from Government service and became the Principal of Bishop Cotton Boys' High School which was run by Christian community. After the death of his first wife, the accused had married his student named Ms. Sheila Peters. He had two children - one son and a daughter, from his first wife. His relations with the second wife was also embittered, though he had three children from her also. He had left his daughter from his first wife at his native place and his son from her in the Boarding of Baldwin Boys High School, Bangalore. Because of the machinations of the second wife, he was unable to frequently meet and interact with his son and daughter from his first wife.

15.1 In course of their frequent meetings, the accused developed affection with the complainant and wanted to marry her for the sake and welfare of his said children. In the year 1990, he secured a rented first floor premises of the house of P.W. 5-Gangahanumaiah at Kumara Park West locality, Bangalore, under Ex. P. 15, lease deed dated 16-10-1990, showing the complainant as a tenant of that house under P.W. 5-land-lord. P.W. 5, himself was living in the ground floor. The accused was living with his second wife and her children in the house at his said high school premises. His children from first wife and himself were frequently visiting the complainant at the rented house of P.W. 5, where she had been living with her brother P.W. 6-M. Manohar who was employed and working in a certain concern. The complainant was providing motherly love and affection for the said children of the accused. On 28-10-1990, accused came to the complainant complaining about his second wife. At that time, the complainant was preparing to take her bath in the bathroom. The accused became emotional and forced her to submit herself to sexual intercourse despite her unwillingness, and defiled her. She was virgin at that time and she was thus ravished by him. The accused repented for this act. Some time later, he took her to St. Francis Xavier Church at Goa, where he married her.

16. Thereafter, on three earlier occasions stated in paragraph 15 of the complaint, she conceived and had become pregnant by the accused. Every time the accused had her pregnancy medically terminated. At the later stages of this marital relationship, the accused displayed indifferent attitude towards her as he had developed illicit intimacy with another woman of his contact, who was attached to the said school. Yet, he was on visiting terms with the complainant and was cohabiting with her. In the last week of June 1996, during the period from 16-6-1996 to 26-6-1996, he had intercourse with her in her said house many times and impregnated her. When she missed her ensuing monthly menstrual period due in the first week or July, 1996, she got herself examined in a medical lab of P.W. 7-Dr. A.V. Ramaprasad of Anand Diagnostic Laboratory. Ex. P. 11-Examination Report of this laboratory confirmed her pregnancy. On coming to know of the same, the accused again started pressurising her to get her pregnancy terminated. This time, the complainant stoutly declined to do so and had been always vigilant to protect her pregnancy and not to fall prey to the pressure tactics of the accused to get it terminated once again. For a discussion in this regard, a meeting between the complainant and the accused was arranged on 19-9-1996 in the West End Hotel at Bangalore, in the presence of accused's friends viz., Mr. Devanand and P.W. 9-Dr. Mahadevaiah. On that occasion, one Mr. John Ravi, Editor of the local Church based newspaper called "Laity Focus and News", was also present. The accused was scared on seeing him and left the hotel without any discussion. The accused being a very influential person, set loose certain goons around her to see that she be abducted and subjected to forcible termination of her pregnancy. In fact, the complainant had given complaint to the Commissioner of Police, Bangalore, and also to the Director General of Police, Karnataka, for necessary protection against such sinister designs of the accused against her, but to no avail. As a measure of abundant precaution, her brother P.W. 6-Manohar, while going out of the house daily morning for his work, used to lock the door of her house and leave its key with P.W. 5-landlord so as to prevent the accused from visiting the complainant when she was alone during daytime and cause any harm to her pregnancy.

16.1 When such was the panicky state in which she v/as living in the house of P.W. 5, on 9-12-1996, at about 6.30 a.m., the incident of commission of the alleged offences by the accused took place in her house. The same is narrated in paragraph 17 of the complaint, which is extracted below:

"17. The complainant submits that on 9-12-1996 at about 6.30 a.m. while her brother had gone for walking and when the complainant was alone in the house, the accused Mr. A. Ebenezer came to the house of the complainant and started abusing the complainant in vulgar language by saying "You bitch, knowing I have top level influence you are giving paper statement" and abused in vulgar language and threatened to murder the complainant and her brother. The accused also said that he would get the complainant to the streets as a loose character woman and said that only because of the pregnancy that you can prove, and if this pregnancy is removed you cannot do anything and came forward and assaulted on the stomach of the complainant by kicking the complainant with the legs by the accused. The complainant was then six months pregnant. The accused then left the complainant and ran away. Immediately the pain started for the complainant and the pain kept on increasing and in the meantime even the bleeding started for the complainant from the vagina. The complainant submits that on the same day at about 8.30 p.m. in the night when the complainant was alone in the house, the abortion took place and the complainant collected the foetus and put it in a plastic cover".

16.2 The further case of the complainant averred at paragraph 18 is that, somewhere in the midnight on 10-12-1996, she developed severe pain and excessive bleeding. She was therefore taken by her brother, P.W. 6 to the Kempegowda Institute of Medical Sciences ('KIMS Hospital' for short) and admitted her there as in-patient during the same night. She was attended there by P.W. 4-Dr. B.S. Bhat, Professor of Obstetrics. She was discharged on 21-12-1996. As she was not fully recovered, she developed further complications. So, she was again admitted in the said Hospital as in-patient on 3-1-1997 and was discharged on 8-1-1997.

16.3 On 4-1-1997, P.W. 1's brother (P.W. 6) telephoned to the jurisdictional police informing them about the incident. Then, the Police Sub-Inspector of Sheshadripuram Police Station (P.W. 13-Huchamma) visited the hospital in the afternoon of 4-1-1997 and recorded the oral complaint of P.W. 1-complainant, on the basis of which perfunctory investigation was done by the police and 'B' report dated 20-3-1997 at Ex. P. 36 was submitted by them to the Court. Hence, her complaint to the learned Magistrate made on 24-3-1997. This is the complainant's story in her complaint.

17. As already indicated, the complainant was examined as P.W. 1 and her sworn statement in support of her complaint was recorded by the learned Magistrate. In addition, the complainant examined her fifteen other witnesses as P.Ws. 2 to 16 and brought on record the documents, Exs. P. 1 to P. 41 to corroborate the complaint allegations and her sworn statement, against accused.

18. From a perusal of the impugned order of the learned Magistrate, it transpires that he has considered whole of this material placed on record for the complainant and on the basis of which he arrived at the conclusion that this material amply furnishes sufficient ground to proceed against accused for the offences under Sections 448, 506 and 313 of the IPC. Therefore, he directed issuance of process against him by the impugned order.

19. The main attack against validity of the impugned order levelled by Mr. C.V. Nagesh, learned Counsel for petitioner, was based on the opinion of P.W. 4-B.S. Bhat, given in his letter dated 28-2-1997 at Ex. P. 35 to P.S.I. of the said Police Station in response to the latter's letter dated 25-2-1997 sent to the former during investigation of the case by the police. It is the case of P.W. 1 that when the accused assaulted her and kicked her on the abdomen on the morning of 9-12-1996, her six months old foetus was expelled from her womb. She had collected the same in a packet and had carried it with her to the hospital when she was admitted on the night at 10-12-1996. That packet was given to P,W. 19-Dr. Gayathri, which was preserved by her. The said letter dated 25-2-1997 was written by the Sub-Inspector of Police, Sheshadripuram Police Station, Bangalore, to the Resident Medical Officer, KIMS Hospital, Bangalore, putting certain queries and seeking clarification in respect of P.W. 1's pregnancy and the condition of her expelled foetus as found by the doctors who treated her during her first period of admission. That letter was written by the P.S.I. for collection of evidentiary material during investigation of said Crime No. 18 of 1997 of his police station, which was registered against accused for the offence under Sections 323, 504 and 506 of the IPC on the basis of P.W. 1's complaint at Ex. P. 1 that was recorded by P.W. 13 on 4-1-1997 while she was under treatment in the said hospital. Queries 6, 7 and 8 in that letter are, according to Mr. C.V. Nagesh, the material queries. They are, therefore, extracted below:

"(1) to (5) xxxxx (6) Whether the abortion caused to Smt. Mary is natural?

(7) If a pregnancy lady is kicked on her stomach/womb, whether this type abortion taken place?

(8) The age of the foetus at the time of abortion?

(9) xxxxx".

In his reply letter Ex. P. 35, P.W. 4-Dr. G.S. Bhat furnished his opinion to the aforestated queries thus:

"(1) to (5) .....

(6) Abortion could be spontaneous and natural since the foetus was dead macerated when she brought to the hospital.

Intrauterine death of the foetus could be 4-5 days earlier than 10-12-1996.

(7) No. (8) About 24 weeks.

(9)..... ".

19.1 Mr. C.V. Nagesh submitted that the above stated opinion furnished by P.W. 4-Dr. G.S. Bhat, Professor of Obstetrics and Gynecology in KIMS Hospital, who treated P.W. 1 in the first instance, sufficiently explodes the whole case of P.W. 1-complainant against the accused for the alleged offence of causing miscarriage punishable under Section 313 of the IPC and that the learned Magistrate has overlooked this significant material from his consideration and thus committed a grave error which vitiates his impugned order. Further, taking the Court through the definition of the offence of "causing miscarriage" contained in Section 312 of the IPC as also the penal provision under Section 313 of the IPC, Mr. Nagesh contended that the basic ingredients of the offence punishable under Section 313 is that the "miscarriage" must be that of a "child" in the woman's womb. Elaborating his point of contention and referring to the meaning of the child in the dictionary, it was submitted that, it means an "alive child". In other words, he submitted that the foetus from the womb of a woman that gets expelled must be of an "alive child" and not a "dead foetus". He argued that in view of the said damaging medical evidence of P.W. 4, there was no justification, whatever, for the learned Magistrate to hold that the complainant's material provided sufficient ground to issue process against accused.

19.2 Drawing support for this submission, reliance was placed by him on a Full Bench decision of the Kerala High Court in Moideenkutty Haji and Ors. v. Kunhikoya and Ors., 1987 Cri. L.J. 1106 (Ker.). In that case, two criminal matters were referred to the Full Bench to resolve the question whether it is mandatory that a Magistrate, before issuing process to the accused on a complaint disclosing an offence, which is exclusively triable by a Court of Session, shall call upon the complainant to produce all his witnesses and examine them on oath. On discussion of the relevant provisions of Cr. P.C., the question was answered in the affirmative by the Full Bench. In this case, it is not a relevant point for our purpose.

19.3 However, in one of the said two criminal cases, the impugned order of the learned Magistrate before the High Court was the order issuing process against accused therein for the offence punishable under Section 313 of the Cr. P.C. The allegation was that the accused therein simply had taken a pregnant woman of his acquaintance to the doctor to cause abortion. There was no case that it was done without her consent. Therefore, the Court held that the prosecution material did not make out a prima facie case of an offence under Section 313 of the Cr. P.C. On facts, it is obvious that the case in Moideenkutty Haji, supra, is distinguishable from the one in hand. Nonetheless, the case of Moideenkutty Haji, supra was cited for petitioner to highlight the observation of Kerala High Court at paragraph 6, which is as follows:

"6. A Magistrate can take cognizance of an offence on the basis of a complaint only if the allegations in the complaint, taken as a whole, will disclose the offence. . . . In a case where the offence is exclusively triable by the Court of Session the responsibility is still greater because issue of process on the opinion that there is sufficient ground for proceeding means that the Magistrate has no other alternative except to commit the accused for trial. To place an accused for trial before the Court of Session on a complaint which discloses no offence, much less an offence exclusively triable by that Court, will lead to miscarriage of justice. . . .".

(emphasis supplied)

20. Learned Senior Counsel Mr. B.R. Nanjundaiah representing the respondent, countering the argument of Mr. C.V. Nagesh, maintained that the above stated opinion furnished by P.W. 4 in Ex. P. 35 cannot be taken as a gospel truth at the present stage of the proceeding for the simple reason that it contradicts with the substantive testimony of P.W. 1 and other documentary material on record which in course of trial would be entitled to acceptance as substantive evidence. It is submitted that the said opinion of P.W. 4 cannot be blindly accepted for another reason also. That reason is, he has not furnished any reason in support of his opinion. Further, Mr. B.R. Nanjundaiah invited the Court's attention to Ex. P. 30, dated 10-1-1997 of P.W. 4-Dr. B.S. Bhat himself addressed to the C.M.O. of KIMS Hospital requesting him to issue medical certificate to P.W. 1, wherein it is stated:

"Dear Doctor, Kindly issue medical certificate to Mrs. Mary, W/o A. Abenizer, who abortioned and was admitted on 10-12-1996. Abortion could be due to assault".

(emphasis supplied) This medical document of P.W. 4 was much earlier to Ex. P. 35, dated 28-2-1997. He has thus apparently contradicted himself in regard to his opinion about the cause for miscarriage. Furthermore, Ex. P. 3 is the discharge summary of KIMS Hospital, containing the details of her treatment during the first period of admission as an in-patient from 10-12-1996 to 21-12-1996. It is stated therein that P.W. 1 was brought and admitted with the history of incident as the history of amenorrhoea 6 months having aborted products of conception yesterday following an assault on the abdomen at 6.30 a.m. by the patient's husband.

20.1 In his sworn statement before the learned Magistrate, P.W. 4 has stated that when P.W. 1 v/as brought and admitted in the hospital on 10-12-1996, she was subjected to ultrasound scanning which showed some products inside the uterus and that was evacuated and abortion was completed. When she was admitted next time on 3-1-1997, she was diagnosed to have some pelvic infection and was treated for the same. Ex. P. 5, medical certificate was issued by him. In Ex. P. 5, it is stated that P.W. 1 was admitted with "Incomplete abortion with sepsis and evacuation done and abortion completed". P.W. 4 has also stated that the expelled foetus of P.W. 1 was brought with her on 10-12-1996 and the same was preserved in the hospital. Further, he states that "I am not aware of the farther things". The sworn statements of P.Ws. 7 and 8 sufficiently corroborate P.W. 1's statement that as at the time of incident, her pregnancy was six months old and her foetus was sound and healthy. P.W. 15-Dr. Gayathri, who was the Clinical Pathologist in Central Lab, KIMS Hospital, has stated that the expelled foetus that was brought by P.W. 1 to the hospital was received by the technical staff of the lab in December 1996 and was examined by Dr. Krishna Murthy. P.W. 16-Dr. Jagathi Devi, who was working as Gynecologist in Mallya Hospital, Bangalore, was examined to furnish her opinion on the basis of the entries contained in the relevant medical record of the treatment of P.W. 1 produced at Exs. P. 3 to P. 8 and P. 30. As indicated: Ex. P. 3 is the discharge summary for treatment of P.W. 1 as an in-patient in KIMS Hospital in the first instance from 10-12-1996 to 21-12-1996, and Ex. P. 4 is the discharge summary for her second round of treatment. Ex. P. 6 is the wound certificate of KIMS Hospital in respect of P.W. 1's treatment. It contains the history of incident as due to assault by P.W. 1's husband on 9-12-1996 at 6.30 a.m. and that: "Husband hit over her abdomen and patient aborted around 8.30 p.m. at her residence. Patient got admitted to KIMS Hospital for above complaints last month. Now complaining of pain and acute bleeding per vagina". Ex. P. 7 is the "Obstetrics Ultrasound Report" of the KIMS Hospital in respect of P.W. 1. Ex. P. 8 is another such report of that hospital. P.W. 16, on going through Exs. P. 3 to P. 8 and P. 30, has given her opinion. She has stated that: "I am of the opinion that kicking or assault on the stomach of the said Mary might have caused the miscarriage".

21. Mr. B.R. Nanjundaiah, therefore, submitted that considering the character of the aforestated relevant material placed on record by P.W. 1, no verdict could be pronounced that the opinion of P.W. 4 given in Ex. P. 35 is worthy of belief and was entitled to be acted upon by the learned Magistrate holding that the rest of the aforestated material on the point was liable to be rejected outright in the face of Ex. P. 35. Furthermore, he justifiably argued that such an exercise on the part of the Magistrate would amount to assessment of evidence on record with reference to certain omissions or discrepancies in the material, which was not permissible insofar as the impugned order was concerned. Reliance was placed by him in support of this submission on the decision of Supreme Court in J.P. Sharma v. Vinod Kumar Jain, where it is observed:

"43. The question at this stage is not whether there was any truth in the allegations made but the question is whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise on the allegation is not a ground on the basis of which the complaint can be quashed".

Further at paragraph 51, Supreme Court observed:

"51. . . Taking all the allegations in the complaint to be true, without adding or subtracting anything, at this stage it cannot be said that no prima facie case for trial had been made out. That is the limit of the power to be exercised by the High Court under Section 482 of the Code of Criminal Procedure. . .".

Again at paragraph 52, Supreme Court reiterated:

"52. We are not concerned with the truth or otherwise of the allegations made in the complaint, that would be investigated at the time of the trial.. .".

22. Apart from above, as regards the legal import of the meaning of "miscarriage" occurring in Sections 312 and 313 of the IPC, Mr. B.R. Nanjundaiah invited the Court's attention to a relevant passage from Modi's Medical Jurisprudence quoted with approval by a Division Bench of this Court at paragraph 6 of its judgment In re Malayara Seethu, AIR 1955 Mys. 27. The same is reproduced below:

"(6). . .

In Modi's Medical Jurisprudence at page 325 it is stated:

"Legally, miscarriage means the premature expulsion of the product of conception, an ovum or a foetus, from the uterus, at any period before the full term is reached. Medically, three distinct terms, viz., abortion, miscarriage and premature labour, are used to denote the expulsion of a foetus at different stages of gestation. Thus, the term, abortion, is used only when an ovum is expelled within the first three months of pregnancy, before the placenta is formed. Miscarriage is used when a foetus is expelled from the fourth to the seventh month of gestation, before it is viable, while premature labour is the delivery of a viable child possibly capable of being reared, before it has become fully mature". ....".

Then, this Hon'ble Court, adverting to the fact of that case, further proceeded to observe:

"(6). . . .

At page 303 it is stated that children born at or after 210 days or 7 calendar months of uterine life are viable, i.e., are born alive and are capable of being reared. The child in this case was beyond 7 months, so that medically this is a case of premature labour and not of miscarriage...".

23. Therefore, having bestowed my careful consideration on the entire aforestated material of the complainant's case brought on record before the learned Magistrate and also the rival contentions put forward by both sides, I find that the contentions canvassed by Mr. C.V. Nagesh assailing the impugned order, particularly concerning the offence under Section 313 of the Cr. P.C., is legally untenable. More than sufficient material is brought on record by P.W. 1 who has testified in unequivocal terms that on the date and time stated, she was assaulted and kicked on her abdomen by the accused as a result of which her six months aged sound and healthy foetus was expelled later in the night of the day of incident, for which bodily harm she was treated at KIMS Hospital. As regards the actual condition of her foetus at the time of incident, as rightly submitted by Mr. B.R. Nanjundaiah, P.W. 1, being the mother of the child, is the most competent and best witness to speak to this fact. At the present stage, her testimony overrides the medical opinion to the contrary furnished by P.W. 4 at Ex. P. 35, and that too contradicting himself as regards the opinion given in Exs. P. 3 and P. 30 and the entries contained in Exs. P. 4 to P. 8. However, in the light of the rest of the evidence, what value could be attached to the opinion of P.W. 4 in Ex. P. 35 is a matter to be decided at the trial and not at the stage of issuance of process to the accused under Section 204 of the Cr. P.C.

24. Going by the complaint allegations and the sworn statement of P.W. 1 and all her other witnesses, P.Ws. 2 to 16, it could be stated with all certainty that this material makes out a very clear prima facie case of the offence under Section 313 of the IPC against accused and, therefore, no fault could be found with the impugned order of the learned Magistrate in this regard. The decision of Supreme Court in Rakesh Ranjan Gupta v. State of Uttar Pradesh and Anr., , pressed into service by Mr. C.V. Nagesh, where the charge framed under Section 304-A of the IPC against the accused therein, was a doctor by profession, on the allegation of he having acted negligently in treatment of a patient, cited questioning the impugned order herein does not bear any relevance to the instant case regard being had to the facts and circumstances thereof.

25. Mr. C.V. Nagesh further canvassed the argument that the prosecution material does not make out the case for the other two alleged offences under Sections 448 and 506 of the IPC in respect of which also process had been issued against accused by the learned Magistrate. It was his contention that P.W. 1 and the accused being husband and wife and the latter having made arrangement for residence of the former in the rented house of P.W. 5, the visit of accused to his P.W. 1-wife in that house at the time of alleged incident cannot be stated as amounting to criminal trespass so as to make that act of his punishable under Section 448 of the IPC. Support for this submission was sought to be drawn by him by the decision of this Court in Tulasidaran's case, supra. In that case, the accused was put up for trial for the offences under Sections 307 and 448 of the IPC. The allegation against him was that at the stated date and time, he attached his mother with a knife in her house as a result of which she sustained injuries. Since at the trial, the accused's sister examined as a prosecution witness came out with entirely different version of the incident, the Trial Court acquitted him holding that he acted in self-defence, as the injuries sustained by him in the incident also remained unexplained by the prosecution. I have gone through the judgment of this Court in that case of Tulasidaran, In no way it is helpful to the petitioner's case.

26. Similarly, proposing to rely on a decision of the Single Judge of Calcutta High Court in the case of Lakshmi Pat Manot v. State, 2000(4) All India Cri. L.R. 479 (Cal.) and of Delhi High Court in the case of Amitabh Adhar v. NCT, Delhi, 2001(2) All India Cri. L.R. 23 (Del.) Mr. C.V. Nagesh attempted to assail the validity of the order impugned as regards issuance of process for the offence under Section 506 of the IPC. The nature of the disputes between the parties in both those cases as also the particular facts thereof do not warrant applicability of the observations made therein to test the validity or otherwise of the order impugned herein.

27. Mr. B.R. Nanjundaiah, repelling the contention of Mr. C.V. Nagesh, submitted that all the complaint allegations read with the whole sworn statement of P.W. 1 amply bear it out that the complainant's case projected thereby substantially make out the essential ingredients of all the offences alleged against accused. He further submitted that it is also not the law that every minute detail of all the ingredients of the offence be necessarily stated in the complaint. If the gist of the offence is gathered from the allegations, then it would be sufficient compliance with the requirement of law to hold existence of sufficient ground to issue process against accused for the same. He drew support for this proposition from the law laid down by Supreme Court in the case of Rajesh Bajaj v. State (NCT of Delhi) and Ors., . In that case, dealing with the power of the High Court under Section 482 of the Cr. P.C. to quash the FIR against accused for the offence under Sections 420, 417 and 415 of the IPC, at paragraph 9 of its judgment, Supreme Court has elicited the law thus:

"9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. . . Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In the case of Bhajan Lal, supra, this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder:

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice" ".

When this legal test applied to the complaint allegations and the statement of P.W. 1, and also the other material on record placed in support of the complaint allegations, I find that the objections raised by Mr. C.V. Nagesh against the same that they do not make out all ingredients of the offences alleged against the accused and, therefore, the impugned order cannot be sustained, does not hold much water.

28. Another ground of objection raised by Mr. C.V. Nagesh against the impugned order was that when, after full investigation of the case in the said Crime No. 8 of 1998 was conducted by the police and as a result when 'B' report was submitted to the learned Magistrate, he had no good reason to reject that 'B' report and accept P.W. 1-complainant's case. I find this objection also without legal force. In fact, at paragraph 7 of the impugned order, a distinct material point as point No. 2: "Whether the 'B' report filed by police is liable to be accepted?" was formulated by the learned Magistrate for his consideration. There were the sworn statements of P.W. 13-Huchamma, the woman Police Sub-Inspector of Sheshadripuram Police Station, P.W. 14-K.P. Bheemaiah, Police Inspector of the said Police Station bearing on this point. At paragraphs 19, 20 and 27 to 29, the learned Magistrate has considered and discussed relevant material appearing on point No. 2 and has justly arrived at his conclusion that in view of the overwhelming positive material brought on record in support of the complaint allegations, 'B' report is not entitled to acceptance. I have gone through this portion of his order also. It was P.W. 13, who had registered the crime and submitted 'B' report. She plainly stated before the learned Magistrate that she simply did so at the behest of P.W. 14, her superior police officer. In the peculiar facts and circumstances of the case, the learned Magistrate is perfectly justified in rejecting the said 'B' report.

29. The entire P.W. 1's case stated in her complaint and the various circumstances which led to the alleged incident of accused assaulting and kicking her on her abdomen resulting in expulsion of her six months old foetus, together with the sworn statements of her other witnesses and whole of the documentary material taken at its face value undoubtedly go to establish the clear prima facie case for the alleged offence against accused, thereby, as rightly observed by the learned Magistrate in his impugned order, providing "sufficient ground" to issue process against him for further legal proceeding. Although the relationship between the accused and P.W. 1 may be that of husband and wife and that P.W. 5's house might have been taken by the accused for residence of P.W. 1, but the facts made out by the said material on record clearly suggest that the accused had been nurturing hostile intention against P.W. 1 and was waiting for opportunity to get her pregnancy terminated by fair or foul means, he having done so on two or three earlier occasions; and that much bad blood between the parties had already developed as at the time of incident sufficiently motivating the accused to gain entry into the house of P.W. 1 with criminal intent to achieve his objective by kicking and assaulting her. These facts, at the present stage, clearly bring the alleged acts of the accused within the purview of the offences under Sections 313, 448 and 506 of the IPC. Evidently, it is a matter of record, that complainant's case against accused cannot be held as hit by any of the aforequoted tests laid down by Supreme Court in Bhajan Lal's case, supra.

30. Therefore, for all the reasons stated above, I find that the learned Magistrate is legally correct in arriving at his conclusions and passing the impugned order. The petition is totally devoid of merit and is liable to be dismissed.

31. Hence, for the reasons aforesaid, the petition is dismissed.

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