Karnataka High Court
Lalita And Anr vs State Of Karnataka And Anr on 23 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
DATED THIS THE 23RD DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201314/2018
BETWEEN:
1. LALITA
W/O SUBHASH NAWNEKAR
AGE: 55 YEARS
OCC: HOUSEHOLD
2. SMITA W/O GIRISH
AGE: 35 YEARS
OCC: GOVT. SERVANT
BOTH R/O H.NO.244
VIDHYA NAGAR
KALABURAGI-585103
... PETITIONERS
(BY SRI SANJAY A. PATIL, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH POLICE
WOMEN POLICE STATION
KALABURAGI
2
DIST. KALABURAGI-585102
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI
2. SHIVAMMA @ SHIVANI
W/O SAIPRASAD @ SACHIN
AGE: 38 YEARS
OCC: GOVT. SERVANT
R/O PLOT NO.18, SHANTI NAGAR
SAI LAYOUT, SHANTI NAGAR
KALABURAGI
DIST. KALABURAGI - 585103
... RESPONDENTS
(BY SRI SHARANABASAPPA M. PATIL, HCGP FOR R1;
SRI G.B.YADAV, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CRIMINAL PROCEDURE CODE, PRAYING TO QUASH
THE IMPUGNED ORDER DATED 16.10.2018 PASSED BY III-
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
KALABURAGI, IN CRL.R.P.NO.373/2017 ON ITS FILE AND
THEREBY PLEASED TO CONFIRM AND UPHOLD THE ORDER
DATED 02.12.2017 PASSED BY II-ADDITIONAL CIVIL
JUDGE AND JMFC, KALABURAGI, IN C.C.NO.2984/2012 ON
ITS FILE.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.12.2021, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the impugned order dated 16.10.2018 passed by III-Additional District and Sessions Judge, Kalaburagi, in Criminal Revision Petition No.373/2017 and prayed this Court to confirm and uphold the order dated 02.12.2017 passed by II-Additional Civil Judge and JMFC, Kalaburagi, in C.C.No.2984/2012 and pass such other orders or directions as deemed fit in the facts and circumstances of the case.
2. Factual matrix of the case is that on 15.02.2012 the complainant/respondent No.2 lodged complaint before respondent No.1/Police stating that she was given in marriage to Saiprasad/accused No.1 on 13.05.2009 and at the time of marriage, cash of Rs.2,00,000/- and eleven tholas of gold was given to accused No.1. When respondent No.2 started to reside in matrimonial home along with accused No.1, accused No.1 started harassing her and forcing her to give her salary to 4 him. As such, respondent No.2 being unable to tolerate the harassment, left her matrimonial house. It is also alleged in the complaint that since respondent No.2 was working at Afzalpur, every day she used to travel in public bus from Kalaburagi to Afzalpur. On 14.02.2012 at about 8.30 a.m., when respondent No.2 was at Central Bus Stand at Kalaburagi, all the accused i.e., accused Nos.1 to 4 came to the bus stand, assaulted her with hands, scolded her in filthy language and told her to bring Rs.10,00,000/- as dowry and threatened that they would take away her life if she does not bring money. Hence, the case is registered in Crime No.13/2012. The police have investigated the matter and filed chargesheet and deleted the name of the present petitioners. Thereafter, the trial was commenced and the complainant was examined and she was also partly cross-examined. Thereafter, the prosecution has filed an application under Section 319 of Cr.P.C., and the same was rejected. Being aggrieved by the rejection order dated 02.12.2017, the complainant filed the revision petition in Criminal Revision Petition No.373/2017 before 5 III-Additional District and Sessions Judge, Kalaburagi. The revisional Court vide order dated 16.10.2018 allowed the revision petition and consequently allowed the application filed under Section 319 of Cr.P.C., and issued summons against accused Nos.3 and 4. Hence, the present petition is filed before this Court.
3. The main contention of the learned counsel for the petitioners is that the revisional Court has committed an error in passing the impugned order without application of facts as well as settled position of law. It is contended that at the first instance name of the petitioners are not reflected in the FIR and all the material chargesheet witnesses including the complainant herself has given statement before the respondent/Police during the course of investigation that it was only accused Nos.1 and 2 who had committed the said crime as on the alleged date of incident and the present petitioners had not accompanied accused Nos.1 and 2 to the bus stand. Hence, the respondent/police after recording the statement of 6 material chargesheet witnesses found that both the petitioners had not participated in the alleged crime. Moreover, petitioner No.2 has given birth to a baby about two months prior to the alleged date of incident. Petitioner No.1 being old lady suffering from old age ailments had no chance/possibility to participate in the incident which is alleged to have taken place on 14.02.2012 and hence, the petitioners were dropped while filing the chargesheet. The learned Sessions Judge without appreciating the facts on hand allowed the revision petition and failed to take note of the order passed by the learned Magistrate who categorically given reasons while rejecting the application filed by the prosecution. The learned counsel also submitted that under Section 319 of Cr.P.C., the Court cannot issue summons in a routine manner, as summoning the persons who are not chargesheeted, is a serious issue. At the earliest point of time, the complainant herself has given further statement that it is only accused Nos.1 and 2 who had committed offence and inspite of this, the revisional Court committed an error in invoking Section 7 319 of Cr.P.C., without assigning proper and cogent reasons. The learned counsel also submitted that application which was filed by the prosecution has been rejected by the Trial Court and the complainant has not filed any such application. When the complainant has not filed the said application, she cannot file any revision. The complainant has no locus to file a revision petition against the petitioners herein. The State only had filed the application invoking Section 319 of Cr.P.C., before the trial Court and hence, it requires interference of this Court.
The learned counsel in support of his arguments has relied upon the judgment of the Hon'ble Apex Court in the case of Labhuji Amratji Thakor and others vs. State of Gujarat and another reported in [2019] ACR 13 wherein the Hon'ble Apex Court has discussed with regard to Section 319 of Cr.P.C. The learned counsel brought to the notice of the Court paragraphs-8, 9, 11 and 12 wherein the Hon'ble Apex Court relying upon its judgment in the case of Hardeep Singh vs. State of Punjab and 8 others reported in (2014)3 SCC 92 comes to the conclusion that mere fact that the Court has power under Section 319 of Cr.P.C., to proceed against any person who is not named in the FIR or in the chargesheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 of Cr.P.C. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh's case has to apply the test, i.e., more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. The said test is not adverted to by the revisional Court.
4. Per contra, the learned counsel for respondent No.2/complainant submitted that the learned Trial Judge did not consider the factual aspects of the case while rejecting the application and even failed to consider the 9 allegations made in the FIR. The revisional Court while passing the order taken note of the evidence given by the complainant and extracted the same in the order at paragraphs-8 and 9 since two witnesses were examined before the Trial Court. Having considered and taken note of assault made by the family members and also taken note of the depositions wherein specifically deposed regarding demand of dowry of Rs.10,00,000/- from her parents and the prosecution having taken note of the evidence of PWs.1 and 2 has rightly filed an application under Section 319 of Cr.P.C., the revisional Court passed the order allowing the revision petition and the application filed under Section 319 of Cr.P.C. Hence, it does not require any interference of this Court.
The learned counsel in support of his arguments has relied upon the judgment of the Hon'ble Apex Court in the case of Manjeet Singh vs. State of Haryana and Ors., passed in Criminal Appeal No.875/2021 disposed of on 24.08.2021 wherein the complainant being aggrieved 10 by the order passed by the Trial Court as well as High Court had approached the Hon'ble Apex Court and the Hon'ble Apex Court allowed the petition and having considered factual aspects of the case invoked Section 319 of Cr.P.C., and comes to the conclusion that the orders passed by the Trial Court as well as High Court are unsustainable and deserve to be quashed and set aside the order and allowed summoning the accused persons. In the said case also, the complainant only approached the Hon'ble Apex Court and hence, the very contention that the complainant has no right to approach the revisional Court cannot be accepted.
5. The learned High Court Government Pleader appearing for respondent No.1/State also reiterates the grounds urged by the learned counsel for respondent No.2/complainant that aggrieved victim had approached the revisional Court and the revisional Court considered the material on record and hence, it does not require interference of this Court.
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6. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, the questions that arise before the Court are, i. Whether the revision petition is maintainable by the complainant even though no application was filed before the Trial Court by the complainant invoking Section 319 of Cr.P.C.?
ii. Whether the revisional Court has
committed an error in allowing the
revision petition in summoning the
petitioners as additional accused?
Point No.1:
7. Having heard the learned counsel appearing for the respective parties, it is not in dispute that when the material emerges during the course of examination of witnesses by the prosecution, the Court can summon additional accused invoking Section 319 of Cr.P.C. It is also settled law in view of the judgment of the Hon'ble 12 Apex Court in Hardeep singh's case supra as well as judgment of the Hon'ble Apex Court in the case of Rajesh and Ors., vs. State of Haryana reported in 2019 SAR (Criminal) 714 wherein it is held that summoning a person as additional accused, the Court can summon a person as additional accused even on basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till cross- examination of such a witness. Further, observed that when the appellants were named in the FIR but were not named in chargesheet and nothing on record to show that complainant was given an opportunity to submit the protest application against non filing of the charge sheet against the appellants. Depositions of PW.1 and PW.2 before Court attribute specific role of appellants in the commission of the offence and observed that no error in summoning the appellants to face trial as additional accused on basis of statements of witnesses. 13
8. Hence, it is clear that additional accused can be summoned who being the accused in the FIR but was dropped in the chargesheet if the complainant witnesses depose before the Court. Now the question before this Court is whether the complainant can approach the revisional jurisdiction when application filed by the prosecution under Section 319 of Cr.P.C., is dismissed by the Trial Court. The Hon'ble Apex Court in the case of Manjeet Singh's case supra in detail discussed with regard to an application filed by the counter part invoking Section 319 of Cr.P.C. The main contention of the learned counsel for the petitioner is that in the said case the complainant had filed an application under Section 319 of Cr.P.C., before the Trial Court and the same was rejected and hence, approached the High Court and the High Court also confirmed the same. The complainant himself had approached the Hon'ble Apex Court and challenged the order. In the case on hand, no doubt, application under Section 319 of Cr.P.C., is filed by the prosecution i.e., by the State and not by the complainant. Admittedly, the 14 revision petitioner before the trial Court is defacto complainant. Hence, it is appropriate to consider the meaning of the 'victim' which is defined under Section 2(wa) of Cr.P.C., the 'victim' means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression 'victim' includes his or her guardian or legal heir. The definition is elaborate within the expression victim includes his or her guardian or legal heir.
9. Now this Court would like to refer the revisional powers conferred on the party to approach the Court. Section 397 of Cr.P.C., reads as under:
"397. Calling for records to exercise powers of revision.-
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any 15 finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section
398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
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10. Having read the provision of revision, it is clear that the Court can summon the records for satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended. Having read the provision of Section 397 of Cr.P.C., there is no bar to entertain the revision petition and the Court only has to examine as to the legality, correctness and propriety of any finding or order passed by the Trial Court.
11. Now this Court would like to refer to the appeal provision under Section 372 of Cr.P.C., which reads as under:
"372. No appeal to lie unless otherwise provided. - No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:17
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]"
12. Having read the proviso to Section 372 of Cr.P.C., when an amendment is made in the year 2009, a provision is made that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction. In view of the amendment, a provision is made even to the victim to question the acquittal and also inadequate compensation.
13. This Court would like to rely upon Section 439 of Cr.P.C., wherein also the provision is made to the victim 18 and the victim can approach the High Court or Court of Sessions for cancellation of bail and for arrest of accused and commit him to custody.
14. Having considered the relevant proviso of Section 372 of Cr.P.C., as well as Section 439 of Cr.P.C., and when the right is given to the victim to approach the Court, very argument of the learned counsel for the petitioners that the complainant cannot invoke revisional jurisdiction to challenge the order passed by the learned Magistrate cannot be accepted. Even if the application filed by the prosecution is rejected, the complainant can approach the revisional Court challenging the order of legality and correctness of the finding of the Trial Court since the complainant is a defacto complainant and the State protects the rights of a victim. It is the obligation on the State to protect the rights of the victim and ultimate sufferer is the complainant if any order has been passed against the interest of the victim. Hence, this Court has taken note of the very vast meaning and definition of 19 'Victim' defined under Section 2(wa) of Cr.P.C. When appeal provision is made under Section 372 of Cr.P.C., giving right in favour of the victim, and also when a provision is made that even the complainant can seek for cancellation of bail invoking Section 439(2) of Cr.P.C., the contention of the learned counsel for the petitioners that the complainant is not the applicant before the Trial Court under Section 319 of Cr.P.C., and hence, she cannot file revision petition cannot be accepted. As I have already pointed out, the Court has to take note of the meaning of the victim as well as relevant provisions made to protect the interest of the victim. There is no bar under Section 397 of Cr.P.C., that the victim cannot approach the revisional Court. The application under Section 319 of Cr.P.C., is filed by the prosecution when the complainant was examined before the Court and when the evidence emerged against the petitioners herein. On rejection of the application filed under Section 319 of Cr.P.C., ultimate sufferer is the victim even though the application is filed by the State and hence, very contention of the learned 20 counsel for the petitioners that revision is not maintainable cannot be accepted. Hence, I answer point No.1 in the affirmative.
Point No.2:
15. I have considered the factual aspects of the case. Based on the complaint dated 15.02.2012 FIR was registered wherein husband is arrayed as accused No.1 and it is also mentioned 'with three persons'. On perusal of the complaint, in second page of the complaint specific allegations are made against the petitioners stating that on 14.02.2012 at about 8.30 a.m., when she was in the bus stand to go to Afzalpur to attend duty her husband, father-
in-law, mother-in-law and sister-in-law came to the bus stand and abused her in filthy language and assaulted her and if really not in need of divorce, she should get an amount of Rs.10,00,000/- and also threatened her life. But it is the contention of the learned counsel for the petitioners that the very complainant has made further statement before the police stating that by mistake she 21 mentioned the name of mother-in-law as well as sister-in- law. The said further statement is disputed by the complainant before the Court stating that she has not given any such further statement before the Investigating Officer. The trial Court has recorded the evidence of PWs.1 and 2 wherein P.W.1 categorically stated about the allegation made in the complaint and also in page No.5 she has categorically stated that she has not given any further statement before the police and also stated that her mother-in-law and sister-in-law are not before the Court and requested to add those two accused persons. The prosecution has also examined PW.2. Both PWs.1 and 2 have deposed regarding the role of these petitioners and particularly about the incident which has been narrated in the complaint that at around 8.30 a.m., on 14.02.2012 all the accused came, abused her in filthy language and subjected her for assault and caused life threat. On perusal of the order of the revisional Court also, in paragraphs-8 and 9 the revisional Court extracted the evidence of PWs.1 and 2 and taken note of the contents of 22 the complaint as well as evidence of PWs.1 and 2 and allowed the application under Section 319 of Cr.P.C. Having perused the order of the learned Magistrate, while rejecting the application the learned Magistrate has observed that these petitioners have been arrayed as accused Nos.3 and 4 in the FIR, but the Investigating Officer after investigation has filed chargesheet stating that at the time of alleged incident accused Nos.3 and 4 were not present as per the further statement and hence, the Investigating Officer had left out them in the chargesheet as no material to file chargesheet against them. The learned Magistrate has also observed that there is no probable reason to believe that these petitioners demanded any dowry and harassed the complainant and if really accused Nos.3 and 4 had involved in the alleged offences certainly the complainant could have filed objections at the initial stage itself. The reasoning given by the Trial Court is not sustainable for the reason that though the Investigating Officer has stated that the complainant appeared and given further statement that 23 accused Nos.3 and 4 were not there at the time of alleged incident, the said further statement of the complainant is disputed by the complainant and reiterated before the Court when she was examined before the Trial Court that she has not given such statement and the trial Court not discussed about the same while rejecting the application filed under Section 319 of Cr.P.C. The revisional Court reconsidered the material and extracted the evidence of PWs.1 and 2 and comes to the conclusion that specific allegations are made against the petitioners that these petitioners accompanied accused Nos.1 and 2 and assaulted the complainant and the said allegations are found in the FIR as well as in the evidence of PWs.1 and 2. When such being the facts and circumstances of the case and when such being the material available on record, I do not find any error committed by the revisional Court in allowing the application filed under Section 319 of Cr.P.C. The revisional Court has given reasons for setting aside the order of the learned Trial Judge and considering the material on record only allowed the application. This Court 24 is also of the opinion that there are material to proceed against the petitioners. Hence, I do not find any force in the contention of the learned counsel for the petitioners that there is no material. The judgment relied upon by the learned counsel for the petitioners in Labhuji Amratji Thakor's case supra not come to the aid of the petitioners having considered the material on record on merits. No doubt, while exercising the power under Section 319 of Cr.P.C., Court has to exercise the said power with due care and caution and not to exercise the said power in a routine course but the material available on record is clear that these petitioners abused and accompanied with accused Nos.1 and 2 and subjected for assault and the same is not only narrated in the complaint and also reiterated in the evidence of complaint as well as the witnesses. The Hon'ble Apex Court in Manjeet Singh's case held that the complainant can question the rejection of application filed under Section 319 of Cr.P.C. Hence, I answer point No.2 in the negative. 25
16. In view of the discussions made above, I pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE NB*