Karnataka High Court
Sri Balasubramanya vs The State Of Karnataka on 15 October, 2020
Author: K.Somashekar
Bench: K.Somashekar
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2020
BEFORE:
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION No.2078 OF 2017
BETWEEN:
1. SRI BALASUBRAMANYA
S/O.LATE M.K.THARAKANATH
AGED ABOUT 64 YEARS
2. SMT.KOUSALYA
W/O.SRI BALASUBRAMANYA
AGED ABOUT 54 YEARS
3. KUM.MEENAKSHI
D/O.SRI BALASUBRAMANYA
AGED ABOUT 24 YEARS
ALL ARE RESIDING AT #510
3RD CROSS, E & F BLOCK
RAMAKRISHNANAGAR
MYSURU CITY-570 022. ... PETITIONERS
(BY SMT.SUMA ADV., FOR SRI K.B.NAVEEN KUMAR, ADV.,)
AND:
1. THE STATE OF KARNATAKA
BY S.H.O. MAHILA POLICE STATION
MYSORE CITY
REP. BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
2
2. SMT. S. SINDHU
W/O.SRI M.B.RAKESH
AGED ABOUT 26 YEARS
R/AT NO.1, 'B' BLOCK
JYOTHINAGARA
MYSORE CITY
MYSORE-570 019 ...RESPONDENTS
(BY SRI K.NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH CHARGE SHEET FILED
BY THE RESPONDENT-SHO MAHILA POLICE STATION AT
MYSURU CITY AGAINST PETITIONER NOS.1 TO 3 IN
C.C.NO.162/2015 (CRIME NO.44/2015) BEFORE 4TH ACJ
(SR.DN.) AND JMFC COURT, JLB ROAD, MYSURU.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THROUGH VIDEO CONFERENCING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This is a petition filed by the petitioners/accused Nos.2,3 and 4 in C.C.No.162 of 2015 arose in Cr.No.44 of 2015 for the offences punishable under Sections 498(A) and 506 r/w 34 of the Indian Penal Code seeking to quash the charge-sheet filed by the Respondent-SHO Mahila Police Station at Mysuru City pending before the Court of the 4th Additional Civil Judge (Sr.Dn.) and JMFC, Mysore. 3
Though the matter is posted for admission, with the consent of the learned counsel on both sides, the matter is taken up for final disposal.
2. It transpires from the case of the prosecution relating to Cr.No.44 of 2015 that the first respondent registered a case in Cr.No.44 of 2015 based on a complaint filed by Smt.S.Sindhu for the offences punishable under Sections 498-A, 506 r/w 34 of I.P.C. Subsequent to filing of a complaint by the complainant, the crime came to be registered and thereafter, the Investigating Officer took up the case for investigation and after thorough investigation has laid the charge-sheet in C.C.No.162 of 2015. The first accused in the aforesaid case had married the complainant on 06.02.2014 as per the customs prevailing in the Society. Subsequent to her marriage, due to physical disablement of accused No.1, he was unable to lead marital obligations but tortured his wife who is a defacto complainant in all the ways by assaulting her and also demanding her to bring dowry in terms of car and other things. It is further stated 4 in the complaint that accused No.1 also misbehaved with his sister and his relationship with his sister is not like as brother and sister. The petitioner Nos.1 and 2 are the in- laws of the complainant and petitioner No.3 is the daughter of petitioner Nos.1 and 2 who arraigned as accused Nos.2, 3 and 4 respectively. It is further stated in the complaint that after harassment and torture, accused No.1 had set up a separate house at Kanakanagar, Mysuru on mortgaging his gold ring and chain for Rs.30,000/- on rental basis. At the time of opening of the house, complainant's parents had brought the chilly powder and other things, for which the accused abused and assaulted the complainant on the same night and tried to kill her, immediately she called her parents and also lodged a complaint at Kuvempunagar Police Station. The same has been reflected in the charge-sheet laid by the Investigating Officer in Cr.No.44 of 2015 relating to C.C.No.162 of 2015. 5
3. Heard the learned counsel appearing for the petitioners through video conference and so also the learned HCGP appearing for Respondent No.1/State who is physically present before the Court.
4. The learned counsel for the petitioners submits that there are no ingredients to constitute the offence against accused Nos.2 and 3 in C.C.No.162 of 2015 but on filing of a complaint by the complainant, the case has been registered in NCR No.346 of 2014, which is at Annexure - 'E', the copy of the statement of accused No.1 who is the husband of the complainant and the endorsement issued by the police were also produced before this Court by the complainant, which are at Annexures - F and G. The counsel for the petitioners contended that the police have registered the case against the accused alleging that they have assaulted the complainant and also demanding her to bring dowry from her parents house. This allegation is nothing but a set up theory to implicate these accused in 6 the alleged crime and also with an oblique motive just to harass the accused.
The second limb of the arguments is that the Hon'ble Supreme Court has rendered a decision once again in the question, when issue or process can be quashed and has laid down: "It may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed / set aside".
He submitted that in view of the above, no ingredients has been constituted to proceed with the case against the accused. But in the instant case, subsequent to filing of a complaint by the complainant, FIR is said to have been recorded and thereafter proceeded with the case for investigation but absolutely, there is no case relating to the prima-facie material against the accused for committing the aforesaid offences. He contended that the Respondent Police by colluding with the complainant had filed a false case against the accused knowing fully well that there is no mistake on the part of the accused. He prays that Section 7 482 of Cr.P.C. has to be exercised when there is no prima- facie material against the accused to constitute the offence and also to face up the trial. He contended that no materials have been secured by the Investigating Officer during the course of the investigation and there was no accusation leveled against these petitioners and therefore, the accused facing up of trial in the aforesaid case will be miscarriage of justice and abuse of process of law and hence, he prays to allow this petition.
5. On the other hand, the learned HCGP appearing for Respondent No.1-State took me through the averments made in the complaint filed by the defacto complainant alleging that her husband who has been arraigned as accused No.1 was harassing her both physically and mentally demanding her to bring dowry and other things. It is further stated that accused No.1 also misbehaved with his sister and his relationship with his sister is not like as brother and sister. The petitioner Nos.1 and 2 are the in- 8 laws of the complainant and petitioner No.3 is the daughter of petitioner Nos.1 and 2 who arraigned as accused Nos.2, 3 and 4 respectively. It is further stated in the complaint that after harassment and torture, accused No.1 had set up a separate house at Kanakanagar, Mysuru on mortgaging his gold ring and chain for Rs.30,000/- on rental basis. At the time of opening of the house, complainant's parents had brought the chilly powder and other things, for which the accused abused and assaulted the complainant on the same night and tried to kill her, immediately she called her parents and also lodged a complaint at Kuvempunagar Police Station. The same has been reflected in the charge- sheet laid by the Investigating Officer in Cr.No.44 of 2015 relating to C.C.No.162 of 2015. However, the case in C.C.No.162 of 2015 arose in Cr.No.44/2015 is pending for trial and the prosecution is required to facilitate the evidence to prove the guilt of the accused. Therefore, he seeks to dismiss the petition.
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6. It is in the context of the contentions taken by the counsel for the petitioners and so also the learned HCGP for the State in his counter arguments referring to the complaint filed by the complainant, the case in Cr.No.44 of 2015 came to be registered by recording FIR for the offences punishable under Sections 498A, 506 and 34 of I.P.C. Section 154 of Cr.P.C. states that when the case came to be registered by recording FIR, it is the duty cast upon the Investigating Agency to proceed with the matter by collecting the material evidence in order to lay the charge-sheet against the accused persons in a cognizable offence. When there is a prima-facie case disclosing commission of an offence alleged against the accused persons, it cannot be quashed merely because Section 482 of Cr.P.C. can be invoked only when there is an abuse of process of law and also miscarriage of justice. But in the instant case, the accused have not taken the recourse of filing an application under Section 239 of Cr.P.C. for seeking discharge, as there is a remedy available for them. 10 If there are no materials to constitute the offence, certainly, the Trial Court has to go through the entire materials and to pass an order on merits, in accordance with law.
However, Section 173(2) of the Cr.P.C. relates to submission of report of the Police Officer on completion of investigation. This provision empowers the Investigating Agency to complete the investigation without unnecessary delay by following all requisite criteria which have been stated in detail in the aforesaid provision. But it is necessary to state the nature of information, the offences which appear to have been committed by the accused on the basis of which the accused were apprehended and such other requisite conditions, which is specifically stated in this provision has to be maintained by the Investigating Agency, in order to lay the charge-sheet against the accused. Thus, the Investigating Officer shall collect all relevant documents on which the prosecution proposes to rely on the material facts and also the allegation made against the accused. Such report in respect of a case 11 registered against the accused to which Section 170 of the Cr.P.C. applies, shall be submitted. Subsequent to compliance of all requisite conditions in the aforesaid provision of law, the Investigating Officer shall forward the same to the concerned Judicial Magistrate along with the final report, in order to proceed against the accused.
During investigation, even the I.O. has recorded the statements of the witnesses as contemplated under Section 161 of Cr.P.C. and also cited in the charge-sheet as to whom the prosecution proposes to examine as witnesses on the part of the prosecution to prove the guilt of the accused. But in the instant case, the Investigating Agency has applied all the requirements under this provision in order to investigate and to lay the charge-sheet against the accused. Therefore, the material evidence has been collected by the I.O. during the course of investigation in order to proceed further by the concerned competent court to prove the guilt of the accused.
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Therefore, at this stage, it cannot arise in detail to distinguish the facts or otherwise to dispute the material evidence which were collected by the I.O. It is the domain vested with the prosecution to facilitate worthwhile evidence in order to prove the guilt of the accused. Therefore, it requires for refraining from dwelling in detail of the materials collected by the I.O. during the course of investigation.
But in the instant case, almost all requirements as contemplated under Section 173(2) of the Cr.P.C. have been complied with. Therefore, it does not require any detailed discussion relating to the materials collected by the I.O. and so also the contention which has been taken by the learned counsel for the petitioner for seeking the relief so as to exercise the power under Section 482 of Cr.P.C.
But under this provision of Section 482 Cr.P.C., the power has to be exercised judicially, judiciously, cautiously and sparingly. It is in respect of the scope and object of this provision. If not, certainly it would result in a 13 miscarriage of justice and abuse of process of law. It is not only for the accused, it is equally for the victim / complainant as well. Balance has to be maintained while exercising the power under Section 482 Cr.P.C. This observation is made in this petition, keeping in view the strenuous contention taken by the learned counsel for the petitioners and so also the counter made by the learned HCGP for the State.
7. In the instant case, the Investigating Officer has done thorough investigation and laid the charge-sheet in C.C.No.162/2015 arose in Cr.No.44/2015. The allegations made by the complainant in her complaint requires to be tested by the prosecution in order to prove the ingredients constitute for the alleged offence. The statements recorded by the Investigating Officer is also required to be tested in order to prove the guilt of the accused. Therefore, at this stage, it cannot be said that there are no prima-facie materials against the accused for commission of an offence. However, the inherent power of Section 482 of Cr.P.C. has 14 to be exercised only if there is any miscarriage of justice cast upon either of the parties in a criminal prosecution and also to avoid abuse of process of law but the same shall be exercised judicially, judiciously, cautiously and sparingly. But in the instant case, the complainant has suffered both mentally and physically by the accused persons as alleged. However, the accused have not taken recourse for seeking discharge as contemplated under Section 239 of Cr.P.C., to file an application. When there is such an application filed by the accused before the Trial Court, it is for the Trial Court to decide the case whether there are any prima-facie materials against accused Nos.2, 3 and 4 for the offence which leveled against them. In view of the above discussion, this Court is of the view that the petition filed by the petitioners is liable to be dismissed and hence, I proceed to pass the following:
ORDER
i) The petition filed by the petitioners/ accused Nos.2, 3 and 4 is hereby dismissed.15
ii) However, the petitioners/accused Nos.2, 3 and 4 shall be at liberty to file an application under Section 239 of Cr.P.C.
before the Trial Court for seeking discharge, and the same shall be disposed of, in accordance with law.
It is made clear that whatever the observations made in this order shall not influence the mind of the Trial Court while deciding the case on merits in accordance with law.
In view of the dismissal of the petition, I.A.No.1 of 2017 does not survive for consideration. Consequently, it stands rejected.
All contentions shall be kept open for the prosecution and the defence counsel.
Sd/-
JUDGE DH