Karnataka High Court
Manoj S/O. Devinder Pukale vs Priyanka W/O. Manoj Pukale on 21 June, 2017
Author: R.B Budihal
Bench: R.B Budihal.
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B.
CRIMINAL PETITION NO.11654/2013
BETWEEN:
MANOJ S/O. DEVINDER PUKALE
AGE: 51 YEARS, OCC: ADVOCATE,
R/O: 103A CHITGUPPI PARK,
PINTO ROAD, HUBLI-580020.
... PETITIONER
(BY SRI MANOJ D.PUKALE, PARTY IN PERSON;
SRI. SADASHIV S PATIL, ADV.)
AND
1. PRIYANKA W/O. MANOJ PUKALE
AGE: 33 YEARS,
OCC: PRIVATE SERVICE,
R/O: C/O: SHOBHA S LOLITKAR,
KRISHNA COLONY, ANDAND NAGAR,
HUBLI-580024
2. SHOBHA W/O SHASHIKANT LOLITKAR
AGE: 54 YEARS,
R/O: KRISHNA COLONY,
ANAND NAGAR,
HUBLI-580024
... RESPONDENTS
(BY SRI.S G DODAMANI, ADV.-ABSENT)
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THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO SET ASIDE THE ORDER PASSED BY
THE PRL. CIVIL JUDGE (JR.DN.) & JMFC COURT, HUBLI,
IN C.C.NO.300/2012 ON INTERIM APPLICATION UNDER
CHAPTER 25 OF CR.P.C. DATED 20.04.2013 VIDE
ANNEXURE-B AND TO SET ASIDE THE ORDER PASSED BY
THE I-ADDL. DIST. & SESSIONS JUDGE, DHARWAD,
SITTING AT HUBLI, IN CRL.R.P.NO.69/2013, DATED
13.11.2013 VIDE ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-complainant under Section 482 of Cr.P.C. praying the Court to set- aside the order dated 20.04.2013 passed by the Prl.Civil Judge (Jn.Dn.) Hubballi in C.C.No.300/2012 on the interim application filed under Chapter 25 of Cr.P.C. produced vide Annexure-B, so also, to set-aside the order passed by the I Addl. District and Sessions Judge, Dharwad, sitting at Hubbali in Crl.R.P.No.69/2013 dated 13.11.2013 vide Annexure-A and to grant the relief as prayed in the interim application under Chapter 25 of the Cr.P.C. produced vide Annexure-C. :3:
2. Petitioner herein filed the complaint as against the respondents for the alleged offence under Section 323, 504 read with Section 34 of IPC, the learned JMFC referred the case to the Police for investigation and to file the report; after completion of the investigation, Investigating Officer has filed charge sheet against both the accused/respondents herein for the alleged offence under Sections 323, 504 read with Section 34 of IPC. Then the matter was posted for framing charge; on 07.08.2007, on hearing the parties, charge for an alleged offence has been framed and read over to both the accused and they have pleaded not guilty, then it was set down for recording the evidence. The materials also show that the trial was proceeded with, witnesses were examined, then the respondents/ accused were examined under Section 313 of Cr.P.C. and when it was set down for hearing the arguments, at that moment, the petitioner herein came up with the present application filed before the trial Court praying :4: the Court that the respondents/accused may be referred to the medical examination as they were suffering from unsoundness of mind and the said report is necessary to proceed with the matter.
3. After considering the application and also hearing the parties in that regard, the learned JMFC Court rejected the said application holding that no enquiry as prayed for by the applicant/complainant in the said application is necessary.
4. Being aggrieved by the order of the learned JMFC, petitioner herein preferred the revision petition before the Sessions Court at Dharwad, the Sessions Court also after considering the merits of the case, ultimately dismissed the revision petition imposing penalty/cost of Rs.5,000/-. Therefore, being aggrieved by the orders passed by the Courts below, petitioner/complainant is before this Court challenging :5: the legality and correctness of the said orders on the grounds as mentioned in the petition.
5. Though the petitioner/complainant is represented by the learned counsel, but as the counsel for the petitioner submitted that petitioner himself will argue the matter, hence, the petitioner IS permitted to argue the maTter personally.
Learned counsel for the respondents and the respondents are absent. No representation.
6. Heard the arguments of the petitioner/complainant.
7. During the course of arguments, petitioner made the submission that both the Courts below have not at all considered the application properly and wrongly rejected the said application. It is his submission that looking to the medical records in respect of respondent No.2 herein, Doctors after :6: examining her, gave certificates that she is suffering from psychosis and inspite of such a certificate given by the Doctor, the trial court has not at all taken into consideration the said documents and wrongly interpreted the provisions of Section 328 and 329 of the Cr.P.C. held that holding of such enquiry for referring the accused persons for examination is not at all necessary in the case. Petitioner made the contention that this view taken by the trial Court is contrary to the provisions of law. He made the submission that as per Section 103, 136 and 165 of the Evidence Act, the trial Court ought to have allowed the application and ought to have referred the accused persons for examination because of their unsoundness of the mind. It is also his submission that the delay in filing such application is not because of him, though he has instructed the Assistant Public Prosecutor to file such application early, same was not done in the case. Hence, he contended that to prove his case it is necessary for the :7: petitioner/complainant to get such reports from the Medical Officer about the mental condition of respondents/accused. Hence, he submitted that the rejection of the application by the trial Court and dismissal of the revision petition by the revisional Court, both are patently illegal and they are not sustainable in law. Hence, he submitted that petition be allowed, the orders of the Courts below be set aside, the application is to be allowed giving direction to the trial Court to refer the respondents/accused for examination about their mental condition.
8. I have perused the grounds urged in the petition, order passed by the trial Court on the application, so also, the order passed by the revisional Court in the revision petition and the other materials produced in the case along with the petition.
9. Looking to the materials placed on record and from the order of the trial Court, it goes to show :8: that the case was of the year 2006-07 and in the year 2007 charges were framed. After framing the charge, number of times, the present petitioner appeared before the trial Court, inspite of that, he has not filed such application. It is further observation that petitioner has given his evidence before the Court on 06.09.2007, the petitioner's evidence was completed on 07.08.2010 i.e. about a span of nearly three years. Even during this period of three years, he has not filed such application before the Court. It is also the observation of the trial Court that when the charge was read over, the respondents/accused have given answer that they have not pleaded guilty and even during the course of evidence they have given proper instructions to their counsel to conduct the cross-examination on their behalf, which is noticed from the cross-examination of the witnesses on the prosecution side. Not only that, it is also the observation made by the learned Magistrate that when the accused were examined under Section :9: 313 of the Cr.P.C., they have given the answers properly to the questionnaire framed by the Court about incriminating circumstances pointed to both the accused persons. Hence, it is the observation of the concerned Magistrate, who conducted the trial, that the demeanor of the witness so also the accused persons is of the clear opinion that the respondents were not at all suffering from any such mental disorder or mental unsoundness and no such examination or conducting proceedings was necessary. Even the learned Magistrate refers to the provisions under Section 328 and 329 of the Cr.P.C. Looking to the wordings in both these Sections, if the Magistrate is of the opinion that the accused persons are suffering from mental unsoundness of mind, then to protect their interest, he has to take a decision for referring them to examination by the Doctor about their mental condition. So the provisions under Sections 328 and 329 of Cr.P.C. are to protect the interest of the accused persons that too with : 10 : the others and observation by either the learned Magistrate or even for the Sessions Judge conducting the proceedings. Looking to these things the petitioner herein kept mum for a prolonged period of nearly 7-8 years and when the entire proceedings are concluded, the matter was posted for arguments, petitioner herein come up with the present application. Therefore, it is a clear observation by the learned Magistrate as well as the revisional Court that it is only with an intention to drag on the proceedings and to harass the respondents/accused and not to allow the Court to conclude the proceedings at the earliest point of time, that is the reason for rejecting the application by Courts below. Looking to the orders passed by the Courts below, they are with sound reasons that the application came to be rejected. There are concurrent findings of both the Courts below consistently with the opinion that referring the accused persons for examination was not at all necessary in the case. It is also the observation of : 11 : both the Courts that they have participated in the proceedings, instructed their counsel to put cross- examination, they gave proper answer during the course of their examination. When there are such concurrent findings by the Courts below, the petitioner has not made out a case before this Court about any illegality committed by the Courts below. Hence, I do not find any valid and justifiable grounds to interfere into the well reasoned orders passed by the Courts below. There is no merit in the petition. Accordingly, the petition is rejected with a cost of Rs.10,000/-.
Sd/-
JUDGE BSR/CLK