Karnataka High Court
Manjunatha @ Manju vs The State Of Karnataka on 4 July, 2018
Author: K.Somashekar
Bench: K. Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL REVISION PETITION NO.1349 OF 2016
BETWEEN :
1. MANJUNATHA @ MANJU
S/O NANJAPPA
AGED ABOUT 30 YEARS
R/O D.K.HALLI
BANGARAPETE TALUK
KOLAR DISTRICT - 563 114
2. NANJUNDA
S/O VENKATESHA
AGED ABOUT 32 YEARS
TAILOR
R/O NO.12, AMMAYAMMA LAYOUT
MURGESHPALYA
BANGALORE - 560 048
3. ASHWATH
S/O KRISHNAPPA
AGED ABOUT 37 YEARS
CAR DRIVER
R/O DOMMALURU
BANGALORE - 560 071
4. MUNIYAPPA
S/O CHINNSWAMY
AGED ABOUT 25 YEARS
TAXI DRIVER
R/O MUNIYAPPA LAYOUT
2
HAL, VIMANA PUR
BANGALORE - 560 017 ... PETITIONERS
(BY SRI RAHUL RAI K., ADV. FOR
SRI ARUNA SHYAM M., ADV. )
AND:
THE STATE OF KARNATAKA
THROUGH PANCHANAHALLI
POLICE STATION
CHIKKAMAGALURU
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001 ... RESPONDENT
(BY SRI K.NAGESHWARAPPA, HCGP)
THIS CRL.RP FILED UNDER SECTION 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 22.08.2016 PASSED
BY THE II ADDL. DIST. JUDGE AND MMACT, CHIKKAMAGALURU
IN S.C.NO.120/2015, THEREBY REJECTING THE APPLICATION
FILED BY THE PETITIONERS FOR DISCHARGE FOR THE
OFFENCE P/U/S 143, 147, 148, 448, 427, 504, 324, 506, 363
AND 307 R/W 149 OF IPC.
THIS CRL.RP. COMING ON FOR ADMISSION, THIS DAY THE
COURT MADE THE FOLLOWING:-
ORDER
Heard the learned counsel for the petitioners and the learned HCGP for the State at the time of admission of this petition.
3
2. This revision petition has been filed by the petitioners/accused Nos.2, 5 and 6 against the judgment and order passed by the Court below in S.C.No.120/2015 dated 22.08.2016 by rejecting the application filed under Section 227 of Cr.P.C. seeking for discharge of accused Nos.2, 5 and 6 from the alleged offences.
3. On the complaint lodged by the complainant a criminal case came to be registered by the respondent Police recording FIR in Crime No.78/2014 on 03.11.2014 alleging the offences under Sections 427, 506, 504, 143, 147, 148, 149, 448, 324 and 363 of I.P.C. In the complaint, it is stated that the complainant was residing with his family members consisting of two daughters, first daughter by name Kumari Ashwini who was studying in Government Engineering college in Ramanagara. Accused No.1 Manjunatha @ Manju being the resident of Bengaluru City is said to have forced Ashwini to have love affairs with him and compelled her to marry him 4 by extending life threat to her. The said fact has been narrated by her before the complainant. The same has been stated by the complainant- Manjunatha S/o Narendrappa in his complaint. Based on the said complaint, a case came to be registered and then the Investigating Officer who took up the investigation filed the charge sheet and in the charge sheet, an offence under Section 149 of I.P.C also came to be initiated relating to the case in Crime No.78/2014.
4. The allegations made in the complaint are that the accused persons were strangers to C.W.1 and C.W.2 and they had nothing to do with them and there was no ill will or intention to commit the murder which has been narrated in the complaint. But Section 307 of I.P.C. has been incorporated on 04.11.2014. The said contention was taken by the accused and filed application under Section 227 of Cr.P.C. for seeking discharge from the alleged offences.
5. Investigating Officer has laid down charge sheet against the accused persons, wherein it reveals that on 5 03.11.2014 at 9.00.am. of Panchana halli village, C.W.1 Manjunath and C.W.2 Shashikala are residing in their house by closing the door at that time, accused No.1 Manjunatha @ Manju and other accused persons trespassed into their house with unlawfull assembly with a common intention of committing the offence. Accused No.1 who has abducted C.W.2, the wife of the complainant made an attempt to take away the life of the injured by using deadly weapon by assaulting on the vital parts, on the head and other parts of the body i.e. on her hand and legs. C.W.1-Manjunath came forward to rescue C.W.2 Shashikala in the mean while, A-4 Nanjunda, A-5 Ashwath S. and A-6 Muniyappan who were also holding deadly weapon assaulted Manjunath with a long on his right leg and also on his left palm and tried to take away the life of the C.W.-1 -Manjunatha, as a result of which he sustained bleeding injuries. Accused No.1 Manjunatha @ Manju asked about C.W.1- Manjunath's daughter's whereabouts and if he did not disclose his daughter's whereabouts he would not spare him and his family members 6 and thus extended life threat to them. A.1-Manjunath @ Manju; A-4 Nanjunda; A-5 Ashwath and A-6 Muniyappan have all participated in the commission of the offence at the time of the incident which has been narrated in the complaint and also come in the charge sheet laid against the accused persons. C.W.-2 Shashikala said to have witnessed the incident have been forcibly abducted in a motor vehicle by the accused persons.
6. Investigating Officer held the charge sheet and conducted mahazar which is included in the charge sheet which reveals that I.O levelled the charges against the accused persons for the alleged offences which also reflects in the FIR as well as in the charge sheet. Accused No.1 has given voluntary statement before the concern P.S.I and stated in his voluntary statement and he has admitted the commission of the offence along with other accused persons which is narrated during the course of investigation. The material which was collected by Investigating Officer during 7 the course of investigation reveals it is strong prima facie case against the accused persons in commission of the offence and that the accused persons are facing the trial for the alleged offence.
7. The learned counsel for the petitioners/accused submits that the trial court has not considered the grounds as urged in the application filed by the accused Nos.1 to 4 seeking discharge and there is no overt acts against these accused persons and these grounds were not considered during the course of trial and all these grounds made for seeking for discharge of the accused persons in S.C.No.120/2015 before the Trial Court by filing an application under Section 227 of Cr.P.C. which came to be rejected by the trial Court.
8. Per contra, learned HCGP supported the order passed by the Trial court for having rejected the application filed under Section 227 of Cr.P.C. The trial court has considered all material evidence which were secured by I.O 8 during the course of investigation and who has held the charge sheet against the accused. C.W.2 Shashikala was abducted by first accused who trespassed into the house of the complainant by holding deadly weapons, a 'long' which has been revealed in the complaint and also held in the charge sheet. Seeking discharge of the accused persons by filing application under section 227 of Cr.P.C, which has been rejected by the Court below, the order needs no interference as it is found to be justifiable. Hence he submits to dismiss the Criminal revision petition.
9. Learned counsel in view of the submission made by as well as reasons assigned in the aforesaid petition states that in the Judgment in AIR 1986 SUPREME COURT 2045, R.S.NAYAK v. A.R.ANTULAY AND ANOTHER para 44 which held as under:
44. As pointed out by the Constitution Bench in the judgment to which reference has been made, the relevant sections of the Code of Criminal Procedure ('Code' for short) for the trial of a case of this type are Sections 244, 245 and 246. Section 245(1) provides:9
"If upon taking of the evidence referred to in S.244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."
while Section 246(1), on the other hand, requires:
"If when such evidence has been taken or at any previous stage of the case the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion should be adequately punished by him, he shall frame in writing a charge against the accused."
The Code contemplates discharge of the accused by the Court of Session under S.227 in case triable by it; cases instituted upon a police report are covered by S.239 and cases instituted otherwise than on police report are dealt with in S.245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under S.227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused'. Obligation to discharge the accused under S.239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under S.245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction...." It is a fact that Ss.227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, 10 the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under S.245, on the other hand, is reached only after the evidence referred to in S.244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S.245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed.
10. The Apex Court in the aforesaid Judgment discussed in detail regarding Section 227 of Cr.P.C, Section 239 as well as 245 (1) for seeking discharge. If there is no strength in the course of investigation there is need to consider, But in the instant case by filing the complaint by the complainant the case came to be registered in Crime No.78/2014 thereafter the I.O has taken up the investigation and after completion of investigation laid charge sheet against accused No.1 and other accused persons. Accused No.1 has given voluntary statement that he has trespassed into the house of the complainant along with other accused with 11 deadly weapons a long and also attempted to take away the life of the complainant who sustained grievous injuries. C.W.2 abducted by Accused No.1 Manjunatha @ Manju and the same has been revealed in the charge sheet by the I.O by recording the statement of witnesses so also conducted the mahazar in the presence of panch witnesses and all these materials recorded during the course of investigation prima facie material to register the case against the accused persons for alleged offence. Subsequently there are no reasons to interfere with the order passed by the trail court for rejecting the application filed under Section 227 of Cr.P.C, consequently, this revision petition is also hereby rejected by confirming the order passed in S.C.NO.120/2015 In view of the disposal of the main petition, I.A.No.1/16 does not survive for consideration. Accordingly stands rejected.
Sd/-
JUDGE HR