Karnataka High Court
Smt Shobha vs S P Mahadeva Naika on 23 October, 2009
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23*" DAY OF OCTOBER, 20VO9.O.:%:%I._V
BEFORE _ 1' 4'
THE HON'BLE MR. JUSTICE JAwAD..R_A_f§AI.AM:RA..ij:
CRL.R.P. NO. 793:'.'OF:2'O'ACI9' ',> " ' A
BETWEEN: I
SMT sHOBHA,Age:27
w/O RAJU I I
R/AT D.NO.3220__..~ SRIKANTA_'MA"NTAP *
BADAVANE, 18TH.__C§ROSS A
NANJANGUD TOWN I I
MYSORE DI_STRICAT..._ C A
. PETITIONER
(BY MRf._.V.S'RIVNIVTAS,_ AD\_J.)_
AND: A
1. SAP' '
Age:_5.5 »
s/O RuT'TANAGIAI§A :1"
sIND._HUvALLI "vIL,LAGE'N GUD TALUK.
2. ,js:v.3f MAG-ALA"w/O S P MAHADEVANAIKA
" 'Age: .....
SI"!'.|V [)|,J'\i«A_LLI VILLAGE N GuD TALUK.
A 3. I'<AvAI¥éI'A,,LAAA'.C'w5/O GOVINDRAJU
D'A96?40"
SAI_GFx-QTAILORS CHAMARAJANAGAR TOWN.
4, GAAEESH SURVEYOR
_ '"'~_Age: 40
' "SIDDEGOWDA LAY OUT, NEAR WATER
TANK, NANJANGUD.
A}
[' -.3
5. LAKSHMI W/O GANESH
Age: 25
SIDDEGOWDA LAY OUT, NEAR WATER
TANK, NANJANGUD.
6. NAGARATHAN W/O RANGANAIKA
Age:48
KALALE VILLAGE,
NANJANGUD TALUK.
7. LAKSHMI W/O NAGANNA'
Age: 35
R/OSINDHUVALLI
NANJANGUD TAE.Lvi.K.,.
8. PARVATHAEVEMA W/O'JHAvAP.ANA_I}<A=.,L .
Age: 45 =
R/AT NEE.LA.KANTANAIG_AsR
BEHIND COIIRT, NAN1ANGL.iDVTOW'N.
9. MARANI--MA~.@_ MADAMMA 'W/O PUWANAIKA
SI.NDHuvA:1.L..I VILLAGE, KALALE POST
NA'f\3JANGUD~7I'A.LU.K;a_ " _
_ RESPONDENTS
>!<>k>§<
TEISIIOPETITIOONOOIS FILED u/S397 R/W 401 CR.P.C BY
'THE~ADv\,{O.r:ATE--_FOR THE PETITIONER PRAYING THAT THIS
"HO-]l\_§'BLEf*COU'RT MAY BE PLEASED TO SET ASIDE THE
ORDER DATED' 28.8.2009 PENDING ON THE FILE OF THE II-
ADD-L.S..ESSIONS JUDGEMYSORE IN CRL.RP.NO.175/2009 &
'SET ASIDE THE ORDER DATED: 28.04.2009 PASSED BY
THE PRLCIVIL JUDGE (SR.DN.) AND ].M.F.C., AT
_ '~«f"N.ANIANGuD IN C.C.NO. 6/2008 AND ALLOW THE
I' 'APPLICATION FILED BY THIS PETR., ETC,
THIS PETITION IS COMING ON FOR ORDERS THIS
'DAY THIS COURT MADE THE FOLLOWING.'-
U3
ORDER
This is Complainant's revision under Cr.P.C. directed against the order Cri.R.P. No. 175/2009 on the me, '4'i--e.ar_ne.d"elleiitdydit. Sessions Judge, Mysore, confirming tiie"0rder,,»dvat9-ed. 2009 in c. c. No. 6/2008 f_i_|e of---t_he':iea;rned Civil Judge (Jr. Dvn.) :N"a'nj'a,An'gu_d, rejiecting the application fiiedunder.Se.cti.on._VAi,S6.'{.3)':~--'i,Cr".P.C. read with Section 45 of t:he::1E*v:ide:r'-ace
2.; """ -.C:):fij';ice;':*;h'as"'-lwraésed""'eobj§ections with regard to maintai'nabi4iity efiiiie Lander Section 397 Cr.P.C. The learned coiunisevl Van_sw.e'red~'i' the office objections referring to ,_,_Sec't'i'i0ni Cr.§5';'C......_.According to him, the power of revision 'c0'n'ferre.d"o'n.ithis court by virtue of Section 403. Cr.P.C. is w'ide'andt tthijseourt can at any time cail for and examine the record..sVt{J test legality of the order. In order to consider the Iis between the parties itfiis necessary to refer the factuai aspects:
("K s 3 E 5 'J§:§;:«*"
Ix./' According to the Complainant she married one Raju four year ago and through the wedlock she gave birth to a child. However, Raju, who was living with her was..Vrniss.Ving and in this regard she had filed a missing later approached this Court in writ jurisdiction'V-unde'r~:Artic!,es"= 226 and 227 of the Constitution ofiyléndri-as.fi""hAe_ha'oeasCprgstgs writ was disposed of directing-'i'th.e petitiolriegr to'tagl<e,_Vrec'ourseV"; to other remedies open in law. l
4. Consequent"'tt}gsuch§.go;rderiV"it:h'e.,r /Mtioner lodged a private complaiynt to"'}'ur:isdict.iona.l'_ to trace her husband and Ain.'vtVh.i_sA:'rrega'rd..__She_' urged father--in--law, mother-- in--|aw andether.reietiv'e:{h'ed abducted her husband. She found' 'no. favo'urV_'fromx'the police, consequent to which she filed" 4 tsnyate compremt under Section zoo Cr.P.C. before tithe-i'__ Magistrate. The learned jurisdictional Mag*ri--.strate-in exercise of power conferred under Section 'm'----J'1..56_(3j'*----¢r.?.C. referred the complaint to the SHO of e._'}'u'risd«ictional Police Station for investigation. It was
-registered and on enquiry the Investigating Officer filed final § report to the Court against the Complainant and declined to proceed further. Petitioner filed protest memo agvairistlgthe final report seeking permission of the Court to the prosecution on her own.
5. The learned trial ':mdE;t¢"l objections so raised against*-.t:'h"e_p>finaI .__repor't: g~--r'ar'ite'd her' permission and thus thepriva-tei..c:om'pci_ainttgot. transformed into a criminal case casting the petitioner to establish the:.,c.l1:arg_e. Vresorted to procedure prescribed appears to have comm¢v.1ced'VAV.Aher:éggiide'i*ice-it fiSh~g.l..r."as also examined several witnesses their examination the case is now listed for e_xa'm"in..a'tion of the accused as postulated
- un<:i__'e1.r Se-;cti%_on 3'13..c_rl..ia.c. stage the petitioner has filed an app««i..icai:fi'on,zunder Section 156(3) Cr.P.C. read with Section J'/i5g_of't*he Indian Evidence Act requesting the trial Court to ' it the respondents 1 and 2 to Norco Analysis and Brain
-»v.i~*iapping test. On contest the said application came to be 6 rejected by the trial Court. Against which she was in revision before the learned Sessions Judge in Cr|v.VR.'.:.§5';..No. 175/2009. The learned Sessions Judge consi'd-e.rginyg".j'the grounds urged against the impugned situation found no merit and the reyf,si'r:rn"_ca_rne~.__yto,_be dismissed. Against which ther'petitio'r-..er'*Es before..t:hi's C3ou'rt."g 7- Undoubtedly' thiS..i-"pVwet_itton.A. und'e-r....steEction 397 Cr.P.C. is not compete"nta_and"»bVe rejected. The provisions of power to the High Court','"'bi'§;«tV only when High CourtV.r'calls\:fo'r:':':i§:ecords--:.V'for'-serrzamination of legality or Oth€FVlVf:ViS'€" that as it may, in order to ascertainVV'whiether'._'re.a'liy:~~'iany injustice has been caused to thC;%g_iL~1eti_t'ioner b'y'vi.rt_ue of the order impugned, I have heard ' the-lea2fned~c:ou_nsel for petitioner on merits. 8__." is not in dispute that the petitioner's first allegation is that her husband --- Raju was found missing four years and not traceable. She suspect the * «riespondents 1 and 2 are responsible for his abduction and <§;:';/ raised charge against them for the offence punishabie under Sections 143, 365, 344, 498A, 506 r/w 149 IPC and Sections 3 and 4 of Dowry Prohibition Act. IFi":4:ti'1"é'~,,:§a'id proceedings the accused have answered pleaded not guiity. Thus, it is se'e'n-~that: cejrtain aE|egations that the respondents iiithiei-~r_ intention abducted her husbaii.d"'~-R,aju..V' ?{n'oVtjhier"'~--w'ords, she"? seeks their prosecution '"tia_sis atiia.t.-dithey had committed an offence 363 EPC.
The prosecutionLEva_uncghed'_Etiy'.::Vher:.._is for tracing the person, who But her case is that they _h_AaVe._-vgpiaytredi,the__ act of abduction and therefore, are Eiabie._ to be..'pit£Artii;¢;hij§'eri't. In this fact situation the questionaggis whether the petitioner couid be permitted now to iasisiistjangce ofthe court to get the accused subject to 1 Brain Mapping test.
it Therefore, we have to examine the provisions of '3 'i~:3_*wSVeVct'i.onV'156 Cr.P.C. which deais with Mawers of the poiice Cefficer to investigate the cognizabie case in three 'circumstances enumerated, viz., (1) Any Officer-in-charge of tie» a Police Station may, without the order of a Magistrate, investigate any cognizabie cases which a courtchaving jurisdiction over the local area within the li_r;1'i't's«i'.c'_of{:is-iiichy station would havefiépower to inquire into_.or.,.trfyu'under they provisions of Chapter XIII. Sub--secti:onA.fiv(2)g p4o'st.uhiai:e's«that no proceeding of a police ofi'ic_er in" any such'v'h-ca.s_é shall at; any stage be cailed in questionélori the the case was one which such oif_i'g~.er was".hnot__erii.poweredAxunder this section to investigate... envisages the Investigating tvh-atiany empowered under Section investigation as above mentioned. I A'
10.V7.fherefore._,vthe word 'investigation' used in the pro:v3'i:sio__ns of Sectio_.n..1S6 (3) Cr.P.C. is with reference to the 'cor"npgiaicnti,'_'i't does not refer to mode of investigation. In this casethe' pétitsioner is seeking direction of the court to direct the "a.ccti_sed to subject themselves to Norco Anaiysis and V' Ex3rla"i~n Mapping test, which is not the scope of Section 156 ii 5 \s4 .
>12»
11. In fact, for clarity reference must be made to Section 202 Cr.P.C. where Magistrate upon rer:__eiving compiaint may postpone issuance of process'".t(i'i.l.".he personaiiy inspects conducts enquiry or refers.-theArnattie.r_"'to°»4 jurisdictional poiice for investiga't'io~n( and lrefpjort-.as'i'-.is' referred to under Section 156 (3)
12. Therefore, combVine:§j..,,readhing .of._th_ese:Hproiiisions' make it clear that whatis coAm'pet_:e'nt""LinderASection 156 (3) Cr.P.C. to direct investigJat'io'r.--.:on' and not the mode and ma.n.n.er--.of i§nvestIJgatio~n',-.._Theiearned counsei for petitioner"sujj:71itVs:fiA:t'ha't-.(dehors'e"'S'ection 156(3) Cr.P.C., he has a'i'rea'dy' 45 of the Evidence Act.
Therefore,V'i'th)e'i'eVVsha|I.._sbe"iiVno impediment for the Magistrate "'~.__to..':(p3"roceed.(_ furt'her--.--.--«Of course, under Section 45 of the EVi)d'enCe_"Act:'if in the circumstances of the case expert opi.n'iion isniacessary then, such opinion could be obtained.
In the instant case, petitioner is the A ":i."_Cornplainant, who had filed her Complainant on the basis that she is in possession of sufficient evidence to establish i"--2:.
rim' the charge against the accused. Despite proceedings pending before the trial Court for over two years and even after completion of evidence of witnesses the petévtiodnier did not seek direction to the accused to subject th:e':tn«'se=i_v:eVsfor Norco Anaiysés and Brain Mapping test, at stage when the accused are to 313 Cr.P.C. this application h,as4_"been'*made. V' 1 A it
14. From the grounds"Vu'r:g'Ved_VVin and the arguments advance petitioner it is quite clear and manAifest'».Vtiii'at the petitioner appearswtotoV':::§;p*ec'uia'te re_g'a'rding evidence. From it is clear that' now seeking to subject the accused fVo'r..%Norco AAA-,_na~!ysis and Brain Mapping test to ""~.._ascer'ta§_n: w__herea't>ou--ts' of her husband which is not under 'W.gicmiséwderaitionibefore the trial Court, because accordingto petyiiiiioneyr. have already committed abduction for which 'xucharge isjreused.
For these reasons I do not find any grounds worthy of acceptance against impugned order passed by the iearned Sessions Sudge. He has taken note of the fact situation and considered the circumstances in its totaiity and reached the conciusion, which is neither capricioosi nor unjust.
16. However, it is necessary to obse.rv_e~.that any"of,V the observations made in this order with fjregard' cto'ar'iveArit,s. the case shalt have no adverse eff'e§:t"on toheicase Compiainant and iearned trial Vj'i;.d»%ge_vsha"ii~consider evidence aiready brought on record orftoi. disoassionately and in accordance withAi.a.yv.'--.o A h i i
17. With __the'i7aVf.Qr:e.sa'%«d'_""-o_i)se_i'vations the revision petition is dismissed A ' FUDGE VK ''