Karnataka High Court
Mahadev S/O Mallikarjun Wagadale vs The State And Anr on 24 March, 2022
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION No.200286/2022
Between:
Mahadev S/o Mallikarjun Wagadale
Age 37 Years, Occ: Agriculture
R/o Hulsoor, Tq. Basavakalyan
Dist. Bidar-584101
... Petitioner
(By Sri Avinash A. Uplaonkar, Advocate)
And:
1. The State through
Basavakalyan Town P.S.
Tq. Basavakalyan, Dist. Bidar
Now represented by
Addl. SPP High Court of Karnataka
Kalaburagi Bench-585 107
2. Sunita W/o Mahadev
Age: 34 Years, Occ: Housewife
R/o Gadigoundgaon, Tq. Basavakalyan
Dist. Bidar-585 416
... Respondents
(By Sri Gururaj V. Hasilkar, HCGP)
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This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to exercise the inherent powers under
Section 482 of Cr.P.C., examine the records and quash the
proceedings in C.C.No.1152/2021 (Crime No.100/2008) of
Basavakalyan P.S. for the offence under Sections 498-A,
323, 504, 354, 506 r/w Section 34 of IPC & Sections 3 and 4
of D.P.Act, pending before the Court of Civil Judge and
JMFC at Basavakalyan against the petitioner.
This petition coming on for Orders, this day, the Court
made the following:
ORDER
The petitioner who is arrayed as accused No.1 in original C.C.No.608/2008 and subsequently since he absconded split-up charge-sheet came to be filed in CC No.1152/2021 arising out of Crime No.100/2008 registered by Basavakalyan Town P.S. for the offences punishable Sections 498A, 354, 323, 504, 506 r/w Section 149 of Indian Penal Code, 1860 besides Sections 3 and 4 of Dowry Prohibition Act, 1961, whereas under this petition, the petitioner seeks quashment of the proceedings in split-up charge sheet in C.C.No.1152/2021.
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2. Heard Sri Avinash A. Uploankar, learned counsel for the petitioner and so also learned High Court Government Pleader for the State.
3. It is transpired from the case of the prosecution that the marriage of the accused No.1/petitoner was performed with the complainant namely, Smt. Sunita as per the customs prevailing in their society. Subsequent to the marriage, the complainant was residing in the matrimonial house along with her husband situated at Basavakalyan and thereafter complainant was blessed with a female baby. It is alleged that accused No.1 and other accused persons ill-treated the complainant by giving physical as well as mental harassment and demanded her to bring dowry in terms of gold jewelries as well as in terms of cash from her parental house. 4
4. It is further transpired from the complaint that, all the accused persons said to have been assaulted the complainant without providing food and shelter and also tried to take her life by compressing her neck. Co-accused Nos.2 to 8 instigated the accused No.1/petitoiner in commission of offence. In pursuance of the act of the accused, a case in Crime No.100/2008 came to be lodged by the complainant for the aforesaid offences. Thereafter, investigating officer has taken up the case for investigation and laid the charge sheet against the accused in C.C.No.608/2008. Since the petitioner did not make available for facing trial and since absconded, split-up charge sheet came to be filed in CC No.1152/2021.
5. Subsequent to split-up charge sheet against the petitioner herein, remaining accused Nos.2 to 8 in CC No.608/2008 have faced the trial and whereby the prosecution got examined P.Ws.1 to 5 18 and also got marked Exs.P.1 to 10. The investigation officer has conducted the spot mahazar as per Ex.P.2 and also recorded the statement of witnesses of P.Ws.2, 8, 7, 11, 18 and 19 and even though they have been subjected to examination and they did not support the case of the prosecution. Their contradictory statements of P.Ws.7, 8, 11, 18 and 19 got marked at Exs.P.3 to 7. FIR has been marked as Ex.P.8. The wound certificate of the complainant was marked at Ex.P.9. These are all the evidence has been let in by the prosecution before the trial Court in CC No.608/2008.
6. The trial Court on appreciation of the entire material on record and also having gone through the documents come to conclusion that the prosecution has not facilitated the worthwhile evidence to held conviction. Consequently, the doubt was created in the mind of the Court and the trial 6 Court held that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and rendered the acquittal judgment in respect of the offences punishable under Sections 498A, 323, 504, 506, 354 r/w Section 149 of Indian Penal Code, 1860 besides Sections 3 and 4 of Dowry Prohibition Act, 1860 which reflected in the operative portion of the order passed by the trial Court in C.C.No.608/2008.
7. Whereas, learned counsel for the petitioner has contended that the complainant has filed a complaint against the accused arraying all the family members of the accused No.1 just to give harassment to them. But, there is no specific allegation made against the accused for the commission of offence and even though the allegation made against the accused No.1 who is before this Court relating to extending of harassment both mental as well as physical and also assaulted the complainant at the instigation made by 7 co-accused to this petitioner to make demand to the complainant to bring dowry in terms of cash and so also gold jewelries. By close scrutiny of the evidence facilitated by the prosecution, the trial Court acquitted co-accused Nos.2 to 8 in CC No.608/2008, but this petitioner who is arrayed as accused No.1 and more so the benefit of acquittal rendered by the trial Court has to be extended to this accused and moreover the witnesses have been cited in the charge sheet in C.C.No.608/2008 did not withstood the version of the statement to prove the guilt of the accused. Consequently, the prosecution has failed to establish the guilt of the co-accused Nos.2 to 8 and also the chain of circumstances as narrated in the charge-sheet laid by the investigating officer. But the petitioner who is arrayed as accused No.1 and more so he being the split-up accused and split-up charge sheet has been filed against him in CC 8 No.1152/2021, this accused as well as the co-accused stand on the similar footing and more so this accused who is none other than the husband of P.W.1 in CC No.608/2008 and the evidence of P.W.1 scrutinized by the trial Court, apart from her evidence as well as other evidence, the trial Court rendered the acquittal judgment of the co-accused, therefore the same benefit would be extended to this petitioner by exercising the power under Section 482 of Cr.P.C., if not, the petitioner being arrayed as accused and also gravamen of the accusation would be the sufferer and also there shall be some substantial miscarriage of justice. These are all the contentions taken by the learned counsel for the petitioner by referring the material which collected by the investigating officer during the course of the investigation. The allegation made against these accused as well as co-accused are one and the same and also in a similar footing of the 9 allegations, therefore he seeks intervention of this Court under Section 482 of Cr.P.C., if not, the petitioner would be the sufferer and there shall be some substantial miscarriage of justice to the petitioner. Hence, prayed for quashment of the proceedings against the petitioner in CC No.1152/2021 arising out of Crime No.100/2008 registered by the Basavakalyan P.S.
8. Learned High Court Government Pleader for the State countered to the argument advanced by the learned counsel for the petitioner by referring the allegation made against this accused and so also involvement of this accused as well as extending the life threat and so also demanding P.W.1 to bring dowry in terms of cash and gold ornaments from her parental house. The co-accused Nos.2 to 8 have some instigation or provocation to the petitioner and to pick up quarrel by this petitioner to make demand to his 10 wife and also insist her to bring dowry from her parents house and so also extended harassment to her along with other accused. The same could be seen in the complaint averments. But, this petitioner has not faced trial in the original charge-sheet and thereby split-up charge sheet has been filed against this petitioner in C.C.No.1152/2021 and let he has to face trial.
9. Whereas, mere because the co-accused Nos.2 to 8 and their case was ended in acquittal it cannot be a ground for seeking quashment of the split-up charge sheet levelled against the accused. These are all the contention has been taken by the learned High Court Government Pleader for the State and more so this accused was absconding and hence coercive steps have been taken against him and also split-up charge sheet was filed by the investigating officer. Therefore, this petitioner is very much 11 required for facing trial. These are all the contentions taken by the learned High Court Government Pleader for rejection of the petition.
10. It is in this contention made by the learned counsel for the petitioner/accused No.1 and so also the counter made by the learned High Court Government Pleader for the State relating to involvement of this petitioner insofar as the offences punishable under Sections 498A, 342, 323, 504, 506 r/w Section 149 of Indian Penal Code, 1860 besides Sections 3 and 4 of Dowry Prohibition Act, 1961. In CC No.608/2008, P.W.1 Smt. Sunita has filed a complaint against the accused as per Ex.P.1 and based upon her complaint, a criminal law was set into motion by registering the case in Crime No.100/2008 by Basavakalyan Town P.S., whereas in her complaint she has stated that her marriage was performed with the accused No.1/petitoiner as per the 12 customs prevailing in their society. Subsequent to her marriage she had been to her matrimonial house and whereby led the happy married life with him and also blessed with a child. Thereafter, the petitioner and other accused started demanding her to bring dowry in terms of cash and gold jewelries. But there was physical as well as mental harassment meted out to the complainant by the petitioner as well as co- accused and they have insisted to bring additional dowry from her parents house. But, P.W.1 expressed her inability to fulfill the demands made by her husband and so also demand made by accused Nos.2 to 8 through her husband.
11. Admittedly, accused Nos.2 to 8 have faced trial and the trial Court after considering the evidence both oral and documentary evidence on record acquitted the accused Nos.2 to 8. It is relevant to refer the evidence of P.W.1 in CC No.608/2008 and 13 whereby she has stated in her evidence and also she has narrated in her complaint that her marriage was performed with the accused No.1/petitoner. But the case in CC No.608/2008 and whereby P.Ws.4, 7, 11 to 14 have been subjected to examination to prove the guilt of the accused, but the aforesaid witnesses have turned hostile to the case of the prosecution. These are all the evidence has been appreciated by the trial Court in CC No.608/2008 and more so considered the evidence of P.W.1-Sunita whereby she has filed a complaint as per Ex.P.1 and also subjected to examination on the part of the prosecution to prove the guilt of the accused. Whereas, the evidence of P.W.1 insofar as the co-accused Nos.2 to 8 are concerned she deposed that she does not know how much of gold jewelry weighing and also in terms of money was given to the accused No.1, who was a bridegroom at the time of her marriage and that the 14 accused have ill-treated her both mentally and physically and also demanded to bringing dowry. These are all the materials have been considered by the trial Court and had come to the conclusion that the prosecution has failed to prove the guilt of the accused Nos.2 to 8 and rendered acquittal judgment. The copy of the judgment in CC No.608/2008 has been produced by the learned counsel for the petitioner for perusal. Therefore, under this petition seeking to allow the petition by consideration of the grounds urged in the petition on the ground that co- accused Nos.2 to 8 have faced trial and their case was ended in acquittal. Even consideration of the evidence of P.W.1 and so also the evidence of remaining witnesses who stated that the prosecution has failed to prove the guilt of the accused by facilitating the worthwhile evidence, these are all the observation made by the trial Court whereby rendered acquittal 15 judgment in respect of co-accused Nos.2 to 8. The petitioner herein as well as co-accused Nos.2 to 8 are in a similar footing for facing up trial. But once the prosecution has failed to prove the guilt of the co- accused Nos.2 to 8 and even the benefit of acquittal judgment should be extended to the co-accused i.e., petitioner herein and if not certainly there shall be same miscarriage of justice to him as he being a gravamen of the accusation leveled against him. These are all the contention has been made by the learned counsel for the petitioner in support of the grounds urged and for intervention of this Court by exercising the unfettered power vested with this Court under Section 482 of Cr.P.C. and to quash the split- up charge sheet filed against the present petitioner.
12. Whereas, learned counsel for the petitioner has produced the copy of the judgment rendered by this Court in Crl.P.No.8097/2016 dated 17.12.2020 16 relating to exercising the power under Section 482 of Cr.P.C. for quashment of the charge sheet against the accused and contended that the petitioner herein being a split-up accused and the co-accused Nos.2 to 8 have already been acquitted by the trial Court and same benefits has to be extended to the present petitioner, if not, there shall be some miscarriage of justice to accused No.1 and also the abuse of process of law. Under these circumstances, if the benefit of doubt is not extended to the present petitioner, then no purpose would serve even directing the petitioner for facing trial, even though the accused Nos.2 to 8 have been acquitted by the trial Court in the same charges.
13. It is relevant to refer the case of Lalitha Kumari vs. Uttar Pradesh & others, reported in (2014) 2 SCC 1, wherein the Hon'ble Supreme Court has extensively addressed the issue relating to the 17 concept of Sections 154, 155, 156, and 157 of Cr.P.C. insofar as FIR in cognizable case-registration of whether is mandatory or police officer has option, discretion or latitude of conducting preliminary inquiry before registering FIR-Mandatory registration of FIR on receipt of information disclosing a cognizable offence as the general rule- Situations/cases in which preliminary inquiry is permissible-Scope of, and safeguards to be followed in cases where such preliminary inquiry is permissible.
14. It is relevant to refer the judgment rendered by this Court in the case of State of Karnataka vs. L. Muniswamy and others reported in AIR 1977 SC 1489, whereby held in the, exercise of this whole some power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of 18 justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to. achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.
15. In the instant case, criminal law was set into motion by receipt of a complaint made by P.W.1 Sunita who is none other than the wife of the accused No.1 and who is before this Court by filing a petition under Section 482 of Cr.P.C. and whereby the investigating officer has laid the split-up charge-sheet against the accused in CC No.1152/2021. The case 19 against co-accused Nos.2 to 8 in CC No.608/2008 was ended in acquittal by the trial Court by appreciating the evidence of the prosecution. Therefore, the benefit of acquittal must be extended to the present petitioner who is arrayed as accused No.1 as contended. If the petitioner herein is subjected for facing up of trial, then it would be only an empty formalities for the disposal of the case and moreover there is no strong reason to hold that this petitioner/accused has to be tried for the offences leveled against him as the case against co-accused Nos.2 to 8 in CC No.608/2008 was ended in acquittal. Therefore, the benefit of acquittal judgment has to be extended to the present petitioner/accused No.1 also.
16. In view of the foregoing reasons and the findings given therein and so also keeping in view the ratio of the reliance which is referred above, this Court is of the considered opinion that the charge- 20 sheet against this petitioner are inseparable and indivisible. Therefore, the said benefit has to be extended to the petitioner herein, if not, there shall be some substantial miscarriage of justice would arise. Therefore, the petition deserves to be allowed by quashing the criminal proceeding initiated against the petitioner/accused No.1 in split-up charge-sheet in CC No.1152/2021 arising out of Crime No.100/2008 for the offences which reflected in the FIR. Accordingly, I proceed to pass the following:
ORDER The criminal petition filed by the petitioner/accused No.1 under Section 482 of Cr.P.C. is hereby allowed. Consequently, criminal proceeding initiated against the petitioner/accused No.1 in CC No.1152/2021 arising out of Crime No.100/2008, registered by the Basavakalayan P.S. is hereby quashed which is pending before the Court of Civil Judge & JMFC, Basavakalyan.21
Consequent upon disposal of the main petition, I.A.No.1/2022 seeking stay of the proceedings pending before the trial Court does not survive for consideration, accordingly same stands disposed of.
Learned counsel for the petitioner submits that the trial Court has issued NBW against the petitioner/accused No.1 in split- up CC No.1152/2021 and the said NBW is in force. In view of quashing of criminal proceedings against the petitioner/accused No.1, no consequence of execution of NBW against the accused No.1 arises, consequently stand cancelled.
SD/-
JUDGE BL