R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE8H DAY OF SEPTEMBER, 2021 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO CRIMINAL REVISION PETITION No.925/2017 BETWEEN:
1. . SRI Y S BASAVAIAH S/O LATE NANJUNDAIAH AGED ABOUT63YEARS RESIDING AT TAMMADIHALLI, CHIKKANAYAKANA HALLI TALUK TUMKUR DISTRICT – 572 103. 2 . SMT. SIDDANANJAMMA W/O Y S BASAVAIAH AGED ABOUT61YEARS RESIDING AT TAMMADIHALLI, CHIKKANAYAKANA HALLI TALUK, TUMKUR DISTRICT – 572 103. 3 . SRI Y S NANJUNDASWAMY S/O Y S BASAVAIAH AGED ABOUT34YEARS RESIDING AT NEAR E.S.I HOSPITAL RAJAJINAGAR , BANGALORE – 560 003. 4 . SMT. Y B SUCHITRA W/O SHIVAKUMARASWAMY AGED ABOUT36YEARS RESIDING AT BEHIND RAGHAVENDRA TEMPLE2RAGHAVENDRA NAGAR TUMKUR – 572 103. ..PETITIONERS (BY SRI GIRIGOWDA C., ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP BY WOMEN POLICE STATION DAVANAGERE, KARNATAKA REPRESENTED THROUGH ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE – 560 001.
2. SMT. DIVYA CHAITRA W/O RAMESHWARA SWAMI @ RAMESHA AGED ABOUT32YEARS RESIDING AT No.3145/3, 10TH MAIN5H CROSS, M.C.C.’B’ BLOCK DAVANAGERE – 577 001. ..RESPONDENTS (BY SMT.RASHMI JADHAV, HCGP FOR R1 SRI ANANDA V, ADVOCATE FOR R2) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION397R/W SECTION401CR.P.C.PRAYING TO SET ASIDE THE ORDER
DATED1206.2017 PASSED IN C.C.No.51/2014 ON THE FILE OF THE J.M.F.C. THIRD COURT, DAVANAGERE. THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
3. ORDER
Though the petition is listed for Admission with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
2. Heard learned counsel Sri.C.Girigowda for petitioner, Smt.Rashmi Jadhav, learned HCGP for respondent No.1 and Sri.Ananda V., learned counsel for respondent No.2.
3. Petition is filed under Section 397 Cr.P.C against the order dated 12.06.2017 passed in C.C.No.51/2014 by the learned JMFC, III Court, Davanagere, wherein the learned trial Judge has ordered for issuance of summons to the petitioners-accused Nos.2, 3, 6 and 7 to face the trial in C.C.No.51/2014 that came to be charge sheeted on the basis of complaint lodged by Divya Chaitra wife of accused No.1 –Rameshwara 4 Swami @ Ramesha. She is the complainant in the complaint dated 17.02.2011 registered in Crime No.8/2011 for the offences punishable under Sections 498A and 506, 34 IPC.
4. The substance of the complaint is complainant is the wife of accused No.1-Rameshwara Swami @ Ramesha and their marriage was performed on 04.03.2010. At the time of marriage bridegroom was given cash of Rs.2,00,000/- gold 28gms, silver 500gms and complainant was also given 70 to 80gms gold. She started marital life and in the beginning two to three months there was no problem. Thereafter Y.B.Mallikarjuna Swami brother of her husband and Smt.Nethravathi, w/o Y.B.Mallikarjuna Swami, Nanjundaswami, and Smt.Suchitra, demanded Rs.50,000/- to buy a motorcycle and it was given. They kept quite for sometime and thereafter they 5 wanted to perform the marriage of Nanjunda Swami for that they demanded Rs.5,00,000/- from complainant to buy a car and when the complainant was unable to comply with their demand she was sent out of house and accused persons did not take her back despite request by the complainant’s family members and also the well wishers. During September, 2010 complainant got employment as Lab Technician at Davanagere and her husband joined her during third week of November. The accused persons came and told that there were several persons who were ready to give cash, gold, car etc., and that the complainant was selected with a fond hope she is the only daughter to her parents and asked her two sites from her father at Tumkur or else an amount of Rs.10,00,000/- and when it was not done her husband was taken back by them. It is also stated that there was a incident when the complainant was walking 6 near Swimming Pool near Venkateshwara Temple and it was 1 P.M. a maruthi car came and stopped. Accused Mallikarjunaswami, Nethravathi, Nanjundaswami and Suchitra got down and they were anger because of not fulfilling demand of additional dowry and her husband slapped her and he was instigated by the other accused persons. When her husband laid his hand on the neck of the complainant she screamed and passersby came in and accused persons left her and she informed the matter to her parents.
5. On the basis of the complaint, criminal case was registered in the said Crime No.8/2011 for the offences punishable under Section 498A and 506, 34 IPC as could be seen from the FIR and it was registered against seven persons. Learned trial Judge issued summons to accused No.2, 3, 6 and 7. Being 7 aggrieved petitioners have preferred this revision petition.
6. Learned counsel Sri.C.Girigowda for petitioners submit that the case came to be registered against said seven persons who are none other than but the family members including married persons, sister, who is married. The name of the accused persons the petitioners nodoubt figured in the FIR at the time of final report but the names of the petitioners were deleted. Thus petitioners are none other than said accused persons who were dropped on filing of the final report. Charge was framed against all the accused persons for the offence punishable under Section 498A and 506 IPC. Subsequently during the trial complainant Divya Chaitra was examined as PW-1 and her father PW-2 and they gave oral evidence against said left out accused persons and thereafter 8 application was made under Section 319 Cr.P.C. wherein the application was allowed and present petitioners also were issued summons.
7. Learned counsel Sri.Girigowda submits that there are no evidence against the said petitioners. Learned trial Judge erred in issuing summons under Section 319 Cr.P.C. by allowing the application filed by the prosecution. Petitioners were dropped from the charge sheet and even a further statement is stated to have been given by the complainant wherein she had stated that she had no grievance against the said petitioners under further statement dated 17.02.2011.
8. Learned counsel for respondent-complainant Sri.V.Ananda submits that the learned trial Judge has gone through the evidence and the available papers meticulously and applied the mind and considered the 9 applicability of Section 319 Cr.P.C and issued summons. He would further submit that there is no legal efficacy to consider the petition by accused persons. FIR is registered under Section 154 Cr.P.C upon the complaint being filed. This is report regarding the commission of offence whether the accused persons are known to the informant or otherwise at the same time informant is not aggrieved person or the victim of the offence. The final report is submitted under Section 173 Cr.P.C after the completion of investigation which consists of various materials including statement, material objects and evidence to show the commission of offence by the accused.
9. It is not a hard and fast rule that criminal case which is registered at the time of FIR for a particular offence will have to be continued in the charge sheet, 10 cognizance to be taken and also to be considered at the stage of disposal.
10. Upon the completion of investigation final report is submitted wherein investigating officer may include offences that are made out against some persons. This document is not the one like a sanction which requires the court has to follow. At the end of the day it is only proposal by the investigating officer. However the court takes the cognizance of the offence under Section 190 Cr.P.C. It is at that particular time court applied its mind and dealt with the case and finds cognizance of the offence to be taken. At this point of time it is necessary to remember it is the cognizance of the offence that is taken and not the offender. Section 190 Cr.P.C is as under:
11. “190. Cognizance of offences by Magistrates – (1)Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section(2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section(1) of such offences as are within his competence to inquire into or try.
11. The court takes cognizance of the offence when it finds evidence to believe that some other persons 12 other than those who are named in FIR or final report are to be summoned as accused for the purpose of trial. It is in this connection court may take cognizance and even against those persons who are not named in the final report and even may delete the name of the person where cognizance is not necessary but justifiably. It is not a dissected or thread bare bifurcation given for each and every document. The Principle has been dealt in detail by the Hon’ble Apex Court in the case of Hardeep Singh Vs State of Punjab and ors reported in (2014) 3 SCC92 Thus, the powers of the court under Section 190 Cr.P.C regarding cognizance is laid in respect of those offence for which it is competent to take cognizance. Insofar as facts are concerned, it is to the satisfaction of the Judge. 13
12. It is not necessary that during trial when once cognizance is taken the accused invariably has to face the rest of the trial till the disposal. It is in this connection Section 239 Cr.P.C in case of offence triable by court of sessions and in other warrant cases accused has a right to make application or submit that the ingredients of the offence are not available in the prosecution papers and there are no grounds to proceed against the accused and if the court is satisfied about the absence of ingredients for the offence charged or any other offence he will be discharged. Certain times accused may be charged for lesser offence provided the ingredients are present. Section 239 Cr.P.C reads as under: “239. When accused shall be discharged – If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, 14 of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
13. Section 319 Cr.P.C deals with the powers of the court to summon a person as accused. While exercising the powers under Section 319 Cr.P.C the court must be very careful in analysing the concrete evidence against the person who has to be summoned. In the decision in the case of Labhuji Amratji Thakor and others Vs State of Gujarat and anr reported in (2019) 12 SCC644the Hon’ble Apex Court held that mere fact that jeep belonged to appellant and appellants moved in said jeep along with accused cannot be treated to be any allegation of complicity of appellants in offence. The Hon’ble Apex 15 Court in the case of Mani Pushpak Joshi Vs State of Uttarakhand and anr reported in (2019)9 SCC805has laid down principle under what circumstances additional accused could be summoned and has emphasized on the concrete materials more than prima facie case is required at the time of filing the charge and mere disclosing of the name of appellant could not be stated to be strong and cogent evidence to make them stand for trial for the offence by virtue of Section 319 Cr.P.C. If the evidence collected and produced in the course of enquiry or trial of an offence and if the court prima facie satisfied that the person has committed any offence he is triable along with other accused. The process is issued and because it is issued at later part of the trial it cannot be quashed. The above principle is affirmed by Hon’ble Apex Court in the case of Suman Vs State of Rajasthan and anr reported in AIR2010SC518 Further sufficient 16 evidence within the meaning of Section 319 Cr.P.C need not be confined to completion of oral evidence. Evidence is defined under the Evidence Act and it may be documentary evidence or oral evidence or material object or circumstantial evidence and the court has to confirm the nature of evidence which inspires confidence and not the total quantum of evidence. The principle is explained in a detailed manner in the decision referred above. Insofar as present case is concerned when the case was registered in Crime No.8/2011 for the offence punishable under Section 498A and 506 IPC the accused who were named are the following and their relationship with reference to husband-accused No.1 are as under:
1. Rameshwaraswami @ Ramesh-accused No.1.
2. Basavaiah –father of accused No.1.
3. Siddananjamma – mother of the accused No.1.
4. Mallikarjunaswami, elder brother of accused No.1. 17
5. K.S.Nethravathi, wife of accused No.4, sister-in-law of accused No.1.
6. Y.Nanjundaswami, younger brother of accused No.1.
7. Y.B.Suchitra, sister of accused No.1.
14. On perusal of the complaint it reveals that the complainant has named the said persons and after investigation charge sheet was filed wherein the said accused persons-petitioners were dropped.
15. The allegation against them is that they have either encouraged or co-operated in the commission of offence by the accused. It is also stated that complainant was asked to bring Rs.5,00,000/- dowry once and another Rs.10,00,000/- or two sites at a later circumstances. It is also part of final report that further statement of the complainant was recorded wherein she stated to have mentioned that father in law Basavaiah, Mother-in-law Siddananjamma, Nanjundaswamy, brother-in-law and Suchitra, Sister 18 of her husband have not posed cruelty on her. It is not sworn testimony. It is a statement recorded by way of further statement of the complainant. But is the prosecution document. This is extended portion of the complainant version and the only difference is it is recorded during investigation. As statement inspired confidence of the investigating officer he has ordered for deletion. When he has submitted final report regard being had to the fact that during the evidence she as complainant has pointed against the accused and stated so and her evidence is stated in the beginning itself.
16. Insofar as petitioners are concerned the allegation in the complaint go in the form of omnibus. Even in the oral evidence it does not inspire confidence to proceed against the accused under Section 319 Cr.P.C. It is not that the relatives of the husband in all the cases are innocent. There are 19 cases wherein married lady is subjected to cruelty or harassment in the hands of husband or his relatives it may include brother in law, sister in law or parents in law. But the question is specific instances of their torture or harassment are to be marked. It cannot be considered that sister of husband or brother of the husband and his wife may be roped in the case which is because they are relatives as a matter of fact, yes if there is a concrete evidence they are triable for the offence charged against them. But on the other hand there is no further or specific evidence available or allegations available to make away with the statement they have instigated offence by the husband. The instance claimed by the wife against such relatives must inspire confidence in the mind of the reader. The ingredients of the offence cannot be decided by the complaint unless there are substance in the allegation with proper corroboration. In some of the 20 cases of course the present case included trend of roping the entire family members has to be controlled and except in those cases where reasonable materials and grounds are there to proceed against the relatives of the husband irrespective of the nature apart from the husband.
17. In the present case I find that there no circumstances or ingredients or materials in the form of evidence to summon the petitioners for facing the trial. Learned trial Judge has seriously erred in summoning the petitioners under Section 319 Cr.P.C and the said order is liable to be set aside. Hence, the following: ORDER
Criminal Revision Petition is hereby allowed. Order dated 12.06.2017 passed in C.C.No.51/2014 on the file of JMFC III Court, Davanagere, is set aside. 21 Send a copy of this order to the trial Judge. It is stated that after filing the revision petition the criminal case was transferred from the JMFC III Court, Davanagere to II Additional Senior Civil Judge and JMFC, Davanagere. In such a case the office shall send the copy of this order to the court where the trial is conducted. Sd/- JUDGE SBN