Dhananjaya Son of Bommaiah Vs. State of Karnataka, Rep. by Nelamangala, P.S. - Court Judgment

Excerpt:
- [ k.n. keshavanarayana, j.] indian electricity act, 1910 - sections 39 and 44 - offences under - tampering electric meter - complaint - charges - order of acquittal on technical grounds -finding of the trial judge that the prosecution launched on the basis of the complaint lodged by p.w.4 who was not an authorised person in terms of section 50 of the act -scope of section 50 of the act - held, the prosecution launched on the basis of the complaint lodged by the official of the electricity board, who was working in the vigilance squad and who detected theft of electrical energy, was in fact a prosecution launched at the instance of the state or electricity board. - the prosecution launched at the instance of any official of the electricity board who detected the theft of electrical energy was in reality a prosecution launched at the instance of the electric supply company within the meaning of section 50 of the act - further held, in the case on hand also, p.w.4 is an employee of the k.p.t.c.l. working as an assistant executive engineer in the vigilance squad. - the prosecution launched on the basis of the complaint lodged by p.w.4 was in reality a prosecution launched at the instance of the k.p.t.c.l. therefore, the prosecution launched in this case was at the instance of one of the persons named in section 50 of the act, as such, it was competent. - under these circumstances, the court below is not justified in holding that the prosecution was not competent, therefore, the acquittal recorded on that basis is illegal and is liable to be set aside. - on facts, held, the learned trial judge accepted the evidence of p.w.s 1 to 4 and the finding recorded is justified - there are no grounds to differ from the said finding. in fact, the respondent/accused has not questioned the correctness of the said finding. - since the amendment of section 39 was subsequent to the detection of the offence in this case and also subsequent to filing of the charge sheet, the amended section cannot be applied to the case on hand. under these circumstances, the respondent/accused is required to be sentenced in terms of the unlamented section 39 of the act. - sentence is modified in terms unlamented section 39 of the act - indian electricity act, 1910 - section 50 - the phrase "at the instance" referred in the provision - discussed. (paras 12,13,14,15,16,18,19) criminal appeal is allowed.ordera.s. pachhapure, j.1. these petitions are filed lay the petitioners under section 438 of cr.p.c. apprehending their arrest for the offence punishable tinder section 306 of ipc.2. the facts relevant for the purpose of these petitions are as under:as both the petition pertain to the same crime, they are taken together for consideration. yashodamma the mother of the deceased s. sunanda submitted her complaint to the police on 7.10.09 at 9.35 p.m., and states that on 7.20.09 m the morning at about 11 a.m., the petitioners who are neighbours of the house of the deceased came to the deceased and abused her in filthy language and asked her to die so that they could live comfortably and when the complainant intervened, she was also abused by the petitioners and thereafter, the deceased being not in a position to bear the vulgar and filthy language used against her, committed suicide on the same day at about 6.30, p.m., by hanging herself in the house. before death, she left a suicide note and in the circumstances, she requested to take action against the petitioners for the offence under section 306 ipc.3. the petitioners submit that they are innocents and have not committed airy crime and that they have been falsely implicated. so also, it is their submission that the suicide note left by the deceased is fictitious and that she was illiterate end therefore, the petitioners claim to grant anticipatory bail, they also submit that they are ready and willing to abide by the conditions that may be imposed against them for their release on bail.4. the petitioner in crl.p. no. 6673/2009 is the husband of the first petitioner in crl.p. no. 6674/09 and the 2nd petitioner is the mother-in-law of the 1st petitioner, smt. parvathi.5. the learned govt pleader opposes the petitions and submits that the deceased had left the suicide note and perusal of the same reveals the vulgar words used by the petitioners against the deceased and it is because of that reason that the deceased was insulted and had no other way except to commit suicide. hence, there is prima facie material against the petitioners for the offence under section 306 ipc and the petitions deserve to be rejected.6. i have heard the learned counsel for the petitioners and the learned govt. pleader.7. the point that arises for my consideration is:whether the petitioners are entitled for anticipatory bail sought for?8. it is the contention of the learned counsel for the petitioners that there is a delay of three hours in lodging the complaint and that the complainant has taken disadvantage of the delay and concocted false document like the suicide note of the deceased and that the deceased was an illiterate woman and that she had committed theft of the clothes a week earlier to the incident but no complaint has been filed in this regard and he also contends there m no material against the petitioners for the offence under section 306 ipc. he also submits that the petitioners are ready and willing to abide lay the conditions that may be imposed against them for their release on bail.9. per contra, the learned govt. pleader submits that there is prima facie material against the petitioners for the offence under section 306 ipc and therefore, the petitions may be dismissed.10. so far as the grant of anticipatory bail is concerned, primarily discretion is vetted with the court under section 438 cr.p.c. and that the some has to be used sparingly in exceptional cases to protect the interest of the accused who are innocent. though in the complaint flied by the mother of the deceased, the wards said to have been used by the petitioners have been mentioned but the copy of the suicide note produced reveals the signature of the deceased sunanda and she states in the said note that the petitioner dhananjaya had caused lot of pain to her and that she had given promise which she cannot express and she also states that the petitioners abused her in filthy language for committing the theft of clothes by cutting thread which allegation is false and despite the abuse by the petitioners, she kept quite and at that time, she states that the petitioner parvathi abused stating that she was the kept mistress of her husband and a prostitute and that she had slept with her husband and in these circumstances, she tock the decision to commit suicide. she also states that primarily it is the petitioner dhananjaya and his wife parvathi and mother-in-law thimmakka who are responsible for her death and has requested to take action against them and she has no desire to live in this world after getting insulted by use of such words by the petitioners.11. a perusal of the suicide note reveals the filthy and vulgar language used by parvathi, the wife of dhananjaya and also her husband. but there is no reference so far as the abuse by the mother-in-law, thimmakka. though the learned counsel contended that the deceased was illiterate, no material has been placed on record to show that she was illiterate and at the same time, in the complaint which wee filed within three hours of the incident, the police have seized the suicides note which bears the signature of the deceased and prima facie, at this stage, it cannot be said that it is the suicide note of the deceased or that the prosecution has created such document. taking into consideration the contents of the suicide note and the allegations in the complaint, prima facie there is material against the petitioners, namely dhananjaya and his wife parvathi for the offence under section 306 of ipc. so far as the 2nd petitioner thimmakka is concerned, there is no material in the suicide note by the deceased and in such circumstances, i do not think that there is prima facie material for the said offence against the said petitioner.12. though the learned counsel for the petitioners submitted that the other accused have been released on bail, the copy of the order has not been produced and it is not dear as to whether those petitions were either under section 439 or 438 cr.p.c. and in such circumstances, he cannot, fake the benefit of the principle of parity.13. so in view of the fact that there is prima facie material against the petitioners in crl.p. no. 6673/09 and the 1st petitioner in crl.p. no. 6674/09, i do not think that, they are entitled to exercise the discretion vested with this court as there is no material placed on record that they are innocent. in these circumstances, these petitioners are concerned anticipatory bail cannot be granted. further more, as far as the 2nd petitioner thimmakka is concerned as there is no material on record to show that she instigated the commission of suicide by the deceased, she is entitled for anticipatory bail. in the circumstances, the point is answered partly in the negative. hence, i proceed to pass the following:

Judgment:
ORDER

A.S. Pachhapure, J.

1. These petitions are filed lay the petitioners under Section 438 of Cr.P.C. apprehending their arrest for the offence punishable tinder Section 306 of IPC.

2. The facts relevant for the purpose of these petitions are as under:

As both the petition pertain to the same crime, they are taken together for consideration. Yashodamma the mother of the deceased S. Sunanda submitted her complaint to the police on 7.10.09 at 9.35 p.m., and states that on 7.20.09 m the morning at about 11 a.m., the petitioners who are neighbours of the house of the deceased came to the deceased and abused her in filthy language and asked her to die so that they could live comfortably and when the complainant intervened, she was also abused by the petitioners and thereafter, the deceased being not in a position to bear the vulgar and filthy language used against her, committed suicide on the same day at about 6.30, p.m., by hanging herself in the house. Before death, she left a suicide note and in the circumstances, she requested to take action against the petitioners for the offence under Section 306 IPC.3. the petitioners submit that they are innocents and have not committed airy crime and that they have been falsely implicated. So also, it is their submission that the suicide note left by the deceased is fictitious and that she was illiterate end therefore, the petitioners claim to grant anticipatory bail, They also submit that they are ready and willing to abide by the conditions that may be imposed against them for their release on bail.

4. The petitioner in Crl.P. No. 6673/2009 is the husband of the First petitioner in Crl.P. No. 6674/09 and the 2nd petitioner is the mother-in-law of the 1st petitioner, Smt. Parvathi.

5. The learned Govt Pleader opposes the petitions and submits that the deceased had left the suicide note and perusal of the same reveals the vulgar words used by the petitioners against the deceased and it is because of that reason that the deceased was insulted and had no other way except to commit suicide. Hence, there is prima facie material against the petitioners for the offence under Section 306 IPC and the petitions deserve to be rejected.

6. I have heard the learned Counsel for the petitioners and the learned Govt. Pleader.

7. The point that arises for my consideration is:

Whether the petitioners are entitled for anticipatory bail sought for?8. It is the contention of the learned Counsel for the petitioners that there is a delay of three hours in lodging the complaint and that the complainant has taken disadvantage of the delay and concocted false document like the suicide note of the deceased and that the deceased was an illiterate woman and that she had committed theft of the clothes a week earlier to the incident but no complaint has been filed in this regard and he also contends there m no material against the petitioners for the offence under Section 306 IPC. He also submits that the petitioners are ready and willing to abide lay the conditions that may be imposed against them for their release on bail.

9. Per contra, the learned Govt. Pleader submits that there is prima facie material against the petitioners for the offence under Section 306 IPC and therefore, the petitions may be dismissed.

10. So far as the grant of anticipatory bail is concerned, primarily discretion is vetted with the court under Section 438 Cr.P.C. and that the some has to be used sparingly in exceptional cases to protect the interest of the accused who are innocent. Though in the complaint flied by the mother of the deceased, the wards said to have been used by the petitioners have been mentioned but the copy of the suicide note produced reveals the signature of the deceased Sunanda and she states in the said note that the petitioner Dhananjaya had caused lot of pain to her and that she had given promise which she cannot express and she also states that the petitioners abused her in filthy language for committing the theft of clothes by cutting thread which allegation is false and despite the abuse by the petitioners, she kept quite and at that time, she states that the petitioner Parvathi abused stating that she was the kept mistress of her husband and a prostitute and that she had slept with her husband and in these circumstances, she tock the decision to commit suicide. She also states that primarily it is the petitioner Dhananjaya and his wife Parvathi and mother-in-law Thimmakka who are responsible for her death and has requested to take action against them and she has no desire to live in this world after getting insulted by use of such words by the petitioners.

11. A perusal of the suicide note reveals the filthy and vulgar language used by Parvathi, the wife of Dhananjaya and also her husband. But there is no reference so far as the abuse by the mother-in-law, Thimmakka. Though the learned Counsel contended that the deceased was illiterate, no material has been placed on record to show that she was illiterate and at the same time, in the complaint which wee filed within three hours of the incident, the Police have seized the suicides note which bears the signature of the deceased and prima facie, at this stage, it cannot be said that it is the suicide note of the deceased or that the prosecution has created such document. Taking into consideration the contents of the suicide note and the allegations in the complaint, prima facie there is material against the petitioners, namely Dhananjaya and his wife Parvathi for the offence under Section 306 of IPC. So far as the 2nd petitioner Thimmakka is concerned, there is no material in the suicide note by the deceased and in such circumstances, I do not think that there is prima facie material for the said offence against the said petitioner.

12. Though the learned Counsel for the petitioners submitted that the other accused have been released on bail, the copy of the order has not been produced and it is not dear as to whether those petitions were either under Section 439 or 438 Cr.P.C. and in such circumstances, he cannot, fake the benefit of the principle of parity.

13. So in view of the fact that there is prima facie material against the petitioners in Crl.P. No. 6673/09 and the 1st petitioner in Crl.P. No. 6674/09, I do not think that, they are entitled to exercise the discretion vested with this Court as there is no material placed on record that they are innocent. In these circumstances, these petitioners are concerned anticipatory bail cannot be granted. Further more, as far as the 2nd petitioner Thimmakka is concerned as there is no material on record to show that she instigated the commission of suicide by the deceased, she is entitled for anticipatory bail. In the circumstances, the point is answered partly in the negative. Hence, I proceed to pass the following: