R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE:
THE HON'BLE MR. JUSTICE K. SOMASHEKAR CRIMINAL REVISION PETITION NO.796/2014 BETWEEN:
1. DR. M.S. BHAVANI, W/O. SURESH BABU, AGED ABOUT 53 YEARS, R/A. DOOR NO.74, DORCHESTOR AVENUE, WARWICK PERTH CITY, WEST AUSTRALIA-6024, ALSO R/AT NO.377, 5TH MAIN, 3RD BLOCK, BASAVESHWARANAGAR, BANGALORE-560 079.
2. SURESH BABU D.C., SON OF DASAPPA, AGED ABOUT 53 YEARS, R/A. DOOR NO.74, DORCHESTOR AVENUE, WARWICK PERTH CITY, WEST AUSTRALIA-6024, ALSO R/AT NO.377, 5TH MAIN, 3RD BLOCK, BASAVESHWARANAGAR, BANGALORE-560 079. ... PETITIONERS [BY SRI. SHANKARAPPA S., ADVOCATE] AND:
STATE BY BASAWESHWARANAGAR P.S., BANGALORE-560 079.
REPRESENTED BY S.P.P., HIGH COURT BUILDING, BANGALORE-560 001. ... RESPONDENT [BY SRI. THEJESH P., HCGP] * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER IN S.C. NO.556/2013 DATED 30.06.2014 PASSED ON P.O., FTC-XIV, BANGALORE CITY AND PETITIONERS MAY BE DISCHARGED IN S.C. NO.556/2013.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER This petition is directed against the Order of the trial Court passed in S.C. No.556/2013, dated 30.06.2014 relating to rejection of the application filed by accused Nos.2 and 3 under Section 227 of Cr.P.C., seeking discharge from the offences leveled against them.
2. The brief facts of the case of the petitioners are as under:
On filing of the complaint by the complainant a case in Crime No.149/2012 came to be registered against the petitioners herein being arrayed as accused Nos.2 and 3.
Subsequent to registration of the crime against the accused, the Investigating Officer taken up the investigation and after completion of the investigation, laid the charge-sheet before the Committal Court. The case was committed by the Court of trial. Accordingly, the case is registered as S.C. No.556/2013 and the accused are required to face the trial for the offences punishable under Sections 307 and 394 of IPC.
Whereas in the charge-sheet, in all 11 witnesses have been cited and the Investigating Officer has collected so much of material in order to laying the charge-sheet against the accused. But, these accused Nos.2 and 3 have also been lugged in the alleged crime and no prima facie case has been made out against them. Therefore, they filed an application under Section 227 of Cr.P.C. seeking for their discharge from the alleged offences.
It is stated in the material which collected by the Investigating Officer that the complainant is the mother of accused No.2 and mother-in-law of accused No.3, who are the Medical Practitioner and Engineer respectively and are residing at Perth City, Australia for the last 9 years and they are working there for the purpose of gaining and maintaining life and they have been only visiting India for seldom particularly their voyage. Though these accused were not participated in the crime, they have been lugged in the alleged crime. Accused Nos.2 and 3 have filed an application under Section 227 of Cr.P.C. seeking for their discharge from the alleged offences. The said application came to be rejected by the trial Court in S.C. No.556/2013. This order has been challenged in this revision petition by urging various grounds.
3. Heard the learned counsel viz., Shankarappa S., and the learned HCGP for the State.
4. The learned counsel for the petitioners has taken me through the averments made in the complaint so also in the revision made before this Court. In the complaint it is alleged that accused Nos.2 and 3 i.e., the petitioners herein have made an attempt to take away the life of the complainant and robbed the items which were subjected in the P.F., which have been seized at the instance of accused No.1-Manjunath. There was a civil dispute emerged among the complainant, her family members and accused No.1- Manjunatha in respect of the property situated in Basaveshwaranagar, Bengaluru and these accused Nos.2 and 3 have been falsely roped in the alleged crime and also laid the charge-sheet against them only to take vengeance.
It is further contended that accused Nos.2 and 3 are nothing to do with the allegations made in the complaint along with accused No.1. For the last over a decade, the petitioners are stayed in Perth City, Australia and that itself indicates that there are no strong material to lay charge- sheet against them. Under these circumstance, the petitioners/accused Nos.2 and 3 have filed an application under Section 227 of Cr.P.C. seeking for their discharge from the alleged offences.
Lastly, the learned counsel for the petitioners submits that the complainant is now no more and therefore, the author of the complaint is not to be secured by the prosecution in order to prove the case. The case of the complainant is relating to the offence under Sections 307 and 394 of IPC. However, charge-sheet has been laid against accused Nos.2 and 3 stating that they have caused the incident through accused No.1. This observation is made by the trial Court while disposing off the application filed by these accused under Section 227 of Cr.P.C. At the instance of accused No.1 certain properties were recovered and his voluntary statement was recorded. Accused No.1- Manjunatha in his voluntary statement never made any allegations against these petitioners/accused Nos.2 and 3. However, there are no prima facie material against these accused to connect even the remote chances of accused No.1 to commit the alleged offences. The trial Court in S.C. No.556/2013 even though verified the entire charge-sheet, statements of the witnesses consisting in all C.W.1 to C.W.11 and also the mahazar said to be conducted by the Investigating Officer, it is not constructive to see the material in which collected by the Investigating Officer relating to make out the case against these accused and the charges leveled against them by the prosecution are required to be proved. If the accused were said to be tried for the offences even in a remote chance by the prosecution to secure conviction, since the complainant having dead, it would be a futile exercise to proceed with the case to prove the charges leveled against the petitioners/accused Nos.2 and 3. These are all the contentions taken up by the learned counsel for the petitioners, seeking for allow the petition and to consider the application filed by them under Section 227 of Cr.P.C. for discharging them from the alleged offences.
5. On the other hand, the learned HCGP for the State taken me through the FIR said to be recorded by the respondent/State in Crime No.149/2012 which is based on the complaint filed by the informant for the offences under Sections 307 and 394 of IPC shows that the accused have been entered into the scene of crime and made attempt to take away the life of the injured so also robbed the articles which were found in the house and the same were subjected to P.F. and at the instance of accused No.1-Manjunatha the same have been recovered based on his voluntary statement.
It is contended by the learned HCGP for the State that subsequent to register the crime against the accused, the Investigating Officer has taken up the case for investigation and thoroughly investigated and laid the charge-sheet against these accused Nos.2 and 3 also. subsequent to laying the charge-sheet, these accused have filed an application under Section 227 of Cr.P.C. but, the trial Court considered the material in which collected by the Investigating Officer during the course of investigation and recorded the statements of C.Ws.1 to 11 so also conducted the mahazar in the presence of the panch-witnesses and that itself indicates that there are sufficient material to proceed against the accused for framing of the charges and the accused were said to face the trial for the offence under Sections 307 and 394 of IPC. The trial Court in S.C. No.556/2013 has considered the material collected by the Investigating Officer including the statements of C.Ws.1 to 11 and so also the mahazar said to be conducted by the Investigating Officer and also recovery of the property at the instance of accused No.1 and subjected in P.F. These are all sufficient material to face the trial by the accused. Hence, the trial Court has rightly come to the conclusion that there are sufficient prima facie material against accused Nos.2 and 3 and consequently rejected the application filed by them under Section 227 of Cr.P.C. seeking for their discharge from the alleged offences. These are all the contentions taken by the learned HCGP for the State seeking for dismissal of the criminal revision petition preferred by accused Nos.2 and 3 and to confirm the order passed by the trial Court in S.C. No.556/2013 for having rejected the application filed by them under Section 227 of Cr.P.C.
6. It is in this backdrop of the contention taken by the learned counsel for the petitioners so also the counter made by the learned HCGP for the State, it is relevant to refer that the Investigation Officer has laid the charge-sheet against the accused as contemplated under Section 173 of Cr.P.C. During Investigation, the Investigating Officer recorded the statements of C.Ws.1 to 11 and their statements are in conformity with the substance in the FIR said to be recorded by the Police and it is based on the complaint filed by the complainant. The complainant is none other than the mother of accused No.2 and mother-in-law of accused No.3, who are the Medical Practitioner and Engineer respectively. It is made clear that as per the submissions made by the learned counsel for the petitioners, accused Nos.2 and 3 are residents of Perth City, Australia. But, the incident was taken place in the limit of Basaveshwaranagara Police Station, Bengaluru, India, on 05.04.2012. The case of the prosecution is that the accused committed the offence punishable under Sections 307 and 394 of IPC. But, for the last 9 years accused Nos.2 and 3 are residing at Perth City, Australia for the purpose of gaining and to lead their life. But, they have been only visiting India for seldom particularly their voyage. This contention is also taken up by the learned counsel for the petitioners. Apart from this, a civil litigation in respect of right and title to the house property situated in Basaveshwaranagar, Bengaluru having gone on between the complainant, her family members and accused No.1- Manjunatha. The incident has been narrated in the complaint and based on the complaint the crime was registered and thereafter the Investigating Officer has taken up the case for investigation and after completion of the investigation laid the charge-sheet against the accused persons.
7. It is relevant to place reliance on the decision of the Hon’ble Apex Court in the case of L. Krishna Reddy Vs. State by Station House Officer and Others, reported in 2013(4) Crimes 485 (SC), wherein it is held as under:
“Code of Criminal Procedure, 1973 – Section 277 – Discharge of accused – Factor to be considered – Whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime – If trial would be an exercise in futility, it should be brought to a quick end – Instantly no direct evidence to connect accused persons to the crime – Accused entitled to discharge.”
In the instant case, accused Nos.2 and 3 are daughter and son-in-law respectively of the complainant and based upon the complaint, crime came to be registered and thereafter, proceeded into investigation and laid the charge-sheet. But, the cursory glance at the statements of C.Ws.1 to 11 and also the material collected by the Investigating Officer which is said to be treated against these accused and also the ingredients relating to the offence under Sections 307 and 394 of IPC., the same is the material in which collected by the Investigating Officer and also laid the charge-sheet against the accused, it doesn’t constitute the alleged offence against accused No.2 and 3, since there is no role made by them.
8. It is relevant to place reliance on the decision of the Hon’ble Apex Court in the case of Union of India Vs. Prafulla Kumar Samal and another, reported in AIR 1979 Supreme Court 366, wherein it is held as under:
“Criminal P.C. (2 of 1974), S. 227 Question regarding discharge – Determination of – Test and duty of Court.
The Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence of the limited purpose of finding out whether or not a prima-facie case against the accused has been made out.
Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.”
9. In the instant case, merely because laying the charge-sheet by the Investigating Officer against accused Nos.2 and 3, it cannot be said that the accused are required to face the trial unless there shall be a strong and sufficient material finds a place in the record for framing of the charges for the alleged offences. In the instant case, accused Nos.2 and 3 are none other than the relatives of the complainant and based upon the complaint, crime came to be registered by Basaveshwaranagara Police and thereafter, proceeded with the case for Investigation by the Investigating Officer and after completion of the investigation laid the charge-sheet against the accused. Merely because laying the charge-sheet against the accused it cannot be said that it requires to be facing of a trial.
10. It is relevant to place reliance on the decision of the Hon’ble Apex Court in the case of State of U.P. through Central Bureau of Investigation Vs. Dr. Sanjay Singh and another, reported in 1994 Supreme Court Cases (Cri.) 1701, wherein it is held as under:
“A. Criminal Procedure Code, 173 – Ss. 239 and 240 -Mere suspicious of motive not a sufficient ground for framing charges - Absence of direct evidence to prove conspiracy – Circumstantial evidence, even if unrebutted or totally accepted creating only a suspicion of motive – Held, accused persons rightly discharged by the courts below.”
11. The aforesaid citations have been facilitated by the learned counsel for accused Nos.2 and 3 to consider their application filed under Section 227 of Cr.P.C. in S.C. No.556/2013. However, the gold ornaments said to be robbed in the scene of crime have been seized at the instance of accused No.1-Manjunatha and so also his voluntary statement was recorded. Therefore, it is said that the voluntary statement of accused No.1-Manjunatha is nothing to do with the petitioners/accused Nos.2 and 3 to connect the alleged offences and more over they are staying in Australia. Therefore, it is said that there are no sufficient material or otherwise to say strong material to proceed against the petitioners/accused Nos.2 and 3 for framing of the charges. Therefore, it is deemed to be appropriate for consideration of the application filed by the petitioners/accused Nos.2 and 3 under Section 227 of Cr.P.C. seeking for their discharge from the offences under Sections 307 and 394 of IPC. In terms of the aforesaid reasons and findings, I am of the considered opinion that this criminal revision petition deserves to be allowed. However, the rights of the accused shall be always to be looked into in a material which finds a place in the record by the Investigating Officer during the course of the investigation. Merely because facing of the trial by accused Nos.2 and 3 in the charge-sheet laid by the Investigating Officer, it cannot be accepted or otherwise to say that remote chances of secure the accused by the prosecution to trial. However, it is a duty cast upon the prosecution to prove the guilt of the accused beyond all reasonable doubt to secure conviction but, it cannot in the instant case against them. Therefore, there are substance in the contention taken by the learned counsel for the petitioners seeking for consideration of the application filed under Section 227 of Cr.P.C. for accused Nos.2 and 3 and consequently to allow this criminal revision petition preferred by them and to set aside the order passed by the trial Court in S.C. No.556/2013, dated 30.06.2014. Consequently, this criminal revision petition has to be allowed in terms of the aforesaid reasons. Accordingly, I proceed to pass the following:
ORDER The criminal revision petition filed by the petitioners/accused Nos.2 and 3 under Section 397 r/w. Section 401 of Cr.P.C. is hereby allowed. Consequently, application filed by them under Section 227 of Cr.P.C. has been allowed and having discharged from the alleged offences.
Whatever observations made in this order regarding the petitioners/accused Nos.2 and 3, it shall not influence in the mind of the trial Court in S.C. No.556/2013 relating to facing of trial by accused No.1-Manjunatha.
Sd/- JUDGE Ksm*