IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.907 of 2015 BETWEEN:
DR. SATHISH S., S/O SUNDARA RAJAN, AGED ABOUT 38 YEARS, R/AT THONDE BAVI, JYER’S HOTEL, GOWRI BIDANOOR, KOLAR DISTRICT – 561 208.
(BY SRI B RAVINDRA, ADVOCATE) AND:
1. DR. SMITHA B.S., D/O D. SATHYANARAYANA RAO, AGED ABOUT 35 YEARS, NO.1, 26TH BLOCK, BEML COLONY, SRIRAMAPURA 2ND STAGE, MYSORE CITY, KARNATAKA – 570 011.
2. STATE BY VIDYARANYA PURA POLICE MYSORE CITY, REPRESENTED BY SPP, HIGH COURT BANGALORE – 01.
(BY SRI KAPIL DIXIT, ADVOCATE FOR R-1. SRI S.T. NAIK, HCGP FOR R-2) ... PETITIONER ... RESPONDENTS THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE ORDER IN S.C.NO.75/2013 DATED 29.07.2015 PASSED UNDER SECTION 227 OF CR.P.C. BY II ADDITIONAL SESSIONS JUDGE, MYSORE AND DISCHARGE THE PETITIONER FROM THE ALLEGED OFFENCES UNDER SECTIONS 498A, 307 READ WITH SECTIONS 3 AND 4 OF D.P.ACT.
THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition is filed by the petitioner/accused No.1 under Section 397 read with Section 401 of Cr.P.C. to set aside the order dated 29.07.2015 passed by the II Additional Sessions Judge, Mysuru, in S.C.No.75/2013, on the application filed by the accused/petitioner under Section 227 of Cr.P.C.
2. The petitioner is accused No.1 and respondent No.1 is the complainant and respondent No.2 is the State before the Trial Court. The ranks of the parties before the Court below are retained for the sake of convenience.
3. The factual matrix of the case of the prosecution before the Trial Court is that on 09.06.2012, Dr.B.S.Smitha-respondent No.1 herein lodged a complaint before the Police-respondent No.2 herein, to take action against her husband Dr.Sathish.S, who is accused/petitioner herein under Sections 498A and 307 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (‘D.P.Act’ for short). Based upon the complaint, the Police registered a case in Crime No.81/2012 for the offences punishable under Sections 498A and 307 read with Section 34 of IPC and Sections 3 and 4 of the D.P Act. Initially, the Police have shown the names of accused No.1 and his family members, in all seven in number, and after completion of the investigation and filing of the charge- sheet, the Police deleted the names of the family members of the accused/petitioner and filed charge-sheet only against the accused/petitioner for the offences punishable under Sections 498A and 307 read with Section 34 of IPC and Sections 3 and 4 of the D.P. Act.
The learned Magistrate after taking cognizance, committed the case to the Court of Sessions. Accordingly, the Sessions Case has been registered by the District and Sessions Judge, Mysuru and later allotted the same to the II Additional Sessions Judge, Mysuru. After appearance of the accused/petitioner before the Trial Court, he was released on bail. Thereafter, he moved an application under Section 227 of Cr.P.C. to discharge him of the offences alleged in the charge-sheet. After hearing both sides, the learned Sessions Judge rejected the application of the accused/petitioner under Section 227 of the Cr.P.C. by order dated 29.07.2015 holding that there is sufficient material to frame charges against the accused/petitioner. The same is challenged before this Court by the accused/petitioner on the ground that the Court below has gravely erred in rejecting his application under Section 227 of Cr.P.C. and the same is manifestly erroneous and opposed to the facts and circumstances of the case. Even though, in the complaint, along with the accused/petitioner, six other family members were implicated as accused, but after the investigation, the respondent-Police filed charge-sheet only against the accused/petitioner and even though there were no specific overt acts alleged against the family members of the accused/petitioner, during the course of investigation, the Police found that those allegations are false. The Court below has gravely erred in rejecting the application of the accused/petitioner under Section 227 of Cr.P.C. Even though, prior to the complaint dated 09.06.2012, the complainant lodged another complaint on 01.06.2012 wherein, she did not whisper anything about the attempt made by the accused/petitioner for committing her murder and the allegation is completely an afterthought, which has no bearing and the same has been ignored by the Court below. As per the allegation, the accused/petitioner is said to have attempted to kill the complainant by squeezing her neck, but the complainant neither voluntarily approached the doctor to treat her injury nor the Police took her to any Doctor to ascertain as to whether she sustained any such injury on her neck, as it is mandatory for the Police to ascertain the same from the medical expert to attract Section 307 of IPC. In the absence of any injury, Section 307 of IPC would not be attracted and in support of the same, the counsel made reference to the definition of grievous injuries under Section 320 of IPC and prayed for setting aside of the order of Trial Court and to discharge the accused/petitioner of the charges leveled against him under Section 307 of IPC.
4. The complainant-respondent No.1 appeared through the learned counsel and filed her objections.
Sri S.T.Naik, learned HCGP takes notice for respondent No.2.
5. Learned counsel for the petitioner strenuously argued that there must be an injury or a hurt or there must be a medical certificate or a medical evidence to attract Section 307 of IPC and to frame charges for the offence punishable under Section 307 of IPC and in support of his case, he relied on the definition of ‘grievous hurt’ defined under Section 320 of IPC. Apart from that, it is also contended by learned counsel for the accused/petitioner that the Trial Court has ignored the admission made by the complainant/respondent No.1 in the miscellaneous proceedings where she admitted that the accused/petitioner did not make any attempt to kill her. Therefore, there is no offence alleged against the accused/petitioner.
6. On the other hand, learned counsel for respondent No.1 contended that in order to attract Section 307 of IPC, attempt to commit murder have two parts, i.e., hurt and without hurt. The first part refers to punishment for 10 years, if there is no hurt; and if hurt is caused, punishment extends to imprisonment for life. Therefore, in order to attract Section 307 of IPC, injury is not required. It is also contended that immediately after the incident on 17.05.2012, the complainant approached Mahila Police Station and lodged a complaint, but they have not taken any action by registering a case. Therefore, she was constrained to approach the Police Helpline of the Commissioner of Police, Mysuru. Thereafter, the accused/petitioner was summoned to the Police Station on 25.03.2012, where he gave an undertaking to take care of the complainant and to lead a marital life and undertook to appear before the Police helpline on 10.06.2012, but he ran away. Therefore, she was constrained to file a complaint. As such, there is no delay in lodging the complaint. Hence, prayed for dismissal of the petition.
7. Heard learned counsel on both sides and perused the records.
8. On perusal of the record and the findings given by the learned Sessions Judge, the Trial Court while passing order under Section 227 of Cr.P.C., has held that while framing charges, the Court cannot go into the merits of the case for either acquittal or conviction and though it has stated that it has relied upon a judgment of the Supreme Court, it has not mentioned the citation of the said judgment. However, it is well settled by the Hon’ble Supreme Court in respect of framing of charges for discharging the accused under Section 227 or to frame charges under Section 228 of Cr.P.C., in the case of Sajjan Kumar vs. Central Bureau of Investigation in S.L.P. (Crl.) 6374/2010 decided on 20.09.2010 wherein, the Hon’ble Supreme Court on the basis of the decisions in the case of Union of India vs. Prafulla Kumar Samal and another (1979) 3 SCC 4 and Dilawar Balu Kurane vs. State of Maharashtra (2002)2 SCC 135 has held that while exercising jurisdiction under Section 227 of the Code, the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office of a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. The Supreme Court has enumerated the following principles at paragraph 17 of its judgment;
“(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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.
(iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction of acquittal.”
9. In the backdrop of the decision of the Hon’ble Supreme Court and the principles laid down by the Hon’ble Supreme Court in various judgments and on looking to the facts of the case, the complaint against the accused/petitioner came to be filed before the Police on 09.06.2012. It is an admitted fact that the accused/petitioner and respondent No.1 were husband and wife and are practicing Doctors. The accused/petitioner is said to be working in a Government Hospital, Thondebhavi, Chikkaballapura District; whereas, respondent No.1 is said to be a medical practitioner at Mysuru. The complaint goes to show that at the time of marriage, gold and silver ornaments were given as dowry and also bracelet to the accused/petitioner. While they were living together, the accused/petitioner is said to have not taken care of her and neglected her, however, she continued her marital life with him and he has ill-treated her physically and mentally. Further, the complaint goes to show that the accused/petitioner is said to have continued the ill- treatment in June 2011 and thereafter, on 23.02.2012, when she went to her parents house, the accused/petitioner is said to have celebrated Ugadi festival without inviting her. When she enquired about the same, accused/petitioner and his family members abused her unnecessarily. Therefore, she went to Vidyaranyapura Police station and lodged a complaint, but they advised her to lead a marital life. Thereafter, on 03.04.2012, the accused/petitioner came to the house after consuming alcohol and assaulted her and with an intention to kill her, he throttled and squeezed her neck to commit murder. She escaped and went to J.P Nagara Police station and informed the Police and the Police called the accused/petitioner and advised him by giving warning.
Again on 11.05.2012, there was a counseling regarding transfer at Bengaluru and the accused/petitioner went to Bengaluru on 13.05.2012 and returned. When she enquired, the accused/petitioner is said to have abused her stating that he needed Rs.3 lakhs and whether she could pay the same. Thereafter, on 17.05.2012, at about 10.00 p.m. in the night, the accused/petitioner came to the house, picked-up a quarrel with her, abused her in filthy language and tried to assault her and squeezed her neck to commit murder and when she raised a cry, he left her. Thereafter, on 20.05.2012 and 21.05.2012, she went to the Women Police Station and lodged a complaint, but they did not take any action against the accused/petitioner. Therefore, she was constrained to lodge a complaint with the helpline of Commissioner of Police and the case came to be registered. A perusal of the complaint and the allegation goes to show that the accused/petitioner assaulted her, squeezed her neck and attempted to commit murder. Admittedly, the complainant has not stated that she has sustained any injury and went to hospital and took treatment. It is well settled by the Hon’ble Supreme Court in a catena of decisions that to attract Section 307 of IPC, injury is not sine quo non for Section 307 of IPC. Section 307 of IPC reads as follows;
“Attempt to murder. – Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”
On a bare reading of the aforesaid provision, the second part of the Section clearly goes to show that if hurt is not caused, the accused be punished with ten years of imprisonment, but if hurt is caused, he be punished with imprisonment for life. Learned counsel for the respondent contended that hurt though not required for attracting Section 307 of IPC, but the Court is required to consider all the material available on record for conducting trial and to frame charges under Section 307 of IPC. The argument is acceptable one. The complaint cannot be discarded or brushed aside at the time of framing of charges. The Court cannot go into the merits of the case either for acquittal or conviction while framing of charges. Therefore, merely the complainant respondent No.1 has not sustained any injury, that itself is not a ground to reject the complaint at the time of framing of charges. Therefore, the contention of the accused/petitioner is not acceptable. Regarding, the delay in lodging the complaint, without expressing any opinion on the delay, it is held that there is material placed on record by the Police to frame charges against the accused/petitioner under Section 498(A) and 307 of IPC and also Sections 3 and 4 of the D.P. Act. However, Section 34 of IPC would not attract since there is no charge-sheet filed against any other accused to attract Section 34 of IPC. Therefore, there is no error or illegality committed by the Court below while rejecting the application of the accused/petitioner under Section 227 of Cr.P.C.
10. Accordingly, the Criminal Revision Petition is dismissed. The order dated 29.07.2015 passed by the II Additional Sessions Judge, Mysuru, in S.C.No.75/2013 on the application filed by the accused/petitioner under Section 227 of Cr.P.C. is confirmed. The Trial Court is directed to proceed against the accused/petitioner, in accordance with law by excluding Section 34 of IPC.
Send copy of this order to the Trial Court.
In view of dismissal of the Revision Petition itself, I.A.No.1/2018 for extension of stay does not survive for consideration and the same is also disposed off.
Learned HCGP is permitted to file his memo of appearance for respondent No.2 within four weeks.
SD/- JUDGE mv