IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8309/2015 C/W CRIMINAL PETITION No.8308/2015 IN CRIMINAL PETITION No.8309/2015 BETWEEN:
FARHANA KHANUM, W/O.LIYAKATH KHAN, D/O.NAZEER KHAN, AGED ABOUT 34 YEARS, RESIDING AT BEHIND DHANA PALACE, MELEKOTE ROAD, TUMAKURU CITY-572103. ... PETITIONER (BY SRI.T.GOVINDA RAJA, ADVOCATE) AND:
1. SRI.LIYAKATH KHAN, S/O.SARDAR KHAN, AGED ABOUT 41 YEARS, RESIDING AT BIBIJAN COLONY, GUBBI GATE, TUMAKURU CITY-572103, NOW RESIDING AT RAJIVGANDHINAGAR, MELEKOTE ROAD, TUMAKURU CITY-572103.
2. SRI.SARDAR KHAN, S/O.SIDDIQ KHAN, AGED ABOUT 62 YEARS.
3. SRI.NOOR JAN, S/O.SARDAR KHAN, AGED ABOUT 52 YEARS.
4. SRI.AMJAD KHAN, S/O.SARDAR KHAN, AGED ABOUT 26 YEARS.
5. SRI.IDAITH KHAN @MUNNA, S/O.SARDAR KHAN, AGED ABOUT 24 YEARS.
6. SMT.RESHMA KHANUM, D/O.SARDAR KHAN, AGED ABOUT 35 YEARS.
THE RESPONDENTS NO.2 TO 6 ARE R/O. G.C.R.COLONY, GUBBI GATE, TUMAKURU CITY-572101. ... RESPONDENTS (BY SRI.N.SRINIVAS, ADVOCATE) THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO SET- ASIDE THE ORDER IN CRL.RP.NO.76/2014 CONNECTED WITH CRL.R.P.NO.73/2014 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR, DATED 02.09.2015 IN ANNEXURE-H BY QUASHING IT AND TO SET ASIDE THE ORDER OF THE II ADDL. CIVIL JUDGE AND J.M.F.C. AT TUMAKURU, IN C.C.NO.3123/2001 DATED 09.12.2013 IN ANNEXURE-G BY DIRECTING IT TO TAKE COGNIZANCE OF THE CASE UNDER SEC.307 OF I.P.C ALSO FOR PROCEEDING FURTHER IN ACCORDANCE WITH LAW.
IN CRIMINAL PETITION No.8308/2015 BETWEEN:
FARHANA KHAN, W/O.LIYAKATH KHAN, D/O.NAZEER KHAN, AGED ABOUT 34 YEARS, RESIDING AT BEHIND DHANA PALACE, MELEKOTE ROAD, TUMAKURU CITY-572103. ... PETITIONER (BY SRI.T.GOVINDA RAJA, ADVOCATE) AND:
1. SRI.LIYAKATH KHAN, S/O.SARDAR KHAN, AGED ABOUT 41 YEARS, RESIDING AT BIBIJAN COLONY, GUBBI GATE, TUMAKURU CITY-572103, NOW RESIDING AT RAJIVGANDHINAGAR, MELEKOTE ROAD, TUMAKURU CITY-572103.
2. SRI.SARDAR KHAN, S/O.SIDDIQ KHAN, AGED ABOUT 62 YEARS.
3. SRI.NOOR JAN, S/O.SARDAR KHAN, AGED ABOUT 52 YEARS.
4. SRI.AMJAD KHAN, S/O.SARDAR KHAN, AGED ABOUT 26 YEARS.
5. SRI.IDAITH KHAN @MUNNA, S/O.SARDAR KHAN, AGED ABOUT 24 YEARS.
6. SMT.RESHMA KHANUM, D/O.SARDAR KHAN, AGED ABOUT 35 YEARS.
THE RESPONDENTS NO.2 TO 6 ARE R/O. G.C.R.COLONY, GUBBI GATE, TUMAKURU CITY-572101. ... RESPONDENTS (BY SRI.N.SRINIVAS, ADVOCATE) THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO SET- ASIDE THE ORDER IN CRL.RP.NO.73/2014 CONNECTED WITH CRL.R.P.NO.76/2014 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR, DATED 02.09.2015 IN ANNEXURE-H BY QUASHING IT AND SET ASIDE THE ORDER ON THE FILE OF THE II ADDL. CIVIL JUDGE AND J.M.F.C. AT TUMAKURU, IN C.C.NO.3123/2001 DATED 09.12.2013 IN ANNEXURE-G BY DIRECTING IT TO TAKE COGNIZANCE OF THE CASE UNDER SEC.307 OF I.P.C ALSO FOR PROCEEDING FURTHER IN ACCORDANCE WITH LAW.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned counsel for respondents. Perused the records.
Petitioner has sought to set-aside the order dated 2.09.2015 in Criminal Revision Petition No.76/2014 c/w. Criminal Revision Petition No.76/2014 passed by the VI Addl. District and Sessions Judge, Tumakuru.
2. By the said order, learned Sessions Judge dismissed the revision petition filed by the petitioner herein in Criminal Revision Petition No.73/2014 and allowed the revision petition filed by the respondents herein in Criminal Revision Petition No.76/2014 and consequently, set-aside the order dated 09.12.2013 passed by the learned II Addl. Civil Judge and JMFC, Tumakuru in C.C.No.3123/2001.
3. Petitioner herein filed a complaint before the Tumakuru Police on 18.11.2001 alleging commission of offences by the respondents under sections 498A, 323, 324, 504 read with 149 of Indian Penal Code. Based on this complaint, Crime No.131/2001 was registered against the respondents and after investigation, charge sheet was submitted before the Court and learned Magistrate commenced trial in C.C.No.1015/2002. During the pendency of these proceedings, petitioner filed a private complaint in PCR.No.351/2001 before the II Addl. Civil Judge (Jr. Dn.) and JMFC, Tumakuru, in respect of the very same incident. However, in this complaint, she made further allegation that during the occurrence, the respondents tried to squeeze her neck and thereby committed an offence under section 307 of Indian Penal Code in addition to the other offences alleged in Crime No.131/2001. Learned Magistrate took cognizance of the above offences and issued summons to the respondents.
The case was registered as C.C.No.3123/2001 against the respondents.
4. Respondents challenged issuance of summons by filing Criminal Revision Petition No.76/2014. Complainant being aggrieved by the portion of the order passed by learned Magistrate refusing to take cognizance of the offence under section 307 of Indian Penal Code filed Criminal Revision Petition No.73/2014.
5. By the impugned order, learned Sessions Judge dismissed the Criminal Revision Petition No.73/2014 filed by the complainant/petitioner and has allowed the Criminal Revision Petition No.76/2014 filed by the accused/respondent.
6. The contention of the learned counsel for petitioner is that the allegations made in the private complaint prima facie disclose the ingredients of offence under section 307 of Indian Penal Code and therefore, the revisional court has committed an error in dismissing the revision petition filed by the petitioner.
7. On going through the material on record, I am unable to accept the submission of the learned counsel for the petitioner. Undisputedly, at the first instance, petitioner/ complainant approached the police in respect of incident that is alleged to have taken place in the matrimonial home on 16.11.2001 and 17.11.2001. After investigation, a charge- sheet was laid against the respondents only under sections 498A, 323, 324, 504 read with 149 of Indian Penal Code. During pendency of the said proceedings, in respect of the very same incident, complainant filed a private complaint making very same allegations.
8. On considering the material on record and nature of injuries sustained by the complainant during the alleged occurrence, learned Sessions Judge has observed that the said material does not make out the ingredients of offence under section 307 of Indian Penal Code. On going through the allegation made in the private complaint as well as in the police complaint filed by the complainant, I find that the allegations made in the private complaint, even if accepted on their face value, would not make out the ingredients of offence under section 307 of Indian Penal Code. In that view of the matter, learned Sessions Judge was justified in rejecting the revision petition filed by the petitioner insofar as offence under section 307 of Indian Penal Code is concerned.
9. Insofar as other offences undisputedly, charge- sheet laid against the respondents for the offences under sections 498A, 323, 324, 504 read with 149 Indian Penal Code is pending trial in C.C.No.1015/2002 before the II Addl. Civil Judge and JMFC, Tumakuru. Under the said circumstances, complainant is not entitled to vex the same issues and initiate second prosecution of respondents on the same set of allegations in respect of the same offences which is wholly illegal and violative of section 300 of Cr.P.C. and Article 20(2) of the Constitution of India. In that view of the matter, learned Sessions Judge was well justified in dismissing Criminal Revision Petition No.73/2014 filed by petitioner and allowing Criminal Revision Petition No.76/2014 filed by respondents and setting aside the order dated 9.12.2013 in C.C.No.3123/001 passed by the II Addl. Civil Judge and JMFC, Tumakuru.
For the above reasons, I do not find any error or illegality in the order passed by the learned Sessions Judge warranting interference under section 482 of Cr.P.C. The contentions urged by the petitioner are devoid of merits.
Consequently, both the petitions are dismissed.
Sd/- JUDGE Bss