IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4989/2015 BETWEEN:
1. MR GOPALAKRISHNA SHETTY AGED 56 YEARS, SON OF BHASKAR SHETTY, R/AT VINAYA DURGA HOUSE, TALAPADY VILLAGE, MANGALURU TALUK – 575 001 2. MRS.AMITHA @ YASHAVANTHI SHETTY AGED 35 YEARS W/O DEVIPRASAD SHETTY R/AT KODIBAIL HOUSE, UPPALA, KERALA – 571 450 3. MR.GANESH SHETTY AGED 45 YEARS, SON OF BHASKAR SHETTY, R/AT VIJAYA DURGA HOUSE, TALAPADY VILLAGE, MANGALURU TALUK – 575 001 4. MR. SATHISH PERGADE AGED 45 YEARS, SON OF SHANTHARAM PERGADE, R/AT KOPPARATHOTA HOUSE, OPP: PUMPWELL PETROL BUNK, MANGALURU – 575 003 5. MR.SHEENA SHETTY AGED 64 YEARS, SON OF ITHAPPA SHETTY, R/AT KODIBAIL HOUSE AND VILLAGE, UPPALA, KASARAGOD TALUK KERALA – 571 450 6. SMT. SHANTHA SHETTY AGED 51 YEARS, W/O JAGANNATH SHETTY, R/AT MATHRA KRIPA HOUSE, NEAR MADYAR TEMPLE, KOTEKAR VILLAGE, MANGALURU TALUK - 575001 7. MR. PURUSHOTHAMA SHETTY AGED 54 YEARS, SON OF MARAPPA SHETTY, R/AT SHETTY HOUSE, TALAPADY VILLAGE, MANGALURU TALUK - 575001. .. PETITIONERS (BY SRI PRASAD K.R. RAO, ADV. FOR SRI P. P. HEGDE , ADV.) AND:
1. SRI DEVIPRASAD SHETTY AGED 49 YEARS, SON OF KRISHNA SHETTY RESIDING AT BELLEJAL HOUSE, BANANGADY POST, KALLAMUNDKOOR VILLAGE, MANGALURU TALUK – 575 001 2. THE SUB INSPECTOR OF POLICE MOODBIDRI POLICE STATOIN, MOODBIDRI, MANGALURU TALUK, D.K.DISTRICT REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGULURU – 560 001. ... RESPONDENTS (BY SRI S. VISHWAJITH SHETTY, ADV. FOR R1 SRI NASRULLA KHAN, HCGP. FOR R2) THIS CRL.P IS FILED U/S.482 OF CR.P.C BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE ORDER DATED 25.01.2007 PASSED BY THE C.J. AND J.M.F.C., MOODBIDRI IN CR. NO.81/2004 OF MOODBIDRI P.S., (SUBSEQUENTLY REGISTERED AS C.C.NO.63/2007), REGISTERING THE CRIMINAL CASE AGAINST THE PETITIONERS HEREIN AND ISSUING PROCESS AGAINST THEM AND TO QUASH ALL FURTHER PROCEEDINGS IN THE SAID CASE AND ALSO THE ORDER DATED 07.04.2015 PASSED BY THE IV ADDL. S.J., D.K., MANGALURU, IN CRL.R.P.NO.56/2007 ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioners, learned counsel for respondent No.1 and learned High Court Government Pleader for respondent No.2 - State.
2. The petitioners have sought to quash the order dated 25.01.2007, passed by the Civil Judge and JMFC, Moodbidiri in Crime No.81/2004, whereby, summons is issued to the petitioners to face trial for the offences punishable under Sections 143, 147, 148, 341, 447, 324, 326 and 307 r/w. 149 of IPC.
3. Learned counsel for the petitioners submits that initially the investigating officer had submitted a ‘B’ summary report. The learned Magistrate without rejecting the ‘B’ report, issued summons to the petitioners contrary to the law laid down by this Court in the case of Dr. Ravikumar Vs. Mrs. K.M.C.Vasantha and Another reported in ILR 2018 KAR 1725. Further, he submits that the allegations made against the petitioners do not make out the ingredients of the offence under Section 307 of IPC, in spite of it, learned Magistrate has blindly taken cognizance of the above offences including the offence under Section 307 of IPC, which has resulted in failure of justice and hence, the proceedings are liable to be quashed.
4. Refuting the above submissions, learned counsel for respondent No.1 and the learned Government Pleader for respondent No.2 submit that the materials on record prima facie establish the commission of offences charged against the petitioners including the offence under Section 307 of IPC. The complainant has produced two wound certificates which indicate that the complainant was assaulted with sword and iron rods causing fractures. There is abundant evidence which indicates the intention to cause the death of the complainant. Therefore, the learned Magistrate was justified in taking cognizance of the above offences. Further, it is submitted that the Court below has dismissed the Criminal Revision Petition filed by the petitioners in Crl.R.P.No.56/2007, by order dated 07.04.2015. Hence, there is no reason to interfere with the findings recorded by the Court below and thus, seeks to dismiss the petition.
5. Basic facts are not in dispute. The criminal law was set in motion by the complainant by lodging a written complaint alleging the specific overt acts by the petitioners and incriminating materials were also produced before the investigating officer. Without considering the same, the investigating officer submitted a ‘B’ summary report. The complainant filed his protest petition and produced necessary documents including wound certificates for the injuries suffered by the complainant and examined five witnesses. The witnesses examined by the complainant deposed about the overt acts committed by each of the accused persons and the weapons used by them to cause injuries on the complainant. Considering these materials, learned Magistrate has taken cognizance of the alleged offences and has issued summons to the petitioners. In the wake of these facts, the contention urged by the petitioners that, the learned Magistrate has failed to follow the procedure contemplated in the Code of Criminal Procedure, 1973, and in the case of Dr. Ravikumar supra, cannot be accepted.
6. A perusal of the impugned order reveals that the learned Magistrate after recording the sworn statement of the complainant and upon examination of the witnesses has formed an opinion that sufficient materials are available to take cognizance of the alleged above offences. The reasons putforth by the learned Magistrate in the impugned order read as under:
“….. On perusal of the said final report it goes to show that the S.H.O. of Moodbidri police station without properly investigating the matter has filed report stating that there is no material to file charge sheet against the accused for the alleged offences. From the facts stated by PW’s 1 to 5 in their sworn statements and from the contents of Exs.P1 and P2 and the statement of complainant recorded by H.C. no.1214 on 12/8/2004 I am of the view that there are sufficient materials to proceed against the accused no.1 and 3 to 8 for the offences punishable u/s 143, 147, 148, 341, 447, 324, 326, 307 r/w 149 of I.P.C. From the sworn statements of PW’s 1 to 3 at this stage it goes to show that accused no.2, the wife of complainant was present at the place of occurrence and she instigated accused no.1 and 3 to 8 to assault the complainant. Therefore she has to be prosecuted along with accused no.1 and 3 to 8 u/s 114 of I.P.C. In view of my aforesaid findings I proceed to pass the following:
O R D E R There are sufficient materials on record to proceed against the accused for the offences punishable u/s 143, 147, 148, 341, 447, 324, 326, 307 r/w 114 and 149 of I.P.C.
Office is hereby directed to register the case against the accused as C.C. and issue summons to them if P.F. is paid and the copies of complaint is furnished.”
7. This order is in confirmity with the law laid down by the Hon’ble Supreme Court in the case of Kamalapati Trivedi Vs. State of West Bengal reported in 1980 (2) SCC 91. The above order clearly reflects that the learned Magistrate has arrived at an opinion that sufficient materials are available for taking cognizance of the offences alleged against the petitioners. Though in so many words, the learned Magistrate has not stated that ‘B’ summary report has been rejected but a reading of the above portion of the order clearly indicates that only after rejecting the ‘B’ summary report, the learned Magistrate has proceeded to issue summons to the accused. Therefore, I do not find any error or illegality whatsoever in the procedure adopted by the learned Magistrate in issuing summons to the petitioners, warranting interference under Section 482 of Cr.P.C. I do not find any justifiable reason to quash the impugned proceedings. Accordingly, petition is dismissed.
* All contentions are left open. Liberty is reserved to the petitioners to urge the above contentions seeking their discharge on such grounds available under law.
Sd/- JUDGE nvj * Inserted vide Court order dated 05.03.2019