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.2746 OF 2016 BETWEEN:
MAHADEVA S/O CHIKKAMALLEGOWDA, AGED ABOUT 60 YEARS, R/AT KURUBARA BEEDHI, MUGUR VILLAGE, T NARASIPURA TALUK, MYSURU DISTRICT-571 116 (BY SRI: C.M. JAGADEESH, ADVOCATE) AND:
1. STATE BY T. NARASIPURA POLICE MYSURU DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR STATE OF KARNATAKA, HIGH COURT BUILDING, BENGALURU-560 001 2. MOHAN KUMAR @ SHIVU S/O RAJAMANI AGED ABOUT 41 YEARS 3. SHIVAMURTHY M R S/O LATE M RAJEGOWDA, ... PETITIONER AGED ABOUT 50 YEARS, 4. SOMANNA M R S/O LATE M RAJEGOWDA, AGED ABOUT 57 YEARS, 5. DILEEP KUMAR S/O SOMANNA M R AGED ABOUT 28 YEARS, 6. ANIKETH GOWDA S/O SOMANNA M R AGED ABOUT 22 YEARS, 7. KULLANANJE GOWDA S/O LATE KENCHEGOWDA, AGED ABOUT 65 YEARS, 8. MAHESH @ JWALA S/O KULLANANJE GOWDA AGED ABOUT 32 YEARS, 9. SURESH K S/O KULLANANJEGOWDA, AGED ABOUT 27 YEARS, 10. NANJUNDEGOWDA S/O LATE KENCHEGOWDA, AGED ABOUT 50 YEARS, 11. KASHIBASAVANNA S/O LATE KENCHEGOWDA, AGED ABOUT 57 YEARS, 12. VIJAYAKUMAR S/O KASHIBASAVANNA AGED ABOUT 32 YEARS, 13. POKU MAHADEVA S/O KENCHEGOWDA, AGED ABOUT 70 YEARS, 14. RAMA S/O POKU MAHADEVEGOWDA, AGED ABOUT 32 YEARS, ALL ARE R/AT KURUBARA BEEDHI, MUGURU VILLAGE, T NARASIPURA TALUK, MYSURU DISTRICT-571 116 ... RESPONDENTS (BY SRI: I.S. PRAMOD CHANDRA, SPP-II FOR R1 SRI: G.PAVAN KUMAR, ADVOCATE FOR SRI: S.SHANKARAPPA, ADVOCATE FOR R2 TO R14) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER PASSED BY THE HON'BLE V ADDL. DIST. AND S.J., MYSURU IN CRL.R.P.372/2014 DATED 15.02.2016 AS PER ANNEXURE-D AND CONFIRM THE ORDER PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT T.NARAISIPURA IN CR.NO.360/2011 DATED 23.09.2014 ANNEXURE-C.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner is aggrieved by the order passed by the V Additional District and Sessions Judge, Mysuru in Criminal Revision Petition No.372/2014 dated 15.02.2016 whereby the learned Sessions Judge has set-aside the order passed by the learned Senior Civil Judge and JMFC at T.Narasipura in Cr.No.360/2011 dated 23.09.2014 and has rejected the ‘B’ report submitted by the respondent No.1 – Police.
2. Petitioner herein set the criminal law in motion by lodging a complaint on 20.12.2011 in respect of the incident that is alleged to have taken place on 19.12.2011 at 8.00 p.m. near his house. In the complaint, he specifically alleged that during the occurrence, respondent Nos.2 to 14 herein came near his house armed with clubs, axe and choppers and assaulted the complainant, Somanna, Suresha, Rajanna, Shivakumar and Basavanna. After investigation, respondent No.1 Police submitted a ‘B’ report. Learned Magistrate rejected the ‘B’ Report and issued summons to respondent Nos.2 to 14/accused Nos.1 to 13. Accused persons challenged the said summons before the revisional court and by the impugned order dated 15.02.2016, learned Sessions Judge has set-aside the orders of the learned Magistrate and consequently accepted the ‘B’ report submitted by the respondent No.1- Police.
3. Heard the learned counsel for the petitioner, learned SPP-II for respondent No.1 and learned counsel for respondent Nos.2 to 14. Perused the records.
4. As rightly pointed out by the learned counsel for the petitioner, learned Sessions Judge has noticeably misread the material on record. Even though the complainant had specifically stated in the complaint as well as in his sworn statement that on 19.12.2011 at 8.00 p.m., respondent Nos.2 to 14 herein came near his house armed with clubs, axe and choppers and assaulted Suresh with a club and as a result, his tooth fell down and he also assaulted the complainant, Raghu, Kanaka, Rajanna and Manja, learned Sessions Judge has observed in the impugned order that the prosecution has not produced any material with regard to the incident that had taken place on 19.12.2011. Curiously learned Sessions Judge has observed that there is sufficient material on record to indicate that the incident had taken place at 1.30 p.m. on 20.12.2011. This is totally a new case made out by the learned Sessions Judge. It is not the case of the complainant that any occurrence had taken place on 20.12.2011 and no material was in fact collected by the Investigating Agency in proof of the said occurrence. The material collected by the Investigating Agency as well as the sworn statement given by the complainant and his witnesses clearly indicate that the incident had taken place on 19.12.2011 at around 8.00 p.m. Therefore, the observation made by the learned Sessions Judge that there was no sufficient material to prove the occurrence in question being contrary to the material on record, has resulted in illegality and perversity.
5. It is also deplorable to note that learned Sessions Judge has proceeded on the basis that the complainant has not narrated the time and place of the incident. This observation once again is perverse and smacks of the casual attitude of the learned Sessions Judge and demonstrates that he has not even looked into the complaint wherein specific allegations are made to the effect that the incident had occurred on the previous night between 7.30 p.m. and 8.00 p.m. The complaint was lodged on 20.12.2011. Therefore, it does not require legal acumen to come to the conclusion that there was specific narration of time and place of the incident. It is also a matter of record that in respect of the same occurrence, a counter case in Cr.No.359/2011 has been registered. Since the learned Sessions Judge has failed to consider entire material on record and has recorded erroneous finding by misreading the evidence, the impugned order passed by the learned Sessions Judge cannot be sustained. On consideration of the entire material on record, I find that the complainant has prima facie made out a case for prosecution of the respondent Nos.2 to 14 for the above offences. As a result, impugned order is liable to be set aside.
Accordingly, the petition is allowed. Order dated 15.02.2016 passed by the learned V Additional District and Sessions Judge, Mysuru in Criminal Revision Petition No.372/2014 is hereby quashed. The order dated 23.09.2014 passed by the learned Senior Civil Judge and JMFC at T.Narasipura in Cr.No.360/2011 is restored.
Trial court is directed to conduct trial in both the cases in accordance with the procedure laid down by the Full Bench decision of this Court in State of Karnataka by Circle Inspector of Police vs. Hosakeri Ningappa (ILR 2012 Karnataka 509).
Sd/- JUDGE Bss