IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA Criminal Petition No.8670 of 2015 BETWEEN:
SHRI MOHAMMED KABIR S/O SHRI. IBRAHIM AGED ABOUT 44 YEARS R/AT SAGAR COMPOUND, ALEKOTE ULLAL MANGALORE TALUK-575020 (BY SRI. CLIFTON D. ROZARIO, ADV.) ... PETITIONER AND 1. STATE OF KARNATAKA BY ULLAL POLICE STATION, ULLALA, DAKSHINA KANNADA - 575020 2. SHRI SHIVA PRAKASH S/O LATE SHRI. HANUMAIAH AGED ABOUT 57 YEARS PRESENTLY WORKING AS SUB-INSPECTOR KADRI TRAFFIC POLICE STATION MANGALORE - 575020 ... RESPONDENTS (BY SRI. DILDAR SHIRALLI, HCGP FOR R1 R2 – SERVED AND UNREPRESENTED) THIS CRL.P. IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.08.2013 IN CRL.R.P.104/2011 PASSED BY THE LEARNED II ADDL. DIST. AND S.J., MANGALORE (ANNEXURE-A) AND RESTORE THE PROCEEDINGS BEFORE THE I ADDL. CJ (Sr.Dn.) AND CJM AT MANGALORE DATED 06.06.2011 IN P.C.NO. 26/2008 AND IN C.C.NO. 96/2011.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned HCGP appearing for respondent No.1. Respondent No.2 is served and unrepresented.
2. Petitioner herein filed a complaint against respondent No.2, the then Sub-Inspector of Kadri Traffic Police Station alleging that on 27.10.2008 at 1 a.m. when he was sleeping in his house, respondent No.2 (Accused No.1) and another police trespassed into his house and assaulted him and dragged him to a neighbouring hospital and told a woman who was sleeping there to involve him in a false case and thereafter at 1.30 a.m. he was taken to Ullal Police Station, his clothes were removed and he was abused and assaulted.
3. Learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.P.C. Investigating Officer submitted a ‘B’ summary report. Petitioner herein filed his protest petition. Learned Magistrate recorded his sworn statement and by order dated 06.06.2011 took cognizance of the alleged offences under Sections 325, 143, 330, 348, 352, 367, 452, 506 r/w 149 of IPC and issued summons to respondent No.2 and other accused person. Against the said order, respondent No.2 filed a revision under Section 397 of Cr.P.C. before II Addl. District & Sessions Judge, D.K. By the impugned order dated 05.08.2013, learned Sessions Judge allowed the revision petition and set aside the order dated 06.06.2011 passed by learned Magistrate in C.C.No.96/2011 and consequently dismissed P.C.No.26/2008 registered at the instance of petitioner herein.
4. The only reasoning assigned by learned Sessions Judge for reversing the order of learned Magistrate finds a place at para-33 of the impugned order which reads as under:
“33. I have gone through the impugned order passed by the trial court which is ofcourse a lengthy order wherein the contention of the complainant and the materials placed before it are all discussed in detail. But as rightly pointed by the learned advocate for the revision petitioner the trial court has never taken into consideration the filing of the FIR against the complainant as accused in crime No.260/2008 of Ullala P.S. that to at an undisputed point of time i.e., at 3.30 a.m. on 27.10.2008 and the so-called injuries suffered by the complainant as per the wound certificate and the allegations made in the complaint in the light of the frequent communal riots that are erupting in and around Ullala. These are all definitely not extraneous matters, but they are the foundation for forming an opinion as to whether sufficient grounds are made out against the accused or not. Therefore I am of the opinion that the trial court has committed an error on the face of the record in coming to the conclusion that the complaint is successful in making out a prima-facie case to proceed against A1 for the offence punishable U/s 325, 143, 330, 348, 352, 367, 452 & 506 R/w 149 of IPC and U/s. 3 to 8 of Immoral Traffic Prevention Act ”
5. From the above order, it is seen that the only reason which weighed with the revisional Court is that the petitioner had suppressed the registration of Crime No.260/2008 in the sworn statement. This reasoning in my view is indefensible. Needless to state that at the time of taking cognizance of the offences, learned Magistrate is not required to take into consideration the prospective defence of accused. Even assuming that the complainant, namely the petitioner herein had not disclosed the registration of complaint against him in Crime No.260/2008 of Ullal Police Station, the same cannot be a reason to hold that the complaint lodged by petitioner against respondent No.2 was false and did not make out the alleged offences. As long as the allegations made in complaint and the contents of the sworn statement of petitioner prima facie disclose ingredients of the alleged offence, learned Sessions Judge could not have discarded the case of the petitioner.
6. I have perused the complaint averments as well as sworn statement of the petitioner and the witnesses examined by him, which disclose that the incident had taken place as stated in FIR. The allegations made in the complaint are corroborated by PW-2, wife of petitioner. There is acceptable material to show that at the earlier instance when the petitioner was produced before the Magistrate, he had complained of the alleged assault on him. Thus there being prima facie material to show that the respondent committed the above offences, learned Sessions Judge was not justified in reversing the order of the learned Magistrate solely on the ground that petitioner herein had suppressed the factum of registration of complaint against him in Crime No.260.2008. Even assuming that there was such a complaint registered against petitioner, it only fortifies the allegations made against respondent No.2 that at the relevant time, respondent No.2 was picked up from the house of petitioner. Therefore the reasons assigned by learned Sessions Judge to reverse the orders of learned Magistrate, in my opinion, being contrary to the materials on record, cannot be sustained and are liable to be set aside.
7. Accordingly, petition is allowed. Impugned order dated 05.08.2013 passed by learned Sessions Judge is set aside. The order passed by learned Magistrate is restored. Respondent No.2 shall face trial for the offences in respect of which summons are issued to him by the trial Court.
Sd/- Judge RD