IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8669/2015 BETWEEN:
SHRI MOHAMMED KABIR, S/O SHRI IBRAHIM AGEDA BOUT 44 YEARS, RESIDING AT SAGAR COMPOUND, ALEKOTE ULLAL, MANGALORE TALUK-575020.
... PETITIONER (BY SMT. MAITREYI KRISHNAN, ADVOCATE) AND:
1. STATE OF KARNATAKA, BY ULLALA POLICE STATION, ULLALA, DAKSHINA KANNADA-575 020.
2. SHRI JAYANTH SHETTY, S/O LATE VASUDEVA SHETTY, AGED ABOUT 59 YEARS, PRESENTLY WORKING AS SUPERINTENDENT OF POLICE, STATE INTELLIGENCE, MANGALORE, KALYANA DAMA BUILDING, KOTTARA CHOWKI, MANGALORE-575 020.
3. SHRI SHIVA PRAKASH, S/O LATE SHRI HANUMAIAH, AGED ABOUT 57 YEARS, PRESENTLY WORKING AS SUB-INSPECTOR, KADRI TRAFFIC POLICE STATION, MANGALORE-575 020.
... RESPONDENTS (BY SRI DILDAR SHIRALLI, HCGP FOR R1; R2 AND R3 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 5.8.2013 IN CRL.R.P.103/2011 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.16/2008 AND IN C.C.NO. 95/2011.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned High Court Government Pleader appearing for respondent No.1. Respondent Nos.2 and 3 are served and unrepresented.
Perused the records.
2. Petitioner herein filed a private complaint against respondent No.2 and 3 seeking action under Section 143, 147, 324, 346, 355, 357, 365, 452 and 506 read with Section 149 of IPC. The learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.P.C.
After investigation, a ‘B’ summary report was submitted to the Court. Petitioner herein filed his protest petition. The learned Magistrate afforded an opportunity to the complainant to record his sworn statement and to examine two witnesses. On considering the sworn statement of the complainant and the documents produced along with his statement as well as the statement of the witnesses, the learned Magistrate, by order dated 6.6.2011 took cognizance of the above offences and issued summons to respondent Nos.2 and 3. Respondent Nos.2 and 3 challenged the said order before the II Additional District and Sessions Judge, D.K., Mangalore. By order dated 5.8.2013 in Crl.R.P.No.103/2011, the learned Sessions Judge allowed the Crl.R.P.No.103/2011 and set aside the order passed by the learned Magistrate dated 6.6.2011 and consequently dismissed the complaint filed by the petitioner in P.C.No.16/2008 (C.C.No.95/2011).
3. Learned counsel appearing for the petitioner has drawn my attention to the reasoning of the learned Sessions Judge, which find place at paragraph No.35 of the order, which reads as under:
“35. I have gone through the impugned order passed by the trial Court which is ofcourse a lengthy order wherein the contention of the complaint and the materials placed before it are all discussed in detail. But as rightly appointed 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.41/2008 of Ullala P.S. that to at an undisputed point of time i.e. at 1.30 a.m. on 24.1.2008 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 and A2 for the offence punishable U/s. 324, 346, 355, 357, 365, 452, 506 r/w 34 of IPC. ”
4. The above reasoning, in my view cannot be accepted. There is no discussion whatsoever by the learned Sessions Judge with regard to the sworn statement and the material produced by the petitioner in support of the accusations made against respondent Nos.2 and 3. The learned Magistrate has taken into consideration the extraneous matters, namely the counter case said to have been registered against the petitioner in Crime No.41/2008. Registration of the said case reinforces the allegations with regard to the incident. The material on record indicate that the petitioner had produced acceptable material to show that the incident had taken place as stated in the sworn statement and during the occurrence, he was unlawfully detained and was assaulted by respondent Nos.2 and 3. Under the said circumstances, there being prima facie material making out the ingredients of the offences alleged against respondent Nos.2 and 3, the learned Sessions Judge was not justified in reversing the said order by placing reliance on totally extraneous matters. It is needless to say that the defence of the accused or the documents relied on by the accused cannot be determinative at the stage of taking cognizance of the offences. At that stage, the learned Magistrate as well as the learned Sessions Court is required to consider only the facts averred in the complaint and the material produced in support thereof so as to arrive at a prima facie satisfaction that the allegation constitute the ingredients of the offence. As the petitioner has clearly made out the ingredients of the above offences entailing the prosecution of respondent Nos.2 and 3, the impugned order passed by the learned II Additional District and Sessions Judge being contrary to the facts on record, is liable to be set aside.
5. Accordingly, the petition is allowed. The impugned order dated 5.8.2013 passed by the II Additional District and Sessions Judge, D.K., Mangalore is set aside. Consequently the order passed by the learned Magistrate in P.C.No.16/2008 (C.C.No.95/2011) dated 6.6.2011 is restored.
Sd/- JUDGE MD